Ex Parte STRAUSFELD et alDownload PDFPatent Trials and Appeals BoardSep 14, 201813663331 - (D) (P.T.A.B. Sep. 14, 2018) Copy Citation 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 2 Appeal2017-007441 Application 13/663,331 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. 3 Appeal2017-007441 Application 13/663,331 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 4 Appeal2017-007441 Application 13/663,331 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 5 Appeal2017-007441 Application 13/663,331 (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, 6 Appeal2017-007441 Application 13/663,331 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. 7 Appeal2017-007441 Application 13/663,331 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 8 Appeal2017-007441 Application 13/663,331 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). 9 Appeal2017-007441 Application 13/663,331 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). 10 Appeal2017-007441 Application 13/663,331 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 11 Copy with citationCopy as parenthetical citation