13950819 - (D) (P.T.A.B. Jul. 9, 2019)

Ex Parte Wirth

Patent Trials and Appeals BoardJul 9, 2019

13950819 - (D) (P.T.A.B. Jul. 9, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/950,819 07/25/2013 Todd Lindsay Wirth 96039 7590 07/11/2019 Meunier Carlin & Curfman LLC 999 Peachtree Street NE Suite 1300 Atlanta, GA 30309 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 10325-002US 1 3759 EXAMINER HENDERSON, ESTHER BENOIT ART UNIT PAPER NUMBER 2458 NOTIFICATION DATE DELIVERY MODE 07/11/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docketing@mcciplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TODD LINDSAY WIRTH Appeal2017-008178 Application 13/950,819 1 Technology Center 2400 Before JOSEPH L. DIXON, JAMES W. DEJMEK, and STEPHEN E. BELISLE, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 1-36. Oral arguments were heard on April 18, 2019. A transcript of the hearing has been placed in the record. We have jurisdiction over the pending claims under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellant identifies Todd Lindsay Wirth, the inventor, as the real party in interest. App. Br. 3. Appeal2017-008178 Application 13/950,819 STATEMENT OF THE CASE Introduction Appellant's disclosed and claimed invention generally relates to a "remotely changeable, non-virtual personal message board for an unknown audience that is capable of displaying user messages." Spec. ,r 7. Claim 1 is representative of the subject matter on appeal and is reproduced below with the disputed limitations emphasized in italics: 1. A non-virtual display system for transmitting an announcement in an original, unaltered format, the system compnsmg: a dedicated, re-locatable electronic display device for receiving and displaying an authorized user's personal announcement to an unknown audience; and for transmitting confirmation back to authorized user when said personal announcement is displayed on said display device to said unknown audience; an input device for an authorized user to input said personal announcement to be displayed on said dedicated, re- locatable electronic display device and for recezvzng confirmation of said display of said personal announcement on said dedicated, re-locatable electronic display device; said dedicated, re-locatable electronic display device further including a programmable means for identifying said authorized user such that only said authorized user is able to display said personal announcement on said display device and is able to receive a transmission from said display device to said input device confirming that said personal announcement was displayed; a connection between said input device and said dedicated, re-locatable display device such that said input device is able to communicate directly with said dedicated, re-locatable display device without intermediate staging, and said dedicated, re- locatable display device is able to communicate directly with said input device without intermediate staging; 2 Appeal2017-008178 Application 13/950,819 and whereby, an authorized user is able to display a message to an unknown audience by inputting said message into said input device, and directly transmitting said message to said dedicated, re-locatable display device without intermediate staging of said message, and said display device confirms the display to said authorized user of said personal announcement by transmitting said confirmation to said input device. The Examiner's Rejection Claims 1-36 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as being unpatentable over Raj et al. (US 8,917,176 B2; Dec. 23, 2014 (filed Jan. 14, 2010)) ("Raj") and Weissmueller, JR. et al. (US 2003/0115591 Al; June 19, 2003) ("Weissmueller"). Final Act. 3-10. ANALYSIS 2 Appellant argues that unlike the cited references, the claimed invention relates to a non-virtual personal message board. Appellant asserts that "[ u ]nlike public display systems, this personal message board invention does not rely upon existing technology such as HTTP [(Hypertext Transfer Protocol)] or HTML [(Hypertext Markup Language)]. ... Instead this invention directly sends the data from the personal input device which is in a remote location to the personal display device which it then displays directly according to hardware specifications (i.e.[,] non-virtual)." App. Br. 11-12. Appellant asserts the claimed non-virtual personal message board operates 2 Throughout this Decision, we have considered the Appeal Brief, filed November 4, 2016 ("App. Br."); the Reply Brief, filed May 9, 2017 ("Reply Br."); the Examiner's Answer, mailed March 9, 2017 ("Ans."); the Final Office Action, mailed May 31, 2016 ("Final Act."), from which this Appeal is taken, and arguments made during the oral hearing held April 18, 2019 ("Tr."). 3 Appeal2017-008178 Application 13/950,819 more efficiently than virtual public display systems because in the claimed non-virtual system, "a user posts a message directly to a display device without any intermediate construction, formatting, staging or storage." App. Br. 12-13, 16-17, 22-24; Reply Br. 7, 12-14; see also Tr. 17:12-17, 19:20- 20:4, 20: 15-17. Appellant contends that one of ordinary skill in the art would understand that "a 'non-virtual' system is direct- it does not include an intermediate construction or formatting or staging or storage of a message." App. Br. 14. Additionally, Appellants asserts that "the Applicant has specifically defined 'non-virtual' system to mean, as stated in the Abstract and confirmed in the original 30 claims, a system wherein messages are sent directly to the user's display device 'and are not contained or "housed" in a virtual (server) context."' App. Br. 22-23 ( citing Spec. Abstract). The Examiner construes the term "non-virtual" display system as "a physically existing system which may be moved ... from one location to another, and not a non-physical 'virtual computer."' Ans. 4. "In the patentability context, claims are to be given their broadest reasonable interpretations ... [however] limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Any special meaning assigned to a term "must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a 4 Appeal2017-008178 Application 13/950,819 patentee must clearly express that intent in the written description."). Absent an express intent to impart a novel meaning to a claim term, the words take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art. Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003) ( citation omitted). Contrary to Appellant's assertions, Appellant has not "clearly expressed" in the Abstract or written description an intent to assign or impart a novel or special meaning to a "non-virtual" display system. More specifically, the Abstract, as identified by Appellant, does not even mention the term "non-virtual." Instead, the portion of the Abstract referenced by Appellant relates to how messages are sent. See Spec., Abstract. Further, the Specification is silent regarding a particular definition for "non-virtual." Rather, the term "non-virtual" is simply used to modify the term "personal message board" or "personal message system." See Spec. ,r,r 7, 20, 22, and 23. Thus, Appellant has not acted as his own lexicographer in assigning a special meaning to a "non-virtual" display system. Also, contrary to Appellant's assertion (see Reply Br. 13-15), Appellant did not clearly disavow any "broader meaning" of the Examiner's construction of non- virtual. Moreover, Appellant has not shown error with the Examiner's construction, and we conclude the Examiner's construction is reasonable and consistent with the Specification. Additionally, we note the claim expressly recites an input device communicates with a re-locatable display device "without intermediate staging." Further, to the extent that Appellant believes the Examiner set forth an undesignated new ground of rejection in the Answer (see Reply Br. 12), that is a petitionable matter not properly before the Board. See 37 C.F.R. 5 Appeal2017-008178 Application 13/950,819 Â§ 41. 40( a) (" Any request to seek review of the primary examiner's failure to designate a rejection as a new ground of rejection in an examiner's answer must be by way of a petition to the Director"); see also Manual of Patent Examining Procedure (MPEP) Â§ 706.01 (9th ed. Rev. 08.2017, Jan. 2018) ("[T]he Board will not hear or decide issues pertaining to objections and formal matters which are not properly before the Board."); see also MPEP Â§ 1201 ("The Board will not ordinarily hear a question that should be decided by the Director on petition .... "). Regarding the claim language of "without intermediate staging," the Examiner again finds this phrase has not been defined within the Specification or claims. Ans. 5. The Examiner construes "without intermediate staging" as meaning a direct connection. Ans. 5. Appellant argues the phrase "without intermediate staging" is not ambiguous and that one of ordinary skill in the art "would readily understand the term to have the meaning given by the Applicant in view of the specification and the prosecution history." Reply Br. 17-18. Further, Appellant identifies the use of "without intermediate staging" in the context of claim 1 ( where it appears three times). Reply Br. 18-19. Appellant asserts the claim language: is clear; an input device is not going to a server or a computer acting as a server to choose a "predefined" or "canned" message, author one there, or choose what displays to send it to from there and which ones not to send it to based on the inventory of available displays. Reply Br. 19. 6 Appeal2017-008178 Application 13/950,819 As an initial matter, we note the phrase "without intermediate staging" does not appear in the Specification or the originally filed claims. 3 Thus, Appellant's interpretation lacks support from the Specification. Nonetheless, when read in the context of the claim language, it is the communication ( e.g., the message to be displayed) that is "without intermediate staging." Thus, we construe the communication between an input device and display device (and, similarly, the transmission of a message from an input device to a display device) to be "without intermediate staging" when the content of the communication (i.e., message) does not change from the originating device to the terminating device. Based on these constructions of the claim terms, we next tum to Appellant's arguments regarding the Examiner's findings. Appellant disputes the Examiner's finding that Raj teaches a non- virtual display system. App. Br. 14--15; Reply Br. 1-3, 15-16. Specifically, Appellant asserts Raj describes a system to communicate emergency messages to an affected population wherein an intermediate server (Raj's EMCS, emergency management communications system) processes event data from a plurality of sources and "authors" its own message to be displayed. App. Br. 14--15 (citing Raj, col. 2, 11. 26-39, col. 4, 11. 16-18, col. 13, 1. 23). Appellant argues, "Raj expressly teaches a virtual system where messages are processed by an intermediate server - either 3 In the event of further prosecution, we leave it to the Examiner to determine whether there is adequate written description support for communicating and transmitting between an input device and a display device "without intermediate staging." Although the Board is authorized to reject claims under 37 C.F.R. Â§ 4I.50(b), no inference should be drawn when the Board elects not to do so. See MPEP Â§ 1213.02. 7 Appeal2017-008178 Application 13/950,819 constructing, and/ or formatting, and/ or staging, and/ or storing - This is a virtual construct." App. Br. 15. Figure 1 of Raj is illustrative and is reproduced below: Figure 1 Ne,v,ork ,-: ... 108 ............................. Console 106 .if .. Network :