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7/23/2019 Petition 2 (2)
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UNITED STATES PATENT AND TRADEMARK OFFICE_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD_______________
GOOGLE INC.Petitioner
v.
BUYSAFE, INC.Patent Owner
_______________
U.S. Patent No. 8,515,791Issue Date: August 20, 2013
Title: METHOD, SYSTEM AND COMPONENTS FOR OBTAINING,EVALUATING AND/OR UTILIZING SELLER, BUYER AND TRANSACTION
DATA
_______________
Covered Business Method Review No. CBM2014-00122
________________________________
PETITION FOR COVERED BUSINESS METHOD REVIEW
UNDER 35 U.S.C. 321 AND 18 OF THE LEAHY-SMITH
AMERICA INVENTS ACT
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A. REAL PARTY IN INTEREST .............................................................................4
B.
RELATED MATTERS .......................................................................................4
C. FEE ................................................................................................................4
D. DESIGNATION OF LEAD AND BACKUP COUNSEL............................................ 4
E. POWER OF ATTORNEY ...................................................................................5
F. SERVICE INFORMATION .................................................................................5
A. SUMMARY OF THE ALLEGED INVENTION OF THE 791PATENT...................... 5
B. SUMMARY OF THE PROSECUTION HISTORY OF THE 791PATENT.................. 9
A. THE 791PATENT IS DIRECTED TO A COVERED BUSINESS METHOD.............. 12
1. The 791 Patent Claims Methods Used in the Practice, Administration,or Management of Financial Products or services ............................................ 12
2. At Least Claims 1 and 24 of the 791 Patent are not Directed to aTechnological Invention ................................................................................17
B. GOOGLE IS ELIGIBLE TO FILE THIS PETITION............................................... 21
A. GROUND 1: CLAIMS 1-27OF THE 791PATENT ARE UNPATENTABLE UNDER35U.S.C.103BASED ON SAMSON IN VIEW OF WODA ......................................... 24
B. GROUND 2: CLAIMS 1-27OF THE 791PATENT ARE UNPATENTABLE UNDER35 U.S.C.103BASED ON OLDHAM IN VIEW OF SCHROEDER AND WODA............. 55
I. INTRODUCTION .............................................................................................1
II. FORMALITIES .............................................................................................4
III. OVERVIEW OF THE 791 PATENT ......................................................... 5
IV. GROUNDS FOR STANDING .................................................................... 12
V. STATEMENT OF RELIEF REQUESTED ..............................................22
VI. IDENTIFICATION OF PRIOR ART RELIED UPON .......................... 22
VII. CLAIM CONSTRUCTION ........................................................................ 22
VIII. FULL STATEMENT OF THE REASONS FOR THE RELIEF
REQUESTED ......................................................................................................... 24
IX. CONCLUSION ............................................................................................ 80
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LIST OF EXHIBITS
Exhibit No. Description
Exhibit 1001 U.S. Patent No. 8,515,791 (the 791 patent)
Exhibit 1002 SAP America, Inc. v. Versata Development Group, Inc., CBM2012-00001, Paper No. 36, Decision Institution of CoveredBusiness Method Review (January 9, 2013)
Exhibit 1003Congressional Record - Senate, Patent Reform Act of 2011, 157Cong. Rec. S1360-1394 (daily edition, March 8, 2011)
Exhibit 1004Volusion, Inc. v. Versata Software, Inc. and Versata Development
Group, Inc., CBM 2013-00017, Paper No. 8, Decision Institution ofCovered Business Method Review (October 24, 2013)
Exhibit 1005 77 Fed. Reg. 157 (August 14, 2012) 48734-48773
Exhibit 1006
Classification Definitions, Class 705, Data Processing: Financial,
Business Practice, Management, or Cost/Price Determination.January 2012
Exhibit 1007 Prosecution History for U.S. Patent Application No. 12/263,778
Exhibit 1008Complaint for Patent Infringement, buySAFE, Inc. v. Google Inc.,Civil Action No. 3:13-cv-00781-HEH (E.D. Va.)
Exhibit 1009Plaintiff buySAFEs Opening Claim Construction Brief,Document 39 from buySAFE, Inc. v. Google Inc., Civil Action No.1:11-cv-01282-LPS (D. Del., Aug. 10, 2012)
Exhibit 1010 U.S. Patent No. 7,644,019 (the 019 patent)
Exhibit 1011 U.S. Patent Publication No. 2004/0210527 (Woda)Exhibit 1012 U.S. Patent No. 7,228,287 (Samson)
Exhibit 1013 U.S. Patent Publication No. 2008/0103887 (Oldham)
Exhibit 1014 U.S. Patent Publication No. 2003/0130883 (Schroeder)
Exhibit 1015Declaration of Dr. Edward J. Cherian Concerning the Invalidity ofU.S. Patent No. 8,515,791
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I. INTRODUCTION
Through counsel, Google Inc. (Google or Petitioner) hereby petitions
for initiation of a covered business method review of U.S. Patent No. 8,515,791
(the 791 patent, Ex. 1001), for which an assignment to buySAFE, Inc.
(buySAFE) was recorded in the U.S. Patent and Trademark Office (USPTO)
database on November 3, 2008.
The 791 patent is directed to methods that perform web analytics to
measure consumer-to-customer conversion continuously throughout surfing,
through conversion and past completion of a purchase on-line. Ex. 1001, 5:24-26.
Cookies and other known tracking mechanisms are used to track consumer
behavior before and during the on-line purchase. Ex. 1001, 4:4-21. In
conjunction with the purchase, the 791 patent discloses that a financial product, or
transaction performance guaranty, may underwrite the obligations of the product
or service provider to reduce the risk of the consumer. Ex. 1001, 4:36:53. The
guaranty also allows tracking of consumer behavior after the on-line purchase
based on, for example, whether a party makes a claim against the obligations, or
through code related to the guaranty. Ex. 1001, 6:14-38.
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While prosecuting the 791 patent, the applicants initially argued that the
prior art failed to disclose the monitoring of post-transaction activity.1 After two
Office Actions that rejected the claims in light of prior art that showed such a
limitation, the applicants amended all claims to add the limitation of determining
whether it is acceptable to assume some or all of a third partys obligation, and
added new claims that all included similar limitations.2 The applicants further
argued, in at least three different instances, that the prior art failed to disclose the
determining limitation.3 Based on these amendments and arguments, the 791
patent was allowed.
Concurrently, buySAFE was asserting (and continues to assert) U.S. Pat. No.
7,644,019 by Woda et al. (the 019 patent, Ex. 1010) against Google.4 The 019
patent was, and continues to be, assigned to buySAFE, and includes inventors
1Ex. 1007, April 11, 2011 Amendment, claims 1 and 14, p. 6.
2Ex. 1007, August 17, 2012 Amendment after Final, amended independent claims
1 and 14 and new claims 25, 26 and 28.
3See, e.g.,Ex. 1007, June 11, 2012 Applicant-Initiated Interview Summary;
August 17, 2012 Amendment after Final, and p. 4; and May 30, 2013 Applicant-
Initiated Interview Summary.
4buySAFE, Inc. v. Google Inc., Civil Action No. 1:11-cv-01282-LPS (D. Del.).
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common with the 791 patent (i.e., Steven L. Woda and Jeffrey E. Grass). The
019 patent was not disclosed to the USPTO during the prosecution of the 791
patent.
The 019 patent, as discussed below,5discloses the identical limitations that
caused the 791 patent to be allowed, namely a transaction performance guaranty
service that is provided as part of an on-line transaction that includes a
determination of whether to accept third party obligations. See, e.g., Ex. 1010,
Abstract. BuySAFE itself made this argument during the claim construction
portion of the litigation.6
Therefore, one of the grounds of unpatentability herein (Ground 2) adds
the disclosure of the 019 patent in the form of Woda to the previous combination
5The corresponding patent publication to the '019 patent, U.S. Pat. Pub. No.
2004/0210527 (Woda, Ex. 1011) is used for the below discussion and proposed
grounds because the '019 patent qualifies as prior art under 35 U.S.C. 102(e),
which may not be allowed for a CBM review. Woda was also not disclosed to the
USPTO during the prosecution of the 791 patent.
6SeeEx. 1009, Plaintiff buySAFEs Opening Claim Construction Brief, dated
Aug. 10, 2012, p. 11 (arguing that the '019 patent discloses [d]etermining that it is
acceptable to assume a risk on behalf of [the first party]).
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of prior art asserted by the Examiner during prosecution of the 791 patent to show
a reasonable likelihood of prevailing. Another ground of unpatentability (Ground
1) uses a single prior art primary reference (Samson, Ex. 1012) that was not
before the Examiner during prosecution of the 791 patent in combination with
Woda.
II.
FORMALITIES
A.
REAL PARTY IN INTEREST
Google Inc. certifies that it is the real party-in-interest.
B.
RELATED MATTERS
The 791 patent has been asserted against Google in buySAFE, Inc. v.
Google Inc., Civil Action No. 3:13-cv-00781-HEH (E.D. Va.). SeeEx. 1008.
C.
FEE
This petition is accompanied by the required payment in accordance with 37
C.F.R. 42.15(b). The Office is hereby authorized to charge any further fees that
may be required by this petition to Deposit Account No. 50-1165.
D.
DESIGNATION OF LEAD AND BACKUP COUNSEL
Lead Counsel Back-Up Counsel
Barry S. Goldsmith, Reg. No. 39,690Miles & Stockbridge P.C.1751 Pinnacle Drive, Suite 500Tysons Corner, VA 22102
bgoldsmith@milesstockbridge.comTelephone: (703) 610-8680Facsimile: (703) 842-6464
Keith M. Mullervy, Reg. No. 62,382Miles & Stockbridge P.C.1751 Pinnacle Drive, Suite 500Tysons Corner, VA 22102kmullervy@milesstockbridge.comTelephone: (703) 610-8680Facsimile: (703) 610-8686
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E.
POWER OF ATTORNEY
A power of attorney is being filed with the designation of counsel in
accordance with 37 C.F.R. 42.10(b).
F. SERVICE INFORMATION
As identified in the attached Certificate of Service, a copy of the present
petition, in its entirety, is being served to the address of the attorney or agent of
record. Google may be served at its counsel, Miles & Stockbridge P.C.
III.
OVERVIEW OF THE 791PATENT
A.
SUMMARY OF THE ALLEGED INVENTION OF THE 791PATENT
The 791 patent is directed to methods that perform web analytics to
measure consumer-to-customer conversion continuously throughout surfing,
through conversion and past completion of a purchase on-line. Ex. 1001, 5:24-26;
Ex. 1015, 20. As for tracking before and up to the purchase, the 791 patent
discloses that a consumer's click-stream can include an indication of every
website and every page of every website that the consumer visits. Ex. 1001, 4:5-
7; Ex. 1015, 20. However, click-streams consistently end at the time that
payment is tendered for a purchased item. Ex. 1001, 4:4-5; Ex. 1015, 20.
As a mechanism used to facilitate the tracking of post-transaction activity,
the 791 patent discloses a financial product referred to as a Transaction Related
Offering or TRO. Ex. 1001, 4:36; Ex. 1015, 21. The TRO is any product or
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service of perceived or actual value that is provided to a consumer in connection
with a transaction, such as an on-line transaction to purchase products or services,
for at least the purpose of motivating the consumer to purchase products or
services at the present time and/or in the future. Ex. 1001, 4:37-40; Ex. 1015,
21. Examples of a TRO disclosed in the 791 patent include a transaction
performance guaranty, wherein a safe transaction service provider underwrites the
obligations of the product or service provider to reduce risk to the consumer. Ex.
1001, 4:43-46; Ex. 1015, 21. Other examples include free shipping of a
purchased product, a warranty for the product that is not automatically provided by
the manufacturer, preferred or alternative product or service pricing, coupons or
offers for additional products and/or services, etc. Ex. 1001, 4:47-50; Ex. 1015,
21.
The TRO allows for post-transaction tracking of consumer behavior. Ex.
1015, 22. For example, if the TRO is the underwriting of the seller's
obligations, post-transaction activity may include determining whether a claim has
been made by the beneficiary (e.g., the customer), and processing of the claim.
Ex. 1001, 5:1-4; Ex. 1015, 22. Further, code related to the TRO may facilitate
data gathering: TRO related graphic code may also be incorporated with an
applet (e.g., a Java applet) that may be designed to perform certain data gathering
tasks related to the transaction or the TRO. Ex. 1001, 6:55-58; Ex. 1015, 22.
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The data obtained from the TRO related tracking disclosed in the 791 patent
can be used to determine consumer behavior. Ex. 1001, 7:4-7; Ex. 1015, 23. For
example, the information may be used to determine how to increase consumer
likelihood to engage with a website by understanding, for example, actual
conversion to usage, time spent on a website or particular webpage, CTR (Click
Through Rate) to a TRO related environment, e.g., a website associated with a
TRO provider, number of page views, etc. Ex. 1001, 7:8-12; Ex. 1015, 23.
Further, it may be determined how one or more TROs (such as those illustrated in
FIG. 1) impact current and future consumer behavior from point of entry of a
consumer in an on-line environment. Ex. 1001, 7:13-16; Ex. 1015, 23. The
791 patent further discloses that the impact or effect of various parameters of the
TROs are determined: a TRO impact report may be generated to indicate impact
and efficacy of one or more TROs offered in the on-line environment and/or
parameters associated with such TROs, e.g., placement of TRO graphic, type of
TRO graphic, cost of TRO, frequency of placement, duration of TRO, etc. Ex.
1001, 11:23-28; Ex. 1015, 23.
However, the alleged novelty of the 791 patent of measuring consumer-to-
customer conversion and tracking consumer behavior continuously throughout
surfing, through conversion and past completion of a purchase on-line was well
known before the priority date of the 791 patent. Ex. 1015, 24. First, as
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acknowledged in the 791 patent, and consistent with the prior art discussed below,
the concept of determining consumer behavior using a clickstream during surfing
and a conversion/sale was well known. Ex. 1001, 4:11-21; Ex. 1015, 24.
Further, the concept of tracking consumer behavior past completion of the
purchase and using a transaction performance guarantee for on-line transactions is
disclosed in buySAFEs own 019 patent and other prior art discussed below. Ex.
1015, 24. The prior art discussed below also discloses tying together pre- and
post- transaction activity to determine consumer behavior. Ex. 1015, 25. For
example, Samson (Ex. 1012) discloses incentives that are offered to facilitate a
sale, and the tracking of the effects of the incentives when an incentive is
accepted/redeemed in conjunction with a sales transaction. Ex. 1015, 25.
Therefore, as explained in detail below and in the corresponding declaration
of Dr. Edward J. Cherian (Ex. 1015), the claims of the 791 patent would not have
been considered new or non-obvious to a person of ordinary skill in the art at the
time of filing.7
7All references to a person of ordinary skill in the art (POSA) refer to the
knowledge or understanding of a person of ordinary skill in the art as of November
2, 2007 (the earliest priority date of the 791 patent). A POSA would have at least
a bachelor degree in electrical engineering, systems engineering, computer
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B. SUMMARY OF THE PROSECUTION HISTORY OF THE 791PATENT
The non-provisional application (U.S. Application No. 12/263,778) that
resulted in the 791 patent was filed on November 3, 2008 and claims priority to
U.S. Provisional Application No. 60/985,001 (filed November 2, 2007).
In response to the first Office Action dated August 23, 2011, rejecting all
pending claims based on a primary reference Oldham (Ex. 1013), the applicants
amended all claims and argued that [a]s indicated by the Examiner and his
supervisor, these amendments effectively distinguish the claimed invention from
the asserted prior art because the art fails to teach or suggest monitoring of
consumer following a sales transaction and analyzing that behavior to generate
consumer behavior data. Ex. 1007, November 4, 2011 Amendment, p. 6.
On March 1, 2012, a Final Office Action was issued, again rejecting all
pending claims in the application. Ex. 1007, March 1, 2012 Final Office Action.
In the March 1, 2012 Final Office Action, the Examiner combined prior art
reference Schroeder (Ex. 1014) with Oldham to reject the claims. Schroeder was
engineering, computer science, or a related field, and approximately two years of
work experience in the field of Internet technology and computer software for
modeling and managing business or financial activities and e-commerce. Ex.
1015, 14.
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cited, for the most part, for the disclosure of monitoring consumer behavior past
completion of a sales transaction. See, e.g., id., p. 7.
In response, the applicants conducted an Examiner interview on June 11,
2012. During the interview, the applicants argued that the prior art does not
disclose (1) monitoring of [a] consumer following a sales transaction and
analyzing that behavior to generate consumer behavior data"; and (2) the at least
one sales transaction related offering is the underwriting of one party's obligations
in a sales transaction." Ex. 1007, June 11, 2012 Applicant-Initiated Interview
Summary.
Further in response to the Final Office Action, on August 17, 2012 the
applicants filed a Request for Continued Examination (RCE) with an amendment
to all independent claims. The amendment added the limitation wherein the at
least one sales transaction involves determining whether it is acceptable to assume
some or all of a third partys obligation in the at least one sales transaction to all
pending independent claims. Ex. 1007, August 17, 2012 Amendment after Final,
pp. 2-5. New claims that included similar limitations and that resulted in issued
claims 24-27 were also added. Id., pp. 5-7. In the Remarks section, the
applicants stated that [b]y this amendment, the independent claims have been
focused to more specifically claim aspects of the invention as discussed during the
telephone interview. Id., p. 8.
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On May 30, 2013, the Examiner mailed a Notice of Allowance with an
Interview Summary stating: Examiner acknowledged the prior examinations of
other examiners and the additional claim limitation regarding the determination of
whether to accept third-party obligations associated with the claim amendments
and barring any further discovery in a search of the prior art, a Notice of
Allowance would issue. Ex. 1007, May 30, 2013 Notice of Allowance, p. 6. The
791 patent was ultimately issued on August 20, 2013.
While prosecuting the 791 patent, buySAFE was asserting U.S. Pat. No.
7,644,019 by Woda et al. (the 019 patent, Ex. 1010) against Google. The 019
patent discloses the identical limitations that caused the 791 patent to be allowed.
Ex. 1015, 31. For instance, during the claim construction phase of the litigation,
buySAFE argued that the 019 patent discloses [d]etermining that it is acceptable
to assume a risk on behalf of [the first party]). SeeEx. 1009, Plaintiff
buySAFEs Opening Claim Construction Brief, dated Aug. 10, 2012, p. 11.
Despite making this argument regarding the 019 patent, a mere one week later
during its prosecution of the 791 patent buySAFE amended its claims to require
nearly identical language (i.e., determining whether it is acceptable to assume
some or all of a third partys obligation in the at least one sales transaction) and
stated that the Examiners agreed that the prior art did not address the underwriting
as recited in some of the claims. Ex. 1007, August 17, 2012 Amendment after
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Final, pp. 2-5, 8. Unfortunately, buySAFE failed to submit both the 019 patent
and its claim construction arguments to those Examiners.
IV.
GROUNDS FOR STANDING
A. THE 791PATENT IS DIRECTED TO A COVERED BUSINESS METHOD
The Patent Trial and Appeal Board (PTAB) may institute a transitional
post-grant review proceeding for review of the validity of covered business method
patents. AIA 18(a)(1). A covered business method patent is a patent that
claims a method or corresponding apparatus for performing data processing or
other operations used in the practice, administration, or management of a financial
product or service, except that the term does not include patents for technological
inventions. AIA 18(d)(1) and 37 C.F.R. 42.301(a). As discussed below, the
791 patent has one or more claims that are directed to a covered business method.
Thus, the 791 patent is eligible for covered business method patent review.
1. THE 791PATENT CLAIMS METHODS USED IN THE
PRACTICE,ADMINISTRATION,OR MANAGEMENT OF FINANCIAL
PRODUCTS OR SERVICES
The claims of the 791 patent are directed to monitoring and analyzing
consumer sales data. Ex. 1001, 17:56 - 20:56. This falls within the definition of
financial products or services. To qualify as a covered business method patent, the
claims need not to have a literal recitation of the terms financial products or
services. Ex. 1002, p. 23. Instead, the term financial is an adjective that simply
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means relating to monetary matters. Ex. 1002, p. 23. Activity that is incidental
and complementary to a financial activity falls within the definition of AIA
18(d)(1). Ex. 1002, p. 23 (citing 77 Fed. Reg. 157 (August 14, 2012) 48734,
48736). If even a single claim of a patent, interpreted in light of the specification
of the patent and the knowledge of ordinary skill in the art, encompasses the
practice, administration, or management of a financial product or service, then the
patent satisfies the financial product or service requirement for a covered
business method patent. See,e.g., Ex. 1004, pp. 5-6; Ex. 1002, pp. 22-24; Ex.
1005, pp. 48735-36.
Claim 24 of the 791 patent is directed to a method for performing
systematic analysis of consumer behavior data to predict consumer demand. Ex.
1001, 20:1-3. In the claimed method, the at least one sales transaction includes a
transaction performance guaranty service for some or all of one partys obligations
in the at least one sales transaction. Ex. 1001, 20:21-24. In view of the 791 patent
specification, and as recited in claim 25, the transaction performance guaranty can
be a surety bond, a specialized bank guaranty, or a specialized insurance policy.
Ex. 1001, 15:36-39; Claim 25. Such products are clearly considered financial
products and services as contemplated by the AIA. See Ex. 1008, p. 6 (discussing
method claims directed to offering insurance as financial products or services).
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Moreover, the method of claim 24 includes monitoring behavior of at least
one consumer prior to, during, and subsequent to at least one sales transaction to
generate consumer behavior data, and analyzing the generated consumer behavior
data. Ex. 1001, 20:4-15. Thus, claim 24 requires data processing of consumer
sales data covering financial activity. In addition, the analysis is to determine the
efficacy of a plurality of parameters relating to one or more sales transaction
related offerings. Ex. 1001, 20:13-15. As discussed in the 791 patent
specification, the invention improves management and assessment of the efficacy
of delivery of Transaction Related Offering (TROs). Ex. 1001, 1:15-17. A TRO
refers to any product or service of perceived or actual value that is provided to a
customer in connection with a [sales] transaction. Ex. 1001, 4:36-39 (emphasis
added). Therefore, claim 24 covers subject matter that is financial in nature,
incidental to a financial activity or complementary to a financial activity. Ex.
1002, pp. 21-22.
Claim 1 of the 791 patent is also directed to a method for performing
systematic analysis of consumer behavior data to predict consumer demand. Ex.
1001, 17:56-58. In the claimed method, the at least one sales transaction involves
determining whether it is acceptable to assume some or all of a third partys
obligations in the at least one sales transaction. Ex. 1001, 18:8-11. In other words,
claim 1 relates to underwriting. As noted in the legislative history, practice,
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administration, and management is intended to cover any ancillary activities
related to a financial product or service, including, without limitation, marketing,
customer interfaces, Web site management and functionality, transmission or
management of data, servicing, underwriting, customer communications, and back
office operations - e.g., payment processing, stock clearing. Ex. 1003, S1365
(statement of Sen. Schumer) (emphasis added). Thus, even if the underwriting of
claim 1 could not be considered a financial product in and of itself, it is an
ancillary activity to a financial product or service. Accordingly, the claimed
assumption of third party obligations in a sale transaction clearly falls within the
scope contemplated by AIA 18(d)(1).
Moreover, the method of claim 1 includes monitoring behavior of at least
one consumer prior to, during, and subsequent to at least one sales transaction to
generate consumer behavior data, and analyzing the generated consumer behavior
data to determine efficacy of a plurality of parameters relating to one or more sales
transaction related offerings. Ex. 1001, 17:59-18:2. Thus, similar to claim 24,
claim 1 involves data processing of consumer sales data covering financial activity
and covers subject matter that is financial in nature, incidental to financial activity
or complementary to a financial activity.
Claim 1 therefore recites a method directed to data processing used in the
practice, administration, or management of a financial product or service, and thus
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falls within the definition of a covered business method. Claims 2-11, 23 and 26-
27 recite substantially similar limitations to those noted above with respect to
claim 1. See Ex. 1001, 18:12-45, 19:34-57, and 20:29-56. A POSA would
recognize that claims 1-11, 23, and 26-27, as well as the remaining claims, also
encompasses the practice, administration, or management of a financial product or
service. Ex. 1015, 34.
The patent classification further supports the assertion that the 791 patent
qualifies as a covered business method patent. The USPTO has recognized that
patents subject to covered business method patent review are anticipated to be
typically classifiable in Class 705. Ex. 1005, 48739. Based on the issued claims,
the 791 patent has been classified by the USPTO in USPC 705/7.11, which relates
to data processing for operations research or analysis with automated electrical
financial or business practice or management arrangement. See Ex. 1001 and Ex.
1006, 705-7. The 791 patent has also been classified in USPC 705/7.29, which is
a subclass of 705/7.11 and relates to market data gathering, market analysis or
market modeling. See Ex. 1001 and Ex. 1006, 705-12. Since the 791 patent has
not been classified in any other USPC class and in view of the discussion above
regarding the claims, the 791 patent clearly claims data processing or other
operations used in the practice, administration or management of a financial
product or service, as required under the statute.
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2. AT LEAST CLAIMS 1AND 24OF THE 791PATENT ARE NOT
DIRECTED TO A TECHNOLOGICAL INVENTION
One or more of the claims of the 791 patent are also not directed to a
technological invention. See AIA 18(d)(1). The PTAB rules provide the
following definition of technological invention:
(b) Technological invention. In determining whether a patent is
for a technological invention , the following will be considered on
a case-by-case basis: whether the claimed subject matter as a whole
recites a technological feature that is novel and unobvious over the
prior art; and solves a technical problem using a technical solution.
37 C.F.R. 42.301(b).
The presence of a single claim that is not directed to a technological invention is
sufficient to institute a CBM review. See Ex. 1002, p. 26.
The PTAB Office Trial Practice Guide provides guidance with respect to
claim content that would not render a patent a technological invention as follows:
(a) Mere recitation of known technologies, such as computer
hardware, communication or computer networks, software, memory,
computer readable storage medium, scanners, display devices, or
databases, or specialized machines, such as ATM or point of sale
device.(b) Reciting the use of known prior art technology to accomplish
a process or method, even if the process or method is novel and non-
obvious.
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(c) Combining prior art structures to achieve the normal,
expected or predictable result of that combination.
Ex. 1005, 48763-64.
Thus, a technological invention is one that has both (1) a novel, unobvious
technological feature and (2) a technical solution to a technical problem. In this
context, it is apparent that the 791 patent cannot qualify as a technological
innovation.
At least claims 1 and 24 of the 791 patent lack a novel and unobvious
technological feature. Those claims are each directed to a method of performing
systematic analysis of consumer behavior to predict consumer demand, wherein
consumer behavior is monitored and analyzed to determine efficacy of a sales
transaction related offering. Ex. 1001, 17:56-18:2, 19:34-47, 20:1-15; 20:29-43.
While the claims discuss monitoring by at least one server coupled to at least one
communication network and analyzing at at least one server coupled to the least
one communication network, these recitations merely define the context of the
method. See id. The alleged novelty of the 791 patent is in the performance of
the method, i.e., analyzing consumer behavior and determining efficacy of
parameters relating to a transaction related offering, and not in any particular
hardware or software employed.
Indeed, the claims do not require, nor have the inventors proposed, any
novel computer software or hardware to achieve the claimed methods. Ex. 1015,
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38. To the contrary, the specification of the 791 patent only discusses well known
examples of software and hardware that can be used to practice the claimed
methods. Ex. 1015, 38. For example, the patent describes the technology for
monitoring consumer behavior as including cookies, Macromedia Flash, Microsoft
Silverlight, or JavaFX, which are all known technologies. Ex. 1001, 8:4-49; Ex.
1015, 39. The patent also indicates that:
a plurality of appropriate tracking methods may be utilized to
measure consumer behavior and TRO-related activity including
tracking of consumer based on presentation of a graphic associated
with the TRO (also referred to as a TRO graphic) and seller
provided TRO related information.
Ex. 1001, 6:25-30; Ex. 1015, 40. Consequently, according to the 791
patent, no specific unconventional software, computer equipment, tools, or
processing capabilities are required in performing the claimed methods.
Ex. 1015, 41.
Moreover, the claims all make reference to known technologies, such as a
server and communication network, which cannot qualify the patent as a
technological invention. Ex. 1015, 38. As noted in the legislative history of the
AIA, a patent is not a technological invention because it combines known
technology in a new way to perform data processing operations. Ex. 1003,
S1364. Indeed, the mere recital of known prior art technology to effect a method,
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even if the method itself is novel and unobvious, is insufficient to render the patent
to be a technological invention. See Ex. 1004, pp. 7-8. A POSA would recognize
that subject matter claimed in the 791 patent does no more than combine known
technology to perform data processing operations. Ex. 1015, 42.
The claimed methods also do not solve a technical problem using a technical
solution. One problem addressed by the 791 patent of determining efficacy of
parameters related to a transaction related offering by monitoring consumer
behavior subsequent to a transaction is not a technical one. Rather, the
determination of efficacy of parameters related to a transaction related offering is a
business problem. Ex. 1015, 43. The 791 patent further emphasizes that it is the
monitoring of the consumer behavior with respect to the sales transaction that the
alleged invention seeks to address, not any particular deficiency in current
monitoring technologies. See e.g., Ex. 1001, 1:10-18, 3:50-4:33. Nor do the
claims offer any technical solution for this problem. Ex. 1015, 45. The claims
merely recite conventional servers and communication networks where the
monitoring and analysis occurs. Ex. 1015, 45. In addition, during prosecution,
the Examiner did not consider claim 1 to be allowable over the prior art until
buySAFE included the limitation of wherein the at least one sales transaction
involves determining whether it is acceptable to assume some or all of a third
partys obligations in the at least one sales transaction. Ex. 1007, August 17,
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2012 Amendment after Final, p. 2. Similar features were also recited in claims 12,
23 and 26. Ex. 1001, 18:66-19:2, 19:53-57, 20:49-53. Claim 24 recites a similar
feature of the at least one sales transaction includes a transaction performance
guaranty service for some or all of one partys obligations in the at least one sales
transaction. Ex. 1001, 20:21-24. Yet these features that supposedly distinguished
over the prior art of record are not technical solutions to technical problems.
Rather, these features merely recite determining or including a performance
guaranty service associated with a sales transaction, which may be performed by a
human intermediary. Accordingly, the claims of the 791 patent fail to provide a
technical solution to a technical problem. Ex. 1015, 43.
For at least the foregoing reasons, at least claims 1, 12, 23, 24 and 26 of the
791 patent are not directed to a technological invention.
B.
GOOGLE IS ELIGIBLE TO FILE THIS PETITION
The 791 patent has been asserted against Google in buySAFE, Inc. v.
Google Inc., No. 3:13-cv-00781 (E.D. Va.). SeeEx. 1008.
Google certifies that estoppel does not prohibit review on the grounds
identified in this petition. Further, Google has not been a party to any other post-
grant review of the challenged claims. Google is thus eligible under 37 C.F.R.
42.302 to file this petition.
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In addition, a petition for post grant review of the 791 patent is not available
because the 791 patent is not subject to the first inventor-to-file provisions, so the
filing of this petition is not precluded.
V. STATEMENT OF RELIEF REQUESTED
Petitioner requests cancellation of claims 1-27 (the Challenged Claims) of
the 791 patent based on the following grounds of unpatentability:
Ground Claims Description
1 1-27 Invalid under 35 U.S.C. 103 as being obvious
based on Samson in view of Woda
2 1-27 Invalid under 35 U.S.C. 103 as being obvious
based on Oldham in view of Schroeder and Woda
VI.
IDENTIFICATIONOFPRIORARTRELIEDUPON
Exhibit 1011 U.S. Patent Publication No. 2004/0210527 (Woda)
Exhibit 1012 U.S. Patent No. 7,228,287 (Samson)
Exhibit 1013 U.S. Patent Publication No. 2008/0013887 (Oldham)
Exhibit 1014 U.S. Patent Publication No. 2003/0130883 (Schroeder)
VII. CLAIM CONSTRUCTION
In covered business method reviews, claim terms are interpreted under the
broadest reasonable construction in light of the specification of the patent in
which it appears standard. 37 C.F.R. 42.300(b). In compliance with 37 C.F.R.
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42.304(b)(3) and pursuant to the USPTOs final Office Practice Guide, a party
may provide a simple statement that the claims terms are to be given their
broadest reasonable interpretation, as understood by one of ordinary skill in the art
and constituent with the disclosure. 77 FR 48764, Aug. 14, 2012, effective Sept.
16, 2012.
Any proposed constructions in this Petition are not binding on Google in
litigation or in other forums that apply different standards of claim construction
than the broadest reasonable construction standard applied by the PTAB in covered
business method review proceedings. Also, while Google believes these are all the
terms requiring construction, Google reserves the right to request that additional
terms be construed, for example, in response to arguments by buySAFE.
Petitioner hereby provides the simple statement that the claims terms are to
be given their broadest reasonable interpretation, as understood by one of ordinary
skill in the art and constituent with the disclosure. To supplement the simple
statement, the broadest reasonable constructions for the following claim terms of
the 791 patent are provided below and are incorporated into the patentability
challenges raised herein:
Determine efficacy of a plurality of parameters relating to one or more
sales transaction related offerings: Under the broadest reasonable
interpretation, this term should mean determine the impact on consumer behavior
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of two or more characteristics of one or more sales transaction related offerings.
Ex. 1001, 11:23-28; 13:58-62; Ex. 1015, 50.
Sales transaction related offering: Under the broadest reasonable
interpretation, this term should mean any product or service of perceived or actual
value that is provided to a consumer in connection with a sales transaction for at
least the purpose of motivating the consumer to purchase products or services. Ex.
1001, 4:35-43; Ex. 1015, 51.
Transaction performance guaranty: Under the broadest reasonable
interpretation, this term should meanpromise to assume one or more obligations of
a party to a sales transaction. Ex. 1001, 4:42-46, 20:22-24; Ex. 1007, August 17,
2012 Amendment after Final; Ex. 1015, 52.
Shared object: Under the broadest reasonable interpretation, this term
should mean the same as cookie. Ex. 1001, 7:50-52 (A Flash shared object
(also referred to merely as a shared object or local shared-object, is essentially a
Flash implemented cookie.); Ex. 1015, 53.
VIII.FULL STATEMENT OF THE REASONS FOR THE RELIEF REQUESTED
A.
GROUND 1: CLAIMS 1-27OF THE 791PATENT ARE UNPATENTABLE
UNDER 35U.S.C.103BASED ON SAMSON IN VIEW OF WODA
Samson in view of Woda, a printed publication of the application for
buySAFE's 019 patent, discloses each and every claim element of claims 1-27 of
the 791 patent. Ex. 1015, 54.
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1. OVERVIEW OF SAMSON (EX.1012)
U.S. Patent No. 7,228,287 to Samson et al. (Samson) was filed on
November 13, 2000 and issued on June 5, 2007. Samson is available as prior art at
least under 35 U.S.C. 102(a). Samson was not cited during prosecution of the
791 patent.
Samson discloses that an incentive system 20 is incorporated to an overall
product sales system with a data provider system 10 and a product supplier system
30. Ex. 1012, 3:28-30; Fig. 2; Ex. 1015, 56. As a consumer bids on items
through the Internet, the consumer's browsing behavior 3, bidding behavior 4,
and other data 5 is recorded and sent to system 20. Ex. 1012, 3:56-4:9; Fig. 2; Ex.
1015, 56. System 20 records this received data for all bidders, including
browsing behavior 11, bidding and behavior values 12, personal computer
information 13, such as an Internet service provider and modem speed, and
transaction history 14. Ex. 1012, 4:19-24; Fig. 2; Ex. 1015, 57. The
information received by system 20 in connection with all bidders is used to create
a consumer profile 16. Ex. 1012, 4:44-45; Fig. 2; Ex. 1015, 57.
Samson discloses that consumer profile 16 includes the behavior of bidders
priortoand duringsales transactions: the browsing behavior 11 has click
stream information, which includes other components of the auction site that were
visited by the consumer, number of pages visited, time spent on each page during
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each visit per each auction, number of auctions visited/participated, and frequency
of revisiting auctions. Ex. 1012, 4:24-30; Fig. 2; Ex. 1015, 58. Samson
discloses that consumer profile 16 further includes the behavior of bidders during
and subsequentto sales transactions: the bidding and behavior values 12
includes bidding history, start bid, bid frequency, bid increment, final bid, winning
bid, target product, coupon redemption rate . . . whether the consumer's bid was a
successful bid, which is the winning bid, or an unsuccessful bid. Ex. 1012, 4:30-
40; Fig. 2; Ex. 1015, 59. For example, a POSA would understand that a coupon
would be redeemed after/subsequentthe sale. Ex. 1015, 60.
Samson discloses that system 20 will generate incentives 24 using a
learning model. Ex. 1012, 6:43-44; Ex. 1015, 61. The learning model
calculates the incentives based on the information in the consumer profile,
classification, product consideration set, seller's inventory position 36, and
incentive options 37. Ex. 1012, 6:44-47; Ex. 1015, 61. The incentives may be
in the form of a coupon, discount, rebate, additional product, reward, or any other
type of offer. Ex. 1012, 8:50-53; Ex. 1015, 61. The incentives may also include
free add-ons, such as more warranty or free or otherwise discounted additional
goods or services. Ex. 1012, 6:21-22; Ex. 1015, 61.
In connection with the incentives, Samson discloses that parameters
(referred to as incentive options 37), such as the amount of a discount to offer for
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a discount incentive, are determined. See, e.g., Ex. 1012, 6:8; Ex. 1015, 62.
When the consumer profile is classified 18, the unsold item from inventory is
chosen 17, and the seller's inventory position 36 and incentive options 37 are
determined, the system 20 will generate incentives 24 using a learning model.
Ex. 1012, 6:40-44; Ex. 1015, 62.
Examples of the incentive options disclosed in Samson include additional
percentage or specified amount discounts from manufacturers to help the seller or
retailer move the inventory, such as where the retailer gives an additional 5%
incentive on all Model 1234 goods or services moved out of inventory, and free
add-ons, such as more warranty or free or otherwise discounted additional goods or
services. Ex. 1012, 6:16-28; Ex. 1015, 63. Examples of inventive/incentive
options generated include: a coupon for $91 off a J brand product A with a MSRP
(manufacturer's suggested retail price) of $299.95 from Stereo Store, a coupon for
$71 off a P brand product A with a MSRP of $349.99 from Electronic Retailer, a
coupon for $46 off a S brand product A with a MSRP of $299.99 from Ed's
Manufacturer, and a coupon for a S brand product B with a MSRP of $249.99 from
Stereo Store. Ex. 1012, 8:57-63; Ex. 1015, 63. A POSA would understand that
in Samson, parameters/incentive options would correspond to each incentive
offered, such as an amount of discount for a discount incentive, the number of
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additional years for a more warranty incentive, the brand of the product subject
to an incentive, etc. Ex. 1015, 64.
Once generated, system 20 will then offer the incentive 25 to the
consumer. Ex. 1012, 8:39-40; Ex. 1015, 65. Samson discloses that the
incentive, and associated incentive option, is determined, generated and provided
for a specific sales transaction to a specific consumer: The incentive may be a
general incentive for any product or a specific incentive for a specific product. In
addition, the notification may contain one or more incentives offered at the same
time to the same consumer. Ex. 1012, 8:43-45; Ex. 1015, 65.
When the incentive is delivered to the consumer, the consumer has the
option of selecting the incentive 27. Ex. 1012, 9:3-4; Ex. 1015, 66. If the
incentive is redeemed, the behavior of the customer is then updated (i.e.,
subsequent or past completion to the sales transaction): if the consumer
chooses to select the incentive, specified by yes 29, the consumer profile will be
updated 50 with information that the incentive was redeemed and the redemption
will be processed 52. Ex. 1012, 9:12-15; Ex. 1015, 66. The redemption
information is then used to determine how accurate the learning model is
performing so that it can be adjusted for future incentives and therefore determine
the efficacy of the incentives. Ex. 1012, 9:15-17; Ex. 1015, 67. In the preferred
embodiment, the redemption rate is among the primary indicators monitored and
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updated in order to improve the accuracy of the attributes, of the data, and their
weightings in the learning model. Ex. 1012, 6:59-63; Ex. 1015, 67.
As with coupon redemptions, a POSA would understand that incentives such
as rebate, additional product, reward, or any other type of offer would also be
redeemed after/subsequentthe sale. Ex. 1015, 68. Samson further discloses
that the learning model of consumer behavior generates data after/subsequent to
sales transactions: The learning model is constantly monitored and updated to
improve accuracy. When the system 20 is turned on at Day 0, it has minimal
information on which to base incentive generation decisions. As time goes by and
redemption data is accumulated, statistics will be used in the learning model to
determine what information, or attributes, add to the ability to accurately produce
incentives and which attributes do not add value. Ex. 1012, 6:49-56 (emphasis
added); Ex. 1015, 69.
Samson discloses that the attributes of consumer behavior are analyzed to
determine the impact on the incentives: Over time, it is possible to more
accurately understand how important each attribute is in computing the proper
incentive. Ex. 1012, 6:57-59; Ex. 1015, 70. The attributes include redemption
rate, as well as intensity (how often the consumer bid, checked on the current bid
price, viewed the website in general), competitiveness (if the consumer responded
each and every time he or she was outbid), final bid-price (as a percentage or full-
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retail price of an item, where the higher the final bid, the less of an incentive a
consumer will receive), and zip code driven demographics (higher level annual
income zip-codes will receive less of a discount than lower annual income zip
codes). Ex. 1012, 7:10-18; Ex. 1015, 70. Therefore, a POSA would understand
that Samson discloses the impact of a plurality of attributes/parameters on the
incentives. Ex. 1015, 70.
Samson further discloses that there are many different incentive and award
programs to influence consumers to purchase on-line. Ex. 1012, 1:56-57; Ex.
1015, 71. As discussed, Samson discloses that one of the incentives may be
more warranty. Ex. 1012, 6:21-22; Ex. 1015, 78. Arguably, an additional
warranty may not be considered a disclosure of the limitations of assume some or
all of a third partys obligations, recited in claims 1-23 of the 791 patent, a
transaction performance guaranty, recited in claims 24 and 25 of the 791 patent,
or assume one or more obligations of a party that provides a product or a service,
recited in claims 26 and 27; Ex. 1015, 79. Regardless, Samson discloses that the
incentives may be any other type of offer. Ex. 1012, 8:50-53; Ex. 1015, 79.
2.
OVERVIEW OF WODA (EX.1011)
U.S. Patent Pub. No. 2004/0210527 to Woda et al. (Woda) (Ex. 1011) was
filed on April 21, 2003, was published on October 21, 2004, and issued as the 019
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patent, which is currently being asserted against Google. Woda is available as
prior art at least under 35 U.S.C. 102(b).
As discussed above, Woda and the 019 patent have some common
inventors (i.e., Woda and Grass), and have a common assignee (i.e., buySAFE)
with the 791 patent. However, neither Woda or the 019 patent was cited during
prosecution of the 791 patent, despite buySAFE's amendments adding language
based on the 019 patent to the claims of the 791 patent.
Woda discloses that Fig. 1 depicts a framework 100 in which a safe
transaction service provider provides a transaction performance guarantyfor a
transaction involving a party who obtains the safe transaction service through an
underwriting process, according to one embodiment of the inventions. Ex. 1011,
[0031] (emphasis added); Ex. 1015, 83. The transaction performance guaranty
service, which may be obtained for a fee, provides a separate performance
guaranty on behalf of its subscriber for each transaction involving the subscriber.
Ex. 1011, [0033]; Ex. 1015, 83.
Examples of the transaction performance guarantee disclosed in Woda
include a surety bond 220, a specialized bank guaranty 230, . . . , a specialized
insurance policy 240, or in a form of a safe transaction guaranty 250. Ex. 1011,
[0035]; Ex. 1015, 84. The safe transaction service provider 130 may provide its
own guaranty in the form of, for instance, the surety bond 220 and the safe
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transaction guaranty 250. Ex. 1011, [0035]; Ex. 1015, 84. The safe
transaction service provider 130 may also provide a performance guaranty in forms
supported by other institutions such as the specialized bank guaranty 230 supported
by a bank or the specialized insurance policy 240 (or surety bond) supported by an
insurance company. Ex. 1011, [0035]; Ex. 1015, 84.
Woda discloses a framework 600 in which the safe transaction service
provider 130 may interact with a marketspace provider 610 in order to effectively
facilitate a transaction performance guaranty service to parties involved in
transactions posted in a marketspace provided by the marketspace provider 610.
Ex. 1011, [0053]; Ex. 1015, 85. As indicated by the disclosed marketspace
providers, the transaction is an on-line transaction using a communication network:
Examples of such a marketspace provider may be eBay, uBid, Amazon Auctions,
or Yahoo Auctions. Ex. 1011, [0053]; Ex. 1015, 85.
Woda discloses an underwriting process to determine service subscribers:
the safe transaction service provider 130 determines service subscribers according
to their qualifications measured using different approaches. Ex. 1011, [0047];
Ex. 1015, 86. In framework 100, the safe transaction service provider 130
underwrites each applicant requesting different services. Ex. 1011, [0047]; Ex.
1015, 86. The underwriter 140 may communicate with different entities to
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gather relevant information in order to make a qualification decision about each
service applicant. Ex. 1011, [0048]; Ex. 1015, 86.
Therefore, a POSA would understand that Woda discloses determining
whether it is acceptable to assume some or all of a third party's obligations in the at
least one sales transaction (as recited in independent claims 1, 12 and 23 of the
791 patent), wherein the at least one sales transaction includes a transaction
performance guaranty service for some or all of one party's obligations in the at
least one sales transaction (as recited in independent claim 24 of the 791 patent),
and determines whether it is acceptable to assume one or more obligations of a
party that provides a product or a service associated with the one or more sales
transaction related offerings (as recited in independent claim 26 of the 791
patent). Ex. 1015, 87.
During the litigation involving Woda/the 019 patent, buySAFE has agreed
with the above description of the disclosure of Woda.8 Specifically, buySAFE
argued that the 019 patent discloses [d]etermining that it is acceptable to assume
a risk on behalf of [the first party]). Ex. 1009, p. 11.
3.
APOSA WOULD BE MOTIVATED TO COMBINE SAMSON AND
WODA
8buySAFE, Inc. v. Google Inc., Civil Action No. 1:11-cv-01282-LPS (D. Del.).
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A POSA would combine Samson and Woda based on multiple rationale
described inKSR International Co. v. Teleflex Inc.,550 U.S. 398, 82 USPQ2d
1385 (2007) ("KSRrationale"). Ex. 1015, 90. Samson and Woda are analogous
art as they are both directed to conducting transactions over the Internet between
customers and sellers, and are both directed to providing incentives to customers
during the purchasing process. Further, both Samson and Woda are directed to
transactions using online auctions. See, e.g.,Ex. 1012, 3:56-4:9; 8:39-40; Ex.
1011, [0033], [0053]; Ex. 1015, 91. Samson discloses a list of possible
incentives that can be used, and discloses that any other type of offer can be used
as an incentive. Ex. 1012, 8:50-53; Ex. 1015, 92. A POSA, when implementing
a system described in Samson, and having knowledge of Woda, would be
motivated to include the additional incentive disclosed in Woda in order to include
more incentives and facilitate more transactions. Ex. 1015, 92. The addition of
the transaction performance guaranty of Woda into Samson, which already
discloses a warranty, would operate in a predictable manner to facilitate the
transactions and can be combined using known methods. Ex. 1015, 93. A POSA
would further consider the substitution of the transaction performance guaranty
of Woda as one of the incentives of Samson as a simple substitution of one known
element for another to obtain predictable results. Ex. 1015, 94.
4.
CLAIM CHARTS FOR SAMSON +WODA
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Further details of how Samson in view of Woda discloses each and every
claim element of claims 1-27 of the 791 patent are shown in the charts below.
791 Patent Claims Samson + Woda1. [a] A method forperforming systematicanalysis of consumer
behavior data to predictconsumer demand viaan on-line environment,the method comprising:
Samson discloses a system 20 that creates a customer profile16 and a learning model for creating incentives used toinduce purchasing of products by consumers (i.e., analysisof consumer behavior data to predict demand) (Ex. 1015,
56-57):
As shown in FIG. 1, the method, or incentive system20, includes creating a consumer profile 16 for at leastone consumer, choosing at least one unsold item, or
product to offer, 17 from an inventory based on theinformation in the consumer profile, generating, orcalculating, an incentive for the chosen unsold item 24
based on the consumer profile, and offering thechosen unsold item and the incentive to the consumer25 to induce purchasing of the chosen unsolditem. Ex. 1012, 3:17-25; Fig. 1 (emphasis added).The learning model will also determine the productsthat meet the criteria of both the product consideration
set and the seller's inventory position 36. The learningmodel calculates incentives for products determinedto be part of an individual consumer's productconsideration set. The product consideration set may
be constrained in two ways. First, the set may beconstrained by the available inventory from theseller's or retailer's shelves. Second, the set may bechosen based on the behavior of the individualconsumers. Ex. 1012, 7:60-8:1.
[b] monitoring behaviorof at least one consumerin the on-lineenvironment by at leastone server coupled to atleast onecommunication network
Samson discloses that system 20 monitors the behavior of theconsumers for an online auction prior to and during a salestransaction (Ex. 1015, 58):
In the preferred embodiment, as the consumer exploresthe site and places bids on auction items, the auctionhouse records the consumer's browsing behavior 3,
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included in the on-lineenvironment prior to,during and subsequentto at least one sales
transaction performedin the on-lineenvironment to generateconsumer behaviordata; and
bidding behavior 4, and other data 5. The browsingbehavior 3 may include the auction items the consumerhas considered and the bidding behavior 4 may includestart bids and bid frequency. The other data 5 may
include information about the consumer's personalcomputer, such as Internet service provider and modemspeed. The recorded information is stored in a data file 6
by the auction house. The auction house continuouslymonitors all bidders and records their behavior, while theauction is still open or there is still time remaining 7,specified by yes 7a. When there is no time remaining 7,specified by no 8a, the auction is closed 8 and the datafile 6 is then sent 9 to the incentive system 20. Ex.1012, 3:56 4:9; Fig. 2.
The sent data received by the incentive system 20,preferably, has price-sensitivity indicators for all bidders,including browsing behavior 11, bidding and behaviorvalues 12, personal computer information 13, such as anInternet service provider and modem speed, andtransaction history 14. Preferably, the browsing behavior11 has click stream information, which includes othercomponents of the auction site that were visited by the
consumer, number of pages visited, time spent on eachpage during each visit per each auction, number ofauctions visited/participated, and frequency of revisitingauctions. Ex. 1012, 4:19-30; Fig. 2.
Samson discloses updating the consumer profile (i.e.,consumer behavior) afteran incentive is redeemed (i.e.,subsequent to at least one sales transaction). Some orall of the incentives disclosed in Samson are redeemedsubsequent to sales transactions (Ex. 1015, 59, 60):
If, however, the consumer chooses to select theincentive, specified by yes 29, the consumer profilewill be updated 50 with information that the incentivewas redeemed and the redemption will be processed52. The redemption information is then used todetermine how accurate the learning model is
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performing. For example, if approximately 50% of theconsumers in a classification expected to act on anincentive do not, the learning model may then split theclassification into two other and/or new
classifications. Ex. 1012, 9:12-20; Fig. 2.
The incentive options 37 include additionalpercentage or specified amount discounts frommanufacturers to help the seller or retailer move theinventory, such as where the retailer gives anadditional 5% incentive on all Model 1234 goods orservices moved out of inventory, and free add-ons,such as more warranty or free or otherwise discountedadditional goods or services. Ex. 1012, 6:16-22; Fig.
2.
The incentives may also be in the form of a coupon,discount, rebate, additional product, reward, or anyother type of offer. Ex. 1012, 8:50-53.
Samson further discloses that the learning model ofconsumer behavior generates data subsequent to salestransactions (Ex. 1015, 61, 67, 68):
The learning model is constantly monitored andupdated to improve accuracy. When the system 20 isturned on at Day 0, it has minimal information onwhich to base incentive generation decisions. As timegoes by and redemption data is accumulated,statistics will be used in the learning model todetermine what information, or attributes, add to theability to accurately produce incentives and whichattributes do not add value. Ex. 1012, 6:49-56
(emphasis added).
In the preferred embodiment, the redemption rate isamong the primary indicators monitored and updatedin order to improve the accuracy of the attributes, ofthe data, and their weightings in the learning model.Ex. 1012, 6:59-63.
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[c] analyzing thegenerated consumer
behavior data at at leastone server coupled to
the at least onecommunication networkincluded in the on-lineenvironment todetermine efficacy of a
plurality of parametersrelating to one or moresales transaction relatedofferings,
Samson discloses that incentives such as a coupon,discount, or more warranty are offered as part of thesales transaction (i.e., sales transaction relatedofferings) (Ex. 1015, 61):
The incentive may be a general incentive for anyproduct or a specific incentive for a specific product.In addition, the notification may contain one or moreincentives offered at the same time to the sameconsumer. These incentives may be based on a retail
price of the auction item or an unsuccessful bid,which is less than a lowest successful bid in theauction. The incentives may also be in the form of acoupon, discount, rebate, additional product, reward,
or any other type of offer. Ex. 1012, 8:50-52; Fig. 2.
Incentives include free add-ons, such as morewarranty or free or otherwise discounted additionalgoods or services. Ex. 1012, 6:16-22.
In connection with the incentives, Samson discloses thatincentive options 37 (i.e., a plurality of parameters)are determined, such as the amount of a discount to offer
for a discount incentive (Ex. 1015, 62, 63, 64):
The incentive options 37 include additionalpercentage or specified amount discounts frommanufacturers to help the seller or retailer move theinventory, such as where the retailer gives anadditional 5% incentive on all Model 1234 goods orservices moved out of inventory, and free add-ons,such as more warranty or free or otherwise discountedadditional goods or services. Ex. 1012, 6:16-28.
When the consumer profile is classified 18, theunsold item from inventory is chosen 17, and theseller's inventory position 36 and incentive options 37are determined, the system 20 will generate incentives24 using a learning model. Ex. 1012, 6:40-44.
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Samson discloses that attributes within the consumerprofile (i.e., consumer behavior data) are analyzed todetermine the impact (i.e., efficacy) of incentives andincentive options (i.e., plurality of parameters related
to sales transaction related offerings), includingredemption rates, intensity, competitiveness, etc. (Ex.1015, 70):
The learning model is constantly monitored andupdated to improve accuracy. When the system 20 isturned on at Day 0, it has minimal information onwhich to base incentive generation decisions. As timegoes by and redemption data is accumulated, statisticswill be used in the learning model to determine what
information, or attributes, add to the ability toaccurately produce incentives and which attributes donot add value. . . Over time, it is possible to moreaccurately understand how important eachattribute is in computing the proper incentive. Inthe preferred embodiment, the redemption rate isamong the primary indicators monitored and updatedin order to improve the accuracy of the attributes, ofthe data, and their weightings in the learning model.
. . . .
Preferred attributes includeintensity (how often theconsumer bid, checked on the current bid price,viewed the website in general), competitiveness (if theconsumer responded each and every time he or shewas outbid), final bid-price (as a percentage or full-retail price of an item, where the higher the final bid,the less of an incentive a consumer will receive), andzip code driven demographics (higher level annual
income zip-codes will receive less of a discount thanlower annual income zip codes). Ex. 1012, 6:49-7:18 (emphasis added).
Samson discloses that redemption rates (i.e., consumerbehavior data) are analyzed to determine the accuracy(i.e., efficacy) of the learning model (Ex. 1015, 67,
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74):
The redemption information is then used todetermine how accurate the learning model is
performing. For example, if approximately 50% ofthe consumers in a classification expected to act on anincentive do not, the learning model may then split theclassification into two other and/or newclassifications. Ex. 1012, 9:15-20 (emphasis added).
[d] wherein themonitoring consumer
behavior is performedpast completion of theat least one sales
transaction performedin the on-lineenvironment and theanalyzing is performed
based on consumerbehavior data generatedbased on monitoredbehavior occurring afterthe at least one sales
transaction,
Samson discloses updating the consumer profile (i.e.,consumer behavior) afterincentives, such as coupons, areredeemed (i.e., after the at least one sales transaction)(Ex. 1015, 59, 60, 65, 67-70):
Preferably, the bidding and behavior values 12includes bidding history, start bid, bid frequency, bidincrement, final bid, winning bid, target product,coupon redemption rate, and keywords used inauction searches. Ex. 1012, 4:30-34.
If, however, the consumer chooses to select theincentive, specified by yes 29, the consumer profilewill be updated 50 with information that the incentive
was redeemed and the redemption will be processed52. The redemption information is then used todetermine how accurate the learning model is
performing. For example, if approximately 50% of theconsumers in a classification expected to act on anincentive do not, the learning model may then split theclassification into two other and/or newclassifications. Ex. 1012, 9:12-20.
In the preferred embodiment, the redemption rate is
among the primary indicators monitored and updatedin order to improve the accuracy of the attributes, ofthe data, and their weightings in the learning model.Ex. 1012, 6:59-63.
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[e] wherein the at leastone sales transactioninvolves determiningwhether it is acceptable
to assume some or all ofa third party'sobligations in the atleast one salestransaction.
Samson discloses that the incentive is determined andgenerated by the seller and provided for a specific salestransaction to a specific consumer (Ex. 1015, 65):
When an incentive is generated 24, or created, thesystem 20 will then offer the incentive 25 to theconsumer. In the preferred embodiment, an incentivenotification is created and sent to the consumer. Theincentive notification may be in the form of e-mail orany other type of delivery. The incentive may be ageneral incentive for any product or a specificincentive for a specific product. In addition, thenotification may contain one or more incentivesoffered at the same time to the same consumer. Ex.
1012, 8:38-47.
Samson discloses that the incentive can include morewarranty. Ex. 1012, 6:21-22 (i.e., assume anobligation)
A POSA would recognize that more warranty is anincentive offered to the consumer that involves assuminga third partys obligation. Ex. 1015, 78.
Woda discloses a transaction performance guarantyused to underwrite a sales transaction (i.e., assume someor all of a third party's obligations, as understood by aPOSA and as argued by buySAFE during the litigationclaim construction phase of the 019 patent) as a type ofincentive that can be included by system 20 of Samson(Ex. 1015, 83):
FIG. 1 depicts a framework 100 in which a safe
transaction service provider provides a transactionperformance guaranty for a transaction involving aparty who obtains the safe transaction service throughan underwriting process, according to oneembodiment of the inventions. Ex. 1011, [0031].
The underwriter 140 may communicate with
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different entities to gather relevant information inorder to make a qualification decision about eachservice applicant. It may gather credit informationfrom different credit agencies 150. It may also collect,
either internally or externally, ratings of a merchantfrom various rating information sources 160. Ex.1011, [0048].
791 Patent Claims Samson + Woda
2. The method of claim1, wherein themonitoring consumer
behavior is performedcontinuously from the at
least one consumer'sfirst exposure to the on-line environment.
Samson discloses the continuous monitoring of biddersbehavior from the initial exposure (Ex. 1015, 72):
In the preferred embodiment, as the consumerexplores the site and places bids on auction items, the
auction house records the consumer's browsingbehavior 3, bidding behavior 4, and other data 5. Thebrowsing behavior 3 may include the auction itemsthe consumer has considered and the bidding behavior4 may include start bids and bid frequency. . . Theauction house continuouslymonitors all bidders andrecords their behavior . . . Ex. 1012, 3:61 4:6; Fig.2.
791 Patent Claims Samson + Woda
3. The method of claim1, wherein theconsumer behavior dataindicates details
pertaining to aconversion of the atleast one consumer to acustomer in the on-lineenvironment.
Samson discloses the monitored behavior data includesdetails of successful bids (i.e., a conversion) (Ex. 1015,
73):
Preferably, the bidding and behavior values 12 alsocontain whether the consumer's bid was a successful
bid, which is the winning bid, or an unsuccessful bid.Ex. 1012, 4:38-40.
791 Patent Claims Samson + Woda
4. The method of claim3, wherein theconsumer behavior dataindicates whether the atleast one consumer
Samson discloses updating the consumer profile (i.e.,consumer behavior data) regarding whether incentivesare redeemed (Ex. 1015, 74):
If, however, the consumer chooses to select the
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accepted one or moretransaction relatedofferings in connectionwith the at least one
sales transaction.
incentive, specified by yes 29, the consumer profilewill be updated 50 with information that theincentive was redeemedand the redemption will be
processed 52. The redemption information is then
used to determine how accurate the learning model isperforming. For example, if approximately 50% of theconsumers in a classification expected to act on anincentive do not, the learning model may then split theclassification into two other and/or newclassifications. Ex. 1012, 9:12-20 (emphasis added).
791 Patent Claims Samson + Woda
5. The method of claim1, wherein the
consumer behavior dataindicates whether the atleast one consumeraccepted one or moresales transaction relatedofferings.
Samson discloses updating the consumer profile (i.e.,consumer behavior data) regarding whether incentives
are redeemed (Ex. 1015, 74):
If, however, the consumer chooses to select theincentive, specified by yes 29, the consumer profilewill be updated 50 with information that theincentive was redeemedand the redemption will be
processed 52. The redemption information is thenused to determine how accurate the learning model is
performing. For example, if approximately 50% of theconsumers in a classification expected to act on an
incentive do not, the learning model may then split theclassification into two other and/or newclassifications. Ex. 1012, 9:12-20; Fig. 2 (emphasisadded).
791 Patent Claims Samson + Woda
6. The method of claim1, further comprising:identifying consumer
behavior data from atleast two differentsources to identifyconsumer behavior datathat pertains to a sameconsumer; andcorrelating the
Samson discloses identifying consumer behavior datafrom at least two different sources (e.g., browsing
behavior 11, personal computer information 13, couponredemption and demographics) and correlating the data toform consumer profile 16 (Ex. 1015, 75):
Preferably, the browsing behavior 11 has clickstream information, which includes other componentsof the auction site that were visited by the consumer,number of pages visited, time spent on each page
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consumer behavior datapertaining to the sameconsumer.
during each visit per each auction, number of auctionsvisited/participated, and frequency of revisitingauctions. Preferably, the bidding and behavior values12 include bidding history target product, coupon
redemption rates . . . . The personal computerinformation 13 includes Internet service provider,referring URL link, web browser make and model,operating system, bookmarks, zip code, accesslocation (work or home) and credit card type.Demographics, psychographics, market conditions,and any other relevant information from otherdatabases 15 or any other relevant informationidentified through contact with the consumer may also
be recorded. From this information 11, 12, 13, 14 and
15, the system 20 creates a consumer profile 16. Ex.1012, 4:24-45; Fig. 2.
791 Patent Claims Samson + Woda
7. The method of claim6, further comprisingdeleting redundant datain the consumer
behavior data pertainingto the same consumer.
Samson discloses storing consumer behavior data in adatabase. See e.g.,Ex. 1012, 4:46-59; Fig. 2; Ex. 1015,
76.
A POSA would recognize that a database would includea database management system that deletes redundant
data. Ex. 1015, 76.
791 Patent Claims Samson + Woda
8. The method of claim6, wherein the at leasttwo different sourcesinclude seller reporteddata and a consumer
behavior trackingmechanism.
Seeclaim 6 above. At least two different sourcesinclude click stream information (i.e., a consumer
behavior tracking mechanism) and whether incentivesare redeemed (i.e., seller reported data) Ex. 1015, 77.
A POSA would recognize that browsing behavior 11 andpersonal computer information 13 are collected byknown tracking mechanisms at the time of the filing ofSamson, such as cookies and shared objects. Ex. 1015, 77.
791 Patent Claims Samson + Woda
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9. The method of claim8, wherein theconsumer behaviortracking mechanism is a
shared object.
The two sources disclosed by Samson, described abovefor claim 6, include click stream information (i.e., acookie or a consumer behavior tracking mechanismthat is a shared object).
A POSA would recognized that browsing behavior 11and personal computer information 13 are collected byknown tracking mechanisms at the time of the filing ofSamson, such as cookies and shared objects. Ex. 1015, 77.
791 Patent Claims Samson + Woda
10. The method ofclaim 8, wherein the
consumer behaviortracking mechanism is acookie.
Seeclaim 6 and 8 above.
A POSA would recognized that browsing behavior 11and personal computer information 13 are collected byknown tracking mechanisms at the time of the filing ofSamson, such as cookies and shared objects. Ex. 1015, 77.
791 Patent Claims Samson + Woda
11. The method ofclaim 8, wherein the atleast two different
sources include codeprovided in the on-lineenvironment providedin connection with theat least one salestransaction relatedoffering, the code beingexecuted to monitor andrecord consumer
behavior.
Seeclaim 6 above.
A POSA would recognize that browsing behavior 11 and
personal computer information 13 are collected byknown tracking mechanisms that include code providedin the on-line environment. Ex. 1015, 77.
791 Patent Claims Samson + Woda
12. A method forreorganizing of memoryspace, by deallocatingredundant, obsolete, orunreferenced database
This preamble should be given no patentable weight.
Further, Samson discloses that the customer profile isstored in a database. A POSA would understand that aknown database would include a database management
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and file information, inorder to increase theefficiency of memoryspace usage, the method
comprising:
system and would be organized as recited in claim 12,including deallocating redundant data (Ex. 1015, 76):
In creating an updated consumer profile 16b, which
includes a classification, the initial consumer profile iscompared with existing consumer classifications 19,or index of consumer behavior indicators, in adatabase of the system 20. Ex. 1012, 4:52-55; Fig. 2.
analyzing, at at leastone server coupled to atleast onecommunication networkincluded in an on-lineenvironment, consumer
behavior data generatedprior to, during andsubsequent to at leastone sales transaction
performed in the on-lineenvironment;
SeeClaim 1[b] above.
identifying consumerbehavior data from atleast two different
sources to identifyconsumer behavior datathat pertains to a sameconsumer; andcorrelating theconsumer behavior data
pertaining to the sameconsumer for use in atleast one salestransaction related
offering,
SeeClaim 6 above.
wherein the consumerbehavior data isgenerated based on
behavior of the sameconsumer past
SeeClaim 1[d] above.
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completion of the atleast one salestransaction performedin the on-line
environment and theanalyzing is performedbased on consumerbehavior data generatedbased on monitoredbehavior occurring afterthe at least one salestransaction,
wherein the at least onesales transaction
involves determiningwhether it is acceptableto assume some or all ofa third party'sobligations in the atleast one salestransaction.
SeeClaim 1[e] above.
791 Patent Claims Samson + Woda
13. The method of claim 12, further comprisingdeleting redundant data in the consumer behaviordata pertaining to the same consumer.
SeeClaim 7 above
791 Patent Claims Samson + Woda
14. The method of claim 12, wherein the at leasttwo different sources include seller reported dataand a consumer behavior tracking mechanism.
SeeClaim 8 above.
791 Patent Claims Samson + Woda
15. The method of claim 14, wherein theconsumer behavior tracking mechanism is ashared object.
SeeClaim 9 above.
791 Patent Claims Samson + Woda
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16. The method of claim 14, wherein theconsumer behavior tracking mechanism is acookie.
SeeClaim 10 above.
791 Patent Claims Samson + Woda
17. The method of claim 14, wherein the at leasttwo different sources includes code provided inthe on-line environment provided in connectionwith the at least one sales transaction relatedoffering, the code being executed to monitor andrecord consumer behavior.
SeeClaim 11 above.
791 Patent Claims Samson + Woda
18. The method of claim 12, wherein the
consumer behavior is generated continuouslyfrom the at least one consumer's first exposure tothe on-line environment.
SeeClaim 2 above.
791 Patent Claims Samson + Woda
19. The method ofclaim 12, wherein theconsumer behavior isgenerated continuously
past completion of the
at least one salestransaction performedin the on-lineenvironment.
Samson discloses that the learning model of consumerbehavior continuously generates data after redemptiondata is accumulated (i.e., past completion) of salestransactions (Ex. 1015, 69):
The learning model is constantly monitored andupdated to improve accuracy. When the system 20 isturned on at Day 0, it has minimal information onwhich to base incentive generation decisions. As timegoes by and redemption data is accumulated,statistics will be used in the learning model todetermine what information, or attributes, add to theability to accurately produce incentives and whichattributes do not add value. Ex. 1012, 6:49-56(emphasis added).
791 Patent Claims Samson + Woda
20. The method of claim 12, wherein theconsumer behavior data indicates whether theconsumer accepted one or more sales transactionrelated offerings.
SeeClaim 5 above.
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791 Patent Claims Samson + Woda
21. The method of claim 12, wherein theconsumer behavior data indicates details
pertaining to a conversion of the at least one
consumer to a customer in the on-lineenvironment.
SeeClaim 3 above.
791 Patent Claims Samson + Woda
22. The method of claim 21, wherein theconsumer behavior data indicates whether theconsumer accepted one or more sales transactionrelated offerings in connection with the at leastone sales transaction.
SeeClaim 4 above.
791 Patent Claims Samson + Woda23. A method for performing systematic analysisof consumer behavior data to predict consumerdemand via an on-line environment, the methodcomprising:
SeeClaim 1[a] above.
monitoring behavior of at least one consumer inthe on-line environment by at least one servercoupled to at least one communication networkincluded in the on-line environment prior to,during and subsequent to at least one salestransaction performed in the on-line environmentto generate consumer behavior data; and
SeeClaim 1[b] above.
analyzing the generated consumer behavior dataat at least one server coupled to the at least onecommunication network included in the on-lineenvironment to determine efficacy of a pluralityof parameters relating to one or more salestransaction related offerings,
SeeClaim 1[c] above.
wherein the monitoring consumer behavior isperformed past completion of the at least onesales transaction performed in the on-lineenvironment and the analyzing is performed
based on consumer behavior data generated basedon monitored behavior occurring after the at leastone sales transaction,
SeeClaim 1[d] above.
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wherein the at least one sales transaction involvesdetermining whether it is acceptable to assumesome or all of a third party's obligations in the atleast one sales transaction.
SeeClaim 1[e] above.
791 Patent Claims Samson + Woda24. A method for
performing systematicanalysis of consumer
behavior data to predictconsumer demand viaan on-line environment,the method comprising:
SeeClaim 1[a] above.
monitoring behavior of
at least one consumer inthe on-line environment
by at least one servercoupled to at least onecommunication networkincluded in the on-lineenvironment prior to,during and subsequentto at least one salestransaction performedin the on-lineenvironment to generateconsumer behaviordata; and
SeeClaim 1[b] above.
analyzing the generatedconsumer behavior dataat at least one servercoupled to the at leastone communication
network included in theon-line environment todetermine efficacy of a
plurality of parametersrelating to one or moresales transaction relatedofferings,
SeeClaim 1[c] above.
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wherein the monitoringbehavior is performedpast completion of theat least one sales
transaction performedin the on-lineenvironment, and theanalyzing is performed
based on consumerbehavior data generatedbased on monitoredbehavior occurring afterthe at least one salestransaction,
SeeClaim 1[d] above.
wherein the at least onesales transactionincludes a transaction
performance guarantyservice for some or allof one party'sobligations in the atleast one salestransaction.
Samson discloses that the incentive is included for salestransactions (Ex. 1015, 65):
When an incentive is generated 24, or created, thesystem 20 will then offer the incentive 25 to theconsumer. In the preferred embodiment, an incentivenotification is created and sent to the consumer. Theincentive notification may be in the form of e-mail orany other type of delivery. The incentive may be a
general incentive for any product or a specificincentive for a specific pro
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