Ex Parte Hu et al

Patent Trial and Appeal Board

Sep 21, 2017

12551408 (P.T.A.B. Sep. 21, 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.
12/551,408 08/31/2009 Wenyan Hu 2043.500US2 2627
49845 7590 09/25/2017
SCHWEGMAN LUNDBERG & WOESSNER/EBAY
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
YOUNG, ASHLEY YA-SHEH
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
09/25/2017 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):
USPTO@SLWIP.COM
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WENYAN HU, QIANG WANG,
XIAO YUAN WU, and ALVARO BOLIVAR
Appeal 2016-002993
Application 12/551,408
Technology Center 3600
Before DEBRA K. STEPHENS, SHARON FENICK, and
AARON W. MOORE, Administrative Patent Judges.
MOORE, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-002993
Application 12/551,408
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—3, 5—7, 9-15, 18, 19, 21, 23—25, and 27, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The application is directed to “[a] computerized method and a system
for comparing regional demand and supply.” (Abstract.) Claim 1,
reproduced below, exemplifies the subject matter on appeal:
1. A computerized method comprising:
receiving, over a computer network, using one or more
computer processors, a criterion, the criterion identifying an
item;
responsive to receiving the criterion, automatically searching
a database, using the one or more computer processors, for
demand and supply data relating to the item identified by the
criterion, the demand and supply data comprising statistics
derived from listing logs of at least a first and second listing of a
network-based commerce server, the demand data including data
representing a satisfied demand for the item and an implicit
demand for the item, the first listing submitted by a first
registered seller of the network-based commerce server and the
second listing submitted by a second registered seller of the
network-based commerce server, the first and second listings
viewable by buyers over the computer network and offering
items for sale, and the first and second registered sellers are
unaffiliated with respect to each other;
deriving, on the one or more computer processors, a demand
for the item based upon at least a function of the satisfied demand
1 Appellants identify eBay Inc. as the real party in interest. (See App. Br. 2.)
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Application 12/551,408
and the implicit demand, the implicit demand based upon at least:
the number of searches, bids, and views for the first and second
listings;
deriving, on the one or more computer processors, a supply
for the item based upon the supply data; and
responsive to calculating the demand and supply, rendering,
using the one or more computer processors, a map to be
displayed on a display device including a representation of a
geographic distribution of the demand and supply for the item,
the map to display a plurality of geographic areas, each of the
plurality of geographic areas to be displayed with at least one of
a first or a second attribute, the first and the second attributes
relating to the demand and supply.
THE REJECTION
Claims 1—3, 5—7, 9-15, 18, 19, 21, 23—25, and 27 stand rejected under
35 U.S.C. § 101 “because the claimed invention is directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more.” (See Final Act. 3—4.)
ANALYSIS
The Examiner finds the claims are “directed to analyzing supply and
demand,” which is “a fundamental economic practice, and thus an idea of
itself.” (Final Act. 4.) The Examiner further finds the claims “do not
include additional elements that are sufficient to amount to significantly
more than the judicial exception because the generically recited computer
elements do not add a meaningful limitation to the abstract idea because they
would be routine in any computer implementation.” (Id.) We agree.
Appellants’ claims are directed to a method that searches a database
for supply and demand data for an item, derives information regarding the
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Application 12/551,408
geographic distribution of demand and supply for the item, and displays that
geographic information on a map. Claims such as these, which recite a
business method implemented on a conventional computer for speed or
convenience, are not eligible for patenting under current law. See, e.g., Elec.
Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding
that “collecting information, analyzing it, and displaying certain results of
the collection and analysis” are “a familiar class of claims ‘directed to’ a
patent ineligible concept”); Intellectual Ventures ILLC v. Capital One Bank
(USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“[MJerely adding computer
functionality to increase the speed or efficiency of the process does not
confer patent eligibility on an otherwise abstract idea.”). That the results of
the data analysis are subsequently displayed on a (generic) display device
does not change the analysis. See Elec. Power Grp., 830 F.3d at 1354
(“[W]e have recognized that merely presenting the results of abstract
processes of collecting and analyzing information, without more (such as
identifying a particular tool for presentation), is abstract as an ancillary part
of such collection and analysis.”).
Appellants’ argument that they “are unaware of any case finding
‘analyzing supply and demand,’ ... to be patent ineligible as a fundamental
economic practice” (App. Br. 8—9) is not persuasive because data analysis,
without more, is not eligible. See, e.g., Elec. Power Grp., 830 F.3d at 1354
(electric power grid data); Credit Acceptance Corp. v. Westlake Servs., 859
F.3d 1044, 1054 (Fed. Cir. 2017) (“processing an application for financing a
purchase”); Audatex North Am., Inc. v. Mitchell Int 7, Inc., No. 2016-1913,
2017 WL 3188451 (Fed. Cir. July 27, 2017) (vehicle valuation data). We do
not agree with Appellants that fundamental economic practices are
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Application 12/551,408
necessarily limited to “facilitating a contractual agreement between parties”
(App. Br. 10), but, even if Appellants were correct, the point would fail to
establish error because the category of abstract ideas “is not limited to
economic or commercial practices or methods of organizing human
activity.” Intellectual Ventures ILLC v. Symantec Corp., 838 F.3d 1307,
1313 (Fed. Cir. 2016) (quoting Bilski v. Kappos, 561 U.S. 593, 611 (2010)).
Nor do we agree that Appellants’ claims are “directed to a technical
solution to a technical problem.” (App. Br. 11.) Instead, they are directed to
a business solution (analyzing supply and demand) to a business problem
(ensuring optimal geographic distribution of products). (See Spec. 120
(“The seller may want to distribute the SUVs from the factory to depository
stores based on net-demand for SUVs in the areas close to each depository
store. Otherwise, the cost of redistribution from one depository store to
another may be substantial, especially if those depository stores are quite far
from each other.”).)
We also do not agree with Appellants’ argument that the claim
requires more than a general purpose computer. (App. Br. 12.) The claim
does not include any unique hardware components or configuration, or any
new software techniques, and, in fact, the Specification explains that the
method may be implemented on “any machine capable of executing a set of
instructions (sequential or otherwise) that specify actions to be taken by that
machine.” (Spec. 67—68.) The claims are directed to a software solution,
evidently using ordinary programming techniques on a conventional
computer.
Finally, Appellants’ argument that the claims are eligible because they
are not rejected on prior art grounds (see App. Br. 12) is not persuasive
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because an abstract idea is not made less abstract by being new and
nonobvious. The Section 101 and 102/103 inquiries are distinct. Cf. Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S.Ct. 1289, 1303 (2012)
(rejecting the suggestion that Sections 102, 103, and 112 might perform the
appropriate screening function and noting that in Mayo such an approach
“would make the Taw of nature’ exception ... a dead letter”); see also
Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1311 (Fed.
Cir. 2016) (Reyna, J., dissenting) (“The inventiveness inquiry of § 101
should . . . not be confused with the separate novelty inquiry of § 102 or the
obviousness inquiry of § 103.”).
Because Appellants’ arguments do not persuade us that the Examiner
erred, we sustain the rejection of claims 1—3, 5—7, 9—15, 18, 19, 21, 23—25,
and 27 under 35 U.S.C. § 101.
DECISION
The rejection of claims 1—3, 5—7, 9—15, 18, 19, 21, 23—25, and 27 is
affirmed.
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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