Ex Parte Vasavada et al

Patent Trial and Appeal Board

Dec 13, 2017

14228949 (P.T.A.B. Dec. 13, 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.
14/228,949 03/28/2014 Maulin Vasavada 2043.877US2 4642
49845 7590 12/15/2017
SCHWEGMAN LUNDBERG & WOESSNER/EBAY
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
CHANG, EDWARD
ART UNIT PAPER NUMBER
3696
NOTIFICATION DATE DELIVERY MODE
12/15/2017 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):
USPTO@SLWIP.COM
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MAULIN VASAVADA, PRAKASH MUPPIRALA,
MOHAN JAYAPAL, and SANJAY NARANG
(Applicant: EBAY INC.)
Appeal 2016-005540
Application 14/228,949
Technology Center 3600
Before BRUCE R. WINSOR, JEREMY J. CURCURI, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20, which are all of the pending claims. We
have jurisdiction over these claims under 35 U.S.C. § 6(b).
We affirm.
1 References herein to the “Appellant” are to the applicant eBay Inc., who is
also identified in the Appeal Brief as the real party-in-interest. (App. Br. 2.)
Appeal 2016-005540
Application 14/228,949
STATEMENT OF THE CASE
Introduction
Appellant’s claimed invention relates to “a method and system for an
automated processing of an insurance claim.” Spec. 12.
Exemplary Claim
Claims 1, 10, and 19 are independent. Claim 1, reproduced below, is
exemplary of the claimed subject matter:
1. A system, comprising:
a processor; and
memory having stored thereon instructions that are
executable by the processor to cause the system to:
receive information associated with a transaction of an
item;
determine, based on a fraud rate associated with a shipping
destination address of the transaction, whether to offer
shipping insurance for the item; and
in response to determining to offer shipping insurance and
to receiving a request for the shipping insurance,
causing a shipping insurance policy to be issued.
REJECTION
Claims 1—20 stand rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter. (Final Act. 2—5.)
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
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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., 566 U.S. 66, 75—77 (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., 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, 566 U.S. at 78—79).
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, 566 U.S. at 71. Therefore, in applying the Alice
framework, the Federal Circuit has instructed that claims are to be
considered in their entirety to determine “whether their character as a whole
is directed to excluded subject matter.” McRO, Inc. v. Bandai Namco Games
Am., Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016) {quoting Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)).
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A. Examiner’s Prima Facie Case
Appellant maintains here that the § 101 rejection cannot be sustained
because the Examiner has failed to provide evidence to support the finding
that the claims are directed to a fundamental economic practice and the
abstract idea of a method of organizing human activities and has, thus, failed
to establish a prima face case of patent-ineligibility. (App. Br. 6—12.) More
particularly, Appellant charges that the Examiner is required under the
Administrative Procedure Act to provide substantial evidence to support a
§ 101 rejection. (Id. at 7—8.) Appellant further asserts that, unless the
Examiner provides authoritative documentation, as Appellant contends the
Supreme Court and Federal Circuit did in Alice, Bilski v. Kappos, 561 U.S.
593 (2010), and buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir.
2014) , the Examiner has not performed a proper analysis under § 101. (Id.
at 9-10.)
As an initial matter, we find nothing in Alice, Bilski, or buySAFE that
requires the Office to identify specific references or provide “authoritative
documentation” to support a finding that a claim is directed to an abstract
idea. Nor, contrary to Appellant’s suggestion (see id. at 10-11), did this
Board hold, in Ex parte Poisson, Appeal No. 2012-011084 (PTAB Feb. 27,
2015) (non-precedential), that there is any such requirement. Instead, the
Federal Circuit has repeatedly noted that “the prima facie case is merely a
procedural device that enables an appropriate shift of the burden of
production.” Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The court has, thus,
held that the Office carries its procedural burden of establishing a prima
facie case when its rejection satisfies the requirements of 35 U.S.C. § 132 by
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notifying the applicant of the reasons for rejection, “together with such
information and references as may be useful in judging of the propriety of
continuing the prosecution of [the] application.” See In re Jung, 637 F.3d
1356, 1362 (Fed. Cir. 2011). Put simply, all that is required of the Office is
that it set forth the statutory basis of the rejection in a sufficiently articulate
and informative manner as to meet the notice requirement of § 132. Id.', see
also Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990) (noting that
section 132 “is violated when a rejection is so uninformative that it prevents
the applicant from recognizing and seeking to counter the grounds for
rejection”).
Here, in rejecting the pending claims under § 101, the Examiner
analyzed the claims using the Mayo/Alice two-step framework, consistent
with the guidance set forth in the USPTO’s “2014 Interim Guidance on
Patent Subject Matter Eligibility,” 79 Fed. Reg. 74618 (Dec. 16, 2014), in
effect at the time the Final Office Action was mailed. Specifically, the
Examiner notified Appellant that claims 1—20 are directed to “a fundamental
economic practice and the abstract idea of a method of organizing human
activities”; that this is an abstract idea; and that the claims do not include
limitations that are “significantly more” than the abstract idea itself. (Final
Act. 3-4). In so doing, the Examiner notified Appellant 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. We find, therefore, that the Examiner set
forth a prima facie case of patent-ineligibility such that the burden of
production then shifted to Appellant to demonstrate that the claims are
patent-eligible.
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B. Streamlined Analysis
Appellant argues that the claims at issue “qualify for streamlined
analysis” under the 2014 Interim Guidance because they “do[] not seek to tie
up any judicial exception such that others cannot practice it.” (App. Br. 12—
13 (citing 14 Interim Guidance on Patent Subject Matter Eligibility, Fed.
Reg. 79, 241, pp. 74618-24 (December 16, 2014)). In particular, Appellant
argues that the pending claims “do not preempt the entire field of ‘allowing
consumers to shop for and optionally purchase merchandise,’” and therefore,
should be patentable under that streamlined analysis. (Id. at 13, 16 (citing
Non-Final Office Action dated October 3, 2014); see also Final Act. 4.)
We are not persuaded by Appellant’s arguments. We first note that the
Guidance does not carry the force of law, Enzo Biochem, Inc. v. Gen-Probe
Inc., 323 F.3d 956, 964 (Fed. Cir. 2002), as we must ensure we follow
binding precedent in evaluating whether the Examiner erred in rejecting the
claims as lacking patent-eligibility. Thus, even if the Examiner’s analysis is
not consistent with the Guidance, that inconsistency is not of itself
dispositive of Examiner error.
Although 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,” Alice Corp., 134 S. Ct. at
2354, 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,
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1379 (Fed. Cir. 2015) (citing Alice Corp., 134 S. Ct. at 2354). Although
“preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility.” Id.
Therefore, we are not persuaded the Examiner erred in not finding the
claims patentable under a streamlined eligibility analysis.
C. Application of Mayo/Alice Test
1. Step One: Whether the Claims Are Directed to a Patent-Ineligible
Concept
Addressing the first step of the Mayo/Alice analysis, Appellant asserts
that determining whether a claim is directed to an abstract idea involves
determining whether the claim is directed to (1) an idea of itself, e.g., an
“algorithm” or “mathematical formula”; or (2) a “fundamental economic
practice.” (App. Br. 13.) Arguing that “these two types of claims are the
only types of claims that the Court has positively identified as being within
the abstract ideas category” {id. (emphasis added)), Appellant insists that
none of the pending claims is directed to either an idea of itself or a
fundamental economic practice and, therefore, none of the claims is directed
to an abstract idea. {Id. at 14—15.)
Appellant acknowledges that the category of abstract ideas may
“include some methods of organizing human activity” (App. Br. 14) and also
notes that the Examiner takes the position that the claims are directed to an
abstract idea by virtue of being directed to a method of organizing human
activity {id. at 7 (citing Final Act. 3)). Appellant argues, however, that
whether a claim is directed to a method of organizing human activity is not
determinative of whether the claim is abstract. (App. Br. 15.) We agree
with Appellant that the Court did not suggest in Alice that all methods of
organizing human activities are directed to an abstract idea. (App. Br. 15.)
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But neither did the Court hold that only claims directed to an “idea of itself’
or a “fundamental economic practice” are directed to an abstract idea.
In addition, Appellant cannot reasonably deny, does it deny, that the
Court, in Alice, referred to the concept of risk hedging (which the Court, in
Bilski, identified as an abstract idea) as “a method of organizing human
activity.” Alice Corp., 134 S. Ct. at 2356. Appellant nevertheless argues
that the pending claims are not directed to a fundamental economic practice
because the claimed activity has not been shown “to have been performed
before” and thus cannot be “found to constitute a fundamental economic
practice long prevalent in our system of commerce.” (App. Br. 15.) We
disagree. First, the fact that the Examiner does not show Appellant’s
claimed invention “to have been performed before” (such as through a prior-
art rejection) does not inform us of error in the Examiner’s rejection under
§101. Although the novelty of the claims is not before us, even if novel and
nonobvious, a claim directed to a purely abstract idea is, nonetheless, patent-
ineligible. See Mayo, 566 U.S. at 90. Thus, an abstract idea does not
transform into an inventive concept just because the Examiner has not cited
prior art that discloses or suggests it. Indeed, “[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.” Diamond v. Diehr, 450
U.S. 175, 188-189 (1981).
Second, as the Examiner finds, and we agree, the series of steps that
are performed in the claims for the purpose of “offering shipping insurance”
involve particular behaviors that are “interpersonal activities” of “managing
relationships or transactions between people, social activities, or behaviors,”
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“satisfying or avoiding a legal obligation,” and “sales activities or
behaviors,” which are “subcategories of activities that the precedential
courts have found to be abstract idea under ‘certain methods of organizing
human activity.’” (Ans. 5.) Indeed, what Appellant claims here (offering
shipping insurance to mitigate a perceived risk of fraud) is a form of risk
management in a commercial transaction, which has been recognized by the
Supreme Court as a fundamental economic practice. E.g., Bilski v. Kappos,
561 U.S. 593 (2010) (method of entering into contracts to hedge risk in
commodity prices); Alice, 134 S. Ct. at 2356 (methods and systems for
“exchanging financial obligations between two parties using a third-party
intermediary to mitigate settlement risk”). The Court in both cases relied on
the fact that the contractual relations at issue constituted “a fundamental
economic practice long prevalent in our system of commerce.” Bilski, 561
U.S. at 611; Alice, 134 S. Ct. at 2356, 2357. Appellant, on the other hand,
presents no persuasive argument or technical reasoning to explain why the
pending claims are not directed to a method of organizing human activity
that qualifies for treatment as an abstract idea.
And, as noted above, we also are not persuaded of Examiner error by
Appellant’s argument that the pending claims are patent-eligible because the
claims do not preempt or otherwise tie up a judicial exception such that
others cannot practice it. (App. Br. 15—17; see also id. at 20.)
Because we agree with the Examiner, at step one of the Alice analysis,
that the claims are directed to an abstract idea, we turn 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.
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2. Step Two: Whether Additional Elements Transform The Idea Into
Patent-Eligible Subject Matter
Turning to the second step of the Mayo/Alice framework, Appellant
presents several arguments, which we address in turn. (App. Br. 17—21.)
Appellant first asserts that even if the claims are directed to an
abstract idea, the claims are nonetheless directed to patent-eligible subject
matter because the claims recite a “specially-configured computer.” (App.
Br. 18.) Yet there is no indication in Appellant’s Specification that any
specialized hardware is involved. To the contrary, the Specification
describes the claimed hardware as part of a generic computer system. (Spec.
49-50.) Thus, this argument is not persuasive.
Appellant further argues that claims are patent-eligible because the
claimed steps are specified at a “low level of generality” and “are not purely
conventional.” (App. Br. 18—19.) This argument is also not persuasive.
Even if those statements were true, an abstract idea can generally be
described at different levels of abstraction. That the claimed steps may be
specified at a low level of generality is an insufficient basis for finding that
the claims are not directed to an abstract idea. See Apple, Inc. v. Ameranth,
Inc., 842 F.3d 1229, 1240-1241 (Fed. Cir. 2016) (“An abstract idea can
generally be described at different levels of abstraction. As the Board has
done, the claimed abstract idea could be described as generating menus on a
computer, or generating a second menu from a first menu and sending the
second menu to another location. It could be described in other ways,
including, as indicated in the specification, taking orders from restaurant
customers on a computer.”).
It also is insufficient, without more, that the functionality, i.e., the
particular operations recited in the claims, e.g., “determin[ing], based on a
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fraud rate associated with a shipping destination address of the transaction,
whether to offer shipping insurance for the item,” as recited in claim 1, may
not be routine or conventional, absent some indication that the claim
elements are implemented using other than generic computer components.
“[A]fter Alice, there can remain no doubt: recitation of generic computer
limitations does not make an otherwise ineligible claim patent-eligible.”
DDR Holdings, LLCv. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (citing Alice Corp., 134 S. Ct. at 2358)).
Appellant further argues that the claims, when considered as “an
ordered combination,” recite significantly more than an abstract idea. (App.
Br. 19.) In particular, Appellant argues that the step of “causing a shipping
insurance policy to be issued,” as cited in independent claim 1 and
commensurately recited in independent claims 10 and 19, is significantly
more than an alleged abstract idea. (Id.) We disagree. The claim limitation
of actually issuing the shipping policy in response to an offer and an
acceptance for the policy is merely part of the abstract idea itself, i.e., the
fundamental economic practice of mitigating risk of fraud in ecommerce by
providing shipping insurance.
Appellant also argues the claims “purport to improve the functioning
of the computer itself.” (App. Br. 20.) In particular, Appellant asserts that
“the functioning of a computer is its degree of usefulness in aiding people in
performing particular tasks,” and that determining whether to offer shipping
insurance based on a “fraud rate associated with a shipping destination,” as
claimed, improves “the functioning of the computer in performing tasks
related to the issuance of shipping insurance.” (Id.) That argument is
likewise unpersuasive. Even accepting Appellant’s argument, there is a
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fundamental difference between computer functionality improvements, on
the one hand, and uses of existing computers as tools to perform a particular
task, on the other. Indeed, the Federal Circuit applied this distinction in
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) in rejecting
a § 101 challenge at the step one stage in the Alice analysis because the
claims at issue focused on a specific type of data structure, i.e., a self-
referential table for a computer database, designed to improve the way a
computer carries out its basic functions of storing and retrieving data, and
not on asserted advances in uses to which existing computer capabilities
could be put. Id. at 1335-36.
We find no parallel here between independent claims 1,10, and 19
and the claims in Enfish nor any comparable aspect in claims 1,10, and 19
that represents “an improvement to computer functionality.” The alleged
advantages that Appellant touts do not concern an improvement to computer
capabilities but instead relate to an alleged improvement in risk management
in e-commerce by correlating a risk of fraud with a shipping destination and
offering shipping insurance based on that risk—a process in which a
computer is used as a tool in its ordinary capacity.
Appellant further argues that the claims are directed to solving “a
technological problem in conventional industry practice of, for example,
automatically providing shipping insurance without incurring excessive risk
due to fraud,” and that “[t]his is a problem rooted in computer technology
and arising particularly in the realm of e-commerce and shipping.” (App.
Br. 21.) Based on that premise, Appellant contends that the present case is
similar to DDR Holdings. (Id.) But we find no parallel between the present
claims and those at issue in DDR Holdings.
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First, avoiding excessive risk due to fraud in e-commerce, as
Appellant’s claimed invention purports to address, is not a technical
problem; it is a business problem. And automatically correlating an option
of shipping insurance with a higher perceived risk of fraud associated with a
shipping destination is a commercial solution, not a technical solution. The
only portion of the pending claims that could be considered “technological”
is the generic computer hardware, i.e., the claimed “processor” used to
implement the claimed invention, which is not enough to confer subject
matter eligibility. See Alice Corp., 134 S. Ct. at 2358 (“[I]f a patent’s
recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an
abstract idea ‘on ... a computer,’ that addition cannot impart patent
eligibility.”) (internal citations omitted).
In DDR Holdings, in contrast, 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 Federal
Circuit, thus, held that the claims were directed to statutory subject matter
because they claimed a solution “necessarily rooted in computer technology
in order to overcome a problem specifically arising in the realm of computer
networks.” Id.
No such technological advance is evident in the present invention.
Unlike the situation in DDR Holdings, Appellant does not identify any
problem particular to computer networks and/or the Internet that the claims
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allegedly overcome. Instead, the claims merely employ generic computer
components to perform generic computer functions, i.e., receiving and
processing information.
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting independent claims 1, 10, and 19 under 35 U.S.C. § 101, or in
rejecting on the same basis dependent claims 2, 4, 6—11, 13, and 15—20,
which Appellant does not argue separately. (App. Br. 21.)
D. Dependent Claims 3, 5, 12, and 14
Appellant argues dependent claims 3, 5, 12, and 14 separately. (App.
Br. 22-23.)
Claims 3 and 12, which depend from independent claims 1 and 10,
respectively, recite “automatically and without human intervention file a
claim based on the seller failing to lodge the claim within a predetermined
period, via the electronic marketplace on which the transaction of the item
occurred.” (App. Br. (Claims App’x).) Appellant argues, in essence, that
because these claims are to be performed automatically instead of by a
human being, they are not directed to an abstract idea. (Id. at 22.) We
disagree.
Claims 3 and 12, unlike claims found non-abstract in prior cases,
merely employ generic computer technology to automate a step in a method
of organizing human activity as recited in the base claims, and, as such, do
not recite an improvement to a particular computer technology. Cf. McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15 (Fed. Cir.
2016) (finding claims not abstract because they “focused on a specific
asserted improvement in computer animation”). Claims 3 and 12 are not
directed to anything more technically specific than the base claims—for
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example, they do not focus on or provide technical detail about structures
that must be used to perform the claimed functions. Instead, the claims are
directed to the high-level function of filing an insurance claim regarding an
ecommerce transaction. Adding this step, even if automated using
conventional computer technology, does not remove the focus of these
claims from the abstract idea to which the underlying independent claims are
directed.
Claims 5 and 14, which depend from independent claims 1 and 10,
respectively, recite “cause the system to provide a shipping label that
incorporates information identifying the shipping insurance.” (App. Br.
(Claims App’x).) Appellant argues that actually providing a shipping label
“is a meaningful limitation that does not merely link the use of the alleged
abstract idea to a particular technological environment.” {Id. at 23.) We
disagree. The additional limitations added by claims 5 and 14 are merely
generic recitations of part of the process of shipping an item with shipping
insurance. As the Supreme Court has admonished, the prohibition against
patenting an ineligible concept, such as an abstract idea, “‘cannot be
circumvented by attempting to limit the use of the [abstract idea] to a
particular technological environment’ or adding ‘insignificant postsolution
activity.”’ Bilski, 561 U.S. at 610—11; see also Parker v. Flook, 437 U.S.
584, 588—90 (1978) (insignificant post-solution activity step found to be
insufficient to impart patentability). Claims 5 and 14, which merely recite
insignificant post-solution activity of providing a shipping label that
identifies shipping insurance that was offered and accepted, do not recite a
technological improvement in manufacturing devices or processes.
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For the foregoing reasons, we are not persuaded of error in the
Examiner’s § 101 rejection of dependent claims 3, 5, 12, and 14 and we,
therefore, sustain that rejection.
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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