Ex Parte Hammour et al

Patent Trial and Appeal Board

Jun 24, 2014

10406010 (P.T.A.B. Jun. 24, 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.
10/406,010 04/03/2003 Mohamad L. Hammour Guide-P0-03 5397
28710 7590 06/24/2014
PETER K. TRZYNA, ESQ.
P O BOX 7131
CHICAGO, IL 60680
EXAMINER
LOFTUS, ANN E
ART UNIT PAPER NUMBER
3692
MAIL DATE DELIVERY MODE
06/24/2014 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 THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MOHAMAD L. HAMMOUR,
HARVEY E. WEINER,
and
JAMES M. MILANO
____________________

Appeal 2012-001779
Application 10/406,010
Technology Center 3600
____________________

Before: MURRIEL E. CRAWFORD, ANTON W. FETTING, and
MICHAEL W. KIM, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1–74. We have jurisdiction under 35
U.S.C. § 6(b).

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SUMMARY OF THE DECISION
We affirm and enter a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b).

BACKGROUND
Claim 1 is representative of the claims on appeal.
1. A method of using an apparatus, the method
comprising the steps of:
entering, into a computer system, data corresponding to
an application for a Sharia-compliant, regarding a prohibition
against interest, financing arrangement for property, the
financing arrangement including
providing a consumer with funds to finance the property,
creating joint rights of ownership in the property in the
consumer and in a co-owner, the co-owner being a limited
liability co-owner, and
having the consumer make at least one payment to repay
the funds, wherein each said payment includes a profit payment
to the co-owner and an acquisition payment to the co-owner,
and each said acquisition payment increases the consumer's
ownership portion of the property and simultaneously decreases
the co-owner's ownership portion of the property, and
transferring full ownership of the property to the
consumer alone after full repayment of the funds as agreed
between the consumer and the limited liability co-owner; and
processing the entered data, with said computer system,
in carrying out the financing arrangement, including track[ing]
a plurality of said acquisition payments made according to the
Sharia-compliant financing arrangement, said tracking
including tracking increases in the consumer's ownership
portion of the property and corresponding decreases in the co-
owner's ownership portion of the property according to the
Sharia-compliant financing arrangement

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so as to carry out a sale, which does not involve
payment of interest, of some, but not all, of the co-owner's
rights under the Sharia-compliant financing arrangement to a
secondary market.

Appellants appeal the following rejections:
Claims 26–40 and 64–74 are rejected1 under 35 U.S.C. § 101 as
reciting non-statutory subject matter.
Claims 5–7 and 27 are rejected under 35 U.S.C. § 112, first paragraph,
as failing to comply with the written description requirement.
Claims 1–74 are rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite.
Claims 1–24, 26–38, 40–53, and 64–74 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Oppenheimer (US 5,983,206, iss. Nov. 9, 1999).
Claims 1–24, 26–38, 40–53, and 64–74 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Oppenheimer.
Claims 1–23, 26–38, 40–58, 61–66, and 68–74 are rejected under 35
U.S.C. § 103(a) as unpatentable over Oppenheimer, Douglas Diamond,
Islamic Housing Finance, 15 Housing Finance International 26–33 (Sep.
2000) (“Diamond”), and Graff (US 6,192,347 B1, iss. Feb. 20, 2001).
Claims 24, 25, 39, and 67 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Oppenheimer, Diamond, Graff, and Salzmann (US
6,711,554 B1, iss. Mar. 23, 2004).

1 The Answer, at page 4, states that claims 1–25 are rejected under 35 U.S.C.
§ 101, but at pages 3–4 and 5 articulate that these claims are not rejected
under 35 U.S.C. § 101.
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Claims 59 and 60 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Oppenheimer, Diamond, Graff, and Stratigos
(US 6,189,009 B1, iss. Feb. 13, 2001).

ANALYSIS
Patentable subject matter of claims 1–40 and 64–74
The Appellants argue that the Examiner’s reasoning for not rejecting
claims 1–25 under 35 U.S.C. § 101 should apply to method claims 26–40
and 64–74, such that none would be found to recite ineligible subject matter.
(Br. 32). We find this argument unpersuasive, for the following reasons.
Each of independent claims 1, 26, 64, and 70 recite two method steps
directed to entering and processing data, as well as limitations reciting the
terms of a financing arrangement to which the entered data corresponds.
The limitations of “entering, into a computer system, data
corresponding to an application for a . . . financing arrangement” represents
mere data gathering, considered insignificant extra-solution activity. See
Bilski v. Kappos, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc), aff'd sub
nom Bilski v. Kappos, 130 S. Ct. 3218 (2010) (characterizing data gathering
steps as insignificant extra-solution activity).
The term “processing,” recited in the other method step of the
independent claims, is not defined in the Specification. The Specification
describes by example that the processing may encompass creating a table of
payments (Spec. 32, ll. 3–5), as shown in Table 1, below:
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Table 1, page 39 of the Specification, showing an “OWNERSHIP
SCHEDULE”
Several possible processing activities are described throughout the
Specification. However, limitations appearing in the specification but not
recited in the claim are not read into the claim. E-Pass Techs., Inc. v. 3Com
Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). We construe broadly each of
the limitations of “processing the entered data, in carrying out the financing
arrangement . . .” as encompassing the step of outputting a table of entered
data, as shown by example in Table 1, above. The claim only limits the
“processing” by reciting “tracking including tracking increases in the
consumer’s ownership portion of the property and corresponding decreases
in the co-owner’s ownership portion of the property.” This broadly
encompasses no more than merely accepting as input the consumer and co-
owner ownership portions, and then printing them out in a type of
amortization table, as shown in Table 1, above. The output of the tracking is
merely post-solution activity, because the thrust of the claim, aside from the
two insignificant extra-solution activity steps, is the recitation of the terms of
the financing agreement. As a result, this output step is construed as
insignificant post-solution activity. “Flook stands for the proposition that
the prohibition against patenting abstract ideas ‘cannot be circumvented by
attempting to limit the use of the formula to a particular technological
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environment’ or adding ‘insignificant postsolution activity.” Bilski, 130 S.
Ct. at 3230 (quoting Diamond v. Diehr, 450 U.S. 175, 191–92 (1981)).
The Examiner distinguishes between claim 1, which recites
“processing the entered data,” and claims 26, 64, and 70, which recite
“processing at least some of the entered data.”2 (Answer 22–23). However,
in all four claims, the precise nature of the “entered data” is unspecified.
The processing of the data in claim 1 may mean merely printing out data.
Therefore, we find nothing significant between “processing” all the
unspecified data of claim 1 and “processing” some of the unspecified data of
the other claims.
The last portion of the “processing” steps recites “so as to carry out a
sale . . . .” As support for this limitation, the Appellants direct us to the
Specification, page 24, lines 7–8 (Br. 5, 12, 27, 29–30) and page 17, lines
11–14 (Id. at 27). There the Specification describes an agreement that is
prepared for signature at closing that “assigns the majority of the co-owner’s
rights in the property to the financier . . . .” (Spec. 17, ll. 11–15; see also id.
at 24, ll. 7–8). Therefore, we construe the language “so as to carry out a sale
. . .” as encompassing the mere printing of an additional agreement, without
requiring a sale to take place.
In between the two method steps in each independent claim, the
various limitations describing the terms of the financing arrangement are not
substantively tied to significant method steps. We construe them as mere
content, undeserving of patentable weight. For example, the substrate
“processing” step is not recited as acting in any substantive way on any

2 Claims 64 and 70 use the word “said” in place of the word “the” in claim
26.
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particular data that may be reflected in the terms of the agreement. As such,
we find that the recited terms of the financing arrangement are non-
functional descriptive material. See In re Ngai, 367 F.3d 1336, 1338 (Fed.
Cir. 2004). Patentable weight need not be given to descriptive material
absent a new and unobvious functional relationship between the descriptive
material and the substrate. See In re Lowry, 32 F.3d 1579, 1582–83 (Fed.
Cir. 1994).
The method claims thus recite two steps considered insignificant
extra-solution activity, and several limitations considered non-functional
descriptive material. Based on this, we affirm the rejection of these claims
under 35 U.S.C. § 101 as reciting ineligible subject matter. This is because
the independent method claims each recite a combination of computerized,
insignificant extra-solution activity steps, and a collection of abstract
contractual terms. We also affirm the rejection of dependent claims 27–40,
65–69, and 71–74, which were not separately argued.
Because our analysis includes claim 1, we enter a new ground of
rejection of claim 1 under 35 U.S.C. § 101 as reciting ineligible abstract
ideas as their subject matter. We find nothing in dependent claims 2–25 that
does more than introduce more abstract mental thought steps, or alters the
terms of the non-functional financing agreement, so we also enter a new
ground of rejection of claims 2–25 under 35 U.S.C. § 101 as reciting
ineligible abstract ideas as their subject matter.

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Rejection of Claims 5, 6, 7, and 27 under 35 U.S.C. § 112, First
Paragraph
The Examiner rejects claims 5–7 and 27 for lack of written
description support for introducing “the co-owner is a legal entity with pass-
through tax attributes and limited liability protection under law in effect as
of April 3, 2003” (Answer 6, 23). The Appellants argue the amended claims
have written description support because the recited date matches the filing
date of the application. (Br. 33).
We agree with the Appellants. First, a claim is interpreted in light of
what the ordinary artisan would understand as of the filing date. Therefore,
one having ordinary skill in the art would understand the claim to mean the
claim refers to the “law in effect as of April 3, 2003,” because that is the
filing date. 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.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir.
2005) (en banc) (internal citations omitted).
In addition, the Specification describes “the limited liability co-owner
is treated as a pass-through entity or disregarded entity for federal tax
purposes, thereby eliminating federal tax liability and preferably tax return
filings all together, such as where a single member LLC is the limited
liability co-owner” (Spec. 13, ll. 7–10), which provides adequate support
that the Appellants had possession of the invention recited in the claims at
the time of filing. The test for sufficiency is whether the disclosure of the
application relied upon reasonably conveys to those skilled in the art that the
inventor had possession of the claimed subject matter as of the filing date.
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Ariad Pharms., Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir.
2010) (quoting Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570,
1575 (Fed. Cir. 1985)).
For these reasons, we will not sustain the rejection under 35 U.S.C.
§ 112, first paragraph.
Rejection of Claims 1–40 and 64–74 under 35 U.S.C. § 112, Second
Paragraph
The Examiner rejects claims 1–40 and 64–74 as indefinite on the basis
of the term “Sharia-compliant,” recited in independent claims 1, 26, 64, and
70. The Examiner rejects independent claims 41 and 54 as indefinite on the
basis of the phrase “which does not involve payment of interest.”
The Examiner finds that one of ordinary skill in the art of using
“computers that handle mortgages . . . would not know whether an
embodiment was Sharia compliant or not, thus he or she would not be
properly apprised of the scope of the claim, especially since interest is
undefined.” (Answer 7). Additionally, the Examiner finds “[i]nterest is not
defined, so the absence of interest cannot be determined.” (Id.)
We are not persuaded by the Appellants’ argument that the rejection is
in error on the basis that the Examiner has not shown the claims are “not
amenable to construction or are insolubly ambiguous.” (Br. 33–34).
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the
claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted). In response to an indefiniteness rejection, the “satisfactory
response by the applicant can take the form of a modification of the
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language identified as unclear, a separate definition of the unclear language,
or, in an appropriate case, a persuasive explanation for the record of why the
language at issue is not actually unclear.” In re Packard, 2013-1204, 2014
WL 1775996, at *3 (Fed. Cir. May 6, 2014). The Office does not rely on the
“insolubly ambiguous” standard, used in the litigation of issued patents, in
indefiniteness rejections issued during prosecution of applications.
In addition, the Appellants argue they have “overcome the prima facie
case with Applicant[s’] evidence of the paper by Mufti Taqi Usmani titled
‘The Historic Judgment on Interest,’ a 14 Ramadan 1420 decision of the
Shariah Appellate Bench of the Supreme Court of Pakistan.” (Br. 34).
We are also not persuaded that the Usmani paper persuasively
explains why the claim language is not unclear. At over 75 pages in length,
including numerous citations in Arabic, the Usmani paper is apparently a
summary of an 1100 page decision, according to the first page of the paper.
The Appellants have not supplied any particular citation, within this
enormous amount of material, that precisely defines “interest” or that
precisely defines a financing agreement as being “Sharia-compliant.”
In addition, the first page of the paper asserts the referenced opinion
stands for “banning interest in all its forms and by whatever name it may be
called.” (Usmani, p. 1). The Specification, however, describes by example
that there are “instances where payments characterized as rent between the
parties have been re-characterized as interest by the courts and the IRS
. . . .” (Spec. 4, ll. 4–7). Inasmuch as the Specification also describes the
“profit payment is the amount that the consumer pays the co-owner for the
consumer’s use of the property,” it is conceivable that claimed “profit
payment” for use of the property would be redefined as “interest.” As such,
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we doubt that one of ordinary skill in the art of using computers that handle
mortgages, has the ability to understand, or even read, the entire Usmani
paper, or the decision it describes, or ascertain whether the “profit payment”
claimed “does not involve [the] payment of interest” (claims 41 and 54), or
is actually interest “by whatever name it may be called” (Usmani).
Therefore, we affirm the rejection of claims 1–40 and 64–74 as
indefinite, because each claim includes either the indefinite term “Sharia-
compliant,” or the indefinite phrase “which does not involve payment of
interest.”
Rejection of Claims 41–63 under 35 U.S.C. § 112, Second Paragraph
The Examiner finds the last clause of claims 41 and 54 indefinite.
Claim 41 recites “processing the received data, with the computer system so
as to carrying out a sale, which does not involve payment of interest, of
some, but not all, of the co-owner's rights to a secondary market.” Claim 54
recites “a system comprised of at least one of said computers operates so as
to carry out a sale, which does not involve payment of interest, of some, but
not all, of the co-owner's rights to a secondary market.”
The Examiner asserts “Interest is not defined, so the absence of
interest cannot be determined.” (Answer 7, 25–26). Appellants argue this is
addressed in their arguments about the indefiniteness of the term “Sharia-
compliant.” (Br. 39). Apparatus claims 41–63, however, do not recite the
term “Sharia-compliant.” Although interest is not specifically defined in the
Specification, Merriam Webster’s Collegiate Dictionary (10th ed.) defines
interest as “a: a charge for borrowed money generally a percentage of the
amount borrowed b: the profit in goods or money that is made on invested
capital c: an excess above what is due or expected.” We recognize that,
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absent reference to Sharia law, one of ordinary skill in the art of using
computers that handle mortgages would understand the term “interest.”
The Examiner also asserts that “Processing and operating are very
broad, and data is very broad . . . [which] leaves the scope of the claim
unclear.” (Answer 7). Appellants, however, correctly point out that
“[b]readth is not indefiniteness.” (Br. 39).
The Examiner also asserts the claim is indefinite as to whether a sale
is required or merely anticipated. (Answer 7, 27–28). However, we
construe the claim language of “so as to carrying/carry out a sale” to mean
“the mere printing of an additional agreement, without requiring a sale to
take place,” as set forth above.
For these reasons, we will not sustain the rejection of claims 41–63
under 35 U.S.C. § 112, second paragraph, as indefinite.
Rejections of Claims 41–63 under 35 U.S.C. § 103(a)
Appellants first argue that the Examiner has not responded to
Appellants’ “Sec 132 argument” in which the “Examiner was required to
provide information as to how Oppenheimer could be modified to reach
Applicant’s claims (e.g., be Sharia compliant) . . . .” (Br. 46–47). We are
not persuaded by this Appellants’ argument, as to claims 41–63, because the
claims do not recite “Sharia compliant.”
We are also not persuaded by Appellants’ argument that the claims
also require a sale (Br. 47–48, 50). As we set forth above, instead of
requiring a sale take place, we construe the claim language of “so as to
carrying/carry out a sale” to mean “the mere printing of an additional
agreement, without requiring a sale to take place.” In addition,
Oppenheimer discloses both the impact of certain aspects on “mortgage
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capital markets” (col. 2, ll. 62–65), as well as a mortgage “which can be
separately marketable or collateralized within mortgage-backed securities”
(col. 4, ll. 33–37). In our view, this disclosure meets the claim language of
“a sale, which does not involve payment of interest, of some, but not all, of
the co-owner's rights to a secondary market” in claims 41 and 54.
Appellants next argue that the Examiner has failed to provide a proper
reason to combine Oppenheimer, Diamond, and Graff, because the “reason
must stem from some teaching, suggestion, or implication in the prior art as
a whole or knowledge generally available to one having ordinary skill in the
art.” (Br. 48). To the extent Appellants seek an explicit suggestion or
motivation in the reference itself, this is no longer the law in view of the
Supreme Court’s recent holding in KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398, 419 (2007). In addition, the Examiner reasonably sets forth a rationale
to adapt Oppenheimer with the Sharia-compliant terms of Diamond “in
order to build a structure with access to venture capital.” (Answer 15). The
Examiner also reasonably sets forth a rationale to substitute a limited
liability part in Graff into the parties of Oppenheimer “in order to lessen the
risk of loss for the co-owner and entice the co-owner into providing funds.”
(Answer 14).
We are not persuaded by Appellants’ argument that modifying
Oppenheimer with the Sharia-compliant terms of Diamond would
“necessitate[] destroying Oppenheimer’s use of interest by imposing the
above-noted claim requirements on Oppenheimer.” (Br. 49–50). “[I]t is not
necessary that the inventions of the references be physically combinable to
render obvious the invention under review.” In re Sneed, 710 F.2d 1544,
1550 (Fed. Cir. 1983). The relevant inquiry is whether the claimed subject
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matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. See In re Keller, 642 F.2d
413, 425 (CCPA 1981). “Combining the teachings of references does not
involve an ability to combine their specific structures.” In re Nievelt, 482
F.2d 965, 968 (CCPA 1973).
Appellants argue that because Oppenheimer uses the term “interest,”
the rejection is “improper,” teaches away, and would change the function of
Oppenheimer. (Br. 51–53). We are not persuaded by Appellants’ argument,
because the “interest” in claims 41 and 54 relates to the sale to a secondary
market. Oppenheimer discloses the utilization of a secondary market (col. 2,
ll. 62–65; col. 4, ll. 33–37). If the terms of the underlying mortgage relied
on Diamond’s non-interest terms, a sale to the secondary market could also
be based on similar non-interest-bearing terms, without destroying the other
teachings of Oppenheimer.
For these reasons, we affirm the rejection under 35 U.S.C. § 103(a) of
claims 41 and 54, as well as dependent claims 42–53, 55–58, and 61–63,
which were not separately argued. We also affirm the rejection under 35
U.S.C. § 103(a) of claims 59 and 60, which was not separately argued.
Because we affirm the rejection under 35 U.S.C. § 103(a), we do not need to
reach the rejection under 35 U.S.C. § 102(b) of claims 40–53.
Rejection of Claims 1–40 and 63–74 under 35 U.S.C. §§ 102(b) and
103(a)
We do not reach the merits of the anticipation or obviousness
rejections of the claims. A rejection should not be based on “speculations
and assumptions.” In re Steele, 305 F.2d 859, 862 (CCPA 1962). “All
words in a claim must be considered in judging the patentability of that
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claim against the prior art. If no reasonably definite meaning can be
ascribed to certain terms in the claim, the subject matter does not become
obvious— the claim becomes indefinite.” In re Wilson, 424 F.2d 1382,
1385 (CCPA 1970). Speculations and assumptions would be required to
decide the meaning of the terms employed in the claims and the scope of the
claims. Therefore, we conclude that the indefiniteness of claims prevents us
from reaching the issues of anticipation or obviousness. Consequently, we
reverse pro forma the anticipation and obviousness rejections.
It should be understood, however, that our decision in this regard is
based solely on the indefiniteness of the claimed subject matter and does not
reflect the adequacy or the inadequacy of the prior art evidence applied in
support of the rejection before us. Once definite claims are presented, the
Examiner is free to apply the same, different, or additional prior art if the
Examiner so chooses.

DECISION
We affirm the rejection of claims 26–40 and 64–74 under 35 U.S.C.
§ 101 as reciting ineligible subject matter.
We reverse the rejection of claims 5–7 and 27 under 35 U.S.C. § 112,
first paragraph.
We affirm the rejection of claims 1–40 and 64–74 under 35 U.S.C. §
112, second paragraph, as indefinite.
We reverse the rejection of claims 41–63 under 35 U.S.C. § 112,
second paragraph, as indefinite.
We affirm the rejection of claims 40–58 and 61–63 under 35 U.S.C. §
103(a) over Oppenheimer, Diamond, and Graff.
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We affirm the rejection of claims 59 and 60 under 35 U.S.C. § 103(a)
over Oppenheimer, Diamond, Graff, and Stratigos.
We reverse pro forma the rejections under 35 U.S.C. §§ 102(b) and
103(a) of claims 1–40 and 64–74.
We enter a new ground of rejection under 35 U.S.C. § 101 of claims
1–25 as reciting ineligible subject matter.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b) (2008). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner . . . .

(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record . . . .
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)(1)(iv).
AFFIRMED; 37 C.F.R. § 41.50(b)

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