Ex Parte Coleman et al

Patent Trial and Appeal Board

Aug 29, 2017

14878807 (P.T.A.B. Aug. 29, 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.
14/878,807 10/08/2015 Michael J. Coleman GB920120090US2 1036
8152-0259
134531 7590 08/31/2017
Cuenot, Forsythe & Kim, LLC
20283 State Road 7, Ste. 300
Boca Raton, EL 33498
EXAMINER
WILLIAMS, CLAYTON R
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
08/31/2017 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL J. COLEMAN and MATTHEW D. WHITBOURNE1
Appeal 2017-005313
Application 14/878,807
Technology Center 2400
Before ERIC B. CHEN, JEREMY J. CURCURI, and NABEEL U. KHAN,
Administrative Patent Judges.
CHEN, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellants, the real party in interest is International Business
Machines Corporation. (App. Br. 1.)
Appeal 2017-005313
Application 14/878,807
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 21—40. Claims 1—20 have been cancelled. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm and enter a new ground of rejection pursuant to our
authority under 37 C.F.R. § 41.50(b).
STATEMENT OF THE CASE
Appellants’ invention relates to advanced notification of workload,
including identifying a reference to a second website for posting by a first
website, analyzing information associated with the first website to determine
whether the reference to the second website will cause an increase in
workload to the second website, and communicating an alert indicating the
increase in workload to the second website. (Abstract.)
Claims 21 and 35 are exemplary, with disputed limitations in italics:
21. A method of providing advanced notification of
workload, comprising:
identifying a reference to a second website provided to a
first website for posting by the first website;
analyzing information associated with the first website to
determine whether the reference will cause an increase in
workload to the second website;
communicating, responsive to determining the reference
will cause the increase in workload, an alert to one of
the second website, or
an entity that manages the second website.
35. A computer program product for providing
advanced notification of workload, comprising:
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a computer-readable storage medium having stored
thereon program code that, when executed, configures a
processor to perform the following executable operations:
identifying a reference to a second website provided to a
first website for posting by the first website;
analyzing information associated with the first website to
determine whether the reference will cause an increase in
workload to the second website;
communicating, responsive to determining the reference
will cause the increase in workload, an alert to one of
the second website, or
an entity that manages the second website.
Claims 21—40 stand rejected under 35U.S.C. § 101 as being directed
to non-statutory subject matter.
Claims 21—36 stand rejected under the judicially created doctrine of
obviousness-type double patenting as unpatentable over claims 1—16 of
commonly owned Coleman (US 9,195,564 B2; iss. Nov. 24, 2015).2
Claims 21, 22, 25—29, 32—36, 39, and 40 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Hildebrand (US 2012/0144038 Al;
publ. June 7, 2012) and Grigsby (US 2012/0179822 Al; publ. July 12,
2012).
Claims 23, 30, and 37 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hildebrand, Grigsby, and Sabnani (US 2009/0292680 Al;
publ. Nov. 26, 2009).
2 Appellants do not present any substantive arguments with respect to the
rejection of claims 21—36 under the judicially created doctrine of
obviousness-type double patenting. (App. Br. 3 n.l.) Thus, any such
arguments are deemed to be waived.
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Claims 24, 31, and 38 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hildebrand, Grigsby, and Rowe (US 2011/0066930 Al;
publ. Mar. 17, 2011).
§101 Rejection—Transitory Signal
We are unpersuaded by Appellants’ arguments (App. Br. 20—29; see
also Reply Br. 6—7) that independent claim 35 complies with 35 U.S.C.
§ 101 as statutory subject matter.
The Examiner found that independent claim 35 recites a “computer-
readable storage medium” and that “[t]he specification provides an open
ended definition of what constitutes a ‘computer-readable storage medium.’”
(Final Act. 12; see also Ans. 4.) Accordingly, the Examiner found that
“applying the broadest reasonable interpretation in light of the specification
. . . , the claim as a whole covers both transitory and non-transitory media.”
(Id.) We agree with the Examiner.
Independent claim 35 recites “[a] computer program product. . .
comprising: a computer-readable storage medium” (emphasis added).
Appellants’ Specification states the following:
The computer-readable medium may be a computer-readable
signal medium or a computer-readable storage medium. A
computer-readable storage medium may be, for example, but not
limited to, an electronic, magnetic, optical, electromagnetic,
infrared, or semiconductor system, apparatus, or device, or any
suitable combination of the foregoing.
(110.) Additionally, Appellants’ Specification states the following:
A computer-readable signal medium may include a
propagated data signal with computer-readable program code
embodied therein, for example, in baseband or as part of a carrier
wave. Such a propagated signal may take any of a variety of
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forms, including, but not limited to, electro-magnetic, optical, or
any suitable combination thereof. A computer-readable signal
medium may be any computer-readable medium that is not a
computer-readable storage medium and that can communicate,
propagate, or transport a program for use by or in connection
with an instruction execution system, apparatus, or device.
(Ill (emphases added).) Accordingly, because Appellants’ Specification
states that “[a] computer-readable storage medium may be . . . optical [or]
electromagnetic” (110 (emphasis added)) and “a propagated signal may
take any of a variety of forms, including, but not limited to, electro-magnetic
[or] opticaF (111 (emphases added)), under the broadest reasonable
interpretation consistent with the Specification, the “computer-readable
storage medium” of claim 35 encompasses transitory signals.
Appellants’ Specification further discloses that “computer-readable
signal medium may be any computer-readable medium that is not a
computer-readable storage medium” and “computer-readable signal medium
may include a propagated data signal.” (Ill (emphases added).) However,
such disclosure does not exclude a “computer-readable signal medium” from
encompassing “a propagated data signal” because of the language “may” is
an expression of possible exclusion, rather than absolute exclusion.
First, Appellants argue that
the present specification clearly distinguishes a signal medium
from a storage medium, and thus, one having ordinary skill in the
art would not construe the claimed “storage medium” as
consisting of a transitory, propagating signal since such a
construction is unreasonable as being inconsistent with . . .
paragraph [0011] of the present specification.
(App. Br. 23; see also Reply Br. 6—7.) Similarly, Appellants argue that “a
storage medium is mutually exclusive from a signal medium” and that “the
genus of ‘storage medium’ cannot include the species of ‘propagated
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data signals.’” (App. Br. 29.) However, as discussed previously, because
Appellants’ Specification discloses that a “computer-readable signal medium
may be any computer-readable medium that is not a computer-readable
storage medium” and “computer-readable signal medium may include a
propagated data signal” (111 (emphasis added)), the Specification does not
absolutely exclude a “computer-readable storage medium” from
encompassing “a propagated data signal.”
Second, Appellants argue that a “table ... [of sixteen] patent
applications having nearly (if not exactly) identical language within the
specification have recently had rejections under 35U.S.C. § 101 withdrawn
based upon arguments very similar to those presented above [with respect to
paragraphs 10 and 11 of the Specification].” (App. Br. 24.) However,
patentability decisions involving claims in other patents or patent
applications are not necessarily germane to issues in another patent
application. See In re Gyurik, 596 F.2d 1012, 1016 n.15 (CCPA 1979)
(“Each case is determined on its own merits” and “[i]n reviewing specific
rejections of specific claims, this court does not consider allowed claims in
other applications or patents”).
Accordingly, independent claim 35 is directed to non-statutory subject
matter. See In reNuijten, 500 F.3d 1346, 1356—57 (Fed. Cir. 2007) (“A
transitory, propagating signal like Nuijten’s is not a ‘process, machine,
manufacture, or composition of matter. ’ . . . [T]hus, such a signal cannot be
patentable subject matter”).
Thus, we agree with the Examiner that independent claim 35 is not
directed to one of the four patent-eligible subject matter categories.
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Accordingly, we sustain the rejection of independent claim 35 under
35 U.S.C. § 101. Claims 36-40 depend from claim 35, and Appellants have
not presented any substantive arguments with respect to these claims.
Therefore, we sustain the rejection of claims 36-40 under 35 U.S.C. § 101,
for the same reasons discussed with respect to independent claim 35.
§103 Rejection—Hildebrand and Grigsby
We are further unpersuaded by Appellants’ arguments (App. Br. 29-
32; see also Reply Br. 7—9) that the combination of Hildebrand and Grigsby
would not have rendered obvious independent claim 21, which includes the
limitation “analyzing information associated with the first website to
determine whether the reference will cause an increase in workload to the
second website.”
The Examiner found that the web source of Hildebrand, in which the
generated load can be estimated and followed by a warning being sent to a
service, corresponds to the limitation “analyzing information associated with
the first website to determine whether the reference will cause an increase in
workload to the second website.” (Final Act. 13; see also Ans. 4—5.) We
agree with the Examiner’s findings.
Hildebrand relates to communications, in particular, “allocating
resources based on events in a network environment.” (| 1.) Hildebrand
provides an example in which “if there was a story on a popular blog about
the animated movie ‘UP’ or that mentioned ‘pixar.com,’ the Disney-Pixar
web servers could have capacity added to them proactively.” (123.) In
another example, Hildebrand explains that “[sjome sources can theoretically
drive a different amount of traffic, which may be based on the section of a
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source (e.g., a section in Twitter) that is generating the traffic” and that
“[f]or these sources, a designated application program interface (API), or
web service calls can be used to estimate the generated load.” (123.)
Hildebrand further explains that “cooperating sources of traffic . . . warn the
service of the impending load (e.g., before the keyword or link of interest is
made available to the general public)” and “[t]he cooperating source can
notify the service of the impending load, along with an estimate of the load
that would most likely be generated.” (126.) Because Hildebrand explains
that: (i) some web sources (e.g., popular blog about the animated movie
“UP” or Twitter) can drive a different amount of traffic, (ii) an API or web
services calls can estimate the generated load (123), and (iii) a cooperating
source can notify a service of the impending load (126), Hildebrand teaches
the limitation “analyzing information associated with the first website to
determine whether the reference will cause an increase in workload to the
second website.”
First, Appellants argue that “the Examiner is improperly relying upon
the ‘link to the web server’ to teach both the claimed ‘information associated
with the first website’ and ‘a reference to a second website’” and “[wjhile
Hildebrand teaches predicting a load for a website, nowhere does Hildebrand
teach that this estimate of the load involves ‘analyzing information
associated with the first website.’” (App. Br. 32; see also Reply Br. 9.)
Contrary to Appellants’ arguments, the Examiner cited to paragraph 23 of
Hildebrand for teaching the limitation “analyzing information associated
with the first website” and cited to paragraph 26 of Hildebrand for teaching
the limitation “a reference to a second website.” (See Ans. 4—5.)
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Second, Appellants further argue that “[t]he fact that the selection is
made within the first website (e.g., ‘Twitter’) does not establish that
information associated with this first website is analyzed, as claimed.”
(Reply Br. 8.) Similarly, Appellants argue that “[t]his teaching [‘[ajfter the
load is estimated, capacity can be proactively added to the system quickly
and automatically, before the full brunt of the load operates to flood the
service’ in paragraph 23 of Hildebrand] ... is silent as to information of the
first website being analyzed” but “[ijnstead, the Examiner’s citation refers to
what happens occurs after a determination has been made that the workload
will be increased.” (Id.) However, the Examiner provided a citation to
paragraph 23 of Hildebrand (Ans. 5), which also explains that “[f]or these
sources [which theoretically drive a different amount of traffic], a designated
application program interface (API), or web service calls can be used to
estimate the generated load” (123).
Thus, we agree with the Examiner that the combination of Hildebrand
and Grigsby would have rendered obvious independent claim 21, which
includes the limitation “analyzing information associated with the first
website to determine whether the reference will cause an increase in
workload to the second website.”
Accordingly, we sustain the rejection of independent claim 21 under
35 U.S.C. § 103(a). Claims 22—27 depend from claim 21, and Appellants
have not presented any additional substantive arguments with respect to
these claims. Therefore, we sustain the rejection of claims 22—27 under 35
U.S.C. § 103(a), for the same reasons discussed with respect to independent
claim 21.
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Independent claims 28 and 35 recite limitations similar to those
discussed with respect to independent claim 21, and Appellants have not
presented any additional substantive arguments with respect to these claims.
We sustain the rejection of claims 28 and 35, as well as dependent
claims 29-34 and 36-40, for the same reasons discussed with respect to
claim 21.
§103 Rejection—Hildebrand, Grigsby, and Sabnani
Although Appellants nominally argue the rejection of dependent
claims 23, 30, and 37 separately (App. Br. 33), the arguments presented do
not point out with particularity or explain why the limitations of these
dependent claims are separately patentable. Instead, Appellants merely
argue that “[t]he additional reference to Sabnani does not cure the argued
deficiencies of Hildebrand and Grigsby” and “even if one having ordinary
skill in the art did modify Hildebrand in view of Grigsby and Sabnani, the
proposed combination of references would not yield the claimed invention.”
(Id. ) We are not persuaded by these arguments for the reasons discussed
with respect to claims 21, 28, and 35, from which claims 23, 30, and 37
depend. Accordingly, we sustain this rejection.
§103 Rejection—Hildebrand, Grigsby, and Rowe
Although Appellants nominally argue the rejection of dependent
claims 24, 31, and 38 separately (App. Br. 33—34), the arguments presented
do not point out with particularity or explain why the limitations of these
dependent claims are separately patentable. Instead, Appellants merely
argue that “[t]he additional reference to Rowe does not cure the argued
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deficiencies of Hildebrand and Grigsby” and “even if one having ordinary
skill in the art did modify Hildebrand in view of Grigsby and Rowe, the
proposed combination of references would not yield the claimed invention.”
{Id. at 34.) We are not persuaded by these arguments for the reasons
discussed with respect to claims 21, 28, and 35, from which claims 24, 31,
and 38 depend. Accordingly, we sustain this rejection.
NEW GROUND OF REJECTION UNDER 37 C.F.R. § 41.50(b)
§101 Rejection—Abstract Idea
In the Final Office Action, the Examiner stated that “claims 21, 28[,]
and 35 are directed to abstract ideas of 1) ‘ comparing new and stored
information and using rules to identify options'1 and 2) ‘using categories to
organize, store and transmit information.'''’'’ (Final Act. 10 (emphases
added).) However, in the Examiner’s Answer, the Examiner stated that
“[t]he independent claims are directed to the following abstract ideas: 1)
‘obtaining and comparing intangible data(Ans. 2) and “2) ‘organizing
information through mathematical correlations'''’'’ {id. at 3 (emphases
added)). Because the Examiner has advanced a new position or rationale
with respect to subject matter eligibility under 35 U.S.C. § 101, a new
ground of rejection is appropriate to provide Appellants with a fair
opportunity to respond. See In re De Blauwe, 736 F.2d 699, 706 n.9 (Fed.
Cir. 1984) (“Where the board makes a decision advancing a position or
rationale new to the proceedings, an applicant must be afforded an
opportunity to respond to that position or rationale by submission of
contradicting evidence”).
We enter the following new ground of rejection:
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Claims 21—40 are rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter of an abstract idea.
A patent may be obtained for “any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof.” 35 U.S.C. § 101. The Supreme Court has held that this provision
contains an important implicit exception: laws of nature, natural phenomena,
and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank
Inti, 134 S. Ct. 2347, 2354 (2014); Gottschalkv. Benson, 409 U.S. 63, 67
(1972) (“Phenomena of nature, though just discovered, mental processes,
and abstract intellectual concepts are not patentable, as they are the basic
tools of scientific and technological work”). Notwithstanding that a law of
nature or an abstract idea, by itself, is not patentable, the application of these
concepts may be deserving of patent protection. Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 71—72 (2012). In Mayo, the Court
stated that “to transform an unpatentable law of nature into a patent-eligible
application of such a law, one must do more than simply state the law of
nature while adding the words ‘apply it.’” Mayo, 566 U.S. at 72 (internal
citation omitted).
In Alice, the Supreme Court reaffirmed the framework set forth
previously in Mayo “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of these 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.” Id. If the claims are directed to a
patent-ineligible concept, then the second step in the analysis is to consider
the elements of the claims “individually and ‘as an ordered combination”’ to
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determine whether there are additional elements that ‘“transform the nature
of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 566 U.S.
at 79, 78). 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. (brackets in original) (quoting
Mayo, 566 U.S. at 72—73). “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. at 2357
(brackets in original) (quoting Mayo, 566 U.S. at 77—78). The prohibition
against patenting an abstract idea “cannot be circumvented by attempting to
limit the use of the formula to a particular technological environment or
adding insignificant post-solution activity.” Bilski v. Kappos, 561 U.S. 593,
610—11 (2010) (internal citation and quotation marks omitted). The Court in
Alice noted that ‘“[s]imply appending conventional steps, specified at a high
level of generality,’ was not ‘enough’ [in Mayo] to supply an ‘inventive
concept.’” Alice, 134 S. Ct. at 2357 (quoting Mayo, 566 U.S. at 82—83, 77—
78, 72-73).
Step one: Are the claims at issue directed to a patent-ineligible concept?
Claim 21 is a method claim comprising three steps, each of which can
be performed in the human mind or by a human using pen and paper. The
first step, “identifying a reference to a second website provided to a first
website for posting by the first website,” can be performed by a human
reading records from a preexisting database of Internet links connecting a
first website to a second website. Next, the second step, “analyzing
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information associated with the first website to determine whether the
reference will cause an increase in workload to the second website,” can be
performed by a human with the knowledge that clicking on the hyperlink for
the second website, which is posted on the first website, will drive Internet
traffic to the second website. Last, the third step “communicating,
responsive to determining the reference will cause the increase in workload,
an alert to one of the second website, or an entity that manages the second
website,” can be performed by written communication to either the second
website or an entity that manages the second website.
Because all three method steps of claim 15 can either be performed by
human thought alone, or by a human using pen and paper, claim 15 is
directed to a patent-ineligible abstract idea. See CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372—73 (Fed. Cir. 2011) (“[UJnpatentable
mental processes” include “steps [that] can be performed in the human mind,
or by a human using a pen and paper”). Claims 28 and 35 recite limitations
similar to those discussed with respect claim 15. Thus, claims 28 and 35 are
also directed to a patent-ineligible abstract idea.
Step two: Is there something else in the claims that ensures that they are
directed to significantly more than a patent-ineligible concept?
Because claims 21, 28, and 35 are directed to an abstract idea, the
question to be settled next, according to Alice, is whether claims 21, 28, and
35 recite an element, or combination of elements, that is enough to ensure
that the claim is directed to significantly more than an abstract idea.
Claim 21 is a method claim, which includes the limitations “a first
website” and “a second website.” Claims 28 is “[a] computer hardware
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system” claim, which includes the limitation “a hardware processor.”
Similarly, claim 35 is “[a] computer program product,” which includes the
limitation “a computer-readable storage medium.”
To the extent “website[s]” are considered hardware components, such
claimed hardware components, including “website[s],” “a hardware
processor,” and “a computer-readable storage medium” are generic, purely
conventional computer elements. Thus, the claims do no more than require
generic computer elements to perform generic computer functions, rather
than improve computer capabilities.
Accordingly, appending conventional “website[s],” “a hardware
processor,” or “a computer-readable storage medium” to an abstract idea is
not enough to transform an abstract idea into a patent-eligible invention. See
Alice, 134 S. Ct. at 2358 (“[T]he mere recitation of a generic computer
cannot transform a patent-ineligible abstract idea into a patent-eligible
invention”).
First, Appellants argue that “the claimed invention is tied to a
machine” and thus, “the Examiner has not reasonably tied the facts of the
present claims to the facts of Cvbersource.” (Reply Br. 4.) However,
Cybersource was only relied upon for step one of the Alice inquiry, a
determination of whether the claims are directed to a patent-ineligible
concept. Even if Appellants are correct that claims 21, 28, and 35 are “tied
to a machine,” under step two of the Alice inquiry, such hardware
components are generic, purely conventional computer elements.
Second, Appellants argue that “the claimed invention is directed to an
improvement of the functionality of a computer system itself.” (Reply
Br. 5.) However, other than providing a conclusory statement that
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claims 21, 28, and 35 are “directed to an improvement of the functionality of
a computer system itself,” Appellants have not provided any additional
explanation or evidence to support this position. For example, Appellants
have not provided citations to the Specification to demonstrate that the
claimed invention is an improvement of an existing technology or
demonstrated a deficiency in the prior art. See Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016) (“Moreover, our conclusion
that the claims are directed to an improvement of an existing technology is
bolstered by the specification’s teachings that the claimed invention achieves
other benefits over conventional databases, such as increased flexibility,
faster search times, and smaller memory requirements”).
Pursuant to our authority under 37 C.F.R. § 41.50(b), we reject
claims 21—40 under 35 U.S.C. § 101 as directed to non-statutory subject
matter of an abstract idea.
This decision contains a new ground of rejection pursuant to
37 C.F.R. §41.50(b).
37 C.F.R. § 41.50(b) provides that a “new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of proceedings (37 C.F.R. § 1.197(b)) as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
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by the examiner, in which event the prosecution will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under §41.52 by the Board upon the same Record. . . .
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
DECISION
The Examiner’s decision rejecting claims 35—40 under 35 U.S.C.
§ 101 as being directed to non-statutory subject matter of a transitory signal
is affirmed.
The Examiner’s decision rejecting claims 21—36 under the judicially
created doctrine of obviousness-type double patenting is affirmed.
The Examiner’s decision rejecting claims 21—40 under 35 U.S.C.
§ 103(a) is affirmed.
A new ground of rejection has been entered under 37 C.F.R.
§ 41.50(b) for claims 21—40, rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter of an abstract idea.
AFFIRMED
37 C.F.R, § 41.50(b)
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