Ex Parte Aldrey et al

Patent Trial and Appeal Board

Oct 16, 2017

12648840 (P.T.A.B. Oct. 16, 2017)

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.
12/648,840 12/29/2009 Raul I. ALDREY 20090449 4541
25537 7590
VERIZON
PATENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
EXAMINER
KOLOSOWSKI-GAGER, KATHERINE
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
10/18/2017 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):
patents @ verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAUL I. ALDREY and NICKY P. JOSHI
Appeal 2016-008181
Application 12/648,8401
Technology Center 3600
Before HUNG H. BUI, AARON W. MOORE, and JASON M. REPKO,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—25, which are all the claims pending
in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is Verizon
Communications, Inc. App. Br. 3.
2 Our Decision refers to Appellants’ Appeal Brief (“App. Br.”) filed
September 28, 2015; Reply Brief (“Reply Br.”) filed September 1, 2016;
Examiner’s Answer (“Ans.”) mailed July 15, 2016; Final Office Action
(“Final Act.”) mailed May 6, 2015; and original Specification (“Spec.”) filed
December 29, 2009.
Appeal 2016-008181
Application 12/648,840
STATEMENT OF THE CASE
Appellants’ invention relates to “a subscription multimedia service
provider [196, shown in Figure 1] to present customized promotions [i.e., an
advertisement to a specific customer] via a media client/television display
[140-1, 140-2] based on [1] knowledge of the equipment [150-1/150-2, 160-
1/160-2, 170-1/170-2, 180] within the customer’s premises [192/194], [2]
current service levels for the customer, and/or [3] past customer
interactions.” Spec. ^fl[ 1, 12.
Appellants’ Figure 1 is reproduced below with additional markings
for illustration.
Appellants’ Figure 1 shows a subscription multimedia service provider 196
to present customized promotions to a specific customer,
via media client 140-1/140-2.
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As shown in Appellants’ Figure 1, media client 140 may include a set­
top box (STB), a computer, a cable card, and a portable electronic device.
Spec. 120. “In some implementations, media client 140 may serve as a hub
for multiple devices, such as display device 150-2, computing device 160-2,
telephone 170-2, and cellular phone 180-2 of customer premises 194.”
Spec. 120. In other implementations, “media client 140 may be
incorporated into display device 150, such as a television, a computer, or a
portable electronic device.” Spec. 121.
Backend server 100 includes activity/device tracker 400 to receive (1)
user activity data (e.g., customer transaction histories, subscription records
including particular services and/or equipment purchased) and (2) local
device data (e.g., information regarding other equipment associated with
customer premise) from media client 140, and establish an account profile
for storage in profile database 120.
Claims 1,9, 17, and 22 are independent. Claim 1 illustrates the
subject matter at issue, as reproduced below with disputed limitations in
italics:
1. A method comprising:
retrieving, by one or more devices, account profile
information associated with a media client, [1] the account
profile information including information, obtained by the media
client, about one or more other devices within a customer
premises [sic] associated with the media client, the one or more
other devices being different than the media client, and the
information being obtained by the media client based on the
media client requesting the information from the one or more
other devices',
[2] determining, by the one or more devices and based
on the account profile information, one or more capabilities
associated with a respective at least one of the one or more other
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Application 12/648,840
devices within the customer premises, each capability, of the one
or more capabilities, being associated with a particular
subscription service;
[3] determining, by the one or more devices and based
on the one or more capabilities associated with the respective at
least one of the one or more other devices, that at least one of the
one or more capabilities associated with the respective at least
one of the one or more other devices is not being provided by the
respective at least one of the one or more other devices',
retrieving, by the one or more devices, a listing of
candidate advertising components for a customized promotion;
selecting, by the one or more devices and based on the
account profile information, a particular type of device
associated with the respective at least one of the one or more
other devices, and the determined at least one of the one or more
capabilities not being provided by the respective at least one of
the one or more other devices, a particular advertising component
from the listing of candidate advertising components, the
particular advertising component being associated with a
subscription service, the subscription service being capable of
being provided by the respective at least one of the one or more
other devices; and
sending, by the one or more devices and to the media
client, instructions for presenting the selected advertising
component.
App. Br. 38—39 (Claims App’x) (bracketing added).
Examiner’s Rejections and References
(1) Claims 1—25 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Final Act. 2—5.
(2) Claims 1—25 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Story et al. (US 2008/0091796 Al; published Apr. 17,
2008; “Story”), Barnes et al. (US 8,160,615 Bl; issued Apr. 17, 2012;
“Barnes”), and Groff et al. (US 7,865,646 Bl; issued Dec. 21, 2010;
“Groff’). Final Act. 6-14.
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ANALYSIS
§101 Rejection of Claims 1—25
In Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347 (2014), the
Supreme Court reiterates an analytical two-step framework previously set
forth in Mayo Collaborative Servs. v. Prometheus Laboratories, Inc., 132 S.
Ct. 1289, 1297 (2012), “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 134 S. Ct. at 2355. 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. If the
claims are directed to a patent-ineligible concept, the second step in the
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.”
Id. (citing Mayo, 132 S. Ct. at 1297—98). In other words, the second step is
to “search for an ‘inventive concept’—i.e., an 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.’” Id.
(citing Mayo, 132 S. Ct. at 1294—95).
In rejecting independent claims 1,9, 17, and 22 and dependent claims
2—8, 10-16, 18—21, and 23—25 under 35 U.S.C. § 101, the Examiner finds
(1) these claims are directed to an abstract idea of “providing an
advertisement targeted based on device capabilities” and (2) “providing a
target advertisement” is a method of organizing human activities (targeted
advertisement) of the type recognized by the Supreme Court as a patent-
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Application 12/648,840
ineligible “abstract idea” in Bilski v. Kappos, 561 U.S. 593 (2010), and
Alice, 134 S. Ct. at 2356. Final Act. 4; Ans. 2. The Examiner also finds
that:
determining device capabilities . . . and selecting an
advertisement based on that data (utilizing a processor) in
independent method claim 16 [sic] are not enough to quality as
“significantly more” than the abstract idea itself... Furthermore,
there is no improvement to another technology or technical field,
no improvements to the functioning of the computer itself, and
no meaningful limitations beyond generally linking the use of an
abstract idea to a particular technical environment, and the claims
require no more than a generic computer to perform generic
computer functions that are well-understood, routine and
conventional. Therefore, based on the two-part Alice Corp.
analysis, there are no meaningful limitations in the claims that
transform the exception (i.e., abstract idea) into a patent eligible
application.
Final Act. 4—5.
As to the first step of the Alice inquiry, Appellants contend claims 1—
25 “are not directed to an abstract idea because they do not threaten to
‘monopolize’ or ‘preempt’ a ‘fundamental business practice’.” App. Br. 11.
Instead, Appellants argue these claims address a business challenge that is
“necessarily rooted in computer technology” “in order to overcome a
problem specifically arising in the realm of computer networks” similar to
the claims in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed.
Cir. 2014). Id. at 11—12. In addition, Appellants argue that:
the claims provide a technology-based solution (not an abstract-
idea-based solution implemented with generic technical
components in a conventional way) to provide information, via
a media client, based on knowledge of equipment within a
customer premises and current service levels for the customer,
that overcomes existing problems with current systems. See,
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Application 12/648,840
BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC,
[827 F.3d 1341 (Fed. Cir. 2016)].
Reply Br. 6. According to Appellants,
[b]y taking a prior system (e.g., a backend server of a service
provider) and making it more dynamic and efficient (e.g.,
enabling the backend server to provide customized promotions,
via a media client, based on knowledge of equipment within a
customer premises, current service levels for a customer, and/or
past customer interactions), the claimed invention represents a
software-based invention that improves the performance of the
computer system itself.
Id.
As to the second step of the Alice inquiry, Appellants reiterate the
argument regarding DDR Holdings, i.e., “the claims improve the functioning
of a computer,” and further argue that these claims “involve an ‘inventive
concept.’” App. Br. 13—15.
We are not persuaded by Appellants’ arguments. As correctly
recognized by the Examiner, Appellants’ claims 1—25, when considered in
light of the Specification, are directed to an abstract idea of “providing a
targeted advertisement.” Final Act. 4; Ans. 2. For example, the steps
recited in Appellants’ claim 1, including: (i) “retrieving . . . account profile
information associated with a media client,” (ii) “determining . . . one or
more capabilities associated with a respective at least one of the one or more
other devices within the customer premises,” (iii) “determining . . . that at
least one of the one or more capabilities ... is not being provided by the
respective at least one of the one or more other devices,” (iv) “retrieving . . .
a listing of candidate advertising components for a customized promotion,”
(v) “selecting ... a particular advertising component from the listing of
candidate advertising components,” and (vi) “sending . . . instructions for
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Application 12/648,840
presenting the selected advertising component,” are abstract processes of
collecting, storing, retrieving, and analyzing information of a specific
content prior to sending the targeted advertisement. Because information as
such is intangible, see Microsoft Corp. v. AT&T Corp., 127 S. Ct. 1746,
1756 n.12 (2007), information collection and analysis, including when
limited to particular content, is within the realm of abstract ideas. See, e.g.,
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1349 (Fed.
Cir. 2015); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d
1344, 1351 (Fed. Cir. 2014); CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1370 (Fed. Cir. 2011).
Contrary to Appellants’ arguments, the Specification does not
describe, and Appellants do not present evidence to establish, how these data
gathering steps are intended to: (1) provide a “solution . . . necessarily
rooted in computer technology in order to overcome a problem specifically
arising in the realm of computer networks,” as in DDR Holdings, 773 F.3d at
1257; (2) transform the abstract idea into “a particular, practical application
of that abstract idea,” as in Bascom, 827 F.3d at 1350 (approving claims to
“installation of a filtering tool at a specific location, remote from the end-
users, with customizable filtering features specific to each end user”); or (3)
“entail[] an unconventional solution (e.g., enhancing data in a distributed
fashion) to a technological problem (e.g., massive record flows which
previously required massive databases)” and “improve the performance of
the system itself,” as in Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841
F.3d 1288, 1302, 1306 (Fed. Cir. 2016). Instead, as correctly recognized by
the Examiner, Appellants’ invention (1) “does not overcome a problem
specifically arising in the realm of computer networks” and (2) only
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highlights “potential improvements to a system of targeted advertising by
using pre-existing information about a customer, NOT the functioning of the
computing environment in which it operates.” Ans. 3.
Turning now to the second step of the Alice inquiry, we find nothing
in these claims that adds “significantly more” to transform the abstract
concept of collecting, storing, retrieving, and analyzing information into a
patent-eligible application. Alice, 134 S. Ct. at 2357. Appellants do not
argue any one of the steps recited in claims 1,9, 17, and 22 is individually
inventive. Nor do Appellants argue the ordered combination of these
elements is inventive. App. Br. 11—15. Instead, Appellants’ claims 1, 9, 17,
and 22 simply incorporate a general-purpose computer and generic
components such as “a memory,” “a processor,” and “one or more devices
within a customer premise” to perform the abstract concept of collecting,
storing, retrieving, and analyzing information.
Limiting the abstract concept of collecting, storing, retrieving, and
analyzing information to a general purpose computer having generic
elements, such as the processor, memory, and computer readable storage
medium recited in Appellants’ claims 1, 9, 17, and 22, does not transform
the abstract idea into a patent eligible invention under 35 U.S.C. § 101. Ans.
3. As recognized by the Supreme Court, “the mere recitation of a generic
computer cannot transform a patent ineligible abstract idea into a patent-
eligible invention.” See Alice, 134 S. Ct. at 2358—59 (concluding claims
“simply instructing] the practitioner to implement the abstract idea of
intermediated settlement on a generic computer” are not patent eligible); see
also Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715—16 (Fed. Cir.
2014) (concluding claims merely reciting the abstract idea of using
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Application 12/648,840
advertising as currency as applied to particular technological environment of
the Internet are not patent eligible); Accenture Glob. Servs., GmbHv.
Guidewire Software, Inc., 728 F.3d 1336, 1344-45 (Fed. Cir. 2013)
(concluding claims reciting “generalized software components arranged to
implement an abstract concept [of generating insurance-policy-related tasks
based on rules to be completed upon the occurrence of an event] on a
computer” are not patent eligible); Dealertrack, Inc. v. Huber, 674 F.3d
1315, 1333—34 (Fed. Cir. 2012) (“[sjimply adding a ‘computer aided’
limitation to a claim covering an abstract concept, without more, is
insufficient to render [a] claim patent eligible”).
Appellants’ preemption argument is insufficient to show error
because, although “preemption may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate patent eligibility.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015). Moreover, where, as here, “a patent’s claims are deemed only to
disclose patent ineligible subject matter under the [Alice] framework . . .
preemption concerns are fully addressed and made moot.” Ans. 2—3.
Because Appellants’ claims 1—25 are directed to a patent-ineligible
abstract concept, and do not recite something “significantly more” under the
second prong of the Alice analysis, we sustain the Examiner’s rejection of
these claims under 35 U.S.C. § 101 as being directed to non-statutory subject
matter in light of Alice and its progeny.
§ 103(a) Rejection of Claims 1—25 based on Story, Barnes, and Groff
In support of the obviousness rejection of independent claims 1,9, 17,
and 22, the Examiner finds Story teaches a system and method for
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customized content delivery (e.g., target advertising) tailored to a specific
customer, via a network shown in Figure 1, including:
(1) “retrieving by one of the one or more devices,
account profile information associated with a media client”
(Story || 13—15, 45; Abstract);
(2) “retrieving, by one of the one or more devices, a
listing of candidate advertising components for a customized
promotion” (Story | 39);
(3) “selecting, by one of the one or more devices and
based on the account profile information, a particular advertising
component form the listing of candidate advertising
components” (Story || 36—37, Fig. 6); and
(4) “sending by one of the one or more devices and to
the media client, instructions for presenting the selected
advertising component” (Story 113, Fig. 2).
Final Act. 6.
Story’s Figure 1 is reproduced below:
Story’s Figure 1 shows a server (content provider) 105 providing customized
content delivery (e.g., target advertising) tailored to a specific customer at a
computer device (i.e., media client) 115 supporting one or more devices 120
within a customer premise, via a network 110.
120
/
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Application 12/648,840
According to Story, the customized content delivery (e.g., target
advertising) tailored to a specific customer, via a network 110 shown in
Figure 1, is based on numerous criteria, including, but not limited to:
“attributes of a user, usage characteristics, subject matter of previous
downloads, subscription details, and targeted advertising.” Abstract. Story
also teaches the use of customer account profile information associated with
a media client in the context of a server (content provider) 105 requiring a
customer (user) to register each device (e.g., PDA, cell phone, MP3 player)
120 at a customer premise by way of its identifiers (i.e., hardware serial
numbers, device names, device types) so as to allow the server (content
provider) 105 to maintain control over the customized content. Story Ull,
45.
To support the conclusion of obviousness, the Examiner further relies
on Barnes and Groff for expressly teaching the use of specific knowledge of
one or more devices within a customer premise, including:
[(1)] determining, by the one or more devices and based
on the account profile information, one or more capabilities
associated with a respective at least one of the one or more other
devices within the customer premises fsicj. each capability, of
the one or more capabilities, being associated with a particular
subscription service; [and]
[(2)] determining, by the one or more devices and based
on the one or more capabilities associated with the respective at
least one of the one or more other devices, that at least one of the
one or more capabilities associated with the respective at least
one of the one or more other devices is not being provided by the
respective at least one of the one or more other devices.
Final Act. at 7—8 (citing Barnes 1:25—50, 2:55—65, 6:10-30; and Groff 3:10—
15, 7:32—55, 9:10-12, Claim 1) (emphasis added).
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Appellants do not dispute the Examiner’s rationale for combining
Story, Barnes, and Groff. Instead, Appellants contend the combination of
Story, Barnes, and Groff does not teach or suggest:
account profile information including information, obtained by
the media client [that receives instructions for presenting an
advertising component], about one or more other devices within
a customer premises \sic] associated with the media client, the
one or more other devices being different than the media client,
and the information being obtained by the media client based on
the media client requesting the information from the one or more
other devices,
as recited in claims 1 and 9, and similarly recited in claims 17 and 22. App.
Br. 17—18 (emphasis added). In particular, Appellants argue: (1) “[t]he
Examiner admits that STORY et al. fails to teach or suggest these features of
claim 1” (id. at 18 citing Final Act. 6—7); (2) that while Barnes teaches
association between a user profile and wireless devices, “there is no teaching
or suggestion ... of any ‘media client’ that obtains information ‘about one
or more other devices within a customer premises [sic] associated with the
media client’ based on ‘requesting the information from the one or more
other devices’” (id. at 19—25 citing Barnes 1:25—50, 2:55—65, 3:5—25, 3:30-
4:25, 6:10-30, Fig. 5); and (3) “GROFF et al. fails to cure the deficiencies of
BARNES et al.” (id. at 26).
In addition, Appellants contend the combination of Story, Barnes, and
Groff does not teach or suggest the specific knowledge of one or more
devices within a customer premise, including:
[(1)] determining, by the one or more devices and based
on the account profile information, one or more capabilities
associated with a respective at least one of the one or more other
devices within the customer premises Tsic], each capability, of
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the one or more capabilities, being associated with a particular
subscription service; [and]
[(2)] determining, by the one or more devices and based
on the one or more capabilities associated with the respective at
least one of the one or more other devices, that at least one of the
one or more capabilities associated with the respective at least
one of the one or more other devices is not being provided by the
respective at least one of the one or more other devices.3
App. Br. at 26—35 (emphasis added). In particular, Appellants argue Groff
“is silent regarding determining any capability associated with ‘one or more
other devices within the customer premises [sic].’” Id. at 27—28, 30, 32
(citing Groff 3:10-15, 7:32—55, 9:10-12, Claim 1).
We are not persuaded by Appellants’ arguments. Obviousness is a
question of law based on underlying factual findings, In re Baxter Intern.,
Inc., 678 F.3d 1357, 1361 (Fed. Cir. 2012), including what a reference
3 In the event of further prosecution, we invite the Examiner to consider
rejecting claims 1—25 under 35U.S.C. § 112, 1st paragraph, for lack of
“enablement” and “written support” for including a separate determination
step that involves “determining . . . that at least one of the one or more
capabilities associated with . . . one or more other devices is not being
provided by . . . the one or more other devices,” as recited in independent
claims 1, 9, and 17. The separate determination step added by Appellants in
the Amendment filed on April 29, 2013 is not supported by Appellants’
Specification and Appellants did not identify support from the Specification.
Instead, Appellants’ Specification only describes customer profile
information as including generic “information regarding other equipment
associated with customer premises 192/194 [shown in Figure 1] (e.g.,
equipment not particularly related to current subscriptions with a multimedia
service provider) provided from media clients.” Spec. ^fl[ 45^47, 57, 67—68,
79 (“where the account profile information includes information, obtained
by the media client, about devices within customer premises associated with
the media client”). Appellants’ Specification does not teach a separate
determination step as recited in claims 1, 9, and 17.
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teaches, In re Beattie, 91A F.2d 1309, 1311 (Fed. Cir. 1992), and the
existence of a reason to combine references, In re Hyon, 679 F.3d 1363,
1365—66 (Fed. Cir. 2012). However, in an obviousness analysis, it is not
necessary to find precise teachings directed to the specific subject matter
claimed because inferences and creative steps that a person of ordinary skill
in the art would employ can be taken into account. See KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). In this regard, “[a] person of
ordinary skill is also a person of ordinary creativity, not an automaton.” Id.
at 421.
Contrary to Appellants’ arguments, both Story and Groff disclose
providing customized content delivery (i.e., targeted advertising) tailored to
a specific customer based on a customer profile. See Story H 11, 13—15,
36—37, 45, Fig. 2, Abstract; Groff 3:10-15, 7:32—55, 9:10—22. For example,
Story teaches preparing or updating customer profile information when a
customer (user) registers each device (e.g., PDA, cell phone, MP3 player)
120, via media client 115 at a customer premise, shown in Figure 1, by way
of its identifiers (i.e., hardware serial numbers, device names, device types)
so as to allow the server (content provider) 105 to deliver and maintain
control over the customized content (i.e., targeted advertising or promotional
material). Story 111. The customer profile information includes
information regarding the characteristics of the customer as well as the
customer’s device (e.g., PDA, cell phone, MP3 player) 120 available at a
customer premise, via media client 115. Story || 32, 45.
Based on these teachings, we find the combination of Story, Barnes,
and Groff teaches or suggests the disputed limitation: “account profile
information including information, obtained by the media client [that
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receives instructions for presenting an advertising component], about one or
more other devices within a customer premises fsic] associated with the
media client, the one or more other devices being different than the media
client, and the information being obtained by the media client based on the
media client requesting the information from the one or more other devices,”
as recited in claims 1 and 9, and similarly recited in claim 17 (emphasis
added). Likewise, we also find a skilled artisan would understand that the
combination of Story, Barnes, and Groff teaches or suggests about learning
capabilities of one or more devices within a customer premise, including
those not provided by the one or more devices, based on the customer’s
“account profile information” in the manner recited in Appellants’ claims 1,
9, and 17.
Based on this record, we are not persuaded of Examiner error.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claims 1,9, 17, and 22, as well as their dependent claims 2—8,
10-16, 18-21, and 23-25.
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 1—25 under 35 U.S.C.
§ 101 and § 103(a).
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DECISION
As such, we affirm the Examiner’s rejection of claims 1—25 under
35 U.S.C. § 101 and § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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