Ex Parte Breiner

Board of Patent Appeals and Interferences

Nov 8, 2010

11322051 (B.P.A.I. Nov. 8, 2010)

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.
11/322,051 12/29/2005 Sheldon Breiner 041972-001000 2145
7590 11/09/2010
T.H.P. RICHARDSON
1055 TRINITY DRIVE
MENLO PARK, CA 94026
EXAMINER
HIGA, BRENDAN Y
ART UNIT PAPER NUMBER
2441
MAIL DATE DELIVERY MODE
11/09/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SHELDON BREINER
____________________

Appeal 2010-009969
Application 11/322,051
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, JOSEPH F. RUGGIERO, and
MAHSHID D. SAADAT, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-009969
Application 11/322,051

2
STATEMENT OF CASE
Introduction
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1,
4, 8-11, 14, 18-27, and 32-39. Claims 2, 3, 5-7, 12, 13, 15-17, 28, 29, and
31 have been canceled. Claim 30 is withdrawn. We have jurisdiction under
35 U.S.C. § 6(b).
Exemplary Claim
Exemplary independent claim 1 under appeal reads as follows:
1. A system for collecting data observed by a plurality of human
agents, and for converting the data into information desired by a
client, the system comprising:
(a) a computer server which is programmed (i) to receive
client requests for information, the requests being received via
Internet browser-based interfaces, (ii) to prepare instructions to
be carried out by a plurality of human agents to collect data
relevant to the client requests, the human agents being at
locations remote from the computer server, and at least one
wireless communication device being associated with each of
the plurality of human agents, and the instructions to each
human agent comprising instructions to observe a variable at a
location and with a frequency for the periodic observation of
the variable at the location, the variable to be observed by the
human agents at the different locations being the same, (iii) to
download the instructions wirelessly to the wireless
communication devices associated with the human agents, (iv)
to upload data sent wirelessly to the computer server by the
wireless communication devices associated with the human
agents and (v) to analyze and convert the uploaded data into
information desired by the client;
(b) at least one wireless communication device associated
with each of the plurality of human agents, each of the wireless
communication devices being (i) wirelessly interfaced to the
computer server and (ii) equipped with a positioning means for
determining the location of the device and with means for
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wirelessly uploading the location of the device to the computer
server; and
(c) operating means for receiving data uploaded to the server
from the wireless communication devices associated with the
human agents, and for analyzing and converting the received
data into information for disseminating to the client.

Rejections on Appeal
The Examiner rejected claims 1, 8, 10, 11, 18, 19, 21, and 22 under
35 U.S.C. 103(a) as being unpatentable over the combination of Jaffe (US
2006/0015755) (“Jaffe”), Marcus et al. (US 2002/0019820) (“Marcus”), and
Kirshenbaum et al. (US 6,584,401) (“Kirshenbaum”).
The Examiner rejected claims 4, 9, 14, 20, 22, 23, 25-27, 33, 34, and
36 under 35 U.S.C. 103(a) as being unpatentable over the combination of
Jaffe, Marcus, Kirshenbaum, Hamlin et al. (US 6,754,635) (“Hamlin”), and
Seifi (US 2003/0225721) (“Seifi”).
The Examiner rejected claim 24 under 35 U.S.C. 103(a) as being
unpatentable over the combination of Jaffe, Marcus, Kirshenbaum, Hamlin,
Seifi, and Lortie (US 2005/0108658) (“Lortie”).
The Examiner rejected claim 35 under 35 U.S.C. 103(a) as being
unpatentable over the combination of Jaffe, Marcus, Kirshenbaum, Hamlin,
Seifi, and Nadon et al. (US 6,876,929) (“Nadon”).
The Examiner rejected claims 32 and 37-39 under 35 U.S.C. 103(a) as
being unpatentable over the combination of Jaffe, Marcus, Kirshenbaum,
Hamlin, Seifi, and Smith et al. (US 2003/0216956) (“Smith”).
Appeal 2010-009969
Application 11/322,051

4
Appellant’s Contentions
At pages 21-22 of the Appeal Brief, Appellant contends that the
Examiner erred in rejecting the claims under 35 U.S.C. § 103(a) as being
unpatentable because Jaffe fails to disclose:
(1) an essential feature of all the claims, namely that the
recipients of the embedded information collectors (i.e. the
human agents) receive instructions which
include parameters for the observation of a variable
at a location and with a frequency for the periodic
observation of a variable at the location, the variable to be
observed by the human agents at the different locations
being the same;
(2) an essential feature of all the claims, namely that the
wireless communication devices are equipped with a
positioning means for determining the location of the device
and for wirelessly uploading the location of the device.
(3) Further, at page 22 of the Appeal Brief, Appellant contends that:
Neither Marcus nor Kirshenbaum discloses instructions of the
kind required by Applicant’s claims, and they cannot, therefore,
make good Jaffe’s fundamental deficiency in this regard.

(4) Also, at page 23 of the Appeal Brief, Appellant contends that:
Kirshenbaum, unlike Marcus, does make use of wireless
communication devices equipped with positioning means. But
that fact alone does not mean that it would have been obvious
to one of ordinary skill in the art that Jaffe’s remote user
computers should be equipped with positioning means and that
the data uploaded from the computer should include the
location of the computer.
(5) Finally, at pages 1-2 of the Reply Brief, Appellant contends that:
The Examiner’s comments on the tracking of sales figures by a
grocery store may well be correct; but they assume that, if
Jaffe’s disclosure is extended to include periodic, e.g. quarterly
or annual, observations, that extension meets the “periodic”
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requirement of the invention. But that is not correct. The
logical extension of Jaffe ’s [sic] invention, to include periodic
observation, is that Jaffe’s information collector (which requires
the recipient to carry out a single observation at a single time)
should be sent periodically to the recipient. That does not meet
the requirement of the claims that the instructions “include
parameters... for the periodic observation of a variable at the
location...” (emphasis added).

Issue on Appeal
Did the Examiner err in rejecting claims 1, 4, 8-11, 14, 18-27, and
32-39 as being obvious because the references fail to teach or suggest the
claim limitations at issue?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments (Appeal Brief and Reply Brief) that the Examiner has erred.
We disagree with Appellant’s conclusion. We adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken and (2) the reasons set forth by the Examiner in
the Examiner’s Answer in response to Appellant’s Appeal Brief. We concur
with the conclusion reached by the Examiner.
We note that Appellant in the Reply Brief makes much of the
“periodic observation of a variable.” Appellant contends that the Examiner
has erred in concluding that it would have been obvious to perform periodic
observations. However, Appellant fails to bear in mind his own admission
at page 1 of his Specification which indicates that periodic sampling is a
known data sampling technique: “There is also the matter of how detailed
the data can be with respect to the variables of interest, such as how often
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and how densely it is sampled, i.e., the granularity in time and space of the
sampling.” Therefore, we conclude that the Examiner was correct in
concluding that periodic observations are obvious.

CONCLUSIONS
(1) The Examiner has not erred in rejecting claims 1, 4, 8-11, 14,
18-27, and 32-39 as being unpatentable under 35 U.S.C. § 103(a).
(2) Claims 1, 4, 8-11, 14, 18-27, and 32-39 are not patentable.

DECISION
The Examiner’s rejections of claims 1, 4, 8-11, 14, 18-27, and 32-39
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)(1)(v).

AFFIRMED

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T.H.P. RICHARDSON
1055 TRINITY DRIVE
MENLO PARK, CA 94026