Ex Parte Neuwirth

Patent Trials and Appeals Board

Apr 2, 2019

14012005 - (D) (P.T.A.B. Apr. 2, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/012,005 08/28/2013
122269 7590 04/04/2019
Brian Tucker
Kirton McConkie
36 South State Street, Suite 1900
Salt Lake City, UT 84111
FIRST NAMED INVENTOR
Volker Neuwirth
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.
24538.6 2756
EXAMINER
POE,KEVINT
ART UNIT PAPER NUMBER
3692
NOTIFICATION DATE DELIVERY MODE
04/04/2019 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):
btucker@kmclaw.com
ipdocket@kmclaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VOLKER NEUWIRTH,
Appeal2017-011678
Application 14/012,005 1
Technology Center 3600
Before MARC S. HOFF, JENNIFER S. BISK, and CARLL. SILVERMAN,
Administrative Patent Judges.
HOFF, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Non-Final Rejection
of claims 1-14 and 18-23. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants' invention is a system, method, and computer program
product for processing a request for user input to a client computing device
over a network. A first request for user input is received from a merchant
computing system, including contact information for a user. A second
request for user input is sent using the contact information, requesting
1 The real party in interest is Zukunftware, LLC.
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authenticating information to authenticate the user input. User interface
code is sent to the merchant computing system to enable the merchant
computing system to render the user interface code to display the user input
in conjunction with account information, such that user input can serve as
authorization from the user for a transaction. Spec. 3.
Claim 1 is reproduced below:
1. In a server computing system, a method for enabling a
merchant computing system to obtain user input from a user,
the method comprising:
providing, by the server computing system, an interface
to the merchant computing system, the interface configured to
receive communications from an application executing on the
merchant computing system, the server computing system
compnsmg memory that stores computer executable
instructions defining the interface and a processor that
executes the computer executable instructions to provide the
interface;
rece1vmg, via the interface, one or more first
communications sent over the internet by the application
executing on the merchant computing system, the one or more
first communications including:
(1) a request to obtain user input to serve as
authorization for the merchant computing system to perform a
transaction to an account of the user,
(2) contact information for the user, and
(3) information representing the transaction;
extracting the contact information and the information
representing the transaction from the one or more first
communications;
generating a webpage that includes an input area for
receiving the user input;
formatting the webpage to include the information
representing the transaction that was provided in the one or
more first communications;
transmitting a second communication over a network to a
client computing device
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associated with the user based on the contact information
that was provided in the one or more first communications, the
second communication including a link that the user can select
to cause the webpage to be displayed;
in response to the user selecting the link included in the
second communication, transmitting the webpage to the client
computing device such that the webpage is displayed to the
user to allow the user to provide the user input into the input
area;
in response to the user providing the user input, receiving
one or more third communications that include the user input;
in conjunction with receiving the one or more third
communications that include the user input, receiving authenticating
information from the client computing device; and
sending the user input to the merchant computing system to
enable the merchant computing system to associate the user input with
the account for the user on the merchant computing system such that
the user input can serve as authorization from the user to perform the
transaction to the account.
The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Davis et al. US 2007 /0266252 Al
Loomis et al. US 2008/0222049 Al
Lyon US 2012/0221470 Al
Henderson et al. US 2013/0132274 Al
Nov. 15, 2007
Sept. 11, 2008
Aug. 30, 2012
May 23, 2013
Claims 1-14 and 18-23 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter.
Claims 1-7, 11, 14, and 18-23 stand rejected under 35 U.S.C.
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§ 103(a) as being unpatentable over Henderson and Loomis. 2
Claims 8-10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Henderson, Loomis, and Lyon.
Claims 12 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Henderson, Loomis, and Davis. 3
Throughout this decision, we make reference to the Appeal Brief
("App. Br.," filed Nov 23, 2016), and the Examiner's Answer ("Ans.,"
mailed June 1, 2017) for their respective details.
ISSUES
1. Is the claimed invention directed to a judicial exception?
2. Is the judicial exception integrated into a practical application?
3. Does the combination of Henderson and Loomis disclose or fairly
suggest receiving one or more first communications, including contact
information for the user?
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. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 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).
2 The Non-Final Action inadvertently listed claims "1, 3-10, 21-25, 28, 30,
and 31" as being unpatentable over Henderson and Loomis. Non-Final Act.
9.
3 The Examiner has withdrawn the rejection under 35 U.S.C. § 112, 2nd
paragraph. Ans. 16.
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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, 192 (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))).
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 192 ("We view
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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
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("Revised Guidance"). 84 Fed. Reg.
50. Under that guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
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ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.0S(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 § 2106.0S(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 Revised Guidance.
ANALYSIS
SECTION 101 REJECTION
Appellants make a unitary argument directed to all pending claims
1-14 and 18-23. See App. Br. 10-23. Accordingly, we will select
independent claim 1 as representative of the rejected claims.
Claim 1 recites the following limitations:
(a) providing, by the server computing system, an interface to the
merchant computing system, the interface configured to receive
communications from an application executing on the merchant computing
system; (b) receiving, via the interface, one or more first communications
sent over the internet by the application executing on the merchant
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computing system; 4 ( c) extracting the contact information and the
information representing the transaction from the one or more first
communications; ( d) generating a webpage that includes an input area for
receiving the user input; ( e) formatting the webpage to include the
information representing the transaction; ( f) transmitting a second
communication over a network to a client computing device associated with
the user based on the contact information that was provided, the second
communication including a link that the user can select to cause the webpage
to be displayed; (g) transmitting the webpage to the client computing device
... to allow the user to review the document and provide user input; (h) in
response to the user providing the user input, receiving one or more third
communications that include the user input; (i) in conjunction with receiving
the one or more third communications that include the user input, receiving
authenticating information from the client computing device; and U) sending
the user input to the merchant computing system to enable the merchant
computing system to associate the user input with the account for the user on
the merchant computing system, such that the user input can serve as
authorization from the user to perform the transaction to the account.
These limitations, under their broadest reasonable interpretation,
recite presenting information to a user, and obtaining "user input" in
response to the presented information. Specifically, the claimed invention
4 The "one or more first communications" are to include three specific items:
( 1) a request to obtain user input to serve as authorization for the merchant
computing system to perform a transaction; (2) contact information for the
user; and (3) information representing the transaction.
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concerns obtaining authorization for a transaction to be entered into by a
user.
We regard the claimed concept of obtaining authorization for a
transaction to be a method of organizing human activity found by the courts
to constitute patent-ineligible subject matter. Parties have been entering into
contracts for the sale of goods or property, for the performance of services,
and for myriad other purposes for centuries if not millennia. We conclude
that the claimed obtention of authorization is analogous to commercial or
legal interactions, including agreements in the form of contracts, and
entering into legal obligations, that the courts have found to be patent-
ineligible. See, e.g., buySAFE, Inc. v. Google, Inc., 765 F.3d. 1350, 1355
(Fed. Cir. 2014) (holding that concept of "creating a contractual
relationship----a 'transaction performance guaranty'" is an abstract idea); In
re Comiskey, 554 F.3d 967, 981 (Fed. Cir. 2009) (claims directed to
"resolving a legal dispute between two parties by the decision of a human
arbitrator" are ineligible); Ultramercial, Inc. v. Hulu, LLC, 772 F .3d 709,
715 (Fed Cir. 2014) (holding that claim "describ[ing] only the abstract idea
of showing an advertisement before delivering free content" is patent
ineligible); In re Ferguson, 558 F.3d 1359, 1364 (Fed Cir. 2009)
(holding methods "directed to organizing business or legal relationships in
the structuring of a sales force ( or marketing company)" to be ineligible);
Credit Acceptance, 859 F.3d 1044 at 1054 ("The Board determined that the
claims are directed to the abstract idea of 'processing an application for
financing a purchase.' ... We agree.").
Accordingly, we conclude that the claims recite commercial or legal
interactions, which constitute one of certain methods of organizing human
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activity identified in the Revised Guidance. 84 Fed. Reg. at 52. We thus
conclude that the claims recite an abstract idea.
Appellants argue that the claims are not directed to an abstract idea,
but rather to one particular way, out of many different possible ways, in
which a server computing system enables a merchant to obtain authorization
input from a user. App. Br. 11. Appellants' argument is not persuasive.
The claimed invention concerns the adaptation of the abstract idea of
obtaining authorization for a transaction, e.g. manually, to the context of a
computer system. See Ans. 17-18. That the claims limit the claimed
invention to one particular mode of such adaptation does not change the
character of the invention.
In response to Appellants' argument (App. Br. 11) that the claims do
not pre-empt the abstract idea of obtaining authorization input from a user,
we note that lack of preemption will not demonstrate patent eligibility.
"Where a patent's claims are deemed only to disclose patent ineligible
subject matter under the Mayo framework, as they are in this case,
preemption concerns are fully addressed and made moot." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
INTEGRATED INTO A PRACTICAL APPLICATION
We next evaluate whether the claims integrate the identified abstract
idea of obtaining user authorization for a purchase or other legal agreement
into a practical application. See Revised Guidance, 84 Fed. Reg. at 51. We
consider whether there are any additional elements beyond the abstract ideas
that, individually or in combination, "integrate the [abstract ideas] into a
practical application, using one or more of the considerations laid out by the
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Supreme Court and the Federal Circuit." Revised Guidance, 84 Fed. Reg. at
54--55.
The claimed invention does not constitute an improvement to the
functioning of a computer; rather, it merely constitutes the adaptation of the
abstract idea of obtaining authorization input from a user, previously
performed mentally or manually, to execution as steps performed by a
computer. MPEP 2106.05(a). There is no disclosure to the effect that the
claimed invention is applied with, or by use of, a particular machine. MPEP
2106.05(b). Appellants' invention does not effect the transformation or
reduction of a particular article to a different state or thing. MPEP
2106.05(c).
Appellants argue that "the claims are not merely about automating the
process of obtaining user input. That process has been automated since at
least the advent of computers. Instead, the claims are directed to a very
specific way for obtaining authorization input that would be beneficial in
very specific circumstances." App. Br. 13. Appellants do not point to any
disclosure concerning the claimed specific process that would constitute an
improvement to the functioning of a computer. Appellants do not identify
application of the claimed invention with, or by use of, a particular machine.
Appellants disclose that the problem to be overcome with the present
invention is the "burdensome requirement" of printing, signing, and
returning a document. Spec. ,r 5. To that end, the invention "enables a
merchant to send a signature request ... to any device having a browser and
touch screen or other means for receiving user input. An input area is
displayed within the browser on the user's device. "When the user inputs a
signature, the signature can be routed over a network back to the merchant to
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provide authorization for a transaction." Spec. ,r 6. What the Specification
does not disclose, and what Appellants do not establish in argument, is any
manner in which the disclosed and claimed invention amounts to more than
the established, "manual" process of obtaining user authorization, adapted to
generic computer components.
Turning to further elements under the Revised Guidelines for
determining whether an abstract idea is integrated into a practical
application, as discussed supra we determine that Appellants' invention
constitutes mere instructions to implement an abstract idea on a computer.
MPEP 2106.05(±). We determine that the claim limitations directed to
( 1) generating and formatting a webpage that includes information
representing the transaction, and (2) transmitting a second communication to
a client computing device such that the webpage is caused to be displayed
upon the user's selection of a link, are claim limitations that constitute
insignificant extra-solution activity. See MPEP 2106.05(g).
Appellants argue that the series of steps that "defines a process by
which the server generates and links together two different types of network
communications ... so that the user will ultimately be able to provide user
input" defines "a unique way in which the server can facilitate the receipt of
the user input." App. Br. 15-16. Appellants' argument is not persuasive
because Appellants do not explain why this ordered combination of steps
"amounts to significantly more than the abstract idea of receiving user
input." App. Br. 16. Appellants do not establish how the recited steps
constitute more than insignificant extra-solution activity. Appellants do not
explain how the asserted linkage of network communications improves the
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functioning of a computer, for example, or how the claimed steps are more
than a generic arrangement of network components.
WELL-UNDERSTOOD, ROUTINE, CONVENTIONAL
Having determined that the claims recite a judicial exception, and do
not integrate that exception into a practical application, we consider whether
the claim adds a specific limitation beyond the judicial exception that is not
"well understood, routine, and conventional" in the field. Revised
Guidance, 84 Fed. Reg. at 56.
Appellants' claims recite such technical elements as a "server
computing system," "merchant computing system," and "client computing
device." Appellants disclose that "[ c ]lient computing device 103 represents
any device having a browser and a touch screen or other means for receiving
a user's signature." Spec. ,r 33. "Merchant computing system 102
represents one or more servers or other computing devices that a merchant
uses to send requests to server system 101 over network 104." Spec. ,r 34.
"Server system 101 represents one or more computing devices used to
receive requests from merchant computing system 102, and to send requests
for signatures to client computing device 103 and receive signatures back."
Spec. ,r 35. "Server system 101 can comprise one or more server computing
devices or a cloud of server computing systems." Id.
We determine that Appellants disclose and claim generic computer
components used conventionally. We are not persuaded that Appellants
provide a non-generic arrangement of known, conventional elements. Id.
Rather, we conclude that the disclosed and claimed invention uses generic
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computer components as a mere tool to implement the abstract idea of
obtaining authorization from a user.
As Appellants have not disclosed any features of the claimed
merchant system, server system, or client computing system that would be
considered as other than "well-understood, routine, and conventional," these
claim limitations fail to indicate the presence of an inventive concept. We
further find that Appellants' disclosure, discussed supra, is specified at a
high level of generality.
MISCELLANEOUS ARGUMENTS
Appellants argue that the claims under appeal should be found to be
patent-eligible because the claims were rewritten to conform substantially to
hypothetical claims based on the Board's holding in covered business
method proceeding CBM 2014-00170. App. Br. 16. This argument is not
persuasive for two reasons. First, patent applications are examined and
adjudicated on their own merits. The outcome in CBM2014-00170 is not
controlling authority with respect to this proceeding. Second, Appellants
admit that the claims of CBM2014-00170 were found to be patent eligible
for reasons having nothing to do with the subject matter of the claimed
invention: "primarily based on how the information is disseminated ... the
Board found it significant that the patent addressed a way to disseminate
information to a user's computing device when the device is not online."
App. Br. 18; see CBM2014-00170, Paper 13.
Appellants also contend that the practices of Art Unit 3692 violate due
process. App. Br. 19. Appellants' argument is not persuasive because it
lacks factual support. By Appellants' own admission, its argument that Art
Unit 3692 is predisposed not to pass applications to allowance is "based on
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speculation." App. Br. 21. That different art units have different allowance
rates for patent applications examined therein is not, by itself, probative of
any violation of constitutional due process, or even violation ofUSPTO
procedures. One practitioner's opinion concerning a "typical Alice
rejection," an opinion that does not even identify a particular examiner or art
unit, has no relevance whatever to establishing the practices of the art unit in
which this application was examined. App. Br. 22.
In response to Appellants' argument (App. Br. 11) that the claims do
not pre-empt the abstract idea of obtaining authorization input from a user,
we note that lack of preemption will not demonstrate patent eligibility.
"Where a patent's claims are deemed only to disclose patent ineligible
subject matter under the Mayo framework, as they are in this case,
preemption concerns are fully addressed and made moot." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
We conclude that none of the claim limitations, viewed "both
individually and as an ordered combination," amount to significantly more
than the judicial exception in order to sufficiently transform the nature of the
claims into patent-eligible subject matter. See Alice, 134 S. Ct. at 2355
(internal quotations omitted) (quoting Mayo, 132 S. Ct. at 1297).
Accordingly, we sustain the Examiner's 35 U.S.C. § 101 rejection of claims
1-14 and 18-23.
SECTION 103 REJECTIONS
Independent claim 1 recites, inter alia, receiving one or more first
communications sent over the internet by the application executing on the
merchant computing system, including contact information for the user.
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Appellants argue that Loomis fails to disclose or suggest obtaining
contact information for the user, because the user initiates the process of
Loomis by visiting the merchant's website. App. Br. 28. We are not
persuaded that in Loomis, there would never be a need for the merchant to
request that a server obtain contact information for the user. Id. Loomis is
concerned with the conduct of electronic commerce and with the obtention
of digital signature authentication from the consumer. See Loomis ,r 38. It
is at least inherent in Loomis that contact information for the user would be
obtained, for two reasons. First, the merchant receives payment information
and shipping information from the user for many commercial transactions.
User contact information would form a subset of the information a user
would provide in the course of conducting a commercial transaction.
Second, Loomis discloses the performance of consumer authentication via
digital signature as part of its transaction process. Loomis ,r,r 3 7-40. The
consumer in Loomis provides contact information either in advance or
contemporaneous with the steps of providing digital signature authentication
parameters. Loomis explicitly discloses that transaction information
including the transaction amount, transaction time, transaction shipping data,
account number, and consumer name are among the items of information
that must be digitally signed. Loomis ,r 37.
Appellants argue that the Examiner has not considered the additional
limitations that appear in claim 18. App. Br. 23. Appellants do not
enumerate what limitations are alleged to be overlooked. As may best be
determined, Appellants are referring to item (8) of the "one or more first
communications," "an identification of one or more types of authenticating
information that the user is to provide to authenticate the user's identity."
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Even assuming that Appellants are correct that the Examiner did not
specifically discuss this limitation of claim 18, we observe that claim 19
further limits the "one or more types of authenticating information." The
Examiner specifically addressed the more detailed limitation of claim 19.
Non-Final Act. 13-14. Appellants presented no specific argument
traversing the Examiner's rejection of claim 19 over Henderson and Loomis.
In the absence of specific argument concerning a particular limitation of
claim 18, then, we are not persuaded that the Examiner erred.
As we are not persuaded that the Examiner erred, we sustain the
Examiner's§ 103(a)rejectionofclaims 1-7, 11, 14, and 18-23 over
Henderson and Loomis. We further sustain the Examiner's§ 103(a)
rejection of claims 8-10 over Henderson, Loomis, and Lyon, and we sustain
the Examiner's§ 103(a) rejection of claims 12 and 13 over Henderson,
Loomis, and Davis.
CONCLUSIONS
1. The claimed invention is directed to a judicial exception.
2. The judicial exception is not integrated into a practical application.
3. The combination of Henderson and Loomis fairly suggests
receiving one or more first communications, including contact information
for the user.
ORDER
The Examiner's decision to reject claims 1-14 and 18-23 under 35
U.S.C. § 101 is affirmed. The Examiner's decision to reject claims 1-14
and 18-23 under 35 U.S.C. § 103(a) is affirmed.
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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). See 37
C.F.R. § 41.50(±).
AFFIRMED
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