Ex Parte Musgrove et al

Patent Trial and Appeal BoardJan 31, 2019

14954500 (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/954,500 11/30/2015 128144 RimonPC 7590 One Embarcadero Center Suite 400 San Francisco, CA 94111 02/04/2019 FIRST NAMED INVENTOR Timothy Allen Musgrove 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. 10-350-US-CS 2012 EXAMINER SYED,FARHANM ART UNIT PAPER NUMBER 2165 NOTIFICATION DATE DELIVERY MODE 02/04/2019 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): eofficeaction@appcoll.com docketing.rimonlaw@clarivate.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TIMOTHY ALLEN MUSGROVE and ROBIN HIROKO WALSH Appeal2018-006253 Application 14/954,500 1 Technology Center 2100 Before MARC S. HOFF, JOHN D. HAMANN, and SCOTT E. BAIN, Administrative Patent Judges. HOFF, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134(a) from a Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. Appellants' invention is a computer-implemented method, system, or computer-readable medium storing instructions that when executed, cause one or more computing devices to perform the steps of receiving a plurality of records that include product information; group one or more records into a cluster that corresponds to a product, the grouping based on a probability 1 The real party in interest is CBS Interactive Inc. App. Br. 2. Appeal 2018-006253 Application 14/954,500 determination that the one or more records correspond to the product; receive one or more attribute values representing characteristics of the products; merge the attribute values in the cluster to determine one or more product attribute values for the product based at least in part on a confidence rating associated with the attribute values; and categorize the product in a taxonomy according to the product attribute values. App. Br. 2--4. Claim 1 is reproduced below: 1. A computer-implemented method, performed by one or more computing devices, for aggregating product information for use in a product database including various products arranged in categories within a taxonomy, the method comprising the steps of: receiving, by at least one of the one or more computing devices, a plurality of records, the records including product information; grouping, by at least one of the one or more computing devices, one or more records of the plurality of records into a cluster, wherein the cluster corresponds to a product and the one or more records are grouped into the cluster based on a probability determination that the one or more records correspond to the product; receiving, by at least one of the one or more computing devices, one or more attribute values to be retrieved from each of the records in the cluster, the attribute values representing characteristics of the products; merging, by at least one of the one or more computing devices, the one or more received attribute values from each of the records in the cluster to determine one or more product attribute values for the product based at least in part on a confidence rating associated with at least one of the one or more received attribute values; and categorizing, by at least one of the one or more computing devices, the product in the taxonomy according to the one or more product attribute values. 2 Appeal 2018-006253 Application 14/954,500 App. Br. 21 (Claim Appendix). Claims 1-20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Blutinger et al. (US 5,231,566, issued July 27, 1993 and Jacobs (US 5,550,746, issued Aug. 27, 1996). Claims 1-20 stand rejected under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. Claims 1-20 stand rejected on the grounds of nonstatutory double patenting as being unpatentable over claims 32-51 of Musgrove et al. (US 7,082,426 B2, issued July 25, 2006). Throughout this decision, we make reference to the Appeal Brief ("App. Br.," filed August 2, 2017), the Reply Brief ("Reply Br.," filed May 28, 2018), and the Examiner's Answer ("Ans.," mailed May 11, 2018) for their respective details. ISSUES 1. Is the claimed invention directed to a judicial exception? If so, is the judicial exception integrated into a practical application? 2. Does the combination of Blutinger and Jacobs disclose or fairly suggest receiving one or more attribute values, said attribute values representing characteristics of the products? 3. Does the combination of Blutinger and Jacobs disclose or fairly suggest merging one or more received attribute values, based at least in part on a confidence rating associated with at least one of the one or more received attribute values? PRINCIPLES OF LAW 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. 3 Appeal 2018-006253 Application 14/954,500 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. See, e.g., Alice Corp. v. CLS Bank Int '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); 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" (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); "tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores" (id. at 184 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))). 4 Appeal 2018-006253 Application 14/954,500 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 at 176; 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 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 ( 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 Â§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent 5 Appeal 2018-006253 Application 14/954,500 Subject Matter Eligibility Guidance ("Memorandum"). 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 interactions such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP Â§ 2106.05(a}-(c), (e}-(h)). 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 are not "well-understood, routine, conventional" in the field (seeMPEP Â§ 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See Memorandum. ANALYSIS DOUBLE PATENTING REJECTION Appellants' only argument in the Appeal Brief concerning the obviousness-type double patenting rejection is that the Examiner "provides no analysis" and thus does not satisfy the burden of establishing a prima 6 Appeal 2018-006253 Application 14/954,500 facie rejection. App. Br. 5. Appellants do not substantively discuss this rejection in the Reply Brief. In the absence of specific arguments by Appellants setting forth supposed error by the Examiner in making the rejection, we sustain the Examiner's rejection of claims 1-20 on the ground of nonstatutory double patenting as being unpatentable over claims 32-51 of U.S. Patent No. 7,082,426. SECTION 101 REJECTION The Examiner concludes that the claims are directed to the abstract idea of a method for aggregating product information in a product database that includes various products arranged in categories within a taxonomy. Ans. 2. The Examiner describes the claimed "grouping" step as 'just organizing the information through mathematical correlation," and describes the "merging" and "categorizing" limitations as "merely manipulating information through the mathematical correlation." Under the USPTO Subject Matter Eligibility Memorandum, discussed supra, we are to first determine whether the claimed invention is directed to a judicial exception (e.g., an abstract idea), and to identify the particular abstract idea to which the claims are directed. Appellants' invention, directed to a computer-implemented method for aggregating product information, including inter alia grouping records into a cluster based on a probability determination that one or more records correspond to a product; receiving attribute values representing characteristics of the products; merging attribute values based at least in part on a confidence rating associated with the attribute values; and categorizing the product in the taxonomy according to the attribute values, is not directed 7 Appeal 2018-006253 Application 14/954,500 to a mathematical concept. The invention is also not directed to certain methods of organizing human activity that are recognized in the case law as being abstract ideas ( e.g., fundamental economic principles or practices; commercial or legal interactions; or managing personal behavior or relationships or interactions between people). The remaining category of abstract ideas to be considered is mental processes: concepts performed in the human mind. If a claim, under its broadest reasonable interpretation, covers performance in the mind but for the recitation of generic computer components, then it is still in the mental processes category unless the claim cannot practically be performed in the mind. See Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) ("[W]ith the exception of generic computer implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper."); Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d. 1314, 1324 (Fed. Cir. 2016) (holding that computer-implemented method for "anonymous loan shopping" was an abstract idea because it could be "performed by humans without a computer"); Versata Dev. Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) ("Courts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person's mind."); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 1372-73 (Fed. Cir. 2011) (holding that the incidental use of "computer" or "computer readable medium" does not make a claim otherwise directed to process that "can be performed in the human mind, or by a human using a pen and paper" patent eligible.). 8 Appeal 2018-006253 Application 14/954,500 Independent claim 1 recites (a) grouping one or more records into a cluster, where the cluster corresponds to a product, based on a probability determination that the one or more records correspond to a product; and (b) merging by at least one of the one or more computing devices, the one or more received attribute values to determine one or more product attribute values for the product based at least in part on a confidence rating associated with at least one of the one or more received attribute values. Independent claims 6 and 11 recite analogous limitations. Appellants disclose that clusterer module attempts to determine what product records actually correspond to the same product by various methods, including detecting when merchants have modified the universal product code (UPC). A hidden Markov model (HMM) may produce a probability B that a given record corresponds to the same product. Spec. ,r 77. Appellants' Specification defines "confidence score" as "a metric of the confidence that data is correct or reliable, e.g., that a product name or reference has been parsed and identified correctly being put forth by a data source as an allied product of another product." Spec. ,r 162. The Specification discusses the process of merging ("clustering") based on confidence rating primarily at paragraphs 92-98. Iterative processing continues until clusterer module 802 and categorizer module have "stabilized" and "have surpassed their required confidence thresholds." Spec. ,r 97. While these methods include a certain overlap, we find that, taken together, the processing limitations in the claimed invention are sufficiently computing-intensive that the claimed invention cannot practically be performed in the mind. 9 Appeal 2018-006253 Application 14/954,500 Because we find that the claimed invention does not correspond to a mental process or any other category of abstract idea, we conclude that the claims are directed to patent-eligible subject matter. We do not sustain the Examiner'sÂ§ 101 rejection of claims 1-20. SECTION 103 REJECTION CLAIMS 1, 6, 11, 17, AND 19 ATTRIBUTE VALUES Appellants argue that Blutinger does not disclose "attribute values" as recited in the independent claims. App. Br. 13. Appellants assert that attribute variables must be numerical, citing paragraphs 41 and 52 2 of the published application. App. Br. 14. We are not persuaded by Appellants that attribute values may only be numerical. Appellants' disclosure that "[p ]roduct spec 718 and 722 inherit the attributes of the parent category and can include values for the attributes and applicable units of measure" only expresses permission that attributes can include numbers. Spec. ,r 39. Appellants' further disclosure that higher values of the quantity of RAM in a computer ( one possible attribute) again does not mandate that attribute values must be numerical. Spec. ,r 50. Appellants' further reliance on Wikipedia's definition of "value" in mathematics is also unavailing. Even assuming arguendo that Wikipedia is a reliable source of information, the proper context for definition of value for the subject matter of this application is computer science, rather than mathematics. In computer science, it is well known that variables can be of 2 Spec. ,r,r 39, 50. 10 Appeal 2018-006253 Application 14/954,500 various types, and be assigned values according to the variable type. For example, text string variables can take on textual values. Appellants' Specification also offers support for the idea that values need not always be numeric. "[P]roduct property database will have a record of product properties such as MHz, Mb RAM, Gb, CD-ROM, CD-R, CD-RW, etc." Spec. ,r 53. For "product properties" such as CD-ROM or CD-R, the "value" will necessarily be Boolean (i.e., non-numeric); either the particular computer will have such a CD drive included, or it will not. Because we find that attribute values need not be numerical, we agree with the Examiner's finding that Blutinger's teaching of such attributes as "12 oz, Smuckers, and grape jelly" constitute product attribute values corresponding to the claim limitation. CONFIDENCE RATING Appellants argue that Jacobs does not teach a confidence rating as claimed. Appellants contend that "Jacobs merely teaches correlating design aspects to user requirements and does not use any type of confidence rating for content aggregation." App. Br. 16. Appellants assert that the Examiner erred in stating that no other information was provided in the Applicant's disclosure concerning the meaning of the term." App. Br. 16-17. Appellants do define "confidence score" in the Specification as "a metric of the confidence that data is correct or reliable, e.g., that a product name or reference has been parsed and identified correctly being put forth by a data source as an allied product of another product." Spec. ,r 162. Jacobs, cited by the Examiner as teaching this limitation, discloses an algorithm that "determines the suitability of product designs for a particular customer by quantitatively correlating each of the descriptive marker values 11 Appeal 2018-006253 Application 14/954,500 (DMV s) with corresponding expert-predetermined optimum applicability values (OA Vs) to calculate an average suitability rating .... Based on the correlation, a subset of product designs are identified wherein the correlation measure is strong." Jacobs col. 13:40-47. The Examiner finds, and we agree, that Jacobs's suitability rating "is derived from the product as similarly performed in the Appellant's disclosure." Ans. 12. We agree with the Examiner that Jacobs's suitability rating, through mathematical correlation, performs the same function of expressing confidence that data is correct or reliable as Appellants' disclosed and claimed confidence rating. Because we find that the Examiner did not err in finding that Blutinger discloses the claimed "attribute value" and that Jacobs discloses the claimed "confidence rating," we sustain the Examiner'sÂ§ 103(a) rejection of independent claims 1, 6, and 11, and claims 17 and 19 dependent therefrom. CLAIMS 2, 7, AND 12 Appellants' argument with respect to these claims repeats the claim limitations and asserts generally that the combination of references fails to teach or suggest the claim features. Appellants further contend that the Examiner's mapping of teachings in Blutinger to the claimed attributes "ignores the express claim limitations." App. Br. 17-18. At no point, however, do Appellants specifically point out why any particular limitation in the claims is not disclosed or suggested by Blutinger and Jacobs. Therefore, we do not consider claims 2, 7, and 12 to be separately argued, 12 Appeal 2018-006253 Application 14/954,500 and we sustain the Â§ 103(a) rejection of claims 2, 7, and 12 for the reasons given supra for independent claims 1, 6, and 11. CLAIMS 3, 8, AND 13 Appellants recite the limitations of these claims and assert generally that "the prior art fails to teach generating a new category." App. Br. 18. In the absence of specific argument by Appellants pointing out where the Examiner erred, we sustain the Examiner'sÂ§ 103(a) rejection of claims 3, 8, and 13, for the reasons given supra for independent claims 1, 6, and 11. CLAIMS 4, 9, AND 14 Appellants argue, and we agree, that Blutinger fails to teach "generating a new super-category in the taxonomy corresponding to the common product attribute values." App. Br. 18-19; see Final Act. 32-33. Therefore, we do not sustain the Examiner's Â§ 103(a) rejection of claims 4, 9, and 14 over Blutinger and Jacobs. CLAIMS 5, 10, AND 15 Appellants argue, and we agree, that Blutinger fails to teach "generating one or more sub-categories below the product in the taxonomy, and wherein the one or more sub-categories correspond to the configurations for the product." App. Br. 19; see Final Act. 33-34. Therefore, we do not sustain the Examiner'sÂ§ 103(a) rejection of claims 5, 10, and 15 over Blutinger and Jacobs. CLAIMS 16, 18, AND 20 Appellants argue, and we agree, that Blutinger fails to teach assigning a product identifier to the cluster. App. Br. 19. The Examiner's rejection of these claims refers the reader to the same sections of Blutinger initially cited to teach merging received attribute values. The Examiner does not explain 13 Appeal 2018-006253 Application 14/954,500 how these sections specifically teach assigning a product identifier to a cluster, as is claimed. See Final Act. 35. Therefore, we do not sustain the Examiner'sÂ§ 103(a) rejection of claims 16, 18, and 20 over Blutinger and Jacobs. CONCLUSIONS 1. The claimed invention is not directed to a judicial exception. 2. The combination of Blutinger and Jacobs discloses receiving one or more attribute values, said attribute values representing characteristics of the products. 3. The combination of Blutinger and Jacobs fairly suggests merging one or more received attribute values, based at least in part on a confidence rating associated with at least one of the one or more received attribute values. ORDER The Examiner's decision to reject claims 1-20 on nonstatutory double patenting grounds is affirmed. The Examiner's decision to reject claims 1- 20 underÂ§ 101 is reversed. The Examiner's decision to reject claims 1-3, 6-8, 11-13, 17, and 19 underÂ§ 103(a) is affirmed. The Examiner's decision to reject claims 4, 5, 9, 10, 14--16, 18, and 20 is reversed. 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). AFFIRMED 14