UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/029,073 12/20/2001
64724 7590 03/22/2016
John Almeida
5761 ROBBIE RD #3403
PLANO, TX 75024
FIRST NAMED INVENTOR
John Almeida
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
almeida073 5295
EXAMINER
CHEIN, ALLEN C
ART UNIT PAPER NUMBER
3627
MAILDATE DELIVERY MODE
03/22/2016 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 JOHN ALMEIDA
Appeal2013-004756
Application 10/029,073
Technology Center 3600
Before MURRIEL E. CRAWFORD, ANTON W. PETTING, and
NINA L. MEDLOCK, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
John Almeida (Appellant) seeks review under 35 U.S.C. § 134 of a
final rejection of claims 308, 314, 330, and 331, the only claims pending in
the application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b ).
1 Our decision will make reference to the Appellant's Appeal Brief ("App.
Br.," filed October 19, 2012) and Reply Brief ("Reply Br.," filed February
11, 2013), and the Examiner's Answer ("Ans.," mailed December 28, 2012),
and Final Rejection ("Final Rej.," mailed June 7, 2012).
Appeal2013-004756
Application 10/029,073
The Appellant invented a way of creating and maintaining worldwide
e-malls where each of these e-malls offers a way for creating e-shops,
e-distributors and web sites without the need of an e-commerce
infrastructure or even a web server. Specification 1 :7-9.
An understanding of the invention can be derived from a reading of
exemplary claim 308, which is reproduced below (bracketed matter and
some paragraphing added).
308. A program storage device readable by a server,
tangibly embodying a program of instructions executable by the
server to perform method steps for managing a plurality of
content hosts on the same serve r or on other servers, said
method steps comprising the steps of:
host,
[ 1] retrieving a first dynamic content hosted by a first
wherein retrieving is performed by the server,
and
wherein said first host is selected from the group
consisting of an e-mail, e-portal, satellite e-mall , e-shop,
e-service, e- distributor and web site;
[2] retrieving a second dynamic content hosted by a
second host,
wherein retrieving is performed by the server,
and
wherein said second host is selected from the
group consisting of an e-mall, e-portal, satellite e-mail, e-
shop, e-service, e- distributor and web site;
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Application 10/029,073
[3] presenting a third host to a user accessing the server
wherein the third host displays the first dynamic
content and the second dynamic content together
as if the first dynamic content and the
second dynamic content originated from the third
host;
[ 4] configuring the server to control the user's selection
of the first dynamic content and the second dynamic content
by causing the third host
to retrieve the first dynamic content from the
first host,
and
to retrieve the second dynamic content from
the second host;
[ 5] wherein said user selection of the first dynamic
content stays at the third host without redirecting the user to the
first host,
and
wherein said user selection of the second dynamic
content stays at the third host without redirecting the user to the
second host;
[ 6] configuring the server
to control interfacing with the user accessing the
first dynamic content and the second dynamic content
through the third host;
and
[7] configuring the server to maintain user selection
of the first dynamic content and the second
dynamic content at the third host.
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Appeal2013-004756
Application 10/029,073
The Examiner relies upon the following prior art:
Koike US 7,194,678 Bl
Venkratraman WO 01/13273 A2
Mar. 20, 2007
Feb.22,2001
Claims 308, 314, and 331 stand rejected under 35 U.S.C. § 102(a) as
anticipated by Venkratraman.
Claim 330 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Venkratraman and Koike.
ISSUES
The issues of anticipation and obviousness tum primarily on whether
the use in a preamble and the content in a device for a structural claim are
deserving of patentable weight, and if so, whether Venkratraman describes
these.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition
of "dynamic content."
02. The customary meaning of "dynamic content" in a
computer context is content on a web page or website that depends
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Application 10/029,073
on the input of a user (such as the content of a page showing
search results) or that changes frequently. 2
Facts Related to the Prior Art
Venkratraman
03. Venkratraman is directed to electronic commerce
conducted via computer networks. Venkratraman 1 :2--4.
04. Venkratraman describes a web site of an
intermediary for use in performing multi-lingual, multi-cultural
searches, comparisons, and purchases of products, configured to
receive product search requests from users accessing the
intermediary Web site. The intermediary Web site searches the
nodes of a stored data structure for products that satisfy a received
search request and sends results of the search to the requesting
user. Search results may include lists of one or more products
offered for sale at one or more of the Web sites that satisfy the
received user request. Venkratraman 15:5-22.
05. Venkratraman describes the Web server being
configured to gather information about products offered for sale at
each of plural Web sites, and store this information within a data
structure maintained by the database. Venkratraman 16:3-7.
2 Dictionary of Unfamiliar Words by Diagram Group. S.v. "dynamic
content." Retrieved September 28 2015 from
http://www. thefreedictionary .com/ dynamic+content
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Application 10/029,073
06. Venkratraman describes the Web server
performing various functions, using content acquisition
application programs, selecting a Web site and selecting a node
from the stored data structure. A search request that comprises
names and value ranges from classifiers associated with the
selected node is created, the selected Web site is searched for
products offered for sale that satisfy the search request, and
information about each product for sale at the selected Web site
that satisfies the search request is retrieved and stored in the
database. V enkratraman 19: 1-13.
07. Venkratraman describes the Web server, using
Web site transaction application programs, being configured to
purchase products selected by users from multiple Web sites. For
example, upon receiving a product purchase request from a user to
purchase a first product from a first Web site and a second product
from a second Web site, the Web server, using one or more
purchasing transaction application programs, executes a
transaction with the first and second Web sites on behalf of the
user and without requiring the user to communicate with the first
and second Web sites. The Web server then sends results of the
executed transactions with the first and second Web sites to the
user. Venkratraman 19:26-20:5.
08. An actual data structure implemented by
Venkratraman will typically have hundreds or thousands of nodes
that represent hundreds or thousands of product categories and
sub- categories. Once a data structure is created, actual product
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Application 10/029,073
information from various Web sites is retrieved and associated
with respective ones of the nodes. In a sale, an intermediary
selects a Web site on a computer network from which to extract
product information. The intermediary then selects a node from a
data structure maintained by the intermediary. A search request
that includes names and value ranges from classifiers associated
with the selected node is created. The selected Web site is then
searched for products offered for sale that satisfy the search
request. Information about each product for sale at the selected
Web site that satisfies the search request is retrieved.
Venkratraman 29:8-30:5.
09. Venkratraman describes an intermediary Web site
being configured to receive user requests to purchase products
displayed within search results. In response to receiving a user
request to purchase a product in the search results, the Web server
at the intermediary Web site is configured to execute a purchase
transaction on behalf of the user at one or more of the Web sites,
and to send the results of the executed transaction to the user.
Venkratraman 35:16-3 5.
Koike
10. Koike is directed to dynamic web page generation.
Koike 1:6-7.
11. Koike describes a template and a data set used in
dynamically generating WWW pages. Initially, commands in the
template are executed with a parameter. As shown in FIG. 13, in
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Application 10/029,073
response to a data update trigger signal to control of a batch page
generation control unit, a page generation unit substitutes the
variables in the template with searched data from the product data
table to generate a page 67. Koike 10:50-65.
12. Koike uses HTML/XML and
tags
to define a table in a web page. Koike Figs. 13-16.
ANALYSIS
We adopt the Examiner's findings and analysis from Final Action 2---6
and Answer 3-16 and reach similar legal conclusions. Accordingly, we now
respond to the Appellant's Reply Brief arguments.
Claims 308, 314, and 331 rejected under 35 USC§ 102(a) as
anticipated by Venkratraman
We are not persuaded by the Appellant's argument that the preamble
should be given patentable weight. Reply Br. 7-10. The preamble
limitation at issue is "the server to perform method steps for managing a
plurality of content hosts." App. Br. 8. In context, the preamble recites a
"program storage device readable by a server, tangibly embodying a
program of instructions executable by the server to perform method steps for
managing a plurality of content hosts on the same server or on other servers,
said method steps comprising the steps of." App. Br. 16.
If a preamble "recites essential structure or steps, or if it is 'necessary
to give life, meaning, and vitality' to the claim," then the preamble can limit
the scope of a claim. Catalina Mktg. Int 'l, Inc. v. Coo/savings.com, Inc.,
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289 F.3d 801, 808 (Fed. Cir. 2002) (citation omitted). "Conversely, a
preamble is not limiting 'where a patentee defines a structurally complete
invention in the claim body and uses the preamble only to state a purpose or
intended use for the invention."' Id. (quoting Rowe v. Dror, 112 F .3d 4 73,
478 (Fed. Cir. 1997)). We agree with the Examiner that the claim 308 body
defines a structurally complete invention and uses the preamble only to state
a purpose or intended use for the invention. Ans. 4. Appellant argues that
the hosts in the body and preamble being the same is sufficient reason to
find that the preamble gives "completeness" to the body. Reply Br. 8.
Appellant is arguing no more than that the preamble supplements the body
by describing a use. Such supplementation is far from meeting the criterion
of being necessary to define a structurally complete invention. Certainly no
structure per se is recited in the preamble.
As the Examiner also found, V enkratraman 15-16 describes such a
plural server arrangement. Ans. 4. This is not under contention in the Reply
Brief, and the Appeal Brief 10-11 argues a different portion of
V enkratraman, which the Examiner responded to and we adopt.
We are not persuaded by the Appellant's argument that V enkratraman
fails to describe dynamic content. Reply Br. 10-17.
First, claim 308 is to a device, and is therefore a structural rather than
method claim. "[A ]pparatus claims cover what a device is, not what a
device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464,
1468 (Fed. Cir. 1990). Therefore, the issue is whether-Venkratraman
describes a system that has structures that are capable of being operated to
perform these functions. See In re Schreiber, 128 F.3d 1473, 1477-78 (Fed.
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Application 10/029,073
Cir. 1997) (functional language does not confer patentability if prior art
structure has capability of functioning in the same manner). Claim 1
requires a device with instructions that has a structure capable of being
operated to retrieve two sets of dynamic content, present a third host to a
user, and configure the server to control the user's content selection by
causing the third host to retrieve the sets of dynamic content. Appellant
does not argue otherwise and Venkratraman explicitly provides such
functions. FF 03---09. The nature of the data as dynamic content does not
alter or diminish such capacity, as data being dynamic per se does not affect
the retrieval of such data nor server presentation and configuration. The
claim is silent as specific implementations otherwise.
Second, we are not persuaded by the Appellant's argument that the
dynamic content being retrieved is not from the hosts as required by
Appellant's claim. Reply Br. 10. Again, claim 308 is a device that receives
data. The device the data comes from is not part of the structure defined by
claim 308. A computer that is capable of receiving data is capable of
receiving that data from anywhere (assuming communication protocols are
adhered to, which is outside the scope of the claim).
We are not persuaded by the Appellants' argument that "dynamic
content" is by definition content that is retrieved from a database table. Id.
Dynamic data is data content on a web page or website that depends on the
input of a user (such as the content of a page showing search results) or that
changes frequently. FF 01 and 02. This definition is consistent with the
Appellant's proffered definition as content that changes at regular intervals
based on a database or the user's actions. Reply Br. 11. This definition
simply lists a database as an exemplary cause for such change, not a
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Application 10/029,073
requirement. Venkratraman describes web pages showing search results,
which necessarily is a result of content change. The search results cannot
have been present prior to the search execution.
We are not persuaded by the Appellant's argument that "in order to be
dynamic content, the content must be hosted or located at the two hosts, not
in a post-retrieval, post-assembled database." Reply Br. 12. Again, the
dynamic nature of data is determined by its mutability, not by its origin.
We are not persuaded by the Appellant's argument that
V enkatraman does teach retrieving dynamic content, just
not from the hosts. Venkatraman first retrieves static content
(content not from a database) from the hosts and then saves it to
a database whereupon it becomes dynamic content, but it is not
at the hosts. This is what may be characterized as a first search
that is done independently of the user. Ventakaman then
teaches a second search initiated by the user and it is this search
that accesses the Ventakaman's database.
Reply Br. 14. First, this is an admission by Appellant that Venkatraman
does teach retrieving dynamic content, further negating the brunt of the prior
arguments regarding dynamic content. Second, this admission further
demonstrates that Venkatraman has the capacity to receive dynamic content.
Finally, this argument again depends on Appellant's erroneous assertion that
dynamic content necessarily comes from a database.
Claim 330 rejected under 35 US.C. § 103(a) as unpatentable over
Venkratraman and Koike
We are not persuaded by the Appellant's argument that Koike fails to
describe a virtual database table. Reply Br. 17-20. The limitation at issue is
"managing dynamic and virtual database tables." The claim does not recite
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or narrow the manner of implementation or even the scope of what
"managing" encompasses other than somehow having dynamic and virtual
database tables as a direct or indirect target.
The Examiner found that Koike described this limitation by creating a
table in dynamic web page generation. Ans14-16; FF 10-12. Although this
may result in an unusually small database table on the web page, this is still
within the scope of the claim.
CONCLUSIONS OF LAW
The rejection of claims 308, 314, and 331under35 U.S.C. § 102(a) as
anticipated by Venkratraman is proper.
The rejection of claim 330 under 35 U.S.C. § 103(a) as unpatentable
over Venkratraman and Koike is proper.
DECISION
The rejections of claims 308, 314, 330, and 331 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED
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