In Re GAMBLE

Case: 21-1848 Document: 23 Page: 1 Filed: 01/18/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

IN RE: OLIVER WENDEL GAMBLE,
Appellant
______________________

2021-1848
______________________

Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 14/541,132.
______________________

Decided: January 18, 2022
______________________

OLIVER WENDEL GAMBLE, New York, NY, pro se.

BENJAMIN T. HICKMAN, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
appellee Andrew Hirshfeld. Also represented by SARAH E.
CRAVEN, THOMAS W. KRAUSE, AMY J. NELSON, FARHEENA
YASMEEN RASHEED.
______________________

Before NEWMAN, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
Appellant Oliver Wendel Gamble appeals the Patent
Trial and Appeal Board’s (“PTAB”) affirmance of a final re-
jection of independent claim 1 of U.S. Patent Application
No. 14/541,132 (“the ’132 application”) as anticipated. See
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2 IN RE: GAMBLE

S.A. 2–19 (Decision on Appeal). 1 Mr. Gamble appeals. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).
We affirm.
BACKGROUND
I. The ’132 Application
Entitled “Method and System for Interactive Notation
and Text Data Storage with a Mobile Device,” S.A. 53, the
’132 application “relates generally to a method and system
for improving the utilization of information obtainable
from the utilization [of] text messaging . . . and of CODA
(Callers, Operators, or Directory Assistance).” S.A. 54.
The ’132 application discloses a method relating to trans-
mitting and storing alphanumeric text data. S.A. 34. Spe-
cifically, the ’132 application discloses a method and
system that “enables the user to electronically capture and
store information transmitted to the user’s phone in rec-
ords stored in a searchable file.” S.A. 56.
Independent claim 1 of the ’132 application recites:
A method, comprising:
transmitting and receiving alphanumeric
text characters between a plurality of mo-
bile device [sic] via a communication net-
work, storing the transmitted and received
alphanumeric text in records in a searcha-
ble database file enabling the user to search
of the contents of the alphanumeric text in
stored and generate search results unique
to the database contents in response to a

1 The PTAB affirmed the examiner’s rejection of
claims 1–3, 5–6, 18, and 19, however, Mr. Gamble only
challenges the rejection of independent claim 1. See Appel-
lant’s Br.
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IN RE: GAMBLE 3

given string of alphanumeric characters
entered by the user.
S.A. 3 (emphases added); see also S.A. 388–391.
II. The Prior Art
A. Ford
Entitled “Data Delivery,” U.S. Patent Application
No. 15/382,161 (“Ford”) relates to the “sending of data” be-
tween two phones using a “send to caller” option. S.A. 467;
see S.A. 463–70 (Ford). Specifically, Ford discloses “[a]
method of sending data from a first party participating in
a telephone call to a second party participating in the tele-
phone call, comprising, in the terminal of the first party,
storing . . . identifier data that identifies the second party.”
S.A. 463 (Abstract).
Ford explains that when a call is initiated by the first
party, the processor in the first party’s terminal “automat-
ically stores” the second user’s phone number “in the
memory.” S.A. 468. “If during the telephone call the first
party wishes to send a data message to the [second] party,”
the first party may select the “send to caller option.”
S.A. 468. When the “send to caller” option is selected, the
first party’s terminal’s “processor . . . automatically inter-
rogates a database” and retrieves the stored number of the
second party. S.A. 468. 2 The “send to caller” options ena-
bles a data message to be sent from the first party partici-
pant to the second party participant, without the first party
having to stop and search for the data. S.A. 468. Such data
messages include contact cards or a calendar appointment.
S.A. 468. The delivery of the data “may include: Short

2 Ford explains that the processor is interrogating
the database from memory. See S.A. 468; S.A. 468 (“The
processor . . . is connected to read to and to write from the
memory.”).
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Messaging Service (SMS) which is suitable for alphanu-
meric text.” S.A. 468.
B. Bautista
Entitled “Mobile Social Networking Systems and
Methods,” U.S. Patent Application No. 11/055,340 (“Bau-
tista”) “generally relates to social networking, and more
particularly to social networking systems allowing loca-
tion-aware, anonymous communication between communi-
cation devices.” S.A. 475; see S.A. 470–81 (Bautista).
Bautista discloses “systems and methods for communi-
cating with others in a defined geographic area,” which
“may be through location-aware text messaging.” S.A. 475.
Bautista explains that “[c]ommunications from [a] first
communication device may be relayed to a second commu-
nication device” through “a text message from the first
communication device.” S.A. 475.
Specifically, Bautista explains that a user will set up
an account and that “the social networking server receives
[the] mobile phone number associated with the user.”
S.A. 476. “[T]he social networking server . . . generate[s] a
user passcode” that “may be a random alphanumeric char-
acter” and is “sent to the user in the form of an SMS text
message that the user can receive on [a] mobile communi-
cation device.” S.A. 477. To complete the account set up,
the user enters the passcode at the social networking web-
site. S.A. 477. After setting up the account, the user can
create a profile and input demographic information that is
“stored in a database associated with [the] social network-
ing server.” S.A. 477. The user can then use the social
network to find “individuals that the user might be inter-
ested in meeting” that are “within close proximity.”
S.A. 477. For example, the user will send a SMS text code
to the social networking server “that identifies the user’s
geographical location.” S.A. 477. The database can be
searched to match the user’s profile with similar profiles of
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IN RE: GAMBLE 5

other users. S.A. 478. Search parameters can comprise
keywords used to query the database. S.A. 478.
DISCUSSION
I. Standard of Review
“We review the PTAB’s factual findings for substantial
evidence and its legal conclusions de novo.” Redline Detec-
tion, LLC v. Star Envirotech, Inc., 811 F.3d 435, 449 (Fed.
Cir. 2015) (citation omitted). “Substantial evidence is
something less than the weight of the evidence but more
than a mere scintilla of evidence,” meaning that “[i]t is such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.” In re NuVasive, Inc., 842
F.3d 1376, 1379–80 (Fed. Cir. 2016) (internal quotation
marks and citations omitted). “If two inconsistent conclu-
sions may reasonably be drawn from the evidence in rec-
ord, the PTAB’s decision to favor one conclusion over the
other is the epitome of a decision that must be sustained
upon review for substantial evidence.” Elbit Sys. of Am.,
LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1356 (Fed.
Cir. 2018) (internal quotation marks, brackets, and cita-
tion omitted).
II. Anticipation
A. Legal Standard
“A person shall be entitled to a patent unless,” inter
alia, “the claimed invention was patented, described in a
printed publication, or in public use, on sale, or otherwise
available to the public before the effective filing date of the
claimed invention[.]” 35 U.S.C. § 102(a)(1). 3 A prior art

3 Congress amended § 102 when it passed the Leahy-
Smith America Invents Act (“AIA”). Pub. L. No. 112-29,
§ 3(b)(1), 125 Stat. 284, 285–87 (2011). Because the ’132
application has an effective filing date on or after March
16, 2013 (the effective date of the statutory changes
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reference anticipates a patent’s claim “when the four cor-
ners of [that] . . . document describe every element of the
claimed invention, either expressly or inherently, such that
a person [having] ordinary skill in the art [(‘PHOSITA’)]
could practice the invention without undue experimenta-
tion.” Spansion, Inc. v. Int’l Trade Comm’n, 629 F.3d 1331,
1356 (Fed. Cir. 2010) (internal quotation marks and cita-
tion omitted). A patent claim is anticipated only if each
limitation is found within a single prior art reference, “ar-
ranged or combined in the same way as in the claim.” Net
MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed.
Cir. 2008). “Anticipation is a question of fact that we re-
view for substantial evidence.” Blue Calypso, LLC v.
Groupon, Inc., 815 F.3d 1331, 1341 (Fed. Cir. 2016) (cita-
tion omitted).
B. Substantial Evidence Supports the PTAB’s Conclusion
that Ford Anticipates Independent Claim 1
The PTAB held that the Examiner had properly
rejected claim 1 as anticipated based on Ford. S.A. 5–6.
The Board identified two disputed limitations in independ-
ent claim 1: (1) the “transmitting” limitation and (2) the
“storing” limitation, the latter of which includes the addi-
tional limitation of “a searchable database file enabling the
user to search . . . the contents of the alphanumeric text.”
S.A. 4–5. Accordingly, we refer to this limitation as the
“storing and searching” limitation. Mr. Gamble contends,
however, that the PTAB erred by concluding that Ford dis-
closes each and every limitation of independent claim 1.
Appellant’s Br. 1–10. Specifically, Mr. Gamble argues that
the PTAB erred because Ford fails to teach the same stor-
ing and searching limitation, as recited in independent
claim 1. Id. at 8–10. We disagree with Mr. Gamble.

enacted in 2011), the current AIA version § 102 applies, see
Pub. L. No. 112-29, § 3(n)(1), 125 Stat. at 293.
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Substantial evidence supports the PTAB’s conclusion
that Ford anticipates independent claim 1. Mr. Gamble
challenges the PTAB’s determination that Ford anticipates
the storing and searching limitation of independent claim
1. See Appellant’s Br. 6–10. 4 The storing and searching
limitation of independent claim 1 recites:
storing the transmitted and received alphanumeric
text in records in a searchable database file ena-
bling the user to search of the contents of the alpha-
numeric text in stored and generate search results
unique to the database contents in response to a
given string of alphanumeric characters entered by
the user.
S.A. 3 (emphasis added); see S.A. 388. Ford discloses that
when a call is initiated by the first party, the second party’s
phone number is “automatically store[d]” in the “memory.”
S.A. 468 (emphasis added). Ford further discloses that if
the first party selects the “send to caller” option to send a
data message, the first party’s terminal’s “processor . . . au-
tomatically interrogates a database . . . to obtain the desti-
nation address.” S.A. 468 (emphasis added). Ford also
discloses that the delivery of the data “may include: Short
Messaging Service (SMS) which is suitable for alphanu-
meric text.” S.A. 468. Accordingly, Ford teaches the stor-
ing and searching limitation found in independent claim 1
of “a searchable database file enabling the user to
search . . . the contents of the alphanumeric text.” Thus,
Ford anticipates the storing and searching limitation.
Mr. Gamble’s counterarguments are unpersuasive.
First, Mr. Gamble argues that independent claim 1

4 Because Mr. Gamble concedes that Ford teaches
the transmitting limitation, we only address the disputed
storing and searching limitation. See Appellant’s Reply Br.
12 (“The Ford patent only teaches on ‘Transmit’”).
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8 IN RE: GAMBLE

employs a database, whereas Ford employs “[m]emory,”
which is “RAM.” Appellant’s Br. 9. This argument is mer-
itless. Ford expressly discloses the interrogation of a data-
base. S.A. 468 (“The processor . . . automatically
interrogates a database using the telephone number
stored . . . to obtain the destination address.”). Moreover,
the distinction between “[m]emory” and “database” is mer-
itless because Ford explains that the first party’s processor
“is connected to read to and to write from the memory.”
S.A. 468. Accordingly, when Ford’s processor is interrogat-
ing a database, it is interrogating a database from memory.
S.A. 468. 5
Second, Mr. Gamble argues that “[t]here is no teaching
on storing and searching a database of [t]ext messages” in
Ford. Appellant’s Br. 9. Mr. Gamble ignores the fact that
independent claim 1 broadly recites transmitting and stor-
ing “alphanumeric text characters,” not text messages.
S.A. 388. Relevant here, Ford discloses “[c]ontact” data
and “[c]alendar” appointments, which fall within the broad
definition of alphanumeric text characters. S.A. 468 (“an
application that is text-based such as a Calendar, Contacts
or text messaging.”). Moreover, independent claim 1 does
not require that the recited “alphanumeric text characters”

5 In his reply brief, Mr. Gamble asserts for the first
time that “Interrogation” is not the same as “Search.” Ap-
pellant’s Reply 8. He did not raise this argument in his
opening brief nor is there any record that he raised it before
the PTAB. See generally Appellant’s Br. 1–10; S.A. 2–19.
Thus, Mr. Gamble’s argument is waived. See Bozeman Fin.
LLC v. Fed. Reserve Bank of Atlanta, 955 F.3d 971, 974
(Fed. Cir. 2020) (“[A]rguments not raised in an appellant’s
opening brief [are] waived absent exceptional circum-
stances.”); Game & Tech. Co. v. Wargaming Grp. Ltd., 942
F.3d 1343, 1350–51 (Fed. Cir. 2019) (declining to consider
a new argument raised for the first time on appeal).
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IN RE: GAMBLE 9

be text messages. See generally S.A. 388; see Appellant’s
Br. 1–10 (failing to cite any portion of independent claim 1
that requires that the “alphanumeric text characters” be
text messages). Additionally, Ford described the use of
SMS text messages to deliver data. S.A. 468. With regards
to searching, Ford discloses that when the “send to caller”
option is selected, the first party’s terminal’s “proces-
sor . . . automatically interrogates a database” and finds
the stored number of the second party. S.A. 468. Accord-
ingly, independent claim 1 does not necessarily teach “on
storing and searching a database of [t]ext messages.” Ap-
pellant’s Br. 9.
Third, Mr. Gamble argues that independent claim 1
teaches “a user controlled search, where the user manually
enters a selected search criterion,” whereas Ford “automat-
ically execute[s] a search.” Appellant’s Br. 9. This argu-
ment is unpersuasive. Again, Ford explains that when the
“send to caller” option is selected, the first party’s termi-
nal’s “processor . . . automatically interrogates a data-
base,” however, the processor interrogates the database
only when the first party manually selects the send to
caller option. S.A. 468. As such, Ford teaches the same
user controlled search as disclosed in independent claim 1.
Accordingly, substantial evidence supports the PTAB’s
conclusion that Ford anticipates independent claim 1.
C. Substantial Evidence Supports the PTAB’s Conclusion
that Bautista Anticipates Independent Claim 1
The PTAB held that the Examiner had shown by a pre-
ponderance of the evidence that Bautista anticipated inde-
pendent claim 1. S.A. 13–14. Specifically, the PTAB found
“Bautista’s sending of alphanumeric characters to the user
in the form of a SMS text message that the user receives
on his mobile device discloses” the transmitting limitation
of independent claim 1. S.A. 13. The PTAB also found that
“Bautista’s querying of a database with text messages
teaches” independent claim 1’s limitation of “storing . . .
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alphanumeric text . . . in a searchable database file.” S.A.
13. Mr. Gamble asserts that the PTAB erred in concluding
that Bautista discloses independent claim 1’s storing and
searching limitation. Appellant’s Br. 11–21. We disagree
with Mr. Gamble.
Substantial evidence supports the PTAB’s determina-
tion that Bautista anticipates independent claim 1. Mr.
Gamble challenges the PTAB’s determination that Bau-
tista teaches the storing and searching limitation of inde-
pendent claim 1. See Appellant’s Br. 14–15. 6 Relevant
here, Bautista discloses storing profiles and demographic
information into a database that can be searched to match
the user’s profile with similar profiles of other users.
S.A. 478. Bautista explains that a search command or
search parameters “may be used to query the database” “in
the form of an SMS text message sent from [a] mobile com-
munication device.” S.A. 478. Additionally, “[t]he search
parameters may be in the form of keywords” to query the
database. S.A. 478. Therefore, Bautista teaches “stor-
ing . . . alphanumeric text . . . in a searchable database
file.” S.A. 3. Thus, Bautista anticipates the storing and
searching limitation of independent claim 1.
Mr. Gamble argues that Bautista does not teach inde-
pendent claim 1’s limitation of storing data on a mobile de-
vise because Bautista teaches storing data on “a remote
server.” Appellant’s Br. 14–15. This argument is unper-
suasive. Independent claim 1 only recites storing the al-
phanumeric text “in a searchable database file” and does
not specify where the searchable database file is stored.

6 Because Mr. Gamble concedes that Bautista
teaches the transmitting limitation, we only address the
disputed storing and searching limitation. See Appellant’s
Br. 15 (“The first limitation is broadly accurate, in that the
teachings [are] on sending and receiving text messages (al-
phanumeric text)”).
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IN RE: GAMBLE 11

S.A. 388. Accordingly, independent claim 1 is not limited
to mobile device storage. Further, Bautista discloses that
“[c]ertain social networking applications may . . . require
specific software to be installed on the mobile communica-
tion device.” S.A. 475. As such, Bautista contemplates
storing alphanumeric text on a mobile device. Accordingly,
substantial evidence supports the PTAB’s conclusion that
Bautista anticipates independent claim 1.
CONCLUSION
We have considered Mr. Gamble’s remaining argu-
ments and find them unpersuasive. Accordingly, the Deci-
sion on Appeal of the U.S. Patent and Trademark Office’s
Patent Trial and Appeal Board is
AFFIRMED
COSTS
No costs.