Ex Parte 7567937 et al

Patent Trial and Appeal Board

Mar 21, 2014

95001588 (P.T.A.B. Mar. 21, 2014)

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.
95/001,588 03/29/2011 7567937 9027.139.IP937 1080
7590 04/01/2014
GEORGE LIKOUREZOS, ESQ.
261 WASHINGTON AVENUE
ST. JAMES, NY 11780
EXAMINER
DESAI, RACHNA SINGH
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/01/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

EBAY, INC.
Requester and Respondent

v.

XPRT VENTURES, LLC.
Patent Owner and Appellant
____________

Appeal 2014-000482
Reexamination Control 95/001,588
Patent 7,567,937 B2
Technology Center 3900
____________

Before KEVIN F. TURNER, WILLIAM V. SAINDON, and
JENNIFER L. McKEOWN, Administrative Patent Judges.

McKEOWN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2014-000482
Reexamination Control 95/001,588
Patent 7,567,937 B2

2
Patent Owner XPRT Ventures, LLC. (“Patent Owner”) appeals under
35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject claims 1
and 11.
1
Third Party Requestor eBay, Inc. responds to the Patent Owner’s
appeal.
2
We have jurisdiction under 35 U.S.C. §§ 134(b) and 315(a).
We AFFIRM.

STATEMENT OF THE CASE
United States Patent 7,567,937 (hereinafter the “’937 Patent”), issued
to George Likourezos and Michael Anthony Scaturro on July 28, 2009, is
the subject of the current inter partes reexamination.
The ’937 Patent along with five other patents are the subject of a civil
action in the United States District Court for the District of Delaware, which
is currently stayed. See App. Br. 1-2.
Additionally, the Board of Patent Appeals and Interferences has
decided appeals during the original prosecution of US Patent No. 7,483,856
(hereinafter the ’856 Patent) and the ’937 Patent. See App. Br. 2.

1
See Patent Owner’s Revised Appeal Brief, filed March 1, 2013
(hereinafter “PO App. Br.”), at 2; Examiner’s Answer, mailed June 25,
2013, incorporating by reference the Examiner’s Right of Appeal Notice,
mailed October 1, 2012 (hereinafter “RAN”). The Patent Owner also filed a
reply brief. See Patent Owner’s Rebuttal Brief, filed July 29, 2013
(hereinafter “PO Reply Br.”).
2
See Third Party Requestor’s Respondent Brief, filed April 1, 2013
(hereinafter “TPR Resp. Br.”).
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THE INVENTION
The ’937 Patent generally relates to a computerized electronic auction
payment system and method for effecting a real-time payment for an item
sold via an electronic auction web site. ’937 Patent, Abstract and 1:15-21.
Claim 1, which is illustrative of the appealed subject matter, has not
been amended during reexamination and reads as follows:
1. A method for automatically effecting payment for a
user of an electronic auction web site maintained by an
electronic auction system, said method comprising the steps of:
maintaining a plurality of electronic payment accounts by
an electronic auction payment system integrated with said
electronic auction system, each of said plurality of electronic
payment accounts storing funds therein and each being used for
user transactions in the electronic auction system;
receiving authorization from the user prior to the
beginning of an electronic auction provided by the electronic
auction web site to execute an automatic payment method after
the conclusion of the electronic auction, wherein the automatic
payment method includes at least automatically deducting funds
from one of the electronic payment accounts corresponding to
the user of the electronic auction web site; and
executing the automatic payment method for the user
after the conclusion of the electronic auction, if the user has
provided authorization prior to the beginning of the electronic
auction for executing the automatic payment method, the
executing step being performed by at least one processor and
comprising the steps of:
automatically deducting funds from the payment account
corresponding to the user of the electronic auction web site; and
automatically transferring at least a portion of the
deducted funds into at least one account for automatically
effecting payment for the user of the electronic auction web
site, wherein at least one payment source corresponding to the
user of the electronic auction web site is used to obtain funds
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for storing within the payment account prior to deducting funds
from the payment account.

App. Br., Claims App’x.

PRIOR ART REJECTIONS
The Examiner relies on the following references:
Woolston 5,845,265 Dec. 1, 1998
Churchill 7,461,022 Dec. 2, 2008
Hutchison 7,761,385 July 20 2010
The Examiner adopts, or adopts with modification, the following
rejections proposed by the Requester:
1. The rejection of Claims 1 and 11 under 35 U.S.C. §102(e) as being
anticipated Hutchison.
2. The rejection of Claims 1 and 11 under 35 U.S.C. §103(a) as being
unpatentable over Hutchison and Churchill.
3. The rejection of Claims 1 and 11 under 35 U.S.C. 102(e) as
anticipated by Churchill.
4. The rejection of Claims 1 and 11 under 35 U.S.C. 102(b) and
102(e) as anticipated by Woolston.

ISSUES
1. Did the Examiner err by failing to consider the evidence submitted
after the Action Closing Prosecution?
2. Can the Patent Owner change the scope of claim terms by
disavowing certain features rather than by amending the claim?
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3. Did the Examiner incorrectly rely on separate and distinct
embodiments of each prior art reference for the anticipation rejections?
4. Did the Examiner err by rejecting the instant claims as anticipated
under 35 U.S.C. § 102 by each of Hutchison, Churchill, and Woolston?
5. Did the Examiner err by rejecting the instant claims as obvious
under 35 U.S.C. § 103(a) in view of the cited combination of Hutchison and
Churchill?

PRINCIPLES OF LAW
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). “But disclosure of each
element is not quite enough—[the Federal Circuit] has long held that
‘[a]nticipation requires the presence in a single prior art disclosure of all
elements of a claimed invention arranged as in the claim.’” Net MoneyIN,
Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008)(citations
omitted). The Federal Circuit has also explained that the inquiry is “not
constrained to proceed example-by-example when reviewing an allegedly
anticipating prior art reference. Rather, the [reviewer] must, while looking at
the reference as a whole, conclude whether or not that reference discloses all
elements of the claimed invention arranged as in the claim.” Net MoneyIN,
545 F.3d at 1369 n. 5.

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ANALYSIS
EVIDENCE OF SECONDARY CONSIDERATIONS
The Patent Owner argues that the Examiner erred by not considering
evidence submitted after the Action Closing Prosecution. See PO App. Br.
18-19; see also PO Reply Br. 1-2. However, as the Patent Owner is aware,
the Examiner’s refusal to enter evidence submitted after the Action Closing
Prosecution into the record is a petitionable matter. See 37 C.F.R. §1.181;
see also Petition Under 37 C.F.R. §1.181 For the United States Patent and
Trademark Office to Reconsider Evidence of Secondary Considerations,
dated November 26, 2012. Because the Examiner did not enter the
evidence, and because the Central Reexamination Unit denied the Patent
Owner’s petition to enter the evidence, the evidence is not of record and not
properly before the Board. See RAN 7-8; Decision on Petition For Entry of
Affidavit After ACP, dated Apr. 22, 2013 (denying entry of the evidence for
failing to comply with 37 C.F.R. § 1.116). Therefore, we will not consider
this evidence submitted by the Patent Owner after the Action Closing
Prosecution.
3

3
The Patent Owner also acknowledges that the rules require establishing
good and sufficient reasons as to why the evidence was not presented prior
to the Action Closing Prosecution, but “disagrees with the Office’s rules”
and asserts that the Patent Owner “should not have to establish good and
sufficient reasons why the evidence was not submitted earlier.” PO Reply
Br. 1-2. Mere disagreement with the Patent Office’s rules does not permit
the Patent Owner to disregard them. The Patent Owner here, like all other
Patent Owners, is bound by the case law and rules governing reexamination
practice before the Patent Office.
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DISAVOWAL OF CLAIM SCOPE
The Patent Owner allegedly disavows “the claim scope of certain
claim terms” to distinguish over the cited prior art. See PO Reply Br. 2-3, 5-
7, and 12-13. For example, the Patent Owner
herein clearly and unambiguously disavows the full scope of its
claim terms ‘payment account’ and ‘payment accounts’ in its
independent claims, i.e., Claims 1 and 11, from including bank
accounts; payment accounts which can be used to earn reward
points and where the earned points can also be applied to the
buyer's payment account to pay for products; and payment
accounts which can keep track of points, money and/or
alternative forms of currency earned via an incentive system
and can be redeemed via online auctions. PO Reply Br. 5.

Underlying these arguments though, is the erroneous premise that claim
scope can be altered during prosecution, such as in a reexamination, by
“clearly and unambiguously” disavowing particular features, instead of
amending the claim.
To the contrary, it is well established that the appropriate method for
changing the scope of a claim during prosecution is claim amendment. For
example, while rejecting the contention that a loophole would be created by
limiting intervening rights only to claim amendments, not disavowals, the
Federal Circuit noted
…If, in reexamination, an examiner determines that particular
claims are invalid and need amendment to be allowable, one
would expect an examiner to require amendment rather than
accept argument alone. Indeed, Congress may well have
expected that changes in claim scope during reexamination
would ordinarily be made by amendment, which would avoid
the risk of creating a loophole in the intervening rights defense.
Moreover, if an argument does suffice to overcome a rejection,
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it is probably because the claims at issue are not unallowable.
Marine Polymer Technologies, Inc. v. Hemcon, Inc., 672 F.3d
1350, 1364 (CAFC 2012).

Where, as here, the Examiner has rejected the claims as unpatentable
over the cited prior art, amendment may be needed to distinguish the claims.
The Patent Owner cannot circumvent this method by affirmatively stating “a
clear and unambiguous” disavowal. Accordingly, we agree with the
Requestor’s position that the Patent Owner cannot change the scope of the
claim terms through disavowal and find each of the arguments presented
based on disavowal of claim scope (e.g., PO Reply Br. 2-13) unpersuasive.
4

THE ANTICIPATION REJECTION OVER HUTCHISON
Claims 1 and 11
The Patent Owner maintains that the Examiner improperly relied on
separate and distinct embodiments of Hutchinson to reject the instant claims
as anticipated. PO App. Br. 24-28.
According to the Patent Owner, Hutchison includes, and the Examiner
relies on, at least (1) the “automatically deducted” embodiments of Fig. 8A
and Fig. 9C, and (2) a “buyer indicates a desire to purchase” embodiment
(Figs. 11A-11E), and (3) a “seller is an auction website” embodiment. PO
App. Br. 6-9.

4
Because we find the Patent Owner’s ability to change the claim scope
through disavowals unpersuasive, we need not reach the Patent Owner’s
dependent argument that the Requestor is not permitted to present new
substantial new questions of patentability of the changed claim scope. See
e.g., Reply Br. 2-4.
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The Patent Owner characterizes the “automatically deducted”
embodiments as “separate and distinct” from the “buyer indicates a desire to
purchase” embodiment because one requires user authorization at the time of
purchase and the other do not. PO App. Br. 6-8. Then the Patent Owner
argues that the “seller is an auction website” embodiments are also mutually
exclusive from the other embodiments because it is “not described with
reference to Figures 11A-11E and use of language such as in “one actual
embodiment….” See PO App. Br. 8-9. These arguments lack merit.
Particularly, as the Requestor explains, the Patent Owner improperly
fails to consider the reference as a whole. TPR Resp. Br. 3-5. Hutchison’s
Brief Description of the Figures describes that Fig. 8C depicts an exemplary
webpage for applying for a virtual payment account with Hutchison’s
system. Hutchison, 4:31-33. Fig. 9C shows an exemplary webpage for
customizing that virtual payment account. Hutchison 4:34-36. Figs. 11A-
11E then outline how to use the created and customized virtual payment
account to purchase goods, services, and/or content. Hutchison, 4:41-43; see
also TPR Resp. Br. 5, n. 1. Given these disclosures, it is readily apparent
then that these alleged embodiments are not separate and distinct and instead
are directly related.
Similarly, we are also not persuaded by the Patent Owner that the
alleged “seller is an auction website” embodiments are separate and distinct.
See PO App. Br. 8-9. As outlined in Figs. 11A-11E, Hutchison to the
contrary describes that the virtual payment system can be used to purchase
products over the Internet, including for example, an auction website. See
TPR Resp. Br. 5 (noting that the “seller is an auction website” embodiment
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is within the “ordering products” section of the Specification). These
disclosures thus do not warrant the Patent Owner’s characterizations as
separate and distinct embodiments. Moreover, as the Examiner identifies,
Hutchison combines the claim limitations as done in the instant claims.
RAN 46-48. Therefore, we are not persuaded that the Examiner improperly
relied upon separate and distinct embodiments in rejecting the instant claims
as anticipated.
The Patent Owner next argues that Hutchison fails to disclose
“automatically transferring at least a portion of the deducted funds into at
least one account for automatically effecting payment.”
5
PO App. Br. 10-15.
Namely, according to the Patent Owner, Hutchison only discloses deducting
the funds from an account, not transferring the deducted funds to the seller’s
account. We disagree.
First, we note that the Patent Owner fails to consider Hutchison as a
whole, but instead addresses each portion cited by the Examiner separately.
6

See PO App. Br. 10-14. Nevertheless, Hutchison discloses that the disclosed
account, whether pre-paid or credit, is used to make purchases. See PO
App. Br. 10-14 (citing the portions of Hutchison relied upon by the
Examiner). Specifically, with respect to a pre-paid account, Hutchison

5
We apply the BPAI’s construction of “automatically,” “funds,” and
“account” from the appeal decisions during the original prosecution of the
’856 and ’937 Patents. See Decision On Appeal, Appeal No. 2007-2742,
dated August 22, 2007, p. 4-5 and Decision on Appeal, Appeal No. 2007-
3540 dated August 22, 2007, p.3-4.
6
We also note, as the Requestor points out, the Patent Owner expressly
agrees with the Examiner’s characterization of the payment method will
execute automatically, but then later argues that Hutchison fails to disclose
automatic transfer of funds. TPR Resp. Br. 6.
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describes that “[p]urchases are automatically deducted from your pre-paid
balance….” Hutchison Fig. 8A and 9C (emphasis added); see also PO App.
Br. 10 (citing the same).
A skilled artisan would understand that once the funds are
automatically deducted for a purchase in Hutchison (which the Patent
Owner concedes), the deducted funds would be automatically transferred to
the seller.
7
The absence of the exact words “automatically transfer” does not
preclude Hutchison’s disclosure of the limitation. See In re Bond, 910 F.2d
831, 832 (Fed. Cir. 1990)(stating that there is no ipsissimis verbis test for
determining whether a reference discloses a claim element).
Additionally, as the Patent Owner notes, Hutchison describes that the
automatic payment method is akin to a credit processing system. PO App.
Br. 12-13 (citing Hutchison 24:55-66). We disagree that this teaches away
from the claimed automatic transfer of funds to effect payment. To the
contrary, we agree with the Requestor’s position that funds are automatically
transferring in the credit processing system, i.e., the seller received the funds
for the purchase. See TPR Resp. Br. 7-8. Therefore, we agree with the
Examiner and Requestor that Hutchison discloses “automatically
transferring… deducted funds…for automatically effecting payment.”
The Patent Owner’s remaining arguments rely on its impermissible
claim scope disavowals. See, e.g., PO Reply Br. 3-14. As discussed above,

7
We note that we similarly found in an appeal of the ’856 Patent (regarding
different prior art) that, in the online auction context, a purchase is a debit
(or deduction) to the purchaser and a credit to the seller. See Decision on
Request for Rehearing, Appeal No. 2007-2742, dated January 10, 2008.
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we disagree that the Patent Owner can change the scope of the claims
through disavowal and therefore find these arguments also unpersuasive.
Accordingly, we are not apprised error in the Examiner’s rejection of
claims 1 and 11 are anticipated by Hutchison and affirm the rejection.

THE ANTICIPATION REJECTION OVER CHURCHILL
Claims 1 and 11
The Patent Owner asserts that the Examiner erred in relying on
Churchill’s allegedly separate and distinct embodiments in rejecting the
claims as anticipated. PO App. Br. 22-25. Similar to the same argument
discussed above with respect to Hutchison, we find it unconvincing.
In particular, the Patent Owner argues that the Examiner relied on at
least three different “separate and distinct” embodiments. PO App. Br. 22-
25. The Patent Owner supports its contentions by merely citing passages of
the Specification that state, for example, “[i]n another embodiment.” PO
App. Br. 22-23. As noted above with respect to Hutchison, the Patent
Owner fails to present any supporting argument or evidence that Churchill in
fact discloses the alleged separate and distinct embodiments.
To the contrary, as explained by the Requestor,
Churchill describes an overarching invention: ‘[the] present
invention relates to online auctions via user accounts, having
one or more different types of payment units (e.g., incentive
points, money and associated point or cash credit), from which
payment transactions are conducted.’ Churchill at 1: 13-17.
Churchill discloses that different aspects of this ‘present
invention’ can be adapted to include different features. See Ex
parte Ness No. 2010-005274, appl. no. 10/978,753 at n.2
(finding the Examiner's reference to ‘multiple embodiments’
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appropriate where the embodiments provided further
illustration of the main embodiment). For example, Churchill
discloses that users can bid on auctions manually, or
alternatively, through an automated bidding agent. See
Churchill at 44:49-49:28. Churchill also discloses that the
payment unit can be incentive points or cash. See Churchill at
1:12-17. With respect to the types of auctions supports,
Churchill discloses standard auction formats, Dutch auctions,
progressive auctions, Buy-or-Bid auctions, and declining bid
auctions. See generally Churchill at 26:43-42:24. TPR Resp.
Br. 11-12.

We agree with the Requestor’s position. The Patent Owner fails to
persuasively respond or provide any indication as to why the identified at
least alleged embodiments are “separate and distinct” embodiments. See
e.g., PO Reply Br. 14-15 (asserting that the Examiner relied on multiple
separate and distinct embodiments and failed present a prima facie case of
anticipation because the Examiner relied on multiple embodiments without
explaining why the alleged embodiments are separate and distinct). We are
therefore not persuaded that the Examiner improperly relied on separate and
distinct embodiments of Churchill in rejecting the claims as anticipated.
The Patent Owner also asserts that the Examiner erred in finding that
Churchill discloses “wherein at least one payment source corresponding to
the user of the electronic auction web site is used to obtain funds for storing
within the payment account prior to deducting funds from the payment
account,” as recited in claims 1 and 11. PO App. Br. 25-27. In particular,
the Patent Owner identifies that Churchill’s funds, i.e. points, “are obtained
from non-payment sources (e.g. from merchants or the Yahoo! Auction
system).” PO App. Br. 25-26. According to the Patent Owner, the disclosed
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sources, such as cash, is not at least one payment source. PO App. Br. 26-
27. We disagree.
As admitted by the Patent Owner, “[Churchill’s] payment units that
can be used can be actual points (and credit points) or cash (and credit).”
PO App. Br. 26-27. Further, the Examiner finds that Churchill expressly
discloses that a user may buy Yahoo! Points with payment units (such as
cash) and additionally discloses using cash instead of points. See RAN 37
(citing Churchill 21:15-16 and 18:32-41); see also TPR Resp. Br. 12-13.
We thus agree with the Examiner that Churchill discloses the claimed at
least one payment source limitation.
Next, the Patent Owner contends that Churchill fails to disclose
automatically transferring at least a portion of the deducted funds for
automatically effecting payment. This argument is unavailing.
The Patent Owner again admits that Churchill discloses automatically
deducting funds for auction purchases, but maintains that Churchill does not
disclose transferring funds to the seller. See e.g., PO App. Br. 29.
Churchill, though, describes that “the Yahoo! Auction System allows the
human bidder to automate his actions so that he does not have to be
physically present at [the] computer to locate an auction, submit a bid, or
finalize a sale.” Churchill 45:1-4. In other words, the user submits a bid
prior to the conclusion of the auction and upon conclusion the sale is
finalized automatically. Notably, the funds are deducted for a sale, i.e.,
payment to the seller. We therefore agree with the Examiner and Requestor
that Churchill discloses the claimed transfer of funds.
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The Patent Owner’s remaining arguments rely on its impermissible
claim scope disavowals. See e.g., PO Reply Br. 3-14. As discussed above,
we disagree that the Patent can change the scope of the claims through
disavowal and therefore find these arguments also unpersuasive.
Accordingly, we conclude that the Examiner did not err in rejecting
claims 1 and 11as anticipated by Churchill and affirm the rejection.

THE OBVIOUSNESS REJECTION OVER CHURCHILL AND HUTCHISON
Claims 1 and 11
The Patent Owner presents the same arguments here as those
presented with respect to the Churchill and Hutchison anticipation
rejections. See, e.g., PO App. Br. 15-18. As discussed above, we disagree
with the Patent Owner and see no error in the Examiner’s findings.
Accordingly, we affirm the rejection of claims 1 and 11 as unpatentable over
Churchill and Hutchison.

THE ANTICIPATION REJECTION OVER WOOLSTON
Claims 1 and 11
The Patent Owner again presents arguments that the Examiner
improperly relied on at least two separate and distinct embodiments to
support the Woolston anticipation rejection. See PO App. Br. 29-32.
As discussed above with respect to the same arguments applied to Hutchison
and Churchill, the Patent Owner fails to explain why these alleged
embodiments are “separate and distinct.” See PO App. Br. 29-32.
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We agree with the Requestor’s position that the embodiments are
directly related. TPR Resp. Br. 14-15. Woolston describes two
embodiments, one relating to posting items for sale at a consignment node
and another relating to posting items to a market maker computer through a
remote terminal. TPR Resp. Br. 14-15 (citing Woolston Figs. 1 and 12;
9:66-10:32; 14:51-53). Contrary to the Patent Owner’s assertions though,
Woolston directly relates the two disclosed embodiments. “Much of the
market maker computers 800 functionality is disclosed above in the
consignment node functionality.” Woolston 19:34-36; see also Woolston
14:57-63. We therefore agree with the Requestor’s position that Woolston’s
embodiments are not separate and distinct and were properly relied upon by
the Examiner.
The Patent Owner’s remaining arguments rely on its impermissible
claim scope disavowals. See, e.g., PO Reply Br. 3-14. As discussed above,
we disagree that the Patent can change the scope of the claims through
disavowal and therefore find these arguments also unpersuasive.
Accordingly, for at least the reasons discussed above, we conclude
that the Examiner did not err in rejecting claims 1 and 11as anticipated by
Woolston and affirm the rejection.

DECISION
The Examiner’s decision to reject claims 1 and 11 is affirmed.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
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Pursuant to 37 C.F.R. § 41.79(d), this decision is final for the purpose
of judicial review. A party seeking judicial review must timely serve notice
on the Director of the United States Patent and Trademark Office. See 37
C.F.R. §§ 90.1 and 1.983.
AFFIRMED

PATENT OWNER:
GEORGE LIKOUREZOS, ESQ.
261 WASHINGTON AVE.
ST. JAMES, NY 11780

THIRD-PARTY REQUESTER:

DENTONS US LLP
1530 PAGE MILL ROAD
SUITE 200
PALO ALTO, CA 94304

lb