Ex Parte Puttaswamy

Patent Trial and Appeal Board

Nov 20, 2018

12272669 (P.T.A.B. Nov. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/272,669
138363 7590
IBM CORP. (WSM)
c/o WINSTEAD P.C.
P.O. BOX 131851
DALLAS, TX 75313
11/17/2008
11/23/2018
FIRST NAMED INVENTOR
Hemanth Puttaswamy
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.
RSW920105107US1 6737
EXAMINER
KIM, PATRICK
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
11/23/2018 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):
patdocket@winstead.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HEMANTH PUTTASW AMY
Appeal2017---004018
Application 12/272,669
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. PETTING, and
BRUCE T. WIEDER, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Hemanth Puttaswamy (Appellant2) seeks review under 35 U.S.C. § 134
of a non-final rejection of claims 1-20, the only claims pending in the
application on appeal. This is the second time this Application has come up
1 Our decision will make reference to the Appellant's Appeal Brief ("App.
Br.," filed June 3, 2016) and Reply Brief ("Reply Br.," filed October 26,
2016), and the Examiner's Answer ("Ans.," mailed September 8, 2016), and
Non-Final Action ("Non-Final Act.," mailed May 5, 2016).
2 The real party in interest of the present application is International
Machines Corporation App. Br 1.
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for appeal. 3 We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b ).
The Appellant invented a way of providing a targeted advertisement to
an internet user, and in particular of notifying an advertising content network
about an internet user's online behavior in order for the advertising content
network to provide the most suitable advertisement. Specification para. 2.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method of notifying an advertising content network of an
internet user that has satisfied a behavioral targeting rule
compnsmg:
[1] receiving at least one behavioral targeting rule from an
advertising content network;
[2] embedding computer code on at least one web page of a
client web site to direct an end user's internet access device that
is loading the at least one web page to send a query;
[3] receiving the query;
[ 4] storing a session cookie;
[5] embedding computer code on the at least one web page of
the client web site to direct the end user's internet access device
to request an advertising content network identifier from the
advertising content network;
[ 6] comparing the query to the at least one behavioral targeting
rule·
'
and
[7] sending a notification to the advertising content network.
3 Prior Decision mailed December 22, 2015.
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The Examiner relies upon the following prior art:
Lu US 2004/0015580 Al
Roslov US 2006/0212353 Al
Wilson US 2008/0228791 Al
Jan.22,2004
Sept. 21, 2006
Sept. 18, 2008
Claims 1-20 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 1-20 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Roslov, Wilson, and Lu. 4
ISSUES
The issues of eligible subject matter tum primarily on whether the claims
recite more than abstract conceptual advice of what a computer is to provide
without implementation details.
The issues of obviousness tum primarily on whether the references
describe the claim limitations.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. Behavioral targeting rules describe the conditions for which the
advertisement content network server desires to be notified. Spec.
para. 35.
4 A rejection under 35 U.S.C. § 112, second paragraph (Non-Final Act. 3--4)
was withdrawn. Ans. 2.
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02. The disclosure contains no lexicographic definition of
"advertising content network."
Facts Related to the Prior Art
Roslov
03. Roslov is directed to allowing users to interact with each other
in ways not available to older media and new methods of
marketing and advertising are evolving to exploit this potential.
Roslov para. 2.
04. A computing device includes a browser to retrieve and display
various types of content found on the Internet, such as web pages.
Requested web pages may be constructed from text, images and/or
other data residing on the Internet, such as data provided by one or
more content providers. Over time during a particular session,
various web pages may be presented to the user. For example,
HTTP requests issued, with corresponding HTTP response data
being returned to a browser. The response data is then used to
construct and display web pages successively to the user. For
example, a web page might be called up in response to the user
typing a Uniform Resource Locator (URL) into browser. Another
web page might then be displayed in response to the user clicking
a link displayed on the first web page. Yet more web pages would
then be presented in response to subsequent HTTP requests.
Roslov para. 12.
05. Roslov describes issuing a page request that has resulted from
a URL being typed in, or through hypertext linking or other
methods. Upon receiving response data corresponding to the
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outgoing request, the response data is used by the browser to
display a web page. Roslov para. 34.
06. Roslov describes ISP-initiation of context reading of the
response data received in response to web page requests. The
ISP-initiation of the context reading function may be performed
by causing the context reader to be applied from the ISP to the
requested web page data. In the present example, the context
reader is a javascript that is embedded or injected by the ISP into
response data, for example by the proxy server. As a result, the
javascript is embedded into the web page. The script is embedded
into each of a plurality of pages that are requested by the client
device. Roslov para. 35.
07. Alternatively, the context reader may be included in
advertising content that is sent to the browser. For example, an ad
server or ad network may embed context-reading javascripts into
ads that are sent to a browser or included in or on web pages
requested by browsers. Then, at the browser, the context reader
would obtain browsing information from the client ( e.g., from a
requested web page), and the browsing information would then be
used to select advertising content. In this case, the initial
advertisement would serve as the mechanism by which the context
reader is delivered to the browser in order to obtain the browsing
information. Roslov para. 36.
08. Roslov describes obtaining browsing information. The
javascript executes within memory to obtain browsing information
associated with a web page. As shown, the script may read and
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locate keywords on the displayed page, and/or perform other
context-reading operations. Roslov para. 37.
Wilson
09. Wilson is directed to collecting information about the behavior
of the audience members of a content delivery system in order to
serve targeted advertising, and more particularly, to a universal
data agent in the content delivery system that determines client
metadata using a dynamic rules engine. Wilson para. 2.
10. Wilson describes determining content categories using a
system for determining content categories, comprising a site
management tool and a targeting engine. The site management
tool transmits a data agent to a client device in a content delivery
system in response to a request for content and transmits rules for
use by a rules engine in the data agent. The targeting engine
receives an indication of a content category and determines a
segment of client devices based at least in part on the content
category, which was determined by the data agent evaluating
collected data with the rules and the rules engine. Wilson para. 5.
11. Wilson describes determining content categories. Rules are
transmitted to the client device for use by the rules engine in the
data agent. An indication of a content category for content
transmitted to the client device is received. The content category
is determined by evaluating the collected data with the rules and
the rules engine. Wilson para. 6.
12. Wilson describes a data agent including a rules engine received
on a client device in response to a request for content. The rules
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engine is adapted to categorize content transmitted to the client
device. Rules are received on the client device for use by the rules
engine in the data agent. Data is collected with the data agent and
an indication of a content category for content transmitted to the
client device is determined. The content category is determined
by evaluating the collected data with the rules and the rules
engine. Wilson para. 7.
13. In this example, a content category (i.e., cc=APP) variable may
be hard-coded and may be a default value that may be changed
later, however, universal data tags may leave the content category
undefined. The content category may classify the content on the
site to be used by the targeted advertising system. When the
content category is undefined, the universal data agent may
dynamically determine the content category. For example, the
URL of the site may be evaluated against a set of rules provided
for use by a rules engine in the universal data agent to produce a
result, e.g., a content category. In this example, a portion of the
URL, "nhl", may match a rule that sets content category to
hockey, (i.e., cc=HCK). Wilson para. 27.
14. The universal data agent receives site-specific parameters, such
as content category, data provider, not a data provider, inventory
provider, ad size, site area, or request page for iframes. The site-
specific parameters are used by an ad server to serve ads in
association with or on the site. Site-specific parameters may also
be defined in a universal data tag associated with or on the site.
Wilson para. 28
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15. The universal data agent calls the ad server and passes
information, such as, for example, the audience segment that the
visitor belongs to and the site area where the inventory provider
site desires an ad to be placed. The ad server delivers an ad
targeted at the segment or provides other relevant content. For
example, if the visitor is visiting a news site, the site area may be
the classifieds section, and the visitor may be interested in sports
based on previous data collected, the ad server may deliver a
sports ad as the targeted content for the classified section on the
site or, if all of the sports ads have been used, may deliver a public
service announcement to be provided in association with the site.
Wilson para. 29.
16. The key words from the search may be evaluated by the
dynamic rules engine in the universal data agent to determine a
content category for the site after visiting a search engine. Wilson
para. 38.
17. The universal data agent may dynamically discover a content
category based on the structure of the publisher's site. Wilson
para. 40.
18. After delivering JavaScript to the client-side, the visitor's
client device may run in the publisher's domain and retrieve and
execute universal data agent code inside the publisher's domain.
The universal data agent code may have access to everything
inside the publisher's domain. After rules run, the universal data
agent may call the ad server to deliver a content category. Wilson
para. 41.
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Lu
19. Content categories may be delivered from the universal data
agent to the targeting engine, which combines the content
category with other information to determine a segment. A
segment may comprise a group of visitors that have the same or
similar attributes, e.g., content category, age, income, etc. The
segment identifiers may be used to target ads to the visitors in the
segment. Wilson para. 45.
20. Lu is directed to compiling and reporting data associated with
activity on a network server and more particularly to generating
and processing cookies directly on a client node to report web
traffic data from the client node to a server responsible for
compiling such data. Lu para. 3.
21. Cookie values such as the unique U serID values assigned to
name-value pairs have traditionally been generated according to
an algorithm stored at a cookie server and then transmitted to the
client node for storage on the visitor's computer hard drive. The
new IE 5.5 feature would block this process. The present
invention instead embeds all cookie generating and processing
algorithms within the JavaScript of the web pages sent to the
client node. Lu para. 1 7.
22. Web sites use cookies in many different ways. For instance,
sites can accurately determine how many readers actually visit the
site, which are new as opposed to repeat visitors, and how often
each visitor has visited the site. It turns out that because of proxy
servers, caching, concentrators and so on, the only way for a site
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to accurately count visitors is to set a cookie with a unique ID for
each visitor. The way the site does this is by using a database.
The first time a visitor arrives, the site creates a new ID in the
database and sends the ID as a cookie. The next time the user
comes back, the site can increment a counter associated with that
ID in the database and know how many times that visitor returns.
Lu para. 47.
23. Cookie values such as the unique UserID values assigned to
name-value pairs have traditionally been generated according to
an algorithm stored at a cookie server and then transmitted to the
client node for storage on the visitor's computer hard drive. The
new IE 5.5 feature would block this process. The present
invention instead embeds all cookie generating and processing
algorithms within the JavaScript of the web pages sent to the
client node. Such code adds about ten kilobytes of data to the web
page file size. Lu para. 63.
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ANALYSIS
Claims 1-20 rejected under 35 U.S.C. § 1 OJ as directed to a judicial
exception without significantly more
The Examiner determines that the claims are
directed to receiving a rule; sending and receiving a query;
storing data; requesting an identifier; comparing the query and
rule; and sending a notification. In other words, the claims are
directed to the manipulation of data to determine if a rule has
been satisfied. The courts have noted that "comparing new and
stored information and using rules to identify options"
(SmartGene) and "using categories to organize, store and
transmit information" ( Cyberfone) are examples of judicial
exceptions or abstract ideas. The claims disclose comparable
judicial exceptions - that is receiving a rule; sending and
receiving a query; storing data; requesting an identifier;
comparing the query and rule; and sending a notification - to
the judicial exceptions observed by the courts. Because
Applicant's claims are directed to similar steps of retrieving and
manipulating data, the claims are likewise directed to abstract
ideas.
Non Final Act. 5.
The Examiner goes on to determine that the claims do not include
additional elements that are sufficient to amount to significantly more than
the judicial exception. The functions performed by the device or system in
claims 1, 10, 11, and 20, i.e., receiving, embedding and sending, receiving,
storing, embedding and requesting, comparing, and sending, are routine,
conventional, and well-known functions, and require nothing more than a
generic computer performing generic computer functions. The claims
disclose generic structures such as an internet access device connected to a
network and a system comprising a database, a data aggregation server, and
a decision server. However, these generic device elements do not add a
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meaningful limitation to the abstract idea because they would be routine in
any computer implementation. Further, the generic devices disclosed merely
implement or apply the abstract ideas noted above, and therefore cannot be
considered significantly more than the abstract ideas (Current Specification,
Para. 67). None of the dependent claims introduce claim elements that are
significantly more than the identified abstract ideas. Non-Final Act. 5---6.
We adopt the Examiner's determinations and analysis from Non-Final
Action 5-6 and Answer 3-9 and reach similar legal conclusions. We now
tum to the Reply Brief.
We are not persuaded by Appellant's argument that "the Examiner has
not provided any legal analysis as to why one should conclude that claims 1-
20 are directed to a fundamental economic practice." Reply Br. 2. The
Examiner provides sufficient analysis to determine the claims are directed to
the manipulation of data to determine if a rule has been satisfied. See supra.
Claims involving data collection, analysis, and display are directed to an
abstract idea. 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"); see also In re TL! Commc 'ns LLC
Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016).
We are not persuaded by Appellant's argument that "the limitations of
independent claims 1, 10, 11 and 20 are not directed to collecting data,
recognizing certain data within the collected data set and storing that
recognized data in a memory." Reply Br. 4. Appellant then goes on to
recite the limitations in claim 1. Id. Receiving a rule and a query is data
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reception. Embedding code and storing a cookie are data storage.
Comparing the query to a rule is data analysis. Sending a notification is data
transmission. All of these computer functions are well-understood, routine,
conventional activities previously known to the industry. See Elec. Power
Grp. v. Alstom S.A., supra. Also see In re Katz Interactive Call Processing
Patent Litigation, 639 F.3d 1303, 1316 (Fed. Cir. 2011) ("Absent a possible
narrower construction of the terms "processing," "receiving," and "storing,"
. . . those functions can be achieved by any general purpose computer
without special programming"). In short, each step does no more than
require a generic computer to perform generic computer functions. As to the
data operated upon, "even if a process of collecting and analyzing
information is 'limited to particular content' or a particular 'source,' that
limitation does not make the collection and analysis other than abstract."
SAP America Inc. v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018).
Appellant repeats this argument for claims 10, 11, and 20 (Reply Br. 4--
6), and it is unpersuasive for similar reasons.
We are not persuaded by Appellant's argument that the art rejections
evidence the novelty of the claim steps. Reply Br. 6-7. "A claim for a new
abstract idea is still an abstract idea. The search for a § 101 inventive
concept is thus distinct from demonstrating§ 102 novelty." Synopsys, Inc.
v. Mentor Graphics Corporation, 839 F.3d 1138, 1151 (Fed. Cir. 2016).
We are not persuaded by Appellant's argument that "claims 1-20 are
directed to improvements to another technology or technical field. In the
instant application, the inventors have improved upon providing
advertisements to end users that are tailored to the interests or needs of each
specific end user." Reply Br. 7. Providing advertisements is a marketing
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rather than technical field. Tailoring ads to viewer interests is as notorious
as targeted mailings and targeting ads in niche periodicals. These are
directed to the marketing arts rather than the useful (technological) arts. The
claims recite no technological implementation mechanisms that would
extend the claims into the technological arts.
We are not persuaded by Appellant's argument that "the Examiner
asserts that the limitations of independent claims 1, 10, 11 and 20 are
limitations directed to what humans do routinely. Examiner's Answer, pages
7-8. The Examiner has not provided any evidence to support such a
contention." Reply Br. 11. Appellant then recites portions of the
Specification and query whether this is something humans do. Reply Br.
11-16. The Examiner's analogizing the claim steps to human activity
parallels the determination supra that the steps are routine data reception,
storage, analysis, and transmission operations. Humans performed such data
operations way before computers. Claim 1, unlike the claims found non-
abstract in prior cases, uses generic computer technology to perform data
collection, analysis, and transmission and does not recite an improvement to
a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims
not abstract because they "focused on a specific asserted improvement in
computer animation"). As such, claim 1 is directed to the abstract idea of
receiving, storing, analyzing, and transmitting data.
To the extent Appellant relies on the nature of the data being session
cookies, queries, and computer code embedded in web pages, all of these are
so notoriously old as to be parts of generic computer processes, and calling
for their use is no more than abstract conceptual advice absent technological
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implementation details. "When claims like the Asserted Claims are directed
to an abstract idea and merely require generic computer implementation,
they do not move into section 101 eligibility territory." Smart Systems
Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364 (2017).
( citations and internal quotations omitted). The claims do not recite how the
cookies and queries alter processing, or execution of the computer code and
how such execution is implemented. Appellant does not allege they
invented cookies, queries, and embedded computer code.
As to the Specification recitations, these are not in the claims.
V ersata argued that its claims recite
"a specific approach to determining the price of a product on a
computer, using hierarchies so as to enable the desired benefit
for the computing environment: fewer software tables and
searches, leading to improvements in computer performance
and ease of maintenance." . . . However, all of the parties-
including Versata-recognize that these supposed benefits are
not recited in the claims at issue.
Versata Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306,
1335 (2015).
Appellant repeats the above arguments with respect to claims 10, 11, and
20. Reply Br. 16-34. These claims are variations on claim 1 with
nothing that would distinguish them sufficiently to get past the
Examiner's and our analysis as to claim 1.
Claims 1-20 rejected under 35 U.S. C. § 103 (a) as unpatentable over
Roslov, Wilson, and Lu
As to the Appeal Brief arguments, we adopt the Examiner's
determinations from Non-Final Action 6-25 and Answer 10-35 and reach
similar legal conclusions. We now tum to the Reply Brief.
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We are not persuaded by Appellant's argument that Wilson does not
describe
receiving at least one behavioral targeting rule. Instead, Wilson
simply teaches evaluating the URL of the site,
http:// espn. go. com/nhl/index.html, against a set of rules
provided for use by a rules engine in the universal data agent to
produce a content category. These rules are simply used to
categorize content transmitted to the client device.
Reply Br. 3 6. Behavioral targeting rules describe the conditions for which
the advertisement content network server desires to be notified. Wilson is
directed to collecting information about the behavior of the audience
members of a content delivery system in order to serve targeted advertising.
Thus, such behaviors are conditions for which the advertisement content
network server desires to be notified. As no implementation for the recited
rules is recited or even limited, any mechanism Wilson uses for serving such
targeted advertising based on such behavior is within the scope of the recited
rules, because the criteria behind any such basis is within the scope of a rule.
Thus, rules that categorize content category and select an ad accordingly are
then rules for selecting criteria for ad selection. The rules run against not
only the site URL, but also, search engine terms, web site structure, and the
entire content of a web site. All of these are known sources of data for
surmising customer behavior as they evidence search behavior and site
selection behavior.
We are not persuaded by Appellant's argument that
there is no language in the cited passage that teaches receiving
at least one behavioral targeting rule from an advertising
content network. Instead, Wilson simply teaches that the rules
are provided for use by a rules engine in the universal data
agent 202 (see Figure 2 of Wilson which illustrates universal
data agent 202 which is separate from ad server 208).
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Reply Br. 36-37. Wilson uses a system for determining content categories,
comprising a site management tool and a targeting engine. Thus, the site
management tool and targeting engine are in the same system. The site
management tool transmits the data agent with rules to elicit data, and the
targeting engine combines the content category from the agent with other
information to determine a segment. A segment may comprise a group of
visitors that have the same or similar attributes, e.g., content category, age,
income, etc. The segment identifiers may be used to target ads to the
visitors in the segment. Wilson thus, sends the rules that describe the
conditions for which the advertisement content network server desires to be
notified from the same system that targets ads to the visitors, and this system
is therefore within the scope of an advertising content network.
We are not persuaded by Appellant's argument that "Roslov, Wilson
and Lu, taken singly or in combination, do not teach 'comparing the
query to the at least one behavioral targeting rule."' Reply Br. 3 7. The
claim does not recite or narrow the comparison manner or
implementation or what aspects of the query are compared. Wilson
sends a rule that causes a query of search terms used in a search at a
search engine site. The rules then determine a content category based on
those terms. This determination, being based on the rules, necessarily
compares the query results to the criteria in the rules for inferring some
content category.
With regard to claim 10, similar to claim 1 but also reciting that the
rule received in claim 1 is one "indicating conditions to be satisfied prior
to notifying the advertising content network," we are not persuaded by
Appellant's argument that this is not described. Reply Br. 38--40.
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Appellant repeats the argument that simply teaches evaluating the URL
of the site. Reply Br. 42. This is unpersuasive for the same reasons we
determined as to claim 1 supra. As we determined, Wilson describes
rules run against not only the site URL, but also, search engine terms, web
site structure, and the entire content of a web site. Each such rule has a
distinct and different objective which must be satisfied prior to sending
results and notifying the advertising content network.
With regard to claim 10, similar to claim 1 but also reciting that the
cookie stored in claim 1 is one "containing a session identifier and the at
least one behavioral targeting rule on the end user's internet access
device," we are not persuaded by Appellant's argument that this is not
described. Reply Br. 40-43. Appellant repeats the argument that
Wilson's segment identifiers stored in cookies are not behavioral
targeting rules. Reply Br. 42. This is unpersuasive for the same reasons
we determined as to claim 1 supra.
With regard to claim 10, similar to claim 1 but also reciting that the
comparison performed in claim 1 is one "to determine if the at least one
behavioral targeting rule has been satisfied," we are not persuaded by
Appellant's argument that this is not described. Reply Br. 43--44. This
argument is similar to the claim 10 argument regarding the indicating
conditions supra and is unpersuasive for similar reasons.
With regard to claim 11, similar to claim 1 but drafted as a system
performing the process of claim 1, Appellant repeats the arguments in
support of claim 1, and they are equally unpersuasive here. Reply Br.
44--49.
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With regard to claim 20, similar to claim 10 but drafted as a system
performing the process of claim 10, Appellant repeats the arguments in
support of claims 1 and 10, and they are equally unpersuasive here.
Reply Br. 49-54.
CONCLUSIONS OF LAW
The rejection of claims 1-20 under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more is proper.
The rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable
over Roslov, Wilson, and Lu is proper.
DECISION
The rejection of claims 1-20 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). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED
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