10304117 (B.P.A.I. Nov. 29, 2010)

Ex Parte Stanglmayr

Board of Patent Appeals and InterferencesNov 29, 2010

10304117 (B.P.A.I. Nov. 29, 2010)

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. 10/304,117 11/25/2002 Klaus Humberto Stanglmayr N0484.70054US00 4948 23628 7590 11/29/2010 WOLF GREENFIELD & SACKS, P.C. 600 ATLANTIC AVENUE BOSTON, MA 02210-2206 EXAMINER GARG, YOGESH C ART UNIT PAPER NUMBER 3625 MAIL DATE DELIVERY MODE 11/29/2010 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 KLAUS HUMBERTO STANGLMAYR 8 ___________ 9 10 Appeal 2009-008860 11 Application 10/304,117 12 Technology Center 3600 13 ___________ 14 15 Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and 16 BIBHU R. MOHANTY, Administrative Patent Judges. 17 FETTING, Administrative Patent Judge. 18 DECISION ON APPEAL1 19 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-008860 Application 10/304,117 STATEMENT OF THE CASE2 1 Klaus Humberto Stanglmayr (Appellant) seeks review under 2 35 U.S.C. § 134 (2002) of a final rejection of claims 1-14 and 16-18, the 3 only claims pending in the application on appeal.3 We have jurisdiction over 4 the appeal pursuant to 35 U.S.C. § 6(b) (2002). 5 The Appellant invented a way of performing an auction by means of an 6 exchange, in which an offeror can transmit an offer with offeror conditions 7 and a prospective bidder can transmit a bid with bidder conditions 8 (Specification 1:2-4). 9 An understanding of the invention can be derived from a reading of 10 exemplary claim 1, which is reproduced below [bracketed matter and some 11 paragraphing added]. 12 1. A method of conducting an auction by means of an 13 exchange, in which method an offeror can transmit an offer 14 with offeror conditions and at least one prospective bidder can 15 transmit at least one bid with prospective bidder conditions to 16 the exchange, the comprising acts of [sic, acts comprising of]: 17 [1] comparing the offer and at least one bid including a 18 comparison between the offeror conditions and the prospective 19 bidder conditions and obtaining a comparative result; 20 2 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed September 2, 2008) and Reply Brief (“Reply Br.,” filed December 8, 2008), and the Examiner’s Answer (“Ans.,” mailed August 10, 2006). 3 The Final Rejection cover page erroneously lists the remaining claims and claims rejected as only 1-14 and 16. The rejection of claims 17 and 18 are in both the Final Rejection analysis and in the Examiner Answer. Appeal 2009-008860 Application 10/304,117 [2] evaluating stored feedback information and obtaining an 1 evaluation result; 2 [3] selecting at least one prospective bidder using the evaluation 3 result and the comparative result; 4 [4] establishing a communications connection between the 5 offeror and the at least one prospective bidder selected once the 6 communications connection has been established; and 7 [5] generating and storing additional feedback information by 8 both the offeror and at least one prospective bidder selected 9 once the communications connection has been established, 10 wherein 11 if the comparison result indicates that either the offeror 12 conditions are not met by the prospective bidder 13 conditions or the prospective bidder conditions are not 14 met by the offeror conditions, 15 the prospective bidder is not selectable. 16 The Examiner relies upon the following prior art: 17 Dutta US 2003/0004855 A1 Jan. 2, 2003 Claims 1-14 and 16 stand rejected under 35 U.S.C. § 102(e) as 18 anticipated by Dutta. 19 Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as 20 unpatentable over Dutta. 21 ISSUE 22 Is there a comparison result that indicates that either offeror conditions 23 are not met by the prospective bidder conditions or the prospective bidder 24 conditions are not met by the offeror conditions, and is the prospective 25 bidder is not selectable based on such a result? See limitation [5]. 26 Appeal 2009-008860 Application 10/304,117 1 FACTS PERTINENT TO THE ISSUES 2 The following enumerated Findings of Fact (FF) are believed to be 3 supported by a preponderance of the evidence. 4 Facts Related to the Prior Art 5 Dutta 6 01. Dutta is directed to rating systems for online auctions that use 7 objective rating criteria and allows ratings to be shared among 8 online auction services. Dutta ¶ 0002. 9 02. Dutta’s auction server determines if a proposed auction 10 comports with what the seller is allowed to do in terms of selling. 11 If not, then the auction server rejects the auctioning of the items. 12 Dutta ¶ 0059. Dutta’s auction server may intervene to prevent the 13 actual purchase from taking place, if the auction server determines 14 that the potential buyer's bid would overextend the buyer's buying 15 limit. Dutta ¶ 0060. 16 ANALYSIS 17 Claims 1-14 and 16 rejected under 35 U.S.C. § 102(e) as anticipated by 18 Dutta. 19 Limitation [5] requires a comparison result that indicates that either 20 offeror conditions are not met by the prospective bidder conditions or 21 prospective bidder conditions are not met by the offeror conditions, and the 22 prospective bidder is not selectable based on such a result. The Examiner 23 Appeal 2009-008860 Application 10/304,117 found this described by Dutta at ¶’s 0059-60. Ans. 6. The Appellant 1 contends that in Dutta, it is only in the case of a seller not meeting system 2 imposed conditions, that the seller is rejected. Appeal Br. 17. We agree 3 with the Examiner. Dutta imposes conditions on both bidder and seller. 4 Dutta explicitly describes not allowing either to further participate if the 5 conditions are not met. FF 02. The claims do not recite any limitations on 6 the nature of how the conditions are presented or even what the conditions 7 are. The claims do not preclude system conditions that would be impliedly 8 adopted by both bidder and seller as evidenced by their use of the system. 9 The Appellant takes issue with some apparent Examiner findings in the 10 Reply Brief, but we are unable to see that any specific claim limitations are 11 accordingly argued as being unmet, or even where in the Examiner’s 12 findings these contentions apply. As limitation [5] is then the only 13 limitation under contention and we find that Dutta describes this, we will 14 affirm the rejection. 15 Claims 17 and 18 rejected under 35 U.S.C. § 103(a) as unpatentable over 16 Dutta. 17 These claims are similar to claim 1 with the additional limitation of the 18 prospective bidder being notified that its qualifications are inadequate. The 19 Examiner found this to be predictable (Ans. 8) and the Appellant argues it is 20 not predictable (Appeal Br. 19-20). We find that notification is merely a 21 form of feedback, a technique that is not only not novel nor non-obvious, but 22 pervasive in technology, management, and human endeavor. It is no more 23 than common sense to explain to one why a requested action is not 24 Appeal 2009-008860 Application 10/304,117 performed, as the query in the absence of the explanation is foreseeable and 1 expected. 2 CONCLUSIONS OF LAW 3 Rejecting claims 1-14 and 16 under 35 U.S.C. § 102(e) as anticipated by 4 Dutta is not in error. 5 Rejecting claims 17 and 18 under 35 U.S.C. § 103(a) as unpatentable 6 over Dutta is not in error. 7 DECISION 8 To summarize, our decision is as follows. 9 • The rejection of claims 1-14 and 16 under 35 U.S.C. § 102(e) as 10 anticipated by Dutta is sustained. 11 • The rejection of claims 17 and 18 under 35 U.S.C. § 103(a) as 12 unpatentable over Dutta is sustained. 13 No time period for taking any subsequent action in connection with this 14 appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 15 § 1.136(a)(1)(iv) (2007). 16 17 AFFIRMED 18 19 20 21 mev 22 23 Address 24 Appeal 2009-008860 Application 10/304,117 WOLF GREENFIELD & SACKS, P.C. 1 600 ATLANTIC AVENUE 2 BOSTON MA 02210-2206 3