Ex parte Sims

• Decision Date: 24 June 2019
• Docket Number: 813,Application 13/714,Appeal 2018-003748
• Parties: Ex parte COLIN SIMS, RICHARD GRECH, JESSE JORDAN, ARI FRIEDMAN, and JED KLECKNER Technology Center 3600
• Court: Patent Trial and Appeal Board

Ex parte COLIN SIMS, RICHARD GRECH, JESSE JORDAN, ARI FRIEDMAN, and JED KLECKNER Technology Center 3600

Appeal 2018-003748

Application 13/714, 813^[1]

United States Patent and Trademark Office, Patent Trial and Appeal Board

June 24, 2019

FILING DATE: 12/14/2012

Before JOHN A. EVANS, JAMES W. DEJMEK, and MICHAEL M. BARRY Administrative Patent Judges.

DECISION ON APPEAL

DEJMEK, ADMINISTRATIVE PATENT JUDGE.

Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-21 and 23—40. Appellants have canceled claims 22 and 41. See App. Br. 31, 35. We have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b).

We affirm.

STATEMENT OF THE CASE

Introduction

Appellants' disclosed and claimed invention generally relates to methods and systems for delivery services. Spec., Abstract. In a disclosed embodiment, a customer delivery area may be determined based on a merchant's location and determined delivery radius. Spec. ¶¶ 53, 55. A second delivery area may be determined when it is determined that the merchant has relocated to second location. Spec. ¶¶ 53, 55. In another embodiment, an auction process for determining a delivery agent for a delivery job may be conducted such that, for each delivery job, bids may be received from delivery agents. Spec. ¶ 179. If the delivery agent with the winning bid was assigned previously to another delivery job that the delivery job would interfere with, the delivery agent is prevented from winning the bid to do the delivery job. Spec. ¶ 204. In yet another embodiment, a delivery menu of a store may be created and organized by a delivery service using pictures of the universal product codes (UPCs) of products. Spec. ¶ 65. The menu may be augmented with details about items identified by the UPC. Spec. ¶ 67.

Independent claims 1, 21, and 29 are representative of the subject matter on appeal and are reproduced below:

1. An apparatus comprising:

a computing device; and

a non-transitory machine readable medium having stored thereon a plurality of

instructions that when executed by the computing device cause the computing device to:

determine a delivery distance for a merchant;

determine a first area where delivery is available for the merchant based on the delivery distance and the first location;

enable delivery services from the merchant for users of an internet based delivery service that are located in the first area;

disable delivery services from the merchant for users of the internet based delivery service that are not located in the first area;

determine that the merchant has relocated to a second location based on a location report from a mobile device of the merchant;

based on the second location and the delivery distance determine a second area where delivery is available for the merchant instead of the first area;

in response to determining the second area, enable delivery services from the merchant for users of the internet based delivery service that are located in the second area; and

in response to determining the second area, disable delivery services from the merchant for users of the internet based delivery service that are not located in the second area.

21. An apparatus comprising:

a computing device; and

a non-transitory machine readable medium having stored thereon a plurality of instructions that when executed by the computing device cause the computing device to:

transmit information identifying a plurality of delivery jobs that a user is eligible to bid on to the user;

determine a first location of the merchant; receive bids on the plurality of jobs, in which the bids includes at least one bid from the user and bids from other users;

determine that if the user wins the at least one bid, then services to perform the job by the user would interfere with the user performing another delivery job that has been assigned to the user;

in response to determining the services would interfere prevent the user from winning the bid to do the job.

29. An apparatus comprising:

a computing device; and

a non-transitory machine readable medium having stored thereon a plurality of instructions that when executed by the computing device cause the computing device to:

receive a picture of a universal product code of a product to be added to a delivery menu of a store;

transmit an indication of the universal product code to a delivery service, in which the delivery service is configured to organize the menu of the store so that users may order goods offered by the store based on universal product codes received from the store;

receive details about the item identified by the universal product code;

transmit the details to the delivery service to augment details available based on the universal product code; and

transmit an indication that the product should be made available in delivery menu with the details.

The Examiner's Rejections

1. Claims 38—40 stand rejected under pre-AIA 35 U.S.C § 112, first paragraph, as failing to comply with the written description requirement. Final Act. 26-28.

2. Claims 21, 23, 32, and 33 stand rejected under pre-AIA 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the applicant regards as the invention. Final Act. 29-31.

3. Claims 22, 27, and 37 stand rejected under pre-AIA 35 U.S.C § 112, fourth paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Final Act. 31-32.

4. Claims 1-21 and 23-40 stand rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.^[2] Final Act. 33-35.

5. Claims 29 and 30 stand rejected under pre-AIA 35 U.S.C. § 102(b) as being anticipated by Chowdhary et al. (US 2004/0044582 A1; Mar. 4, 2004) ("Chowdhary"). Final Act. 35-37.

6. Claims 1-4, 7, 10, and 11 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz (US 2010/0076853 A1; Mar. 25, 2010) and Grigg et al. (US 2013/0046635 A1; Feb. 21, 2013) ("Grigg"). Final Act. 38-45.

7. Claim 5 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, and Tamassia et al. (US 8, 645, 222 B1; Feb. 4, 2014) ("Tamassia"). Final Act. 45-46.

8. Claims 8 and 9 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, and Spears (US 2010/0217635 A1; Aug. 26, 2010). Final Act. 46—48.

9. Claims 12, 33, and 34 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, and Wied et al. (US 2005/0209913 A1; Sept. 22, 2005) ("Wied"). Final Act. 48-51.

10. Claims 13-15 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, Wied, and Kadaba (US 2011/0029447Al;Feb.3, 2011). Final Act. 51-55.

11. Claims 16-19 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, and Jaffri (US 2010/0323716 A1; Dec. 23, 2010). Final Act. 55-59.

12. Claim 20 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, and Official Notice. Final Act. 59-60.

13. Claims 21, 23, and 24 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Wied and Heimermann et al. (US 2002/0143692 A1; Oct. 3, 2002) ("Heimermann"). Final Act. 60-63.

14. Claims 25-27 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Wied, Heimermann, and Bennett et al. (US 8, 346, 676 B1; Jan. 1, 2013) ("Bennett"). Final Act. 63-65.

15. Claim 28 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Wied, Heimermann, and Official Notice. Final Act. 65—66.

16. Claim 31 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Chowdhary and Official Notice. Final Act. 66-67.

17. Claim 32 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, Wield, and Heimermann. Final Act. 67-69.

18. Claims 35-37 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, Wield, and Bennett. Final Act. 69-72.

19. Claims 38 and 39 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, and Chowdhary. Final Act. 73-75.

20. Claim 40 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Schwarz, Grigg, Chowdhary, and Official Notice. Final Act. 75-77.

ANALYSIS^[3]

Rejection of claim 22

In the Final Office Action, the Examiner rejected claim 22 under pre-AIA 35 U.S.C. § 112, fourth paragraph. Final Act. 31-32. Appellants, however, had previously canceled claim 22. See Final Act. 2; App. Br. 31. Accordingly, this rejection is moot.

Rejection under 35 U.S.C. § 112, first paragraph (written description)

In rejecting claim 38 under 35 U.S.C § 112, first paragraph, as lacking adequate written description support, the Examiner finds Appellants have

failed to disclose an apparatus with instructions embedded within it that allow a merchant to determine users in an area and deliver products to the users (as disclosed in claim 1), with instructions that allow a merchant to retrieve an image of a UPC, determine information about the product using the UPC, and augmenting information identified by the UPC (as disclosed in claim 38).

Final Act. 27. According to the Examiner, the "specification discloses two separate systems for such a claim, and does not disclose that the systems can be combined into a single invention." Final Act. 27. Therefore, the Examiner finds claim 38 lacks adequate written description support. Final Act. 27. In the Answer, the Examiner acknowledges the Specification describes claim 1 (e.g.. Spec. ¶ 4)...