Ex Parte Muller

Board of Patent Appeals and Interferences

Sep 10, 2012

09810395 (B.P.A.I. Sep. 10, 2012)

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.
09/810,395 03/19/2001 Michael A. Muller 00366.000125. 6004
5514 7590 09/11/2012
FITZPATRICK CELLA HARPER & SCINTO
1290 Avenue of the Americas
NEW YORK, NY 10104-3800
EXAMINER
RETTA, YEHDEGA
ART UNIT PAPER NUMBER
3622
MAIL DATE DELIVERY MODE
09/11/2012 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 1
___________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
___________ 6
7
Ex parte MICHAEL A. MULLER 8
___________ 9
10
Appeal 2011-007328 11
Application 09/810,395 12
Technology Center 3600 13
___________ 14
15
16
Before ANTON W. FETTING, MEREDITH C. PETRAVICK, and 17
MICHAEL W. KIM, Administrative Patent Judges. 18
19
FETTING, Administrative Patent Judge. 20
21
22
DECISION ON APPEAL 23
Appeal 2011-007328
Application 09/810,395

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STATEMENT OF THE CASE1 1
Michael A. Muller (Appellant) seeks review under 35 U.S.C. § 134 2
(2002) of a final rejection of claims 1, 4-22, 55-59, 61-82, 93, 94, and 98-3
101, the only claims pending in the application on appeal. We have 4
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b) (2002). 5
The Appellant invented a way of interactive problem solving via a 6
data network with a problem-solving database that is built up. (Spec. 1:7-7
12). 8
An understanding of the invention can be derived from a reading of 9
exemplary claim 1, which is reproduced below [bracketed matter, emphasis, 10
and some paragraphing added]. 11
1. A server on a network, the server operable to: 12
[1] receive 13
from a first participant 14
via the network 15
a formulation of a problem to be solved; 16
[2] receive 17
from a plurality of other participants 18
via the network 19
at least non-final suggested solutions to the problem; 20
and 21
[3] distribute portions of an award 22
to those participants 23
who contribute the at least non-final suggested 24
solutions to the problem, 25
wherein the server is configured 26
to distribute a portion of the award, 27
before it has been determined that the 28
problem has been solved, 29

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed November 3, 2010) and Reply Brief (“Reply Br.,” filed March 21,
2011), and the Examiner’s Answer (“Ans.,” mailed January 20, 2011).
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Application 09/810,395

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to at least one participant 1
who contributed the at least non-final 2
suggested solution to the problem, 3
wherein the server provides control tools 4
for use by the first participant 5
for controlling the distribution 6
of the portion of the award 7
to the other participants 8
and 9
wherein the distributions of the portions of the 10
award 11
are varied over the course of a development 12
of the suggested solutions 13
for the purpose of guiding the 14
development of a final solution to the 15
problem. 16
The Examiner relies upon the following prior art: 17
Gardner US 6,064,978 May 16, 2000 18
Bahar US 6,694,355 B1 Feb. 17, 2004 19
20
Experts Exchange How-To; How Experts Exchange® Works 21
(http://web.archive.org/web/1997042101340l/www.experts-22
exchange.com/info/howto.htm) (last visited Feb. 13, 2009) 23
(hereinafter “Experts Exchange”). 24
Claims 1, 4-9, 12-19, 22, 55-59, 61-62, 64-72, 74-79, 93, 94, and 98-25
101 stand rejected under 35 U.S.C. § 102(e) as anticipated by Gardner. 26
Claims 20 and 80 stand rejected under 35 U.S.C. § 103(a) as 27
unpatentable over Gardner and Experts Exchange. 28
Claims 10, 11, 21, 63, 73, 81, and 82 stand rejected under 35 U.S.C. § 29
103(a) as unpatentable over Gardner and Bahar. 30
ISSUES 31
The issues of anticipation and obviousness turn on whether Gardner 32
describes distributing awards prior to solution. 33
Appeal 2011-007328
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FACTS PERTINENT TO THE ISSUES 1
The following enumerated Findings of Fact (FF) are believed to be 2
supported by a preponderance of the evidence. 3
Facts Related to the Prior Art 4
Gardner 5
01. Gardner is directed to regulating and motivating the provision of 6
answers to questions, utilizing a computer system or network. 7
Gardner 1:6-8. 8
02. Gardner performs regulating the asking and motivating the 9
answering of questions by a question regulation system, which 10
limits the number and complexity of questions asked. Each asker 11
of questions is given a number of question points. The asker then 12
publishes a question, assigning to the question part or all of his 13
bank of question points based on the question's complexity and 14
urgency. An answer evaluation system is also provided. An 15
answerer provides an answer to a published question. The asker 16
then either accepts or rejects the answer. If he rejects the answer, 17
the question remains available over the network for other 18
answerers to attempt to answer. If the asker accepts the answer, 19
he also provides a quantitative evaluation of the quality of the 20
question, assigning it a numerical or letter grade for instance. The 21
answer evaluation system combines the quantitative evaluation 22
with the number of question points assigned by the asker to the 23
question, to compute an award of answer points, which award is 24
given to the answerer. Gardner 1:45-65. 25
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03. The question regulation system provides question points to each 1
asker on a limited basis, in order to regulate the number and 2
difficulty of questions each asker publishes. Answerers are 3
rewarded for obtaining answer points in several ways. A 4
published listing of answerers is placed on the computer network, 5
with answerers ranked by the number of answer points they have 6
earned. Premiums are provided to answerers who have 7
accumulated a given number of answer points. Gardner 1:66 – 8
2:12. 9
04. At step 104, comments relevant to the question Q are published by 10
potential answerers and by A. This provides an opportunity for 11
answerers to, e.g., request and obtain clarifications to the question 12
before providing an answer. It also permits several answerers to 13
collaborate in providing an answer to question Q by providing one 14
or more comments apiece which combine to form an answer. At 15
step 106, A determines whether one or more of the comments 16
added at step 104 are sufficient to constitute an answer or part of 17
an answer. If any comment or set of comments is sufficient to 18
supply an answer or part of an answer, the process proceeds to 19
step 108. Otherwise, the process returns to step 104 to await more 20
comments. At step 108, A assigns a quantitative evaluation, e.g., 21
a letter grade or numerical score, to each of the comments that 22
were deemed to constitute an answer or part of an answer in step 23
106. Comments already evaluated in prior iterations of step 108 24
may be reevaluated in this iteration of step 108 if A desires. Also, 25
A may increase the number of points N assigned to the question, 26
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in order to attract more answerers. At step 110, A determines if 1
any more comments are needed to complete the answer. If the 2
comments chosen in step 106 and evaluated in step 108 are 3
sufficient to constitute a complete answer, the process proceeds to 4
step 112. Otherwise the process returns to step 104 to await more 5
comments. Gardner 3:20-45. 6
ANALYSIS 7
We are persuaded by the Appellant’s argument that 8
[o]ne feature of independent Claims 1, 55, and 65 is that a 9
portion of the award is distributed, before it has been 10
determined that the problem has been solved, to at least one 11
participant who contributed the at least non-final suggested 12
solution to the problem …[whereas] in Gardner any assignment 13
of points to a participant is apparently made after, not before, 14
the problem is deemed solved…. Indeed, by virtue of the 15
Gardner system, the assignment of points is not guaranteed, 16
because a complete solution to the problem is a precondition to 17
any participant receiving an assignment of points. 18
Appeal Br. 17. The Examiner responds that 19
It is understood that the quality of the answer, for example, if 20
there are two answers the one with lesser quality is equivalent 21
to one of non-final answers and the one with higher quality is 22
equivalent to what is considered a final answer (solution), based 23
on the evaluation of the answers by the evaluation system. 24
Ans. 7. This does not respond to the argument. The argument is that 25
Gardner does not distribute awards prior to solution, and the response is that 26
some solutions are considered non-final. Gardner does not distribute awards 27
until after the questioner determines a solution is found. The Examiner 28
suggests that Gardner might distribute awards earlier at Gardner 3:20-45. 29
Ans. 4. But this portion of Gardner only says the questioner grades answers 30
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prior to a final solution. No award distribution is described in this portion of 1
Gardner. FF 04. 2
CONCLUSIONS OF LAW 3
The rejection of claims 1, 4-9, 12-19, 22, 55-59, 61-62, 64-72, 74-79, 4
93, 94, and 98-101 under 35 U.S.C. § 102(e) as anticipated by Gardner is 5
improper. 6
The rejection of claims 20 and 80 under 35 U.S.C. § 103(a) as 7
unpatentable over Gardner and Experts Exchange is improper. 8
The rejection of claims 10, 11, 21, 63, 73, 81, and 82 under 35 U.S.C. 9
§ 103(a) as unpatentable over Gardner and Bahar is improper. 10
DECISION 11
The rejection of claims 1, 4-22, 55-59, 61-82, 93, 94, and 98-101 is 12
reversed. 13
REVERSED 14
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hh 19