Ex Parte Kho et al

Patent Trials and Appeals Board

May 22, 2019

12634485 - (D) (P.T.A.B. May. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/634,485 12/09/2009
75949 7590
IBM CORPORATION
C/0: Fabian Vancott
215 South State Street
Suite 1200
Salt Lake City, UT 84111
05/24/2019
FIRST NAMED INVENTOR
Nancy Ellen Kho
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.
RSW920090079US 1 7630
EXAMINER
JOSEPH, TONY A S
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
05/24/2019 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):
patents@fabianvancott.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NANCY ELLEN KHO, JUDY J. PIPER, and
MARY ELLEN ZURKO
Appeal2018-004281
Application 12/634,485
Technology Center 3600
Before JOSEPH L. DIXON, KEVIN F. TURNER, and JOHN A. EV ANS,
Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-004281
Application 12/634,485
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-14 and 16-21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to providing schedule related information to
external entities enabling providers of products and services to make offers
to potential consumers. (Spec. ,r 1.) Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method for providing schedule related information to
external entities, the method comprising:
storing schedule data of a user on a server, said schedule
data corresponding to a computerized calendar service and
including a number of events that said user has placed on an
electronic calendar, wherein each said event calls for a number
of products or services that will be purchased by said user in
connection with that event;
selectively exposing, with electronic access to said
computerized calendar service, at least a portion of said
schedule data stored by said server to an entity other than said
user via electronic communication to said entity; and
enabling said entity to electronically communicate an
offer based on said schedule data to said user to provide a
number of said products or services in connection with a
corresponding event on said user's electronic calendar.
REFERENCES
No prior art is relied upon by the Examiner in rejecting the claims on
appeal.
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REJECTION
The Examiner made the following rejection:
Claims 1-14 and 16-21 stand rejected under 35 U.S.C. § 101 because
the claimed invention is directed to non-statutory subject matter 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.
ANALYSIS
35 U.S.C. § 101
An invention is patent eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "' [L Jaws of nature, natural phenomena, and abstract
ideas'" are not patentable. Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (brackets in original) (citing Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
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. Alice Corp. v. CLS Banklnt'l, 573 U.S. 208, 217-18 (2014)
(citing Mayo, 566 U.S. at 75-77). In accordance with that framework, we
first determine what concept the claim is "directed to." See Alice, 573 U.S.
at 218-19 ("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.").
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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 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding ... rubber products" (Diehr, 450 U.S. at 191); "tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores"
(id. at 183 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267---68 (1853)));
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. ( 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
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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-
eligible application." Alice, 573 U.S. at 221 (internal quotation marks
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. ( 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.
The PTO recently published revised guidance on the application of
§ 101. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (January 7, 2019) ("Revised Guidance"). Under that
guidance, we first look to whether the claim recites:
( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) ("Prong One"); and
(2) additional elements that integrate the judicial exception into a
practical application ("Prong Two") (see MPEP § 2106.05(a}-(c), (e}-
(h)) (9th ed. 2018).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
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previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Revised Guidance.
Claims 1-14 and 16-21: Ineligible Subject Matter
Appellants present arguments to claims 1-14 and 16-21 as a group.
(App Br. 11.) Appellants' specifically address independent claim 20 which
is more specific than independent claim 1. Because Appellants have not
presented separate arguments for patentability, we select independent claim
1 as the representative claim for the group and will address Appellants'
arguments thereto. (Id.) Thus, we address in detail the appeal of the § 101
rejection of independent claim 1 with which the§ 101 rejection of claims 1-
14 and 16-21 stand or fall. See 37 C.F.R. § 4I.37(c)(l)(iv) (2017); In re
King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
Revised Guidance Step 1
Step 1 of the Revised Guidance asks whether the claimed subject
matter falls within the four statutory categories of patentable subject matter
identified by 35 U.S.C. § 101: process, machine, manufacture, or
composition of matter. See Revised Guidance. Claim 1 recites "[a] method
for providing schedule related information to external entities." Appellants
do not argue the Examiner erred in concluding claim 1 falls within the four
statutory categories of patentable subject matter. (App. Br. 11.) We agree
with the Examiner's conclusion because claim 1 falls within the process
category.
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Revised Guidance Step 2A(i) ("Prong One'')
Under Step 2A(i) of the Revised Guidance, we determine whether the
claims recite any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity such as a fundamental economic practice, or mental processes). See
Revised Guidance.
The Examiner maintains that independent claim 1 is directed to
communicating offers based on calendar information, which falls into the
category of (ii) a method of organizing human activities and (iii) an idea of
itself. (Final Act. 5.) The Examiner further maintains the "steps of storing
data, exposing a calendar to a different entity and presenting an offer are a
textbook case of automating a process that can or has been previously
performed by a person." (Id. at 4.)
We refine the Examiner's determination of the abstract idea to
identify that claim 1 recites the following limitations in the method for
providing schedule related information to external entities, the method
compnsmg:
storing schedule data of a user on a server, said schedule
data corresponding to a computerized calendar service and
including a number of events that said user has placed on an
electronic calendar, wherein each said event calls for a number
of products or services that will be purchased by said user in
connection with that event;
selectively exposing, with electronic access to said
computerized calendar service, at least a portion of said
schedule data stored by said server to an entity other than said
user via electronic communication to said entity; and
enabling said entity to electronically communicate an
offer based on said schedule data to said user to provide a
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number of said products or services in connection with a
corresponding event on said user's electronic calendar.
App. Br. 18 (Claims App'x) (emphasis added). These limitations,
under their broadest reasonable interpretation, recite a method of
providing schedule related information to external entities. We
additionally note the claimed method provides no details of the system
or server.
We find the italicized language of independent claim 1 sets forth a
method of providing schedule related information to external entities and
allowing entities to communicate an offer based on the schedule data. The
claimed invention retrieves this additional information and uses the
information. This is similar to the claims in Interval Licensing LLC v. AOL,
Inc., 896 F.3d 1335, 1344--45 (Fed. Cir. 2018) (concluding that "[s]tanding
alone, the act of providing someone an additional set of information without
disrupting the ongoing provision of an initial set of information is an abstract
idea," and observing that the district court "pointed to the nontechnical
human activity of passing a note to a person who is in the middle of a
meeting or conversation as further illustrating the basic, longstanding
practice that is the focus of the [patent-ineligible] claimed invention").
Accordingly, we conclude claim 1 recites a method of managing
personal behavior or relationships or interactions between people, which is
one of the certain methods of human activities identified in the Revised
Guidance, and thus, an abstract idea. Revised Guidance 52.
Claim 1 recites various limitations consistent with this
characterization, and the Specification further supports this characterization:
By allowing users (120) to publish their trip information
along with information about desired services, businesses may
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be able to better target potential customers by creating
specialized deals and packaged services to specific individuals.
In addition, the user (120) does not need to spend a great
amount of time searching for acceptable rates and services.
(Spec. ,r 32.)
The Specification further discloses a generic "server" with little detail
regarding the interface between the stored calendar information and the
entities accessing and using the calendar information. (Spec. ,r,r 30, 51.)
From this high level of description in the Specification, we find
Appellants' Specification merely identifies a generic computer processor
that performs the function of exposing calendar database information and
interacting with a user to provide offers for future travel plans without any
substantive details thereof.
Under the Revised Guidance, judicial exceptions include certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic practice, or
mental processes). We find the Examiner has shown the claimed invention
is directed to organizing human activity as described in the Revised
Guidance. Moreover, we find the Examiner's analysis based on the
Examiner's statement of the abstract idea supports the Examiner's
conclusion of a lack of patent-eligible subject matter.
As a result, on the record before us, the invention as recited in
representative independent claim 1 is directed to certain methods of
organizing human activity such as a commercial or legal interactions and
managing personal behavior and, thus, is directed to an abstract idea.
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Revised Guidance Step 2A(ii) ("Prong Two'')
Under the Revised Guidance, if a claim recites a judicial exception, in
Step 2A(ii) we determine whether the recited judicial exception is integrated
into a practical application of that exception by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception( s ); and (b) evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application. If the recited judicial exception is integrated into a
practical application, the claim is not directed to the judicial exception.
We find the steps of "storing schedule data of a user on a server, said
schedule data corresponding to a computerized calendar service and
including a number of events that said user has placed on an electronic
calendar" to be directed to insignificant extra-solution activity. The court
also guides that data gathering is a classic example of insignificant extra-
solution activity. This step simply gathers data for other method steps and
is, thus, insignificant extra-solution activity. See, e.g., Cy her Source Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) ("We have held
that mere ' [ data-gathering] step[ s] cannot make an otherwise nonstatutory
claim statutory'" (alterations in original) (quoting In re Grams, 888 F.2d
835, 840 (Fed. Cir. 1989)).); see also Revised Guidance, 84 Fed. Reg. at 55
(Identifying "add[ing] insignificant extra-solution activity to the" abstract
idea as an example of when an abstract idea has not been integrated into a
practical application.).
We find that Appellants did not dispute any additional limitations in
the claimed invention with respect to the abstract idea (see generally App.
Br. 13-17), and the Examiner made specific findings and conclusions in the
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Examiner's Answer with regards to these additional elements as they relate
to Step 2B of the Alice analysis. (See generally Ans. 3-5.)
The Examiner maintains that:
Appellant[ s] also appear[] to be confusing the 2B elements with
those of the abstract idea. In the instant application, the
elements that can be considered significantly more include a
server, electronic calendar, computer readable medium,
computerized calendar service, processor and memory. None
of these elements alone or in combination with the limitations,
perform any type of transformation or improve the functioning
of the compeer [sic] itself. In fact these elements perform as
they are normally designed to.
(See id. at 3--4.)
Considering the claim as a whole, interaction of all the steps using the
available data at an unspecified location "on a server" and "computerized
calendar" does not apply or use the abstract idea in a meaningful way such
that the claim as a whole is more than a drafting effort designed to
monopolize the exception. Thus, we determine that the abstract idea is not
integrated into a practical application.
As a result, on the record before us, the invention as recited in
representative independent claim 1 is additionally directed to certain
methods of organizing human activity such as a commercial or legal
interactions and managing personal behavior and, thus, is directed to an
abstract idea.
Appellants contend:
[I]n one aspect of the claimed subject matter, a user's
electronic calendar is modified by a vendor, when permitted by
the user, to include a customized offer for a product or service
that the user needs for an upcoming event on the electronic
calendar. In this way, the functionality of the electronic calendar
is augmented and improved for the user. The calendar becomes,
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not just a repository for recording appointments, but also a
marketplace for receiving customized offers to meets specific
needs at those events.
(App. Br. 12.) Although we agree with Appellants that independent claim
20 also recites "making an entry on a date on a calendar view of said
electronic calendar to indicate that an offer has been made by said entity for
a product or service called for by an event scheduled on that date" there is no
corresponding limitation in representative independent claim 1. 1 (Id. at 23
(Claims App'x).) Additionally, we find that the mere display to indicate that
an offer has been made does not further limit the abstract idea and merely
provides insignificant extra-solution activity addressed below with respect to
Step 2A(ii) ("Prong Two''). See also OIP Techs., Inc. v. Amazon.com, Inc.,
788 F. 3d 1359, 1363 (Fed. Cir. 2015) (explaining that "relying on a
computer to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible" ( citing Alice, 573 U.S. at 224
("use of a computer to create electronic records, track multiple transactions,
and issue simultaneous instructions" is not an inventive concept)). See Univ.
of Fla. Research Found., Inc. v. General Elec. Co., No. 2018-1284, 2019
WL 921859, at *4 (Fed. Cir. Feb. 26, 2019) (noting that although the
claimed invention may "result in life altering consequences ... is laudable,
[] it does not render [ the claims] any less abstract").
1 Furthermore, we note that Appellants' Summary of the Claimed Subject
Matter generally indicates "Appellant[s' S]pecification, Fig. 4B" support,
but we find no corresponding disclosure. Rather, we find Figure 4A and
paragraph 46 disclose the "marking may be done through a variety of means
including, but not limited to, bordering the date, bolding the date, and
circling the date" and paragraph 50 the Specification discloses "a user may
have the option to call a sales agent for the business making the offer."
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Therefore, as a matter of claim interpretation, Appellants' general
argument to the disclosed invention is not commensurate in scope with the
express language of representative independent claim 1 and is unpersuasive
of the "claimed" invention being a practical application. Appellants'
argument fails because it is not commensurate with the scope of the
claim. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("[A]ppellant's
arguments fail from the outset because ... they are not based on limitations
appearing in the claims."); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir.
1998) ("[The] proffered facts ... are not commensurate with the claim scope
and are therefore unpersuasive.").
Appellants further contend:
the claimed subject matter is in the field of electronic
calendars and improves the usefulness of the calendar to the user.
However, the claimed subject matter also provides an
improvement in the field of eCommerce, apart from calendaring.
With the claimed subject matter, the vendors described above
now have a new marketplace in which the opportunity exists to
provide customized offers to potential customers who have
already been identified as having a scheduled need for the offered
product or service.
(App. Br. 13.) Additionally, Appellants contend:
the claimed subject matter is "[e]ffecting a transformation
or reduction of a particular article to a different state or thing."
Specifically, the claimed subject matter is altering the electronic
calendar to create, as noted above, a new marketplace in which
to offer and purchase products and services. The database of the
electronic calendar is transformed to include and provide this
additional functionality.
(Id.) Finally, Appellants argue that under Enfzsh, LLC v. Microsoft Corp.
and DDR Holdings v. Hotels.com that Appellants' claimed subject matter
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should be patent eligible improvements in computer technology. 2 (App. Br.
14--15; Reply Br. 7-9.)
We disagree with Appellants and find that Appellants' claimed
invention does not improve the technology involved, but uses technology to
publish calendar information and communicate offers for future travel and
services. The claimed invention at most uses existing technology to assist
the prospective travelers to make more informed decisions. We find the
technology of the claimed invention would be no different than providing a
travel agent with information on upcoming travel plans and receiving offers
for services meeting the requirements. Here, it is the mere availability of
additional relevant information, the other entity's use of this information,
and the traveler's selective use of whatever information/offers are available.
Furthermore, we find the claimed limitations to be directed to use of
available information in the same manner as certain methods of organizing
human activity such as managing personal behavior in combination with a
commercial or legal interactions.
Revised Guidance Step 2B
Under the Revised Guidance, only if a claim ( 1) recites a judicial
exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, [and] conventional" in the field (see MPEP
§ 2106.05(d)); or
2 Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016); DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014).
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( 4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
Here, the Examiner maintains:
The additional elements or combination of elements in the
claims-(server, electronic calendar, computer readable medium,
computerized calendar service, processor and memory) other
than the abstract idea per se amounts to no more than the
recitation of generic computer structure that serves to perform
generic computer functions that are well-understood, routine,
and conventional activities previously known to the pertinent
industry.
(Final Act. 5.)
Appellants generally contend that under Step 2B of the Alice analysis:
Limitations that may be enough to qualify as "significantly
more" when recited in a claim with a judicial exception include:
Improvements to another technology or technical field
Improvements to the functioning of the computer itself
Applying the judicial exception with, or by use of, a particular
machine
Effecting a transformation or reduction of a particular article to a
different state or thing
Adding a specific limitation other than what is well-understood,
routine and conventional in the field, or adding unconventional
steps that confine the claim to a particular useful application
Other meaningful limitations beyond generally linking the use of
the judicial exception to a particular technological environment
(App. Br. 13.) Finally, Appellants contend that:
If a claim is novel and unobvious over the prior art, that claim
must include "a specific limitation other than what is well-
understood, routine and conventional in the field." (Interim
Guidance on Patent Subject Matter Eligibility, Fed. Reg. Vol.
79, No. 241, p. 74624) (emphasis added). Where this is the
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case, this is evidence that the claim recites significantly more
than a mere abstract idea under current USPTO Guidance.
(Id. at 15.)
We find that Appellants provide no specific argument with regard to
any "specific limitation" or "activity" beyond the judicial exception that is
not "well-understood, routine, and conventional" in the field. (See generally
App. Br. 15-16; Reply Br. 5.) Additionally, Appellants contend that
"Appellant[ s] ha[ ve] usefully transformed an electronic calendar application
into an eCommerce marketplace." (Reply Br. 10.)
We disagree with Appellants, as discussed above, and find
Appellants' argument is not commensurate in scope with the express
language of representative independent claim 1 and is unpersuasive. At
most, Appellants have posted information on travel plans and solicited offers
from third parties using a generic computer, based upon the language of
representative independent claim 1.
As shown above, the Specification provides a high-level description
of the functions being performed by no more than generic computer
hardware. (Final Act. 5---6.) As a result, Appellants have not provided
specific arguments for subject matter eligibility, and have not shown that the
Examiner erred in concluding a lack of subject matter eligibility.
As a result, we sustain the Examiner's conclusion of a lack of patent-
eligible subject matter of independent claims 1, and independent claims 12,
and 20 and their dependent claims not argued separately.
Preemption.
The Examiner maintains that Appellants' arguments are directed to a
preemption. (Final Act. 4.)
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Appellants contend the claims do not seek to preempt or monopolize a
fundamental economic practice "present application, Appellant[ s'] claims
clearly do not prevent anyone from using any abstract idea." (App. Br. 17;
Reply Br. 11.)
While preemption may denote patent ineligibility, its absence does not
demonstrate patent eligibility. See FairWarning IP, LLC v. Iatric Sys., Inc.,
839 F.3d 1089, 1098 (Fed. Cir. 2016). For claims reciting a patent-ineligible
concept, preemption concerns "are fully addressed and made moot" by an
analysis under the Mayo/Alice framework. Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). We conduct such an
analysis below. In response to Supreme Court and Federal Circuit opinions,
the USPTO has issued updated guidance. We review this appeal within the
framework of the Revised Guidance, which specifies and particularizes the
Mayo/Alice framework. Therefore, Appellants' argument is unpersuasive.
CONCLUSION
The Examiner did not err in rejecting claims 1-14 and 16-21 based on
a lack of patent eligible subject matter under 35 U.S.C. § 101.
DECISION
For the above reasons, we sustain the Examiner's patent eligibility
rejection of claims 1-14 and 16-21 under 35 U.S.C. § 101.
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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