Ex Parte Dhurandhar et al

Patent Trial and Appeal BoardFeb 14, 2019

14186071 (P.T.A.B. Feb. 14, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/186,071 02/21/2014 45773 7590 02/14/2019 WHITHAM, CURTIS & COOK, P.C. 11491 SUNSET HILLS ROAD, SUITE 340 RESTON, VA 20190 FIRST NAMED INVENTOR Amit Dhurandhar 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. YOR920130984US 1; 00280949 1093 EXAMINER REFAI, RAMSEY ART UNIT PAPER NUMBER 3668 MAIL DATE DELIVERY MODE 02/14/2019 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 AMIT DHURANDHAR, MARKUS R. ETTL, BRUCE C. GRAVES, and RAJESH K. RA VI 1 Appeal2017-010518 Application 14/186,071 Technology Center 3600 Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and MICHAEL C. ASTORINO, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. Â§ 134 of the final rejection of claims 1-5 and 9-19, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. Â§ 6(b). SUMMARY OF THE DECISION We AFFIRM. 1 International Business Machines, Inc. is identified as the real party in interest (App. Br. 3). Appeal2017-010518 Application 14/186,071 THE INVENTION The Appellants' claimed invention is directed to identifying fraud/risk in procurement and providing numerical probabilities of illegal activity (Spec. ,r 1 ). Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A computer-implemented method for identifying fraudulent or risky entities in procurement, comprising the steps of: capturing both privately sourced data and publicly sourced data with a server in communication with one or more data input devices; identifying anomalous events with a processor using said privately sourced data, said anomalous events being selected from the group consisting of statistical outliers and violations of one or more of a plurality of business rules by an entity; applying weights to each of said anomalous events, said weights being in a probability range of O to 1; generating at an output device a total confidence of collusion by combination of a first probability of collusion and a second probability of collusion, wherein said first probability of collusion is determined from said anomalous events for said entity and at least one other entity, said second probability of collusion is determined from said publicly sourced data for said entity and said at least one other entity, and said combination is a weighted sum of said first probability of collusion and said second probability of collusion constrained to a probability range of Oto 1, wherein said publicly sourced data includes social media data. 2 Appeal2017-010518 Application 14/186,071 THE REJECTIONS The following rejections are before us for review: 1. Claim 2 is rejected under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. 2. Claims 1-5 and 9-19 are rejected under 35 U.S.C. Â§ 101 as being directed to non-statutory subject matter. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence. 2 ANALYSIS Rejection under 35 USCÂ§ 112, second paragraph The Appellants have not provided any substantive arguments in regard to this rejection (see App. Br. 35). Accordingly, this rejection of record is summarily sustained. Re} ection under 3 5 US. C. Â§ 101 The Appellants argue that the rejection of claim 1 is improper because the claim is not directed to an abstract idea and is instead integrally tied to social media and the Internet (App. Br. 18-19; Reply Br. 7). The Appellants also argue that the cases that are cited by the Examiner in the determination of the claim being directed to an abstract idea are not relevant to the claim at 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) ( explaining the general evidentiary standard for proceedings before the Patent Office). 3 Appeal2017-010518 Application 14/186,071 issue here (App. Br. 21-26; Reply Br. 2-5). The Appellants argue the claim requires more than a generic computer and cannot be done by a human analog (App. Br. 26-30; Reply Br. 1-2, 5). The Appellants argue further that the claim is not directed to a mathematical formula and instead is a technological improvement (App. Br. 30-33; Reply Br. 6). In contrast, the Examiner has determined that the rejection of record is proper (Final Action 2-5; Ans. 2---6). We agree with the Examiner. An invention is patent eligible if it claims a "new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. Â§ 101. However, the Supreme Court has long interpreted 35 U.S.C. Â§ 101 to include implicit exceptions: "[l]aws of nature, natural phenomena, and abstract ideas" are not patentable. E.g., Alice Corp. v. CLS Bankint'l, 573 U.S. 208,216 (2014). 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 ); 4 Appeal2017-010518 Application 14/186,071 mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and mental processes ( Gottschalk v. 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, 192 ( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267---68 (1854))); 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 187; 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. (internal citation omitted) ( 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- 5 Appeal2017-010518 Application 14/186,071 eligible application." Alice, 573 U.S. at 221 ( 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. (alterations in original) (quoting Mayo, 566 U.S. at 77). "[M]erely requir[ing] generic computer implementation[] fail[ s] to transform that abstract idea into a patent-eligible invention." Id. Here, the Examiner has determined that the claim is directed to the concept of "generating total confidence of collusion to identify fraud/risk in procurement by using privately sourced data and publically sourced data, which is an idea 'of itself' and a certain method for organizing human activity" and therefore an abstract idea (Ans. 2). We substantially agree with the Examiner in this regard as claim 1 is directed to the steps of capturing data, identifying anomalous events, applying weights to the anomalous events, and generating a combination of a weighted sum of probabilities of collusion. These steps are directed to the concept of organizing data and applying a mathematical formula to determine a probability of collusion and these steps are a method of organizing human activities or an idea in itself in applying the mathematical probabilities to the data. In FairWarning IP, LLC v. Iatric Systems, Inc. 839 F.3d 1089, 1092- 94 (Fed. Cir. 2016), ways to detect fraud and misuse by identifying unusual patterns in users' access to sensitive data and claims directed to "collecting and analyzing information to detect misuse and notifying a user when misuse is detected" were held to be directed to an abstract idea. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) (collecting information, analyzing it, and displaying results from certain results of the collection and analysis was held to be an abstract idea). Further, "a process 6 Appeal2017-010518 Application 14/186,071 that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible." Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014). The Appellants have for example cited to Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016), to show that the claim is not abstract, but the claims in that case were not similar in scope to those here and were in contrast directed to a self-referential data table. The Appellants have also for example cited to McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016), but the claims in that case are distinguished from this case in being directed to rules for lip sync and facial expression animation. Thus, we consider the claim to be directed to an abstract idea as identified above. Turning to the second step of the second step of the Alice and Mayo framework, we determine that the claim does not contain an inventive concept sufficient to "transform" the abstract nature of the claim into a patent-eligible application. The claims do not improve computer functionality, improve another field or technology, utilize a particular machine, or effect a physical transformation. Rather, we determine that nothing in the claims imposes a meaningful limit on the judicial exception, such that the claims are more than a drafting effort to monopolize the judicial exception. Further, in claim 1, the server merely gathers the social media data. Here, considering the elements of the claim both individually and as "an ordered combination" the functions performed by the computer system at each step of the process are purely conventional. Each step of the claimed 7 Appeal2017-010518 Application 14/186,071 method does no more than require a generic computer to perform a generic computer function. The Specification at paragraphs 86-88 for example describes using conventional computer components in a conventional manner. For these above reasons, the rejection of claim 1 and its dependent claims, which are directed to similar subject matter, is sustained. Claim 9 and its dependent claims are directed to similar subject matter and the rejection of these claims is sustained for these same reasons given above as well. We reach the same conclusion as to independent system claim 14 and its dependent claims. Here, as in Alice, "the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea." Alice, 573 U.S. at 226. "[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea 'while adding the words "apply it'" is not enough for patent eligibility." Id. at 223 (quoting Mayo, 566 U.S. at 72). CONCLUSIONS OF LAW We conclude that Appellants have not shown that the Examiner erred in rejecting the claims as listed in the Rejections section above. 8 Appeal2017-010518 Application 14/186,071 DECISION The Examiner's rejections of claims 1-5 and 9-19 are sustained. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l)(iv). See 37 C.F.R. Â§ 41.50(Â±). AFFIRMED 9