Ex Parte Bjarnestam et al

Patent Trials and Appeals Board

Mar 29, 2019

11449380 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/449,380 06/07/2006
25096 7590 04/02/2019
PERKINS COIE LLP - SEA General
PATENT-SEA
P.O. BOX 1247
SEATTLE, WA 98111-1247
FIRST NAMED INVENTOR
Anna Bjarnestam
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
025828-8007.USOO 5327
EXAMINER
TRAN,BAOG
ART UNIT PAPER NUMBER
2158
NOTIFICATION DATE DELIVERY MODE
04/02/2019 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):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANNA BJARNESTAM, MARY FORSTER, NATE GANDERT,
STEVEN F. HECK, ZIJI HUANG, MONIKA MACGUFFIE,
ALVIN NANCE, and THOMAS M. O'LEARY
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Application 11/449,380 1
Technology Center 2100
Before DAVID M. KOHUT, ERIC B. CHEN, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 1, 5-9, 13-17, 21-25, 29-33, 37--41,
44--48, and 52----67. Claims 2--4, 10-12, 18-20, 26-28, 34--36, 42--43, and
49-51 have been canceled. See App. Br. 40-51 (Claims Appendix). We
have jurisdiction over the pending claims under 35 U.S.C. § 6(b ).
We reverse.
1 According to Appellants, the real party in interest is Getty Images,
Inc.. App. Br. 1.
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STATEMENT OF THE CASE
Appellants' Invention
Appellants' invention generally relates to "classifying media content
using a structured vocabulary." Spec. ,r 2. Claim 1, which is illustrative of
the claimed invention, reads as follows:
1. A method performed by a computing device of
processing metadata associated with pieces of visual content in
order to classify the pieces of visual content using terms
contained in a structured vocabulary, the method comprising:
receiving over a communication network visual content
having associated metadata, wherein the metadata comprises an
author of the visual content, a title of the visual content, or a
description of the visual content;
automatically filtering by the computing device the
received metadata to remove some elements of the metadata
while retaining other elements of the metadata, wherein the
elements are removed based on the type of visual content that is
received, the elements that are removed comprising a subset of
words, numbers, characters, or other symbols of the received
metadata;
maintaining a structured vocabulary of terms that
includes terms for searching visual content, wherein each term
in the structured vocabulary bears a parent, child, or sibling
relationship with another term in the structured vocabulary;
programmatically segmenting by the computing device
the remaining elements of metadata into one or more
descriptive phrases based on an application-specific dictionary
for classifying visual content, wherein the application-specific
dictionary is a subset of the maintained structured vocabulary of
terms;
comparing by the computing device the one or more
descriptive phrases with the structured vocabulary of terms in
order to identify one or more terms in the structured vocabulary
that are related to the one or more descriptive phrases; and
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creating by the computing device an association between
the identified one or more terms and the visual content so that
the visual content is characterized by the one or more terms.
Rejections
Claims 17, 21-25, 29-32, 52, 53, and 60-63 stand rejected under
35 U.S.C. § 112, second paragraph, as being indefinite in scope. Non-final
Act. 8-9.
Claims 17, 21-25, 29-32, 52, 53, and 60-63 stand rejected under
35 U.S.C. § 112, first paragraph, as lacking a written description. Non-final
Act. 9-11.
Claims 1, 5-9, 13-17, 21-25, 29-33, 37--41, 44--48, and 52----67 stand
rejected under 35 U.S.C. § 101 because the claimed subject matter is
judicially-excepted from patent eligibility under § 101. Non-final Act. 11-
13.
Claims 1, 5-9, 13-17, 21-25, 29-33, 37--41, 44--48, and 52-67 stand
rejected under 35 U.S.C. § I03(a) as being unpatentable over Bjamestam
(US 6,735,583 Bl; May 11, 2004), Antonoff (US 2006/0069733 Al;
Mar. 30, 2006), and Morris (US 2006/0112067 Al; May 25,
2006). Non-final Act. 13-30.
REJECTIONS UNDER 35 U.S.C. § 112
The Examiner rejects independent claims 17 and 52, and their
dependent claims 21-25, 29-32, 53, and 60----63, as lacking a written
description and definite scope for limitations invoking 35 U.S.C. § 112,
sixth paragraph-that is, for claim elements deemed means-plus-function
elements. Non-final Act. 5-7 (identifying means-plus-function elements),
7-9 (finding indefiniteness), 9-11 (finding lack of written description). The
alleged means-plus-function elements are recited in claims 17 and 52 as
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either a "component for" or "component that" ( e.g., claim 17' s "structured
vocabulary component for ... "). Id. at 5-7. Appellants do not dispute that
the identified limitations invoke 35 U.S.C. § 112, sixth paragraph. Id. at 19-
26.
When determining whether a means-plus-function claim element
lacks a written description or definite scope, for purposes of reviewing
rejections, the baseline issue is whether the specification fails to disclose
sufficient structure for performing the recited function. Manual of Patent
Examining Procedure (MPEP) § 2163.04.I.B. 2 Because of the difficulty in
proving an entire specification lacks such a disclosure (i.e., proving a
negative), the prima facie case can merely notify the applicant of all claim
elements (i.e., specify those elements) found to lack a corresponding
disclosure of sufficient structure. See e.g., Hyatt v. Dudas, 492 F.3d 1365,
2 This in-common "baseline issue" for both rejections arises from the
manner in which means-plus-function elements are examined under the
MPEP. Examiners are instructed:
[W]hen a means- ( or step-) plus-function claim limitation is
found to be indefinite based on failure of the specification to
disclose sufficient corresponding structure, materials, or acts
that perform the entire claimed function, then the claim
limitation necessarily lacks an adequate written description.
Thus, when a claim is rejected as indefinite under
35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph
because there is no corresponding structure, materials, or acts,
or an inadequate disclosure of corresponding structure,
materials, or acts, for a means- ( or step-) plus-function claim
limitation, then the claim must also be rejected under
35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, for
lack of an adequate written description.
MPEP § 2163.04.I.B.
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1370 (Fed. Cir. 2007). Once that notification occurs, the burden of
production shifts to the applicant to rebut the prima facie case, i.e., to
respond with meaningful evidence and argument. Id.
Appellants have meaningfully responded to the prima facie
identification of the means-plus-function elements. For claim 17, Appellants
cite and analyze: the Specification's paragraph 17 and disclosures of an
incorporated U.S. patent (US 6,735,583, col. 5, 11. 34--38; col. 6, 11. I-col. 7,
1. 14; Figures 3-5) for the "structured vocabulary component"; the
Specification's paragraphs 14, 17, 20, and 26-28 for the "segmentation
component"; the Specification's paragraphs 21 and 31, and Figure 5, for the
"matching component"; the Specification's paragraphs 21, 35, and 37, and
Figures 5---6, for the "mapping component". App. Br. 19-24. For claim 52,
Appellants state that "claim 52' s recitation of those elements requires
substantially similar limitations and steps." Id. at 24.
The Examiner has not meaningfully replied. The Examiner provides
no analysis of whether, for example, the cited Figures 3-5 of the
Specification's incorporated patent disclose a "structured vocabulary"
sufficient to "maintain[] terms for searching visual content, wherein each
term ... bears a parent, child, or sibling relationship with another" ( claim
17). The Examiner only, and repeatedly, states "there is no indication" of
sufficient structure within any of Appellants' cited disclosures. Ans. 11-
12. Such conclusory statements are inadequate on appeal. See e.g., In re
Alton, 76 F.3d 1168, 1172, 1175-76 (Fed. Cir. 1996) ("[T]he examiner
... provided only conclusory statements as to why the declaration did not
show ... that Alton had possession of the claimed subject matter[.]"). We
will not perform a de novo review of Appellants' submitted disclosures and
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arguments on behalf of the Examiner. Compare Ex parte Frye, 94
U.S.P.Q.2d 1072, 1077-78 (BPAI 2010) (precedential) ("[T]he Board will
generally not reach the merits of any issues not contested by an appellant.").
In sum, practicalities permit an examiner to at first merely identify
claim limitations found to lack support under 35 U.S.C. § 112. See e.g.,
Hyatt, 492 F.3d at 1370. An examiner must nonetheless present, to the
extent merited by the circumstances, the reasons why a specification is found
to lack a sufficient disclosure. See e.g., In re Wertheim, 541 F.2d 257, 263
(CCPA 1976) ("[T]he PTO has the initial burden of presenting evidence or
reasons why persons skilled in the art would not recognize in the disclosure
a description of the invention defined by the claims."). 3 Having considered
Appellants' arguments, we find the burden shifted from Appellants back to
the Examiner to establish that Appellants' arguments were insufficient to
overcome the rejections. The Examiner has not met this burden.
Accordingly, we do not sustain the Examiner's rejections under
35 U.S.C. § 112, first and second paragraphs.
3 See also MPEP § 2163 .III.B ("Upon reply by applicant, before repeating
any rejection ... for lack of written description, review the basis for the
rejection in view of the ... arguments ... and any evidence submitted by
applicant."); MPEP § 2163.04.II (repeating the above instruction ofMPEP
§ 2163.III.B); MPEP § 2173.02.III.B ("[T]he examiner should ... ,
whenever practicable, indicate how the indefiniteness issues may be
resolved to overcome the rejection. . . . If the applicant does not adequately
respond to the prima facie case, the examiner may make the indefiniteness
rejection final.").
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REJECTION UNDER 35 U.S.C. § 101
Principles of Law
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 573
U.S. 208,216 (2014) (internal quotation marks and citation omitted).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and, thus, patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 191
(1981) ); "tanning, dyeing, making water-proof cloth, vulcanizing India
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rubber, smelting ores" (id. at 184 n. 7 ( quoting Corning v. Burden, 56
U.S. 252, 267---68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. (citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a
patent-eligible application." Alice, 573 U.S. at 221 (internal citation
omitted). "A claim that recites an abstract idea must include 'additional
features' to ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. ( quoting Mayo, 566 U.S. at
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77). "[M]erely requir[ing] generic computer implementation[] fail[ s] to
transform that abstract idea into a patent-eligible invention." Id.
PTO Guidance
The PTO recently published revised guidance on the application of
35 U.S.C. § 101. 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) ("Memorandum"). Under that guidance, we
first look to whether the claim recites:
( 1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human interactions such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MANUAL OF PATENT EXAMINING
PROCEDURE (MPEP) § 2106.05(a}-(c), (e}-(h) (9th Ed.,
Rev. 08.2017, Jan. 2018)).
See Memorandum, 84 Fed. Reg. at 52, 54--55. Only if a claim (1) recites a
judicial exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation or combination of limitations
beyond the judicial exception that are not "well-understood,
routine, conventional" activity 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.
See Memorandum, 84 Fed. Reg. at 56.
Step 1
Under "Step 1" of the analysis, we determine whether the claimed
subject matter falls within the four categories of patentable subject matter
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identified by 35 U.S.C. § 101. Memorandum, 84 Fed. Reg. at 53-54. Claim
2 is directed to a method and, therefore, falls within the four categories of
patentable subject matter-a process.
Step 2A, Prong 1
Under "Step 2A, Prong One" of the analysis, we determine whether
the claim recites a judicial exception. Memorandum, 84 Fed. Reg. at 54.
We find claim 1 recites the following features reciting a judicial exception-
e.g., abstract ideas:
receiving ... visual content having associated [information]
... [that] compris[es] an author of the visual content, a title of
the visual content, or a description of the visual content;
... filtering ... to remove some elements of the [information]
... based on the type of visual content ... [, the removed
elements] comprising a subset of words, numbers, characters, or
other symbols of the received [information];
maintaining a ... vocabulary of terms ... ;
... segmenting ... the remaining elements ... into one or more
descriptive phrases based on an application-specific dictionary
for classifying visual content . . . ;
comparing ... the one or more descriptive phrases with the
... vocabulary of terms in order to identify one or more terms
... that are related to the one or more descriptive phrases; and
creating ... an association between the identified one or more
terms and the visual content so that the visual content is
characterized by the one or more terms.
These limitations, as drafted, form a process that, under its broadest
reasonable interpretation, covers performance of the limitations in the
mind. For example, these limitations encompass a user receiving pictures
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and associated information (e.g., author and publisher), filtering information
related to the picture's content (e.g., ignoring the publisher), maintaining a
vocabulary of terms (e.g., an index), segmenting the filtered elements into
phrases oft-used for the given type the visual content (e.g., "Lance
Armstrong" for cycling pictures), and associating these terms of the phrases
with terms of the vocabulary ( e.g., to index the picture). As such, the claim
recites mental processes-an abstract idea.
Step 2A, Prong 2
Under "Step 2A, Prong Two," because the claims recite an abstract
idea, we determine whether the claim as a whole integrates the recited
judicial exception into a practical application of the exception.
Memorandum, 84 Fed. Reg. at 54. We find claim 1 also recites the
following additional elements ( emphasis on computer technology):
1. A method performed by a computing device
... processing metadata ... of visual content in order to
classify the ... content using . .. a structured vocabulary, the
method comprising:
receiving ... content having associated metadata ... ;
automatically filtering by the computing device the received
metadata ... based on the type of ... content ... ;
maintaining a structured vocabulary of . .. terms for searching
... , wherein each term ... bears a parent, child, or sibling
relationship with another term ... ;
programmatically segmenting by the computing device the
remaining ... metadata ... based on ... subset of the
maintained structured vocabulary of terms;
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comparing by the computing device the [segments] with the
structured vocabulary of terms ... ; and
creating by the computing device an association between the
identified ... terms [ of the structured vocabulary] and the
... content ... .
Thus, claim 1 recites a computing device that classifies a visual object's
metadata via a structured vocabulary. The process includes automatically
filtering the metadata based on the type of object, programmatically
segmenting the filtered metadata based on hierarchically-structured terms
( each a parent, child, or sibling to another) for searching objects, and
associating the segments-and thereby associating the visual object-with
the hierarchically-structured terms.
The Federal Circuit has cautioned the PTO, in In re Lowry,
32 F.3d 1579 (Fed. Cir. 1994), against not ascribing patentable weight to
hierarchical data structures. Though Lowry addressed whether such data
structures are patent-ineligible matter (printed matter) for purposes of
35 U.S.C. § 103(a), there is an overlapping issue for 35 U.S.C. § 101 of
whether "a limitation ... merely claims information by incorporating that
information into a mental step." Praxair Distribution, Inc. v. Mallinckrodt
Hospital Products IP Ltd., 890 F.3d 1024, 1033 (2018) ("The printed matter
doctrine thus raises an issue where the § 101 patent-eligibility inquiry and
the§ 102 and§ 103 novelty and nonobviousness inquiries overlap."). As to
this issue, Lowry found the hierarchical data structure was "[ m Jore than
mere abstraction" and rather required "specific ... structural elements ...
[that] provide tangible benefits" such as "nested operations." 32 F.3d at
1583-84.
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Bearing the above in mind for the "practical application" issue
at-hand, we are persuaded the Examiner has not adequately addressed "how
[the claimed] metadata is specifically processed" and whether the invention
"thereby facilitat[ es] automated classification [as] a specific, discrete
implementation of the purported abstract idea." App. Br. 34. We find no
meaningful analysis, within the Examiner's findings, of whether the claimed
vocabulary is a data structure integral to the claim steps-not merely linking
an abstract idea to a computer. The Examiner instead summarily finds that
the claim steps only categorize information and do so via generic computer
technology, particularly stating: claim 1 is "directed to an abstract idea of
using categories to organize and store information [and] do not include
additional elements that ... amount to significantly more" (Non-final
Act. 11-13); the claimed "'segmenting ... and storing into a defined
structure' ... is similar to '[d]ata recognition and storage' [in Content
Extraction & Transmission v. Wells Fargo Bank, 776 F.3d 1343
(Fed. Cir. 2014)] (Ans. 3); the claim steps "as combined are directed to
recognizing data satisfied by a criteria ... [and thus] describe the concept of
'data recognition and storage' [in Content Extraction] (id. at 4); "[t]he use
of generic computer components to process data does not impose any
meaningful limit on the computer implementation of the abstract idea" (id. at
6); and "[h ]uman beings traditionally organize their received data into a
structured [format]" (Ans. 6).
Conclusion
For the foregoing reasons, the Examiner has not sufficiently addressed
whether claim 1 's additional elements integrate the recited abstract ideals
into a practical application. The Examiner presents similar findings for the
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remaining claims. See e.g., Ans. 7-11. Accordingly, we do not sustain the
Examiner's rejection under 35 U.S.C. § 101.
REJECTION UNDER 35 U.S.C. § I03(a)
Appellants argue the Examiner erred in finding the combination of
Bjamestam, Antonoff, and Morris teaches or suggests claim 1 's "segmenting
... metadata into ... descriptive phrases based on an application-specific
dictionary," which "is a subset of the maintained structured vocabulary of
terms." App. Br. 35 ("segmentation as claimed"). Specifically, Appellants
contend that Bjamestam is cited as teaching this feature but, rather than
using its disclosed classification of terms (see e.g., Bjamestam Fig. 3) to
segment received metadata, Bjamestam's system uses the classification to
generate metadata. Id. at 34--36.
The Examiner responds that Bjamestam segments its metadata by
adding new terms. Ans. 13. That is, the Examiner finds the claimed
segmentation occurs inasmuch Bjamestam's system generates metadata
terms that are segments of the classification. Id.; Non-final Act. 3--4,
16. ("[The claimed] 'programmatically segmenting metadata' is broadly
reasonably interpreted as processing metadata associated with visual content
into more or more descriptive terms.").
We find the Examiner erred. Adding a term to metadata, though
resulting in a segment thereof ( e.g., per an understood classification), is not a
reasonable interpretation of the claimed "segmenting ... metadata." Two
online dictionaries define "segment" (verb) in toto as "to separate into
segments" ( emph. added) and "to separate or divide into segments"
(emph. added). Merriam Webster Dictionary (first definition) (accessed at
https ://www .merriam webster. com/ dictionary/ segment); Dictionary. com
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Unabridged, Random House Unabridged Dictionary 2019 ( second
definition) (accessed at https://www.dictionary.com/browse/segment). The
claimed "remaining elements of metadata," i.e., remaining after the filter
operation, cannot be reasonably understood as separated by the addition of a
new element (term). Moreover, such an interpretation is divorced from the
Specification's repeated disclosure that the act of "segmenting" metadata is
operating on-not adding to--the metadata terms. See e.g., Spec. ,r,r 14
("The facility includes a segmentation tool that applies a rule set to extract
certain descriptive phrases from the metadata."), 25 ("[T]he metadata is
processed by the segmentation tool 240 to identify descriptive phrases
contained in the metadata."), 42 ("[K]eywords identified from descriptive
phrases segmented from the metadata. "); see also In re NTP, Inc.,
654 F.3d 1279, 1288 (Fed. Cir. 2011) ("While the Board must give the terms
their broadest reasonable construction, the construction cannot be divorced
from the specification and the record evidence." (citation omitted)).
For the foregoing reasons, we find the Examiner erred in rejecting
claim 1; independent claims 17, 33, 48, 52, and 54, which recite similar
limitations; and dependent claims 5-9, 13-16, 21-25, 29-32, 37--41, 44--47,
51, 53, and 55---67.
Accordingly, we do not sustain the Examiner's rejection of claims 1,
5-9, 13-17, 21-25, 29-33, 37--41, 44--48, and 52---67 under
35 U.S.C. § 103(a).
DECISION
We reverse the Examiner's rejection of claims 17, 21-25, 29-32, 52,
53, and 60-63 under 35 U.S.C. § 112, first paragraph.
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We reverse the Examiner's rejection of claims 17, 21-25, 29-32, 52,
53, and 60-63 under 35 U.S.C. § 112, second paragraph.
We reverse the Examiner's rejection of claims 1, 5-9, 13-17, 21-25,
29-33, 37--41, 44--48, and 52----67 under 35 U.S.C. § 101.
We reverse the Examiner's rejection of claims 1, 5-9, 13-17, 21-25,
29-33, 37--41, 44--48, and 52----67 under 35 U.S.C. § 103(a).
REVERSED
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