Elmore Eugene. Pope et al.

Patent Trials and Appeals Board

Aug 19, 2019

14605564 - (D) (P.T.A.B. Aug. 19, 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.
14/605,564 01/26/2015 Elmore Eugene Pope SPARC.645C1 5216
79502 7590 08/19/2019
Knobbe, Martens, Olson & Bear, LLP
AMAZON TECHNOLOGIES, INC.
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
EXAMINER
AIRAPETIAN, MILA
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
08/19/2019 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):
SEAZN.Admin@knobbe.com
efiling@knobbe.com
jayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ELMORE EUGENE POPE,
SCOTT ALLEN MONGRAIN, JOSEPH XAVIER
and SRIKANTH THIRUMALAI1
__________________

Appeal 2018-006752
Application 14/605,564
Technology Center 3600
____________________

Before DANIEL S. SONG, JAMES P. CALVE, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 1 and 3–18. Appeal Br. 20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 Amazon Technologies, Inc. is identified as the real party in interest and
also is the applicant pursuant to 37 C.F.R. § 1.46. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Because new technologies and new features often drive consumer
purchases, the claimed subject matter identifies new product features and
assesses whether they drive sales or consumer popularity and uses that data
to assist consumers in purchasing other products. Spec. ¶¶ 12–14.
Claims 1, 8, and 14 are independent, with claim 1 reproduced below.
1. An interactive computing system, comprising:
a server system that provides interactive user access to an
electronic catalog via a computer network, the server system
comprising a physical server;
a data repository that stores item data associated with
catalog items represented in the electronic catalog, the item data
including item attribute data, and including availability time
period data indicative of time periods in which particular
catalog items have been available, the data repository
comprising a data storage device;
a search engine that provides functionality for users to
conduct interactive searches of the electronic catalog, the search
engine comprising a search refinement user interface that
displays, with search results for a search, a listing of item
attributes associated with the search results and, for each listed
item attribute, a plurality of search refinement options based on
the respective item attribute, said search refinement options
being selectable from the search refinement user interface to
narrow the search, wherein the interactive computing system
maintains a record of search refinement events in which one or
more of the search refinement options are selected by users
from the search refinement user interface;
an attribute trend engine configured to use the item
attribute data associated with an item category, in combination
with the availability time period data for catalog items in the
item category, to identify at least (a) item attributes representing
new features that are available in the item category, and (b) for
each new feature, a prior time period in which the new feature
was not generally available in the item category, wherein the
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attribute trend engine is additionally configured to determine
levels of importance to users of the new features based at least
partly on the record of search refinement events; and
a recommendation engine configured to generate
recommendations of catalog items for users based at least partly
on data generated by the attribute trend engine, including the
identified item attributes representing new features, the
corresponding prior time periods, and the determined levels of
importance.

REJECTION
Claims 1 and 3–18 are rejected as directed to patent-ineligible subject
matter under a judicial exception to 35 U.S.C. § 101.
ANALYSIS
Section 101 of the Patent Act defines patent-eligible subject matter as:
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title. 35 U.S.C. § 101.

However, “[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) (citation omitted).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the elements of each claim, individually and
as an ordered combination, to determine if additional elements transform the
claim into a patent eligible application, e.g., by providing an “inventive
concept” that ensures the patent amounts to significantly more than a patent
on the ineligible concept. Id. at 217–218.
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Recently, the USPTO issued guidance about this framework. 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”). Under the Revised Guidance, to determine
whether a claim is “directed to” an abstract idea, we evaluate whether the
claim recites (1) any judicial exceptions, including certain groupings of
abstract ideas listed in the Revised Guidance (i.e., mathematical concepts,
certain methods of organizing human interactions 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)). See Revised Guidance, 84 Fed. Reg. at 51.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then consider
whether the claim (3) adds a specific limitation beyond the judicial
exception that is 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. Id. at 56.
Alice Step 1, Revised Step 2A, Prong One –– Judicial Exceptions
Alice Step 1, Revised Step 2A, Prong One considers whether the
claims recite a judicial exception. Revised Guidance, 84 Fed. Reg. at 54.
The Examiner determines that the claims recite recommending catalog items
based on item attributes which involve the abstract ideas of a method of
organizing human activities and/or a fundamental economic practice. Final
Act. 5. The Examiner determines that the steps of claim 8 can be performed
mentally or by a computer and also are similar to organizing human activity.
Id. at 6.
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Appellant argues that the rejection overgeneralizes and oversimplifies
the subject matter of claim 1 and ignores the attribute trend engine and the
search refinement user interface. Appeal Br. 6–7. Appellant also argues that
claim 1 may involve analysis of human activities but not organizing human
activities. Id. at 7. Appellant further argues that the claimed process is not
economic in nature and the steps cannot be performed mentally. Id. at 7–8.
We agree with the Examiner’s determination that the claims recite the
abstract ideas of organizing human activity and mental processes. Under the
Revised Guidance, these abstract ideas are (1) certain methods of organizing
human activity––commercial or legal interactions in the form of advertising,
marketing, or sales activities and (2) mental processes––concepts performed
in the human mind (including an observation, evaluation, judgement, and
opinion). Revised Guidance, 84 Fed. Reg. at 52.
Claim 1 recites these abstract ideas as including “a search engine,”
“an attribute engine,” and “a recommendation engine.” The “search engine”
includes “a search refinement user interface that displays, with search results
for a search, a listing of item attributes associated with the search results
and, for each listed item attribute, a plurality of search refinement options
based on the respective item attribute, said search refinement options being
selectable from the search refinement user interface to narrow the search.”
The search engine and user interface organize the human activity of
advertising, sales, and marketing activities by allowing users to search for
products by category and item attributes, and to refine their searches based
on the item attributes. They involve mental processes of a user evaluating
search results to form a judgment or opinion to select item attributes to use
in refining a product search to find an item to buy in an electronic catalog.
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The search engine and search refinement user interface allow users to
search for products using item attributes that represent product features in a
product category. Spec. ¶ 28. Item attributes are presented to users who are
searching an electronic catalog for a product so the users can refine (narrow)
their search for products with those attributes. Id ¶¶ 28, 29, 124–136, Fig. 6.
The “interactive computing system maintains a record of search
refinement events . . . and options that are selected by users from the search
refinement user interface.” This search record can be used to organize future
sales, marketing, and advertising activities. See id. ¶¶ 109, 110.
As claimed, the “attribute trend engine” is configured to analyze “item
attribute data” collected by the search engine “to identify at least (a) item
attributes representing new features that are available in the item category,
and (b) for each new feature, a prior time period in which the new feature
was not generally available in the item category” in order to “determine
levels of importance to users of the new features based at least partly on
record of search refinement events.” This engine uses the organized human
activity of past commercial interactions of advertising, marketing, or sales
activities to identify new product features. Id. ¶ 40.
As claimed, the “recommendation engine” is configured to “generate
recommendations of catalog items for users based at least partly on data
generated by the attribute trend engine, including the identified item
attributes representing new features, the corresponding prior time periods,
and the determined levels of importance.” This feature uses the organized
human activity involved in advertising, marketing, and sales activities to
organize other such activities by recommending products to users based on
new item attributes identified by the attribute trend engine. See id. ¶¶ 42, 60.
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The Examiner cites limitations of independent claim 8 that organize
human activity and are mental processes.2 Final Act. 5–6. Claim 8 does not
recite “an attribute trend engine” or “a recommendation engine” per se, but
the limitations cited by the Examiner involve the functions of those engines,
e.g., “maintaining a record of search refinement events” for item attributes
and “determining . . . a level of importance of the first item attribute to
users” for “generating recommendations of catalog items for users based on
at least (1) the determination that the first item attribute represents a new
feature in the item category, and (2) the determined level of importance of
the first item attribute to users.” Id. The Examiner’s analysis provides
sufficient notice to Appellant of the basis of the rejection and the limitations
of the claims that recite abstract ideas to include the features of the attribute
trend and recommendation engines. See 35 U.S.C. § 132; In re Jung, 637
F.3d 1356, 1362 (Fed. Cir. 2011); cf. Appeal Br. 6–7; Reply Br. 1–2.
The claims thus recite certain methods of organizing human activity in
commercial interactions in advertising, marketing, and sales activities by
organizing product searches and collecting and analyzing the search data to
identify new product features that drive demand for products in a category
and using the new product features to recommend products to other users to
purchase. Spec. ¶¶ 2, 3, 12–14. The claims also recite mental processes,
e.g., evaluating user search queries and histories to identify item attributes
that are important to users purchasing an item in a particular category, and
mathematical concepts and calculations to determine their importance. See
Revised Guidance, 84 Fed. Reg. at 52 n.14.

2 Independent claim 14 recites similar features to claim 8 without generating
a recommendation as is recited in claim 8. See Appeal Br. 14–17.
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The limitations of claim 8 reciting “comparing . . . item attributes
existing in an item category during a first time period to item attributes
existing in the item category during a second time period that is later than
the first time period” and “determining, based on results of the comparison,
that a first item attribute represents a new feature in the item category” also
recite certain methods of organizing human activity for advertising,
marketing, or sales activities and mental processes discussed above.
The step of “determining . . . a level of importance of the first item
attribute to users” in claim 14 recites mathematical concepts, relationships,
and calculations. Revised Guidance, 84 Fed. Reg. at 52. It identifies search
refinements whose use in a search period exceeds a threshold percentage or
number of times. Spec. ¶ 122; see also BSG Tech LLC v. Buyseasons, Inc.,
899 F.3d 1281, 1286 (Fed. Cir. 2018) (holding claims considering historical
usage while inputting data to a database recite an abstract idea); Reply Br. 2.
We also agree with the Examiner’s determination that the dependent
claims recite other features of the abstract ideas recited in the independent
claims. Final Act. 7; Ans. 4. Appellant does not argue whether any of the
dependent claims recite these abstract ideas apart from their dependency
from a particular independent claim. See Appeal Br. 6–20.
Alice Step 1, Revised Step 2A, Prong Two –– Integration
Alice Step 1, Revised Step 2A, Prong Two analyzes whether a claim
recites additional elements that integrate the abstract ideas into a practical
application. Appellant argues that claim 1 recites a search refinement
interface and tracks user interactions with the interface to determine levels of
importance of new features, which are significantly more than the abstract
ideas and are not conventional generic computing elements. Appeal Br. 10.
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We agree with the Examiner that the additional elements in the claims
are generic computing elements that are used as tools to perform the abstract
ideas and to perform well-understood functions of inputting, receiving, or
displaying data via an interactive user interface. Final Act. 7; Ans. 5–6. The
elements do not improve functioning of a computer or technological field.
Final Act. 7; Ans. 4, 6; see Revised Guidance, 84 Fed Reg. at 55. Thus, they
do not integrate the abstract ideas into a practical application.
The Specification describes the interactive computing system 110 as
“a network application, such as a web application or website, for identifying
product attributes and features, and for recommending and selling products
or items to a user.” Spec. ¶ 22. Interactive computing system 110 can be
implemented in hardware and/or software and can include one or more
servers 120 such as web servers, application servers, database servers, or
combinations thereof. Id. ¶ 23. “The electronic catalog search page 600 can
generally include any type of page for searching an electronic catalog from a
catalog service 130.” Id. ¶ 124. A user can search the catalog for products
using search field 602. Id. ¶ 125. The catalog search page 600 can present
the user with search refinement options 610 that vary with the search result
and product classification to include attributes associated with products such
as price, zoom, and megapixels for digital cameras. Id. ¶¶ 127–29.
The data repository systems can include any repository, database, or
information storage system that stores information associated with items and
users. The information can be any type of data such as product descriptions,
account information, customer reviews, and item tags. Id. ¶¶ 43–46. The
attribute extractor 154 of recommendation system 150 is any system that can
extract attributes from product-related content for a product. Id. ¶ 32, Fig. 1.
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Thus, the independent claims recite generic computer components that
perform generic computer functions. They collect and analyze data at a high
level of generality. These features do not integrate the abstract ideas into a
practical application because they do not tie the abstract ideas to a particular
machine that is integral to the claims, nor do they transform or reduce a
particular article to a different state or thing or improve the functioning of a
computer or technical field. See Revised Guidance, 84 Fed. Reg. at 55.
DDR Holdings, Core Wireless, and McRO do not support integration
as Appellant argues. Appeal Br. 8–10. DDR dealt with a computer- and
Internet-specific problem of websites losing visitors to third-party merchants
when visitors clicked on a third-party merchant’s advertisement on a host
site. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1248 (Fed.
Cir. 2014). The claimed system generated a new, composite web page that
retained the look and feel of the host website while displaying the product
information of a third-party merchant. Id. at 1248–49.
In McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299
(Fed. Cir. 2016), the claims focused on a concrete improvement in the field
of computer animation. The process used a combined order of specific rules
that rendered information into a specific format that was used and applied to
create a desired result––a sequence of synchronized, animated characters.
McRO, 837 F.3d at 1314–15. The claims recited a process of automated lip-
synchronization of 3-D characters using a specific order of rules that specify
a relationship between sub-sequences of phonemes, timing, and weight of
visual expression at a particular timing by a morph weight set. Id. at 1315.
Here, users enter item attributes (data) via a generic interface to search
an electronic catalog, which is a method of organizing human activity.
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The holding in Core Wireless Licensing S.A.R.L. v. LG Elec., Inc., 880
F.3d 1356 (Fed. Cir. 2018) also shows why the abstract ideas in this case are
not integrated into a practical application. The claims in Core Wireless were
directed to an improved user interface. 880 F.3d at 1362. The claimed
“application summary” specified a particular manner to access a summary
window, a particular type of data to be displayed in the summary window,
and a particular time to display the summary window when an application is
in an un-launched state. Id. at 1362–63. The claims thus recited a specific
improvement to user interfaces that displayed a limited set of information
using unconventional user interface methods. Id. at 1363.
Here, the recited abstract ideas are applied on generic computers that
perform generic functions of collecting, analyzing, and displaying data.
These features do not integrate the abstract ideas into a practical application.
Steps of collecting and analyzing data and displaying the results specified at
a high level of generality, as in the claims, does not make the claims patent-
eligible. See, e.g., BSG Tech, 899 F.3d at 1286–87; Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353–54 (Fed. Cir. 2016); Content Extraction
& Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348
(Fed. Cir. 2014); Revised Guidance, 84 Fed. Reg. at 55 n.31.
The dependent claims recite other features of the abstract ideas of the
independent claims. Final Act. 7; Ans. 4. Claims 3, 9, and 15 recite that an
item attribute’s level of importance is based on how frequently users select
the item attribute as a search refinement from a search refinement interface.
This feature involves the methods of organizing human activity, mental
processes, and mathematical concepts recited in the independent claims.
The importance of a feature is based on how often it is used in a search.
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Claims 4, 5, 10, 11, and 18 recite other aspects of the abstract ideas.
They involve identifying a first item attribute that is a new feature in an item
category and a period when the new feature was unavailable, identifying a
user who purchased a first catalog item in the item category during the first
period when the new feature was lacking, identifying a second catalog item
that includes the new feature, and recommending the second catalog item to
the user based on the user’s purchase of the first catalog item during the first
time period via messaging that identifies the new feature’s unavailability
when the user purchased the first catalog item. These features involve the
methods of organizing human activity and mental processes recited in the
independent claims. They are steps that people can perform in their minds,
and they organize human activity for commercial interactions of advertising,
marketing, and sales activities by recommending products with new features.
The Specification defines “new attribute” to “include attributes that
have changed to a new state” and “new product feature” to “include product
features that have changed or improved.” Spec. ¶ 17. The availability of a
new product feature may be used as a basis to recommend other products
with that feature. Id. ¶ 14. The recommendations may be targeted to users
who purchase a product within the product category before the new feature
was available. Id. The system may send personalized notifications to users
regarding the availability of new product features. Id. Thus, item attributes
are identified and organized for marketing, sales, and advertising activities.
Claims 6 and 12 recite the abstract idea that the recommendation is
made based on “an average upgrade interval for an item category” and “an
amount of time since the user purchased the first catalog item.” These ideas
simply manage human activities for sale, marketing, and advertising.
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None of these features improves computers, databases, networks, or
user interfaces. Appellant argues that the features are “significantly more”
than an abstract idea, but Appellant does not identify any improvements to
computers or technology. Appeal Br. 10–19. Instead, Appellant argues that
“nothing in the record suggests that it was known or conventional to record
search refinements made by users using the recited search refinement user
interface, and to use these recorded search refinements to determine a level
of importance of an item attribute or new feature to users.” Id. at 10. This
feature involves the abstract ideas discussed above. The claims recite these
concepts at a high level of generality as collecting search activity to identify
new item features and recommending products with those features to others.
Even if we assume that these techniques are “[g]roundbreaking,
innovative, or even brilliant,” that is not enough for eligibility. Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013);
accord SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (“No matter
how much of an advance in the finance field the claims recite, the advance
lies entirely in the realm of abstract ideas, with no plausibly alleged
innovation in the non-abstract application realm. An advance of that nature
is ineligible for patenting.”); Synopsys, Inc. v. Mentor Graphics Corp., 839
F.3d 1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still
an abstract idea. The search for a § 101inventive concept is thus distinct
from demonstrating § 102 novelty.”); Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1315 (Fed. Cir. 2016) (“While the claims
may not have been anticipated or obvious . . . that does not suggest that the
idea of “determining” and “outputting” is not abstract, much less that its
implementation is not routine and conventional.”); cf. Reply Br. 2.
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In this regard, the recommendation system 150 can identify search
refinements that are used a threshold percentage or certain number of times
during a search time period. Spec. ¶ 122. The item attributes and/or product
features associated with those search refinements are classified as important
to users. Id. Therefore, the recommendation feature involves the abstract
ideas of mathematical concepts, relationships, and calculations and mental
processes. An item attribute is “important” if it is used to search a catalog
for a product a certain number of times in a time period. Id. However, no
improvement is made to computers, networks, or interfaces thereby. Thus,
the innovation, if any, is an innovation in ineligible subject matter.
Alice Step 2, Revised Step 2B –– Inventive Concept
We next consider whether the claims recite any elements, individually
or as an ordered combination, that provide an inventive concept. Alice, 573
U.S. at 217–18. “The second step of the Alice test is satisfied when the
claim limitations involve more than performance of well-understood, routine
[and] conventional activities previously known to the industry.” Berkheimer
v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (internal quotations and
citation omitted); see also Revised Guidance, 84 Fed. Reg. at 56 (explaining
that the second step of the Alice analysis considers whether a claim adds a
specific limitation beyond a judicial exception that is not “well-understood,
routine, conventional” activity in the field).
As discussed above, the Specification describes, and the claims recite,
generic computer components and features that perform generic functions of
data collection and analysis and displaying the results of the analysis. Any
innovation recited in the claims lies entirely in the realm of abstract ideas.
No computer, interface, or network technology is improved thereby.
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The user interface applies the abstract ideas on a computer. A user
can select “item attributes” to search for an item in an electronic catalog.
See Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d
1332, 1342 (Fed. Cir. 2017) (“the recited dynamic document provides little
more than an unspecified set of rules for displaying and organizing MRTs
[management record types] in a user interface akin to the generic interfaces
we have elsewhere explained impart no inventive concept.”); Affinity Labs of
Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262–63 (Fed. Cir. 2016)
(finding that the claim recites a graphical user interface as a generic feature;
“The essential advance is not in the process of downloading applications, but
only in the content of this particular application, and that is nothing but a
functionally described display of information. That description does not
cross out of the abstract idea category.”); Intellectual Ventures I LLC v.
Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“the
‘interactive interface’ simply describes a generic web server with attendant
software, tasked with providing web pages to and communicating with the
user’s computer.”). Mining search engine data to identify features that are
used a certain number of times and equating such usage to importance also
involves an abstract idea rather than an innovation in computer technology.
Thus, we sustain the rejection of claims 1 and 3–18.
DECISION
We affirm the rejection of claims 1 and 3–18.
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