Ex Parte 6629135 et al

Board of Patent Appeals and Interferences

Apr 16, 2010

90008375 (B.P.A.I. Apr. 16, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DDR HOLDINGS, LLC,
Appellant and Patent Owner
____________

Appeal 2009-013988
Reexamination Control 90/008,375
Patent 6,629,135
Technology Center 3900
____________

Decided: April 16, 2010
____________

Before SCOTT R. BOALICK, ST. JOHN COURTENAY III, and KEVIN F.
TURNER, Administrative Patent Judges.

TURNER, Administrative Patent Judge

DECISION ON APPEAL
Appeal 2009-013988
Reexamination Control 90/008,375
United States Patent 6,629,135

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DDR HOLDINGs, LLC1 appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 8, 13, and 14. We have jurisdiction under 35
U.S.C. §§ 134(b) and 306.
We heard oral arguments on October 21, 2009, a written transcript of
which is included in the record.
We REVERSE.

STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
by the Patent Owner on December 13, 2006 of United States Patent
6,629,135 (issued September 30, 2003) to D. Delano Ross, Jr., et al.
[hereinafter the ′135 Patent] based on United States Patent Application
09/398,268 (filed September 17, 1999).
A related patent, United States Patent 6,993,572 (issued January 31,
2006), based on United States Patent Application 10/461,997 (filed June 11,
2003), is a continuation of the application for the ′135 Patent, is also the
subject of a request for ex parte reexamination (Reexamination Control
90/008,374), and is also presently being appealed (Appeal 2009-013987).
That appeal is being concurrently decided with the instant appeal.

1 DDR Holdings, LLC is the real party in interest and the current owner of
the patent under reexamination.
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Patentee’s invention relates to commerce syndication where
computer-based information providers receive outsourced electronic
commerce facilities in a context sensitive, transparent manner (Spec. col. 1,
ll. 15-18). In the process, the host's look and feel is captured by selecting an
example page of the host, retrieving the sample page from the host,
identifying the look and feel elements from the sample page and saving the
identified look and feel elements. “Look and feel elements” include logos,
colors, page layout, navigation systems, frames, “mouse-over” effects, or
other elements that are consistent through some or all of a host's website (id.
at col. 12, ll. 41-50).
Claims 1-18 are listed in the issued patent, with only claims 8, 13, and
14 being subject to reexamination (Final Office Action 2). Claim 8, which
we deem to be representative, reads as follows:
8. An e-commerce outsourcing process providing
a host website in communication with a visitor computer
with context sensitive, transparent e-commerce support
pages, comprising the steps of:
(a) capturing a look and feel description associated
with a host website;
(b) providing the host website with a link for
inclusion within a page on the host website for serving to
a visitor computer, wherein the provided link correlates
the host website with a selected commerce object; and
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(c) upon receiving an activation of the provided
link from the visitor computer, serving to the visitor
computer an e-commerce supported page with a look
and feel corresponding to the captured look and feel
description of the host website associated with the
provided link and with content based on the commerce
object associated with the provided link.

The prior art reference relied upon by the Examiner in rejecting the
claims is:
Arnold 6,016,504 Jan. 18, 2000

The Examiner rejected claims 8, 13, and 14 under 35 U.S.C. § 102(e)
as being anticipated by Arnold (Ans. 3-7).

ISSUE
Appellant contends that the Examiner’s rejection is in error because
Arnold does not disclose “capturing a look and feel description associated
with a host website,” as recited in claim 8 (App. Br. 10). Appellant
acknowledges that Arnold allows for customization to reflect the specific
virtual outlet (VO), but that does not amount to “capturing” as disclosed and
claimed in the instant patent, even under the broadest reasonable
interpretation standard (App. Br. 11-12). The Examiner finds that the
“capturing” step only requires “that the data be obtained for use,” and that
the claim limitations do not specifically require a party other than the host
itself to do the capturing (Ans. 9).
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Only those arguments actually made by Appellant have been
considered in this decision. Arguments which Appellant could have made
but chose not to make in the Brief have not been considered and are deemed
to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Thus, the issue arising from the respective positions of Appellant and
the Examiner is:
Did the Examiner err in determining that Arnold discloses capturing
the look and feel description associated with a host website under 35 U.S.C.
§ 102(e) within the meaning of claims 8, 13, and 14?

FINDINGS OF FACT
1. The Specification of the ′135 Patent defines “merchants” as
“producers, distributors, or resellers of the goods to be sold
through the outsource provider” (Spec. col. 21, ll. 50-51).
2. The Specification of the ′135 Patent defines “hosts” as “the
operator of a website that engages in Internet commerce by
incorporating one or more link [sic] to the e-commerce outsource
provider into its web content” (Spec. col. 22, ll. 12-14).
3. The Specification of the ′135 Patent discloses that the role of the
“outsource provider” is to “[d]evelop and maintain the outsource
provider service bureau -- the systems and software which provide
the platform for e-commerce support services[, i]dentify and
recruit target Host websites and monitor/manage these
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relationships[, and c]reate customer-transparent Host processing
‘pages’ on a secure server to receive order and payment
information” (Spec. col. 23, ll. 29-36).
4. According to the Specification of the ′135 Patent, the host's look
and feel is captured by selecting an example page of the host,
retrieving the sample page from the host, identifying the look and
feel elements from the sample page and saving the identified look
and feel elements. “Look and feel elements” include logos, colors,
page layout, navigation systems, frames, ‘mouse-over’ effects, or
other elements that are consistent through some or all of a host's
website (Spec. col. 12, ll. 41-50).
5. A link generator allows host to create and maintain the shopping
opportunities that they can then place on their site, where each link
is assigned a unique link ID, with the link ID identifying who the
host is, who the merchant is, and what commerce object (catalog,
category, product, or dynamic selection) is linked to (Spec. col. 13,
ll. 45-51).
6. Arnold discloses a method for establishing and maintaining a
virtual outlet (VO) between an entity that controls and manages a
web site and a merchant that controls and manages a different web
site. To the customer using the VO, it appears that the entire
process of ordering from the merchant is conducted entirely within
the VO web pages (Arnold Abs.; Fig. 1A).
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7. A web page allows a person signing up for the VO to input
information concerning the appearance that the VO expects for a
merchant order web page that will be displayed when a customer
hot links through the VO to the merchant site, where this
“information includes a URL for a graphics file that contains the
VO's logo, the desired background color, and other such
information” (Arnold, col. 9, ll. 14-20; Fig. 6).
8. A Catalog_Browser routine allows a VO representative to browse
through catalog web pages supplied by the merchant, where items
for sale are described and listed along with URLs corresponding to
the order web page that the merchant will supply to a customer
linking through a VO web page to the merchant site in order to
purchase the item (Arnold col. 10, ll. 41-47).
9. Arnold further discloses that when a customer selects a merchant’s
hotlink on the VO website, the customer’s computer is served a
page from the merchant’s computer with the look and feel
corresponding to that entered by the person who signed up for the
VO (Arnold col. 14, ll. 15-27).

PRINCIPLES OF LAW
Anticipation is established when a single prior art reference discloses,
expressly or under the principles of inherency, each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342,
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1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79
(Fed. Cir. 1994).
During examination of a patent application, a claim is given its
broadest reasonable construction consistent with the specification. In re
Prater, 415 F.2d 1393, 1404-05 (CCPA 1969). “[T]he words of a claim ‘are
generally given their ordinary and customary meaning.’” Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal citations
omitted). The "ordinary and customary meaning of a claim term is the
meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the
patent application." Id. at 1313.

ANALYSIS
Appellant argues that the Examiner’s rejection is in error because
Arnold does not disclose “capturing a look and feel description associated
with a host website,” as recited in claim 8 (App. Br. 10). Appellant
acknowledges that Arnold allows for customization to reflect the specific
VO, but that does not amount to “capturing” as disclosed and claimed in the
instant patent, even under the broadest reasonable interpretation standard
(App. Br. 11-12). The Examiner finds that the “capturing” step only
requires “that the data be obtained for use,” and that the claim limitations do
not specifically require a party other than the host itself to do the capturing
(Ans. 9). Thus, the issue before us turns on claim construction.
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We begin our analysis by broadly but reasonably construing the
disputed claim term “capturing.” During prosecution, “the PTO gives
claims their ‘broadest reasonable interpretation.’” In re Bigio, 381 F.3d
1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000)). Claims are to be given their broadest reasonable interpretation
consistent with the specification, and the language should be read in light of
the specification as it would be interpreted by one of ordinary skill in the art.
In re Amer. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(citations omitted).
When we look to Appellant’s Specification for context, we note that
the instant Specification makes clear that the host's look and feel is captured
by selecting an example page of the host, retrieving the sample page from
the host (FF 4). The Specification also makes clear the “host” is a separate
entity from the party that does the capturing (FF 1-3).
Consistent with Appellant’s Specification, we broadly but reasonably
construe “capturing” as requiring a party taking possession of something
that was not previously in their possession (cf. FF 1-3; see also Oral Hearing
Transcript p. 20). Given our claim construction, we find Arnold does not
disclose or describe capturing as claimed.
Thus, while the Examiner is correct that claim 8 does not specifically
require a party other than the host itself to do the capturing (Ans. 9), we
conclude that such a requirement is required by the claim by applying the
proper claim interpretation to the elements therein. Similarly, while the
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Examiner is also correct that claim 8 does not require any sort of automatic
retrieval of data (id.), we do not find that Arnold discloses such “capturing”
through the disclosed data entry (FF 7). While the overall result achieved by
Appellant’s claimed method may be obtained by the methodology disclosed
in Arnold, we do not find Arnold discloses the steps of method claim 8. As
such, we find that Arnold does not anticipate claim 8, or claims dependent
thereon, and thus we find that the rejection of claims 8, 13, and 14 was made
in error.

CONCLUSION
Appellant has shown that the Examiner erred in determining that
Arnold discloses capturing the look and feel description associated with a
host website under 35 U.S.C. § 102(e).

DECISION
The decision of the Examiner to reject claims 8, 13, and 14 is
REVERSED.

REVERSED
KMF

cc:
LOUIS J. HOFFMAN, P.C.
11811 North Tatum Boulevard, Suite 2100
Phoenix, AZ 85028