Ex Parte Smith et al

Patent Trial and Appeal Board

Oct 10, 2017

11743103 (P.T.A.B. Oct. 10, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/743,103 05/01/2007 Keith Smith 026500-0005PX 6122
34284 7590
Rutan & Tucker, LLP
611 ANTON BLVD
SUITE 1400
COSTA MESA, CA 92626
EXAMINER
BOVEJA, NAMRATA
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
10/12/2017 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):
patents @ rutan. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEITH SMITH, DANIEL TODD, YORK BAUR,
TODD SAWICKI, WILLIAM K. MCGRAW, and KEN SMITH
Appeal 2016-0005571
Application 11/743,1032
Technology Center 3600
Before BIBHU R. MOHANTY, MICHAEL W. KIM, and
NINA L. MEDLOCK, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1,3, 5—10, and 18—20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants’ Appeal Brief (“App. Br.,” filed
June 2, 2015) and Reply Brief (“Reply Br.,” filed October 6, 2015), and the
Examiner’s Answer (“Ans.,” mailed August 6, 2015) and Final Office
Action (“Final Act.,” mailed December 2, 2014).
2 Appellants identify Blinkx UK Limited as the real party in interest. App.
Br. 3.
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CLAIMED INVENTION
Appellants’ claimed invention relates generally to “[a] system for
providing digital content and advertisements to users” (Spec. 125).
Claims 1 and 18, reproduced below, are the independent claims on
appeal and representative of the claimed subject matter:
1. A system for providing digital content and
advertisements to users, the system comprising:
an automated, self-service advertiser interface for
advertisers, wherein the advertiser interface is used by the
advertisers to provide digital advertisements, and wherein the
advertisers provide compensation based on presenting the digital
advertisements to one or more users on their client devices;
an automated, self-service content-provider interface for
providers of digital content, wherein the content-provider
interface is configured to present one or more of menus,
windows, or fields to be used by the providers of digital content
to provide content to the users on their client devices, wherein
the digital content is visual content, audio content, audio-visual
content, or an application, and wherein a first program module is
configured to reference information stored in a content database
to enable the providers of digital content to receive a first portion
of the advertiser-provided compensation based on access of the
digital content by the users on their client devices;
a publisher interface for publishers of the digital content,
wherein the publisher interface is configured to present one or
more of menus, windows, or fields to provide the publishers with
access to the digital content or to links for accessing the digital
content, wherein the publisher interface provides a separate user
interface for the publishers to access the digital content than the
advertisers to provide the digital advertisements, and wherein the
first program module is configured to reference information
stored in an advertisement database to enable the publishers to
receive a second portion of the advertiser-provided
compensation based on access of the provided digital content by
the users;
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an automated, self-service user interface for the users of
the digital content, wherein the user interface is configured to
present one or more of menus, windows, or fields to provide
users with access to view or listen to the digital content;
at least one central server coupled among the advertiser,
content-provider, publisher, and user interfaces, wherein the
central server is configured to have the content database to store
or access the digital content as well as content providers’ account
information, and have the advertisement database to store the
advertisements that at least includes advertisers’ account
information, advertiser-provided compensation, the
advertisements or links to the advertisements,
wherein one or more program modules are configured to
cooperate with the central server to provide the digital content
and the advertisements to the users through the user interface,
wherein the first program module is configured to
cooperate with the central server to receive the advertiser-
provided compensation from the advertisers, and
wherein the first program module is configured to
cooperate with the central server to provide the first and second
portions of the advertiser-provided compensation to the
publishers and the content providers, respectively;
wherein the advertiser interface is configured to also
present one or more of menus, windows, or fields to permit each
of the advertisers to specify at least one category for each of its
digital advertisements and at least one target associated with each
of its digital advertisements, and each advertiser may specify one
or more targeting criteria, including but not limited to keywords,
to be associated with each of its advertisements; and
wherein the publisher interface is configured to also
present one or more of menus, windows, or fields to allow
publishers to browse or search for the digital content.
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18. A system for receiving digital content and
advertisements, the system comprising:
a central server coupled among 1) an advertiser interface,
2) a content-provider interface, 3) a publisher interface, and 4) a
user interface;
wherein the content-provider interface is configured to
present one or more of menus, windows, or fields for accessing
selected digital content from a set of available digital content,
wherein the set of available digital content is provided at a
publisher website, and wherein the set of available digital content
is provided or generated by multiple, different digital content
providers;
wherein the central server has a content database to store
or access the digital content as well as content providers’ account
information;
wherein the central server has an advertisement database
to store the advertisements that at least includes advertisers’
account information, advertiser-provided compensation, the
advertisements or links to the advertisements;
wherein the user interface has a means for viewing or
listening to more than a sampling of the selected digital content,
for free, if at least one predetermined criterion is satisfied;
wherein the advertiser interface has a means for providing
at least one time-shifted digital advertisement associated with an
advertiser website; and
wherein a first program module is coded to enable the
publisher and at least one content provider each automatically to
receive a portion of advertiser-provided compensation based on
the providing of the at least one time-shifted digital
advertisement associated with the advertiser website.
REJECTION
Claims 1, 3, 5—10, and 18—20 are rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
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ANALYSIS
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS
Banklnt’l, 134 S. Ct. 2347, 2354 (2014).
The Supreme Court, in Alice, reiterated the two-step framework,
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories., Inc., 132 S. Ct. 1289, 1300 (2012), “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.,
134 S. Ct. at 2355. The first step in that analysis is to “determine whether
the claims at issue are directed to one of those patent-ineligible concepts.”
Id. If the claims are not directed to a patent-ineligible concept, e.g., to an
abstract idea, the inquiry ends. Otherwise, the inquiry proceeds to the
second step where the elements of the claims are considered “individually
and ‘as an ordered combination”’ to determine whether there are additional
elements that “‘transform the nature of the claim’ into a patent-eligible
application.” Alice Corp., 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct.
at 1297).
The Court acknowledged in Mayo, that “all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas.” Mayo, 132 S. Ct. at 1293. We, therefore, look to whether
the claims 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
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abstract idea and merely invoke generic processes and machinery.
See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
We are not persuaded, as an initial matter, by Appellants’ argument
that the Examiner failed to properly apply the Mayo/Alice two-step analysis.
Appellants assert that “[t]he examination has continually assumed that if
either step 1 or step 2 of the Alice test is determined by the Examiner to be
unsatisfactory, then the current claims fail to recite a statutorily eligible
subject matter rather than both step 1 AND step 2 needed to be found
unsatisfactory” (App. Br. 12; see also id. at 15). Yet, it is clear from the
Final Office Action that the Examiner properly applied the Mayo/Alice two-
part test in accordance with the guidance set forth in the Office’s June 25,
2014 “Preliminary Examination Instructions in view of the Supreme Court
Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et all'
(Final Act. 3—7). Thus, after first finding (in Part I) that the claim 1, for
example, was directed to an abstract idea {id. at 5), the Examiner proceeded
to Part II to determine whether the claim includes additional elements or a
combination of elements that qualify as “significantly more” than the
abstract idea itself (id. at 5—7).
Appellants also argue that the rejection cannot be sustained because
the Examiner has presented no evidence to support a finding that the claims
are directed to an abstract idea (see, e.g., App. Br. 15 (“Only when both
steps outlined in Alice Corp. are shown with evidence to be determined to be
unsatisfactory is then the subject matter found to be ineligible subject matter
under 35 USC 101”); id. at 23—24 (“[T]he office actions and Advisory
Action fail to provide evidence to support a prima facie case under Alice
Corp. to establish the current claims, considering all of the claim limitations
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recite an Abstract Idea. There is insufficient evidence on the record to
establish that all of the claim limitations were analyzed under step 1 of the
Alice Corp test to determine that claim 1 or claim 18 are an abstract idea.”);
id. at 24—25 (“No evidentiary support has been provided for the conclusory
statement made by the Examiner that the claimed process is a mere abstract
idea.”)). That argument is similarly unpersuasive.
We are aware of no controlling precedent that requires the Office to
provide factual evidence to support a finding that a claim is directed to an
abstract idea. Nor, contrary to Appellants’ assertion (App. Br. 24; see also
Reply Br. 6), did this Board hold in PNC Bank v. Secure Axcess, LLC,
CBM2014-00100, 2014 WL 453440 (PTAB Sept. 9, 2014) that there is any
such requirement.3
In rejecting the pending claims under § 101, the Examiner notified
Appellants that the claims are directed to “providing digital content and
advertisements to users and providing compensation to the publishers and
content providers,” i.e., to a fundamental economic practice and, therefore,
to an abstract idea; and that the claims do not include limitations that are
“significantly more” than the abstract idea because the additional elements
involve no more than a generic computer performing generic computer
functions (Final Act. 5—7). The Examiner, thus, notified Appellants of the
reasons for the rejection “together with such information and references as
may be useful in judging of the propriety of continuing the prosecution of
[the] application.” 35 U.S.C. § 132. And, we find that, in doing so, the
3 We would not be bound, in any event, by a non-precedential decision of a
different panel of the Board.
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Examiner set forth a proper rejection under § 101 such that the burden then
shifted to Appellants to demonstrate that the claims are patent-eligible.
Referencing the USPTO’s “July 2015 Update: Subject Matter
Eligibility,” Appellants argue that the rejection under § 101 cannot be
sustained because the Examiner has failed to show how the claims, as a
whole, are similar to a concept that the courts have identified as a patent-
ineligible abstract idea (Reply Br. 7—11). Yet, not only does the Examiner’s
December 2, 2014 Final Rejection predate issuance of the July 2015 Update,
but an examiner’s failure to follow the Director’s guidance is appealable
only to the extent that the examiner has failed to follow the relevant statutes
or case law. To the extent the Director’s guidance goes beyond the case law
and is more restrictive on the Examiner than the case law, the failure of the
Examiner to follow those added restrictions is a matter for petition to the
Director. We are aware of no controlling precedent, nor do Appellants
identify any controlling case law, that precludes an examiner from finding a
claimed concept patent-ineligible unless it is similar to a concept that a court
has identified as being patent-ineligible.
Appellants further argue that, in characterizing the claims as directed
to “providing digital content and advertisements to users and compensation
to the publishers and content providers,” the Examiner did not provide an
analysis of all the claim limitations to then distill the core concept of
claims 1 and 18 (App. Br. 18; see also id. at 24 and Reply Br. 14), i.e.,
“using four different distinct interfaces in a server client/server architecture
to upload digital content, view and/or hear digital content, and match
advertisements to that digital content” (App. Br. 25; see also Reply Br. 14—
15). Instead, according to Appellants, the Examiner “merely looked at the
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isolated ‘compensation’ limitations . . . and looked at the introductory clause
of merely claim 1 ’s preamble to determine that claim 1 and claim 18 recite
an alleged abstract idea” (App. Br. 22; see also id. at 21).
Appellants argue that the basic core concept of uploading digital
content, providing advertisements, searching for digital content, providing
access to view and/or hear the digital content, storing this information, and
providing advertisement targeting capabilities is “a specific technological
process rather than a recitation of an abstract idea” {id. at 31). Yet,
collecting, i.e., uploading, digital content and advertisements; providing
access to the digital content; and matching advertisements to the digital
content is precisely the kind data collection and analysis that the Federal
Circuit has repeatedly held is a patent-ineligible abstract idea. See, e.g.,
Elec. Power Grp. LLC v. Alstom, S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
(explaining that the claims were directed to a patent-ineligible abstract idea
because “[t]he advance they purport to make is a process of gathering and
analyzing information of a specified content, then displaying the results, and
not any particular assertedly inventive technology for performing those
functions”); Content Extraction & Transmission v. Wells Fargo Bank, N.A.,
776 F.3d 1343 (Fed. Cir. 2014). Appellants also cannot reasonably deny
that targeted advertising is a fundamental, long-standing, and well-known
economic practice. See Tuxis Technologies, LLC v. Amazon.com, Inc., No.
CV 13—1771—RGA, 2014 WL 4382446, at *5 (D. Del. Sept. 3, 2014)
(Matching consumers with a given product or service “has been practiced as
long as markets have been in operation.”).
Appellants stress that the “central focus/essence” of independent
claims 1 and 18 is the “core concept of using four different distinct
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interfaces in a server client/server architecture to upload digital content,
view and/or hear digital content, and match advertisements to that digital
content (App. Br. 25; see also id. at 35—36 and 3 8—42). However, as the
Examiner observes, graphical user interfaces (“GUIs”) are a standard and
common method for users to enter and view information on a computer
network (Ans. 8).
There is no indication in the Specification that any inventive or
specialized graphical interface is required; instead, the claims merely recite
the use of generic GUIs to implement the abstract idea of providing digital
content and advertisements to users and compensation to the publishers and
content providers on a generic computer. The recitation of a generic GUI
merely limits the use of the abstract idea to a particular technological
environment, which the Court made clear in Alice is insufficient to transform
an otherwise patent-ineligible abstract idea into patent-eligible subject
matter. See Alice Corp., 134 S. Ct. at 2358. See also Affinity Labs of Texas
LLC v. DirecTVLLC, 838 F.3d 1253, 1257—58 (A mere recitation of a GUI
does not make a claim patent-eligible).
Citing the Board’s Decision to Institute in U.S. Bancorp v. Solutran,
CBM2014-00076, 2014 WL 3943913 (PTAB Aug. 7, 2014), Appellants
assert that if, as the Board concluded in that case, processing paper checks
by scanning the checks with a digital scanner and using a computer to
compare the digital images is a technical process rather than an abstract idea,
then Appellants’ concept of “using four different distinct interfaces in a
server client/server architecture to upload digital content, provide access to
view and/or hear digital content, provide advertisements, search for digital
content, store this information, and match advertisements to that digital
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content” is also a technical process rather than a mere abstract idea (App.
Br. 32; see also id. at 42-47). Yet, the difficulty with that argument is that
Appellants do not account for the distinction between claims involving the
processing of digital information and claims directed to a method of
processing paper checks — a method the Board concluded is more akin to a
physical process than an abstract idea. U.S. Bancorp, 2014 WL 3943913
at *8 (“[W]e find that the basic, core concept of independent claim 1 is a
method of processing paper checks, which is more akin to a physical process
than an abstract idea.”).
Appellants also attempt to draw an analogy here between the present
claims and those at issue in DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245 (Fed. Cir. 2014) (App. Br. 32; see also Reply Br. 7, 15). But,
we can find no parallel between the present claims and those in DDR
Holdings.
In DDR Holdings, the Federal Circuit determined that, although the
patent claims at issue involved conventional computers and the Internet, the
claims addressed a challenge particular to the Internet, i.e., retaining website
visitors who, if adhering to the routine, conventional functioning of Internet
hyperlink protocol, would be transported instantly away from a host’s
website after “clicking” on an advertisement and activating a hyperlink.
DDR Holdings, 773 F.3d at 1257. The court, thus, held that the claims were
directed to patent-eligible subject matter because they claim a solution
“necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks,” and that the claimed
invention did not simply use computers to serve a conventional business
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purpose. Id. Rather, there was a change to the routine, conventional
functioning of Internet hyperlink protocol. Id.
No such technological advance is evident in the present invention.
Nor, unlike the situation in DDR Holdings, do Appellants identity any
technical problem particular to computer networks and/or the Internet that
claims 1 and 18 allegedly overcome. Instead, it is clear from the
Specification that, rather than addressing a technical problem, the claimed
system is intended to address the business problem of ensuring that content
providers and publishers are properly compensated for the digital content
that they make available on computer networks, e.g., the Internet; otherwise
these parties may be discouraged from providing digital content (see, e.g.,
Spec. 2—6 and 25). And, also unlike the situation in DDR Holdings, there
is no indication that the claims require any more than generic computer
components performing generic computer functions.
Turning to the second step of the Mayo/Alice analysis, Appellants
argue that even if the Board determines that the claims are directed to an
abstract idea, the claims are nonetheless patent-eligible because both
independent claims 1 and 18 include meaningful limitations that would
transform an abstract idea into patent-eligible subject matter (App. Br. 48—
59). Appellants note, “[a]s a matter of record, the actual evidence shows
that the patent office did not find any prior art system that disclosed these
specific same structural limitations [i.e., the graphic user interfaces and other
components recited in claims 1 and 18]” (id. at 49). And Appellants argue
that these structural limitations, therefore, “should be enough to be found
meaningful limitations beyond generally linking the use of an abstract idea
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to a particular technological environment without any additional analysis
needed” (id.; see also id. at 54—56).
A finding of novelty or non-obviousness, however, does not
necessarily lead to the conclusion that the claimed subject matter is patent-
eligible. “Groundbreaking, innovative, or even brilliant discovery does not
by itself satisfy the § 101 inquiry.” Ass’n. for Molecular Pathology v.
Myriad Genetics, Inc., 133 S. Ct. 2107, 2117 (2013). Although the second
step in the Mayo/Alice framework is termed a search for an “inventive
concept,” the analysis is not an evaluation of novelty or non-obviousness,
but rather, a search for “‘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 [patent-ineligible concept] itself.’” Alice Corp.,
134 S. Ct. at 2355. A novel and nonobvious claim directed to a purely
abstract idea is, nonetheless, patent-ineligible. See Mayo, 132 S. Ct. at 1304.
See also Diamond v. Diehr, 450 U.S. 175, 188—89 (1981) (“The ‘novelty’ of
any element or steps in a process, or even of the process itself, is of no
relevance in determining whether the subject matter of a claim falls within
categories of possibly patentable subject matter.”).
Rather than reciting additional elements that amount to “significantly
more” than the abstract idea, the pending claims, at best, “add” only a server,
four graphical user interfaces, and two databases, i.e., generic components,4
4 See, e.g., Spec. ]ff[ 28—32 (describing that the claimed invention may be
implemented using “a general-purpose computer, e.g., a server or personal
computer”; that the data storage devices may include any type of computer-
readable media that can store data accessible by the computer; and that “any
application program for providing a graphical user interface to users may be
employed”).
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which does not satisfy the inventive concept. See, e.g., DDR Holdings,
773 F.3d at 1256 (“[A]fter Alice, there can remain no doubt: recitation of
generic computer limitations does not make an otherwise ineligible claim
patent-eligible. The bare fact that a computer exists in the physical rather
than purely conceptual realm is beside the point.”).
Appellants argue that the “[t]he structural claim limitations of the
server, four interfaces, and two databases functionally and mechanically
interact with each other squarely placing these claims into the patentable
subject matter category of a new and useful machine under 35 USC§ 101”
(App. Br. 51; see also id. at 52—53). Yet, although claims 1 and 18 recite
physical components, the focus of the claims is not on the improvement of
any technology or technical field, but instead on implementation of the
abstract idea, i.e., “providing digital content and advertisements to users and
providing compensation to the publishers and content providers.” The
physical components, i.e., the server, user interfaces, and databases, merely
provide the generic environment in which to implement this abstract idea.
And, as the Supreme Court made clear in Alice, the recitation of generic
computer limitations is not enough to transform an otherwise patent-
ineligible abstract idea into a patentable invention. See Alice Corp.,
134 S. Ct. at 2358.
Pointing to the Dedrick reference, cited during the earlier patent
prosecution, Appellants note that “[t]he prior prosecution history in this
Patent Application has shown that multiple other ways exist to implement a
similar concept with a fewer number of interfaces, such as the two interfaces
in the Dedrick reference, or with different databases, or even with interfaces
having different functionality built into that GUI” (App. Br. 53). Appellants,
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thus, ostensibly argue that the claims are patent-eligible because they pose
no risk of preemption.
There is no dispute that the Supreme Court has described “the concern
that drives this exclusionary principle [i.e., the exclusion of abstract ideas
from patent eligible subject matter] as one of pre-emption.” See Alice Corp.,
134 S. Ct. at 2354. But characterizing pre-emption as a driving concern for
patent eligibility is not the same as characterizing pre-emption as the sole
test for patent eligibility. “The Supreme Court has made clear that the
principle of preemption is the basis for the judicial exceptions to
patentability” and “[f]or this reason, questions on preemption are inherent in
and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice Corp., 134 S. Ct.
at 2354). “[Preemption may signal patent ineligible subject matter, [but]
the absence of complete preemption does not demonstrate patent eligibility.”
Id.
Finally, we are not persuaded of Examiner error by Appellants’
argument that the claims recite an improvement to the functioning of the
computer itself (App. Br. 56—59). Appellants assert that “[t]he current
claims recite improvements to the efficiency of the functioning of the
computer itself’ by:
#1) Working with an increased number of interface components
to make things simpler and easier to work on the server and
databases; #2) Configuring the publisher’s interface to allow
publishers to browse or search for the digital content, allows a
much improved use of the server system for a publisher working
with the server and databases; [and] #3) Configuring the
advertiser’s interface to specify i) at least one category for each
of its digital advertisements and ii) at least one target associated
with each of its digital advertisements, and then each advertiser
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may also specify iii) one or more targeting criteria, including but
not limited to keywords, to be associated with each of its
advertisements will much improve the advertisers use of this
server.
Id. at 56—57. However, we agree with the Examiner that none of these
alleged improvements affects the functioning of the computer itself (Ans. 9).
There is no indication in the Specification that the processing speed of the
server is increased or that the claimed invention increases the efficiency of
the network routers in passing data through the network, decreases the
amount of heat emitted by the computer components, or otherwise improves
the computer components {id. at 9—10). “At most, the invention improves
the users’ experience in interacting with the system through the use of
generic interfaces as is well known in the art” (id. at 10).
We are not persuaded for the foregoing reasons that the Examiner
erred in rejecting claims 1, 3, 5—10, and 18—20 under 35 U.S.C. § 103(a).
Therefore, we sustain the Examiner’s rejection.
DECISION
The Examiner’s rejection of claims 1,3, 5—10, and 18—20 under
35 U.S.C. § 101 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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