Penglin Huang et al.

Patent Trials and Appeals Board

Sep 24, 2019

14200667 - (D) (P.T.A.B. Sep. 24, 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.
14/200,667 03/07/2014 Penglin Huang 055478/511969 1093
826 7590 09/24/2019
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
RANKINS, WILLIAM E
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
09/24/2019 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PENGLIN HUANG AND WEIDONG WAYNE JIANG
____________

Appeal 2018-000542
Application 14/200,667
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, KENNETH G. SCHOPFER, and
TARA L. HUTCHINGS, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 8, 9, and 11–20, which constitute all the
claims pending in this application. Claims 1–7 and 10 have been cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
THE INVENTION
Appellants’ invention relates to predicting non-catastrophe and
catastrophe losses and more specifically modeling losses of perils connected
with non-catastrophe and/or catastrophe events. (Spec. 1, Title).
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Claim 8 is representative of the subject matter on appeal.
8. A method comprising:
receiving non-catastrophe input variables selected from a
group consisting essentially of exposure relativity, prior
frequency and loss ratios, prior cancellation notices, building
construction year, house vacancy ratio, establishment sizes,
commercial insurance score, median year built, building
construction description code, population density, and tenure of
a business;
calculating a non-catastrophe risk-adjusted loss cost
using the non-catastrophe input variables;
receiving catastrophe input variables selected from a
group consisting essentially of building construction year,
building construction description code, building number of
stories, building occupancy, and distance to coast;
calculating winter storm average annual loss, severe
thunderstorm annual loss, hurricane average annual loss, and
hurricane conditional tail expectation using the catastrophe
input variables;
combining by calculating a non-catastrophe and
catastrophe risk-adjusted loss cost as a sum of a first summand
which is the non-catastrophe risk adjusted loss, a second
summand which is the winter storm average annual loss, a third
summand which is the severe thunderstorm average annual loss,
a fourth summand which is the hurricane average annual loss,
and a fifth summand which is the hurricane conditional tail
expectation; and
electronically pricing an insurance policy based on the
calculations.

THE REJECTION
Claims 8, 9 and 11–20 are rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more.
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Claims 8, 9, and 11–20 are rejected under 35 U.S.C. §112, first
paragraph as failing to comply with the written description requirement.

ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claim 8, 9, and 11–20 under 35 U.S.C.
§ 101.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. . . . If so, . . . then ask, “[w]hat
else is there in the claims before us?” . . . To answer that
question, . . . consider the elements of each 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. . . . [The Court]
described step two of this analysis as 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.”
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012))
(citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the [S]pecification, based on whether ‘their character
as a whole is directed to excluded subject matter.’” See Enfish, LLC v.
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Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp., 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.
In so doing we apply a “directed to” two prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 FR 50, 50–57 (Jan. 7, 2019) (“Guidance”).
The Examiner determines that the claims are directed to calculating
insurance related data. (Final Act. 5)
The Specification states that property insurance provides protection
against most risks to property, such as fire, theft, and weather damage. This
includes specific forms of insurance such as fire insurance, flood insurance,
earthquake insurance, home insurance, or boiler insurance. (Spec. 1). The
invention comprises a non-catastrophe prediction calculator, the hardware
structure of which is suitable for analyzing non-catastrophe input variables
to predict non-catastrophe losses connected with commercial property in a
county in a state. The system further comprises a catastrophe prediction
calculator, the hardware structure of which is capable of analyzing
catastrophe input variables to predict catastrophe losses, i.e., winter storm
losses, severe thunderstorm losses, and hurricane losses. (Spec. 2, ll. 20–23).
The invention combines non-catastrophe losses with catastrophe losses.
(Spec. 14, ll. 20–22). As such, the Specification supports the Examiner’s
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determination that the invention is related to calculating insurance related
data.
The recitations in claim 8 also support this determination by reciting
“receiving non-catastrophe input variables,” “calculating a non-catastrophe
risk-adjusted loss cost,” “receiving catastrophe input variables,” “calculating
winter storm average annual loss,” “combining by calculating a non-
catastrophe and catastrophe risk-adjusted loss.” These recitations relate to
calculating insurance related data.
We thus agree with the Examiner’s findings that claim 8 is directed to
calculating insurance related data and more specifically calculating
insurance related data including combining non-catastrophe and catastrophe
loss cost. As claim 8 recites “calculating a non-catastrophe risk-adjusted
loss cost,” “calculating winter storm average annual loss,’ “combining by
calculating a non-catastrophe and catastrophe loss cost” and “electronically
pricing an insurance policy,” claim 8 recites steps related to a mathematical
concept, which is a judicial exception. Guidance, 84 Fed. Reg. at 52
In addition, as the steps of claim 8 recite steps related to insurance,
claim 8 recites the judicial exception of certain methods of organizing
human activity or a fundamental economic practice. Guidance 84 Fed. Reg.
at 52.
Also, we find the steps of claim 8 constitute “analyzing information
by steps people go through in their minds, or by mathematical algorithms,
without more, which are essentially mental processes within the abstract-
idea category.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016); see also buySAFE, Inc. v. Google, Inc., 765 F.3d 1350,
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1355 (Fed. Cir. 2014) (claims directed to certain arrangements involving
contractual relations are directed to abstract ideas).
Thus, we find that claim 8 recites a mathematical concept, certain
methods of organizing human activity, i.e., a fundamental economic
practice, and a mental process, all of which are judicial exceptions.
Guidance, 84 Fed. Reg. at 52.
Turning to the second prong of the “directed to” test, the Examiner
finds that claim 8 recites electronically pricing an insurance policy and a
computer readable medium comprising instructions and that these
limitations reflect the use of generic components to perform well-
understood, routine, and conventional operations in the field of insurance.
In regard to the recitation of receiving input variables, the Examiner finds
that the mere insignificant pre-solution activity, e.g., data gathering, fails to
transform the claims into patent-eligible subject matter. Considered as a
whole, the claims are nothing more than an implementation of the
calculation of various insurance costs. (Final Act. 5).
In addition to the judicial exceptions discussed above, claim 8
requires electronically pricing. The recitation of the words “electronically
pricing” does not impose “a meaningful limit on the judicial exception, such
that the claim is more than a drafting effort designed to monopolize the
judicial exception.” Guidance, 84 Fed. Reg. at 53.. We find no indication in
the Specification, nor do Appellants direct us to any indication, that the
operations recited in independent claim 1 invoke any inventive
programming, require any specialized computer hardware or other inventive
computer components, i.e., a particular machine, or that the claimed
invention is implemented using other than generic computer components to
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perform generic computer functions. See DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014). In fact, claim 8
does not even recite a computer.
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention or that otherwise indicates that the
claimed invention integrates the abstract idea into a “practical application,”
as that phrase is used in the revised Guidance. See Guidance, 84 Fed. Reg.
at 55.
In view of the foregoing, we agree with the Examiner that claim 8
recites a judicial exception that is not integrated into a practical application
and as such, claim 8 is directed to an abstract idea.
Turning to the second step of the Alice analysis, because we find that
the claims are directed to abstract ideas, the claims must include an
“inventive concept” in order to be patent-eligible, i.e., there must be an
element or combination of elements that is sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73).
Considered as an ordered combination, the recitation of
“electronically pricing” adds nothing that is not already present when the
steps are considered separately. This recitation is broad enough to include a
generic computer or even an off the shelf electronic calculator. The
sequence of data reception-analysis-access/display is equally generic and
conventional or has otherwise been held to be abstract. See Ultramercial,
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Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of
receiving, selecting, offering for exchange, display, allowing access, and
receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed
Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that
sequence of data retrieval, analysis, modification, generation, display, and
transmission was abstract), Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding sequence of
processing, routing, controlling, and monitoring was abstract).
The claims do not, for example, purport to improve the functioning of
any technology or technical field. Appellants have not directed our attention
to a disclosure in the Specification spelling out different non-generic
equipment and parameters that might be used to practice the steps of claim
8. Thus, claim 8 amounts to nothing significantly more than instructions to
apply the abstract ideas using some unspecified, generic electronic
calculator. Under our precedents, that is not enough to transform an abstract
idea into a patent-eligible invention. See Alice, 573 U.S. at 226.
We have reviewed all the arguments (Appeal Br. 9–85; Reply Br. 9–
23) Appellants have submitted concerning the patent eligibility of the claims
before us that stand rejected under 35 U.S.C. § 101. We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the Examiner hides all of these claim limitations
away to front a façade of “receiving input variables” and fails to include the
specific recitations of claim 8. In this regard, Appellants characterize what
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the claimed subject matter is directed to at a different level of abstraction
than what the Examiner has characterized it to be directed to. See Apple,
Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240–41 (Fed. Cir. 2016). An
abstract idea can generally be described at different levels of abstraction. As
the Examiner has done, the claimed abstract idea could be described as
calculating insurance pricing. It could be described in other ways, including,
the specific recitations in claim 8 such as Appellants have done. But its
abstract nature remains the same. In this regard, the steps of “receiving non-
catastrophe input variables” and “calculating a non-catastrophe input
variables,” “receiving catastrophe input variables,” “calculating winter storm
average annual loss,” and “combining by calculating a non-catastrophe and
catastrophe risk-adjusted loss” are specific steps that are performed in
calculating insurance related data, and therefore, the Examiner’s description
of the abstract idea encompasses Appellants’ description of what the claims
are directed to. Therefore, while the invention of claim 8 can be
characterized using the specific recitations in the claim, which is far more
specific than the Examiner’s description or our description of the recitations
in claim 8, all describe an abstract idea.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the claims are not directed to a mathematical
formula. (Brief 16). We agree with the Examiner’s response to this
argument. (See Ans. 11–12). In any case, as we have determined that claim 8
recites the judicial exceptions of a fundamental economic practice and a
mental process, the claims recite a judicial exception even if the Appellants
are correct that the claims do not recite a mathematical concept.
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We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the claims improve an existing technological
process. (Appeal Br. 24). In support of this argument, Appellants explain
that the improvement over existing technical processes recited in the claims
is the innovation of the calculator in which the non-catastrophe peril
predictions are combined with the catastrophe peril predictions to reveal
greater knowledge about perils through data science. However, these
aspects of claim 8 are encompassed in the abstract idea of calculating
insurance data. Appellants’ argument, therefore, relies on the ineligible
concept itself to establish that the claims recite an inventive concept. But
“[i]t has been clear since Alice that a claimed invention’s use of the
ineligible concept to which it is directed cannot supply the inventive concept
that renders the invention ‘significantly more’ than that ineligible concept.”
BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
Moreover, no matter how much of an advance in the insurance field the
claims recite, the advance lies entirely in the realm of abstract ideas, with no
plausibly alleged innovation in the non-abstract application realm.” SAP
America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018); see
also id. at 1168.
We are also not persuaded of error on the part of the Examiner by
Appellants’ argument that other Examiners examining other patent
applications have found similar subject matter patent-eligible as those other
patent applications are to different subject matter and different claims and as
such are not relevant to this application. (Appeal Br. 33).
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the Examiner has failed to explain why particular
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requirements of the claims are either data gathering or insignificant pre-
solution activity. (Appeal Br. 37). In this regard, Appellants argue that the
claims do not recite generically “receiving input variables” but rather
receiving the input of particular variables recited such as “non-catastrophe
input variables.”
First, the Examiner determined that the steps of receiving input
variables was a recitation of mere insignificant pre-solution activity, e.g.,
data gathering. These limitations do not reflect a patent-eligible application
of the patent-ineligible abstract idea. To the contrary, these limitations are
recited at a high-level of generality and comprise routine techniques and
extra solution activity that does not impart a sufficient inventive concept to
claim 1. See Mayo, 566 U.S. at 79 (“well-understood, routine, conventional
activity previously engaged in by scientists who work in the field . . . is
normally not sufficient to transform an unpatentable law of nature into a
patent-eligible application of such law.”); see also Parker v. Flook, 437 U.S.
584, 590 (1978) (“The notion that post-solution activity, no matter how
conventional or obvious in itself, can transform an unpatentable principle
into a patentable process exalts form over substance.”). Appellants have not
persuasively shown otherwise.
In addition, we agree with the Examiner that it makes no difference at
all what the particular input variables are. Appellants may choose whatever
input variables they desire from the universe of input variables. (Final Act.
3). The specific type of data, i.e., the precise data recited in claim 8, is
nonetheless data that is received in a routine, conventional and well-
understood manner.
We are not persuaded of error on the part of the Examiner by
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Appellants’ argument that the inventive concept is recited in the specific
recitations of claim 8. When performing this step of the analysis, it is the
recitations in addition to the abstract idea that are examined to determine
whether they amount to significantly more than the abstract idea. The
recitations that Appellants argue are significantly more than the abstract
idea, such as “receiving non-catastrophe input variables selected from a
group consisting essentially of exposure relativity,” relate to a recitation of
the abstract idea of calculating insurance related data including combining
by calculating non-catastrophe and catastrophe cost.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the Examiner has not provided evidence that the
claims are not directed to significantly more than the abstract idea of
calculating insurance related data including combining by calculating non-
catastrophe and catastrophe cost. The only recitation in claim 8 that is not
included in the abstract idea is the recitation that the pricing is done
electronically. Calculating an end result from various variables is a routine
computer function that may be performed by any computer system. Courts
have regarded basic computer functions, such as the additional elements that
the Examiner identifies, as insufficient to establish significantly more than
an abstract idea, per Step 2B. See Interval Licensing, LLC v. AOL, Inc., 896
F.3d 1335, 1345 (Fed. Cir. 2018) (the claim elements “merely recite routine
and conventional steps in carrying out the well-established practice of
accessing data from an external source and displaying that data on a user’s
device” that “offer ‘nothing more than generic, pre-existing computer
functionality”’) (citation omitted); Versata Dev. Group, Inc. v. SAP Am.,
Inc., 793 F.3d 1306, 1334, (Fed. Cir. 2015) (arranging, storing, and
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retrieving information “are well-understood, routine, conventional activities
previously known to the industry”); Intellectual Ventures I LLC v. Capital
One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“[T]he interactive
interface limitation is a generic computer element”); OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (relying on a
computer to perform routine tasks more quickly or more accurately is
insufficient to render a claims patent-eligible); Bancorp Servs., L.L.C. v. Sun
Life Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“The computer
required by some of Bancorp's claims is employed only for its most basic
function, the performance of repetitive calculations, and as such does not
impose meaningful limits on the scope of those claims.”); In re Katz
Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir.
2011) (“Absent a possible narrower construction of the terms ‘processing,’
‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any
general purpose computer without special programming.”): Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (holding that considering claims reciting data retrieval, analysis,
modification, generation, display, and transmission as an “‘ordered
combination”’ reveals that they “amount to ‘nothing significantly more’ than
an instruction to apply [an] abstract idea” using generic computer
technology) (internal citation omitted).
In view of the foregoing, we will sustain the rejection as it is directed
to claim 8. We will also sustain the rejection as it is directed to claims 9 and
11–19, which depend from claim 8, for the same reasons as each of these
claims may limit the scope of the abstract idea to which independent claim 8
is directed but their character remains unchanged, especially given that these
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dependent claims provide no insight to improvements in computer
functionality beyond what one would expect from using a generic computer
as a tool in performing the scheme as claimed. For example, claim 9, recites
how the non-catastrophe risk adjusted loss is calculated, and claim 11 recites
how the winter storm average annual loss, severe thunderstorm average
annual loss, and the hurricane average annual loss are calculated. The other
dependent claims include other similar recitations. Therefore, we determine
that the limitations of the dependent claims do not meaningfully limit the
claims beyond the claimed abstract idea.
We will also sustain the rejection as it is directed to claim 20 for the
same reasons discussed in regard to the rejection of claim 8 because
Appellants’ arguments regarding the patent-eligibility of this claim mirrors
Appellants’ arguments which we found unpersuasive in regard to the
eligibility of claim 8.

35 U.S.C. §112 REJECTION
We will sustain the Examiner’s rejection of claims 8, 9, and 11–20
because we agree with the Examiner that the Specification fails to include
the algorithms or formulas used to make the various calculations recited in
the claims. The Examiner finds that the Specification does not disclose how
the two calculation steps are performed. (Final Act. 4). As such, we do not
agree with Appellants that the Examiner failed to identify claim limitations
not disclosed in the Specification. (Brief 55). The issue here is clear, i.e.,
whether the Specification discloses the two calculations steps so as to
comply with the requirements of 35 U.S.C. §112(a), first paragraph.
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The disclosure is devoid of how the various calculations are
performed, pursuant to the claim limitations, such as
“calculating a non-catastrophe risk-adjusted loss” or “calculating winter
storm average annual loss.” Particularly, no algorithm or algorithm
description is provided with respect to such calculations.
We agree with the Examiner’s response to this argument in the
Answer at pages 16–20 and adopt same as our own. Specifically, we note
that Appellants direct our attention to Figures 2B–2G and pages 5–8 of the
Specification as support for the two calculating steps. (Appeal Br. 55).
Figures 2B–2G depict various steps of the invention as a flowchart. Figure
2G in step 2094 states that the method calculates a non-catastrophe risk
adjusted loss cost, which is a product of multiplicands. In steps 2088 and
2090, the flowchart indicates that the method calculates a policy level non-
catastrophe loss ratio relativity and calculates a lost costs and that each of
these numbers is a multiplicand in calculating a non-catastrophe risk.
However, there is no depiction in these figures of how the policy level non-
catastrophe loss ratio relativity and the loss costs are calculated. Pages 5–8
of the Specification discuss these flow charts but do not provide any further
information of how the various multiplicands are calculated. Thus, we do
not find any indication that Appellants possessed the means for achieving
the calculating steps. See Vasudevan Software, Inc. v. MicroStrategy, Inc.,
782 F.3d 671, 683 (Fed. Cir. 2015) (“The more telling question [for written
description analysis] is whether the specification shows possession by the
inventor of how accessing disparate databases is achieved.”); see also In re
Wilder, 736 F.2d 1516, 1521 (Fed. Cir. 1984) (Affirming a rejection for lack
of written description because the specification does “little more than
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outlining goals appellants hope the claimed invention achieves and the
problems the invention will hopefully ameliorate.”); Ex parte Smith, Appeal
2012-007631, slip op. at 21 (PTAB Mar. 14, 2013) (informative) (“Beyond
general statements of the function to be performed, which, at most, may
render the claimed function obvious, the inventor has not shown how the
recited opinion timeline is generated,” which “is not sufficient because a
description that merely renders the invention obvious does not satisfy the
written description requirement.”).
In view of the foregoing, we will sustain this rejection as is directed to
claim 8 and claims 9, 11–19 dependent therefrom. We will also sustain this
rejection of claim 20 for the same reason.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 8, 9, and
11–20 under 35 U.S.C. § 101.
We conclude the Examiner did not err in rejecting claims 8, 9, and
11–20 under 35 U.S.C. §112(a).

DECISION
The decision of the Examiner to reject claims 8, 9, and 11–20is
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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED