Barry Appelman et al.

Patent Trials and Appeals Board

Dec 17, 2019

13766781 - (D) (P.T.A.B. Dec. 17, 2019)

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.
13/766,781 02/14/2013 Barry Appelman 19487.34.1.1.7 2317
107193 7590 12/17/2019
Keller Jolley Preece/Facebook
1010 North 500 East
Suite 210
North Salt Lake, UT 84054
EXAMINER
WALSH, JOHN B
ART UNIT PAPER NUMBER
2451
NOTIFICATION DATE DELIVERY MODE
12/17/2019 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):
docketing@kjpip.com
gjolley@kjpip.com
ljohnson@kjpip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BARRY APPELMAN and MUHAMMAD MOHSIN HUSSAIN

Appeal 2018-002033
Application 13/766,781
Technology Center 2400
____________

Before JOHN A. EVANS, NORMAN H. BEAMER,
and SCOTT B. HOWARD, Administrative Patent Judges.

BEAMER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Non-Final Rejection of claims 50, 51, 53–57, 60–65, 67, 69–74, 76–83, and
85–96. Claims 1–49, 52, 58, 59, 66, 68, 75, and 84 are cancelled. We have
jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Facebook,
Inc. (Appeal Br. 2.)
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THE INVENTION
Appellant’s disclosed and claimed invention is directed to
reconfiguring an electronic message to effect an enhanced notification.
(Abstract.)
Independent claim 50, reproduced below, is illustrative of the subject
matter on appeal:
50. A method comprising:
identifying, using one or more processors, content of a
first electronic message intended for a recipient;
using the one or more processors and based on the
content of the first electronic message, providing a first
notification of the first electronic message via a first delivery
mechanism, wherein the first delivery mechanism for the first
notification is different than a second delivery mechanism for
the first electronic message;
identifying content of a second electronic message
intended for the recipient to determine that the content of the
second electronic message is related to the content of the first
electronic message; and
using the one or more processors and based on
determining that the content of the second electronic message is
related to the content of the first electronic message, replacing
the first notification of the first electronic message with a
second notification that indicates the second electronic
message.

REJECTIONS
The Examiner rejected claims 50, 51, 53–57, 60–65, 67, 69–74, 76–
83, and 85–96 under 35 U.S.C. § 101 as being directed to non-statutory
subject matter. (Non-Final Act. 2–3.)
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The Examiner rejected claims 74–79, 82, and 83 under 35 U.S.C.
§ 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite.
(Non-Final Act. 3–4.)2
The Examiner rejected claims 50, 51, 55, 62, 63, 71–74, 81, 85–87,
and 91 under 35 U.S.C. § 102, as anticipated by Klein (US. 6,701,346 B1,
issued Mar. 2, 2004). (Non-Final Act. 5–7.)
The Examiner rejected claims 54, 56, 57, 60, 61, 67, 69, 70, 76–80,
88–90, and 93–96 under 35 U.S.C. § 103, as being unpatentable over Klein
and Horvitz (US 2002/0087649 A1, pub. July 4, 2002). (Non-Final Act. 8–
11.)
The Examiner rejected claims 53, 64, 82, 83, and 92 under 35 U.S.C.
§ 103, as being unpatentable over Klein and Malik (US 2003/0229668 A1,
pub. Dec. 11, 2003). (Non-Final Act. 12.)
The Examiner rejected claim 65 under 35 U.S.C. § 103, as being
unpatentable over Klein, Malik, and Horvitz. (Non-Final Act. 12–13.)
ISSUES ON APPEAL
Appellant’s arguments present the following dispositive issues:3
Issue One: Whether the Examiner erred in concluding claims 50, 51,
53–57, 60–65, 67, 69–74, 76–83, and 85–96 are directed to patent-ineligible
subject matter. (Appeal Br. 25–35.)

2 Appellant does not address this rejection at this time. (Appeal Br. 35–36.)
Therefore, this rejection is summarily affirmed.
3 Rather than reiterate the arguments of Appellant and the positions of the
Examiner, we refer to the Appeal Brief (filed July 21, 2017); the Reply Brief
(filed Dec. 18, 2017); the Non-Final Office Action (mailed Feb. 24, 2017);
and the Examiner’s Answer (mailed Oct. 18, 2017) for the respective details.
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Issue Three: Whether Klein discloses the independent claim 50
limitation, “wherein the first delivery mechanism for the first notification is
different than a second delivery mechanism for the first electronic message,”
and the commensurate limitations of independent claims 62, 71, 81, and 91.
(Appeal Br. 18–19.)
ANALYSIS
Issue One — Eligibility
The Examiner concludes claims 50, 51, 53–57, 60–65, 67, 69–74, 76–
83, and 85–96 are patent-ineligible under 35 U.S.C. § 101 because the
claims are directed to the abstract idea of “[c]omparing new and stored
information and using rules to identify options,” and “[r]eceiving, screening
and distributing e-mail.” (Non-Final Act. 2.) The Examiner further
concludes that there is nothing in the claims that is significantly more than
this abstract idea, given that the additional elements are “generic computer
components that perform their basic functions,” which “merely implement
the abstract idea on a computer.” (Non-Final Act. 3.)
Appellant argues the Examiner’s characterization of the claimed
subject matter is “untethered from the elements of the independent claims.”
(Non-Final Act. 26 (citing Enfish, LLC, v. Microsoft Corp., 822 F.3d 1327
(Fed. Cir. 2016).) Appellant submits the “claims are directed to a method
for replacing a first notification for a first message with a second notification
for a second message based on identifying that content from a second
electronic message is related to content from a first electronic message.”
(Non-Final Act. 27.) Appellant further argues the claimed subject matter is
similar to that of Enfish in that it “is directed toward a specific improvement
to computer technology.” (Non-Final Act. 31.) In particular, Appellant
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submits that the claimed subject matter “obviates the need for a user to
access and review multiple notifications for related electronic messages, and
thus provides a more efficient communication system.” (Id.)
In addition, Appellant argues “the claims at issue in this case include
ordered combinations of steps that, when performed together, recite a non-
conventional and non-generic implementation of removing redundant
notifications for corresponding electronic messages.” (Non-Final Act. 33
(citing BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016).) Appellant further argues the claims here fall under the
authorities holding that claims are in fact patent eligible if they improve an
existing technological process, even if implemented on a generic computer.
(Non-Final Act. 35 (citing McRo, Inc. v. Bandai Namco Games America
Inc., 837 F.3d 1299 (Fed. Cir. 2016).) For the reasons set forth below, we
are not persuaded the Examiner erred.
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S. C. § 101. Here,
independent claims 50, 71, and 81 and their dependent claims relate to a
method, independent claim 62 and its dependent claims relate to a non-
transitory computer-readable storage medium; and independent claim 91 and
its dependent claims relate to a system — i.e., a process, manufacture, or
machine, respectively. However, the Supreme Court has long held that
“[l]aws of nature, natural phenomena, and abstract ideas are not
patentable.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216
(2014) (quoting Assoc. for Molecular Pathology v. Myriad Genetics, Inc.,
569 U.S. 576, 598–99 (2013)). The “abstract ideas” category embodies the
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longstanding rule that an idea, by itself, is not patentable. Alice, 573 U.S. at
216–217.
In Alice, the Supreme Court sets forth an analytical “framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.” Id. at 217. The first step in the analysis is to “determine whether
the claims at issue are directed to one of those patent-ineligible concepts,”
such as an abstract idea. Id. Concepts determined to be abstract ideas, and
thus patent ineligible, include certain methods of organizing human activity
such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski v.
Kappos, 561 U.S. 593, 611 (2010); mathematical concepts (Parker v. Flook,
437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson,
409 U.S. 63, 69 (1972)). Concepts determined to be patent eligible include
physical and chemical processes, such as “molding rubber products”
(Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making
water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7
(quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and
manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94
U.S. 780, 785 (1876))).
If the claims are directed to a patent-ineligible concept, the second
step in the Alice/Mayo analysis is to consider the elements of the claims
“individually and ‘as an ordered combination”’ to determine whether there
are additional elements that “‘transform the nature of the claim’ into a
patent-eligible application.” 573 U.S. at 217 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). In other
words, the second step is to “search for an ‘inventive concept’ — i.e., an
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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.’” 573 U.S. at 217–218 (quoting Mayo, 566 U.S.
at 72–73.) A claim that recites an abstract idea must include additional
features to ensure that the claim is more than a drafting effort designed to
monopolize the abstract idea. 573 U.S. at 221. A transformation into a
patent-eligible application requires more than simply stating the abstract idea
while adding the words “apply it.” Id.
Further to the Alice/Mayo analytical framework, after the mailing of
the Answer and the filing of the Briefs in this case, the USPTO published
revised guidance on the application of Section 101. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(hereinafter “Revised Guidance”). Under the Revised Guidance, we first
look 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)).
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
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(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 Revised Guidance.
In evaluating the claims at issue, we consider claim 50 as
representative, consistent with how Appellant and the Examiner analyze the
claims. See 37 C.F.R. § 41.37(c)(1)(iv)(2016). Omitting the portions of the
claim invoking use of generic technology (which are discussed separately
below), the remaining limitations of claim 50 elaborate on a method of
receiving, screening and distributing email, via the steps of: (i) “identifying
. . . content of a first . . . message intended for a recipient”; (ii) “based on the
content of the first . . . message, providing a first notification of the first . . .
message via a first delivery mechanism, wherein the first delivery
mechanism for the first notification is different than a second delivery
mechanism for the first . . . message”; (iii) “identifying content of a second .
. . message intended for the recipient to determine that the content of the
second . . . message is related to the content of the first . . . message”; and
(iv) “based on determining that the content of the second . . . message is
related to the content of the first . . . message, replacing the first notification
of the first . . . message with a second notification that indicates the second .
. . message.” (Appeal Br. 37.)4

4 The Examiner appropriately paraphrased these elements: “Identifying
content of a message, provide a notification of the message (stored
information), identify a second message (new information), and determine
they are related then replacing the first notification with the second
notification.” (Non-Final Act. 2.)
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Apart from the use of generic technology (discussed further below),
each of these limitations describes steps taken for receiving, screening and
distributing email: (i) identify a received message; (ii) provide a notification
of the message, using a different delivery mechanism than was used for the
message; (iii) identify a second message, determining if it is related; (iv) if
related, replace the first notification with a second notification that indicates
the second message.
As stated in the Revised Guidance, methods of organizing human
activity considered an abstract idea include “commercial . . . interactions
(including . . . marketing or sales activities or behaviors; business relations)
[and] managing personal behavior or relationships or interactions between
people (including . . . following rules or instructions).” (Revised Guidance,
84 Fed. Reg. at 52). The claim 50 subject matter of receiving, screening and
distributing email, which can be of a business or personal nature, falls under
this description. See, e.g., Intellectual Ventures I LLC v. Symantec Corp.,
838 F.3d 1307, 1316 (Fed. Cir. 2016) (receiving, screening, and distributing
email). In particular; the Specification provides examples of the subject
matter of the inventions that encompass both business and personal uses:
e.g., an “auction alert” and a “birthday reminder.” (Spec. Fig. 10, 15:3–19.)
In Symantec, the Federal Circuit affirmed the District Court’s use of
an analogy in concluding ineligibility of the claimed subject matter:
The . . . patent’s abstract describes the invention as “[a] system,
method and various software products . . . for automatic
deferral and review of e-mail messages and other data objects in
a networked computer system, by applying business rules to the
messages as they are processed by post offices.” . . . Claim 1
also describes the patented system as a “post office”—albeit an
electronic one. . . . The district court held that “the asserted
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claims of the . . . patent are directed to human-practicable
concepts, which could be implemented in, for example, a brick-
and-mortar post office.” . . . .
We agree, and think the district court’s analogy to a
corporate mailroom is also useful. Such mailrooms receive
correspondence, keep business rules defining actions to be
taken regarding correspondence based on attributes of the
correspondence, apply those business rules to correspondence,
and take certain actions based on the application of business
rules. Those actions include gating the message for further
review, as in claim 1, and also releasing, deleting, returning, or
forwarding the message, as described elsewhere in the . . .
patent. . . .
838 F.3d at 1317.
Similarly, the method of receiving, screening and distributing email
encompassed by claim 50 is analogous to the use of a “While You Were
Out” slip (illustrated below) to notify a recipient of a message or telephone
call, with the further embellishment that a follow-up call would trigger
another slip that would replace the first.

Set forth above is an example of a “While You Were Out” slip.
Therefore, we agree with the Examiner that the subject matter of
claim 50 recites an abstract idea, as do the remaining claims.
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Further pursuant to the Revised Guidance, we consider whether there
are additional elements set forth in claim 50 that integrate the judicial
exception into a practical application. Revised Guidance, 84 Fed. Reg. at
54–55. Here, the abstract idea of claim 50 is carried out using “one or more
processors” and “delivery mechanisms,” such as “a fixed or mobile
communication device, whether wired or wireless, and/or a software
application, such as, for example, a messaging application or a browser.”
(Appeal Br. 37; Spec. 5.) These additional elements do not integrate the
judicial exception into a practical application. Rather, unlike Enfish, on
which Appellant relies, there is no improvement to technology, but rather
application of preexisting technology to implement the abstract idea.
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Mayo, 566 U.S. at 77.
Nor does the subject matter of claim 50 contain additional elements
that implement the judicial exception with a “particular machine,” because
the claims do not specify any details in regard to the email delivery
environment. See MPEP § 2106.05 (b). Further, the method does not
transform matter; at best it transforms information. See MPEP § 2106.
05(c). Nor does claim 50 have any other meaningful limitations (MPEP
§ 2106. 05 (e)), or any of the other considerations set forth in the Revised
Guidance regarding a determination of whether additional elements integrate
the judicial exception into a practical application. See Revised Guidance, 84
Fed. Reg. at 55. Accordingly, we conclude that the subject matter of
claim 50 (and the remaining claims) is directed to commercial interactions
and managing personal behavior or relationships or interactions between
people, which are examples of the certain methods of organizing human
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activity, and thus an abstract idea, and the additional elements recited therein
do not integrate the abstract idea into a practical application.
Turning to the second step of the Alice inquiry, we consider the
elements of the claims “individually and ‘as an ordered combination”’ to
determine whether there are additional elements that “‘transform the nature
of the claim’ into a patent-eligible application.” 573 U.S. at 217
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
79, 78 (2012)). We do not agree with Appellant that additional elements of
claim 50, whether individually or in combination, add “significantly more”
to the basic abstract idea encompassed by the claim sufficient to transform
the claimed abstract idea into a patent-eligible application. Alice, 573 U.S.
at 223 (“[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.”). As
discussed above, Appellant submits that the claimed subject matter “obviates
the need for a user to access and review multiple notifications for related
electronic messages, and thus provides a more efficient communication
system.” (Non-Final Act. 31.) However, other than using generic
technology — processors and delivery mechanisms — these improvements
are elaborations on the basic abstract idea itself. “It is clear from Mayo that
the ‘inventive concept’ cannot be the abstract idea itself.” Aatrix Software,
Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018).
Moreover, “[p]atent law does not protect claims to an ‘asserted advance in
the realm of abstract ideas . . . no matter how groundbreaking the advance.’”
890 F.3d at 1359 (Fed. Cir. 2018).
Appellant’s reliance on BASCOM is unavailing. (Appeal Br. 32–33.)
There, the court held eligible claims directed to a technology-based solution
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to filter Internet content that overcame existing problems with other Internet
filtering systems by making a known filtering solution—namely a “one-size-
fits-all” filter at an Internet Service Provider (ISP)—more dynamic and
efficient via individualized filtering at the ISP. BASCOM, 827 F.3d at 1351.
Notably, this customizable filtering solution improved the computer
system’s performance and, therefore, was patent-eligible. See id. But unlike
the filtering system improvements in BASCOM that added significantly more
to the abstract idea in that case, the claimed invention here uses generic
computing components to implement an abstract idea as noted previously.
Nor is this invention analogous to that which the court held eligible in
McRO, despite Appellant’s arguments to the contrary (Appeal Br. 35).
There, the claimed process used a combined order of specific rules that
rendered information in a specific format that was applied to create a
sequence of synchronized, animated characters. McRO, 837 F.3d at 1315.
Notably, the recited process automatically animated characters using
particular information and techniques—an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses generic computing components to receive, screen
and distribute email. See SAP Am. v. InvestPic, LLC, 898 F.3d 1161, 1167
(Fed. Cir. 2018) (distinguishing McRO).
The record supports the Examiner’s finding that the additional
elements — processors and delivery mechanisms — are well-understood,
routine, conventional, and specified at a high level of generality. Revised
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Guidance, 84 Fed. Reg. at 56. There is no reference to “processors” in the
Specification, including the original claims. Rather, there is reference to a
“message enhancement service,” which is Specification explains:
[T]he message enhancement service . . . may include various
mechanisms for delivering voice and/or non-voice data. The
various mechanisms may include, for example, any
applications, protocols, devices, or networks used to facilitate
communication of electronic data. [T]he message enhancement
service . . . also may include or be included in a general-
purpose or a special-purpose computer, a local area network,
and/or a wide area network. The response to and execution of
instructions received by the message enhancement service . . .
or any of [its] components (collectively the system services),
may be controlled by, for example, a program, a piece of code,
an instruction, a device, a computer system, or a combination
thereof, for independently or collectively instructing the system
services to interact and operate as described herein.
(Spec. 7–8.) The Specification further states that “delivery mechanism”
encompasses “a fixed or mobile communication device, whether wired or
wireless, and/or a software application, such as, for example, a messaging
application or a browser.” (Spec. 5.) Nothing regarding any aspect of the
“ordered combination” of the claim elements provide significantly more than
the abstract idea that claim 50 is directed to.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 101 rejection of
claim 50. Appellant provides no arguments that would differentiate the
remaining claims from claim 50. Thus, the foregoing analysis of claim 50 is
exemplary of that for claims 51, 53–57, 60–65, 67, 69–74, 76–83, and 85–
96. See 37 C.F.R. § 41.37(c)(1)(iv) (2016). Therefore, we also sustain the
Examiner’s 35 U.S.C. § 101 rejection of those claims.
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Issue Two — Anticipation
Appellant argues, inter alia, that Klein does not disclose the claim 50
requirement, “wherein the first delivery mechanism for the first notification
is different than a second delivery mechanism for the first electronic
message.” (Appeal Br. 18–19.) The Examiner relies on the disclosure in
Klein of a “computer system [that] may send messages to or receive
messages from any accessible device, including through a wireless network
or wired network such as the Internet.” (Klein 4:13–16.) From that, the
Examiner finds that “[the] ‘first delivery mechanism’ could be wired and
‘second delivery mechanism’ could be ‘wireless’ and vice versa.” (Non-
Final Act. 5.)
We agree with Appellant. Although Klein discloses that messages
can be sent either over a wired or wireless network (which, as discussed
above, are examples of delivery mechanisms), the Examiner does not point
to anything in Klein disclosing that an electronic message is delivered using
one mechanism and the corresponding notification is delivered using a
different mechanism.
Accordingly, the Examiner has not made out a prima facie case of
obviousness, and we do not sustain the Examiner’s anticipation rejection of
claim 50, nor of claims 62, 71, 81, and 91, which have a commensurate
limitations. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
We also do not sustain the Examiner’s anticipation and obviousness
rejections of the dependent claims, because the Examiner does not rely on
any of the other cited references as teaching or suggesting the limitation at
issue.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§ 
Reference(s)/
Basis
Affirmed Reversed
50, 51, 53–
57, 60–65,
67, 69–74,
76–83, 85–
96
101  Eligibility 50, 51, 53–
57, 60–65,
67, 69–74,
76–83, 85–
96

74–79, 82,
83
112   Written
Description
74–79, 82,
83

50, 51, 55,
62, 63, 71–
74, 81, 85–
87, 91
102 Klein 50, 51, 55,
62, 63, 71–
74, 81, 85–
87, 91
54, 56, 57,
60, 61, 67,
69, 70, 76–
80, 88–90,
93–96
103 Klein,
Horvitz
54, 56, 57,
60, 61, 67,
69, 70, 76–
80, 88–90,
93–96
53, 64, 82,
83, 92
103 Klein, Malik 53, 64, 82,
83, 92
65 103 Klein, Malik,
Horvitz
65
Overall
Outcome
50, 51, 53–
57, 60–65,
67, 69–74,
76–83, 85–
96

TIME PERIOD FOR RESPONSE
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)(iv).

AFFIRMED