Ex Parte Rindt et al

Patent Trial and Appeal Board

Jul 18, 2018

14604119 (P.T.A.B. Jul. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/604,119 01/23/2015 Gage Rindt
30636 7590 07/19/2018
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
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.
40125/07501 4916
EXAMINER
ISMAIL, MAHMOUD S
ART UNIT PAPER NUMBER
3662
MAIL DATE DELIVERY MODE
07/19/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GAGE RINDT, RON DUNSKY, and
JAMES BARRY
Appeal2017-010483
Application 14/604, 119
Technology Center 3600
Before MICHAEL L. HOELTER, BENJAMIN D. M. WOOD, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-010483
Application 14/604, 119
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
THE INVENTION
The claims are directed to a method and system for providing market
share information for aviation fixed base operators (FBOs ). Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method, comprising:
detecting, by a processor, for each of a plurality of aircraft
during a time period, a corresponding plurality of ground
positions;
generating, by the processor, for each of the plurality of
aircraft, a path based on the corresponding plurality of ground
positions;
comparing, by the processor, each of the plurality of paths
to each of a plurality of bounding boxes, each of the plurality of
bounding boxes denoting a perimeter of a corresponding one of
a plurality of fixed base operators ("FBOs");
generating, by the processor, a record of an FBO visit for
each crossing of one of the paths into one of the bounding boxes,
the record including an identity of the aircraft corresponding to
the one of the paths and an identity of the one of the FBOs
corresponding to the one of the bounding boxes; and
determining, by the processor, market share data for each
of the plurality of FBOs during the time period.
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REJECTION
Claims 1-20 are rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
ANALYSIS
Based on Appellants' arguments (App. Br. 6-13), we will decide the
appeal on the basis of representative claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
Having considered all of Appellants' arguments and any evidence
presented, we are not persuaded that the Examiner erred in rejecting claims
1-20 as directed to patent-ineligible subject matter. We address specific
arguments for emphasis in our analysis below.
To determine whether a claim falls within a judicially recognized
exception to patent eligibility under 35 U.S.C. § 101, we apply the two-step
framework set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), and reaffirmed in Alice Corp. Pty.
Ltd. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014). For the first
step, we determine whether the claims at issue are directed to a patent-
ineligible concept such as an abstract idea, law of nature, or natural
phenomenon. Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S. at 78-79). If
so, we advance to the second step where "we consider the elements of each
claim both individually and 'as an ordered combination' to determine
whether the additional elements 'transform the nature of the claim' into a
patent-eligible application" of the otherwise patent-ineligible concept. Id.
(quoting Mayo, 566 U.S. 78-79). The Court has described this second step
"as a search for an inventive concept-i.e., an element or combination of
elements that is sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the ineligible concept itself." Id.
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Application 14/604, 119
(citing Mayo, 566 U.S. at 72-73) (internal quotation marks and alterations
omitted).
Step One
The Examiner determines that independent claim 1 is "directed to an
abstract idea of comparing new and stored information and using rules to
identify options." Final Act. 7. In the Answer the Examiner further
determines that the claims are "directed to the concept of determining
market share data ... which is merely an abstract idea." Ans. 4. The
Examiner explains that the claimed concept "is similar to the concepts of
collecting information, analyzing it, and displaying certain results of the
collection and analysis," which our reviewing court found to be abstract
ideas in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir.
2016). Ans. 4.
Appellants respond that the claims "are not directed to an abstract idea
for at least the same reasons provided by the Federal Circuit in ... McRO,
Inc. v. Bandai Namco Games Am. Inc." 1 App. Br. 6. According to
Appellants, the claims are directed to an "automated method of determining
market share data for fixed business operators ('FBOs')" that uses "the
unconventional steps of generating path data for aircraft and comparing said
data with the theoretical bounds denoting a perimeter of a fixed based
operator to determine if and when the aircraft uses the FBO's services." Id.
at 8. Appellants assert that "[t]his is a highly unconventional way to
generate market share data" that "utiliz[ es] a tracking system and comparing
1 837 F.3d 1299 (Fed. Cir. 2016).
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Application 14/604, 119
the data received from the tracking system with the physical boundaries of
the FBOs." Id.
We agree with the Examiner that claim 1 is directed to an abstract
idea. Claim 1 is directed to a method of collecting and analyzing aircraft
ground-position data to determine FBO market share data. The claimed
method comprises receiving aircraft ground position data, generating path
data from the position data, comparing the path data to an FBO facility
perimeter to determine if the aircraft visited the FBO, and using the visit
data to determine FBO market-share data. See App. Br. 15 (Claims App.).
As our reviewing court held in Electric Power, claims directed to gathering
and analyzing information are directed to an abstract idea. Electric Power,
830 F.3d at 1353-54. That the method may be "unconventional" does not
change this result. See SAP America, Inc. v. Investpic, LLC, 890 F .3d 1016,
1018 (Fed. Cir. 2018) (holding that novel and nonobvious claims may still
be ineligible under 35 U.S.C. § 101).
The McRO decision is not to the contrary. In McRO, the court directs
us to "look to whether the claims in these patents focus on a specific means
or method that improves the relevant technology or are instead directed to a
result or effect that itself is the abstract idea and merely invoke generic
processes and machinery." McRO, 837 F.3d at 1314 (citations omitted).
The court determined that claim 1 in that case "is directed to a patentable,
technological improvement," and "achieve[ s] an improved technological
result." Id. at 1316 (emphasis added). In the present case, however, the
asserted improvement is to a method of determining FBO market share, not
to an improvement in computer technology. Therefore, McRO is not
applicable to this case.
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Application 14/604, 119
Step Two
The Examiner determines that the claims "do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception." Final Act. 7. In the Answer the Examiner explains that "[ t ]he
only additional limitation[] in the claims is a processor," and the processor
"is generically recited and can merely be a general purpose computer that
performs basic computer functions of detecting, generating, and comparing
data, which are all well-understood, routine and conventional." Ans. 5.
Appellants respond that the claims "recite significantly more than the
abstract idea alleged by the Examiner ... in light of the reasoning provided
by the Federal Circuit in [BASCOM Global Internet Services, Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)]." App. Br. 9-10. Appellants
assert that "[ s ]imilar to BASCOM, claim 1 recites a specific method of
obtaining market share data that cannot be said to be conventional or
generic." Id. at 10. According to Appellants, "[c]laim 1 is not the mere
automation of the[] steps that a human would perform" to obtain FBO
market share data, but rather "recites the detection and construction of the
paths of the aircraft and a digital comparison of this data to theoretical
bounds denoting the perimeters of FBOs, and generating market share data
from the aggregated information over a given span of time." Id. at 11.
We agree with the Examiner that the additional limitations of claim 1
do not add significantly more to the abstract idea to which claim 1 is
directed. Notably, Appellants do not expressly dispute the Examiner's
finding that the processor recited in claim 1 "is generically recited and can
merely be a general purpose computer that performs basic computer
functions of detecting, generating, and comparing data, which are all well-
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understood, routine and conventional." Ans. 5. "The Court in Alice made
clear that a claim directed to an abstract idea does not move into section 101
eligibility territory by 'merely requir[ing] generic computer
implementation."' buySAFE, Inc. v. Google, Inc., 765 F.3d. 1350, 1354
(Fed. Cir. 2014) (quoting Alice, 134 S. Ct. at 2357). Here, likewise, claim
1 's recitation of a processor does not add significantly more to the abstract
idea of obtaining and using aircraft position data to determine FBO market
share.
BASCOM is not to the contrary. In BASCOM, the claims were
directed to "a technical improvement over prior art ways of filtering
[Internet] content." BASCOM, 827 F.3d at 1350 (emphasis added). The
court determined that "the claims may be read to improve an existing
technological process." Id. at 1351 (emphasis added) (internal citations and
quotation marks omitted). The same cannot be said here. Claim 1 may be
directed to an improved method for determining FBO market-share data, but
the claims are not limited to a particular improved technical means for doing
so. As such, claim 1 is more like the claims at issue in Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014), which are "directed to a specific
method of advertising and content distribution that was previously unknown
and never employed on the Internet before." Id. at 715-16. The
Ultramercial claims were determined to be patent-ineligible because "the
claims simply instruct the practitioner to implement the abstract idea with
routine, conventional activity." Id. at 715.
Finally, Appellants assert that claim 1 is similar to the hypothetical
claim determined to be patent eligible in example 36 of the USPTO
document "Subject Matter Eligibility Examples: Business Methods" (Dec.
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Application 14/604, 119
15, 2016). In example 36, the claim determined to be patent eligible recited
"a high resolution video camera array with overlapping views to track items
of inventory [that] was not well-understood, routine, conventional activity to
those in the field of inventory control." Id. at 16. The claimed video camera
array "provides the technological solution to the technological problem of
automatically tracking objects and determining their physical position using
a computer vision system." Id. ( emphasis added). But claim 1 in this case is
not limited to a particular technological solution, as discussed above.
DECISION
For the above reasons, the Examiner's 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)(l )(iv).
AFFIRMED
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