Ex Parte Raikula et al

Patent Trial and Appeal BoardNov 28, 2018

14199654 (P.T.A.B. Nov. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/199,654 03/06/2014 42532 7590 11/30/2018 PROSKAUER ROSE LLP ONE INTERNATIONAL PLACE BOSTON, MA 02110 FIRST NAMED INVENTOR Ronald Raikula 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. FID-086 1370 EXAMINER OFORI-AWUAH,MAAME ART UNIT PAPER NUMBER 3629 NOTIFICATION DATE DELIVERY MODE 11/30/2018 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): DocketingPatentBoston @proskauer.com oandrews@proskauer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RONALD RAIKULA and MEGAN KELLEY Appeal2017-008710 Application 14/199,654 Technology Center 3600 Before CARL W. WHITEHEAD JR., ADAM J. PYONIN and MICHAEL M. BARRY, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants are appealing the final rejection of claims 1, 2, 4--11, 13- 16, 18-25, and 27-32 under 35 U.S.C. Â§ 134(a). Appeal Brief 10. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. Introduction The invention is directed to "methods and apparatuses, including computer program products, for generating an index of social health for companies, business segments, and markets." Specification ,r 1. Illustrative Claim 1. A computerized method for generating an index of social health, the method comprising: Appeal2017-008710 Application 14/199,654 receiving, by a data assimilation and analysis module executing on a processor of a server computing device, social media interactions from a plurality of social media networks, each social media interaction including social media sharing activity data for the interaction; determining, by the data assimilation and analysis module, a plurality of companies identified in the social media interactions; annotating, by the data assimilation and analysis module, for each of the plurality of companies, each social media interaction with a plurality of dimensions based upon the social media sharing activity data, the annotating comprising: determining a velocity of the social media interaction based upon a volume of sharing activity for the interaction that occurred both within the social media network where the interaction originated and across the plurality of social media networks for a defined time period; determining a directionality of the social media interaction based upon a dispersal of sharing activity for the interaction both within the social media network where the interaction originated and across the plurality of social media networks for the defined time period; and modifying the social media interaction to include a reference to the velocity and the directionality; determining, by an index data processing module executing on the processor of the server computing device, a component signal for each dimension of the social media interaction by identifying a change in the dimension for a particular time period and assigning a weight to each component signal according to a weight matrix provided by a data tuning module executing on the processor of the server computing device; generating, by the index data processing module, a social media health index score for each of the plurality of companies based upon the component signals; identifying, by a trend data and signal threshold processing module executing on the processor of the server 2 Appeal2017-008710 Application 14/199,654 computing device, one or more trends associated with the social media health index score for each of the plurality of companies; and generating, by the trend data and signal threshold processing module, a social media health index for an industry by aggregating the social media health index scores for the plurality of companies. Rejections on Appeal Claims 1, 2, 4--11, 13-16, 18-25 and 27-32 stand rejected under 35 U.S.C. Â§ 101 as being directed to non-statutory subject matter. Final Action 3--4. Claims 1, 2, 4, 5, 7-9, 14--16, 18, 19, 21-23 and 28-32 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Andrews (U.S. Patent Application Publication 2012/0296845 Al; published November 22, 2012), Schubert (U.S. Patent Application Publication 2013/0124257 Al; published May 16, 2013), Varghese (U.S. Patent Application Publication 2013/0325550 Al; published December 5, 2013) and Mischuk (U.S. Patent Application Publication 2014/0025478 Al; published January 23, 2014). Final Action 5-13. Claims 6, 10, 13, 20, 24 and 27 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Andrews, Schubert, Varghese, Mischuk and Gidwani (U.S. Patent Application Publication 2011/0047035 Al; published February 24, 2011). Final Action 14--15. Claims 11 and 25 stand rejected under 35 U.S.C. Â§ 103 as being unpatentable over Andrews, Schubert, Varghese, Mischuk and Zhang (U.S. Patent Application Publication 2013/0035982 Al; published February 7, 2013). Final Action 15-16. 3 Appeal2017-008710 Application 14/199,654 ANALYSIS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Briefs (filed February 2, 2016; June 23, 2016), the Reply Brief (filed January 3, 2017), the Answer (mailed November 3, 2016) and the Final Action ( mailed June 3 0, 2015) for the respective details. 35 U.S.C. Â§ 101 Rejection The Supreme Court has set forth an analytical "framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71-73 (2012)). In the first step of the analysis, we determine whether the claims at issue are "directed to" a judicial exception, such as an abstract idea. Alice, 134 S. Ct. at 2355. If not, the inquiry ends. Thales Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are determined to be directed to an abstract idea, then we consider under step two whether the claims contain an "inventive concept" sufficient to "transform the nature of the claim into a patent-eligible application." Alice, 134 S. Ct. at 2355 (quotations and citation omitted). Noting that the two stages involve "overlapping scrutiny of the content of the claims," the Federal Circuit has described "the first-stage inquiry" as "looking at the 'focus' of the claims, their 'character as a whole,"' and "the second-stage inquiry (where reached)" as "looking more precisely at what the claim elements add--specifically, whether, in the 4 Appeal2017-008710 Application 14/199,654 Supreme Court's terms, they identify an 'inventive concept' in the application of the ineligible matter to which (by assumption at stage two) the claim is directed." Electric Power Grp, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). In considering whether a claim is directed to an abstract idea, we acknowledge, as did the Court in Mayo, that "all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We, therefore, look to: (1) whether the claims focus on a specific means or method that improves the relevant technology, or (2) are directed to a result or effect that itself is the abstract idea, in which the claims merely invoke generic processes and machinery. See Enfzsh, 822 F.3d at 1336. Step One: Whether the Claims Are Directed to a Patent-Ineligible Concept (Abstract Idea) Appellants argue, "In Flook ... the claims at issue were directed to making a computation according to a mathematical formula. In contrast, currently-pending claims are not directed to making a computation according to a mathematical formula, particularly in view that the claims recite many elements directed expressly to the operation of specialized hardware components of the recited devices." Appeal Brief 13 (citing Parker v. Flook, 437 U.S. 584, 594 (1978)). Appellants recite multiple limitations from claim 1 to support this argument. Appeal Brief 13. However, the mere recitation of claim limitations fails to address the Examiner's determination that the claimed invention relies upon a mathematical formula to obtain or generate the index of social health. See Final Action 3. Appellants' Specification discloses, "[t]he server computing 5 Appeal2017-008710 Application 14/199,654 device generates a social media health index for an industry by aggregating the index scores for the plurality of companies" and "[t]he server computing device is configured to generates a social media health index for an industry by aggregating the index scores for the plurality of companies." Specification ,r 4. Appellants further argue, "the claims presented herein are directed to methods and systems for 'generating an index of social health,' including detailed steps for carrying out such processes." Appeal Brief 14. We do not find Appellants' arguments persuasive. As the Supreme Court has said, "'if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory."' Parker, 437 U.S. at 595 ( quoting In re Richman, 563 F.2d 1026, 1030 (CCPA 1977)). In addition, the Federal Circuit has repeatedly made clear that "merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract." Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016). The claims of the instant application here are abstract because they recite nothing but a series of steps of data selection and gathering, manipulation of that data based on application of mathematical rules, and presentation of the results. Consequently, claim 1 is analogous to claims our reviewing court has deemed abstract in Cyberfone Sys., LLC v. CNN Interactive Grp., 558 Fed. Appx. 988 (Fed. Cir. 2014) (Affirming the district court's holding that using categories to organize, store, and transmit information is well-established and the idea of collecting information and then separating and transmitting that information according to its classification is patent ineligible.); Content 6 Appeal2017-008710 Application 14/199,654 Extraction and Transmission LLC v. Wells Fargo Bank, Nat. Ass 'n, 776 F.3d 1343 (Fed. Cir. 2014)(cert. denied, 136 S.Ct. 119 (2015) (Data collection, recognition, and storage is undisputedly well-known and collecting data, recognizing certain data within the collected data set, and storing that recognized data in a memory is patent ineligible.); Concaten, Inc. AmeriTrak Fleet Solutions, LLC, 669 Fed. Appx. 571 (Fed. Cir. 2016) (mem.) (cert. denied), 137 S. Ct. 1604 (2017) (Receiving, processing, and transmitting data is patent ineligible.); Elec. Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) (Holding that collecting information, analyzing it, and displaying certain results of the collection and analysis is patent ineligible.). We agree with the Examiner's determination, that at step one of the Alice analysis, the claims are directed to one or more abstract ideas; we tum to the second step of the Alice analysis, in which we must determine whether the additional elements of the claims transform them into patent-eligible subject matter. Step Two: Whether Additional Elements Transform the Idea into Patent-Eligible Subject Matter The Examiner determines: [T]hat the specific type of information (i.e. social media interactions that relate to specific companies), does not impose meaningful limitations on the claims or render the claims less abstract. Moreover, the steps of synthesizing the content of social media interactions that relate to specific companies with social media sharing activity data for the same interactions to generate a unique social media health index score for the companies, and then assemble the individual social media health index scores into a sector-wide, or industry-wide, social media health index that compares the social media health of a plurality of companies over a predetermined time period describes the abstract idea of 7 Appeal2017-008710 Application 14/199,654 manipulating data through mathematical correlations such as in Digitech. Answer 21. Appellant contends: The additional elements, according to the Examiner, "are not sufficient to amount to significantly more than the judicial exception" because they involve "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." Appeal Brief 15 ( citing Final Action 3--4 ). Appellants further contends: Applicant's claims add specific, unconventional limitations that confine the claim to a particular useful technological application - which the Interim Guidance identifies as sufficient to show that the claims contain significantly more than any alleged abstract idea. Appeal Brief 20. Appellants conclude, "[t]here is no evidence in the record that [the claimed limitations] are well-understood, routine, or conventional in the industry." Appeal Brief 21. Under the examination procedure published on line by the USPTO on April 19, 2018, entitled "Changes in Examination Procedure Pertaining to Subject lviatter Eligibility, Recent Subject 1\1atter Eligibility Decision (Berkheimer v. HP, Inc.)" (hereinafter "Berkheimer Memorandum"), there is a fact finding requirement for Examiners, as applicable to rejections underÂ§ 101. Specifically, Examiners must provide specific types of evidence to 8 Appeal2017-008710 Application 14/199,654 suppmi a finding that claim elements ( or combinations of elements) are well-understood, routine, and conventional. The Examiner finds: The claims recites additional elements of a "data assimilation and analysis module" executing on a processor of a server computing device, "a data tuning module," "an index data processing module," "a trend data and signal threshold processing module." These modules include using a generic computer (see Specification, P[0059]: general purpose computer) to perform generic computer functions of obtaining and processing information (e.g. receiving, determining, annotating, generating, identifying and modifying). Answer 18. Appellants do not provide evidence or technical reasoning to show these findings are in error. See page 3 of the Berkheimer l\1emorandum ("A specification demonstrates the well-understood, routine, conventional nature of additional elements ... in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. Â§ l 12(a).") Accordingly, we find the Examiner satisfied the burden of establishing a prima facie case of ineligibility underÂ§ 101 by providing the requisite factual support for limitations that are said to be well-understood, routine, and conventional. We agree with the Examiner's determination and therefore we do not find that the claims recite significantly more to transform the abstract idea into a patent-eligible application. We sustain the Examiner's 35 U.S.C. Â§ 101 rejection of claim 1, independent claims 15 and 29 as well as claims 2, 4-11, 13, 14, 16, 18-25 and 27, 28 and 30-32 rejected on the same basis and argued collective1y by Appellants. 35 U.S.C. Â§ 103 Rejection 9 Appeal2017-008710 Application 14/199,654 Appellants address the alleged inadequacies of each reference and contend these inadequacies fail to establish a prima facie case of obviousness. See Appeal Brief 23-24. Appellants conclude, "that the combination of Andrews, Schubert, Varghese, and Mischuk simply fails to teach, suggest, or render obvious" a myriad of quoted claim limitations. Appeal Brief 25. "Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references." In re Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413,425 (Fed. Cir. 1981)). We do not find Appellants' arguments persuasive because Appellants fail to address the specificity of the Examiner's obviousness rejection. See Final Action 5-16. Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 103 rejections of claims 1, 2, 4--11, 13-16, 18-25 and 27-32 rejected on the same basis and argued collectively by Appellants. DECISION The Examiner's 35 U.S.C. Â§ 101 rejection of claims 1, 2, 4--11, 13- 16, 18-25 and 27-32 is sustained. The Examiner's 35 U.S.C. Â§ 103 rejections of claims 1, 2, 4--11, 13- 16, 18-25 and 27-32 are sustained. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. Â§ 1.136(a)(l). See 37 C.F.R. Â§ 1.136(a)(l )(v). AFFIRMED 10