Elmore Eugene. Pope et al.Download PDFPatent Trials and Appeals BoardAug 19, 201914605564 - (D) (P.T.A.B. Aug. 19, 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. 14/605,564 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. Appeal 2018-006752 Application 14/605,564 2 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 Appeal 2018-006752 Application 14/605,564 3 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. Appeal 2018-006752 Application 14/605,564 4 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. Appeal 2018-006752 Application 14/605,564 5 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. Appeal 2018-006752 Application 14/605,564 6 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. Appeal 2018-006752 Application 14/605,564 7 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. Appeal 2018-006752 Application 14/605,564 8 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. Appeal 2018-006752 Application 14/605,564 9 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. Appeal 2018-006752 Application 14/605,564 10 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. Appeal 2018-006752 Application 14/605,564 11 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. Appeal 2018-006752 Application 14/605,564 12 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. Appeal 2018-006752 Application 14/605,564 13 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. Appeal 2018-006752 Application 14/605,564 14 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. Appeal 2018-006752 Application 14/605,564 15 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 Copy with citationCopy as parenthetical citation