Ex Parte STRAUSFELD et al

Patent Trial and Appeal Board

Sep 14, 2018

13663331 (P.T.A.B. Sep. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/663,331 10/29/2012
758 7590 09/18/2018
FENWICK & WEST LLP
SILICON VALLEY CENTER
801 CALIFORNIA STREET
MOUNTAIN VIEW, CA 94041
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
LISA STRAUSFELD
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.
28988-21933/US 9786
EXAMINER
RINES, ROBERT D
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
09/18/2018 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):
PTOC@Fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LISA STRAUSFELD, HILLA KATKI, ADAM SUHARJA,
and LAURA STRAUSFELD
Appeal2017-007441
Application 13/663,331 1
Technology Center 3600
Before MAHSHID D. SAADAT, MARC S. HOFF, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-9, 11-20, and 22-24. Appellants have canceled claims 10 and 21.
Br. 41, 43. We have jurisdiction over the remaining pending claims under
35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Lisa Strausfeld as the real party in interest. Br. 1.
Appeal2017-007441
Application 13/663,331
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention generally relates to "the
field of data analysis of political entities, in particular to providing an issue-
based analysis and graphical visualizations of the entities' political
orientation on various issues." Spec. ,r 2.
Claim 1 is representative of the subject matter on appeal and is
reproduced below:
1. A computer-implemented method for transm1ttmg a
visualization indicating a political entity's orientation on an
issue, the method comprising:
receiving by a scheduler executed by a processor a data
feed including a score indicating the political entity's orientation
on the issue, the score including an indicator on whether the
entity's orientation is conservative or liberal;
storing the data feed including the received score in
database using a data server;
receiving by a data visualization engine executed by a
processor a request for the political entity's orientation on the
issue during a time period;
generating by the data visualization engine a visualization
based on the received score in the database, the visualization
comprising a trend line chart including a trend line indicating the
political entity's orientation on the issue during the time period,
the trend line chart including a plurality of horizontal lines, each
horizontal line representing a political event related to the issue
during the time period, the trend line intersecting each of
plurality of horizontal lines, and at each intersection, a position
of the trend line left or right relative to a prior intersection
indicating a change in the political entity's orientation on the
issue towards a liberal or conservative direction, in relation to the
political event represented by the horizontal line; and
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transm1ttmg by a presentation layer executed by a
processor the generated visualization to an output device for
display.
The Examiner's Rejection
Claims 1-9, 11-20, and 22-24 stand rejected under 35 U.S.C. § 101
as being directed to patent-ineligible subject matter. Final Act. 5-7.
ANALYSIS 2
Appellants dispute the Examiner's conclusion that the pending claims
are directed to patent-ineligible subject matter. Br. 11-38. In particular,
Appellants argue the Examiner failed to provide a reasoned rationale for
concluding the claims are directed to an abstract idea. Br. 13-20. Instead,
Appellants assert the claims are not directed to an abstract idea, but rather,
provide specific ways to visualize complex data. Br. 20-25. Moreover,
Appellants contend the claims recite significantly more than the alleged
abstract idea. Br. 28-37.
The Supreme Court's two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. Pty. v. CLS Banklnt'l,
134 S. Ct. 2347, 2355 (2014). If a claim falls within one of the statutory
categories of patent eligibility (i.e., a process, machine, manufacture, or
composition of matter) then the first inquiry is whether the claim is directed
to one of the judicially recognized exceptions (i.e., a law of nature, a natural
phenomenon, or an abstract idea). Alice, 134 S. Ct. at 2355. If so, the
2 Throughout this Decision, we have considered the Appeal Brief, filed
July 8, 2016 ("Br."); the Examiner's Answer, mailed February 2, 2017
("Ans."); and the Final Office Action, mailed April 27, 2015 ("Final Act."),
from which this Appeal is taken. Appellants did not file a Reply Brief.
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second step is to determine whether any element, or combination of
elements, amounts to significantly more than the judicial exception. Alice,
134 S. Ct. at 2355.
Although the independent claims each broadly fall within the statutory
categories of patentability, the Examiner concludes the claims are directed to
a judicially recognized exception-i.e., an abstract idea. Final Act. 7. In
particular, the Examiner concludes the claims are directed to the abstract
idea of "displaying a visual representation of political orientation." Final
Act. 7. Further, the Examiner concludes the claims do not recite
significantly more to transform the abstract idea into a patent eligible
application. Final Act. 7. Instead, the claims recite generic computer
functions/elements performing generic computer functions that are well-
understood, routine, and conventional. Final Act. 7.
Instead of using a definition of an abstract idea, "the decisional
mechanism courts now apply is to examine earlier cases in which a similar
or parallel descriptive nature can be seen-what prior cases were about, and
which way they were decided." Amdocs (Isr.) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288, 1294 (Fed. Cir. 2016) (citing Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)); accord United
States Patent and Trademark Office, July 2015 Update: Subject Matter
Eligibility 3 (July 30, 2015), https://www.uspto.gov/sites/default/files/
documents/ieg-july-2015-update.pdf (instructing Examiners that "a claimed
concept is not identified as an abstract idea unless it is similar to at least one
concept that the courts have identified as an abstract idea."). As part of this
inquiry, we must "look at the 'focus of the claimed advance over the prior
art' to determine if the claim's 'character as a whole' is directed to excluded
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subject matter." Affinity Labs of Tex., LLC v. DirecTV, LLC, 838 F.3d 1253,
1257 (Fed. Cir. 2016).
Our reviewing court has concluded that abstract ideas include the
concepts such as the collection and analysis of information. Elec. Power,
830 F.3d at 1353; see also Elec. Power, 830 F.3d at 1354 ("analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, as essentially mental processes within the
abstract-idea category"). Additionally, the collecting of data, recognizing
certain data within the collected data set, and storing the data in memory are
also abstract ideas. Content Extraction & Transmission LLC v. Wells Fargo
Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Similarly, "collecting,
displaying, and manipulating data" is an abstract idea. Intellectual Ventures
I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017); see
also SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018)
("merely presenting the results of abstract processes of collecting and
analyzing information ... is abstract as an ancillary part of such collection
and analysis") ( quotations omitted).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co. Ltd., 855
F.3d 1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea (math) to
another abstract idea ... does not render the claim non-abstract."); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed.
Cir. 2016) ( determining the pending claims were directed to a combination
of abstract ideas).
Here, Appellants' claims are generally directed to generating a
visualization based on received data. A data feed is received by a scheduler
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(i.e., computing device) over a communication network, such as the Internet.
Spec. ,r 35. The data feed includes a score indicating a political entity's
orientation on an issue and an indicator as to whether the entity's orientation
is conservative or liberal. A data server (i.e., computing device) receives the
data feed from the scheduler and stores the data feed in a database (i.e., a
computing device). Spec. ,r,r 39, 46. A data visualization engine receives a
request regarding a political entity's orientation on an issue and generates a
visualization (i.e., a graphical representation to convey information about the
received data). Spec. ,r 57. The generated visualization is displayed (i.e.,
transmitted by a presentation layer to an output device). Spec. ,r 58. The
visualization (i.e., graphical representation) may comprise a trend line chart
or a double ended bar chart and further include different colors ( or shades of
color) and markers to indicate additional information.
In Electric Power, the pending claims recited, inter alia, "receiving a
plurality of data streams, ... receiving data from other power system data
sources, ... receiving data from a plurality of non-grid data sources;
detecting and analyzing events in real-time from the plurality of data
streams[,] ... displaying the event analysis results[,] ... [and] displaying
concurrent visualization of measurements from the data streams." Elec.
Power, 830 F.3d at 1351-52. The court concluded that the collection and
analysis of data is within the realm of abstract ideas. Elec. Power, 830 F .3d
at 1353-54. Appellants' claimed receiving and storing of a data feed, as
well as receiving a request for data (i.e., a political entity's orientation on an
issue) is similar to the abstract ideas of collecting and storing data. See Elec.
Power, 830 F.3d at 1353; Content Extraction, 776 F.3d at 1347; see also
Smart Sys. Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364,
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1372 (Fed. Cir. 2017); Alice, 134 S. Ct. at 2360 (noting basic storage
function of a generic computer). Further, the court concluded that "merely
presenting the results of abstract processes of collecting and analyzing
information ... is abstract as an ancillary part of such collection and
analysis." Elec. Power, 830 F.3d at 1354. Thus, similar to Electric Power,
we find Appellants' generation and presentation of a visualization of the data
to be within the realm of abstract ideas. See Ans. 8. Neither these steps, nor
those recited in the dependent claims ( which provide additional detail on the
visualization content) alters the character of the claims, which is directed to
an abstract idea, discussed supra. Additionally, here-as in Electric Power
(see 830 F.3d at 1354}-the claims are distinguishable from the claims at
issue in Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)
because "the focus of the claims is not on ... an improvement in computers
as tools, but on certain independently abstract ideas that use computers as
tools." Elec. Power, 830 F.3d at 1354; see also Ans. 13.
Appellants' comparison of the pending claims to limitations recited in
issued patents is unavailing. See Br. 25-28. 3 Rather than a review of other
patents related to similar subject matter that may have issued, the correct
inquiry and analysis must be directed to the pending claims. See Accenture
Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed.
Cir. 2013) (admonishing that "the important inquiry for a§ 101 analysis is to
3 Contrary to Appellants' assertion that the court in Enfzsh endorsed
"comparing the claims of issued patents to claims under review" (see
Br. 26--27 n.6), the court instead stated "both this court and the Supreme
Court have found it sufficient to compare claims at issue to those claims
already found to be directed to an abstract idea in previous cases." Enfzsh,
822 F.3d at 1334. This is the approach applied herein.
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look to the claim"). "Each case is determined on its own merits," and "[i]n
reviewing specific rejections of specific claims, [the Board] does not
consider allowed claims in other applications or patents." In re Gyurik, 596
F.2d 1012, 1018 n.15 (CCPA 1979) (citations omitted).
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to "significantly more" than
the abstract idea. Alice, 134 S. Ct. at 2355 (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73, 77-79 (2012)). The
implementation of the abstract idea involved must be "more than [the]
performance of 'well-understood, routine, [and] conventional activities
previously known to the industry."' Content Extraction, 776 F.3d at 1347-
48 (quoting Alice, 134 S. Ct. at 2359) (alteration in original).
Similar to Electric Power, "merely selecting information, by content
or source, for collection, analysis, and display does nothing significant to
differentiate a process from ordinary mental processes, whose implicit
exclusion from § 101 undergirds the information-based category of abstract
ideas." Elec. Power, 830 F.3d at 1355 (analyzing the pending claims under
Step 2 of Alice test). Further, the claims do not require any nonconventional
computer, network, or display or a non-conventional and non-generic
arrangement of known conventional pieces. See Elec. Power, 830 F.3d at
1355; Bascom Global Internet Servs. v. AT&T Mobility LLC, 827 F.3d 1341,
1349-52 (Fed. Cir. 2016); cf Spec. ,r 87 (describing the apparatus for
performing the claimed operation "may comprise a general purpose
computing device"); see also Mortgage Grader, Inc. v. First Choice Loan
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Servs. Inc., 811 F.3d 1314, 1324--25 (Fed. Cir. 2016) (finding generic
computer components such as an "interface," "network," and "database,"
fail to satisfy the inventive concept requirement); buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) ("That a computer receives and
sends the information over a network-with no further specification-is not
even arguably inventive.").
Contrary to Appellants' contentions, to the extent Appellants are
asserting a lack of rejection under Sections 102 or 103 suggests the instant
claims do not recite well understood, routine, or conventional activities or,
otherwise, recite an inventive concept (see Br. 31-33), we are not persuaded.
Subject-matter eligibility under 35 U.S.C. § 101 is a requirement separate
from other patentability inquiries. See Mayo, 566 U.S. at 90 (recognizing
that the § 101 inquiry and other patentability inquiries "might sometimes
overlap," but that "shift[ing] the patent-eligibility inquiry entirely to these
[other] sections risks creating significantly greater legal uncertainty, while
assuming that those sections can do work that they are not equipped to
do"); 4 see also Diamond v. Diehr, 450 U.S. 175, 188-89 (1981) ("[t]he
'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 the § 101 categories of possibly patentable subject matter"); Two-
Way Media Ltd. v. Comcast Cable Commc 'ns, LLC, 874 F.3d 1329, 1340
(Fed. Cir. 2017) ("[e]ligibility and novelty are separate inquiries").
Also, we disagree with Appellants that the claimed invention recites
improvements in graphical user interfaces (GUis). Br. 34--37. Rather, the
claims under appeal recite using a graphical user interface to present the
4 Cf Br. 33 (partially quoting the Supreme Court's statement in Mayo).
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received and analyzed data in a particular format. As the Examiner notes,
"[t]he non-technical functions of displaying political orientation data in a
particular format benefit from the use of computer technology, but fail to
improve the underlying technology." Ans. 13.
To the extent Appellants contend the claims are not preemptive (see
Br. 31) of the abstract idea, we are unpersuaded of Examiner error.
"' [W]hile preemption may signal patent ineligible subject matter, the
absence of complete preemption does not demonstrate patent eligibility."'
FairWarning IP, 839 F.3d at 1098 (quotingAriosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362---63 (Fed. Cir. 2015) ("[T]hat
the claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract."). Further, "[ w ]here 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,
788 F.3d at 1379.
For the reasons discussed supra, we are unpersuaded that the
Examiner erred in rejecting under 35 U.S.C. § 101 claim 1 as being directed
to patent-ineligible subject matter. Accordingly, we sustain the Examiner's
rejection of claim 1. Additionally, we sustain the Examiner's rejection of
independent claims 12, 23, and 24, which recite similar limitations and were
not argued separately. See 37 C.F.R. § 4I.37(c)(l)(iv) (2015). Further, we
sustain the Examiner's rejection of claims 2-9, 11, 13-20, and 22, which
depend directly or indirectly therefrom and were not argued separately. See
37 C.F.R. § 4I.37(c)(l)(iv).
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DECISION
We affirm the Examiner's decision rejecting claims 1-9, 11-20, and
22-24 under 35 U.S.C. § 101.
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. § 4I.50(f).
AFFIRMED
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