Ex Parte Chan

Patent Trial and Appeal Board

Dec 18, 2018

14248631 (P.T.A.B. Dec. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/248,631 04/09/2014 Jason Ling Khee Chan
26360 7590 12/19/2018
Renner Kenner Greive Bobak Taylor & Weber Co., LPA
First National Tower, Suite 400
106 South Main Street
Akron, OH 44308-1412
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.
HGC.P.US0007 7083
EXAMINER
REFAI, RAMSEY
ART UNIT PAPER NUMBER
3668
MAIL DATE DELIVERY MODE
12/19/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON LING KHEE CHAN
Appeal 2017-011123
Application 14/248,631
Technology Center 3600
Before DENISE M. POTHIER, JUSTIN BUSCH, and SCOTT E. BAIN,
Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's decision to reject claims 1, 3-5, 7-12, and 14--16, which
constitute all the claims pending in this application. We have jurisdiction
over the pending claims under 35 U.S.C. § 6(b). We affirm.
CLAIMED SUBJECT MATTER
Appellant's claimed invention is generally related to "receiving,
parsing, storing and sending sales data from multiple sales terminal
devices." Abstract. More specifically, the invention relates to "a device that
is able to accept, understand and process sales data or information from
different types of point-of-sales (POS) systems or electronic cash registers
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Application 14/248,631
(ECR), so that a single type of formatted data is then sent to a remote,
primacy server for easier display, further processing and permanent
storage." Spec. 2. "The device shall make it possible for the different types
of POS systems and ECRs to continue running on their different platforms
and software, while working together harmoniously as a collective." Spec.
Claims 1 and 12 are independent, and claim 1 is reproduced below:
1. A universal sales data processing device comprising:
an input terminal adapted to be connected to and receive
sales data simultaneously from multiple sales terminal devices
wherein said sales terminals are of different types and broadcast
their data in a single type of format at any baud rate;
a processor connected to said input terminal adapted to
identify the sales data in said single type of format received over
a fire-and-forget messaging protocol, wherein the sales terminal
devices are pre-configured to not expect any response from said
processor, said processor comprising
a listener application to receive sales data from said
multiple sales terminal devices at any baud rate;
a queuing system for identifying and queuing the
received sales data in a cyclic manner and
a random access memory that stores the received
sales data for parsing the data into a predetermined,
standardized format;
a memory module connected to said processor and said
random access memory, said memory module storing the parsed
data; and
an output module for periodically transmitting the stored
data to a remote server.
REJECTIONS
Claims 1, 3-5, 7-12, and 14--16 stand rejected under 35 U.S.C. § 101
as being directed to ineligible subject matter. Final Act. 5---6.
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Claims 1, 3-5, 7-12, and 14--16 stand rejected under 35 U.S.C. § 103
as obvious in view of Golden (US 5,774,872; June 30, 1998) and Official
Notice. Final Act. 7-10.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellant made.
Arguments Appellant could have made, but chose not to make in the Briefs,
have not been considered and are deemed waived. See 37 C.F.R.
§ 4I.37(c)(i)(iv).
THE 35 U.S.C. § 101 REJECTION
In step one of the Alice analysis, we "determine whether the claims at
issue are directed to" a patent-ineligible concept, such as an abstract idea.
Alice Corp. Pty. Ltd. v. CLS Bankint'l, 573 U.S. 208,217 (2014). In step
two of our Alice analysis, we determine whether the additional limitations,
when considered both "individually and 'as an ordered combination"'
contain an "inventive concept" sufficient to transform the claimed "abstract
idea" into a patent-eligible application. Alice, 573 U.S. at 217-18.
The Examiner's Findings and Conclusions
The Examiner concludes the claims are directed to judicially excepted
subject matter. Final Act. 3---6; Ans. 2-6. In particular, the Examiner
determines the claims are directed to a concept for automating a human
activity of collecting and processing sales data, which are ineligible because
they are similar claims found ineligible by the Federal Circuit. Final
Act. 4--5; Ans. 2--4 (citing Classen Immunotherapies, Inc. v. Elan Pharms.,
Inc., 786 F.3d 892 (Fed. Cir. 2015); Elec. Power Grp. v. Alstom S.A., 830
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Application 14/248,631
F.3d 1350 (Fed. Cir. 2016); Content Extraction & Transmission LLC v.
Wells Fargo Ban, Nat'! Ass 'n, 776 F.3d 1343 (Fed. Cir. 2014); CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011); Digitech
Image Techs., LLC v. Elecs. For Imaging, Inc., 758 F.3d 1344 (Fed.
Cir. 2014)). The Examiner determines the claims do not improve the
functioning of a computer or another technology or technical field because
the claims are directed to receiving and processing data using generic
computer components performing generic computer functions in order to
automate a process that otherwise "could be done by a human analog (by
hand or merely thinking)." Final Act. 3; Ans. 2-3. The Examiner
distinguishes Appellant's claims from those in Enfzsh, explaining that a
computer benefit similar to the self-referential table in Enfzsh that led to
"increased flexibility, faster search times, and smaller memory
requirements" is neither recited in Appellant's claimed collection and
parsing of data nor described in Appellant's Specification. Final Act. 5
(citing Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir.
2016)).
The Examiner also concludes the claims do not recite an inventive
concept because, other than the abstract idea, the claims merely recite
generic computer components at a high level of generality, and the generic
components merely perform well-known computing functions related to
manipulating data (i.e., obtaining, processing, storing, and transmitting data)
to implement the abstract idea on a computer. Final Act. 4---6; Ans. 3---6.
The Examiner finds the components executing these steps are similar to
generic computing components sending and receiving data over the Internet
and performing insignificant data-gathering steps, which the Federal Circuit
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has concluded are insufficient to provide an inventive concept. Final Act. 6
(quoting buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) ("A
computer 'that receives and sends information over a network- with no
further specification - is not even arguably inventive."'); Ultramerical, Inc.
v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Circ. 2014)); see Final Act. 8-9;
Ans. 4--5. The Examiner identifies the generic computing components
recited in claims 1 and 12 and explains why they do not add significantly
more to the abstract idea. Ans. 3-5.
The Examiner also determines the dependent claims are directed to
the same abstract idea as the independent claims and the additional
limitations in the dependent claims merely "further describe the additional
limitations" recited in the independent claims. Ans. 5---6.
Appellant's Contentions
Appellant acknowledges that the claims are directed to an abstract
idea, but argues the claims recite significantly more than the abstract idea
itself because the claims "set out that a fire-and-forget [(FAF)] messaging
protocol sends out sales data received by a processor" and recite a memory
that receives "sales data and selects the data in a first-in first-out [(FIFO)]
manner for parsing the data into a predetermined, standardized format."
Br. 11. Appellant argues the claims, therefore, provide benefits of not
needing to specially configure the receiving device to work with various
protocols of existing sales terminals while facilitating sales data collection
and uniform presentation to a remote server. Br. 11-12.
Appellants also argue claim 4' s recitation of types of sales terminals
"sets out the significant benefit of allowing different sales terminals to be
used with the input terminal" without having to modify existing sales
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terminals. Br. 12. Appellants argue claim lO's recitation of details about a
data backup module allow for collection of sales data even when the
processing device is non-operational. Br. 12. Appellants also argue claim
14 's recitation of a rechargeable battery and secondary memory module
allows for collecting sales data even when power is lost and extracting data
from the secondary memory after restoring power. Br. 12.
Appellant argues the Examiner did not properly consider the claimed
combination, including the benefits from the claimed use of the F AF
messaging protocol, the different types of sales terminals, or the data backup
module. Br. 12-14 (citing BASCOM Global Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016); Research Corp. Techs., Inc.
v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010)). Appellant points to the
FAF messaging protocol and argues that, similar to the claims in DDR,
Appellant's "claimed invention solves the problem of collecting taxes or
fees without continual expensive computer upgrades." Br. 14. Appellant
also attempts to distinguish buy SAFE' s claims, arguing Appellant's claims
"are tied to particular machines, namely the sales terminals and the input
terminal configured to receive data from the sales terminal devices" using
the F AF messaging protocol. Br. 14--15. Appellant also argues the F AF
messaging protocol is not routine or conventional when considered in
combination with the other claim limitations and, therefore is different than
the claims in Ultramercial. Br. 15.
Analysis under Step One of the Alice Test
Appellant does not contest the Examiner's conclusion that the claims
are directed to an abstract idea. Br. 11. We agree with the Examiner's
conclusion that the claims are directed to an abstract idea because the claims
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focus on receiving sales data, queuing the received data, storing the received
data in a random access memory, storing the received data after it is parsed,
and transmitting the stored data.
The focus of Appellant's claims is similar to the focus of claims the
Federal Circuit consistently has concluded are ineligible as being directed to
abstract ideas. In particular, Appellant's claims focus on obtaining data (i.e.,
sales data), extracting data (parsing the sales data) storing data (the received
sales data and the parsed version of the data), and transmitting data (the
stored data). 1 Thus, Appellant's claims are similar to the claims the Federal
Circuit concluded were ineligible in Content Extraction, which recited steps
of receiving data, recognizing portions of the received data, and storing the
recognized portions. Content Extraction, 776 F.3d at 1345, 1347
( characterizing the claims as being directed to the abstract idea of collecting
data, recognizing certain data within the collected data set, and storing the
recognized data in a memory). Although the claims recite various generic
computer hardware and software components ( e.g., "input terminal," "sales
terminal devices," "processor," "listener application," "queuing system,"
"random access memory," "memory module," "output module," "data
backup module," and "a data retrieval program"), these elements do not
change the character of the claims as a whole from being directed to an
abstract idea. Notably, these components are generically recited, as
discussed further below with respect to our analysis of whether these
1 We note that claims 1, 3-5, and 7-11 do not affirmatively recite parsing
the data. Nevertheless, data parsing is a similarly basic data processing
function as, if not a particular implementation of, extracting data. Because it
does not affect our analysis for purposes of this Decision, we treat the claims
as requiring a step of parsing data.
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elements add an inventive concept (e.g., memories storing information;
listener application, data retrieval program, input terminal, sales terminal
device, processor, queuing system, and output module receiving or sending
data).
The Federal Circuit has concluded similar concepts were directed to
abstract ideas. Specifically, in Electric Power, the Federal Circuit concluded
claims reciting a method of collecting data from various sources ( similar to
collecting sales data from various terminals), "detecting and analyzing
events" by identifying information in the received data (similar to parsing
data), reporting the event analysis results and visualizations of
measurements, aggregating the event analysis information, and providing a
composite indicator were directed to an abstract idea because the claims
were directed to "collecting information, analyzing it, and displaying certain
results of the collection and analysis" ( similar to transmitting the data to a
central server). Electric Power, 830 F.3d at 1351-53; see also Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1372 (Fed. Cir.
2017) ( concluding "claims directed to the collection, storage, and
recognition of data are directed to an abstract idea."); see also SAP Am., Inc.
v. InvestPIC, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) ("[M]erely
presenting the results of abstract processes of collecting and analyzing
information ... is abstract as an ancillary part of such collection and
analysis.") ( citation omitted). These cases demonstrate that the Federal
Circuit has consistently concluded claims that recite receiving, parsing,
storing, and transmitting information are directed to abstract ideas. We
come to the same conclusion with respect to Appellant's claims.
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For the above reasons, we agree with the Examiner that the claims are
directed to an abstract idea. Thus, we tum to step two of the Alice analysis.
Analysis under Step Two of the Alice Test
Appellant argues the claims provide alleged benefits of not needing to
specially configure the receiving device to work with various protocols of
existing sales terminals while facilitating sales data collection and uniform
presentation to a remote server. Br. 11-12. Appellant argues these
improvements are a result of the use of the F AF messaging protocol and the
use of a FIFO queuing method to process the incoming sales data and
converting it to a standardized format. Br. 11-12. Appellant argues these
alleged improvements constitute an improvement to a technological process,
go "beyond the mere concept of processing sales data using a computer,"
"solves the problem of collecting taxes or other fees without continual
expensive computer upgrades," and require "particular machines, namely the
sales terminals and the input terminal configured to receive data from the
sales terminal devices in the aforementioned protocol." Br. 13-15.
Initially, we note that the claims do not recite a FIFO queuing
method. 2 Rather, the claims recite "a queuing system for identifying and
queuing the received sales data in a cyclic manner" or "employing a queuing
system to select data from the connected sales terminal devices in a cyclic
manner." See Br. 19-20, Claims App. (claims 1 and 12). Although the
queuing is done in a "cyclic manner," this language is broad and
encompasses any method of queuing as long as it involves a cycle or
repetition in its process; the queuing is not limited to FIFO. Moreover,
2 There is no description of any specific queuing method described in
Appellant's Specification, let alone a first-in first-out method.
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Appellant does not assert FIFO queuing in unconventional, and Appellant
has not sufficiently explained how implementing a well-known queuing
system to receive information in a conventional manner provides a
technological improvement.
We are not persuaded Appellant's claims recite an inventive concept.
We agree with the Examiner that Appellant's claims recite the computer
components at a high level of generality and the components merely perform
generic computing functions. See, e.g., Spec. 3 ( describing one exemplary
sales terminal as merely a "generic computer running on any given operating
system ... with a point-of-sale (POS) software"). Similar to the claims in
Content Extraction, Appellant's claims are "drawn to the basic concept
[(i.e., abstract idea)] of data recognition and storage." Content Extraction,
776 F.3d at 1347. Unlike the claims in DDR, Appellants have not
demonstrated, nor do Appellants' claims address, changing a conventional
way in which known technology functions. See DDR Holdings, LLC v.
Hotels.com L.P., 773 F.3d 1245 (Fed. Cir. 2014). Given the generic nature
of the computer components and the ability to use general processors
programmed to perform the recited steps, we disagree that Appellant's
claims are tied to particular machines. See Br. 14--15.
Rather, Appellant's claims merely recite obtaining, parsing, storing,
and transmitting data using generically recited components and, contrary to
Appellants' assertion, do not improve a technical field. Reciting that data is
transferred using a particular messaging protocol and a queuing system in
the well-known and conventional way the protocol and queuing system were
designed to be used does not provide a technical improvement. Appellant
does not persuasively explain how the F AF messaging protocol or queuing
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system are being used in an unconventional way. Notably, the Specification
does not describe any particular modifications or variations to these well-
known techniques and only discusses the F AF messaging protocol and
queuing to the extent necessary to describe where these known systems are
used in Appellant's system and method. See Spec. 2-5, 7-8, 10.
Appellant has not explained, and it is not clear from Appellant's
Specification, how the alleged benefit of not needing to modify the POS
terminals and uniform presentation of data to a remote server is related to
using the FAF messaging protocol or the general concept. For example, the
Specification suggests using the F AF messaging protocol for its known
benefit-"[t]he fire-and-forget messaging protocol allows the different types
of connected sales terminal devices (POS systems and ECRs) to send their
data to the sales data processing device, without having to receive an
'acknowledged' signal from the device." Spec. 3. Even accepting for
purposes of this Decision that not needing to modify terminals and
presenting information in a uniform format provides an inventive concept,
we see no persuasive explanation in Appellant's argument or Specification
linking the use of the F AF messaging protocol to the alleged improvement.
We also agree with the Examiner that the additional limitations in the
dependent claims: (i) further define the format and content of the data, the
particular type of sales terminals, the method of communication (i.e., serial
port, modem); (ii) merely recite duplicate parts (i.e., memory); or (iii) recite
well-known and conventional methods or components used for redundancy
and backup.
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For these reasons, we conclude the claim limitations, considered both
individually and together, do not add significantly more to the abstract idea
and, therefore, do not render the subject matter patent eligible.
THE 35 U.S.C. § 103 REJECTION
The Examiner finds Golden teaches nearly every limitation recited in
independent claim 1, but takes Official Notice of the fact that the features
and advantages of F AF messaging protocol are old and well-known. Final
Act. 7-8.
Appellant argues only that Golden requires two-way communication
and provides no teaching or suggestion of using any other type of
communication in its system. Br. 16-17. Appellant argues the Examiner's
proposed modification to Golden relies only on impermissible hindsight and
Golden teaches away from using a F AF message protocol because the F AF
message "protocol would not provide 'continuous electronic linkage
between each data collection sub-station and the central computer."' Br. 17
(quoting Golden 4:13-14).
Golden discloses a similar system and method to Appellant's
invention. Specifically, Golden generally relates to systems and methods for
automated transaction tax reporting and collection. Golden, Abstract.
Golden discloses one embodiment where sub-stations collect sales and tax
data from sales terminals on a periodic, rotating basis and ultimately
transmit the collected data to a central computer. Golden, Abstract.
Appellant is correct that Golden only explicitly discloses sales terminals
providing their sales and tax data in response to an interrogation request
from the central computer or the sub-stations. See, e.g., Golden 3 :22-27.
Golden does, however, at least suggest that portable terminals may
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automatically send its transaction data when connected to a network rather
than in response to an interrogation request. Golden 4:45---61 ("the portable
terminal will typically not be connected to the data network .... While the
portable terminal alone cannot, of course, be automatically and periodically
contacted by the data collection sub-station as is the case for the other types
of terminals").
Further, the FAF message protocol does not preclude two-way
communication between the recited input terminal and the sales terminals.
According to Appellant's Specification, the FAF message protocol merely
requires that the sender of a message does not wait for an "acknowledged"
signal from the recipient. Spec. 3. Even to the extent we understand
Golden's disclosure of two-way communication to suggest that Golden
discloses using a message protocol other than the F AF message protocol,
that is not fatal to the Examiner's findings and conclusion.
Whether a reference teaches away from a claimed invention is a
question of fact. In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005). "A
reference may be said to teach away when a person of ordinary skill, upon
reading the reference, ... would be led in a direction divergent from the path
that was taken by the applicant." In re Haruna, 249 F.3d 1327, 1335 (Fed.
Cir. 2001) (quoting Tee Air, Inc. v. Denso Mfg. Mich. Inc., 192 F.3d 1353,
1360 (Fed. Cir. 1999) (ellipsis in original)). "When a piece of prior art
'suggests that the line of development flowing from the reference's
disclosure is unlikely to be productive of the result sought by the applicant'
the piece of prior art is said to 'teach away' from the claimed invention."
Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006)
(quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). However,
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teaching "an alternative or equivalent method does not teach away from the
use of' a claimed method. In re Dunn, 349 F.2d 433,438 (CCPA 1965).
The Examiner relies on the knowledge of an ordinarily skilled artisan
and the uncontested Official Notice that the FAF message protocol and its
benefits were well-known. Golden's system focuses on the ability to receive
sales and tax data from various POS terminals and focuses on one particular
method of obtaining that data-namely an interrogation request and
response. Golden's system and method, however, do not rely on this method
of requesting data to meet Golden's goals. Notably, at least with respect to
portable terminals, Golden suggests the interrogation request and response
reporting method may not be possible. See Golden 4:45---61. As discussed
above, Golden focuses on collecting sales and tax information from POS
terminals on a periodic basis. Golden, Abstract. A thorough review of
Golden reveals that, notwithstanding Golden's disclosed embodiment using
an interrogation request and response message, the particular communication
protocol used to receive the data is not important to Golden's disclosed
system and method. Thus, Golden does not teach away from using any
particular messaging protocol, let alone the F AF messaging protocol.
For these reasons, we are not persuaded the Examiner erred in
rejecting the claims as obvious in view of Golden and Official Notice.
Accordingly, we sustain the Examiner's rejection of claims 1, 3-5, 7-12,
and 14--16 under 35 U.S.C. § 103.
DECISION
We affirm the Examiner's decision to rejection claims 1, 3-5, 7-12,
and 14--16 under 35 U.S.C. §§ 101 and 103.
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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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