Walmart Apollo, LLC

Patent Trials and Appeals Board

Mar 29, 2021

2020006355 (P.T.A.B. Mar. 29, 2021)

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.
15/429,313 02/10/2017 Greg A. Bryan 8842-137317-US_620US02 6162
122573 7590 03/29/2021
Fitch, Even, Tabin & Flannery, LLP/Walmart Apollo
120 South LaSalle Street
Suite 2100
Chicago, IL 60603-3406
EXAMINER
DELIGI, VANESSA LIMA
ART UNIT PAPER NUMBER
3627
MAIL DATE DELIVERY MODE
03/29/2021 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREG A. BRYAN, ERIC A. LETSON and
JOHN P. THOMPSON
___________

Appeal 2020-006355
Application 15/429,313
Technology Center 3600

____________

Before CARL W. WHITEHEAD JR., ADAM J. PYONIN, and
MICHAEL J. ENGLE, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant2 is appealing the final rejection of claims 1–14 under
35 U.S.C. § 134(a). Appeal Brief 3. Claim 1 is independent. We have
jurisdiction under 35 U.S.C. § 6(b).

1 Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Brief (filed June 17, 2020), the Reply
Brief (filed September 9, 2020), the Final Action (mailed January 23, 2020)
and the Answer (mailed July 9, 2020), for the respective details.

2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
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We AFFIRM.
Introduction
According to Appellant, the claimed subject matter relates to
“specifying the appearance of a properly-configured display that includes a
plurality of discrete components and then forming at least one image that
includes the appearance of the properly-configured display.” See
Specification ¶ 13. Further:
The image (or images) and corresponding information regarding
the discrete loose components is provided to a retail shopping
facility and used in conjunction with a mobile camera-equipped
device to visually overlay the image over a view of an actual
display to thereby facilitate comparing the actual display with the
appearance of a properly-configured display.
Specification ¶ 13.

Representative Claim
1. A method comprising:
specifying an appearance of a completed properly-
configured display that includes a plurality of discrete loose
components;
forming a first image that presents the appearance of the
completed properly-configured display;
forming a second image that presents an appearance of a
properly-configured though incomplete display;
providing the first and second image and information
regarding the discrete loose components to a retail shopping
facility;
when forming a physical display at the retail shopping
facility that includes components corresponding to the plurality
of discrete loose components:

§ 1.42(a). Appellant identifies Walmart, Inc. and Walmart Apollo, LLC, as
the real parties in interest. Appeal Brief 3.

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using a mobile camera-equipped device to visually overlay
the second image on an image of the physical display when the
physical display is only partially completed to thereby facilitate
comparing the only partially-completed physical display with the
appearance of a properly-configured though incomplete display;
using the mobile camera-equipped device to visually
overlay the first image over an image of the physical display
when the physical display is completed to thereby facilitate
comparing the physical display with the appearance of a
completed properly-configured display.

References
Name3 Reference Date
Hicks US 2013/0051611 A1 February 28, 2013
Birch US 2014/0201040 A1 July 17, 2014
Yan US 2015/0088703 A1 March 26, 2015
Wu US 2015/0363758 A1 December 17, 2015

Rejections on Appeal
Claims 1–10 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Yan and Birch. Final Action 2–8.
Claims 11–13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Yan, Birch and Wu. Final Action 8, 9.
Claim 14 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Yan, Birch and Hicks. Final Action 9, 10.

ANALYSIS
Appellant contends, “Birch does not disclose forming or using an
image of a properly configured though incomplete display.” Appeal
Brief 7. Appellant further contends that according to claim 1, “an image of

3 All reference citations are to the first named inventor only.

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both a ‘completed properly-configured display’ and an image of a ‘properly-
configured though incomplete display’” is provided. Appeal Brief 8. We
find Appellant’s argument is not commensurate with the scope of claim 1
because claim 1 recite contingent limitations such as “when the physical
display is only partially completed” and “when the physical display is
completed.” See MPEP § 2111.04(II) (9th ed. Rev. 10.2019, June 2020)
(“The broadest reasonable interpretation of a method (or process) claim
having contingent limitations requires only those steps that must be
performed and does not include steps that are not required to be performed
because the condition(s) precedent are not met”).
Appellant argues that “Birch offers no suggestion that either image
[(Figures 6, 7)] is somehow incomplete in any way. Instead, the clear
impression is that these images depict a complete display per requirements.”
Appeal Brief 9.
The Specification discloses:
By one approach this activity comprises forming an image
of a completed properly-configured display 100. If desired,
however, additional images can be formed to capture or
otherwise present the appearance of an incomplete properly-
configured display 100. For example, when the display includes
three vertically displaced shelves, a first such image can present
the display with only the top shelf properly stocked with product,
a second such image can present the display with only the top
and middle shelf properly stocked with product, and the third
such image can present the complete display (i.e., with all three
shelves properly stocked with product).
Specification ¶ 38 (emphasis added); see Answer 3.
We find Appellant’s arguments are not persuasive of Examiner error.
We note, that “[n]on-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
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combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (Fed. Cir. 1981)).
Here, the Examiner relied upon the combination of Yan and Birch to reject
the representative claim 1. See Final Action 2.
The Examiner finds Yan discloses forming a completed properly-
configured display. See Final Action 3 (citing Yan ¶¶ 35, 66–68, 71, 72, 98
and 99). Appellant does not dispute the Examiner’s finding. See Appeal
Brief 7–10. Yan further discloses “planograms used for the configuration,
maintenance, and compliance confirmation in the display of merchandise
and advertisements” where:
[T]he user may drag-and-drop and scale images of signs or
products into an image of specific shelves or racks in an aisle of
a grocery store to simulate how the actual objects will look when
placed in the aisle. The placement of the images of the objects
may be free-form and left to the discretion of the designing user.
Yan Abstract, ¶ 67 (emphasis added); see Final Action 3.
The Examiner finds Birch discloses “a properly-configured though
incomplete display” as recited in claim 1 in Figure 7, paragraphs 34–38.
Final Action 5, 6. The Examiner determines that Birch’s Figure 7 discloses
an incomplete display as defined by Appellant’s Specification paragraph 38.
See Final Action 5, 6; Answer 3, 4. Birch Figure 7 is reproduced below:
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“As illustrated in FIG. 7, [reproduced above] in various
embodiments, the planogram 190 may include a representation
of one or more products on a representation of the presentation
structure 110, such as representation of products 710. However,
in various examples, planogram 190 may include a placement of
a product on the presentation structure 110 that differs from the
real-world current placement of products on the presentation
structure 110 that was captured in the acquired image 140.”
Birch ¶ 37.

Appellant contends that, “many planograms depict, as a full and
complete display, a display that includes some open area to accommodate
additional inventory.” Appeal Brief 10. Appellant’s argument does not
convince us of Examiner error because the argument is not supported by
Appellant’s Specification or Figures. See Appeal Brief 4 (citing ¶¶ 23, 39
and 40). Further, we find Appellant’s argument is not commensurate with
the scope of the broadest reasonable interpretation of the claim because
claim 1 recites “the physical display is only partially completed.” Consistent
with the Specification (which provides no description of what constitutes
“partial” completion), we discern no meaningful difference between a
physical display being partially completed and a physical display having
open areas for placing more products (e.g., more stacked cans in the second
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row of Birch’s Figure 7). We note, that “[a]s 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.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Accordingly, we agree with the Examiner’s determination that Birch
discloses “a properly-configured though incomplete display” as recited in
claim 1 because Birch discloses in Figure 7 a shelf with an open area which
is commensurate with the scope of the claim. We sustain the Examiner’s
obviousness rejection of claim 1, as well as, the obviousness rejections of
claims 2–14 not argued separately. See Appeal Brief 10.
However, in the event of further prosecution, the Examiner should
consider whether claim 1 is indefinite because of the “complete” and
“incomplete” limitations recited in the claim. We note, that “[w]hen a claim
term depends solely on the unrestrained, subjective opinion of a particular
individual purportedly practicing the invention, without sufficient guidance
in the specification to provide objective direction to one of skill in the art,
the term is indefinite.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1260 (Fed. Cir. 2014) (quotation omitted).

CONCLUSION
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10 103 Yan, Birch 1–10
11–13 103 Yan, Birch, Wu 11–13
14 103 Yang, Birch, Hicks 14
Overall
Outcome
1–14

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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) (2019).

AFFIRMED