Ex Parte Swauger

Board of Patent Appeals and Interferences

Apr 22, 2010

10261573 (B.P.A.I. Apr. 22, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte KURT A. SWAUGER

____________________

Appeal 2009-010510
Application 10/261,573
Technology Center 2100
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Decided: April 23, 2010
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Before JAMES D. THOMAS, JOSEPH L. DIXON, and THU A. DANG,
Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-010510
Application 10/261,573

I. STATEMENT OF CASE
Appellant appeals the rejection of claims 1-16 and 18 under 35 U.S.C.
§ 134(a). Claim 17 is canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

A. INVENTION
According to Appellant, the invention relates to a “system and a
method that vocalizes real estate text based content information from real
estate web sites, portals, and multi-listing service databases” (Spec. 10, ll. 2-
3).

B. ILLUSTRATIVE CLAIMS
Claim 1 is exemplary and reproduced below:

1. A system for accessing real estate information over
a communications network, comprising:

a database containing real estate information and
property location information related to a set of user’s specified
criterion, the database being accessible over the
communications network, the user’s specified criterion includes
property type and at least one of a zip code, a city or state, a
sales price range, or a property parameter;

a real estate data processing server comprising voice
recognition, speech applications, text-to-speech conversion, and
accounting applications, the processing unit being accessible
over the public telephone network; and

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a telephone communicating with the real estate data
processing server over the telephone network, whereby the data
processing server accesses the real estate database for
information on a property, or a number of properties, based
upon the user’s specified criterion, the database returning the
real estate information relating to properties adhering to the
user’s specified criterion;

wherein the real estate data processing server sorts
multiple real estate property findings from the real estate
database adhering to the user’s specified criterion according to
a highest bid placed by a party representing one of the real
estate properties.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Barbari US 5,835,236 Nov. 10, 1998
Sotiroff US 5,852,810 Dec. 22, 1998
Muldrow US 2003/0130924 A1 Jul. 10, 2003
Freishtat US 2005/0097000 A1 May 05, 2005
Soulanille US 2006/0136404 A1 Jun. 22, 2006

Claims 1-4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Muldrow, Freishtat, Soulanille,
and Sotiroff.
Claims 5-7, 9-13, and 18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combined teachings of Muldrow, Soulanille, and
Sotiroff.
Claims 8 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Muldrow, Soulanille, and
Barbari.
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Claims 15 and 16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Muldrow, Soulanille, and
Freishtat.

II. ISSUES
Has the Examiner erred in concluding that the combined teachings of
Muldrow and Sotiroff would have suggested a system that “accesses the real
estate database for information on a property, or a number of properties,
based upon the user’s specified criterion, the database returning the real
estate information relating to properties adhering to the user’s specified
criterion,” which “includes property type and at least one of a zip code, a
city or state, a sales price range, or a property parameter” (claim 1), as
Appellant contends?

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Muldrow
1. Muldrow’s system queries a real estate database with a user’s
specified street number (e.g., by cell phone) of a known on-sale
property (e.g., having a “for sale” sign), and then returns a list of
regional streets having on-sale properties with the same street number
(Abstract; ¶ [0010]).
2. The user obtains sales information on the known on-sale property by
selecting its street name from among the returned list of streets (id.).
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Sotiroff
3. Sotiroff’s system queries a real estate database with a user’s specified
region (e.g., city) and search criteria (e.g., desired number of
bedrooms and price range), and then returns a list of on-sale properties
in the region that meet the criteria (col. 4, ll. 26-36).
Freishtat
4. Freishtat’s system: receives “session information” on goods/services
sought by a user of a seller’s website (Abstract); and, based on the
session information, determines if the user needs sales assistance,
matches the user with a sales associate, and facilitates communication
between the user and sales associate (id.).
5. The system can gather sales associate data, such as the sale amount
and product “sold or attempted to be sold,” and “manage the payment
of [sales associates] and invoicing of the enterprises” (¶ [0052]).
6. The system applies to “[r]etailers, insurance companies, real estate
companies, auctions, professional services firms, travel agencies,
financial institutions, stock brokers, and others” (¶ [0046]).
Soulanille
7. Soulanille’s system queries a database with a user’s search terms and
then returns a list of advertisers based on their bids for placement
(Abstract; ¶ [0015]), e.g., advertisers bid on possible search terms to
receive a preferred placement of their listings matching those terms (¶
[0042]).
8. The search listings can be sorted from highest to lowest bid amount (¶
[0078]).
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IV. PRINCIPLES OF LAW
Claim Interpretation
The pending claims must be given the broadest reasonable
interpretation consistent with the Specification. In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
35 U.S.C. § 103(a)
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007).
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” and discussed circumstances in which a patent might be determined to
be obvious. Id. at 415 (citing Graham v. John Deere Co., 383 U.S. 1, 12
(1966)). The Court reaffirmed principles based on its precedent that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 416.

V. ANALYSIS
In this Decision, we have considered only those arguments actually
made by Appellant. Arguments which Appellant could have made but did
not make in the Appeal Brief have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(vii).
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Claims 1 and 3
As to independent claim 1, Appellant argues that “Muldrow does not
disclose a system for accessing real estate information on a number of
properties based upon a user’s specified criterion” because “Muldrow
queries the user for a portion of the street address, not for a property type,
zip code, city, state, price range, or property parameter, as required by claim
1” (App. Br. 8). Appellant argues that Muldrow, in view of Sotiroff, also
does not suggest such access because Muldrow “has already defined
sufficient parameters to narrow the results list to one property without any
parameters disclosed in Sotiroff” (App. Br. 12).
The Examiner responds that “Appellant is arguing that Muldrow fails
to disclose querying for a property type, zip code, city, state, price range, or
property parameter,” but “[a]ll that claim 1 recites is ‘a database containing
real estate information and property location information related to a set of
user’s specified criterion” (Ans. 22). The Examiner further explains that
claim 1 does not “detail the kind of information accessed” (id.).
Thus, an issue we address on appeal is whether the combined
teachings of Muldrow and Sotiroff would have suggested a system that
“accesses the real estate database for information on a property, or a number
of properties, based upon the user’s specified criterion, the database
returning the real estate information relating to properties adhering to the
user’s specified criterion,” which “includes property type and at least one of
a zip code, a city or state, a sales price range, or a property parameter”
(claim 1).
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We begin our analysis by giving the claims their broadest reasonable
interpretation consistent with the Specification. In re Morris, 127 F.3d at
1054.
Claim 1 recites that the system “accesses the real estate database for
information on a property, or a number of properties, based upon the user’s
specified criterion.” Thus, as Appellant contends, the real estate database
access is based on the “user’s specified criterion.”
However, claim 1 also recites the database as “returning the real estate
information relating to properties adhering to the user’s specified criterion.”
Thus, as the Examiner contends, the accessed “real estate information” need
only “relate to” the “user’s specified criterion.”
Claim 1 recites that “the user’s specified criterion includes property
type and at least one of a zip code, a city or state, a sales price range, or a
property parameter.” To reconcile a singular “criterion” including more than
one search item (i.e., including a “property type and at least one of …”), we
construe the “user’s specified criterion” as being one search item that
indicates a “property type” and “a zip code, a city or state, a sales price
range, or a property parameter.”
Given the above claim constructions, we interpret “accesses the real
estate database for information on a property, or a number of properties,
based upon the user’s specified criterion, the database returning the real
estate information relating to properties adhering to the user’s specified
criterion” as reading on a system that accesses a database’s real estate
information, where (i) the access is based on a user-specified criterion, (ii)
the accessed real estate information relates to the user-specified criterion,
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and (iii) the user-specified criterion is one search item indicating a property
type and a zip code, city, state, sales price range, or property parameter.
Muldrow’s system queries a real estate database with a user-specified
street number (FF 1). More particularly, a cell phone user enters the street
number for an on-sale property of interest (id.). The system returns a list of
regional streets having on-sale properties with that same street number (id.).
The user then obtains sale information on the property of interest by
selecting its street name from among the list of streets (FF 2). An artisan
would have understood Muldrow’s search system as accessing a database’s
real estate information (the listed on-sale properties), where (i) the access is
based on a user-specified criterion (the street number) and (ii) the accessed
real estate information relates to the user-specified criterion (the listed on-
sale properties have the user-specified street number).
Sotiroff’s system also queries a real estate database with a user’s
specified criterion, such as a desired region (e.g., city), number of bedrooms,
and price range (FF 3). An artisan would have understood Sotiroff’s user-
specified criterion as one search item indicating a property type and a zip
code, city, state, sales price range, or property parameter. For example, the
artisan would have understood the Sotiroff’s desired region criterion as
indicating a geographic type (e.g., city or suburban) and location parameter
(e.g., what city or boundaries); the bedroom criterion as indicating an
occupancy type (e.g., residential) and bedroom-number parameter; and the
price range criterion as indicating a cost type (e.g., high) and price
parameter.
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Adding Sotiroff’s search capability to Muldrow’s system (e.g., to
allow a cell phone search of on-sale properties meeting either Sotiroff’s or
Muldrow’s search terms) is no more than a simple addition of one old
element (e.g., Sotiroff’s criteria) to another old element (e.g., Muldrow’s
criteria) with the added element performing the same function it had been
known to perform. See KSR, 550 U.S. at 417. Thus, we conclude that the
combined teachings of Muldrow and Sotiroff would have suggested a
system that accesses a database’s real estate information, where (i) the
access is based on a user-specified criterion, (ii) the accessed real estate
information relates to the user-specified criterion, and (iii) the user-specified
criterion is one search item indicating a property type and a zip code, city,
state, sales price range, or property parameter.
Appellant further argues that “[t]he Examiner incorrectly relates the
disclosure of Freishtat with real estate sales and further inappropriately
separates Freishtat’s accounting application from the disclosure as a whole”
(App. Br. 9). Contrary to Appellant’s argument, claim 1 does not require an
accounting of real estate sales. In fact, claim 1 does not place any limitation
on what “accounting” means, includes, or represents, but merely recites the
“real estate data processing server” as comprising “accounting applications.”
The Specification describes the “real estate data processing server” as using
“accounting software” to record its referrals of users to prospective sellers.
Consistent with the Specification, we construe the “accounting application”
of claim 1 as reading on any software that records referrals. See In re
Morris, 127 F.3d at 1054.
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Freishtat’s system evaluates a website user’s “session information” to
generate sales associate referrals (FF 4), e.g., referrals to real estate agents
(FF 6). As Freishtat’s system also records the referrals and sales associate
performance (even for unsold products/services) (FF 5), a skilled artisan
would have understood Freishtat’s system as software that records referrals
for sales associates of real estate companies.
Since Freishtat applies its system to real estate companies, we
conclude that the rejection does not “inappropriately separate[] Freishtat’s
accounting application from the disclosure as a whole” (App. Br. 9).
Further, adding Freishtat’s capability (e.g., generating and recording
referrals) to the combination of Muldrow’s and Sotiroff’s systems (e.g., to
refer real estate agents for listed properties) is no more than a simple
addition of an old element (e.g., Freishtat’s software) performing the same
function it had been known to perform. See KSR, 550 U.S. at 417. Thus, we
conclude that the combined teachings of Muldrow, Sotiroff, and Freishtat
would have suggested “a real estate data processing server comprising …
accounting applications” (claim 1).
Appellant also argues that “Soulanille does not explicitly teach that
the system for ranking be applied to real estate or real estate sales and the
disclosure and teachings of Muldrow do not suggest sorting the results of a
query” (App. Br. 11). That is, Appellant argues that the combined teachings
of Muldrow and Soulanille do not suggest a sorting/ranking of real estate
search results.
Soulanille’s system queries a database of advertiser listings and
generates a search result list based on the advertisers’ bids to prominently
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display their listings (FF 7), e.g., the listings with the highest bid amounts
are the most prominently displayed (FF 8). Thus, because Soulanille most
prominently displays the advertiser listings with the highest bids placed by
those advertisers, a skilled artisan would have understood Soulanille’s
system as sorting search results “according to a highest bid placed by a party
representing” those listings (claim 1).
Adding Soulanille’s bid-controlled sorting to Muldrow’s and
Sotiroff’s systems (e.g., to have real estate companies bid for preferred
placement of their properties within search results) is no more than a simple
addition of an old element performing the same function it had been known
to perform. See KSR, 550 U.S. at 417. Thus, we conclude that the combined
teachings of Muldrow, Sotiroff, and Soulanille would have suggested a “real
estate data processing server” that “sorts multiple real estate property
findings … according to a highest bid placed by a party representing one of
the real estate properties” (claim 1).
Accordingly, for the above reasons, we affirm the rejection of claim 1
under 35 U.S.C. § 103(a) as being unpatentable over Muldrow, Freishtat,
Soulanille, and Sotiroff.
Claims 2 and 3
Appellant presents the same arguments and claim limitations for
independent claims 1 and 2. As to claim 2, Appellant argues that the
combined teachings of Muldrow and Sotiroff do not suggest a “user’s
specified criterion” that “ includes property type and at least one of a zip
code, a city or state, a sales price range, or a property parameter” (App. Br.
13-14 and 18); that the combined teachings of Muldrow and Freishtat do not
suggest “an accounting computer software application invoicing a party
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representing the result of a real estate property adhering to the user’s
specified criterion” (App. Br. 13 and 15-16); and that the combined
teachings of Muldrow and Soulanille do not suggest “real estate property
findings from the real estate database adhering to the user’s specified
criterion according to a highest bid placed by the party representing the
result” (App. Br. 13 and 17-18).
For the reasons stated with respect to claim 1, we conclude that each
of these limitations of claim 2 is suggested by the combined teachings of
Muldrow, Freishtat, Soulanille, and Sotiroff. Accordingly, we affirm the
rejection of claim 2, and dependent claim 3 falling therewith, under 35
U.S.C. § 103(a) as being unpatentable over Muldrow, Freishtat, Soulanille,
and Sotiroff.
Claim 4
As to claim 4, which depends from claim 2, Appellant argues that
Muldrow does not suggest “querying the user for input criterion based on
the user’s particular real estate preferences” (App. Br. 19). However,
Appellant provides no further comment with respect to this limitation of
claim 4. As Appellant is making a general allegation of patentability
without specifically pointing out how the claim language patentably
distinguishes over the applied art, Appellant’s argument cannot establish
Examiner error. See 37 C.F.R. 1.111(b); see also 37 C.F.R. § 41.37
(c)(1)(vii) (“A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim.”).
Appellant also argues, by reasserting a limitation of base claim 2, that
the combined teachings of Muldrow and Soulanille do not suggest a “user’s
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specified criterion” that “ includes property type and at least one of a zip
code, a city or state, a sales price range, or a property parameter” (App. Br.
20). For the reasons stated with respect to claim 1, we conclude that this
limitation of claim 2 is suggested by the combined teachings of Muldrow
and Sotiroff.
Accordingly, for the above reasons, we affirm the rejection of claim 4
under 35 U.S.C. § 103(a) as being unpatentable over Muldrow, Freishtat,
Soulanille, and Sotiroff.
Claims 5-7
As to independent claim 5, Appellant argues that the combined
teachings of Muldrow, Soulanille, and Sotiroff do not suggest a “user’s
specified criterion including real estate information and real estate property
location information, the real estate information including property type and
the real estate property location information including at least one of a zip
code, a city or state, a sales price range, or a property parameter” (App. Br.
21-22). We interpret the “user’s specified criterion” of claim 5 as needing
only to indicate an undefined “property type” (as part of “real estate
information”) and undefined “property parameter” (as part of “real estate
property location information”).
That is, we interpret the “user’s specified criterion” of claim 5 as
reading on a user-specified criterion that indicates a property type and
property location parameter. As stated with respect to claim 1, an artisan
would have understood Sotiroff’s “desired region” criterion as indicating a
geographic property type (e.g., city or suburban) and property location
parameter (e.g., what city or boundaries) of a real estate property.
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Appellant also repeats the argument that the combined teachings of
Muldrow and Soulanille do not suggest “wherein the real estate data
processing server sorts multiple real estate property findings from the real
estate database adhering to the user's specified criterion according to a
highest bid placed by a party representing a real estate property” (App. Br.
23). For reasons provided with respect to claim 1, we conclude that this
limitation of claim 5 is suggested by the combined teachings of Muldrow,
Sotiroff, and Soulanille.
Accordingly, we affirm the rejection of claim 5, and dependent claims
6 and 7 falling therewith, under 35 U.S.C. § 103(a) as being unpatentable
over Muldrow, Soulanille, and Sotiroff.
Claims 9-13 and 18
As to independent claim 9, Appellant presents the same arguments
and claim limitations asserted for claims 1 and 5. More particularly, similar
to claim 5, Appellant argues that Muldrow and Sotiroff do not suggest a
“user’s specified criterion including real estate information and real estate
property location information, the real estate information including property
type and the real estate property location information including at least one
of a zip code, a city or state, a sales price range, or a property parameter”
(App. Br. 25-26). Similar to claim 1, Appellant argues that Muldrow and
Soulanille do not suggest “‘real estate property findings from the real estate
database adhering to the user’s specified criterion according to a highest bid
placed by a party representing one of the real estate properties’” (App. Br.
26). For the reasons provided with respect to claims 5 and 1, we conclude
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that these limitations of claims are respectively suggested by the combined
teachings of Muldrow, Soulanille, and Sotiroff.
Accordingly, we affirm the rejection of claim 9, and dependent claims
10-13 and 18 falling therewith, under 35 U.S.C. § 103(a) as being
unpatentable over Muldrow, Soulanille, and Sotiroff.
Claims 8 and 14-16
Appellant does not provide separate arguments for claims 8 and 14-
16. Accordingly, we affirm the rejections of claims 8 and 14 under 35
U.S.C. § 103(a) as being unpatentable over Muldrow, Soulanille, and
Barbari; and claims 15 and 16 under 35 U.S.C. § 103(a) as being
unpatentable over Muldrow, Soulanille, and Freishtat.

VI. CONCLUSIONS
(1) The Examiner did not err in concluding that claims 1-4 are
unpatentable over the teachings of Muldrow, Freishtat, Soulanille, and
Sotiroff.
(2) The Examiner did not err in concluding that claims 5-7, 9-13,
and 18 are unpatentable over the teachings of Muldrow, Soulanille, and
Sotiroff.
(3) The Examiner did not err in concluding that claims 8 and 14 are
unpatentable over the teachings of Muldrow, Soulanille, and Barbari.
(4) The Examiner did not err in concluding that claims 15 and 16
are unpatentable over the teachings of Muldrow, Soulanille, and Freishtat.
(5) Claims 1-16 and 18 are not patentable.

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VII. DECISION
We affirm the rejection of claims 1-16 and 18 under 35 U.S.C. §
103(a) 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)(1)(iv).

AFFIRMED

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