Nicholasv.Bruno et al.

Patent Trials and Appeals Board

Dec 20, 2019

14476912 - (D) (P.T.A.B. Dec. 20, 2019)

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.
14/476,912 09/04/2014 Nicholas V. Bruno AUS920140275US1 1099
50170 7590 12/20/2019
IBM CORP. (WIP)
c/o WALDER INTELLECTUAL PROPERTY LAW, P.C.
1701 N. COLLINS BLVD.
SUITE 2100
RICHARDSON, TX 75080
EXAMINER
BUSS, BENJAMIN J
ART UNIT PAPER NUMBER
2125
MAIL DATE DELIVERY MODE
12/20/2019 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NICHOLAS V. BRUNO, DONNA K. BYRON,
JULIUS GOTH III, and DWI SIANTO MANSJUR
____________

Appeal 2018-009179
Application 14/476,912
Technology Center 2100
____________

Before MAHSHID D. SAADAT, JOHN P. PINKERTON, and
NORMAN H. BEAMER, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1, 3, 5, 6, and 8–23.2 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(a) (2017). Appellant identifies the real party in interest as
International Business Machines Corporation. Appeal Br. 2.
2 Claims 2, 4, and 7 have been canceled previously.
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STATEMENT OF CASE
Introduction
Appellant’s Specification describes a “data processing apparatus and
method . . . for tailoring question answering system output based on user
expertise.” See Spec. ¶ 1.
Exemplary claim 1 under appeal reads as follows:
1. A method, in a data processing system comprising
at least one processor and at least one memory, the at least one
memory comprising instructions which are executed by the at
least one processor and configure the processor to implement a
question answering system for categorizing a user providing a
text input, the method comprising:
receiving, by the question answering system executing a
question answering pipeline on the at least one processor of the
data processing system, an input question written by a user;
determining, by a question and topic analysis stage of the
question answering pipeline, a set of features associated with
the input question;
processing, by the question answering pipeline, the input
question and the set of features by a detection model within the
question answering pipeline, wherein the detection model
comprises a plurality of detectors corresponding to a plurality
of categories, wherein each of the plurality of detectors
determines whether the user fits a respective category based on
the input question and the set of features, wherein each detector
determines a presence probability that the user fits the
respective category based on the input question and the set of
features, determines an absence probability that the user fits a
default category based on the input question and the set of
features, and compares a difference between the presence
probability and the absence probability to a threshold;
categorizing, by the question answering pipeline, the user
input one or more of the plurality of categories based on a result
of comparing the difference between the presence probability
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and the absence probability to the threshold to form a user
categorization;
generating, by a hypothesis generation stage of the
question answering pipeline, a set of candidate answers to the
input question using a corpus of documents;
selecting and tailoring by a final confidence ranking and
merging stage of the question answering pipeline; one or more
candidate answers from the set of candidate answers based on
the user categorization to form a tailored answer output; and
outputting, by the question answering system, the tailored
answer output.
Appeal Br. 16–17 (Claims Appendix).
The Examiner’s Rejection
Claims 1, 3, 5, 6, and 8–23 stand rejected under 35 U.S.C. § 101 for
being directed to patent-ineligible subject matter. See Final Act. 2–4.

ANALYSIS
Principles of Law
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the
Supreme Court has long recognized an implicit exception to this section:
“Laws of nature, natural phenomena, and abstract ideas are not patentable.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
To determine whether a claim falls within one of these excluded categories,
the Court has set out a two-part framework. The framework requires us first
to consider whether the claim is “directed to one of those patent-ineligible
concepts.” Alice, 573 U.S. at 217. If so, we then examine “the elements of
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[the] claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)).
That is, we examine the claim for an “inventive concept,” “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.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting
Mayo, 566 U.S. at 72–73).
The PTO recently published revised guidance on the application of
section 101. USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) §§ 2106.05(a)–(c), (e)–(h) (9th ed.
2018)).
See 2019 Revised Guidance, 84 Fed. Reg. at 52, 55–56. Only if a claim (1)
recites a judicial exception and (2) does not integrate that exception into a
practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Revised Guidance, 84 Fed. Reg. at 56.
With these principles in mind, we turn to the § 101 rejection.
Contentions
The Examiner determines that the claims are directed to an abstract
idea of “receiving an input, determining features associated with the input
and processing the input and the determined features, categorizing based on
the input, generating candidate response to the input, selecting and tailoring
one or more of the responses, and outputting the tailored output.” Final Act.
2 (determining that claim 1 is similar to other identified abstract ideas such
as collecting information, analyzing it, and displaying certain results of the
collection and analysis (Electric Power Group)). See Electric Power Group,
LLC, v. Alstom, 830 F.3d 1350 (Fed. Cir. 2016).
The Examiner further determines no additional elements are recited in
claim 1 “that are sufficient to amount to significantly more when considered
both individually and as an ordered combination, than the judicial exception
(i.e. abstract idea).” Final Act. 3. The Examiner finds:
The additional limitations of claim 1 are a data processing
system comprising at least one processor and at least one
memory, the at least one memory comprising instructions
which are executed by the at least one processor and configure
the processor to implement a question answering system.
. . .
Generic computing hardware performing generic
computing tasks is insufficient to render the claim(s) as
directed to significantly more than the abstract idea.
Extrasolution activity is insufficient to render the claim(s)
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as directed to significantly more than the abstract idea.
Looking at the limitations as an ordered combination adds
nothing that is not already present when looking at the elements
taken individually. There is no indication that the combination
of elements improves the functioning of a computer or
improves another technology. Their collective functions merely
provide conventional computer implementations.
Final Act. 3–4.
Appellant argues that the claimed invention is not directed to an
abstract idea because the Examiner has overgeneralized the recited features.
Appeal Br. 7. Appellant argues, based on the analysis in McRO3 and Affinity
Labs,4 “the claimed invention improves a computer or other technology by
describing mechanisms for inferring categories of users and using the
categories to tailor answers produced by a computerized question answering
system.” Appeal Br. 7 (citing Spec. ¶¶ 23–26, 62, 63). Appellant also
argues “the claims recite a particular solution” and unlike McRO, “the
present claims present an improvement in the art of artificial intelligence or,
more specifically, question answering” and “replace a human question
answerer with a computerized question answerer and improve the output of
candidate answers based on a categorization of the questioning user.”
Appeal Br. 8. Additionally, Appellant asserts the Examiner’s position that
“the claims do not include additional elements that are sufficient to amount
to significantly more than the alleged judicial exception” because they are
not more than the abstract idea, fails to “address the specific features and

3 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir.
2016).
4 Affinity Labs of Texas, LLC v. DirecTV, LLC, 838 F.3d 1253 (Fed. Cir.
2016).
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activities recited in the body of the claim” or “address the claim features as
an ordered combination.” Appeal Br. 13. Appellant also argues, based on
the decision in Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018),
the Examiner’s analysis of whether the additional elements represent well-
understood, routine, conventional activity does not satisfy any of the
requirements in the Berkheimer Memorandum (April 19, 2018).
The Judicial Exception – Abstract Idea
Under the Revised Guidance, we begin our analysis by first
considering whether the claims recite any judicial exceptions, including
certain groupings of abstract ideas, in particular: (a) mathematical concepts,
(b) mental steps, and (c) certain methods of organizing human activities.
Turning to independent claim 1, we observe claim 1, other than executing
instructions, processing by a processor, and outputting the answer, recites,
inter alia, the following functions:
receiving, . . ., an input question written by a user;
determining, . . ., a set of features associated with the input
questions;
processing, . . ., the input question . . . by a detection model;
categorizing, . . ., a set of candidate answers to the input
question . . .;
generating, . . ., a set of candidate answers to the input question
. . .;
selecting and tailoring, . . ., one or more candidate answers
from the set of candidate answers . . .;
. . .
Claim 1 Appeal Br. 16–17 (Claims App.) (emphases added).
People can perform each of these steps in their minds or using pen and
paper. People can receive a question and categorize the question and
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provide an answer by, for example, reading the question and answer entries
from a database. Cf. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1372 (Fed. Cir. 2011) (determining that a limitation that “requires
‘obtaining information about other transactions that have utilized an Internet
address that is identified with the [ ] credit card transaction’—can be
performed by a human who simply reads records of Internet credit card
transactions from a preexisting database” (alteration in original)); Elec.
Power Grp., 830 F.3d at 1353 (“Accordingly, we have treated collecting
information, including when limited to particular content (which does not
change its character as information), as within the realm of abstract ideas.”).
Even if these steps did not encompass mental processes, the step would not
make claim 1 patent eligible because the step merely collects data. See
CyberSource, 654 F.3d at 1372 (“[E]ven if some physical steps are required
to obtain information from the database (e.g., entering a query via a
keyboard, clicking a mouse), such data-gathering steps cannot alone confer
patentability.”).
As for processing the input question by a detection model comprising
“detectors” for determining probabilities and their difference to a threshold
limitation, this limitation recites a mental process. The written description
describes determining probability of presence or absence of an input phrase
after some level of training, which relates to the function of thinking and
remembering in the human mind, see, e.g., Spec. ¶¶ 83–85, but does not
limit the claimed method to a particular mathematical function or algorithm.
This limitation is thus so broadly recited that it encompasses people using
functions that they can solve in their minds or using pen and paper to match
the best answers to questions. See CyberSource, 654 F.3d at 1373
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(determining that a claim limitation “is so broadly worded” that the
limitation “encompasses literally any method” for performing the limitation,
including “even logical reasoning that can be performed entirely in the
human mind”); Elec. Power Grp., 830 F.3d at 1354.
Finally, for generating a set of candidate answers to the input question
using a corpus of documents limitation, this limitation encompasses
accessing information from a corpus of data or information and analyzing it.
See Spec. ¶¶ 29, 31, 35–39 (disclosing exemplary corpus of data stored in a
database). People can look in a table of answers that are matched with
questions or mentally come up with an answer. See CyberSource, 654 F.3d
at 1372 (determining that “a person may ‘construct[ ] a map of credit card
numbers’ as required by step (b) by writing down a list of credit card
transactions made from a particular IP address” (alteration in original));
Elec. Power Grp., 830 F.3d at 1354 (“In a similar vein, we have treated
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.”).
Because each of the limitations recited in claim 1 encompasses an act
that people can perform in their minds or using pen and paper, claim 1
recites mental processes. See CyberSource, 654 F.3d at 1372. Claim 1
recites mental processes even though the claimed method calls for computer
components to perform the recited steps. See, e.g., Versata Dev. Grp., Inc.
v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have
examined claims that required the use of a computer and still found that the
underlying, patent-ineligible invention could be performed via pen and paper
or in a person’s mind.”); CyberSource, 654 F.3d at 1375 (“That purely
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mental processes can be unpatentable, even when performed by a computer,
was precisely the holding of the Supreme Court in Gottschalk v. Benson.”);
Revised Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest
reasonable interpretation, covers performance in the mind but for the
recitation of generic computer components, then it is still in the mental
processes category unless the claim cannot practically be performed in the
mind.”). Additionally, claim 1 essentially converts collected data into a new
form of data by receiving questions and outputting answers. See Appeal Br.
16–17 (Claims App.). The Federal Circuit has explained that processes that
simply convert data from one form to another generally recite an abstract
idea. See, e.g., Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758
F.3d 1344, 1351 (Fed. Cir. 2014) (“Without additional limitations, a process
that employs mathematical algorithms to manipulate existing information to
generate additional information is not patent eligible.”).
We also note the recited “outputting” functions of claim 1 merely
receive and present information. Courts have found such data gathering and
presenting steps to be insignificant extra-solution activity. See, e.g., In re
Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc), aff'd sub nom Bilski,
561 U.S. 593 (characterizing data gathering steps as insignificant extra-
solution activity).
Because we conclude all claims on appeal recite an abstract idea, as
discussed above, under Step 2A, Prong One, we proceed to Step 2A, Prong
Two. Although claim 1 recites an abstract idea based on these mental
processes, we, nevertheless, must still determine whether the abstract idea is
integrated into a practical application, namely whether the claim applies,
relies on, or uses the abstract idea in a manner that imposes a meaningful
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limit on the abstract idea, such that the claim is more than a drafting effort
designed to monopolize the abstract idea. See Revised Guidance, 84 Fed.
Reg. at 54–55. We, therefore, (1) identify whether there are any additional
recited elements beyond the abstract idea, and (2) evaluate those elements
individually and collectively to determine whether they integrate the
exception into a practical application. See id.
Integration of the Judicial Exception into a
Practical Application
The additional non-abstract limitations recited in independent claim 1
include a data processing system, a processor, at least one memory
comprising instructions to configure the processor to perform the recited
functions, question answering system, and a detection model. We determine
that claim 1 does not recite additional elements that integrate the abstract
ideas into a practical application. As discussed below, the additional
elements do not improve computer capabilities or a technical field. Nor do
they implement the abstract ideas on a particular machine that is integral to
the claims or effect a transformation or reduction of a particular article to a
different state or thing. Revised Guidance, 84 Fed. Reg. at 55. They simply
use computers as tools to apply the abstract ideas. “[M]ere recitation of a
generic computer cannot transform a patent-ineligible abstract idea into a
patent-eligible invention.” Alice, 573 U.S. at 223; see also Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335‒36 (Fed. Cir. 2016).
The above-mentioned elements are generic components that perform
generic functions of analyzing and processing data (questions and answers),
which do not integrate the abstract ideas into a practical application. See id.
at 55 n.31; Elec. Power Grp., 830 F.3d at 1353–54 (holding that recited
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steps of collecting information even when limited to particular content that
does not change its character as information and analyzing the information
by steps people go through in their minds or by mathematical algorithms,
without more, are abstract ideas).
These recited processing systems are disclosed as “one or more
computing devices 104 ( comprising one or more processors and one or
more memories, and potentially any other computing device elements
generally known in the art including buses, storage devices, communication
interfaces, and the like) connected to the computer network 102.” Spec.
¶¶ 34, 50. The storage system is disclosed as “flash memory, equivalent
non-volatile memory, or optical disk drives and the like,” without any details
of its configuration. Spec. ¶¶ 49, 145, 170. The executable instructions are
described as “computer readable program instructions may be provided to a
processor of a general purpose computer, special purpose computer, or other
programmable data processing apparatus to produce a machine.” Spec.
¶ 149.
It is well-settled that “mere recitation of a generic computer cannot
transform a patent-ineligible abstract idea into a patent-eligible invention.”
Alice, 573 U.S. at 223 (“Stating an abstract idea while adding the words
‘apply it with a computer’ simply combines those two steps, with the same
deficient result. Thus, if 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.”) (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 82 (2012)); see Revised
Guidance, 84 Fed. Reg. at 55 & n.30. The lack of details about these
elements also indicates that the “interface circuit” and “processor circuit” are
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generic computer components. See Intellectual Ventures I LLC v. Erie
Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile
interface is so lacking in implementation details that it amounts to merely a
generic component (software, hardware, or firmware) that permits the
performance of the abstract idea, i.e., to retrieve the user-specific
resources.”).
Additionally, we are not persuaded by Appellant’s arguments that
“[t]he problem being solved by the present invention is specific to
computerized question answering systems, because prior to the present
invention computerized question answering systems could not accurately
infer categorization of a questioning user and tailor answer output based on
the user categorization.” Appeal Br. 9–10 (citing the decision in McRO). In
McRO, the claims incorporated “specific,” “limited” rules that improved
computer animation. McRO, 837 F.3d at 1314–16. In contrast, claim 1
recites a series of broadly worded functions without meaningfully limiting
how the method performs the functions. Here, as discussed above, claim 1
uses generic computer components that perform generic functions to
produce answers to inputted questions. See Appeal Br. 16–17 (Claims
App.). Appellant has not shown that the computer components recited in
claim 1 function differently than generic computer components, let alone
function in an improved manner.
Thus, we determine that claim 1 is directed to an abstract idea.
Inventive Concept
Because we determine claim 1 is “directed to” an abstract idea, we
consider whether claim 1 recites an “inventive concept.” Under the Revised
Guidance, if a claim: ( 1) recites a judicial exception, and (2) does not
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integrate that exception into a practical application, we then look to whether
the claim adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or, simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception. See Revised Guidance, 84 Fed. Reg. at
56.
The Examiner determined claim 1 does not recite an inventive concept
because the additional elements in the claim “are all conventional computing
hardware recited at a high level of generality performing generic computing
tasks.” See Final Act. 3–4; see also Ans. 5. The Examiner further cited the
Berkheimer Memorandum and MPEP §2106.0S(f) to explain “merely
implementing an otherwise abstract idea on a generic computing hardware is
not ‘significantly more’, and is explicitly insufficient to render otherwise
ineligible claims as being patent-eligible.” Ans. 11–12.5
Appellant argues that the Examiner did not provide any evidence to
show the recited features of claim 1 are “well-understood, routine, or
conventional.” Appeal Br. 14. Appellant contends:

5 A specification demonstrates the well-understood, routine, conventional
nature of additional elements when it describes the additional elements as
well-understood or routine or conventional (or an equivalent term), as a
commercially available product, or in a manner that indicates that the
additional elements are sufficiently well-known that the specification does
not need to describe the particulars of such additional elements to satisfy
35 U.S.C. § 112(a). Memorandum on Changes in Examination Procedure
Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility
Decision (Berkheimer v. HP, Inc.) (Apr. 19, 2018) available at:
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF
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In the instant case, the question is whether the claimed
components and their activities are well-understood, routine,
and conventional. The lack of a rejection based on prior art
supports a conclusion that the activities are not well-
understood, routine, and conventional. The Examiner has not
established that the claims fail to recite significantly more than
the abstract idea as a matter of fact.
Id.
We are unpersuaded. First, Appellant’s claims can be distinguished
from patent-eligible claims such as those in Bascom, where the system
claims were directed to a “content filtering system for filtering content
retrieved from an Internet computer network,” which the court held were
directed to an abstract idea. Bascom, 827 F.3d at 1348–49. The court further
held the claims included an inventive concept in the ordered combination of
system components, including a local client computer and a remote ISP
server connected to the client computer and Internet computer network
providing for “the installation of a filtering tool at a specific location, remote
from the end-users, with customizable filtering features specific to each end
user.” Id. at 1350.
Appellant has failed to establish that claim 1 includes a similar or
analogous arrangement or “ordered combination” of components, and,
instead, makes only the conclusory statement that “the question answering
pipeline is processing ‘the input question and the set of features by a
detection model within the question answering pipeline.’” See Reply Br. 7.
Second, the additional elements are recited at a high level of generality, and
the written description provides no details about how the input questions are
processed by the question answering pipeline to show that the recited
process improves the underlying technology or provides a technological
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advancement, but rather, the additional elements process the recited mental
steps faster. See, e.g., Spec. ¶¶ 34, 49, 50, 145, 149, 170 (describing generic
components without detailed description of their specific processing
functions). See also USPTO, Memorandum on Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.) at 3 (Apr. 19, 2018)
(explaining that a specification that describes additional elements “in a
manner that indicates that the additional elements are sufficiently well-
known that the specification does not need to describe the particulars of such
additional elements to satisfy 35 U.S.C. § 112(a)” can show that the
elements are well understood, routine, and conventional). Consequently, we
find that the above-identified claim elements, at the high level of generality
recited in claim 1, constitute no more than what would have been well-
understood, routine and conventional to a skilled artisan. See Berkheimer v.
HP Inc., 881 F.3d 1360, 1368 (2018).
Conclusion
For at least the above reasons, we agree with the Examiner that
claim 1 is “directed to” an abstract idea and does not recite an “inventive
concept.” Accordingly, we sustain the Examiner’s rejection of claim 1 and
the remaining claims, for which Appellant does not offer any separate
arguments for patentability allowing them to fall with claim 1 (see Appeal
Br. 6–15), under 35 U.S.C. § 101.

DECISION SUMMARY
In summary:
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Claims
Rejected
Basis §  Affirmed Reversed
1, 3, 5, 6, 8–23 101 1, 3, 5, 6, 8–23

TIME PERIOD FOR RESPONSE
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)(1)(iv).

AFFIRMED