Ex Parte SION

Patent Trial and Appeal Board

Mar 24, 2016

11961451 (P.T.A.B. Mar. 24, 2016)

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.
11/961,451 12/20/2007 Lior SION IL920070114US1/A9825 6306
46159 7590 03/24/2016
SUGHRUE MION PLLC
USPTO CUSTOMER NO WITH IBM/SVL
2100 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, DC 20037
EXAMINER
NGUYEN, NGA B
ART UNIT PAPER NUMBER
3683
MAIL DATE DELIVERY MODE
03/24/2016 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 LIOR SION
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Appeal 2013-005549
Application 11/961,4511
Technology Center 3600
____________

Before ANTON, W. FETTING, JOSEPH A. FISCHETTI, and
MICHAEL W. KIM, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 1–6, 8, 9, 12–18, 20, 21, 23, and 25. We have
jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.

1 Appellant identifies International Business Machines as the real party in
interest. (Br. 2).

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Application 11/961,451

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THE INVENTION
Appellant’s claims “relate[ ] to the field of electronic commerce
systems.” (Spec ¶ 1).
Claim 1 reproduced below, is representative of the subject matter on
appeal.
1. A system for electronic transactions, the system
comprising:
a computer to store a set of sale terms associated with a
product offered for sale, to receive a supply/demand alert
associated with the product, to automatically modify one or
more terms of the set of sale terms based on the supply/demand
alert, and
to provide to a client device the modified set of sale
terms;
a modification determination module to receive the
supply/demand alert, and to determine based on one or more
pre-defined sale terms modification rules and based on one or
more product filters whether or not to modify one or
more terms of the set of sale terms; and
an auction module to automatically generate an online
auction route for the product based on one or more pre-defined
auction generation rules,
wherein the one or more product filters exclude at least a
group of products from the modification process, and
wherein the auction module is to automatically determine
an auction opening price based on a calculation that takes into
account a previous price of the product in a fixed-price
transaction route.
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THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Borenstein US 2005/0022129 A1 Jan. 27, 2005
Agarwal US 7,447,646 B1 Nov. 4, 2008

The following rejections are before us for review.
Claims 1–6, 8, 9, 12–18, 20, 21, 23, and 25 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Agarwal and Borenstein.

FINDINGS OF FACT
1. We adopt the Examiner’s findings, as set forth on pages 3–11 of
the Answer.
2. Agarwal discloses
A seller using the dynamic pricing program 46 defines a
plurality of pricing states as indicated at reference numeral 50.
For example, in FIG. 3A, the product 48 has pricing states
labeled PS1, PS2, . . . and PSn associated therewith. The number
of pricing states 50 for a product is not limited and can either be
automatically decided by the dynamic pricing program 46 or
determined by the seller of the product or some other party.
(Col. 4, ll. 63–67, col. 5, ll. 1–3).
3. Agarwal discloses
In some embodiments, the pricing mechanisms may be
categorized into two major types: variable pricing mechanisms
and fixed pricing mechanisms. As indicated by the name, in a
variable pricing mechanism such as an auction, the price of the
product may change while the pricing state remains unchanged.
On the other hand, the price of a product associated with a fixed
pricing mechanism, such as a sale, rental, or a subscription,
does not change unless and until the corresponding pricing state
changes. Any pricing mechanism may be associated with any
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pricing state. Accordingly, a pricing state with a fixed pricing
mechanism may transition to another pricing state with a fixed
pricing mechanism or a variable pricing mechanism. As will be
seen herein, there is no limitation on the type of pricing
mechanism that may be used with anyone pricing state or
subsequent pricing state.
(Col. 5, ll. 9–24).
4. Agarwal discloses
A variable pricing mechanism may be used, for example, when
a product 48 is newly introduced into the market and only a
limited supply of the product is available. Early adopters of
new technologies or products are most likely to compete for the
limited availability of the product 48. Thus, as shown in FIG.
3A, using a variable pricing mechanism, such as an auction, for
the first pricing state PS1 may tend to maximize the potential
revenue from sales of the product 48. An auction pricing
mechanism may be further defined by criteria such as the
starting price of the product 48, the number of units of the
product 48 available for auction, the minimum bid price
increment, and the start and end times of the auction.
(Col.5, ll. 34–45).
ANALYSIS
The Appellant argued independent claims 1, 13, 23 and 25 as a group.
Appellant argues claim 1 as the representative claim for this group, and the
remaining independent claims standing or falling with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii) (2007).
Appellant argues,
. . . although Agarwal discloses different pricing mechanism
(i.e., variable or fixed pricing mechanism), Agarwal discloses a
series of pricing states using a same price mechanism where the
seller specifies starting price. As such, the starting price is not
determined based on a calculation that takes into account a
previous price of the product in the fixed-price transaction
route. Instead, the seller specifies the starting price in the fixed
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mechanism.
According to Agarwal, the price of a product becomes
10% percent less than the price of the previous pricing state.
However, the current and the previous pricing states are within
the same pricing mechanism (i.e., same pricing routes). On the
other hand, claim 1 recites different transaction routes (i.e.,
different pricing mechanism).
(Appeal Br. 9 (emphasis omitted)).
The Examiner found that Agarwal discloses the claimed auction
module at column 5 lines 40–45, citing to “criteria such as the starting price
of the product, the number of units of the product available for auction, the
minimum bid price increment, and the start and end times of the auction.”
(Answer 5).
Our review of Agarwal at this section confirms that an auction is
disclosed as one type of a variable pricing mechanism, such as in the case
where for a first pricing state PS1 is desired to maximize the potential
revenue from sales of the product. (FF. 4). But, Agarwal goes further,
disclosing that auction pricing is but one route which can be used jointly or
severally with other pricing mechanisms. (FF. 2, 3). In particular, Agarwal
explicitly discloses that “the pricing mechanisms may be categorized into
two major types: variable pricing mechanisms and fixed pricing
mechanisms.” (Id.). Agarwal further discloses that the auction route is a
variable pricing mechanism. (FF. 4). Agarwal moreover explicitly discloses
that “a pricing state with a fixed pricing mechanism may transition to
another pricing state with a fixed pricing mechanism or a variable pricing
mechanism.” (FF. 3). Therefore, we are unpersuaded by Appellant’s
argument that Agarwal fails to disclose that “the starting price in [Agarwal]
is not determined based on a calculation that takes into account a previous
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price of the product in the fixed-price transaction route”, because Agarwal
explicitly discloses that fixed pricing may transition into a variable type
pricing (FF. 3), and an auction is disclosed as being a variable pricing
mechanism (FF. 4).
We furthermore find that one having ordinary skill in the art would
understand that because Agarwal discloses transitioning from a fixed pricing
mechanism to a variable pricing mechanism, e.g., auction, that the fixed
price of the product would transition as the opening price in the auction. See
KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). (In making the
obviousness determination one “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.”)
We also affirm the rejections of dependent claims 2–6, 8, 9, 12, 14–
18, 20, and 21, 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 1–6, 8, 9,
12–18, 20, 21, 23, and 25 under 35 U.S.C. § 103.

DECISION
The decision of the Examiner to reject claims 1–6, 8, 9, 12–18, 20, 21,
23, and 25 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

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AFFIRMED