Ex Parte Zimmerman et al

Patent Trial and Appeal Board

Aug 9, 2017

12368028 (P.T.A.B. Aug. 9, 2017)

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.
12/368,028 02/09/2009 William Kelly Zimmerman 20187/438-US 1120
81905 7590 08/11/2017
Hanley, Flight & Zimmerman, LLC (Nielsen)
150 S. Wacker Dr. Suite 2200
Chicago, IL 60606
EXAMINER
SCHEUNEMANN, RICHARD N
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
08/11/2017 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):
j flight @ hfzlaw. com
mhanley@hfzlaw.com
docketing@hfzlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM KELLY ZIMMERMAN, BRIAN ROBERT SMITH II,
JOHN P. FIX, and STEVEN S. NOBLE
Appeal 2015-006569
Application 12/368,0281
Technology Center 3600
Before JOSEPH A. FISCHETTI, JAMES A. WORTH, and
BRUCE T. WIEDER, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35U.S.C. § 134 from the
Examiner’s final rejection of claims 1—10, 12—14, 16, 18, 30, 48, 49, 51—58,
60-62, 64, 66, and 67.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is The Nielsen
Company (US), LLC. (Appeal Br. 2.)
2 Claims 24—29 were cancelled by Appellants’ amendment. (See Advisory
Action mailed Sept. 29, 2014.)
Appeal 2015-006569
Application 12/368,028
CLAIMED SUBJECT MATTER
Appellants’ claimed invention “relates generally to product market
research and, more particularly, to methods and apparatus to model
consumer awareness for changing products in a consumer purchase model.”
(Spec. 11.)
Claims 1 and 30 are the independent claims on appeal. Claim 30 is
illustrative. It recites:
30. A computer readable storage device or storage disk
comprising instructions that, when executed, cause a machine to,
at least:
identify an indication of an awareness state of a respondent
the indication indicative of whether the restage product is one of
(a) modified based on a corresponding original product, or (b)
the original product;
select a first or second type of utility value in response to
a virtual purchase of the restage product by the respondent, the
selection based on the indication of the awareness state of the
respondent during the virtual purchase of the restage product to
prevent choice probability estimation errors;
based on the selection, calculate a choice probability based
on the first type of utility value associated with only the original
product when the indication of the awareness state indicates the
respondent is unaware that the restage product is a modification
of the original product, and calculate the choice probability based
on the second type of utility value associated with both the
restage product and the corresponding original product when the
indication of the awareness state indicates the respondent is
aware that the restage product is a modification of the original
product; and
simulate consumer purchases based on the calculated
choice probability.
2
Appeal 2015-006569
Application 12/368,028
REJECTIONS
Claims 1-10, 12-14, 16, 18, 30, 48, 49, 51-58, 60-62, 64, 66, and 67
are rejected under 35 U.S.C. § 101 as directed to non-statutory subject
matter.
Claims 1 and 30 are rejected under 35 U.S.C. § 112, first paragraph,
for failing to comply with the written description requirement.
Claims 1 and 30 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
Claims 1, 2, 4—6, 8, 9, 12—14, 16, 18, 30, and 49 are rejected under
35 U.S.C. § 103(a) as unpatentable in view of Ashish Sinha et al., Attribute
Drivers: A Factor Analytic Choice Map Approach for Understanding
Choices among SKUs, 24 Marketing Science 3 (Summer 2005) at 351—59
(hereinafter “Sinha”), Varghese (US 2004/0133468 Al, pub. July 8, 2004),
and Dull (US 2003/0018517 Al, pub. Jan. 23, 2003) (hereinafter “Dull
’517”).
Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable in view
Sinha, Varghese, Dull ’517, and Malek (US 7,308,418 B2, iss.
Dec. 11, 2007) (hereinafter “Malek ’418”).
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable in view
Sinha, Varghese, Dull ’517, and Baydar (US 2003/0187708 Al, pub.
Oct. 2, 2003).
Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable in view
Sinha, Varghese, Dull ’517, and Peter M. Guadagni & John D. C. Little, A
Logit Model of Brand Choice Calibrated on Scanner Data, 27 Marketing
Science 1 (Jan—Feb. 2008) at 29-48 (hereinafter “Guadagni”).
3
Appeal 2015-006569
Application 12/368,028
Claims 48 and 67 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view Sinha, Varghese, Dull ’517, and Dull
(US 2005/0209909 Al, pub. Sept. 22, 2005) (hereinafter Dull ’909).
Claim 51, 53, and 57 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view Sinha, Varghese, Dull ’517, and Stewart
(US 2002/0152110 Al, pub. Oct. 17, 2002).
Claim 62 is rejected under 35 U.S.C. § 103(a) as unpatentable in view
Sinha, Varghese, Dull ’517, and Reynolds (US 2008/0065471 Al, pub.
Mar. 13, 2008).
Claims 64 and 66 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view Sinha, Varghese, Dull ’517, and Rosen
(US 2006/0247956 Al, pub. Nov. 2, 2006).
Claims 52, 54, 55, and 56 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view Sinha, Varghese, Dull ’517, Stewart, and Malek
(US 2005/0261953 Al, pub. Nov. 24, 2005) (hereinafter “Malek ’953”).
Claims 58, 60, and 61 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view Sinha, Varghese, Dull ’517, Stewart, and Guadagni.
ANALYSIS
The §101 rejections
Claim 30 and dependent claims 51—58, 60-62, 64, 66, and 67 are
rejected under § 101. Applying a broadest reasonable interpretation, the
Examiner rejects these claims “as covering a signal per se, which is not
directed towards statutory subject matter.” (Final Action 5.) Specifically,
[t]he broadest reasonable interpretation of a claim drawn to a
computer-readable storage device typically covers forms of non-
4
Appeal 2015-006569
Application 12/368,028
transitory tangible media and transitory propagating signals per
se in view of the ordinary and customary meaning of computer
readable media, particularly when the specification is silent, or
open-ended (as seen in Applicant’s specification, |[0031]; any
medium used to store code). See MPEP 2111.01.
(Id.)
Appellants disagree and argue that “claim 30 recites ‘a computer
readable storage device or storage disk,’ which is statutory. In particular, a
device is not a propagating signal, even in its broadest interpretation.”
(Appeal Br. 13.)
Transitory, propagating signals are unpatentable under 35 U.S.C.
§ 101. In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007).
A claim that covers both statutory and non-statutory
embodiments . . . embraces subject matter that is not eligible for
patent protection and therefore is directed to non-statutory
subject matter. ... For example, a claim to a computer readable
medium that can be a compact disc or a carrier wave covers a
non-statutory embodiment and therefore should be rejected
under § 101 as being directed to non-statutory subject matter.
“Interim Examination Instructions For Evaluating Subject Matter Eligibility
Under 35 U.S.C. § 101,” Memorandum, Andrew H. Hirshfeld, Acting
Deputy Commissioner for Patent Examination Policy, August 24, 2009
(emphasis omitted).
The USPTO also provides the following guidance:
The broadest reasonable interpretation of a claim drawn to a
computer readablle [sic] medium . . . typically covers forms of
non-transitory tangible media and transitory propagating signals
per se in view of the ordinary and customary meaning of
computer readable media, particularly when the specification is
silent.... When the broadest reasonable interpretation of a claim
5
Appeal 2015-006569
Application 12/368,028
covers a signal per se, the claim must be rejected under 35 U.S.C.
§ 101 as covering non-statutory subject matter.
David J. Kappos, Subject Matter Eligibility of Computer Readable Media,
1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (hereinafter “Kappos.”)
Claim 30 recites, in relevant part, “[a] computer readable storage
device . . . comprising instructions.” The Specification discloses that the
processes of the invention
may be embodied in coded instructions stored on any tangible
computer-readable medium such as a flash memory . . . and/or
any other medium which can be used to carry or store program
code and/or instructions in the form of machine-readable
instructions or data structures, and which can be accessed by a
processor, a general-purpose or special-purpose computer.
(Spec. 131.) In view of the disclosure of the Specification, we conclude that
the claimed “computer readable storage device . . . comprising instructions”
can broadly, but reasonably, be construed to encompass both non-transitory
tangible medium and transitory propagating signals per se.3 Therefore, we
are not persuaded of reversible error.
In the Answer, the Examiner enters a new ground of rejection under
§ 101 for claims 1-10, 12-14, 16, 18, 30, 48, 49, 51-58, 60-62, 64, 66,
and 67.
After the Final Action was mailed but prior to the mailing of the
Answer, the Supreme Court decided Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
3 We note that the USPTO guidance further provides that “[a] claim drawn
to such a computer readable medium that covers both transitory and non-
transitory embodiments may be amended to narrow the claim to cover only
6
Appeal 2015-006569
Application 12/368,028
134 S. Ct. 2347 (2014). Alice applies a two-part framework, earlier set out
in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012),
“for distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.” Alice, 134 S. Ct. at 2355.
Under the two-part framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. If the claims
are determined to be directed to a patent-ineligible concept, then the second
part of the framework is applied to determine if “the elements of the
claim . . . contain[] an ‘inventive concept’ sufficient to ‘transform’ the
claimed abstract idea into a patent-eligible application.” Id. at 2357 (citing
Mayo, 566 U.S. at 72-73, 79).
With regard to part one in the Alice framework, the Examiner
determines that “the claimed invention is directed to non-statutory subject
matter.” (Answer 2.) In particular, the Examiner determines that the claims
“are directed to modeling consumer purchase decisions for restage products
(as evidenced by the preamble of exemplary claim 1), an abstract idea.”
(Id.)
Appellants disagree and argue that “to conduct a proper § 101 analysis
under the Supreme Court precedent, the Office must start by identifying an
abstract idea that is the focus of the claim and gives rise to concerns that a
fundamental building block of science or technology is being monopolized.”
statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by adding
the limitation ‘non-transitory’ to the claim.” Kappos.
7
Appeal 2015-006569
Application 12/368,028
(Reply Br. 5, emphasis omitted.) In particular, Appellants argue that “the
Examiner’s Answer fails to identity an abstract concept to which the claim
as a whole is directed” and that “claim 1 clearly does not preempt all use of
the broad concept of ‘modeling consumer purchase decisions for restage
products.’” {Id. at 6, emphasis omitted.)
Under part one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
Thus, although we consider the claim as a whole, the “directed to” inquiry
focuses on the claim’s “character as a whole.”
In this case, the Specification discloses that the claimed invention
“relates generally to product market research and, more particularly, to
methods and apparatus to model consumer awareness for changing products
in a consumer purchase model.” (Spec. 11.) Claim 1, in particular, recites
the steps of “identifying an indication of an awareness state of a
respondent,” “selecting a first or second type of utility value,” “calculating
... a choice probability,” and “simulating . . . consumer purchases” “to
model consumer purchase decisions for restage products.” In short, the
claimed process starts with data, adds an algorithm (selecting a type of
utility value, calculating a choice probability, and simulating a purchase),
and ends with a new form of data to model consumer purchase decisions for
certain products.
We treat “analyzing information by steps people go through in their
minds, or by mathematical algorithms, without more, as essentially mental
8
Appeal 2015-006569
Application 12/368,028
processes within the abstract-idea category.” Electric Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016). See also Versata Dev.
Grp., Inc. v. SAP America, Inc., 793 F3d 1306, 1333 (Fed. Cir. 2015)
(claims directed to determining product value using organizational and
product group hierarchies are directed to an abstract idea).
Additionally, the Federal Circuit has “recognized that merely
presenting the results of abstract processes of collecting and analyzing
information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and analysis.”
Electric Power Grp., 830 F.3d at 1354. Thus, a system, like the claimed
system, “that employs mathematical algorithms to manipulate existing
information to generate additional information is not patent eligible.” See
Digitech Image Techs, LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351
(Fed. Cir. 2014).
Appellants additionally argue that the claims do “not preempt all use
of the broad concept of ‘modeling consumer purchase decisions for restage
products.’” (Reply Br. 6) Preemption, however, is not a separate test.
To be clear, the proper focus is not preemption per se, for some
measure of preemption is intrinsic in the statutory right granted
with every patent to exclude competitors, for a limited time, from
practicing the claimed invention. See 35 U.S.C. § 154. Rather,
the animating concern is that claims should not be coextensive
with a natural law, natural phenomenon, or abstract idea; a
patent-eligible claim must include one or more substantive
limitations that, in the words of the Supreme Court, add
“significantly more” to the basic principle, with the result that
the claim covers significantly less. See Mayo 132 S. Ct. at 1294
[566 U.S. at 72-73],
9
Appeal 2015-006569
Application 12/368,028
CLSBankInt’l v. Alice Corp. Pty. Ltd., Ill F.3d 1269, 1281 (Fed. Cir.
2013), affd, 134 S. Ct. 2347 (2014). Moreover, “[w]here a patent’s claims
are deemed only to disclose patent ineligible subject matter under the Mayo
framework, as they are in this case, preemption concerns are fully addressed
and made moot.” Id.
In view of the above, we are not persuaded that the Examiner erred in
determining that the claims are directed to the abstract idea of modeling
consumer purchase decisions for restage products.
We next look to part two of the Alice framework which has been
described “as a search for an ‘“inventive concept”’ —i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S. at 72—73).
Appellants argue, with regard to claim 30, that the claim “specifically
recite[s] instructions that achieve a practical effect, namely, selecting a first
or second type of utility value . . . , the selection based on the indication of
the awareness state of the respondent. . ., and these instructions are not
found in the prior art.” (Reply Br. 14.)
We are not persuaded that the Examiner erred in determining that
“[t]he claims do not include any additional elements that are sufficient to
amount to significantly more that [sic] the judicial exception.” (Answer 2.)
In particular, Appellants do not persuasively argue why the Examiner erred
in determining that “the claims do not recite an improvement to another
technology or technical field, nor do they recite an improvement to the
10
Appeal 2015-006569
Application 12/368,028
functioning of the computer itself. The claims require no more than a
generic computer ... to perform generic computer functions.” (Id.)
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 1—10, 12—14, 16, 18, 30, 48, 49, 51—58, 60-62, 64, 66, and 67 under
§101.
The §112, first paragraph, rejections
The Examiner rejects claims 1 and 30 under § 112, first paragraph, for
failing to comply with the written description requirement. Specifically, the
Examiner finds that the claimed subject matter, “the indication indicating
whether the respondent is aware that the restage product is one of (a)
modified based on a corresponding original product, or (b) the original
product,” “was not described in the specification in such a way as to
reasonably convey to one skilled in the relevant art that. . . the inventor(s),
at the time the application was filed, had possession of the claimed
invention.” (Final Action 6.)
Appellants disagree and cite to paragraphs 12 and 22 of the
Specification. (Appeal Br. 14—15.)
As an initial matter, we note that
[i]n order to satisfy the written description requirement, the
disclosure as originally filed does not have to provide in haec
verba support for the claimed subject matter at
issue. Nonetheless, the disclosure must . . . convey with
reasonable clarity to those skilled in the art that... [the inventor]
was in possession of the invention.
Purdue Pharma L.P. v. FauldingInc., 230 F.3d 1320, 1323 (Fed. Cir. 2000)
(citation omitted, alterations in original).
11
Appeal 2015-006569
Application 12/368,028
The Specification discloses that
the awareness manager 208 tracks an awareness value for each
product for each of the agents. . . . Surveys and/or questions to
ascertain awareness state(s) of human respondents may be
tailored in any manner to minimize or avoid alerting the
respondent(s) of a restage product in case they do not already
know about it. ... For example, the awareness manager 208
may assign an awareness state of “unaware” to simulate the
effect of a consumer forgetting about an advertisement for a
particular product or product restage, and/or the example
awareness manager 208 may assign an increasing number of
“aware” states as the simulation progresses over time to represent
the effect of advertising presence for the product of interest
and/or its associated restage. Generally speaking, respondent
awareness represents knowledge of the product of interest,
knowledge of the restage product, and/or knowledge that the
restage product represents a change to the product of interest
that has existed in the past.
(Spec. 122, emphasis added.) In describing a “restage product,” the
Specification discloses:
Activities to improve product sales volume include running one
or more advertising campaigns and/or running one or more
product promotional activities. Changes which may be made to
a product include altering product packaging, altering product
trade dress, and/or altering one or more features of the product
of interest (e.g., improving diaper absorbency, improving
cleaning power, etc.). Products which have been subjected to
such activities and/or changes are referred to as a [sic] restage
product.
{Id. 12.) In short, the Specification discloses surveys to identify an
awareness state of a respondent including whether the respondent is aware
that a “restage product represents a change to the product of interest that has
existed in the past,” i.e., an awareness that the product has been modified. It
follows that a respondent so aware, would likely also have been aware of the
12
Appeal 2015-006569
Application 12/368,028
original product. Therefore, we are persuaded that the Specification
conveyed with reasonable clarity to one skilled in the art that the inventors
were in possession of the claimed subject matter, “the indication indicating
whether the respondent is aware that the restage product is one of (a)
modified based on a corresponding original product, or (b) the original
product.”
The Examiner also rejects claims 1 and 30 under § 112, first
paragraph, for failing to comply with the written description requirement
because there is no disclosure of the claim step “select[/ing] a first or second
type of utility value in response to a virtual purchase of the restage product.”
(Final Action 7, emphasis added; see also Answer 7.)
Appellants argue that paragraphs 20 and 22—24 of the Specification
support this claim step. (Appeal Br. 15—16.) In particular, Appellants argue
that the Specification discloses “the example awareness manager 208 may
identity and/or assign an awareness state for each agent in the consumer
purchase simulation” (id. at 16) and that “the example relative probability
calculator employs one or more utility values based on the awareness state
of each corresponding agent” (id.).
Claims 1 and 30 recite “type of utility value.” Although we agree that
the Specification discloses “one or more utility values,” Appellants do not
persuasively argue that the Specification supports “select[/ing] a first or
second type of utility value.” Therefore, we are not persuaded that the
Examiner erred in rejecting claims 1 and 30 under § 112, first paragraph, for
failing to comply with the written description requirement because there is
no disclosure of the claim step “select[/ing] a first or second type of utility
value in response to a virtual purchase of the restage product.”
13
Appeal 2015-006569
Application 12/368,028
The § 112, second paragraph, rejection
The Examiner also rejects claims 1 and 30 under § 112, second
paragraph, as being indefinite. Specifically, the Examiner determines:
Claims 1 and 30 recite “select[/ing] a first or second type
of utility value,” and then recite calculating a choice probability
based on the first type of utility value and the second type of
utility value. Since only one type of utility value is required by
the claims, but both are used in the calculation, the claims are
indefinite.
(Final Action 7.) More particularly, the Examiner concludes that “[t]he
claims are indefinite because there is language that requires selecting a type
of utility value from one or two types, but making the calculation based on
both types.” (Answer 7—8.)
Appellants disagree and argue that “[cjontrary to the assertion in the
Examiner’s Answer, the calculation of claims 1 and 30 does not use both the
first and second utility values when calculating the choice probability.
Rather, the calculation specifies which utility value to use when first and
second conditions are satisfied.” (Reply Br. 18.)
We agree that the selection of the calculation is based on the condition
satisfied. Therefore, we are persuaded that the Examiner erred in rejecting
claims 1 and 30 under § 112, second paragraph.
The § 103(a) rejections
In rejecting claims 1 and 30 under § 103(a), the Examiner finds that
Dull 517 discloses selecting a first or second type of utility value
in response to a virtual purchase of the restage product by the
respondent, the selection based on the indication of the
14
Appeal 2015-006569
Application 12/368,028
awareness state of the respondent during the virtual purchase of
the restage product to prevent choice probability estimation
errors (see ^[0057] and Fig. 6J . . .).
(Final Action 13, 20, emphasis omitted.)
Appellants disagree and argue that
while Dull describes varying customer awareness stages, Dull
does not teach or suggest (a) selecting utility values and/or (b)
selecting a first or second type of utility value based on the
indication of the awareness state of the respondent during a
virtual purchase of a restage product, as recited in claim 1.
(Appeal Br. 10, emphasis omitted.)
Paragraph 57 of Dull ’517, cited by the Examiner, discloses that the
marketing funnel shown in Figure 6J “represents a range of stages indicating
a customer’s awareness of the user’s product.” (Dull ’517 157; see also id.
Fig. 6J.) Dull ’517 further discloses that a “marketing funnel is a range of
stages representing a customer’s awareness of the user’s product which can
vary from just being aware of the product to being totally committed to the
product.” {Id. If 21.) However, it is not clear from the cited portions of
Dull ’517 what time period is at issue, i.e., it is not clear that the disclosed
“customer’s awareness of the user’s product” {id. 157) is an “indication of
the awareness state of the respondent during a virtual purchase of the
restage product,” as recited in claims 1 and 30 (emphasis added). Therefore,
we are persuaded that the Examiner erred in rejecting claims 1 and 30 under
§ 103(a). The Examiner does not rely on any of the other cited art to cure
this deficiency. Thus, for the same reason, we are persuaded that the
Examiner erred in rejecting dependent claims 2—10, 12—14, 16, 18, 48, 49,
51—58, 60-62, 64, 66, and 67 under § 103(a).
15
Appeal 2015-006569
Application 12/368,028
DECISION
The Examiner’s rejections of claims 1—10, 12—14, 16, 18, 30, 48, 49,
51—58, 60—62, 64, 66, and 67 under 35 U.S.C. § 101 are affirmed.
The Examiner’s rejection of claims 1 and 30 under 35 U.S.C. § 112,
first paragraph, for failing to comply with the written description
requirement with regard to the claimed subject matter, “the indication
indicating whether the respondent is aware that the restage product is one of
(a) modified based on a corresponding original product, or (b) the original
product,” is reversed.
The Examiner’s rejection of claims 1 and 30 under 35 U.S.C. § 112,
first paragraph, for failing to comply with the written description
requirement with regard to the claimed subject matter, “select[/ing] a first or
second type of utility value in response to a virtual purchase of the restage
product,” is affirmed.
The Examiner’s rejection of claims 1 and 30 under 35 U.S.C. § 112,
second paragraph, is reversed.
The Examiner’s rejections of claims 1—10, 12—14, 16, 18, 30, 48, 49,
51—58, 60-62, 64, 66, and 67 under 35 U.S.C. § 103(a) are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
16