Ex Parte Shan et alDownload PDFPatent Trial and Appeal BoardMar 26, 201309852611 (P.T.A.B. Mar. 26, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEROLD SHAN and DIRK BEYER ____________ Appeal 2010-010053 Application 09/852,611 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and JOSEPH A. FISCHETTI, Administrative Patent Judges. CRAWFORD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-010053 Application 09/852,611 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s final decision rejecting claims 1, 4, 6 to 10, 13, 15 to 35, and 37 to 42. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. BACKGROUND Appellants’ invention is directed to an on-line shopping conversion simulation module. Claim 1 is illustrative: 1. A method for predicting whether an on-line shopper will be converted into becoming a purchaser of an item based on sales promotions offered by an on-line vendor, comprising the steps of: storing customer profile information corresponding to a plurality of on-line shoppers; storing customer web log information corresponding to the plurality of on-line shoppers; storing attributes corresponding to a plurality of sales promotions that have been offered; inputting the customer profile information, the web log information and the attributes corresponding to the plurality of sales promotions into a model for simulating, by a computer, shopping behavior as a function of the customer profile information and the attributes corresponding to the plurality of sales promotions; and offering promotions based on the model. Appeal 2010-010053 Application 09/852,611 3 Appellants appeal the following rejections: Claims 1, 10, 19 to 25, 27 to 33, 35, and 37 to 40 under 35 U.S.C. § 102(b) as anticipated by Gerace (US 5,848,396; iss. Dec. 8, 1998). Claims 4, 6 to 9, 13, 15 to 18, 26, 34, 41, and 42 under 35 U.S.C. § 103(a) as unpatentable over Gerace. ANALYSIS Anticipation We are not persuaded of error on the part of the Examiner in rejecting claim 1 by Appellants' arguments that Gerace does not disclose (1) storing attributes corresponding to sales promotions that have been offered, (2) simulating shopping behavior as a function of attributes corresponding to the sales promotion and (3) a model for simulating shopping behavior as a function of the customer profile information. We agree with the Examiner’s responses to those arguments found on pages 6 and 7 of the Answer and adopt those responses as our own. We will also sustain this rejection as it is directed to claims 10, 19, 20, 23 to 25, 27 to 33, 35 and 37 to 40. We will not sustain the Examiner’s rejection of claims 21 and 29 because we agree with the Appellants that the Examiner did not explain what in Gerace constitutes the product information corresponding to a plurality of products that input into the model such that shopping behavior also is simulated as a function of the product information. The Examiner does not address this subject matter in the Answer and as such has not established a prima facie case of obviousness for claims 21 and 29. We will not sustain the Examiner’s rejection of claims 22 and 30 because we agree with the Appellants that Gerace does not disclose Appeal 2010-010053 Application 09/852,611 4 calculating a percentage likelihood that one customer is more likely to make a purchase over another. While the Gerace method does enter weighting information based on a regression analysis in order to target advertisement, there is no disclosure in Gerace that a percentage likelihood that the shopper will be converted to a purchaser is ever computed. Obviousness We will not sustain the Examiner’s rejection of claims 4, 6, 13, and 15 because we agree with the Appellants that the Examiner does not rely on a reference that suggests or discloses a logistic regression model or that the model is based on traditional logistical regression theory and the Examiner has not relied on Official Notice. Therefore, there is no evidence of record to support a conclusion of obviousness of the above-referenced claims. We will likewise not sustain the Examiner’s rejection of claims 9, 18 and 42 because we agree with the Appellants that the Examiner does not rely on a reference to disclose or suggest the sales promotions types recited in claims 9 and 18. In fact, the Examiner does not address this subject matter. We will sustain the Examiner’s rejection of claims 7, 8, 16, 17, 26, 34 and 41 because the Appellants rely on the same arguments we found unpersuasive in regard to claim 1. DECISION The Examiner’s rejection of claims 1, 10, 19, 20, 23 to 25, 27 to 33, 35 and 37 to 40 under § 102(b) is sustained. The Examiner’s rejection of claims 21, 22, 29 and 30 under § 102(b) is not sustained. Appeal 2010-010053 Application 09/852,611 5 The Examiner’s rejection of claims 7, 8, 16, 17, 26, 34, and 41 under § 103(a) is sustained. The Examiner’s rejection of claims 4, 6, 9, 13, and 15 to 18, and 42 under § 103(a) is not sustained. 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) (2011). AFFIRMED-IN-PART hh Copy with citationCopy as parenthetical citation