Ex Parte Pembroke

Board of Patent Appeals and Interferences

Aug 21, 2012

11077990 (B.P.A.I. Aug. 21, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/077,990 03/11/2005 John J. Pembroke 040261-001100US 3151
7590 08/21/2012
John J. Pembroke
3883 Mountainside Trail
Evergreen, CO 80439
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
MAIL DATE DELIVERY MODE
08/21/2012 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
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN J. PEMBROKE
____________

Appeal 2010-002706
Application 11/077,990
Technology Center 3600
____________

Before, HUBERT C. LORIN, JOSEPH A. FISCHETTI, and BIBHU R.
MOHANTY, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-002706
Application 11/077,990

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 1-25. We have jurisdiction under 35 U.S.C. § 6(b)
(2002).

SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
Appellant claims a method for financing food expenses with a loan
secured by real property. (Specification 1: [001]).
Claim 1, reproduced below, is representative of the subject matter on
appeal.

1. A method for providing a loan to a borrower, the method
comprising:
receiving, at a host system, an identification of real property
and a specification of a monetary amount to be used for future
payment of food expenses;
calculating, with the host system, a total loan value for the real
property and specified monetary amount;
requesting, with the host system, approval of the loan secured
by the real property for the total loan value; and
initiating, with the host system, a closing on the loan at which a
customer depository account is funded with the specified monetary
amount to provide future funds for payment of food expenses incurred
by the borrower.

Appeal 2010-002706
Application 11/077,990

3

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Atkins US 5,644,727 Jul. 1, 1997
Herzfeld US 2002/013750 A1 Aug. 1, 2002
Bloomquist US 7,089,503 B1 Aug. 2006

Zeller, Mantred, “Many borrow, more save, and all insure:
implications for food policy”, International Food Policy Research Institute,
2/29/2008.
The following rejection is before us for review.
The Examiner rejected claims 1-15, 18-25 under 35 U.S.C. 103(a) as
being unpatentable over Atkins view of Zeller.

The Examiner rejected claim under 35 U.S.C. 103(a) as being
unpatentable over Atkins and further in view of Herzfeld.

The Examiner rejected Claim 17 under 35 U.S.C. 103(a) as being
unpatentable over Atkins in view of Zeller, and further in view of
Bloomquist.

Double Patenting rejections1

1. Claim 1 was provisionally rejected on the ground of nonstatutory

1 We summarily Affirm all the obviousness type double patenting rejections
listed below of claims 1, 11-22, 24, and 25; and the rejection of claims 11-22
under 35 U.S.C. 112, Second Paragraph because Appellant does not contest
same in their Brief or in a Reply Brief.

Appeal 2010-002706
Application 11/077,990

4
obviousness-type double patenting as being unpatentable over claim 1 of
copending Application No.11 039367.
2. Claims 11-21 were provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claims 1, 2, 4, 10- 15, 17 -20 of copending Application No.11 039367.
3. Claims 11 and 22 were provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as being unpatentable over
claim 1 of copending Application No.11 039387.
4. Claim 24 was provisionally rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claim 22 of
copending Application No.11 039367.
5. Claim 25 was provisionally rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claim 22 of
copending Application No.11 039367.
6. Claim 25 was provisionally rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claim 21 of
copending Application No.11 039387.

35 U.S.C. 112 rejection
7. Claims 11-22 are rejected under 35 U.S.C. 112, second paragraph.

Appeal 2010-002706
Application 11/077,990

5
ISSUE
The issue of obviousness turns on whether a person with ordinary skill
in the art would understand that the loan secured against real property in
Atkins could be used to buy food for the mortgagee.

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. We adopt the Examiner’s findings as set forth on pages 15-25 of the
Answer.
2. Atkins discloses:
In either case, as periodic payments are made to the
original mortgage holder, a credit line from the HOME
Account™ mortgage is debited and an asset account is
credited with an account equal to at least a part of the
amortization portion of each periodic payment to the
original mortgage.
Col. 9, ll. 2-7.
3. Atkins also discloses:
Thus, this HOME Account™ mortgage derivative
product may effeectively reduce, elimination or reverse
the amortization feature of the original mortgage.
Col. 9, ll. 12-16.

4. Additional findings of fact may appear in the Analysis that follows.

Appeal 2010-002706
Application 11/077,990

6

ANALYSIS
We affirm the rejection of claims 1-25 under 35 U.S.C.
§ 103(a).
In rejecting independent claims 1, 11, 23, 24 and 25, the
Examiner found that:
It would have been obvious to one of ordinary skill
in the art at the time of the invention to modify the
method of providing a loan backed by a property
and other assets as taught by Atkins to adapt loan
for food consumption as taught by Zeller to realize
the claimed invention since the claimed invention
is merely a combination of old elements, and in the
combination each element merely would have
performed the same function as it did separately….
(Answer 7-8).
Appellant however argues that:
It appears the Office Action is interpreting these
forms of collateral as "the specification of
monetary amount." Final Office Action, p. 18.
However, claim 1 recites that “a specification of a
monetary amount to be used for future payment of
food expenses," Claim 1, emphasis added. The
forms of collateral cannot be fairly interpreted as a
form of expense; rather, they are assets.”
(Appeal Br. 10).
Appellant’s argument is not persuasive as to error in the rejection.
This is because the Examiner’s finding, stated above, clearly sets forth that

Appeal 2010-002706
Application 11/077,990

7
the other assets2 do not include a specified monetary amount to be used for
future payment of food expenses because the disclosed “acceptable forms of
collateral” are in fact assets, which by definition, is property which is
presently held by the loan applicant, and not that which is to be obtained
through the loan process. We find that the Examiner has this correct in her
analysis stating that the “acceptable forms of collateral” are used to then
collateralize food load money as is clear from the above-noted excerpt.
Appellant next argues that because the loan in Atkins uses a line of
credit against the equity in a home and other assets, it does not disclose, “a
total loan value for the real property and specified monetary amount, as
required by the claims. (Appeal Br. 6).
We disagree with Appellant because according to Atkins, the HOME
AccountTM mortgage is a derivative product of the original mortgage.
(FF 2, 3). As such, we find that it is an extension of the original loan “for
the real property”. Even still, the claim only requires that the total loan also
be for the real property, which does not foreclose money from a home
equity line of credit from being used to make improvements “for the real
property”, let alone using it for anything else, including food purchases. It is
not apparent, and Appellant has not cogently explained, why tapping excess

2 According to Atkins, the other assets include insurance and annuity
policies, pensions, deferred compensation plans, bank account, and mutual
funds. Atkins, col. 3 7, 1. 56 - col. 38, 1. 8.

Appeal 2010-002706
Application 11/077,990

8
equity at closing of a home loan versus doing so subsequently thereafter,
merits a patentable distinction.
We also affirm the rejections of the dependent claims since Appellant
has not challenged such with any reasonable specificity (see In re Nielson,
816 F.2d 1567, 1572 (Fed. Cir. 1987)).

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1, 11-22,
and 24-25 under obviousness type double patenting rejections.
We conclude the Examiner did not err in rejecting claims 11-22 under
35 U.S.C. 112, Second Paragraph.
We conclude the Examiner did not err in rejecting claims 1-25 under
35 U.S.C. § 103(a).
DECISION
The decision of the Examiner to reject claim 1-25 is AFFIRMED.

AFFIRMED

MP