Ex Parte Multer et al

Patent Trial and Appeal Board

Oct 15, 2018

11463779 (P.T.A.B. Oct. 15, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/463,779 08/10/2006
61834 7590
Meister Seelig & Fein LLP
125 Park Avenue
7th Floor
NEW YORK, NY 10017
10/17/2018
FIRST NAMED INVENTOR
Corey Blaine Multer
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.
600181-028 7497
EXAMINER
GREGG, MARY M
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
10/17/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents@msf-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte COREY BLAINE MUL TER and
ROBERT L. CONWAY
Appeal2017-002353
Application 11/463,779 1
Technology Center 3600
Before HUBERT C. LORIN, JOSEPH A. FISCHETTI, and
BIBHU R. MOHANTY, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Corey Blaine Multer, et al. (Appellants) seeks our review under 35
U.S.C. § 134(a) of the Final Rejection of claims 1-26 and 43. We have
jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 The Appellants identify New York Life Insurance Company of New
York as the real party in interest. App. Br. 2.
Appeal2017-002353
Application 11/463,779
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A computerized method of providing an annuity including a
flexible income feature, the method comprising:
receiving annuitant data by a computing device coupled to a
communications network, the annuitant data representative of
information useful for issuing an annuity that provides future income
payments comprising a first level of income payments during a
predetermined first time period, the future income payments resettable
by a reset option to a second level of income payments during a
second time period following the predetermined first time period, the
second level of income payments is greater than the first level of
income payments and is paid based on an occurrence of at least one of
a plurality of contingent events after the predetermined first time
period, wherein the plurality of contingent events include at least an
interest rate increase of an interest bearing vehicle over a given
benchmark rate after the predetermined first time period;
electronically computing, via the computing device, an annuity
premium based on the first level of income payments and a cost to
hedge for at least one of the plurality of contingent events;
receiving, via the computing device, electronic indication of a
payment of at least a portion of the computed premium;
issuing the annuity; and
communicating, via the computing device, instructions to
electronically allocate the payment of the at least portion of the
computed premium into investment vehicles and the hedge based on
the computation.
App. Br. 32 (Claims Appendix).
2
Appeal2017-002353
Application 11/463,779
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Schirripa
Arena
Dellinger
US 6,275,807 Bl
US 2002/0184129 Al
US 7,089,201 Bl
Aug. 14, 2001
Dec. 5, 2002
Aug. 8, 2006
Tregarthen, Jon E., Double the Benefit with a Split Annuity 92, 9 LIFE
ASSOCIATION NEWS pg. 124 (Sept. 1997); ABl/INFORM Global
("Tregarthen").
"Official Notice is taken that it is well known in the art that options
can be placed on stocks and bonds, It is well known that stock and
bond options are used to protect against interest change drops and to
take advantage of interest rate increases." Final Rej. 28. ("Official
Notice").
Minnesota Life - MultiOption variable deferred annuities,
MultiOption® Variable Annuities: Helping you accumulate the
dollars you need for a financially secure retirement, (July 15, 2008),
www .minnesotalife.com. ("Min").
Brown et al., Choosing the Right Form of Settlement (with forms) Vol.
4, Iss. 5 THE PRACTICAL LITIGATOR, Philadelphia pg. 63 (Sept. 1993),
("Brown").
The following rejections are before us for review:
Claims 1-26 and 43 are rejected under 35 U.S.C. § 101 as being
directed to judicially-excepted subject matter.
Claim 43 rejected under 35 U.S.C. § 112(d) or pre-AIA 35 U.S.C.
§ 112, 4th paragraph, as being of improper dependent form for failing to
further limit the subject matter of the claim upon which it depends, or for
failing to include all the limitations of the claim upon which it depends.
3
Appeal2017-002353
Application 11/463,779
Claims 1-3, 5, 9, and 43 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Tregarthen and Dellinger.
Claims 4, 6, and 7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tregarthen, Dellinger, and Schirripa.
Claims 8, 10, and 12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tregarthen, Dellinger, Schirripa, and Official Notice.
Claims 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tregarthen and Dellinger.
Claims 14--19, 20, 23, and 24 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Schirripa and Tregarthen.
Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Schirripa, Tregarthen, and Arena.
Claim 22 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Schirripa, Tregarthen, and Min.
Claims 25 and 26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schirripa, Tregarthen, and Brown.
ISSUES
Did the Examiner err in rejecting claims 1-26 and 43 under 35 U.S.C.
§ 101 as being directed to judicially-excepted subject matter?
Claim 43 rejected under 35 U.S.C. § 112(d) or pre-AIA 35 U.S.C.
§ 112, 4th paragraph, as being of improper dependent form for failing to
further limit the subject matter of the claim upon which it depends, or for
failing to include all the limitations of the claim upon which it depends?
4
Appeal2017-002353
Application 11/463,779
Did the Examiner err in rejecting claims 1-3, 5, 9, and 43 under 35
U.S.C. § 103(a) as being unpatentable over Tregarthen and Dellinger?
Did the Examiner err in rejecting claims 4, 6, and 7 under 35 U.S.C.
§ 103(a) as being unpatentable over Tregarthen, Dellinger, and Schirripa?
Did the Examiner err in rejecting claims 8, 10, and 12 under 35 U.S.C.
§ 103(a) as being unpatentable over Tregarthen, Dellinger, Schirripa, and
Official Notice?
Did the Examiner err in rejecting claims 13 under 35 U.S.C. § 103(a)
as being unpatentable over Tregarthen and Dellinger?
Did the Examiner err in rejecting claims 14--19, 20, 23, and 24 under
35 U.S.C. § 103(a) as being unpatentable over Schirripa and Tregarthen?
Did the Examiner err in rejecting claim 21 under 35 U.S.C. § 103(a)
as being unpatentable over Schirripa, Tregarthen, and Arena?
Did the Examiner err in rejecting claim 22 under 35 U.S.C. § 103(a)
as being unpatentable over Schirripa, Tregarthen, and Min?
Did the Examiner err in rejecting claims 25 and 26 under 35 U.S.C.
§ 103(a) as being unpatentable over Schirripa, Tregarthen, and Brown?
ANALYSIS
The rejection of claims 1-26 and 43 under 35 US.C. § 101 as being directed
to judicially-excepted subject matter.
The Appellants argued these claims as a group. See App. Br. 26-31.
We select claim 1 as the representative claim for this group, and the
remaining claims 2-26 and 43 stand or fall with claim 1. 37 C.F.R.
§ 4I.37(c)(l)(iv).
5
Appeal2017-002353
Application 11/463,779
Alice Corp. Proprietary Ltd. v. CLS Bank International, 134 S. Ct.
234 7 (2014) identifies a two-step framework for determining whether
claimed subject matter is judicially-excepted from patent-eligibility under 35
U.S.C. § 101.
According to Alice step one, "[ w ]e must first determine whether the
claims at issue are directed to a patent-ineligible concept," such as an
abstract idea. Alice, 134 S. Ct. at 2355.
In that regard, the Examiner determined that
[ c ]laims 1-26 and 42-43 is/are directed towards providing an annuity
product by receiving economic data, wherein calculations are made to
determine premiums for an annuity based on the economic data
received and economic goals of the annuity. Providing an annuity is a
fundamental economic practice and thus, the claims include an
abstract idea.
Final Rej. 9.
Step two is "a search for an 'inventive concept'-i.e., an element or
combination of elements that is 'sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself."' Alice, 134 S. Ct. at 2355 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 US 66, 73 (2012)).
In that regard, the Examiner determined that
[ t ]he claim( s) does/ do not include additional elements that are
sufficient to amount to significantly more than the abstract
idea/judicial exception because he claims do not include limitations
that are "significantly more" than the abstract idea because the claims
do not include an improvement to another technology or technical
field, an improvement to the functioning of the computer itself, or
meaningful limitations beyond generally linking the use of an abstract
idea to a particular technological environment. Note that the
limitations, in the instant claims, are done by the generically recited
6
Appeal2017-002353
Application 11/463,779
computer device and process. The limitations are merely instructions
to implement the abstract idea on a computer and require no more
than a generic computer to perform generic computer functions that
are well-understood, routine and conventional activities previously
known to the industry.
Final Rej. 9--10.
Accordingly, the Examiner concluded that the claimed subject matter
was judicially-excepted from patent-eligibility.
The Appellants challenge the Examiner's conclusion for various
reasons.
The Appellants argue that "[i]ndependent claims 1, 13 and 14 are
directed toward computer implemented methods that use novel data
processing techniques to improve a series of computer operations." App. Br.
26. This is not a persuasive argument.
We do not see and the Appellants do not adequately explain the
"novel data processing techniques to improve a series of computer
operations" that the claims are argued to be directed to.
Representative claim 1 sets forth a "computerized method of
providing an annuity including a flexible income feature." The method as
claimed calls for "receiving" a first type of information, "electronically
computing" a second type of information, "receiving" an "electronic
indication" of a third type of information, "issuing an annuity", and
"communicating" a fourth type of information, involving a "computing
device." On its face, there is nothing in "receiving", "electronically
computing", "receiving", "issuing an annuity", and "communicating" that
represents "novel data processing techniques to improve a series of
computer operations" as the Appellants argue.
7
Appeal2017-002353
Application 11/463,779
The Appellants appear to focus on the types of information that the
claimed "computerized method" is processing, such as the step of
"electronically computing, via the computing device, an annuity premium
based on the first level of income payments and a cost to hedge for at least
one of the plurality of contingent events." Apparently this in combination
with the other information-processing steps yield "an improvement in
electronic data and payment processing, an improvement routed in computer
technology." App. Br. 26.
However, information collection and analysis, including when limited
to particular content, is within the realm of abstract ideas. See, e.g., Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1349 (Fed. Cir. 2015);
Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344, 1351
(Fed. Cir. 2014); and CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1370 (Fed. Cir. 2011). See SAP America, Inc. v. Investpic, LLC, 898
F.3d 1161, 1167 (Fed. Cir. 2018) (Contrary to InvestPic's suggestion, it does
not matter to this conclusion whether the information here is information
about real investments. As many cases make clear, even if a process of
collecting and analyzing information is "limited to particular content" or a
particular "source," that limitation does not make the collection and analysis
other than abstract." (Quoting Electric Power Group, LLC v. Alstom S.A.,
830 F.3d 1350, 1355 (Fed. Cir. 2016) (citing cases).). See also Affinity Labs
of Tex., LLC v. Amazon.com, Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016)
("tailoring of content based on information about the user-such as where
the user lives or what time of day the user views the content-is an abstract
idea that is as old as providing different newspaper inserts for different
8
Appeal2017-002353
Application 11/463,779
neighborhoods") ( citing Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015)); Cf Praxair Distribution, Inc.
v. Mallinckrodt Hospital Products IP Ltd., 890 F.3d 1024, 1032 (Fed. Cir.
2018). "Claim limitations directed to the content of information and lacking
a requisite functional relationship are not entitled to patentable weight
because such information is not patent eligible subject matter under 35
U.S.C. § 101."
Furthermore, nothing in the Specification suggests that the invention
is focused on improvements in computer functionality. The Specification
states that "[a] few computerized systems have been adopted in the art with
respect to annuities .... " 5: 13-14. "The systems and methods described
therein do not, however, address and/or overcome the shortcomings
associated with annuity income features, liquidity options, and legacy
benefits." 5: 17-19.
This invention relates to methods and systems that provide,
among other things, annuities with flexible income features and
income level reset and liquidity options without some or all of
the shortcomings associated with annuity income features, fixed
income, and liquidity options appearing in the art and legacy
benefits without some or all of the shortcomings associated
with existing annuity legacy benefits.
5:21---6:2. "This invention relates generally to retirement planning." 1:16.
"The 'abstract idea' step of the inquiry calls upon us to look at the 'focus of
the claimed advance over the prior art' to determine if the claim's 'character
as a whole' is directed to excluded subject matter."' Affinity Labs of Texas
v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); see
9
Appeal2017-002353
Application 11/463,779
also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016),
quoted in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir.
2016). In that regard, according to the Specification, the focus of the
claimed advance over the prior art is on an improved scheme for retirement
planning, not on an improvement in computer technology.
The Appellants argue that "the Examiner ignores several key terms
that distinguish the claims from those merely claim an abstract idea and that
limit the claims to a specific technological environment." Notwithstanding
the Appellants do not explain what "specific technological environment" the
Appellants are referring to, assuming it is retirement planning, that has little
impact on the patent-eligibility analysis. See Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016).) (citing Alice, 134
St. Ct. at 2358; Mayo, 132 S. Ct. at 1294) ("Limiting the field of use of the
abstract idea to a particular existing technological environment does not
render any claims less abstract.".) See also Return Mail, Inc. v. United
States Postal Service, United States, 2017 WL 3687450, *13 (Fed. Cir.
2017) (quoting In re TL! Commc'ns LLC Patent Litig., 823 F.3d 607, 613
(Fed. Cir. 2016)) ("'limit[ing] the abstract idea to a particular environment,'
here a mail processing system with generic computing technology, 'does not
make the claims any less abstract for the step 1 analysis."')
The Appellants argue that "[ t ]he Examiner has not shown that the
presently claimed invention is a fundamental economic practice." App. Br.
27. Actually, the Examiner did. See Final Rej. 9 ("Providing an annuity is a
fundamental economic practice and thus, the claims include an abstract
idea.")
10
Appeal2017-002353
Application 11/463,779
The Appellants argue that the claims amount to significantly more
than the abstract idea because, inter alia, "the claims specify how a
computing device receives and outputs electronic financial data in a
networked computing environment to yield a desired result - a result that
overrides routine and conventional activities." App. Br. 28. The claims do
indeed specify what the "computing device" is being asked to process - and
that is different types of information in furtherance of a retirement planning
scheme. App. Br. 28-29 correctly lists those types of information the
claimed computerized method processes. But, as we have already explained,
the patent-eligibility determination does not tum on the type of information
being processed. But the claims do not specify how the "computing device"
is to process the different types of information. The claim asked no more of
the "computing device" than what a generic computer is commonly expected
to do; that is, "receiving", "electronically computing", "receiving", and
"communicating" ( claim 1 ).
The Appellants argue that
the claims herein solve a problem rooted in technology, i.e.,
communicating, via the computing device, instructions to
electronically allocate the payment of the at least portion of the
computed premium into investment vehicles and the hedge based on
the computation. The solution presented herein further solves the
inherent problem with regard to real-time handling of contingent
events that external to a given system and are based on data tracked
by financial information servers. These solutions are accomplished by
structuring and formatting information received by a computing server
and programming the computing server to react to the received
information. This technical improvement allows institutional servers
and trading systems to communicate with each other in a way that was
not previously possible.
11
Appeal2017-002353
Application 11/463,779
App. Br. 30. But there is nothing in the claims about, for example, "real-
time handling of contingent events that external to a given system and are
based on data tracked by financial information servers." The argument is
not commensurate in scope with what is claimed.
The difficulty here is that claim 1 has been drafted so that as a whole
it provides a result-oriented solution but without the computer-centric details
for accomplishing it. The Appellants argue over such details, such as "real-
time handling" and "structuring and formatting information" (App. Br. 30)
in an effort to show the claimed subject matter is "rooted in computer
technology." But the claim does not now reflect those details. Cf
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1342
(Fed. Cir. 2017) (explaining that "[o]ur law demands more" than claim
language that "provides only a result-oriented solution, with insufficient
detail for how a computer accomplishes it") and Elec. Power Grp., 830 F.3d
at 13 54 ( explaining that claims are directed to an abstract idea where they do
not recite "any particular assertedly inventive technology for performing
[ conventional] functions").
We have considered all of the Appellants' remaining arguments
(including those made in the Reply Brief) and find them unpersuasive.
Accordingly, because we are not persuaded as to error in the determinations
that representative claim 1, and claims 2-26 and 43 which stand or fall with
claim 1, are directed to an abstract idea and do not present an "inventive
concept," we sustain the Examiner's conclusion that they are directed to
patent-ineligible subject matter for being judicially-excepted from 35 U.S.C.
§ 101. Cf LendingTree, LLC v. Zillow, Inc., 656 Fed.Appx. 991, 997 (Fed.
12
Appeal2017-002353
Application 11/463,779
Cir. 2016)("W e have considered all of Lending Tree's remaining arguments
and have found them unpersuasive. Accordingly, because the asserted claims
of the patents in suit are directed to an abstract idea and do not present an
'inventive concept,' we hold that they are directed to ineligible subject
matter under 35 U.S.C. § 101."); see also, e.g., OIP Technologies, Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1364 (Fed. Cir. 2015) and FairWarning
IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016).
The rejection of claim 43 under 35 US.C. l 12(d) or pre-AJA 35
US. C.§ 112, 4th paragraph, as being of improper dependent form for failing
to further limit the subject matter of the claim upon which it depends, or for
failing to include all the limitations of the claim upon which it depends.
The Examiner's position is:
Claim 43 depends upon claim 1, Claim 1 cites the limitation
"electronically computing, via the computing device, an annuity
premium based on the first level of income payments and a cost to
hedge for at least one of the plurality of contingent events"
Claim 43 cites computing an annuity premium based on variables
which include first level income payments and a cost to hedge at least
one event. As the formula of claim 43 is non-patentable subject
matter, the formula is non-limiting. Therefore, claim 43 fails to further
limit claim 1 .
Final Rej. 8.
We disagree with that position. Claim 43 further limits the annuity
premium computation step of claim 1 to further comprise calculating via the
recited equation. Whether the equation independent from the remaining
claimed subject matter to which it is bound is or is not patentable subject
matter is irrelevant to the question raised under 35 U.S.C. § 112, 4th
paragraph for claim 43 as a whole.
13
Appeal2017-002353
Application 11/463,779
The rejection is not sustained.
The rejection of claims 1-3, 5, 9, and 43 under 35 US. C. § 103 (a) as being
unpatentable over Tregarthen and Dellinger.
The Appellants argue that
[ t ]he cited references do not teach or suggest the elements of
Independent claims 1 and 13 that recite, inter alia, " ... future
income payments comprising a first level of income payments
during a predetermined first time period, the future income
payments resettable by a reset option to a second level of
income payments during a second time period following the
predetermined first time period .... "
App. Br. 5.
The Examiner found said limitation disclosed in Tregarthen on page
124, columns 1-2.
We agree with the Appellants that said limitation is not disclosed on
page 124, columns 1-2, of Tregarthen. As the Appellants explain:
The Tregarthen reference does not discuss "resetting a single annuity
to a split annuity," but rather, discusses rolling over proceeds from an
old annuity of one company, to two annuities with another company
to create a split annuity. (Tregarthen, p. 124, col. 1, 11. 39-41).
Rolling over money is wholly distinct from the presently claimed
"future income payments resettable by a reset option." That is,
Tregarthen discusses a transfer of money from one company's product
into another company's products. Indeed, Tregarthen does not teach or
suggest an annuity that provides future income payments comprising a
first level of income payments during a predetermined first time
period where the future income payments are resettable by a reset
option to a second level of income payments, as presently claimed.
App. Br. 6.
14
Appeal2017-002353
Application 11/463,779
For the reasons given in the Appeal Brief, a prima facie case of
obviousness has not been made out in the first instance and, accordingly, the
rejection of independent claim 1 and claims 2, 3, 5, 9, and 43 which depend
from it, is not sustained.
The rejection of claims 4, 6, and 7 under 35 USC§ 103(a) as being
unpatentable over Tregarthen, Dellinger, and Schirripa.
The rejection of claims 8, 10, and 12 under 35 USC§ 103(a) as being
unpatentable over Tregarthen, Dellinger, Schirripa, and Official Notice.
These claims which depend from independent claim 1 whose rejection
we do not sustain for the reasons above, and whose rejections rely on the
position taken with respect to the independent claim (Final Rej. 24 and 27)
are not sustained for the same reasons.
The rejection of claims 13 under 35 USC§ 103(a) as being unpatentable
over Tregarthen and Dellinger.
Independent claim 13 contains a similar limitation to that of claim 1
discussed above. The rejections rely on the same Tregarthen passage (Final
Rej. 30) that we find does not disclose said limitation. Accordingly, we do
not sustain the rejection of claim 13 for the same reason we do not sustain
the rejection of claim 1.
The rejection of claims 14-19, 20, 23, and 24 under 35 USC§ 103(a) as
being unpatentable over Schirripa and Tregarthen.
Claim 14 contains a similar limitation to that of claim 1 discussed
above. Specifically, claim 14 calls for
15
Appeal2017-002353
Application 11/463,779
issuing, via the computing device, an annuity providing for the
first level of income payments before the predetermined income
change date and resets, by a reset option, to the second level of
income payments that is paid based on the occurrence of the
predetermined income change date and at least one of the
plurality of contingent events.
The Examiner concedes this is not disclosed in Schirripa but finds it
disclosed in Tregarthen "in at least pg. 124 Col 2 lines 2-3, pg. 126 lines 12-
19." Final Rej. 41.
But, as with claim 1, said disclosure goes to a roll over; that is, as the
Appellants put it, "rolling over proceeds from an old annuity of one
company, to two annuities with another company to create a split annuity."
App. Br. 20. See Tregarthen, page 124: "We rolled over flaccid annuity
money from one company to two annuities with another company, that will
guarantee that the 'split' will pay $493 per month for seven years and that
the deferred amount will grow back to the origin.al starting amount of
$100,000 at the end of the seven years." Claim 14 calls for "resets, by a
reset option," not a roll over.
For the reasons given in the Appeal Brief, a prima facie case of
obviousness has not been made out in the first instance and, accordingly, the
rejection of independent claim 14 and claims 15-19, 20, 23, and 24 which
depend from it, is not sustained.
The rejection of claim 21 under 35 US.C. § 103(a) as being unpatentable
over Schirripa, Tregarthen, and Arena.
The rejection of claim 22 under 35 US.C. § 103(a) as being unpatentable
over Schirripa, Tregarthen, and Min.
16
Appeal2017-002353
Application 11/463,779
The rejection of claim 25 and 26 under 35 US.C. § 103(a) as being
unpatentable over Schirripa, Tregarthen, and Brown.
These claims which depend from the independent claim 14 whose
rejection we do not sustain for the reasons above, and whose rejections rely
on the position taken with respect to the independent claim (Final Rej. 49-
52) are not sustained for the same reasons.
CONCLUSIONS
The rejection of claims 1-26 and 43 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter is affirmed.
The rejection of claim 43 under 35 U.S.C. § 112(d) or pre-AIA 35
U.S.C. 112, 4th paragraph, as being of improper dependent form for failing
to further limit the subject matter of the claim upon which it depends, or for
failing to include all the limitations of the claim upon which it depends is
reversed.
The rejection of claims 1-3, 5, 9, and 43 under 35 U.S.C. § 103(a) as
being unpatentable over Tregarthen and Dellinger is reversed.
The rejection of claims 4, 6, and 7 under 35 U.S.C. § 103(a) as being
unpatentable over Tregarthen, Dellinger, and Schirripa is reversed.
The rejection of claims 8, 10, and 12 under 35 U.S.C. § 103(a) as
being unpatentable over Tregarthen, Dellinger, Schirripa, and Official
Notice is reversed.
The rejection of claims 13 under 35 U.S.C. § 103(a) as being
unpatentable over Tregarthen and Dellinger is reversed.
The rejection of claims 14--19, 20, 23, and 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Schirripa and Tregarthen is reversed.
17
Appeal2017-002353
Application 11/463,779
The rejection of claim 21 under 35 U.S.C. § 103(a) as being
unpatentable over Schirripa, Tregarthen, and Arena is reversed.
The rejection of claim 22 under 35 U.S.C. § 103(a) as being
unpatentable over Schirripa, Tregarthen, and Min is reversed.
The rejection of claim 25 and 26 under 35 U.S.C. § 103(a) as being
unpatentable over Schirripa, Tregarthen, and Brown is reversed.
DECISION
The decision of the Examiner to reject claims 1-26 and 43 is 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)(l )(iv).
AFFIRMED
18