Ex Parte Wittsche

Patent Trial and Appeal Board

Nov 13, 2012

11027641 (P.T.A.B. Nov. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
___________ 2
3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
___________ 5
6
Ex parte L. WILLIAM WITTSCHE 7
___________ 8
9
Appeal 2011-002928 10
Application 11/027,641 11
Technology Center 3600 12
___________ 13
14
15
Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and 16
MICHAEL W. KIM, Administrative Patent Judges. 17
FETTING, Administrative Patent Judge. 18
DECISION ON APPEAL 19
Appeal 2011-002928
Application 11/027,641

2
STATEMENT OF THE CASE1 1

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed July 6, 2010) and Reply Brief (“Reply Br.,” filed October 27,
2010), and the Examiner’s Answer (“Ans.,” mailed September 2, 2010).
L. William Wittsche (Appellant) seeks review under 35 U.S.C. § 134 of 2
a final rejection of claims 1 and 3-10, the only claims pending in the 3
application on appeal. We have jurisdiction over the appeal pursuant to 4
35 U.S.C. § 6(b). 5
The Appellant invented a way of providing an on-line mall with multiple 6
communities (Specification, para. 0005). 7
An understanding of the invention can be derived from a reading of 8
exemplary claim 1, which is reproduced below [bracketed matter and some 9
paragraphing added]. 10
1. A method 11
for providing an on-line mall with multiple communities, 12
the method including: 13
[1] via a mall environment system implemented in at least one 14
of: 15
embedded in hardware, 16
or 17
implemented on one or more processors, 18
[2] providing multiple communities 19
within an on-line mall environment, 20
each community comprising a plurality of stores 21
targeted at a demographic market 22
Appeal 2011-002928
Application 11/027,641

3
including stores for women, men, children, and 1
teens; 2
[3] providing multiple stores 3
within each of the multiple communities, 4
each store being associated with a merchant 5
with merchandise directed to a community 6
within which the store is provided; 7
and 8
[4] displaying, 9
in the on-line mall, 10
the multiple stores within a particular community 11
targeted at the demographic market, 12
with an at least partially common façade 13
that shows a similar storefront look 14
for the multiple stores. 15
The Examiner relies upon the following prior art: 16
Kondoh US 2001/0011239 A1 Aug. 2, 2001
Herz US 2001/0014868 Al Aug. 16, 2001
Gusler US 2002/0178072 Al Nov. 28, 2002
Bamborough US 2006/0235764 A1 Oct. 19, 2006
Bezos US 7,337,133 B1 Feb. 26, 2008
Claims 1 and 4 stand rejected under 35 U.S.C. § 103(a) as unpatentable 17
over Herz and Gusler.2 18

2 The Examiner withdrew a rejection of claims 1 and 3-10 under
35 U.S.C. § 112, first paragraph. Ans. 4.
Appeal 2011-002928
Application 11/027,641

4
Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over 1
Herz, Gusler, and Kondoh. 2
Claims 5-7, 9, and 10 stand rejected under 35 U.S.C. § 103(a) as 3
unpatentable over Herz, Gusler, and Bamborough. 4
Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over 5
Herz, Gusler, Bamborough, and Bezos. 6
ISSUES 7
The issues of obviousness turn primarily on whether the types of 8
customers a store is designed to attract and the storefront design are 9
deserving of patentable weight, and if so whether it was predictable to try to 10
attract a diverse customer base and to have some similarity of storefronts. 11
FACTS PERTINENT TO THE ISSUES 12
The following enumerated Findings of Fact (FF) are believed to be 13
supported by a preponderance of the evidence. 14
Facts Related to the Prior Art 15
Gusler 16
01. Gusler is directed to online and e-commerce, and especially to 17
the graphical technologies for representing commerce facilities, 18
organization, and navigation of shopping centers, and to 19
automatically alerting online shoppers to other concurrently online 20
shoppers, finding other concurrently online shoppers, and 21
communications there between. Gusler, para. 0006. 22
Appeal 2011-002928
Application 11/027,641

5
02. As of Gusler’s filing date, online marketplaces were frequently 1
set up in one of two fundamental ways. In one of those, stores and 2
malls might be presented in their entirety as a single domain, with 3
possible divisions between departments (e.g., men's wear, 4
households, etc), as shown in Gusler’s Figure 2. In the other 5
instance, online malls were often organized so that visiting one 6
“mall-front” shows lists of stores of possible interest to the visitor, 7
and often provided search facilities based on store names or 8
product categories, as shown in Gusler’s Figure 3. Gusler, para. 9
0014-0015. 10
03. A mall operator may group certain types of stores based on a 11
crossover business potential. For example, a “bricks-and-mortar” 12
mall operator may locate a linen store, a bath products store, and a 13
women's dress shop in close proximity to each other to target 14
female shoppers. Gusler, para. 0016. 15
04. Gusler’s online shopping mall may provide the “shoppers” with 16
a realistic shopping experience including presentation of visual 17
images and audible sounds relevant and coordinated to a shopper's 18
“position” within the cybermall. As a shopper “moves” through 19
the cybermall, graphical images of mall hallways are presented in 20
logical sequence showing store fronts and facades, with selectable 21
areas in the images defining entry points to enter the stores. As 22
stores are entered, specific images of store interiors are provided, 23
allowing each store to control and generate an environment within 24
their own store. During the entire experience, relevant audible 25
sounds are provided to the shopper such as general mall hallway 26
Appeal 2011-002928
Application 11/027,641

6
sounds while in the mall, and store-specific background sounds 1
and music while in a selected store. Gusler, para. 0047. 2
05. Figure 5 shows an example presentation of the visual image 3
from a given position within a mall floor plan, including store 4
facades, and the position indicator, as set forth in the related patent 5
applications. Gusler, para. 0053. 6
ANALYSIS 7
Claims 1 and 4 rejected under 35 U.S.C. § 103(a) as unpatentable over Herz 8
and Gusler. 9
We are not persuaded by the Appellant’s argument that Herz fails to 10
describe each community comprising a plurality of stores targeted at a 11
demographic market including stores for women, men, children, and teens. 12
Appeal Br. 14-15. While we agree with Appellant that Herz says that many 13
of the virtual malls at the time of Herz’s filing aggregated similar rather than 14
diverse stores, this does not negate the knowledge that those operators had of 15
a diverse aggregate alternative. 16
As the Examiner found, virtual malls are designed to replicate the 17
physical mall experience, and physical malls were known to aggregate 18
diverse stores including those designed to attract customers for men’s, 19
women’s and children’s articles. Certainly the target customer base for the 20
stores in the claim are themselves non-functional and deserving of no 21
patentable weight. But beyond that, the common shopping experience of 22
mall customers, much less the professional experience of one of ordinary 23
skill, would have at least made aggregating stores designed to attract 24
Appeal 2011-002928
Application 11/027,641

7
customers for men’s, women’s, and children’s articles at least predictable, as 1
almost every physical mall one comes across does so. 2
Certainly nothing in the art even suggests that one should depart from 3
the physical analog. Whether some early practitioners decided to avoid the 4
diversity for some additional marketing reason does not diminish the 5
common sense knowledge that there is comfort in an analog of an already 6
known experience. 7
Similarly we are not persuaded by the Appellant’s argument that Gusler 8
fails to describe a partially common façade. Again, this is non-functional 9
and deserving of no patentable weight. Further, the claim makes no 10
limitation on the manner of being common. Certainly Gusler’s Figure 5 11
shows commonality at least as to presence in a common display and a 12
common look of the various storefronts. 13
Claim 3 rejected under 35 U.S.C. § 103(a) as unpatentable over Herz, 14
Gusler, and Kondoh. 15
Claims 5-7, 9, and 10 rejected under 35 U.S.C. § 103(a) as unpatentable 16
over Herz, Gusler, and Bamborough. 17
Claim 8 rejected under 35 U.S.C. § 103(a) as unpatentable over Herz, 18
Gusler, Bamborough, and Bezos. 19
Appellant relies on the patentability of claim 1. 20
CONCLUSIONS OF LAW 21
The rejection of claims 1 and 4 under 35 U.S.C. § 103(a) as unpatentable 22
over Herz and Gusler is proper. 23
Appeal 2011-002928
Application 11/027,641

8
The rejection of claim 3 under 35 U.S.C. § 103(a) as unpatentable over 1
Herz, Gusler, and Kondoh is proper. 2
The rejection of claims 5-7, 9, and 10 under 35 U.S.C. § 103(a) as 3
unpatentable over Herz, Gusler, and Bamborough is proper. 4
The rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over 5
Herz, Gusler, Bamborough, and Bezos is proper. 6
DECISION 7
The rejection of claims 1 and 3-10 is affirmed. 8
No time period for taking any subsequent action in connection with this 9
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 10
§ 1.136(a)(1)(iv) (2011). 11
12
AFFIRMED 13
14
15
16
17
mls 18