Ex Parte Decker et al

Patent Trial and Appeal Board

Apr 25, 2018

11681541 (P.T.A.B. Apr. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/681,541 03/02/2007
23117 7590 04/27/2018
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Katherine K. Decker
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.
2621-20 7388
EXAMINER
VIZV ARY, GERALD C
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
04/27/2018 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATHERINE K. DECKER, SAM EVANS, and MARK BRUNN
Appeal2016-007323
Application 11/681,541
Technology Center 3600
Before PHILIP J. HOFFMANN, AMEE A. SHAH, and
MATTHEW S. MEYERS, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1-7, 11-19, and 27-29. 3 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Throughout this Decision, we refer to the Appellants' Appeal Brief
("Appeal Br.," filed Nov. 16, 2015), Reply Brief ("Reply Br.," filed July 19,
2016), and Specification ("Spec.," filed Mar. 2, 2007), and to the Examiner's
Answer ("Ans.," mailed May 19, 2016) and Final Office Action ("Final
Act.," mailed May 13, 2015).
2 According to the Appellants, the real party in interest is Manheim
Investments, Inc. Appeal Br. 1.
3 Claims 20-22 and 24--26 have been cancelled by the Appellants. Appeal
Br. 2, 20 (Claims App.)
Appeal 2016-007323
Application 11/681,541
STATEMENT OF THE CASE
The Appellants' invention generally "relates to data processing, and
more particularly to automated computer systems for processing transactions
and mitigating risk," and specifically to "providing independent and other
dealers with sources of retail financing using a clearinghouse to reduce or
mitigate risk to lenders in real time or substantially real time." Spec. ,r 2.
Claims 1, 15, and 2 9 are the independent claims on appeal. Claim 1
(Appeal Br. 17 (Claims App.)) is illustrative of the subject matter on appeal,
and is reproduced below (lettered bracketing added for reference):
1. A non-transitory computer readable medium storing a
program comprising instructions which, when executed, causes
a processor to:
[(a)] at least in part through an established inventory
supply with an automobile dealer and through use of an
automated computerized inventory database, collect and evaluate
information concerning at least automobile inventory of said
automobile dealer;
[ (b)] based at least in part on said collecting and
evaluating, automatically determine a stored indicator indicative
of amount of risk associated with conducting future transactions
with said automobile dealer by automatically continually
monitoring at least said automobile inventory of said automobile
dealer;
[( c )] automatically conditioning computer-based access
by said automobile dealer to a plurality of lenders in response to
said stored indicator including automatically by computer
restricting and/or preventing the automobile dealer from
accessing financing offered by said plurality of lenders if the
indicator indicates that the particular dealer has fallen out of
trust, thereby using inventory supply as a way to monitor the
condition of said dealer and denying access by untrustworthy
automobile dealers to the plurality of lenders; and
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[( d)] using a computer-based titling system to guarantee
title to any lenders said automobile dealer is granted access to
and which provides financing to said automobile dealer based on
said automatically conditioned access.
REJECTIONS
Claims 1-7, 11-19, and 27-29 stand rejected under 35 U.S.C.
§ 101 as being directed to non-statutory subject matter. Final Act. 4.
Claims 1-7, 11-14, and 29 stand rejected under 35 U.S.C.
I03(a) as being unpatentable over Pulliam (US 6,609,108 Bl, iss.
Aug. 19, 2003) and Freeland (US 2002/0169640 Al, pub. Nov. 14,
2002). Id. at 7.
Claims 15-19, 27, and 28 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Pulliam, Freeland, and Andersen
(US 5,774,883, iss. June 30, 1998). Id. at 14.
ANALYSIS
35 USC§ JOI -Non-Statutory Subject Matter
The Supreme Court in Alice reiterated the two-step framework, set
forth previously in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 78-79 (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 Corp. Pty.
Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355 (2014). The first step in that
analysis is to "determine whether the claims at issue are directed to one of
those patent-ineligible concepts." Id. (citing Mayo, 566 U.S. at 79)
( emphasis added). If so, the second step is to consider the elements of the
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claims "individually and 'as an ordered combination'" to determine whether
the additional elements "'transform the nature of the claim' into a patent-
eligible application." Id. (quoting Mayo, 566 U.S. at 79).
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. ( alteration in original) ( quoting
Mayo, 566 U.S. at 72-73). The Court acknowledged in Mayo, that "all
inventions at some level embody, use, reflect, rest upon, or apply laws of
nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We,
therefore, look to whether the claims focus on a specific means or method
that improves the relevant technology or are instead directed to a result or
effect that itself is the abstract idea, and merely invoke generic processes and
machinery. See Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336
(Fed. Cir. 2016).
Under the first step of the Mayol Alice framework, the Examiner
determines that the claims are directed to "an example of comparing new
and stored information and using rules to identify options, processing
information through a clearinghouse and using the result in a fundamental
economic practice." Final Act. 5. Conversely, the Appellants contend that
"[a] more appropriate definition of the 'abstract idea' might be 'providing
... dealers with sources of retail financing using a clearinghouse to reduce
or mitigate risk to lenders in real time or substantially in real time."' Appeal
Br. 7 ( quoting Spec. ,r 2).
The step-one analysis requires us to consider the claims "in light of
the specification, based on whether 'their character as a whole is directed to
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excluded subject matter."' Enfzsh, 822 F.3d at 1335 (quoting Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)
and quoting Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1375 (Fed.
Cir. 2016) ("inquiring into 'the focus of the claimed advance over the prior
art"')). The question is whether the claims as a whole "focus on a specific
means or method that improves the relevant technology" or are "directed to
a result or effect that itself is the abstract idea and merely invoke generic
processes and machinery." McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314 (Fed. Cir. 2016).
Here, the Specification is titled "DATA PROCESSING METHOD
AND APPARATUS FOR MITIGATING RISKIN FINANCING
PURCHASES OF GOODS INCLUDING BUT NOT LIMITED TO
AUTOMOBILES." The Specification further describes the invention as
"providing independent and other dealers with sources of retail financing
using a clearinghouse to reduce or mitigate risk to lenders in real time or
substantially real time." Spec. ,r 2; Appeal Br. 7. Independent claim 1
provides for a computer readable medium with instructions that cause a
processor to collect and evaluate inventory data through use of an automated
computerized database, determine data indicating risk by monitoring
inventory data based on the colleting and evaluating, condition computer-
based access to lenders in response to risk data, and use a computer-based
system to guarantee title. See Appeal Br. 17 (Claims App.). Claims 3-14,
that depend from claim 1, further narrow the step of conditioning access and
add the steps of supplying inventory data, providing financing, processing
loan payoffs, verifying trade-in data, serving as loan escrow agent,
communicating with a system to collect inventory data, and transmitting
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payment electronically. See id. at 17-19. Independent claim 15 provides for
a data transaction system comprising a data collector to collect inventory
data and communicate with a dealer computer, a facilitator computer
coupled to the data collector, connected to a storage device, i.e., database,
and including a dealer evaluator that determines condition of a dealer based
on received and monitored inventory data, and a transaction computer
coupled to the evaluator that conditions access to participants based on the
determined condition. See id. at 19-20. Claims 16-19 and 27, which
depend from claim 15, add limitations regarding the evaluator setting a flag,
defining the privileges revoked, and adding an auction computer to manage
auction inventory and provide information, means for communicating with a
dealer computer, and means for transmitting payments electronically. See
id. at 20-21. Independent claim 29 provides for a method of initiating
transfer of title while facilitating transactions comprising the steps of using a
computerized system to monitor and track inventory data, evaluating
inventory to infer risk, adjusting a stored data indicative of the risk through
the use of the computer and based on the inferred risk, conditioning
computer-based access to lenders in response to risk data, and guaranteeing
title. See Appeal Br. 21. The computerized system may consist of a
clearinghouse computer, which can be a mainframe or mini computer, that
communicates with a credit facilitator engine "of conventional design"
(Spec. ,r 20), with dealer computers via a network (see id. ,r 24), with an
auction computer using a network such as the Internet (see id. ,r 25), with a
title handling system (id. ,r 27), and with a conventional electronic
communications engine (id. ,r 28), and that can directly or indirectly access a
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database (id. ,r 26). The clearinghouse computer and engine can be different
computers or one computer, i.e., a generic computer. Id. ,r 35.
In that context, considering the claims in light of the Specification and
on their "character as a whole" (Enfzsh, 822 F.3d at 1335), the claims are
directed to collecting, evaluating, determining, monitoring, and controlling
access to data to guarantee title and reduce financial risk. 4 In this manner,
the claims are similar to those deemed to be abstract ideas by our reviewing
courts in Bilski v. Kappas, 561 U.S. 593, 609--11 (2010) (hedging risk as
applied to energy markets), Alice, 134 S. Ct. at 2356 (using a third party to
mitigate settlement risk), buySAFE, Inc. v. Google, Inc., 765 F.3d 1350,
1355 (Fed. Cir. 2014) (guaranteeing transactions), CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011) (verifying
the validity of credit card transactions over the Internet), and Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (process of
gathering and analyzing information of a specified content and displaying
the result). Here, the claims involve nothing more than collecting,
evaluating, determining, monitoring, and controlling access to data, without
any particular inventive technology- an abstract idea. See Elec. Power,
830 F.3d at 1354. That the steps are automatic, i.e., performed by
computers, (see Appeal Br. 7) does not preclude the claims from being
directed to an abstract idea at least because the Court has instructed that the
significance of these elements is determined in step two of the Mayo/Alice
4 We note that "[ a ]n abstract idea can generally be described at different
levels of abstraction." Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240
(Fed. Cir. 2016). The Board's "slight revision of its abstract idea analysis
does not impact the patentability analysis." Id. at 1241.
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framework. The claims in Alice, for example, were not devoid of technical
elements, but were determined to be directed to an abstract idea. Cf In re
TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016)
("[N]ot every claim that recites concrete, tangible components escapes the
reach of the abstract-idea inquiry").
We find unpersuasive the Appellants' arguments that the claims are
not abstract because they are analogous to those of DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) in that the claims "solve[]
a long-felt problem in a non-obvious way through use of computer
technology in a particular way that ... would not exist but for modem online
transactions over computer networks." Reply Br. 8; see also Appeal Br. 9.
In DDR Holdings, the Federal Circuit determined that the claims
addressed the problem of retaining website visitors who, if adhering to the
routine, conventional functioning of Internet hyperlink protocol, would be
transported instantly away from a host's website after clicking on an
advertisement and activating a hyperlink. DDR Holdings, 773 F.3d at 1257.
The Federal Circuit, thus, held that the claims were directed to statutory
subject matter because they claim a solution "necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks." Id. The court cautioned that "not all claims
purporting to address Internet-centric challenges are eligible for patent." Id.
at 1258. And the court contrasted the claims to those at issue in
Ultramercial Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) in that, in
DDR Holdings, the computer network was not operating in its "normal
expected manner" and the claims did not "recite an invention that is merely
the routine or conventional use of the Internet." Id. at 1258-59.
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In contrast, here the Appellants do not specify what problem
specifically arising in the realm of computer networks the claims address. In
the section titled "BACKGROUND AND SUMMARY," the Specification
discusses that many consumers benefit from using financing options to pay
for car purchases. See Spec. ,r 5. Large dealers generally are able to provide
many financing options (id.), but "[s]maller and/or independent car dealers
face a different set of challenges when seeking financing relationships with
lenders" (id. ,r 6). These challenges pertain to smaller dealers' lack of
relationships with wary nationwide lenders who, to reduce risk, prefer to
engage only with larger dealer franchises. Id. To address these problems,
the invention attempts to "provide efficient mechanisms for giving
consumers a wider range of lender choices and options while minimizing
lender risks and maximizing transactions efficiently" (id. ,r 7) by
"provid[ing] risk mitigated solutions, systems methods and environments
that use modem computers and associated networks in ways that are highly
efficient, cost-effective, timely, robust and reliable for coordinating and
clearing lender transactions including but not limited to automobile
purchases" (id. ,r 8). As discussed above, the computers and networks used
are conventional computers. See id. ,r,r 20, 24--29, 35,
Unlike DDR Holdings, here the problem of reducing risk to lenders to
provide financing options to smaller businesses existed prior to the Internet.
See Alice, 134 S. Ct. at 2356-57 (hedging risk and intermediated settlement
are fundamental economic practices); buySAFE, 765 F.3d at 1355 ("creating
a contractual relationship----a 'transaction performance guaranty'-... is
beyond question of ancient lineage"). Further, the purported solution is not
necessarily rooted in computer technology as it requires the use of generic
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components operating in their routine and conventional way. The
Appellants do not direct attention to, and we do not see, where the
Specification provides for an improvement in the technology or technical
functioning of these components. The claims recite an invention that is
merely the routine or conventional use of the Internet to perform an abstract
business practice. DDR Holdings, 773 F.3d at 1258-59.
We also find unpersuasive the Appellants' argument that the claims
are not directed to an abstract idea because "the self-referential tables the
Federal Circuit found to be patentable in Enfzsh, ... also were directed to
'concepts relating to economy and commerce' - namely keeping track of
employees of a company." 5 Reply Br. 7. The claims at issue in Enfzsh were
directed to a specific type of data structure, i.e., a self-referential table for a
computer database, designed to improve the way a computer carries out its
basic functions of storing and retrieving data. Enfzsh, 822 F.3d. at 1335-36.
There, in rejecting a § 101 challenge, the court held that "the plain focus of
the claims is on an improvement to computer functionality itself, not on
economic or other tasks for which a computer is used in its ordinary
capacity." Id. at 1336. The Appellants have not adequately explained here
how the court's holding in Enfzsh impacts the present analysis under the
Mayo/Alice framework. For example, the Appellants do not point to
anything in the claims that resembles the inventive self-referential data
structure at issue in Enfzsh. And the Appellants do not direct our attention to
anything in the Specification that indicates that the invention provides an
improvement in computer functionality.
5 The Appellants may present this new argument based on the recent
relevant decision of the Federal Circuit issued after the Appeal Brief.
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Under the second step of the Alice framework, we adopt, and find
supported, the Examiner's determination that the claim limitations, taken
individually or as an ordered combination, do not recite an inventive
concept. See Final Act. 5; Ans. 23. We are unpersuaded by the Appellants'
arguments that the claim limitations recite significantly more than the
abstract idea. See Appeal Br. 7-12; Reply Br. 8-9.
We disagree that the limitations of "a 'clearinghouse facilitator
computer' ... structured to automatically monitor the condition of the dealer
based on an inventory database, and a 'transaction origination computer'
[that] automatically conditions access by the dealer to potential transaction
participants" add "' something more"' than the abstract idea. Appeal Br. 7.
The terms "clearinghouse facilitator computer" and "transaction origination
computer" are not used in the Specification. The Specification does describe
a "clearinghouse 100" that may be "a main frame or mini computer" (Spec.
,r 20), i.e., a generic computer. The Specification also describes a "loan
origination system" (id. ,r,r 14, 21 ), but not specific structure for that system,
or that the origination system conditions access to data. Rather, the
Specification describes clearinghouse 100 as having "the effect of closing
access" (id. ,r 21 ).
We agree with the Examiner's finding that collecting and evaluating
information, determining a stored data indicative of risk, monitoring data,
conditioning computer-based access are well-understood, routine, and
conventional functions of a generic computer. See Final Act. 2-3; Ans. 15.
The Specification supports this in providing for a generic clearinghouse
computer to perform these functions. See Spec. ,r,r 14, 20, 21, Fig. 1. See
also Elec. Power, 830 F.3d at 1354--55 (gathering, sending, monitoring, and
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presenting information); Two-Way Media Ltd. v. Comcast Cable Commc 'ns,
LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (processing, routing, and
controlling data, and monitoring its reception). There is no further
specification of particular technology for performing the steps. See Affinity
Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1263 (Fed. Cir.
2016); see also Enfish, 822 F.3d. at 1336 (focusing on whether the claim is
"an improvement to [the] computer functionality itself, not on economic or
other tasks for which a computer is used in its ordinary capacity"). We note
that the Specification does not describe how the computer guarantees title;
the term is only discussed in the Specification at paragraph 15 as one of the
items dealers are screened for, and in original claim 9.
We further find unpersuasive the Appellants' argument that the claims
recite an inventive concept because the imitations "require interconnections
of the type shown in Fig[ure] IA that did not exist before ... [Appellants]
invented their preferred embodiment." Appeal Br. 8. The Appellants do not
provide reasoning or support to show that a generic computer, i.e., the
clearinghouse, communicating with a database and other systems did not
exist prior to the invention.
In response to the Appellants' argument that the claims "require
significant structure that avoids preempting any abstract idea" (Appeal
Br. 8), we note that although the Supreme Court has described "the concern
that drives this exclusionary principle[, i.e., the exclusion of abstract ideas
from patent eligible subject matter,] as one of preemption" (see Alice, 134
S. Ct. at 2354), characterizing preemption as a driving concern for patent
eligibility is not the same as characterizing preemption as the sole test for
patent eligibility. "The Supreme Court has made clear that the principle of
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preemption is the basis for the judicial exceptions to patentability" and "[ f]or
this reason, questions on preemption are inherent in and resolved by the
§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice, 134 S. Ct. at 2354). Although
"preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility." Id. The
aforementioned concept and structure claimed are not sufficiently limiting so
as to fall clearly on the side of patent-eligibility.
With regards to the dependent claims, the Appellants recite the
limitations and state that they provide "specific technological detail[ s ]" that
prevent the claims from preempting abstract idea. Appeal Br. 9--12. As
discussed above, the absence of complete preemption does not demonstrate
patent-eligibility. And, the Appellants do not provide further support or
reasoning as to why or how the limitations are not well-understood, routine,
and conventional functions of a generic computer.
Thus, we are not persuaded that the Examiner erred in rejecting
claims 1-7, 11-19, and 27-29 under 35 U.S.C. § 101, and we sustain the
Examiner's rejection.
35 US.C. § 103(a)- Obviousness
We agree with the Appellants' contention that the Examiner does not
adequately show that the prior art teaches limitations (b) and ( c) of claim 1,
and similarly recited in claims 15 and 29, of conditioning access by a dealer
to a plurality of lenders in response to the determined indicator of risk/ dealer
condition. See Appeal Br. 13; Reply Br. 2-3.
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The Examiner finds, in relevant part, that Pulliam teaches determining
a stored indicator indicative of risk and the condition of the dealer, and
conditioning computer-based access in response to the indicator and
condition. See Final Act. 7-8, 15-16 (citing Pulliam, col. 2, 1. 63---col. 3,
1. 3, col. 14, 11. 40-45, Fig. 9); Ans. 24 ( citing Pulliam, col. 30, 1. 65---col. 31,
1. 5, Figs. 37 A-37C). Specifically, the Examiner finds that Pulliam shows
applying rules "to allow or deny access to specific functions and data sets"
(Final Act. 8) and "show[s] access using multiple indicators" (Ans. 24). The
Examiner further finds that Freeland teaches conditioning access to a
plurality of lenders. Final Act. 8, 16 ( citing Freeland ,r 10).
Pulliam discloses a system and method for communicating online
vehicle orders. Pulliam, Abstract. The portions of Pulliam relied on by the
Examiner disclose a method and system that reduces product delivery time
to a consumer by locating and tagging a desired product at various stages of
the pipeline. Id. at col. 2, 1. 63---col. 3, 1. 5. Figure 9 shows a locate server
message flow whereby requests from vehicles are sent and, based on the
requester's identity and pre-assigned business rules, a user's access to
specific functions and data sets is denied or allowed. Id. at col. 4, 11. 34--45.
Figures 37 A-37C show a user session message format for transmitting user
session data to the report process that includes various identifiers. Id. at
col. 30, 1. 65---col. 31, 1. 5. Freeland discloses a system for facilitating the
transfer of titled property. Freeland, Abstract. Paragraph 10, relied on by
the Examiner, provides that the processing center electronically handles the
majority of the title and registration process, thereby allowing "proper
security" to the lenders and protecting all parties by utilizing the "security of
the escrow service."
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However, the Examiner has not adequately explained how or where
Pulliam teaches that its tagging and/ or user request is used to determine an
indicator of risk or condition of the dealer or how or where Pulliam teaches
that its business rules to control access to data are based on the indicator of
risk or determined condition of the dealer. The Examiner has also not
adequately explained how one of ordinary skill in the art would understand
Freeman's processing center to control access based on Pulliam's tagging
and/or user request. Thus, the Examiner has not adequately shown how
Pulliam and/or the combination of Pulliam and Freeman teaches the claimed
limitations of determining an indicator of risk/condition of the dealer and
conditioning access by a dealer to a plurality of lenders in response to the
determined indicator of risk/condition.
Based on the foregoing, we do not sustain the Examiner's rejections
under 35 U.S.C. § 103(a) of independent claims 1, 15, and 29, and their
dependent claims.
DECISION
The Examiner's rejection of claims 1-7, 11-19, and 27-29 under
35 U.S.C. § 101 is AFFIRMED.
The Examiner's rejections of claims 1-7, 11-19, and 27-29 under
35 U.S.C. § 103(a) are REVERSED.
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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