Chuck Foster

Patent Trials and Appeals Board

Jun 1, 2020

11554865 - (D) (P.T.A.B. Jun. 1, 2020)

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.
11/554,865 10/31/2006 Chuck Foster 6057-54306 6077
35690 7590 06/01/2020
KOWERT, HOOD, MUNYON, RANKIN & GOETZEL, P.C.
P.O. BOX 398
AUSTIN, TX 78767-0398
EXAMINER
GREGG, MARY M
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
06/01/2020 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):
patent_docketing@intprop.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHUCK FOSTER
____________

Appeal 2018-006396
Application 11/554,865
Technology Center 3600
____________

Before, MURRIEL E. CRAWFORD, ANTON W. FETTING, and
MICHAEL W. KIM, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 21, 22, 26, 29, 42, 43, 45–49, 51–53, 58, 60, and
62–641. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
THE INVENTION
Appellant claims a method of processing transactions between a seller
and a customer. (Spec. 1., Title).

1 Appellant does not appeal the rejection of claims 65, 66, 68, 69, and 72.
(Appeal Br. 10). Their rejection is summarily sustained, and these claims
are not address further in this decision.
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Claim 21 is representative of the subject matter on appeal.
21. A method, comprising:
receiving, from a first computer system at a second
computer system over a wide-area network, electronic order
information for a transaction, wherein the electronic order
information specifies:
an item to be purchased from a merchant by a
customer on behalf of an entity, wherein the item is selected for
purchase by the customer using the first computer system, and
bid information descriptive of bids that have been
obtained for the item;
storing, by the second computer system for the entity, a
purchasing policy that specifies a competitive bidding
requirement that at least a specified number of two or more bids
need to be obtained to authorize a purchase of the item, wherein
the second computer system is a financial intermediary
computer system configured to communicate with the first
computer system, a computer system of the merchant, and a
computer system associated with a settlement authority in order
to implement the purchasing policy of the entity;
in response to the electronic order information received
over the wide-area network from the first computer system, the
second computer system determining whether to allow the
transaction, including by determining whether the competitive
bidding requirement of the purchasing policy is satisfied based
on the bid information; and
transmitting, by the second computer system to the first
computer system and the computer system of the merchant via
the wide-area network, messages indicating whether the
purchase is authorized.

THE REJECTION
Claims 21, 22, 26, 29, 42, 43, 45–49, 51–53, 58, 60, and 62–64 are
rejected under 35 U.S.C. § 101 as directed to a judicial exception without
significantly more.
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Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon (US 2002/0069134 A1, publ. Jun. 6, 2002), in view of
Thomas (US 2002/0116318 A1, publ. Aug. 22, 2002), in view of Rowan
(US 2004/0139032 A1, publ. Jul. 15, 2004), further in view of Khan (US
2001/0056395, publ. Dec. 27, 2001).
Claims 22 and 42 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Solomon, in view of Thomas, in view of Rowan, in view
of Khan, further in view of Barnes (US 5,970,475, iss. Oct. 19, 1999).
Claim 43 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, in view of Rowan, in view of Khan,
further in view of Straumann (US 2003/0151493 A1, publ. Aug. 14, 2003).
Claim 45 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, in view of Rowan, in view of Khan,
further in view of Grey (US 2002/0174054 A1, publ. Nov. 21, 2002).
Claims 26, 29 and 46–47 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over, Solomon, in view of Thomas, further in view of
Rowan.
Claim 48 and 51 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Solomon, in view of Thomas, in view of Rowan, further
in view of Straumann.
Claims 49, 52 and 58 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Solomon, in view of Thomas, in view of Rowan, further
in view of Barnes.
Claim 53 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, in view of Rowan, further in view of
Hamor (US 2007/0083437 A1, publ. Apr. 12, 2007).
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Claims 60 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, further in view of Reddy (US
2007/0038512 A1, publ. Feb. 15, 2007).
Claim 62 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, in view of Reddy, further in view of
Cales (US 2003/0135421 A1, publ. Jul. 17, 2003).
Claim 63 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, in view of Reddy, further in view of
Goolkasian (US 2005/0060244 A1, publ. Mar. 17, 2005).
Claim 64 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Solomon, in view of Thomas, in view of Reddy, further in view of
Kumar (US 7,933,818 B1, iss. Apr. 26, 2011).

ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 21, 22, 26, 29, 42, 43, 45–49,
51–53, 58, 60, and 62–64 under 35 U.S.C. § 101.
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, . . . then ask, “[w]hat
else is there in the claims before us?” . . . To answer that
question, . . . 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
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“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 Int’l, 573 U.S. 208, 217-218 (2014)
(citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
72–73 (2012)) (citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the [S]pecification, based on whether ‘their character
as a whole is directed to excluded subject matter.’” See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the
focus of the claims is on a specific improvement in relevant technology or
on a process that itself qualifies as an “abstract idea” for which computers
are invoked merely as a tool. See id. at 1335–36.
In so doing, we apply a “directed to” two prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 FR 50, pp 50–57 (Jan. 7, 2019).
The Examiner determines that the claims are directed to an online
bidding transaction that provides rules, parameters and certain refinements
in which to carry out a bidding transaction. The Examiner determines that
this subject matter is (1) a fundamental economic practice and (2) that of
comparing new and stored information using rules in order to identify
options (Final Act. 17). The Examiner finds the additional elements recited
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in the claim beyond the abstract idea “are used to implement the abstract
idea by enacting conventional, routine and well understood technical
functions.” (Id at 25)
The Specification states that “[b]usinesses have increasingly turned to
the use of Internet transactions for the efficient purchase of goods and
services” and “[t]here is a need for processes enabling businesses to
efficiently use such transactions while maintaining control over purchasing
according to policy.” (Spec. 1). The instant invention as claimed requires
individuals to obtain competitive bids or satisfy a bidding requirement as a
precondition to allowing a transaction to complete. (Spec. 31).
Consistent with this disclosure, claim 21 recites “receiving . . .
electronic order information for a transaction,” “wherein the electronic order
information specifies” “an item to be purchased from a merchant,” “ and bid
information descriptive of bids that have been obtained for the item,”
“determining whether the competitive bidding requirement of the purchasing
policy is satisfied based on the bid information,” and “transmitting . . .
messages indicating whether the purchase is authorized.”
We agree with the Examiner’s determinations in regard to the
recitation in claim 21 of a judicial exception found on pages 16 to 23 of the
Final Office Action, indicating that claim 21 recites at least a fundamental
economic practice, and adopt the same as our own.
Also, we find the steps of claim 21 of comparing new and stored
information using rules in order to identify options constitute “analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, as essentially mental processes within the
abstract-idea category.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
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1350, 1354 (Fed. Cir. 2016); see also buySAFE, Inc. v. Google, Inc., 765
F.3d 1350, 1355 (Fed. Cir. 2014) (claims directed to certain arrangements
involving contractual relations are directed to abstract ideas). Thus, we find
that the claims recite a fundamental economic practice and in the alternative,
a mental process.
Turning to the second prong of the “directed to test,” claim 21 recites
first and second computer systems and a computer system of the merchant
and a computer system associated with a settlement authority. The recitation
of these computer systems does not impose “a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” 2019 Revised Patent Subject Matter
Eligibility Guidance at 52. We find no indication in the Specification, nor
does Appellant direct us to any indication, that the operations recited in
independent claim 21 invoke any inventive programming, require any
specialized computer hardware or other inventive computer components,
i.e., a particular machine, or that the claimed invention is implemented using
other than generic computer components to perform generic computer
functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation
of generic computer limitations does not make an otherwise ineligible claim
patent-eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention or that otherwise indicates that the
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claimed invention integrates the abstract idea into a “practical application,”
as that phrase is used in the revised Guidance. See Guidance, 84 Fed. Reg.
at 55.
In this regard, the recitation does not effect an improvement in the
functioning of a the computer systems or other technology, does not recite a
particular machine or manufacture that is integral to the claims, and does not
transform or reduce a particular article to a different state or thing. Id. Thus,
claim 21 is directed to a judicial exception that is not integrated into a
practical application and thus is directed to an “abstract idea.”
Turning to the second step of the Alice analysis, because we find that
the claims are directed to abstract ideas, the claims must include an
“inventive concept” in order to be patent-eligible, i.e., there must be an
element or combination of elements that is sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217-18 (alteration in original) (quoting Mayo, 566 U.S. at
72–73).
The introduction of computer systems into the claims does not alter
the analysis at Alice step two.
[T]he 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 “implemen[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
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ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
featur[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 (alterations in original) (citations omitted).
Instead, “the relevant question is whether the claims here do more
than simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Id. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
trading industry. See Elec. Power Grp., 830 F.3d at 1354; see also In re
Katz Interactive Call Processing Patent Litig., 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”). 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 Am. Inc. v. InvestPic, LLC, 890 F.3d 1016, 1022
(Fed. Cir. 2018).
Considered as an ordered combination, the computer systems of
Appellant’s claim 21 add nothing that is not already present when the steps
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are considered separately. The recited sequence of data reception-analysis-
access/display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (recited sequence of receiving, selecting, offering for exchange,
display, allowing access, and receiving payment recited an abstraction),
Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378
(Fed. Cir. 2017) (holding that recited sequence of data retrieval, analysis,
modification, generation, display, and transmission was abstract), Two-Way
Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed.
Cir. 2017) (holding recited sequence of processing, routing, controlling, and
monitoring was abstract). The ordering of the steps is, therefore, ordinary
and conventional.
The claims do not, for example, purport to improve the functioning of
the recited computer systems. As we stated above, the claims do not affect
an improvement in any other technology or technical field. The
Specification spells out different generic equipment and parameters that
might be applied using this concept and the particular steps such
conventional processing would entail based on the concept of information
access under different scenarios. For example, the Specification indicates
that the various steps recited in claim 21 may be performed by “a computer
or similar electronic computing device” (Spec. 5), which indicates that the
computer systems recited are generic computer systems. The customer
computer is disclosed as being “a personal computer, cell phone, personal
assistant, two-way pager and/or interactive television that receives user
inputs from a remote control” (Spec. 15). The Specification also indicates
that the computing platform which may be used by the customer, seller or
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financial intermediary includes generic components such as a display, disk
drive, CDROM drive, display adapter etc. and may be a desktop computer.
(Spec. 45). Thus, the claims at issue amount to nothing significantly more
than instructions to apply the abstract idea of information access 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 226.
We have reviewed all the arguments (Appeal Br. 10–13; Reply Br. 2–
8) Appellant has submitted concerning the patent eligibility of the claims
before us that stand rejected under 35 U.S.C. § 101. Or analysis above
substantially covers the substance of all the arguments, which have been
made. But, for purposes of completeness, we will address various
arguments in order to provide reviewable analysis of same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that claim 21 recites a technical solution which
includes using a financial intermediary computer system that is distinct from
the customer computer system associated with a settlement authority.
(Appeal Br. 11). The problem solved, according to the Appellant, is the
problem of permitting an individual associated with a business, such as an
employee, to purchase goods and/or service on behalf of the business via the
Internet while maintaining control over that purchasing according to a
policy. We agree with the Examiner that the financial intermediary system
of claim 21 is recited, at a high level of generality, to perform conventional
computer functions of receiving orders, storing policy requirements and
communicating with the customer to determine whether to allow a
transaction according to bidding rules, and that these functions are all basic
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computer functions within a system of computers. (Fin. Act. 4-5). We also
agree that using computer technology in order to address compliance to a
policy is not an issue integral to technology, but rather integral with a
business objective of seeking to control use of its funds that employees can
access.
We are not persuaded that “the instant claims recite an improvement
to the relevant technological process-distributed transaction processing.”
Reply Br. 2. The Specification and claims do not mention distributed
processing.
In view of the foregoing, we will sustain this rejection as it is directed
to claim 21. We will also sustain this rejection as it is directed to the
remaining claims because Appellant has not argued the separate eligibility of
these claims.

REJECTIONS UNDER 35 U.S.C. §103(A)
We will not sustain the various rejections of claims 21, 22, 26, 29, 42,
43, 45-49, 51-53, and 58 under 35 U.S.C. §103(a), because we agree with
Appellant that the prior art applied in these rejections does not disclose “a
purchasing policy that specifies a competitive bidding requirement that at
least a specified number of two or more bids.” In the Final Office Action,
the Examiner relies on Thomas at FIG. 1a-b; paragraphs 23, 40-46 and 52-
53 for teaching this subject matter in the rejections of these claims. (Final
Act. 79).
Paragraph 23 of Thomas discloses that rules may be established in
which contracts are awarded to the highest bidder at a price lower than the
highest bid, or that bidders may set maximum bids with automatic
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increments if prior bids are beaten, but it discloses nothing about two or
more bids.
Paragraphs 40 to 46 of Thomas and Figure 1a-b of Thomas discloses
and depicts an electronic market, including an auction transaction system
that accepts bids and has auction rules such as highest bidder wins, sets
maximum bids, include a time expiration feature, but does not disclose the
requirement of two or more bids.
Paragraphs 52–53 of Thomas discloses that the auctioning process can
specify a minimum bid price, reject bids that are over the auctioned capacity,
but does not disclose the requirement of two or more bids.
In the Answer, the Examiner relies on the teaching in Solomon of
requiring two or more sellers, but this is not a disclosure of the requirement
for two or more bids. The Examiner also relies on paragraph 64 for teaching
this subject matter, but this paragraph discusses what happens when no
winning bids are received; it does not discuss a requirement for two or more
bids.
In view of the foregoing, we will not sustain the rejection as it is
directed to claim 21 and claims 22, 42, 43 and 45 dependent therefrom.
We will also not sustain the rejections of claims 26, 29, 46–49, 51–53
and 58 for the same reason.
We will sustain the Examiner’s rejection under 35 U.S.C. §103(a) of
claim 60. Claims 60 does not recite a purchasing policy that “at least a
specified number of two or more bids need to be obtained.” Appellant argues
that the prior art does not disclose “determining whether to allow the
transaction based on . . . customer ratings of the merchant.”
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We agree with the Examiner that Solomon teaches bidding rules.
Bidding rules are also taught by Thomas, as discussed above. Further, we
find that paragraph 47 of Reddy teaches that when a visitor uses the
intermediary to obtain a list of sellers offering a desired product or service,
such list is usually ordered by price of the product or some other criteria
such as service ranking (i.e. how well did this seller perform past
transactions with other past customers). Once that list is presented, the
visitor may have the option to reorder the list based upon other parameters.
Each item in the list is referred herein as a list item. One of the bidding rules
for teaching bidding rules relates to customer ratings.
We agree with the Examiner that:
Both Solomon and Reddy are directed toward rules applied for
transaction processes. Reddy teaches the motivation of
utilizing customer ratings in a transaction system in order to
filter for the customer merchants from consideration in order to
remove merchants based on performances with past customers.
It would have been obvious to one having ordinary skill at the
time the invention was made to modify the auction parameters
of Solomon to include the past customer determination of
sellers past transaction performances of Reddy since Reddy
teaches the motivation of utilizing customer ratings in a
transaction system in order to filter for the customer merchants
from consideration in order to remove merchants based on
performances with past customers.
Final Act. 117
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 60 and claims 62–64 dependent therefrom.

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CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 21–22, 26,
29, 42–43, 45–49, 51–53, 58, 60, and 62–64 under 35 U.S.C. § 101.
We conclude the Examiner did not err in rejecting claims 60 and 62–
64 under 35 U.S.C. § 103(a).
We conclude the Examiner did err in rejecting claims 21–22, 26, 29,
42–43, 45–49, 51–53, and 58 under 35 U.S.C. § 103(a).
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21–22, 26, 29,
42–43, 45–49,
51–53, 58, 60,
62–64
101 Judicial Exception 21–22, 26,
29, 42–43,
45–49, 51–
53, 58, 60,
62–64

21 103(a) Solomon, Thomas,
Rowan, Khan
21
22, 42 103(a) Solomon, Thomas,
Rowan, Khan,
Barnes
22, 42
43 103(a) Solomon, Thomas,
Rowan, Khan,
Straumann
43
45 103(a) Solomon, Thomas,
Rowan, Khan,
Grey
45
26, 29, 46–47 103(a) Solomon, Thomas,
Rowan
26, 29, 46–47
48, 51 103(a) Solomon, Thomas,
Rowan, Straumann
48, 51
49, 52, 58 103(a) Solomon, Thomas,
Rowan, Barnes
49, 52, 58
53 103(a) Solomon, Thomas,
Rowan, Hamor
53
60 103(a) Solomon, Thomas,
Reddy
60
62 103(a) Solomon, Thomas,
Reddy, Cales
62
63 103(a) Solomon, Thomas,
Reddy, Goolkasian
63
64 103(a) Solomon, Thomas,
Reddy, Kumar
64
Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
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Rejected
Overall
Outcome
21, 22, 26 29,
42–43, 45–
49, 51–53,
58, 64

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).
AFFIRMED