Alejandro Zarate Santovena et al.Download PDFPatent Trials and Appeals BoardAug 1, 201914818923 - (D) (P.T.A.B. Aug. 1, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/818,923 08/05/2015 Alejandro Zarate Santovena 40191/02001 1004 30636 7590 08/01/2019 FAY KAPLUN & MARCIN, LLP 150 BROADWAY, SUITE 702 NEW YORK, NY 10038 EXAMINER EBERSMAN, BRUCE I ART UNIT PAPER NUMBER 3692 MAIL DATE DELIVERY MODE 08/01/2019 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALEJANDRO ZARATE SANTOVENA and ROBERT HOWE ____________ Appeal 2018-001534 Application 14/818,9231 Technology Center 3600 ____________ Before ANTON W. FETTING, TARA L. HUTCHINGS, and AMEE A. SHAH, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL 1 According to Appellants, the real party in interest is Marsh USA, Inc. (Appeal Br. 2). Appeal 2018-001534 Application 14/818,923 2 STATEMENT OF THE CASE2 Alejandro Zarate Santovena and Robert Howe (Appellants) seek review under 35 U.S.C. § 134 of a final rejection of claims 1–28, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). The Appellants invented a way of insurance risk matching. Specification Title and para. 12. An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below (bracketed matter and some paragraphing added). 1. A method, comprising: by a broker arrangement: [1] storing account information for a plurality of insurance accounts, the account information for each insurance account being normalized to a coordinate system; [2] receiving parameters of a similarity account from a broker user device utilized by a broker user or a carrier user device utilized by a carrier user of an insurance carrier; [3] performing a similarity calculation 2 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed October 12, 2016) and Reply Brief (“Reply Br.,” filed October 19, 2017), and the Examiner’s Answer (“Ans.,” mailed December 22, 2016), and Final Action (“Final Act.,” mailed April 12, 2016). Appeal 2018-001534 Application 14/818,923 3 to identify a subset of the plurality of insurance accounts that match the similarity account, wherein the similarity account is also normalized to the coordinate system, wherein the similarity calculation includes, calculating a distance between the similarity account and each of the plurality of insurance accounts, and determining the subset of the plurality of insurance accounts that is within a predetermined similarity distance threshold from the similarity account in the coordinate system. The Examiner relies upon the following prior art: Herz US 2009/0254971 A1 Oct. 08, 2009 Saunders US 2012/0239506 A1 Sept. 20, 2012 Stahl US 2014/0222469 A1 Aug. 07, 2014 Claims 1–28 stand rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. Claims 1–28 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Herz, Stahl, and Saunders. ISSUES The issues of eligible subject matter turn primarily on whether the claims recite more than abstract conceptual advice of results desired. The issues of obviousness turn primarily on whether the art applied describes the limitations recited. Appeal 2018-001534 Application 14/818,923 4 FACTS PERTINENT TO THE ISSUES The following enumerated Findings of Fact (FF) are believed to be supported by a preponderance of the evidence. Facts Related to Claim Construction 01. The disclosure contains no lexicographic definition of “distance.” Facts Related to Appellants’ Disclosure 02. The similarity calculation may be considered as equivalent to a distance calculation. Spec. para. 41. 03. In one example, Gower’s distance algorithm3 is used to measure the distance between the different data points and determine if the data point for any one account satisfies the similarity threshold. Spec. para. 42. Facts Related to the Prior Art Herz 04. Herz is directed to a privacy-protected market for data exchange between multiple self-interested parties. Herz para. 3. 05. In order to perform a wide range of analytical tasks, Herz needs to make use of a variety of computational approaches. Among these approaches, Herz describes measuring the similarity between profile vectors. Given two customer (or vendor) profiles, ci and cj, it is frequently desirable to know how similar they are. For this purpose, we define the similarity metric M(ci, cj) to be a 3 Measure of dissimilarity between units in a dataset or between observations in two distinct datasets. R Package documentation. https://rdrr.io/cran/StatMatch/man/gower.dist.html. Appeal 2018-001534 Application 14/818,923 5 function that takes as input two customer vectors and returns as output a numerical value in the range [0,1]. When two customers ci and cj are identical, M(ci, cj)=1; when they’re completely different, M(ci, cj)=0. Herz paras. 599–603. 06. Some key applications of SDI are: assessing the value of data that involves plugging together sets of data, and measuring predictive accuracy, matching data across vendors that includesfinding patterns in common pseudonyms, denoting common areas of interest and using catalogues of order codes and item description to find similarities across data sets, and targeted recommendations that match customers to their nearest neighbors in a data set and generate recommendations for users, and use collaborative-filtering style application. Herz paras. 689–693. 07. Herz describes uses for insurance agents and brokers. For many types of insurance, (e.g. health, life, casualty), personally sensitive information is disclosed by buyers to their agents and brokers. Initially, before insurance services are purchased, it is possible that useful detailed quotes and/or insurance advice could be provided to a buyer pseudonymously. Herz para. 697. 08. Herz describes creating a form of insurance in which Herz identifies extremely similar circumstances where similarity is measured primarily by the nature and scope of the opportunity and its associated risks as well as the entity whose critical action is necessary to bring about the desired objective. In this case, the individuals (or entities) benefiting from the desired action are able to effectively conceive to contribute a certain level of value to the Appeal 2018-001534 Application 14/818,923 6 collective group to effectively insure the desirable outcome on behalf of all of the members of that group, such that, if the desirable action on behalf of the other entity (in this case the large organization contemplating substantial layoffs) does not concede to the desired action for one or more of the individuals, this value contributed from the group is used to apply still greater economic pressure upon the entity to perform the desired action. If this does not facilitate the action, the value is instead applied in another (albeit less optimal) form to compensate at least a portion of negative economic impact upon that individuals/entity of course, the level of risk may influence the amount of insurance each individual/entity is willing to contribute within a given group.. Herz para. 968. Stahl 09. Stahl is directed to insurance re-quoting. Stahl para. 5. Saunders 10. Saunders is directed to the personalizing of advertisements that are presented beside content of a website, such as a social networking site. Saunders para. 1. 11. Saunders describes using a threshold in statistical similarity analysis. A first user profile for a first user may be compared with a second user profile generated in the same manner for a second user. Based on the comparison (for example if the similarity between the two profiles exceeds a threshold comparison measure), the first user may be provided with a recommendation Appeal 2018-001534 Application 14/818,923 7 based on information acquired from the second user. Saunders para. 74. ANALYSIS Initially we construe the term “distance” in the claims. This is not lexicographically defined. Claim 1 recites calculating a distance in a similarity calculation. The Specification states that the similarity calculation may be considered as equivalent to a distance calculation and that one example of a distance calculation is Gower’s distance algorithm, which is a statistical measure of dissimilarity. Thus we construe “distance” as a statistical measure of similarity or dissimilarity, and not some geometric distance. Claims 1–28 rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more STEP 14 Claim 1, as a method claim, nominally recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101. The issue before us is whether it is directed to a judicial exception without significantly more. STEP 2 The Supreme Court set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, . . . determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us? To answer that question, . . . 4 For continuity of analysis, we adopt the steps nomenclature from 2019 Revised Patent Subject Matter Eligibility Guidance, 84 FR 50 (Jan. 7, 2019). Appeal 2018-001534 Application 14/818,923 8 consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent- eligible application. [The Court] described step two of this analysis as a search for an “‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp., Pty. Ltd. v CLS Bank Intl, 573 U.S. 208, 217–18 (2014) (citations omitted) (citing Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012)). To perform this test, we must first determine what the claims are directed to. This begins by determining whether the claims recite one of the judicial exceptions (a law of nature, a natural phenomenon, or an abstract idea). Then, if claims recite a judicial exception, determining whether the claims at issue are directed to the recited judicial exception, or whether the recited judicial exception is integrated into a practical application of that exception, i.e., that the claims “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” 2019 Guidance at 54. If the claims are directed to a judicial exception, then finally determining whether the claims provide an inventive concept because the additional elements recited in the claims provide significantly more than the recited judicial exception. STEP 2A Prong 1 Method claim 1 recites storing account information, receiving parameters of a similarity account, and performing a similarity calculation. The similarity calculation includes calculating a distance between accounts and determining a subset of the accounts. The calculations are expressed as Appeal 2018-001534 Application 14/818,923 9 results to be obtained without technological details, and are therefore generic computer analysis. Thus, claim 1 recites storing, receiving, and analyzing data. None of the limitations recite technological implementation details for any of these steps, but instead recite only results desired by any and all possible means. From this we see that claim 1 does not recite the judicial exceptions of either natural phenomena or laws of nature. Under Supreme Court precedent, claims directed purely to an abstract idea are patent in-eligible. As set forth in the Revised Guidance, which extracts and synthesizes key concepts identified by the courts, abstract ideas include (1) mathematical concepts5, (2) certain methods of organizing human activity6, and (3) mental processes7. Among those certain methods of organizing human activity listed in the Revised Guidance are fundamental economic principles or practices or commercial or legal interactions. Like those concepts claim 1 recites the concept of buying and selling insurance. Specifically, claim 1 recites operations that would ordinarily take place in advising one to match insurance accounts based on a calculation using 5 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v. Kappos, 130 S. Ct. 3218 (2010); Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). 6 See, e.g., Bilski, 130 S. Ct. 3218 (2010); Alice, 573 U.S. at 219–20; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir. 2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed. Cir. 2018). 7 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Appeal 2018-001534 Application 14/818,923 10 insurance account and similarity account data. The advice to match insurance accounts based on a calculation using insurance account and similarity account data involves looking for insurance, which is an economic act, and matching insurance to needs, which is an act ordinarily performed in the stream of commerce. For example, claim 1 recites “storing account information for a plurality of insurance accounts,” which is an activity that would take place whenever one is shopping for insurance. Similarly, claim 1 recites “determining the subset of the plurality of insurance accounts,” which is also characteristic of buying insurance. The Examiner determines the claims to be directed to a brokerage arrangement that relates to insurance and determining similar insurance accounts. Final Act. 2. The preamble to claim 1 does not recite what it is to achieve, but the steps in claim 1 result in performing a calculation to match insurance accounts with some reference absent any technological mechanism other than a conventional computer for doing so. As to the specific limitations, limitations 1 and 2 recite insignificant generic storing and receiving of insurance and similarity account data, which advise one to apply generic functions to get to these results. Limitation 3 is the only step associated with performing what the claim produces and recites performing a calculation to match data, which is simply generic analysis. The limitations thus recite advice for matching insurance accounts based on a calculation using insurance account and similarity account data. To advocate matching insurance accounts based on a calculation using insurance account and similarity account data is conceptual advice for results desired and not technological operations. Appeal 2018-001534 Application 14/818,923 11 The Specification’s Title and paragraph 12 describe the invention as relating to insurance risk matching. Thus, all this intrinsic evidence shows that claim 1 recites a method for finding insurance companies, i.e. buying and selling insurance. This is consistent with the Examiner’s determination. This in turn is an example of fundamental economic principles or practices or commercial or legal interactions as a certain method of organizing human activity because insurance is a fundamental economic practice and buying and selling insurance is a commercial interaction. The concept of buying and selling insurance by matching insurance accounts based on a calculation using insurance account and similarity account data is an idea for how to select insurance carriers. The steps recited in claim 1 recite data and calculations for this idea. Our reviewing court has found claims to be directed to abstract ideas when they recited similar subject matter. See buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (creating a transaction performance guaranty for a commercial transaction on computer networks such as the Internet); Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1338 (Fed. Cir. 2013) (generating rule–based tasks for processing an insurance claim); Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (managing a stable value protected life insurance policy); Dealertrack, 674 F.3d at 1333 (processing loan information through a clearinghouse); Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1372 (Fed. Cir. 2017) (collection, storage, and recognition of data). Alternately, this is an example of concepts performed in the human mind as mental processes because the steps of storing, receiving, and analyzing Appeal 2018-001534 Application 14/818,923 12 data mimic human thought processes of observation, evaluation, judgment, and opinion, perhaps with paper and pencil, where the data interpretation is perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016). Claim 1, unlike the claims found non-abstract in prior cases, uses generic computer technology to perform data storage, reception, and analysis and does not recite an improvement to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract because they “focused on a specific asserted improvement in computer animation”). As such, claim 1 is directed to storing, receiving, and analyzing data, and not a technological implementation or application of that idea. From this we conclude that at least to this degree, claim 1 recites a method for buying and selling insurance by matching insurance accounts based on a calculation using insurance account and similarity account data. STEP 2A Prong 2 The next issue is whether claim 1 not only recites, but is more precisely directed to this concept itself or whether it is instead directed to some technological implementation or application of, or improvement to, this concept i.e. integrated into a practical application.8 At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. At some level, “all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Thus, an 8 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S. 175 (1981). Appeal 2018-001534 Application 14/818,923 13 invention is not rendered ineligible for patent simply because it involves an abstract concept. “[A]pplication[s]” of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Accordingly, in applying the § 101 exception, we must distinguish between patents that claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those that integrate the building blocks into something more. Alice, 573 U.S. at 217 (citations omitted). The introduction of a computer into the claims does not generally alter the analysis at Mayo step two. the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to “implement[t]” an abstract idea “on . . . a computer,” that addition cannot impart patent eligibility. This conclusion accords with the preemption concern that undergirds our § 101 jurisprudence. Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of “additional feature[e]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Alice, 573 U.S. at 223–24 (citations omitted). “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea [] on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the operation performed by the computer at each step of the process is expressed purely in terms of results, Appeal 2018-001534 Application 14/818,923 14 devoid of implementation details. Steps 1 and 2 are pure data gathering steps. Limitations describing the nature of the data do not alter this. Step 3 recites generic computer processing expressed in terms of results desired by any and all possible means and so presents no more than conceptual advice. All purported inventive aspects reside in how the data is interpreted and the results desired, and not in how the process physically enforces such a data interpretation or in how the processing technologically achieves those results. Viewed as a whole, Appellants’ claim 1 simply recites the concept of buying and selling insurance by matching insurance accounts based on a calculation using insurance account and similarity account data as performed by a generic computer. This is no more than conceptual advice on the parameters for this concept and the generic computer processes necessary to process those parameters, and do not recite any particular implementation. Claim 1 does not, for example, purport to improve the functioning of the computer itself. Nor does it effect an improvement in any other technology or technical field. The 34 pages of specification spell out different generic equipment9 and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of buying and selling insurance by matching insurance accounts based on a calculation using insurance account and similarity account data under different scenarios. They do not describe any particular improvement in the manner a computer functions. Instead, claim 1 at issue amounts to nothing significantly more than an instruction to apply buying and selling 9 The Specification describes the system as including memory and a processor. Spec. para. 4. Appeal 2018-001534 Application 14/818,923 15 insurance by matching insurance accounts based on a calculation using insurance account and similarity account data using some unspecified, generic computer. Under our precedents, that is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26. None of the limitations reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effects a transformation or reduction of a particular article to a different state or thing, or applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. We conclude that claim 1 is directed to achieving the result of buying and selling insurance by advising one to match insurance accounts based on a calculation using insurance account and similarity account data as distinguished from a technological improvement for achieving or applying that result. This amounts to fundamental economic principles or practices or commercial or legal interactions, which fall within certain methods of organizing human activity that constitute abstract ideas. The claim does not integrate the judicial exception into a practical application. STEP 2B The next issue is whether claim 1 provides an inventive concept because the additional elements recited in the claim provide significantly Appeal 2018-001534 Application 14/818,923 16 more than the recited judicial exception. Taking the claim elements separately, the function performed by the computer at each step of the process is purely conventional. Using a computer for storing, receiving, and analyzing data amounts to electronic data query and retrieval—one of the most basic functions of a computer. All of these computer functions are generic, routine, conventional computer activities that are performed only for their conventional uses. See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Also see In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any general purpose computer without special programming”). None of these activities are used in some unconventional manner nor do any produce some unexpected result. Appellants do not contend they invented any of these activities. In short, each step does no more than require a generic computer to perform generic computer functions. As to the data operated upon, “even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018). Considered as an ordered combination, the computer components of Appellants’ claim 1 add nothing that is not already present when the steps are considered separately. The sequence of data storage-reception-analysis is equally generic and conventional. See Ultramercial, 772 F.3d at 715 (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction), Inventor Holdings, Appeal 2018-001534 Application 14/818,923 17 LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis, modification, generation, display, and transmission), Two-Way Media Ltd. v. Comcast Cable Communications, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling, and monitoring). The ordering of the steps is therefore ordinary and conventional. We conclude that claim 1 does not provide an inventive concept because the additional elements recited in the claim do not provide significantly more than the recited judicial exception. REMAINING CLAIMS Claim 1 is representative. The remaining method claims merely describe process parameters. We conclude that the method claims at issue are directed to a patent-ineligible concept itself, and not to the practical application of that concept. As to the structural claims, they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] ... against” interpreting § 101“in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any particular machine. LEGAL CONCLUSION From these determinations we further determine that the claims do not recite an improvement to the functioning of the computer itself or to any other technology or technical field, a particular machine, a particular Appeal 2018-001534 Application 14/818,923 18 transformation, or other meaningful limitations. From this we conclude the claims are directed to the judicial exception of the abstract idea of certain methods of organizing human activity as exemplified by buying and selling insurance by advising one to matching insurance accounts based on a calculation using insurance account and similarity account data, without significantly more. APPELLANTS’ ARGUMENTS As to Appellants’ Appeal Brief arguments, we adopt the Examiner’s determinations and analysis from Final Action 2–4 and Answer 15–33 and reach similar legal conclusions. We now turn to the Reply Brief. To the extent Appellants argue the Examiner fails to follow USPTO Guidance, we have set forth the rejection in a format that more explicitly follows the guidance, including the most recent guidance, supra. We are not persuaded by Appellants' argument that “the objective of settlement risk in Alice and the risk matching of the present appeal are fundamentally different concepts.” Reply Br. 3. Appellants go on to point out the differing contexts between prior cases surrounding risk avoidance and the instant case. Differences in context generally are not sufficient to distinguish abstract from non-abstract. “The Supreme Court and this court have repeatedly made clear that merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract.” Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016). Insuring against risk by whatever means has generally been held to be within the scope of abstract ideas, as we cite in cases supra. Appeal 2018-001534 Application 14/818,923 19 Appellants also attempt to analogize the claims to those involved in McRO, 837 F.3d 1299. Reply Br. 4 and 7–8. In McRO, the court held that, although the processes were previously performed by humans, “the traditional process and newly claimed method . . . produced . . . results in fundamentally different ways.” FairWarning, 839 F.3d at 1094 (differentiating the claims at issue from those in McRO). In McRO, “it was the incorporation of the claimed rules not the use of the computer, that improved the existing technology process,” because the prior process performed by humans “was driven by subjective determinations rather than specific, limited mathematical rules.” 837 F.3d at 1314 (internal quotation marks, citation, and alterations omitted). In contrast, the claims of the instant application merely implement an old practice of using decision criteria in making sales decisions in a new environment. Appellants have not argued that the claimed processes of selecting products apply rules of selection in a manner technologically different from those which humans used, albeit with less efficiency, before the invention was claimed. The claims in McRO were not directed to “a specific asserted improvement in computer animation, i.e., the automatic use of rules of a particular type.” We explained that “the claimed improvement [was] allowing computers to produce ‘accurate and realistic lip synchronization and facial expressions in animated characters’ that previously could only be produced by human animators.” The claimed rules in McRO transformed a traditionally subjective process performed by human artists into a mathematically automated process executed on computers. FairWarning, 839 F.3d at 1094 (differentiating the claims at issue from those in McRO). Appeal 2018-001534 Application 14/818,923 20 We are not persuaded by Appellants’ argument that the claims are analogous to those in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Reply Br. 5–6. The claims differ from those found patent eligible in Enfish, where the claims were “specifically directed to a self- referential table for a computer database.” 822 F.3d 1327, 1337 (Fed. Cir. 2016). The claims thus were “directed to a specific improvement to the way computers operate” rather than an abstract idea implemented on a computer. Id. at 1336. Here, by contrast, the claims are not directed to an improvement in the way computers operate. Though the claims purport to accelerate the process of insurance selection, our reviewing court has held that speed and accuracy increases stemming from the ordinary capabilities of a general purpose computer “do[] not materially alter the patent eligibility of the claimed subject matter.” Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012). Instead, the claims are more analogous to those in FairWarning, 839 F.3d 1089, wherein claims reciting “a few possible rules to analyze audit log data” were found directed an abstract idea because they asked “the same questions (though perhaps phrased with different words) that humans in analogous situations detecting fraud have asked for decades.” 839 F.3d at 1094, 1095. We are not persuaded by Appellants’ argument that “the results of the risk matching improves technology in computer-based approaches to customized analyses for insurance account risk analysis by incorporating customized factors as requested and desired by the insurance company or insurance broker.” Appellants contend that the choice of data improves performance. Choice of data improves performance even in a paper and Appeal 2018-001534 Application 14/818,923 21 pencil implementation. The recited operations are each conventional generic computer operations. Choice of data does not improve any of those operations as recited. Appellants further argue that the asserted claims are akin to the claims found patent-eligible in Diamond v. Diehr, 450 U.S. 175 (1981). Reply Br. 9. But, we must read Diehr in light of Alice, which emphasized that Diehr does not stand for the general proposition that a claim implemented on a computer elevates an otherwise ineligible claim into a patent-eligible improvement. Alice. Rather, Diehr involved “a ‘well-known’ mathematical equation . . . used . . . in a process designed to solve a technological problem in ‘conventional industry practice.’” OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015). Diehr solved a technological problem in the conventional industry practice of molding tires. Here, Appellants argue only that the invention directs content for display from some different data source using some mathematical algorithm. Displaying content is not a conventional technological industry practice, but only making content available to be apprehended. Appellants further argue that the asserted claims are akin to the claims found patent-eligible in DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245 (Fed. Cir. 2014). Reply Br. 9–10. In DDR Holdings, the Court evaluated the eligibility of claims “address[ing] the problem of retaining website visitors that, if adhering to the routine, conventional functioning of Internet hyperlink protocol, would be instantly transported away from a host’s website after ‘clicking’ on an advertisement and activating a hyperlink.” Id. at 1257. There, the Court Appeal 2018-001534 Application 14/818,923 22 found that the claims were patent eligible because they transformed the manner in which a hyperlink typically functions to resolve a problem that had no “pre-Internet analog.” Id. at 1258. The Court cautioned, however, “that not all claims purporting to address Internet-centric challenges are eligible for patent.” Id. For example, in DDR Holdings the Court distinguished the patent-eligible claims at issue from claims found patent-ineligible in Ultramercial. See id. at 1258–59 (citing Ultramercial, 772 F.3d a t 715–16). As noted there, the Ultramercial claims were “directed to a specific method of advertising and content distribution that was previously unknown and never employed on the Internet before.” Id. at 1258 (quoting Ultramercial, 772 F.3d at 715– 16). Nevertheless, those claims were patent ineligible because they “merely recite[d] the abstract idea of ‘offering media content in exchange for viewing an advertisement,’ along with ‘routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet.’” Id. Appellants’ asserted claims are analogous to claims found ineligible in Ultramercial and distinct from claims found eligible in DDR Holdings. The ineligible claims in Ultramercial recited “providing [a] media product for sale at an Internet website;” “restricting general public access to said media product;” “receiving from the consumer a request to view [a] sponsor message;” and “if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query.” 772 F.3d at 712. Similarly, Appellants’ asserted claims recite Appeal 2018-001534 Application 14/818,923 23 storing, receiving, and analyzing data. This is precisely the type of Internet activity found ineligible in Ultramercial. Claims 1–28 rejected under 35 U.S.C. § 103(a) as unpatentable over Herz, Stahl, and Saunders Herz describes storing data into records for insurance companies and for customers. Herz’s insurance record corresponds to the limitation 1 insurance account and Herz’s customer record corresponds to the limitation 2 similarity account. Herz describes calculating a similarity distance between such records. Herz describes using this to match data across vendors. This corresponds to matching those vendors with similarities common with the customer. Stahl describes applying the similarity measure described by Herz with thresholds as filters as recited in the claims. Thus, Saunders describes a refinement of using the similarity measure in Herz. As to Appellants’ Appeal Brief arguments, we adopt the Examiner’s determinations and analysis from Final Action 5–33 and Answer 33–42 and reach similar legal conclusions. We now turn to the Reply Brief. We are not persuaded by Appellants' argument that “Herz does not describe or suggest any distance calculation within the coordinate system for a first point to a subset of other points.” Reply Br. 11. Herz explicitly states “before insurance services are purchased, it is possible that useful detailed quotes and/or insurance advice could be provided to a buyer pseudonymously.” Fact 07. As a customer record in Herz corresponds to the recited similarity account and a vendor record to an insurance account, Appeal 2018-001534 Application 14/818,923 24 this translates into matching the customer point to various insurance company points. Herz does so using a statistical similarity distance measure. We are not persuaded by Appellants’ argument that the Examiner states that the term “distance” is literally found in Herz. The Examiner also notes that any use of distance in the claims is comparable to a record comparison performed in Herz. Initially, it is noted that simply because a term as recited in the claims is also found in the disclosure of Herz does not automatically qualify Herz as disclosing the feature including this term as recited in the claims. Reply Br. 13 (citations omitted). We construed “distance” as a statistical measure of similarity or dissimilarity supra. This is what Herz describes. We are not persuaded by Appellants’ argument that “the cited disclosure of Herz is directed to clusters and how an allegiance between clusters may be updated.” Id. Herz explicitly describes using its techniques to match insurance providers with a customer. We are not persuaded by Appellants’ argument that “the image comparison and the user profile comparison of Saunders are completely unrelated to each other and any threshold deriving from the user profiles have no bearing to distances, particularly to a distance as measured with the image comparison.” Reply Br. 13–14. Saunders is applied only for its teachings as to a refinement in the use of distance measures. It is applied only to evidence the notoriously well-known use of thresholds to filter results so as to eliminate outliers and results of lesser relevance in the context of statistical distance calculations. This also addresses Appellants’ argument regarding motivation. Id. at 15. Appeal 2018-001534 Application 14/818,923 25 CONCLUSIONS OF LAW The rejection of claims 1–28 under 35 U.S.C. § 101 as directed to a judicial exception without significantly more is proper. The rejection of claims 1–28 under 35 U.S.C. § 103(a) as unpatentable over Herz, Stahl, and Saunders is proper. DECISION The rejection of claims 1–28 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED Copy with citationCopy as parenthetical citation