Facebook, Inc.

Patent Trials and Appeals BoardMar 31, 2021

2020004516 (P.T.A.B. Mar. 31, 2021)

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. 14/450,183 08/01/2014 Benjamin Mark Dowling 2006.025US1 5528 160546 7590 03/31/2021 Mannava & Kang, P. C. 3201 Jermantown Road Suite 525 Fairfax, VA 22030 EXAMINER SHORTER, RASHIDA R ART UNIT PAPER NUMBER 3681 NOTIFICATION DATE DELIVERY MODE 03/31/2021 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): docketing@mannavakang.com fb-pdoc@fb.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BENJAMIN MARK DOWLING Appeal 2020-004516 Application 14/450,183 Technology Center 3600 ____________ Before ANTON W. FETTING, KENNETH G. SCHOPFER, and ROBERT J. SILVERMAN, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–9, 13–19, 21, and 22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Facebook, Inc. Appeal Br. 1. Appeal 2020-004516 Application 14/450,183 2 BACKGROUND The Specification “relates to advertisements presented by an online system, and particularly to detecting suspicious advertisements in which the advertisement content differs from content associated with landing pages associated with the advertisements.” Spec. ¶ 1. CLAIMS Claims 1 and 13 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A method comprising: retrieving advertisement content and an identifier of a landing page from an advertisement request (“ad request”) stored by an online system; identifying one or more advertisement anchor terms based on text in the advertisement content, an advertisement anchor term comprising a string of one or more words; selecting a meaning for association with each advertisement anchor term from a plurality of candidate meanings by: scoring each candidate meaning based on a comparison of each candidate meaning to one or more other terms in the advertisement content, and selecting the meaning for the advertisement anchor term based on the score for each candidate meaning; determining one or more advertisement content topics from the advertisement content, each advertisement content topic including an advertisement anchor term and the selected meaning for the advertisement anchor term, the one or more advertisement content topics representing subject matter included in the advertisement content; retrieving landing page content from the landing page linked to the identifier of the landing page; Appeal 2020-004516 Application 14/450,183 3 identifying one or more landing page anchor terms based on text in the landing page content, a landing page anchor term comprising a string of one or more words; selecting a meaning for association with each landing page anchor term from a plurality of candidate meanings by: scoring each candidate meaning based on a comparison of each candidate meaning to one or more other terms in the landing page content, and selecting the meaning for the landing page anchor term based on the score for each candidate meaning; determining one or more landing page topics associated with the landing page based on the retrieved landing page content, each landing page topic including a landing page anchor term and the selected meaning for the landing page anchor term, the one or more landing page topics representing subject matter included in the landing page content; scoring the ad request based at least in part on the one or more advertisement content topics and on the one or more landing page topics; determining whether the landing page includes content differing from content included in the advertisement content based at least in part on the scoring; and responsive to determining the landing page includes content differing from content included in the advertisement content, identifying the ad request as ineligible for presentation to users of the online system. Appeal Br., Claims App. REJECTIONS 1. The Examiner rejects claims 1–9, 13–19, 21, and 22 under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. Appeal 2020-004516 Application 14/450,183 4 2. The Examiner rejects claims 1–8, 13–18, 21, and 22 under 35 U.S.C. § 102(a)(1)/(a)(2) as anticipated by Calistri-Yeh.2 3. The Examiner rejects claims 9 and 19 under 35 U.S.C. § 103 as unpatentable over Calistri-Yeh in view of Jung.3 DISCUSSION Patent-Ineligible Subject Matter Appellant argues the claims as a group. Appeal Br. 5–9. We select independent claim 1 as representative, and the remaining claims will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Under 35 U.S.C. § 101, “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” 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. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (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 (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., 573 U.S. at 217. 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 2 Calistri-Yeh et al., US 7,912,868 B2, iss. Mar. 22, 2011. 3 Jung et al., US 2015/0161672 A1, pub. June 11, 2015. Appeal 2020-004516 Application 14/450,183 5 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.” Id. (quoting Mayo, 566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. at 217–18 (alteration in original). The U.S. Patent and Trademark Office (the “USPTO”) published revised guidance on January 7, 2019, for use by USPTO personnel in evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (the “2019 Revised Guidance”).4 That guidance revised the USPTO’s examination procedure with respect to the first step of the Mayo/Alice framework by (1) “[p]roviding groupings of subject matter that [are] considered an abstract idea”; and (2) clarifying that a claim is not “directed to” a judicial exception if the judicial exception is integrated into a practical application of that exception. Id. at 50. The first step, as set forth in the 2019 Revised Guidance (i.e., Step 2A), is, thus, a two-prong test. In Step 2A, Prong One, we look to whether the claim recites a judicial exception, e.g., one of the following three groupings of abstract ideas: (1) mathematical concepts; (2) certain 4 The MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) incorporates the revised guidance and subsequent updates at Section 2106 (9th ed. Rev. 10.2019, rev. June 2020). Appeal 2020-004516 Application 14/450,183 6 methods of organizing human activity, e.g., fundamental economic principles or practices, commercial or legal interactions; and (3) mental processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next determine, in Step 2A, Prong Two, whether the claim as a whole integrates the recited judicial exception into a practical application, i.e., whether the additional elements recited in the claim beyond the judicial exception, apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception. Id. at 54–55. Only if the claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application do we conclude that the claim is “directed to” the judicial exception, e.g., an abstract idea. Id. If the claim is determined to be directed to a judicial exception under revised Step 2A, we next evaluate the additional elements, individually and in combination, in Step 2B, to determine whether they provide an inventive concept, i.e., whether the additional elements or combination of elements amounts to significantly more than the judicial exception itself; only then, is the claim patent eligible. 2019 Revised Guidance, 84 Fed. Reg. at 56. Here, in rejecting independent claim 1, the Examiner determines that the claims recite “comparing topics associated with the advertisement content to topics associated with the landing page content to determine if the advertisement content and landing page content differ,” which is an advertising practice that is a method of organizing human activity. Final Act. 4. The Examiner also determined that the claim recites steps that can be performed in the human mind. Id. The Examiner then determined that the claim does not integrate the recited abstract ideas into any practical Appeal 2020-004516 Application 14/450,183 7 application and the claims do not include additional elements sufficient to amount to significantly more than the abstract idea. Id. at 5–9. Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A) We are not persuaded by Appellant’s argument that the Examiner erred in determining that claim 1 recites an abstract idea. The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335–36. Here, it is clear from the Specification (including the claim language) that claim 1 focuses on an abstract idea, and not on an improvement to technology and/or a technical field. The Specification makes clear that the alleged invention is inextricably tied to the field of advertising. The Specification is titled “DETERMINING SUSPICIOUS ADVERTISEMENTS BY COMPARING ADVERTISEMENT CONTENT AND CONTENT ASSOCIATED WITH AN ADVERTISEMENT LANDING PAGE.” The Specification discloses that it “generally relates to advertisements presented by an online system, and particularly to detecting suspicious advertisements in which the advertisement content differs from content associated with landing pages associated with the advertisements.” Spec. ¶ 1. The Specification discloses that advertisements are frequently associated with a landing page and an Appeal 2020-004516 Application 14/450,183 8 advertisement will usually direct a user to a landing page when the user interacts with the advertisement. Id. ¶ 2. Typically, the landing page is associated with the advertisement so that a user may obtain further information regarding the content of the advertisement. Id. ¶ 3. “However, malicious advertisers may ‘cloak’ an advertisement by specifying content for presentation by the advertisement that differs from content associated with the advertisement’s landing page.” Id. For example, the user may be presented with an advertisement for a product, but the landing page associated with the advertisement does not relate to the product and may contain “malicious content.” Id. In order to address this issue and enhance user experience, the Specification discloses that, “the online system reviews advertisement content and a landing page identified by an ad request to determine if the landing page is associated with the advertisement content.” Id. ¶ 4. Consistent with this disclosure, claim 1 recites a method comprising receiving advertisement content and a landing page identifier; identifying advertisement anchor terms based on text in the advertisement content; selecting a meaning for association with the anchor scoring meaning candidates and selecting the meaning based on the score; determining advertisement content topics for the advertisement content based on the anchor term and selected meaning; retrieving landing page content; identifying landing page anchor terms based on text in the landing page content; selecting meanings of landing page anchor terms based on comparison scoring; determining landing page topics based on anchor terms and meaning; scoring an ad request based on the advertisement content topics and landing page topics; determining whether the landing page Appeal 2020-004516 Application 14/450,183 9 includes content differing from the advertisement content based on the scoring; and identifying ad requests as ineligible for presentation to a user when the landing page includes content different than the advertisement content. The Examiner determined, and we agree, that these limitations, when given their broadest reasonable interpretation, recite comparing landing page content to advertisement content to determine any difference that might indicate malicious content, which is a commercial interaction in the form of advertising. Advertising is listed as one of the “[c]ertain methods of organizing human activity” and, therefore, is an abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 52. Further, we note that claim 1 merely recites steps for collecting and analyzing information related to advertisements. The Federal Circuit has held that abstract ideas include merely collecting data, analyzing data, and displaying the results of the collection and analysis, including when limited to particular content. See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (identifying the abstract idea of collecting, displaying, and manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing information by steps people go through in their minds, or by mathematical algorithms, and presenting the results of collecting and analyzing information, without more, as matters within the realm of abstract ideas); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (“As many cases make clear, even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” (quoting Elec. Power Grp., 830 F.3d at 1353, 1355 Appeal 2020-004516 Application 14/450,183 10 (citing cases))). Identifying rental property based on user criteria, i.e., a comparison process, also is substantially similar to other concepts that courts have held abstract. See, e.g., Berkheimer v. HP Inc., 881 F.3d 1360, 1366 (Fed. Cir. 2018) (concluding that parsing, comparing, storing, and editing data are abstract ideas); SmartGene, Inc. v. Advanced Biological Labs., 555 F. App’x 950 (Fed. Cir. 2014) (comparing new and stored information and using rules to identify options is an abstract idea). Regarding prong one, Appellant first argues that the claim does not encompass a fundamental economic practice. Appeal Br. 6. We are not persuaded of error. Regardless of whether the Examiner identifies the claims as reciting a fundamental economic practice, claim 1 nonetheless recites an abstract idea in the form of a method of advertising, which is a commercial interaction, as discussed. Appellant further argues that the claim does not recite a commercial or legal interaction. Id. In support, Appellant asserts that advertising is merely the context in which the claim is applied and if the advertisement context is removed, “it is clear that the subject matter of the claim does not relate to agreements in the form of advertising.” Id. at 6–7. We disagree. We find that the application, and in particular the claims, are inextricably tied to the advertising context. We note that each of the claims requires that the method is performed on advertising content. Further, the Specification does not describe any instance in which the methods disclosed are performed in any other context. Also, as discussed above, even stripped of the advertising context, the claim merely recites steps for collecting and analyzing data. Finally, because we determine the claims recite an abstract idea in the form of a commercial interaction, i.e., advertising, we are not persuaded of any reversible error in Appeal 2020-004516 Application 14/450,183 11 the Examiner’s additional finding that the also recite mental processes. See Final Act. 4; see also Appeal Br. 7–8. Turning to prong two, the 2019 Revised Guidance references MPEP, Ninth Edition § 2106.05(a)–(c) and (e) in non-exhaustively listing considerations indicative that an additional element or combination of elements may have integrated a recited judicial exception into a practical application. 2019 Revised Guidance, 84 Fed. Reg. at 55. In particular, the 2019 Revised Guidance describes that an additional element may have integrated the judicial exception into a practical application if, inter alia, the additional element reflects an improvement in the functioning of a computer or an improvement to other technology or technical field. Id. At the same time, it makes clear that merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea; adding insignificant extra-solution activity to the judicial exception; or only generally linking the use of the judicial exception to a particular technological environment or field are not sufficient to integrate the judicial exception into a practical application. Id. Here, we agree with the Examiner that the additional elements claimed are not sufficient to integrate the judicial exception into a practical application. See Final Act. 5–7. We find that the only additional elements beyond the abstract idea recited in claim 1, is the “online system.” The Specification discloses that the online system may include various software modules and that the methods disclosed can be performed using a general- purpose computer. See Spec. ¶¶ 16, 47, 48. Thus, we determine that claim 1 merely includes instructions to implement the abstract idea in a particular environment, i.e., the “online system,” which includes implementation on a Appeal 2020-004516 Application 14/450,183 12 general purpose computer. Accordingly, we determine that claim 1 does not integrate the abstract idea into a practical application. See Alice Corp., 573 U.S. at 223–24 (“[W]holly generic computer implementation is not generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.’” (alterations in original) (quoting Mayo, 566 U.S. at 77)). Here, Appellant argues that claim 1 includes additional steps that provide for an improvement in a technical field because they “allow for the method to discern situations where a landing page and advertisement content simply recite the same term irrespective of other text in the documents.” Appeal Br. 8. For example, Appellant asserts that steps for selecting a meaning for association with each advertisement anchor term and determining advertisement content topics are additional elements claimed. We disagree. The steps are merely data analyzation steps that are part of the abstract idea recited in the claim. Based on the foregoing, we determine that claim 1 is directed to an abstract idea under step one of the Mayo/Alice framework. Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B) Having determined under step one of the Mayo/Alice framework that claim 1 is directed to an abstract idea, we next consider under Step 2B of the 2019 Revised Guidance, the second step of the Mayo/Alice framework, whether claim 1 includes additional elements or a combination of elements that provides an “inventive concept,” i.e., whether claim 1 includes additional elements that amount to “significantly more” than the judicial Appeal 2020-004516 Application 14/450,183 13 exception itself. 2019 Revised Guidance, 84 Fed. Reg. at 56. We agree with the Examiner that it does not. As discussed, the only claim element recited in claim 1 beyond the abstract idea is an “online system” — and the Specification discloses that this system and the methods disclosed may be implemented on a general purpose computer. See Spec. ¶¶ 47, 48. Appellant does not contend to have invented a new type of online system or computer. Nor does Appellant otherwise contend that the online system is something other than a generic component. We are not persuaded, on the present record, that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 101. Accordingly, we sustain the rejection of claim 1, here. We also sustain the rejection of claims 2–9, 13–19, 21, and 22, which fall with claim 1. Anticipation We are persuaded of error in the rejection of independent claims 1 and 13 because the Examiner has not established that the art of record discloses all limitations of these claims. Independent claim 1 requires, inter alia, “selecting a meaning for association with each advertisement anchor term from a plurality of candidate meanings” and “determining one or more advertisement content topics” including an anchor term and the selected meaning of that anchor term. Appeal Br., Claims App. Claim 13 is a system claim that includes a computer-readable storage medium programmed to select a meaning and determine an advertisement content topic in the same manner as the method of claim 1. Id. With respect to these limitations, the Examiner relies on the following portion of Calistri-Yeh: Appeal 2020-004516 Application 14/450,183 14 According to one embodiment, at least one of the advertisements includes at least one data point, and the semantic representation associated with each of the at least one of the advertisements is a trainable semantic vector generated based on the at least one data point and the known relationships between the predetermined data points and the predetermined categories. Calistri-Yeh col. 2, ll. 58–64. The Examiner indicates that the “data point” of Calistri-Yeh can be a word or phrase, but the Examiner fails to explain how this portion of Calistri-Yeh discloses selecting a meaning of any advertisement anchor term, whether or not this is a word or phrase, or determining a content topic based on the anchor term and a selected meaning. See Final Act. 11. Without further explanation, we agree with Appellant that the Examiner has failed to demonstrate how Calistri-Yeh discloses the selection of a meaning for an advertisement anchor term or the determination of an advertisement content topic as claimed. For example, even if the data point recited in Calistri-Yeh is considered an advertisement anchor term, it is not clear, without further explanation, that the cited portion discloses selecting a meaning for that term or determining an advertisement topic based on the term and its selected meaning. Based on the foregoing, we are persuaded of error in the rejection of claims 1 and 13 as anticipated by Calistri-Yeh. For the same reasons, we are persuaded of error in the rejection of dependent claims 2–8, 14–18, 21, and 22. Accordingly, we do not sustain the anticipation rejection of claims 1–8, 13–18, 21, and 22. Obviousness With respect to the rejection of claims 9 and 19, the Examiner does not provide additional findings and/or reasoning that cures the deficiency in the rejection of the independent claims from which they depend. Thus, for Appeal 2020-004516 Application 14/450,183 15 the reasons provided above, we also do not sustain the rejection of claims 9 and 19 as obvious. CONCLUSION We AFFIRM the rejection of claims 1–9, 13–19, 21, 22 under 35 U.S.C. § 101. We REVERSE the rejections of claims 1–9, 13–19, 21, 22 under 35 U.S.C. §§ 102, 103. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–9, 13–19, 21, 22 101 Eligibility 1–9, 13– 19, 21, 22 1–8, 13–18, 21, 22 102(a)(1)/(a)(2) Calistri-Yeh 1–8, 13– 18, 21, 22 9, 19 103 Calistri-Yeh, Jung 9, 19 Overall Outcome 1–9, 13– 19, 21, 22 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136 (a)(l)(iv). AFFIRMED