Planet Social, L.L.C.

Patent Trials and Appeals Board

Jul 17, 2020

13914028 - (D) (P.T.A.B. Jul. 17, 2020)

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.
13/914,028 06/10/2013 Kristina Kernick PS002 5118
34399 7590 07/17/2020
GARLICK & MARKISON
100 Congress Avenue, Suite 2000
AUSTIN, TX 78701
EXAMINER
AYAD, MARIA S
ART UNIT PAPER NUMBER
2145
NOTIFICATION DATE DELIVERY MODE
07/17/2020 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):
MMurdock@TEXASPATENTS.COM
bpierotti@texaspatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KRISTINA KERNICK and BRUCE EDWARD STUCKMAN

Appeal 2019-002799
Application 13/914,028
Technology Center 2100
____________________

Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and
IRVIN E BRANCH, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1, 2, 5–12, and 15–24, which constitute
all of the claims pending in this appeal.2 Appeal Br. 15–20, Claims App.

1 We refer to the Specification, filed June 10, 2013 (“Spec.”); the Final
Office Action, mailed June 14, 2018 (“Final Act.”); the Appeal Brief, filed
Nov. 16, 2018 (“Appeal Br”); the Examiner’s Answer, mailed Jan. 30, 2019
(“Ans.”); and the Reply Brief (“Reply Br.”) filed Feb. 21, 2019.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Planet
Social, LLC. Appeal Br. 1.
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Claims 3, 4, 13, 14, 2, 10, and 18 have been cancelled. Id. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
II. CLAIMED SUBJECT MATTER
According to Appellant, the claimed subject matter relates to client
device (100) including processor (130) executing event wizard client
application (150) in conjunction with a user interface (142) to display an
event menu including options facilitating a user’s planning of an event.
Spec. 8:26–9:6, Fig. 3. As depicted in Figure 5 below, upon receiving event
type selection data and location data from the user, the event wizard client
application displays on interface (310) an event option menu including an
event musical entertainment option (318) providing the user the further
option to listen to at least one song associated with the event being planned.
Id. at 9:25–31.
Figure 5, reproduced below, is useful for understanding the claimed
subject matter:

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Figure 5 illustrates interface (310) displaying an event option menu
including event musical entertainment option (318) for the user to select at
least one song therefrom. Spec. 9:25–31.
Illustrative Claim
Claims 1, 11, and 20 are independent. Claim 1, reproduced below
with disputed limitations emphasized in italics, is illustrative of the claimed
subject matter:
A client device comprising:
a user interface;
a network interface for communicating via a network;
a memory that stores an event wizard client application and
location data;
a processing module, coupled to the memory, the user interface
and the network interface, the processing module including at least
one processor that executes the event wizard client application, in
conjunction with planning of an event by the user of the client device,
by:
displaying event type menu data via the user interface that
includes a plurality of general event types and a plurality of specific
events;
receiving event type selection data via the user interface that
indicates an event type based on the event type menu data;
receiving event size selection data via the user interface that
indicates an event size;
displaying event budget menu data generated via the user
interface that includes a plurality of budget options for the event being
planned by the user, wherein each of the plurality of budget options
includes a corresponding one of a plurality of per person costs that are
based on the event type selection data, and the location data and
wherein the plurality of budget options are further based on the event
size selection data;
receiving event budget selection data via the user interface that
indicates a selected one of the plurality of budget options;
generating and displaying event budget data in response to the
selected one of the plurality of budget options;
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displaying event option menu data via the user interface that
includes a plurality of event options for the event being planned by the
user that are generated based on the event type selection data, and the
location data, wherein the event options include at least one event
musical entertainment option, and wherein the event option menu data
further includes an option to listen to at least one song corresponding
to the at least one event musical entertainment option;
receiving event option selection data via the user interface that
selects at least one event option based on the event option menu data;
displaying event invitee menu data via the user interface that
includes contact data corresponding to a user retrieved via the network
interface from a social media server having an account associated with
the user; and
receiving event invitee selection data via the user interface that
indicates a plurality of invitees based on the event invitee menu data.

Appeal Br.15–16, Claims App.

III. REFERENCES RELIED UPON
The Examiner relies upon the following references.3
Name Number Publ’d/Issued
Tso US 2001/0049637 A1 Dec. 6, 2001
Xiong US 2001/0233736 A1 Oct. 7, 2007
Franco US2007/0276719 A1 Nov. 29, 2007
Rowland US 2008/0201196 A1 Aug. 21, 2008
Ku US 2008/0262958 A1 Oct. 23, 2008
Narayanan US 2014/0012925 A1 Jan. 9, 2014
Kirkham US 2015/0170045 A1 Jun. 18, 2015

3 All reference citations are to the first named inventor only.
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IV. REJECTIONS
The Examiner rejects claims 1, 2, 5–12, and 15–24 as follows:
1. Claims 1, 2, 5–7, 9–12, 15, 16, and 18–24 stand rejected under 35
U.S.C. § 103 as being unpatentable over the combination of Franco,
Tso, Ku, Rowland, Xiong, and Narayanan. Final Act. 2–35.
2. Claims 7, 15, and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Franco, Tso, Ku, Rowland,
Xiong, Narayanan and Kirkham. Final Act. 35–36.
V. ANALYSIS
We consider Appellant’s arguments seriatim, as they are presented in
the Appeal Brief, pages 6–14 and the Reply Brief, pages 2–11.4 We are
unpersuaded by Appellant’s contentions. Except as otherwise indicated
herein below, we adopt as our own the findings and reasons set forth in the
Final Action, and the Examiner’s Answer in response to Appellant’s Appeal
Brief. Final Act. 2–37; Ans. 3–10. However, we highlight and address
specific arguments and findings for emphasis as follows.
Regarding the rejection of claim 1, Appellant argues that the
combination of Franco, Tso, Ku, Rowland, Xiong, and Narayanan does not
teach or suggest an event menu of options including: (i) one event musical
entertainment option, and (ii) an option to listen to one song corresponding
to the event musical entertainment option. Appeal Br. 8–12, Reply Br. 2–10.

4 We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Any other arguments Appellant could have
made but chose not to make in the Briefs are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(iv) (2012).
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In particular, Appellant argues that Xiong’s disclosure of an event promotion
engine for use by event promoters to promote pre-planned events (e.g.
concerts) does not teach a user planning an event by displaying an option
menu including a musical entertainment option. Appeal Br. 9–11 (citing
Xiong ¶¶ 76, 104, 124), Reply Br. 3, 4. According to Appellant, Xiong’s
disclosure of presenting to potential attendees events pre-planned by another
party teaches away from the user planning the events, as required by the
claim. Appeal Br. 12. Further, Appellant argues that Xiong’s disclosure of
a display with pre-planned events by other people would impermissibly
change the principle of operation of Franco’s system, which allows a user to
plan and schedule a meeting. Reply 5 (citing Xiong, Figs. 9, 10).
Appellant’s arguments are not persuasive of reversible Examiner error.
The Examiner finds, and Appellant does not dispute, that Franco
discloses an interface for displaying a menu of options allowing a user to
plan an event such as a meeting with desired individuals at a particular date,
time, and location. Final Act. 3, 4 (citing Franco ¶¶ 55, 68, 74, 89, 91), Ans.
6, 7 (citing Franco ¶¶ 44, 45, 74, 86, 88, 91, 92, Fig. 4). Further, the
Examiner finds, and Appellant does not dispute, that Xiong discloses an
interface with menu options including an option to select a particular one
from a list of concerts scheduled for a specific day, as well as the option of
selecting a song associated with a selected artist. Final Act. 9, Ans. 4, 5
(citing Xiong ¶¶ 98, 104, 123, Figs. 9, 10).
As correctly noted by the Examiner, Appellant’s arguments in the
Appeal Brief focusing solely on Xiong’s disclosure, which Appellant
concludes teaches away from the claimed subject matter, are tantamount to
an individual attack against the references relied upon by the Examiner in
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the rejection of claim 1. Ans. 7. As noted above, the Examiner primarily
relies on Franco to teach an interface providing a user with a menu of
options facilitating the user’s planning of an event. The Examiner further
relies on Xiong to teach a menu of options including an entertainment option
from which the user can listen to a song by an artist selected from the menu.
Although Xiong’s interface pertains to a menu of pre-planned events, the
modification proposed by the Examiner is not a bodily incorporation of
Xiong’s system into Franco’s.5 Rather, it is limited to using Xiong’s
additional options as a suggestion to the user of Franco’s system to provide a
more expansive interface with a wider range of options facilitating the user’s
planning of an event. Ans. 8–9. Because Appellant has not proffered any
portion of Xiong or Franco that discourages, criticizes or otherwise
discredits the insertion of such additional options into the Franco’s interface,
we agree with the Examiner that adding Xiong’s options to Franco’s
interface does not teach away from the claimed subject matter.6 Id.

5 “The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference …. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). “The obviousness analysis cannot
be confined by the formalistic conception of the words teaching, suggestion,
and motivation, or by overemphasis on the importance of … the explicit
content of issued patents.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398. 402
(2007).
6 The Federal Circuit has held “‘[a] reference may be said to teach away
when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.’” In
re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d
551, 553 (Fed. Cir. 1994))
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Likewise, we do not agree with the Appellant that adding such options to
Franco’s interface would change the principle of operation of Franco’s
system. The argument that the proposed combination of references would
render one of the references unsuitable for its intended purpose, or would
change its principle of operation, is a teaching away argument. In re
Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (The court concluded that in
effect, “French teaches away from the board’s proposed modification”
because “if the French apparatus were turned upside down, it would be
rendered inoperable for its intended purpose”).7
We find the Examiner’s proposed combination of the cited teachings
of Franco, Tso, Ku, Rowland, Xiong, and Narayanan is no more than a
simple arrangement of old elements with each performing the same function
it had been known to perform, yielding no more than what one would expect
from such an arrangement. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007). Therefore, the ordinarily skilled artisan, being “a person of
ordinary creativity, not an automaton,” would have been able to fit the
teachings of the cited references together like pieces of a puzzle to
predictably result in an interface with a menu of options including a musical
entertainment option from which a user can select a song to listen to. Id. at

7 “If references taken in combination would produce a ‘seemingly
inoperative device,’ . . . such references teach away from the combination
and thus cannot serve as predicates for a prima facie case of obviousness.”
McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001)
(citation omitted); see also In re ICON Health & Fitness, Inc., 496 F.3d
1374, 1382 (Fed. Cir. 2007) (“a reference teaches away from a combination
when using it in that combination would produce an inoperative result,” but
the obviousness analysis must account for “modifications that one skilled in
the art would make to a device borrowed from the prior art”).
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420–21. Because Appellant has not demonstrated that the Examiner’s
proffered combination would have been “uniquely challenging or difficult
for one of ordinary skill in the art,” we agree with the Examiner that the
proposed modification would have been within the purview of the ordinarily
skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Consequently,
we are satisfied that, on the record before us, the Examiner has established
by a preponderance of the evidence that the combination of Franco, Tso, Ku,
Rowland, Xiong, and Narayanan teaches the disputed claim limitations.
Because we are not persuaded of Examiner error, we sustain the Examiner’s
rejection of claim 1 as being unpatentable over the combination of Franco,
Tso, Ku, Rowland, Xiong, and Narayanan.
Regarding the rejection of claims 2, 5–12, and 15–24, Appellant has
not presented separate patentability arguments or has reiterated substantially
the same arguments as those previously discussed for the patentability of
claim 1. As such, claims 2, 5–12, 15–24 fall therewith. See 37 C.F.R.
§ 41.37(c)(1)(iv).
VI. CONCLUSION
For the above reasons, we affirm the Examiner’s rejections of claims
1, 2, 5–12, and 15–24.
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VII. DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § References s Affirmed Reversed
1, 2, 5–7, 9–12,
15, 16, 18–2 103
Franco, Tso, Ku,
Rowland, Xiong,
Narayanan
1, 2, 5–7, 9–12,
15, 16, 18–2
8, 17 103
Franco, Tso, Ku,
Rowland, Xiong,
Narayanan,
Kirkham
8, 17
Overall
Outcome
1, 2, 5–12, 15–
24

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED