Marc Diana et al.

Patent Trials and Appeals Board

Dec 31, 2019

13111813 - (D) (P.T.A.B. Dec. 31, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/111,813 05/19/2011 Marc Diana 078920.0108 6229
5073 7590 12/31/2019
BAKER BOTTS L.L.P.
2001 Ross Avenue, 9th Floor
Dallas, TX 75201
EXAMINER
KHATTAR, RAJESH
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
12/31/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PTOmail1@bakerbotts.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARC DIANA AND PER PETTERSEN
___________

Appeal 2018-008981
Application 13/111,813
Technology Center 3600
____________

Before CARL W. WHITEHEAD JR., JON M. JURGOVAN,
and KARA L. SZPONDOWSKI, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 is appealing the final rejection of claims 1–4, 7–10, 13, 16
and 18–34 under 35 U.S.C. § 134(a). Appeal Brief 8. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Leadpoint, Inc., as the real party in interest.
Appeal Brief 2.
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Introduction
The invention is directed to “automated open-market pricing systems
and more specifically to structures and methods for auctioning or bidding off
leads when such leads are sourced from sellers to competing buyers of such
leads.” Specification ¶ 2.
Representative Claim2
1. A computer-implemented method, comprising:
electronically receiving, over the Internet, a plurality of bid profiles,
wherein each bid profile:
is associated with a lead buyer;
comprises a specification defining leads desired by the associated lead
buyer;
and
comprises a bid;
electronically storing the specifications and the bids of the plurality of
bid profiles in an electronic data structure;
electronically receiving, over the Internet, a first lead from a lead
seller, the lead comprising lead data and the lead seller being associated with
a first quality indicator;
automatically determining, based on an analysis of the lead data, that
the first lead is valid;
electronically receiving, over the Internet, performance information
associated with the lead seller;

2 See Appeal Brief 8–9.
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electronically storing the performance information associated with the
lead seller;
automatically selecting, using a processor, a first bid profile from the
plurality of bid profiles based at least on comparing:
the lead data with the bid specification of the first bid profile;
and
the bid of the first bid profile with a bid of a second bid profile
of the plurality of bid profiles;
automatically providing a first lead buyer associated with the first bid
profile electronic access over the Internet to at least a portion of the lead
data;
electronically analyzing the performance information associated with
the lead seller;
in response to analyzing the performance information, automatically
determining a second quality indicator;
after determining the second quality, indicator automatically
associating the lead seller with the second quality indicator;
automatically determining a compensation amount based on the
second quality indicator, wherein the compensation amount:
is based on the bid of the first bid profile and the second quality
indicator; and
is not the same as the bid of the first bid profile.

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References
Name Reference Date
Say US 2002/0147655 A1 October 10, 2002
Dutta et al. US 2003/0004855 A1 January 2, 2003
Ojha et al. US 6,598,026 Bl July 22, 2003
Desenberg US 7,139,732 B1 November 21, 2006

Rejections on Appeal
Claims 1–4, 7–10, 13, 16 and 18–34 stand rejected under 35 U.S.C.
§ 101 because the claimed invention is directed to patent-ineligible subject
matter. Final Action 2–4.
Claims 1, 4, 7, 10, 13, 16, 18–26 and 29–34 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over Say, Dutta, and Ojha.
Final Action 5–10.
Claims 2, 3, 8, 9, 27 and 28 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Say, Dutta, Ojha and Desenberg. Final
Action 10–11.

ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed June 4, 2018), the Reply Brief (filed
September 21, 2018), the Final Action (mailed December 4, 2017) and the
Answer (mailed August 2, 2018), for the respective details.

35 U.S.C. § 101 Rejection
The Examiner determines the claims are patent ineligible under
35 U.S.C. § 101. See Final Action 2. We agree with the Examiner’s
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determination because the claims are directed to an abstract idea comprising
commercial or legal interactions (sales activities), a certain method of
organizing human activity, and do not include additional elements that are
sufficient to amount to significantly more than the abstract idea. See Alice
Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (describing the
two-step framework “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts”).
After the mailing of the Answer and the filing of the Brief in this case,
the USPTO published revised guidance on the application of § 101. 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (hereinafter “Memorandum”).3 Under the Memorandum, the Office
first looks to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. 2018)).

3 In January 2019, the United States Patent and Trademark Office
(“USPTO”) published revised guidance on the application of 35 U.S.C.
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (January 7, 2019) (“2019 Guidance”), updated by USPTO, October
2019 Update: Subject Matter Eligibility (available at https://www.uspto.gov/
sites/default/files/documents/peg_oct_2019_update.pdf) (jointly referred to
as “the 2019 Guidance”); see also October 2019 Patent Eligibility Guidance
Update, 84 Fed. Reg. 55942 (October 18, 2019) (notifying the public of the
availability of the October update).

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Only if a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, does the Office then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum.
We are not persuaded the Examiner’s rejection is in error. Unless
otherwise indicated, we adopt the Examiner’s findings and conclusions as
our own. We add the following primarily for emphasis and clarification
with respect to the Memorandum.
Alice/Mayo—Step 1 (Abstract Idea)
Step 2A–Prongs 1 and 2 identified in the Revised Guidance
Step 2A, Prong One
Appellant contends the claims are not directed to an abstract idea. See
Appeal Brief 8–9.
The Specification discloses that, “buyer requisition profiles are
created or specified by potential buyers of leads and stored in an automated
leads-and-bids exchange system. Such profiles specify the types of leads the
buyers are interested in.” Specification ¶ 10. The Specification also
discloses, “the opening bid amount [for the leads] is accompanied by one or
more escalating bid amounts which the buyer may wish to commit to if the
profile loses in a first or subsequent round of biddings for matching leads”
and “The escalating bid amounts reduce the probability that the bidder will
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win no leads while the initial bid amount may represent a bargain or
discount price for a lead if no one else bids on it.” Specification ¶ 10.
Claim 1 recites a method for electronically receiving bids over the
Internet wherein each bid profile is associated with a lead buyer and:
1. comprises a specification defining leads desired by the associated lead
buyer;
2. comprises a bid;
3. electronically storing the specifications and the bids of the plurality of bid
profiles in an electronic data structure;
4. electronically receiving, over the Internet, a first lead from a lead seller,
the lead comprising lead data and the lead seller being associated with a first
quality indicator;
5. automatically determining, based on an analysis of the lead data, that the
first lead is valid;
6. electronically receiving, over the Internet, performance information
associated with the lead seller;
7. electronically storing the performance information associated with the
lead seller;
8. automatically selecting, using a processor, a first bid profile from the
plurality of bid profiles based at least on comparing: the lead data with the
bid specification of the first bid profile; and the bid of the first bid profile
with a bid of a second bid profile of the plurality of bid profiles;
9. automatically providing a first lead buyer associated with the first bid
profile electronic access over the Internet to at least a portion of the lead
data;
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10. electronically analyzing the performance information associated with
the lead seller; in response to analyzing the performance information,
automatically determining a second quality indicator; after determining the
second quality indicator, automatically associating the lead seller with the
second quality indicator;
11. automatically determining a compensation amount based on the second
quality indicator, wherein the compensation amount: is based on the bid of
the first bid profile and the second quality indicator; and is not the same as
the bid of the first bid profile.
These steps comprise commercial or legal interactions (sales
activities); thus, the claim recites the abstract idea of “certain methods of
organizing human activity.” Memorandum, Section I (Groupings of
Abstract Ideas); see Specification ¶¶ 9–12. Our reviewing court has found
claims to be directed to abstract ideas when they recited similar subject
matter. See Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can Canada
(U.S.), 687 F.3d 1266, 1280 (Fed. Cir. 2012) (concluding that “managing a
stable value protected life insurance policy by performing calculations and
manipulating the results” is an abstract idea); buySAFE, Inc. v. Google, Inc.,
765 F.3d. 1350, 1355 (Fed. Cir. 2014) (holding that concept of “creating a
contractual relationship—a ‘transaction performance guaranty’” is an
abstract idea); Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378–79 (Fed. Cir. 2017) (holding that concept of ‘‘local processing
of payments for remotely purchased goods’’ is a ‘‘fundamental economic
practice, which Alice made clear is, without more, outside the patent
system.’’); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63
(Fed. Cir. 2015) (concluding that claimed concept of “offer-based price
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optimization” is an abstract idea “similar to other ‘fundamental economic
concepts’ found to be abstract ideas by the Supreme Court and this court”).
Therefore, we conclude the claims recite an abstract idea pursuant to Step
2A, Prong One of the guidance. See Memorandum, Section III(A)(1) (Prong
One: Evaluate Whether the Claim Recites a Judicial Exception).

Step 2A, Prong Two (Integration into a Practical Application)
Step 2A, Prong Two
Under Prong Two of the Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception
into a practical application of the exception” it is noted that a “claim that
integrates a judicial exception into a practical application will apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception.” Memorandum, Section
III(A)(2).
Appellant argues, “The pending claims are patent-eligible because
they recite a specific technologic modification that solves a problem arising
in computer technology. Namely, the pending claims recite an
unconventional system and method of minimizing or preventing fraud in
automated open-market systems.” Appeal Brief 9; see Specification ¶¶ 9,
100. Appellant also argues the claims provide an improvement or
technology or a technical field, similar to the claims in Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) and McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016). Appeal Brief 10–
11.
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We note, as the Federal Circuit has explained, a “claim for a new
abstract idea is still an abstract idea.” Synopsis, Inc. v. Mentor Graphics
Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). Even assuming the technique
claimed was “[g]roundbreaking, innovative, or even brilliant,” that would
not be enough for the claimed abstract idea to be patent eligible. See Ass’n
for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013).
Further, we find Appellant’s claims are distinguished from those
claims that our reviewing court has found to be patent eligible by virtue of
reciting technological improvements to a computer system. See, e.g., DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1249, 1257 (Fed. Cir.
2014) (holding that claims reciting computer processor for serving
“composite web page” were patent eligible because “the claimed solution is
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks”); Visual Memory
LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017) (holding that
claims directed to “an improved computer memory system” having many
benefits were patent eligible); see also Appeal Brief 9.
In McRO4, the Federal Circuit concluded that the claim, when
considered as a whole, was directed to a “technological improvement over
the existing, manual 3-D animation techniques” through the “use [of] limited
rules . . . specifically designed to achieve an improved technological result in
conventional industry practice.” McRO, 837 F.3d at 1316.
Specifically, the Federal Circuit found that the claimed rules allow
computers to produce accurate and realistic lip synchronization and facial

4 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1303 (Fed.
Cir. 2016).
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expressions in animated characters that previously could only be produced
by human animators; and the rules are limiting because they define morph
weight sets as a function of phoneme sub-sequences. McRO, 837 F.3d at
1313 (internal citations omitted).
We find no evidence of record here that the present situation is like the
one in McRO where computers were unable to make certain subjective
determinations, i.e., regarding morph weight and phoneme timings, which
could only be made prior to the claimed invention by human animators. See
Appeal Brief 9–10. The Background section of the McRO ‘576 patent
includes a description of the admitted prior art method and the shortcomings
associated with that prior method. See McRO, 837 F.3d at 1303–06. There
is no comparable discussion in Appellant’s Specification or elsewhere of
record.
Subsequently, we do not find Appellants’ arguments persuasive
because the claims utilize a processor without any improvement to the
functioning of the device itself. See generally Specification; Appeal Brief
10–11; see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–36
(Fed. Cir. 2016) (“[W]e find it relevant to ask whether the claims are
directed to an improvement to computer functionality versus being directed
to an abstract idea . . . the focus of the claims is on the specific asserted
improvement in computer capabilities (i.e., the self-referential table for a
computer database) or, instead, on a process that qualifies as an ‘abstract
idea’ for which computers are invoked merely as a tool.”). The claims do
not recite an additional element or elements that reflect an improvement in
the functioning of a computer, or an improvement to other technology or
technical field. See Alice, 573 U.S. at 222 (“In holding that the process was
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patent ineligible, we rejected the argument that ‘implement[ing] a principle
in some specific fashion’ will ‘automatically fal[l] within the patentable
subject matter of § 101.’” (Alterations in original) (quoting Parker v. Flook,
437 U.S. 584, 593 (1978))).
Subsequently, we detect no additional element (or combination of
elements) recited in Appellant’s representative claim 1 that integrates the
judicial exception into a practical application. See Memorandum, Section
III(A)(2). For example, Appellant’s claimed additional element (e.g.,
“processor”) do not: (1) improve the functioning of a computer or other
technology; (2) are not applied with any particular machine (except for a
generic computer); (3) do not effect a transformation of a particular article to
a different state; and (4) are not applied in any meaningful way beyond
generally linking the use of the judicial exception to a particular
technological environment, such that the claim as a whole is more than a
drafting effort designed to monopolize the exception. See MPEP
§§ 2106.05(a)-(c), (e)-(h).
Accordingly, we determine the claim does not integrate the recited
judicial exception into a practical application. See Memorandum, Section
III(A)(2) (Prong Two: If the Claim Recites a Judicial Exception, Evaluate
Whether the Judicial Exception Is Integrated Into a Practical Application).

Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
Step 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
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providing an inventive concept. Alice, 573 U.S. at 217–18 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
Appellant argues, “The Examiner’s § 101 rejection of Claims 1-4, 7-
10, 13, 16, and 18-34 cannot stand in view of the USPTO’s current guidance
as laid out in the Patent Office’s guidance regarding the Berkheimer case.”
Reply Brief 5 (citing Berkheimer Memorandum5).
Memorandum, Section III (B) (footnote 36) states (emphasis
added):
In accordance with existing guidance, an examiner’s
conclusion that an additional element (or combination of
elements) is well understood, routine, conventional activity must
be supported with a factual determination. For more information
concerning evaluation of well-understood, routine, conventional
activity, see MPEP 2106.05(d), as modified by the USPTO
Berkheimer Memorandum.

The Berkheimer Memorandum Section III (A) states when
formulating rejections, “[i]n a step 2B analysis, an additional element (or
combination of elements) is not well-understood, routine or conventional
unless the examiner finds, and expressly supports a rejection in writing.”
The Berkheimer Memorandum6 provides four criteria for the Examiner to

5 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.).” April 19, 2018.

6 Berkheimer Memorandum Section III (A) (1. A citation to an express
statement in the specification or to a statement made by an applicant during
prosecution that demonstrates the well-understood, routine, conventional
nature of the additional element(s); 2. A citation to one or more of the court
decisions discussed in MPEP § 2106.05(d)(II) as noting the well-understood,
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utilize to provide support for the additional elements to be considered to be
well-understood, routine or conventional.
Appellant argues that the Examiner does not provide support for the
position that the additional elements are well-understood, routine or
conventional in accordance to the Berkheimer Memorandum. Appeal Brief
5–6. The Examiner determines:
The claim 1 also recites the computer processor limitations, the
electronic and automatically features of the claim may certainly
involve the use of a computer processor which do not add
significantly more as the computer is recited at a high level of
generality and its broadest reasonable interpretation comprises a
microprocessor which is performing its routine, well-understood
and conventional function similar to what has been found by the
courts not to be adding significantly more to the underlying
abstract idea (as in Alice).
Final Action 4 (emphasis added).
Consequently, we do not find Appellant’s argument persuasive
because in determining if the additional element (or combination of
additional elements) represents well-understood, routine, conventional
activity, the Examiner supported the determination based upon a factual
determination as specified in the Berkheimer Memorandum. See
Berkheimer Memorandum Section III (A)(2); Final Action 4.
Appellant further argues that, “even if the Examiner’s conclusory
analysis were accepted, the rejection does not even attempt to address

routine, conventional nature of the additional element(s); 3. A citation to a
publication that demonstrates the well-understood, routine, conventional
nature of the additional element(s) and 4. A statement that the examiner is
taking official notice of the well-understood, routine, conventional nature of
the additional element(s).).

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whether the ordered combination of elements constitutes well-understood,
routine, or conventional activity.” Reply Brief 6. In Bascom, our reviewing
court found that while the claims of the patent were directed to an abstract
idea, the patentee alleged an “inventive concept can be found in the ordered
combination of the claim limitations that transform the abstract idea of
filtering content into a particular, practical application of that abstract idea.”
Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1314,
1352 (Fed. Cir. 2016). In particular, the patent claimed “a technology-based
solution (not an abstract-idea-based solution implemented with generic
technical components in a conventional way) to filter content on the Internet
that overcomes existing problems with other Internet filtering systems.”
Bascom, 827 F.3d at 1351. Claim 1 is immediately distinguishable, as it
recites an abstract-idea-based solution, that is, a leads-and-bids exchange
system, implemented with a generic technical component (processor), in a
conventional way. (See generally Specification). Therefore, we are not
persuaded that ordered combinations of steps in claim 1 provide an inventive
concept. See Memorandum at 56.
Accordingly, we conclude claims 1–4, 7–10, 13, 16, and 18–34 are
directed to commercial or legal interactions (sales activities), which are
considered methods of organizing human activity identified in the
Memorandum and thus an abstract idea wherein the claims do not recite
limitations that amount to significantly more than the abstract idea itself.
We sustain the Examiner’s § 101 rejection of claims 1–4, 7–10, 13, 16, and
18–34.

35 U.S.C. § 103 Rejection
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Appellant contends that the proposed Say-Dutta-Ojha combination
fails to teach or disclose the following limitation in claim 1:
automatically determining a compensation amount based on the
second quality indicator, wherein the compensation amount: is
based on the bid of the first bid profile and the second quality
indicator; and is less than the bid of the first bid profile.
Appeal Brief 12 (emphasis added).
The Examiner finds Appellant is not arguing the proper version of the
limitation because amendments to claim 1 were submitted on January 24,
2018 for consideration after the mailing of the Final Action on December 4,
2017 and were not entered. Answer 4 (citing Advisory mailed February 1,
2018). The Examiner concludes that, “the arguments regarding [the] ‘less
than the bid of the first bid profile’ [limitation] are moot.” Answer 5.
Appellant acknowledges the limitation was “inadvertently recited” and
addresses the limitation “not the same as the bid of the first bid profile”
instead. See Reply Brief 6, note 1; see also Claim Appendix filed with the
Appeal Brief on June 4, 2018.
Appellant argues the recited portions7 of Ojha fails to “disclose, teach,
or suggest that a compensation amount is determined based on a quality
indicator as recited in Claim 1” because at most, Ojha “teaches imposing a
penalty against a buyer for abandoning a negotiation. This is not analogous
to that which is required by the claims - adjusting the compensation
amount of a lead seller based on a quality indicator. Appeal Brief 13.
Appellant further argues, “Ojha at 3:22-58 may teach determining an amount

7 Ojha, (column 2, lines 25–40; column 3, lines 22–58). Final Action 8.
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based on a reputation, such determination is performed by a person (i.e., a
buyer) and not a component (e.g., a processor[8]) of the claimed system as
required by Claim 1.” Appeal Brief 14. The Examiner determines that:
Ojha also discloses electronic commerce via the Internet and the
use of a computer to automate the step of determining an amount
(i.e. compensation amount) based on a reputation (quality
indicator). Ojha also discloses a seller could choose to response
unfavorable to such buyers, thus giving the buyer immediate
feedback and incentive to adjust her bid accordingly. In addition,
a seller could give preferential treatment, e.g., discounts, to
buyers with very good reputations. Thus, the resulting bid may
not be the same as the bid of the first bid profile.
Answer 5.
We do not find Appellant’s arguments persuasive because Ojha
discloses altering monetary commercial interactions based upon reputation
of the participants. See Ojha, column 3, lines 44–45 (“Each buyer’s
reputation is made available to sellers on the site for use as they see fit.”).
We agree with the Examiner that Ojha teaches or suggests the disputed
limitation. See KSR Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007). (“As
our precedents make clear, however, the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.”) Accordingly, we agree with the
Examiner’s findings that Ojha discloses determining a compensation amount
based upon a quality indicator as claimed and sustain the obviousness

8 Appellant contend, that support for the claimed processor is located in
paragraphs 12, 77, 89–90, 104–107, and 119. Appeal Brief 5–6. We note
there is no mention of a processor within the cited paragraphs. Also, there is
no mention of a processor in the claims originally filed with the
Specification on May 19, 2011.
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rejection of claims “1, 7, 26 and their respective dependent claims.” See
Appeal Brief 14.
Appellant further argues, “Claim 19 is allowable for an additional
reason. In pertinent part, Claim 19 recites ‘“filtering feedback from the lead
buyer associated with the first bid profile from the performance
information.’” Appeal Brief 15. Appellant contends:
As explained in Appellant’s Specification, excluding the
feedback of a lead buyer from the performance information
associated with the lead seller may prevent buyers from taking
advantage of good lead sellers by providing negative feedback
about the good lead sellers - in other words, filtering a lead
buyer’s feedback prevents and/or minimizes that buyer from
gaming the system.
Appeal Brief 15.
The Examiner finds:
With regard to Appellant’s arguments regarding the rejection of
claims 19, 22, and 31 under 35 U.S.C. [§] 103(a), Examiner notes
that Dutta discloses if the user wishes to update the user’s rating
(step 1216) (i.e. performance information), a new rating based on
the amount purchased or sold and any positive or negative
feedback from other users is calculated for the user (step 1212)
(i.e. filtering feedback).
Answer 5.
We do not sustain the Examiner’s obviousness rejection of claim 19
because it is not evident that Dutta discloses filtering feedback. See Final
Action 9 (citing Dutta ¶¶ 48, 50, 53, 64); Answer 5. Dutta discloses, “If the
user wishes to update the user’s rating (step 1216), a new rating based on the
amount purchased or sold and any positive or negative feedback from other
users is calculated for the user (step 1212)” and “If the user does not opt to
receive the next rating, it is determined whether the user has positive
information or trading history that would warrant an increase in rating (step
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1218). Dutta ¶¶ 64–65. Subsequently, we reverse the Examiner
obviousness rejection of claims 19, 23, and 31.9 See Appeal Brief 15.

CONCLUSION
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7–10,
13, 16, 18–
34
101 Eligibility 1–4, 7–10,
13, 16,
18–34

1, 4, 7, 10,
13, 16, 18,
20–22, 24–
26, 29–34
103 Say, Dutta, Ojha 1, 4, 7, 10,
13, 16, 18,
20–22,
24–26, 29,
30, 32–34
19, 23, 31
2, 3, 8, 9,
27, 28
103 Say, Dutta, Ojha,
Desenberg
2, 3, 8, 9,
27, 28

Overall
Outcome
1–4, 7–10,
13, 16,
18–34

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED

9 Claim 22 does not recite filtering as claims 19 and 31, however claim 23
does recite filtering. We view Appellant’s indication that claim 22 instead
of claim 23 requiring filtering as merely a typographical error. See Appeal
Brief 15; Reply Brief 8–9.