Arthur Weinberger et al.Download PDFPatent Trials and Appeals BoardAug 20, 201914100689 - (D) (P.T.A.B. Aug. 20, 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. 14/100,689 12/09/2013 Arthur Weinberger 315-LAN-07-2009 3988 86548 7590 08/20/2019 Garlick & Markison (IH) 100 Congress Avenue, Suite 2000 Austin, TX 78701 EXAMINER PADOT, TIMOTHY ART UNIT PAPER NUMBER 3683 NOTIFICATION DATE DELIVERY MODE 08/20/2019 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): MMurdock@TEXASPATENTS.COM bpierotti@texaspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ARTHUR WEINBERGER and MARWAN SHABAN ___________ Appeal 2018–002975 Application 14/100,689 Technology Center 3600 ____________ Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR. and JASON V. MORGAN, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants are appealing the Examiner’s Final rejection of claims 1– 20 under 35 U.S.C. § 134(a).1 Appeal Brief 5. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify iHeartMedia Management Services, Inc., as the real party in interest. Appeal Brief 1. Appeal 2018-002975 Application 14/100,689 2 Introduction The invention is directed to “audience statistics, and more specifically to methods and systems for computing statistics relating to station audiences, particularly terrestrial radio stations.” Specification ¶ 2. Representative Claim 1. A computer implemented method for use in a server device implementing a marketing analysis data integration system, the method comprising: obtaining by the server device, sets of input data including input CUME2 values associated with a plurality of individual radio stations from a plurality of different ratings data-vendor devices connected via a communications network, the input CUME values from a first ratings-data-vendor device being associated with a first limited set of input dayparts, and the input CUME values from a second ratings-data-vendor device being associated with a second limited set of input dayparts different from the first limited set of input dayparts; obtaining by the server device a list of media stations and schedule information associated with the media stations, the scheduling information including arbitrary client-specified dayparts, by executing program instructions in a computer system; consolidating by the server device the input CUME values obtained from the first and second ratings-data-vendor devices; 2 “Cume is the total number of different (unique) persons that listen to a radio station within a given daypart. A daypart is a set of times throughout a given week. For example, a daypart could be every weekday (Monday through Friday) from 6:00 am until 10:00 am.” Specification 2. Appeal 2018-002975 Application 14/100,689 3 translating the input CUME values for the individual radio stations from the first and second limited set of input dayparts to determine an output CUME value associated with the arbitrary client-specified dayparts different from the input dayparts, by executing program instructions in a computer system; and presenting a single interface to a user, the single interface allowing a user to switch between the sets of input data obtained from different ratings- vendor devices. Rejection on Appeal3 Claims 1–20 stand rejected under 35 U.S.C. § 101 because the claimed invention is directed to patent ineligible subject matter. Final Action 5–8. ANALYSIS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed August 23, 2017), the Reply Brief (filed January 25, 2018), the Final Action (mailed April 21, 2017) and the Answer (mailed November 27, 2017,), for the respective details. 35 U.S.C. § 101 rejection The Examiner determines the claims are patent ineligible under 35 U.S.C. § 101 because the claims are directed to an abstract idea and do not include additional elements that are sufficient to amount to significantly 3 The non-statutory double patenting rejection, as well as, the 35 U.S.C. § 102(b) and 35 U.S.C. § 103(a) rejections were withdrawn by the Examiner. See Final Action 2. Appeal 2018-002975 Application 14/100,689 4 more than the abstract idea. Final Action 5–8; see also Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (Describing the two-step framework “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.”). After the mailing of the Answer and the filing of the Briefs in this case, the USPTO published revised guidance on the application of 35 U.S.C. § 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Memorandum”). Under the Memorandum, the Office first looks to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. 2018)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, does the Office then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that are not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See generally Memorandum. We are not persuaded the Examiner’s rejection is in error. Unless otherwise indicated, we adopt the Examiner’s findings and conclusions as Appeal 2018-002975 Application 14/100,689 5 our own and we add the following primarily for emphasis and clarification with respect to the Memorandum. Alice/Mayo—Step 1 (Abstract Idea) Step 2A–Prongs 1 and 2 identified in the Revised Guidance Step 2A, Prong One Appellants argue “The claims at issue in the present disclosure are specifically drawn to translating CUME values for the first and second limited sets of input dayparts to determine an output CUME value for a daypart different from the first and second limited dayparts.” Appeal Brief 8. We agree with the Examiner’s determination that the claims recite an abstract idea. See Final Action 5–8. Appellants further argue: Looking to the specification of the present disclosure, CUME values represent ratings data for researching radio stations, indicating values of the number of unique listeners to a specific radio station during a given daypart, as recorded by prior art systems such as the Arbitron, Inc. Tapscan ratings software suite. Applicant’s Specification, at ¶¶ [0004–06]. In other words, CUME values are the result of observed and recorded listener behavior patterns. The CUME values from the first and second ratings-data-vendor devices in each of the independent claims at issue represent listener behavior patterns recorded during pre- determined time periods called dayparts. Id at ¶ [0007]. Appeal Brief 8–9. Claim 1 recites a “computer implemented method for use in a server device implementing a marketing analysis data integration system” wherein: Appeal 2018-002975 Application 14/100,689 6 • obtaining by the server device, sets of input data including input CUME values associated with a plurality of individual radio stations from a plurality of different ratings data-vendor devices connected via a communications network, the input CUME values from a first ratings-data-vendor device being associated with a first limited set of input dayparts, and the input CUME values from a second ratings- data-vendor device being associated with a second limited set of input dayparts different from the first limited set of input dayparts • obtaining by the server device a list of media stations and schedule information associated with the media stations, the scheduling information including arbitrary client-specified dayparts, by executing program instructions in a computer system • consolidating by the server device the input CUME values obtained from the first and second ratings-data-vendor devices • translating the input CUME values for the individual radio stations from the first and second limited set of input dayparts to determine an output CUME value associated with the arbitrary client-specified dayparts different from the input dayparts, by executing program instructions in a computer system; and • presenting a single interface to a user, the single interface allowing a user to switch between the sets of input data obtained from different ratings-vendor devices. Appeal 2018-002975 Application 14/100,689 7 These steps comprise fundamental economic principles or practices and commercial interactions; thus, the claim recites the abstract idea of targeted marketing or advertising, which falls under the category of judicial exception identified as “certain methods of organizing human activity.” See Memorandum, Section I, Groupings of Abstract Ideas (“[I]ncluding agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations.”); see also Specification ¶¶ 2, 9, 25. Our reviewing court has found claims to be directed to abstract ideas when they recited similar subject matter. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction); see also Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that sequence of data retrieval, analysis, modification, generation, display, and transmission was abstract); see also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding that “collecting information, analyzing it, and displaying certain results of the collection and analysis” are “a familiar class of claims ‘directed to’ a patent-ineligible concept”). Therefore, we conclude the claims recite an abstract idea pursuant to Step 2A, Prong One of the guidance. See Memorandum, Section III(A)(1) (Prong One: Evaluate Whether the Claim Recites a Judicial Exception). Step 2A, Prong Two Under Prong Two of the Revised Guidance, we must determine “whether the claim as a whole integrates the recited judicial exception Appeal 2018-002975 Application 14/100,689 8 into a practical application of the exception” it is noted that a “claim that integrates a judicial exception into a practical application will 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.” Memorandum, Section III(A)(2). Appellants contend: The claims at issue in this case pass the first step of the Alice framework, because they are directed to a patent eligible specific implementation of a software-based improvement to an existing technological process, rather than a task for which a computer is used in its ordinary capacity. See Enfish[, LLC v. Microsoft Corp., 822 F.3d 1327, 1336, 1339 (Fed. Cir. 2016)]; see also Alice, [573 U.S. at 222–25]. Appeal Brief 6. Appellants further contend: By claiming translating the input CUME values from the first and second limited set of input dayparts (e.g. Monday-Sunday 6- 10 a.m.) to determine an output CUME value associated the arbitrary client-specified dayparts different from the input dayparts (e.g. Monday-Sunday 6-9 a.m.), each of the independent claims at issue are directed to a specific implementation of a software-based improvement to an existing technological process-the lack of granularity in recorded listener behavior patterns. Response to Final Office Action, dated September 23, 2016, pp. 3, 6, and 9; see also Enfish, 822 F.3d at 1339 (Finding specific software-based improvement of self- referential table for computer database to the existing technological process of storing and retrieving data in computer memory not directed to abstract idea). Appeal Brief 9–10. Appeal 2018-002975 Application 14/100,689 9 First, we find Appellants’ claims are distinguished from those claims that our reviewing court has found to be patent eligible by virtue of reciting technological improvements to a computer system. See, e.g., DDR Holdings, 773 F.3d at 1249, 1257 (Holding that claims reciting computer processor for serving “composite web page” were patent eligible because “the claimed solution is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.”); see also Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017) (holding that claims directed to “an improved computer memory system” having many benefits were patent eligible). Second, we do not find Appellants’ arguments persuasive because the claims utilize components that are currently employed in the industry without any improvement to the functionality of the components (server device, rating data-vendor devices and network). See Specification ¶¶ 19– 25, 29; see also Enfish, LLC v. Microsoft Corp., 822 at 1335–36 (“[W]e find it relevant to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea . . . . the focus of the claims is on the specific asserted improvement in computer capabilities (i.e., the self-referential table for a computer database) or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.”). The claims do not recite an additional element or elements that reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field.; see also Final Action 8 (“There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer Appeal 2018-002975 Application 14/100,689 10 implementation.”); see also Alice, 573 U.S. at 222 (“In holding that the process was patent ineligible, we rejected the argument that ‘implement[ing] a principle in some specific fashion’ will ‘automatically fal[l] within the patentable subject matter of [section] 101.’”) (quoting Parker v. Flook, 437 U.S. 584, 593 (1978)). Appellants contend, “Like the claims in McRO[4], the appellant's claims do not recited a computerized implementation of a known process. Instead, the appellant’s claims recite a process that is different from any previously known process. And that process is used to create a technological tool – an improved marketing analysis data integration system.” Reply Brief 7. In McRO, the Federal Circuit concluded that the claim, when considered as a whole, was directed to a “technological improvement over the existing, manual 3-D animation techniques” through the “use [of] limited rules . . . specifically designed to achieve an improved technological result in conventional industry practice.” McRO, 837 F.3d at 1316. Specifically, the Federal Circuit found that the claimed rules allowed computers to produce accurate and realistic lip synchronization and facial expressions in animated characters that previously could only be produced by human animators; and the rules were limiting because they defined morph weight sets as a function of phoneme sub-sequences. Id. at 1313. We find no evidence of record here that the present situation is like the one in McRO where computers had been unable to make certain subjective determinations, e.g., regarding morph weight and phoneme timings, which 4 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1303 (Fed. Cir. 2016). Appeal 2018-002975 Application 14/100,689 11 could only be made prior to the claimed invention by human animators. The Background section of one of the patents at issue in McRO, Rosenfeld (US Patent 6,307,576 B1; issued Oct. 23, 2001), includes a description of the admitted prior art method and the shortcomings associated with that prior method. See McRO, 837 F.3d at 1303–06. There is no comparable discussion in Appellants’ Specification or elsewhere of record. Further, as the Federal Circuit has explained, a “claim for a new abstract idea is still an abstract idea.” Synopsis, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). Even assuming the technique claimed was “[g]roundbreaking, innovative, or even brilliant,” that would not be enough for the claimed abstract idea to be patent eligible. See Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). Subsequently, we detect no additional element (or combination of elements) recited in Appellants’ representative claim 1 that integrates the judicial exception into a practical application. See Memorandum, Section III(A)(2). For example, Appellants’ claimed additional elements (e.g., server device, rating data-vendor devices and network) do not: (1) improve the functioning of a computer or other technology; (2) are not applied with any particular machine (except for a generic computer); (3) do not effect a transformation of a particular article to a different state; and (4) are not applied in any 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. See MPEP §§ 2106.05(a)–(c), (e)–(h). Accordingly, we determine the claims do not integrate the judicial exception into a practical application. See Memorandum, Section III(A)(2) Appeal 2018-002975 Application 14/100,689 12 (Prong Two: If the Claim Recites a Judicial Exception, Evaluate Whether the Judicial Exception Is Integrated Into a Practical Application). Alice/Mayo—Step 2 (Inventive Concept) Step 2B identified in the Revised Guidance Step 2B Next, we determine whether the claim includes additional elements that provide significantly more than the recited judicial exception, thereby providing an inventive concept. Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)). Appellant contends, “Thus, even if this Court finds at step one of the Alice framework the claims at issue are directed to a patent ineligible concept, the claims may still recite patentable subject matter if each of the limitations of the claims, either individually, or as an ordered combination ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.” Appeal Brief 11. As we have addressed above, the claims do not recite an improvement in the functionality of a computer. We find that claim 1 does not include a specific limitation or a combination of elements that amounts to significantly more than the judicial exception itself. See Memorandum, Section III(B)(Step 2B: If the Claim Is Directed to a Judicial Exception, Evaluate Whether the Claim Provides an Inventive Concept); see also Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018) (“the ‘inventive concept’ cannot be the abstract idea itself”). Other than the abstract idea itself, the remaining claim elements only recite generic computer components that are well- understood, routine, and conventional. See Final Action 7 (“These elements do not amount to significantly more than the judicial exception because the Appeal 2018-002975 Application 14/100,689 13 additional elements are merely directed to instructions to implement the idea on a generic computer, though without yielding any improvement to another technology or to the computer itself.”); see also Alice, 573 U.S. at 226. Accordingly, we find the claims do not include a specific limitation or a combination of elements that amounts to significantly more than the judicial exception itself. Accordingly, we conclude claims 1–20 are directed to a fundamental economic practice, which is one of certain methods of organizing human activity identified in the Memorandum and thus an abstract idea, and the claims do not recite limitations that amount to significantly more than the abstract idea itself. We sustain the Examiner’s 35 U.S.C. § 101 rejection of claims 1–20. DECISION The Examiner’s patent ineligible subject matter rejection of claims 1– 20 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)(1). See 37 C.F.R. § 1.136(a)(1)(v). AFFIRMED Copy with citationCopy as parenthetical citation