Peter Sirota et al.

Patent Trials and Appeals Board

Dec 11, 2019

14701377 - (D) (P.T.A.B. Dec. 11, 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.
14/701,377 04/30/2015 Peter Sirota 6924-92803 4894
136594 7590 12/11/2019
Kowert Hood Munyon Rankin & Goetzel (Amazon)
1120 S. Capital of Texas, Bldg 2, Ste 300
Austin, TX 78746
EXAMINER
HAYLES, ASHFORD S
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
12/11/2019 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):
patent_docketing@intprop.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER SIROTA, DON JOHNSON, GAURAV D. GHARE,
TUSHAR JAIN, and ALAN S. GELLER

____________

Appeal 2018-009038
Application 14/701,377
Technology Center 3600
____________

Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
GARTH D. BAER, Administrative Patent Judges.

BAER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final rejection of claims 75, 79–86, 90–94, 97, and 98, which are all pending
claims. Appeal Br. 11. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
BACKGROUND
A. The Invention
Appellant’s invention is directed to “facilitating use of invocable
services by applications in a configurable manner” in which “the invocable
services are Web services or other network-accessible services that are made
available by providers of the services for use by others in exchange for fees
defined by the service providers.” Abstract. Independent claims 75 and 86
are representative and reproduced below, with emphasis added to disputed
elements:
75. A computer-implemented method comprising:
receiving, by a configured computing device,
configuration information for an application that includes
terms to control use of an invocable service by an
executing copy of the application on behalf of an end user
who is using the executing copy, wherein the invocable
service has one or more distinct specified terms for use of
the invocable service;
determining, by the configured computing device
and based at least in part on the terms included in the
configuration information, that one or more indicated uses
of the invocable service by the executing copy of the
application on behalf of the end user are authorized, and
tracking the one or more indicated uses; and

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Amazon Technologies, Inc. as the real
party in interest. Appeal Br. 2.
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providing, by the configured computing device and
based at least in part on the tracking of the one or more
indicated uses, information about the one or more
indicated uses, to enable further interactions with the end
user related to the tracking.

86. A non-transitory computer-readable medium
having stored contents that cause a computing device to
perform automated operations including at least:
receiving, by the computing device, configuration
information for an application that includes terms to
control use of an invocable service by an executing copy
of the application on behalf of an end user who is using the
executing copy;
receiving, by the computing device, information
about one or more indicated invocations, by the executing
copy of the application and via a defined API (application
programming interface), of the invocable service on behalf
of the end user, including receiving a key that is specific
to the executing copy of the application and that is
supplied by the executing copy of the application to the
invocable service as part of the one or more indicated
invocations;
determining, by the computing device and based at
least in part on the terms included in the configuration
information and on the received information about the one
or more invocations, that the one or more indicated
invocations are authorized, and using the received key for
tracking the one or more indicated invocations by the
executing copy of the application; and
providing, by the computing device and based at
least in part on the tracking of the one or more indicated
invocations, information about the one or more indicated
invocations.
Appeal Br. 45, 48 (Claims Appendix).
B. The Rejections on Appeal
The Examiner rejects claims 75, 79–86, 90–94, 97, and 98 under 35
U.S.C. § 101 because the claimed invention is directed to a judicial
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exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more. Final Act. 10.2
The Examiner rejects claims 75, 79–86, 90–94, 97, and 98 under 35
U.S.C. § 103(a) as being unpatentable over Ferguson (US 5,819,092; Oct. 6,
1998), in view of Ciarlante (US 6,532,488 B1; Mar. 11, 2003). Final Act.
14.3

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Except where noted, we adopt
the Examiner’s findings and conclusions as our own, and add the following
primarily for emphasis.
A. Ineligible Subject Matter Rejection of Claims 75, 79–86, 90–94, 97,
and 98
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101 “because the claimed invention is directed to a judicial
exception (i.e., [a law of nature, a natural phenomenon, or an] abstract idea)
without ‘significantly more.’” Final Act. 10; see also Alice Corp. v. CLS
Bank Int’l, 573 U.S. 208, 217 (2014) (describing the two-step framework
“for distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts”).

2 The heading of the rejection incorrectly states that claims 75–98 are
rejected.
3 The heading of the rejection incorrectly states that claims 75–95 are
rejected.
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After the docketing of this appeal, the USPTO published revised
guidance on the application of § 101 (“Guidance”). See USPTO’s 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Memorandum”). Pursuant to the Guidance “Step 2A,” the office
first looks to whether the claim recites:
(1) Prong One: 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) Prong Two: additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then (pursuant to the
Guidance “Step 2B”) 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
(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 Memorandum Section III.
We are not persuaded the Examiner’s rejection is in error.
1. Step 2A
Appellant argues that “despite the entirety of the claim being directed
to inter-computer interactions and automated operations, the Office newly
provides a conclusory statement that the claims are thus directed to
‘organizing human activity.’” Reply Br. 12. Appellant contends that “[t]he
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Office has not provided any articulated basis for why the entirety of the
claim language fits into any of the identified types of abstract ideas, and
certainly fails to establish in its conclusory statements that the claims are
directed in any way to organizing human activity.” Reply Br. 12.
Prong One
Pursuant to Step 2A, Prong One of the Guidance, we are not
persuaded the Examiner erred in determining claims 75, 79–86, 90–94, 97,
and 98 recite an abstract idea. See Final Act. 5–13; Ans. 12–29;
Memorandum Section III(A)(1) (Prong One: Evaluate Whether the Claim
Recites a Judicial Exception), 84 Fed. Reg. at 54. Independent claim 75
recites “receiving . . . configuration information . . . to control use of an
invocable service,” “determining . . . that one or more indicated uses of the
invocable service . . . are authorized, and tracking the one or more indicated
uses,” and “providing . . . information about the one or more indicated uses,
to enable further interactions with the end user related to the tracking.”
These steps recite software (i.e., or “invocable”) service administration,
performed as part of offering the software. This administration comprises
the tasks necessary to (a) control and authorize the distribution of the service
and (b) track usage, in part for revenue accounting. Thus, this
administration has both operational and financial components.
The Specification supports that claim 75 is directed to administration
related to offering a service. For example, in the Configurable Service
Usage Facility (“CSUF”) system, an application creator or provider “may
interact with the CSUF system to monitor . . . use of network-accessible
services” or “fees to be paid to the application creator or provider.”
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Additionally, an “end user” may monitor using an “application” or
“invocable services,” as well as monitor for any “fees owed.” Spec. ¶ 35.
The “receiving,” “determining,” and “providing” steps of independent
claim 75 recite administrative steps performed as part of a commercial
software service. These steps are abstract ideas because they accomplish
both “fundamental economic principles or practices” and “commercial or
legal interactions.” Memorandum Section I, 84 Fed. Reg. at 52. Thus, this
claim portion recites “[c]ertain methods of organizing human activity.” Id.
Accordingly, claim 75 “recites a judicial exception . . . [and] requires further
analysis in Prong Two” of the Guidance. Memorandum, 84 Fed. Reg. at
54.4
Prong Two
Independent Claim 75
We also are not persuaded the Examiner erred pursuant to Step 2A,
Prong Two of the Guidance. Although we addressed the “providing”
limitation in the Prong One analysis above, we note also that this step is
displaying data, and is therefore also insignificant extra-solution activity.
Memorandum, 84 Fed. Reg. at 55; see also n.31. The limitations, thus,
represent the mere use of “a computer as a tool to perform an abstract idea,”
and “do[] no more than generally link the use of a judicial exception to a
particular technological environment.” Memorandum, 84 Fed. Reg. at 55;
see also Final Act. 8–9; Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d
1378, 1385 (Fed. Cir. 2019) (“[T]he purported advance is a process of
gathering and analyzing information of a specified content, then displaying

4 While the analysis of independent claims 86 and 94 under Prong One
yields the same result, independent claims 86 and 94 recite additional
elements considered below under the Prong Two analysis.
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the results, and not any particular assertedly inventive technology for
performing those functions.”) (citation and quotation marks omitted);
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1371 (Fed. Cir. 2015) (“Requiring the use of a software brain tasked with
tailoring information and providing it to the user provides no additional
limitation beyond applying an abstract idea, restricted to the Internet, on a
generic computer.”) (internal quotation marks omitted).

Independent Claims 86 and 94
Independent claim 86 includes receiving information via an “API”
(application programming interface) that includes a “key.” Specifically,
independent claim 86 recites:
receiving, by the computing device, information about one or
more indicated invocations, by the executing copy of the
application and via a defined API (application programming
interface), of the invocable service on behalf of the end user,
including receiving a key that is specific to the executing copy
of the application and that is supplied by the executing copy of
the application to the invocable service as part of the one or
more indicated invocations.

Independent claim 94 also recites receiving information via an API:
receiv[ing] information from the invocable service about one or
more indicated uses of the invocable service by the executing
copy of the application on behalf of the end user, wherein the
one or more indicated uses include one or more invocations, by
the executing copy of the application and via a defined API
(application programming interface), of the invocable service
on behalf of the end user, and wherein the received information
includes information that is supplied by the executing copy of
the application to the invocable service and that is specific to
the one or more indicated uses.

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Appellant argues these limitations, in conjunction with the other
“receiving,” “determining,” and “providing” steps of independent claim 86,
and the other “receive,” “track,” “determine,” and “provide” steps of
independent claim 94 establish that independent claims 86 and 94 are not
directed to an abstract idea. Appeal Br. 31–32, 36–37. In particular,
Appellant contends that both independent claims 86 and 94 relate to
controlling
inter-computer communications and interactions, which
provides technical benefits, such as to restrict invocations to a
particular volume (to prevent the invocable service from
becoming overloaded and non-responsible).

Appeal Br. 31, 37, citing Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299
(Fed. Cir. 2018) and McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299 (Fed. Cir. 2016).
We do not find this argument persuasive. The recited “API” and
“key” also represent the mere use of “a computer as a tool to perform an
abstract idea,” and “do[] no more than generally link the use of a judicial
exception to a particular technological environment.” Memorandum, 84
Fed. Reg. at 55. Appellant points to nothing in the Specification that might
support its assertion. Further, it is unclear whether the disclosure recites
sufficient support for the claimed “API,” as the only mention of an API
appears in the Specification’s “Background” section with no elaboration
elsewhere. See Spec. ¶ 4. In short, Appellant provides no factual support or
technical reasoning for the purported computer functionality improvements.
See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney
arguments or conclusory statements are insufficient to rebut a prima facie
case); see also Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1090
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(Fed. Cir. 2019) (“This invention makes the trader faster and more efficient,
not the computer. This is not a technical solution to a technical problem.”).
Accordingly, we determine independent claims 75, 86, and 94 do not
integrate the judicial exception into a practical application. See
Memorandum, 84 Fed. Reg. at 54. Because the “claim recites a judicial
exception and fails to integrate the exception into a practical application”
(id. at 51), “the claim is directed to the judicial exception” (id. at 54).5

2. Step 2B
Appellant argues “the pending claims actually recite functionality that
goes far beyond [‘]merely collecting, analyzing and providing data’ or
‘organizing human activity’ as is alleged” and such functionality is not
“well-understood, routine or conventional.” Reply Br. 16. Appellant,
however, has not shown the recited additional elements (or combination of
elements) amount to significantly more than the judicial exception itself.
See Final Act. 11–13; Ans. 22–26; Memorandum, Section III(B) (Step 2B),
84 Fed. Reg. at 56. The Examiner finds, and we agree, that Appellant’s
disclosure recites “server computing system 400 [that] includes a CPU 405”
that “demonstrates a well-understood, routine, [and] conventional nature of a
commercially available product.” Ans. 25, citing Spec. ¶ 51; see also Alice,
573 U.S. at 226. The Examiner further finds, and we agree, that the
disclosure admits that

5 Appellant makes similar arguments for dependent claims 80–84, 92, 93,
97, and 98. See Appeal Br. 34–36, 38–39, 41–43; Reply Br. 17. We do not
find these arguments persuasive for the reasons given above with respect to
independent claims 75, 86, and 94.
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remote procedure call (“RPC”) protocols have long existed that
allow a program on one computer to cause a program on
another computer to be executed.

Ans. 26, quoting Spec. ¶ 3.6 Based on the record before us, we agree with
the Examiner that the claimed additional elements and combination of
elements recite only generic components and steps that are well-understood,
routine, and conventional.
Accordingly, we agree with the Examiner that independent claim 75 is
patent ineligible. We conclude the same for independent claims 86 and 94,
and dependent claims 79–85, 90–93, 97, and 98.

B. Obviousness Rejection of Claims 75, 79–86, 90–94, 97, and 987
1. Obviousness Rejection of Claim 75
With respect to independent claim 75, Appellant contends only that
“the Ferguson and Ciarlante references, whether alone or in combination,
fail to disclose or otherwise render obvious any functionality for tracking or

6 We further note that the Specification’s “Background” section admits that
“there is also growing use of the Web to support the programmatic
interaction of remote applications to exchange information via defined APIs
(‘application program interfaces’).” Spec. ¶ 4.
7 We note that the disclosure does not appear to establish support for the
claimed “defined API” of claims 79, 80, 86, and 94, including support for
the functions the API performs, as no mention of either an application
programming interface or an API occurs, except in the Specification’s
“Background” section at paragraph 4. These terms were added via an
Amendment filed Oct. 24, 2017, with no corresponding support cited in the
disclosure. Should there be further prosecution, the Examiner may wish to
consider whether this apparent lack of support affects the analysis of the
relevant claims with respect the written description requirement.

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controlling any uses by an executing application of an invocable service in
any manner or for any reason.” Appeal Br. 24.
We are not persuaded. The Examiner finds, and we agree, that
Ferguson’s Fee Setter “allows the developer to specify an[y] fees that should
be charged to users or advertisers.” Final Act. 14. The Examiner also finds
“the metering tool provides instructions to the online service server
regarding the usage statistics that should be tracked.” Id. (citing Ferguson
25:57–61); see also Ferguson 30:11–12, 12:15–19. The Examiner further
finds Ciarlante teaches the
application instance is linked to the URL chosen by the user.
The user also specifies by email address or otherwise one or
more other users who are invited to join the application and, for
each such invited user, whether that user is required to pay in
order to join the application, step 134. For each such invited
user, the host system generates a unique secure entry code or
SEC and stores the SEC in a database file in association with
the application instance and a payment flag indicating whether
the user is required to pay, step 136. The host system or
application then automatically sends an email message to the
user, which includes the SEC, a response URL for linking to the
Welcome Center.

Final Act. 15–16 (citing Ciarlante 9:31–43). We see no error in the
Examiner’s detailed findings, and Appellant does not address these findings
in the Briefs. Appellant’s arguments regarding independent claim 86 center
around the claimed application programming interface (see Appeal Br. 11–
16), a limitation not contained in independent claim 75.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 75, as well as dependent claims 79 and 80, not argued
separately with particularity. See Appeal Br. 24.

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2. Obviousness Rejection of Claims 81 and 82
Appellant argues that “the noted ‘EKey’ of Ciarlante is not used in
any manner that is remotely related to the recited elements of claims 81 or
82.” Appeal Br. 25. We are not persuaded by Appellant. See, e.g., In re
Geisler, 116 F.3d at 1470 (attorney arguments or conclusory statements are
insufficient to rebut a prima facie case).
Regarding claim 81, the Examiner finds that “[Ciarlante 12:48–51]
discusses the hosting system vendor generates electronic keys, which are
specially encoded and encrypted files that are deliverable to ISPs by
download over the Internet.” Final Act. 21.
Regarding claim 82, the Examiner similarly finds, and we agree, that
“[Ciarlante 12:63–66] discusses [t]he hosting system allows ISP users to
purchase application instances as long as the EKey contains UIMs.” Final
Act. 22–23.
Because Ciarlante’s EKeys are intended to track purchasing
application instances, such EKeys, when combined with invoking
Ferguson’s Fee Setter, would permit the claimed “tracking of the one or
more indicated uses [that] includes storing identif[ication] information for
the application from the determining of the application.” Claims 81 and 82
(Appeal Br. 46–47). One skilled in the art would consider the application’s
identification information as information most relevant to a fee calculation,
as then fees could be varied depending on the application.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 81 and 82.

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3. Obviousness Rejection of Claims 83 and 84
Appellant argues that
the cited portion of Ciarlante lacks disclosure of any kind that a
user’s SEC [secure entry code] is ever passed from an
application to an invocable service that it invokes. Thus, this
SEC of Ciarlante is not used in any manner that is remotely
related to the recited elements of claims 83 and 84.

Appeal Br. 26. We agree with Appellant.
Regarding claim 83, the Examiner finds that Ciarlante
teaches wherein the one or more indicated uses of the invocable
service by the executing copy of the application include the
executing copy of the application supplying a user token that is
associated with the end user to the invocable service

because “[Ciarlante 9:36–38] discusses for each such invited user, the host
system generates a unique secure entry code or SEC.” Final Act. 24. The
Examiner further finds that Ciarlante teaches
receiving, by the configured computing device, information
from the invocable service that includes the user token supplied
to the invocable service

because “[Ciarlante 10:33–35] discusses [t]he application-generated event
messages are determined by the application provider and sent to the engine
by the [] log event API call from the application.” Final Act. 24.
However, Ciarlante teaches that an “invited user” uses the SEC to link
to the “Welcome Center” (Ciarlante 9:47–48), and if the SEC is valid,
further registration information is provided for billing and accounting
purposes. See Ciarlante 9:57–10:25. The portion of Ciarlante that the
Examiner cites as including the user token (Ciarlante 10:33–35) does not
indicate that the application-generated event message includes the SEC.
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Accordingly, we are constrained by the record to reverse the
Examiner’s obviousness rejection of claim 83, as well as claim 84 under the
same reasoning.

4. Obviousness Rejection of Claim 85
Appellant argues that the “cited portion of Ferguson (and more
generally, all of Ferguson as far as Appellant can determine) has nothing to
do with Web services.” Appeal Br. 27, citing Final Act. 27; Ferguson 7:1–
10. We are not persuaded by Appellant.
The Examiner finds, and we agree, that
[Ferguson 4:51–60] discusses [t]he fee structure for the online
service can handle fees levied against both users and third party
content providers. For example, a user can be levied fees for
logging onto an online service, performing searches, or
downloading information. Third party content providers can be
levied fees for submitting advertisements or for executing a
transaction with a user. Similarly, the fee setting tool also
allows the online service developer to assign a payment system
whereby users or content providers can be paid for certain
actions.

Final Act. 27. The quoted portion above establishes that Ferguson’s “fee
setting tool” is invoked when “logging onto an online service, performing
searches, or downloading information.” The Examiner’s finding is further
confirmed by Ferguson’s “Fee Computation,” “Fee Specifier,” and related
“fee structures.” See Ferguson 30:11–59.
Accordingly, we affirm the Examiner’s obviousness rejection of claim
85.

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5. Obviousness Rejection of Claim 86
Appellant argues that “Ferguson and Ciarlante lack any disclosure that
is related to the elements of independent claim 86.” Appeal Br. 15.
Particularly, Appellant contends that the Office fails “to identify any
elements in the cited art that are related to the disclosure,” including
receiving a key that is specific to the executing copy of the
application and that is supplied by the executing copy of the
application to the invocable service as part of the one or more
indicated invocations . . . using the received key for tracking
the one or more indicated invocations by the executing copy of
the application,

as recited in independent claim 86. Appeal Br. 15–16 (emphasis added).
We are persuaded the Examiner erred.
Regarding the “receiving a key” limitation, the Examiner finds that
[Ciarlante 11:21–25] discusses status push is a mechanism and
methodology by which user and invitation information is fed
from the host system to an application instance, [Ciarlante
11:38–42] discusses [that the] status push process provides the
following information for each SEC or invitation generated by
the application: the Secure Entry Code (SEC) used to access the
invitation, where each SEC is specific to a user access to a
particular application instance and the application instance is
providing the key by performing a status push.

Final Act. 29. Regarding the “using the received key for tracking the one or
more indicated invocations” limitation, the Examiner finds that “[Ciarlante
10:5–7] discusses [that during] use of the application instance, the host
system tracks use of the application for billing and accounting purposes.”
Id. (underlining omitted). However, this portion of Ciarlante does not
indicate that the application-generated event message includes the SEC for
tracking the one or more indicated invocations. Rather, Ciarlante teaches
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that “[t]he DIH [Domino Instant Host] host system uses three tools for
tracking users,” including
1. “registration tables in the DIH relational database, which store
account IDs that represent each user in each instance and username/e-
mail pairs that uniquely identify each user”;
2. “a cascaded Public Address Book”; and
3. “[a] Public Address Book.”
Ciarlante, 10:7–15. None of these tools appears to include, or otherwise use,
the SEC for tracking the indicated invocations.
Accordingly, we are constrained by the record to reverse the
Examiner’s obviousness rejection of claim 86, as well independent claim 94
commensurate in scope, and dependent claims 90–93, 97, and 98.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
75, 79–
86, 90–
94, 97,
98
101 75, 79–
86, 90–
94, 97,
98

75, 79–
86, 90–
94, 97,
98
103 Ferguson,
Ciarlante
75, 79–
82, 85
83, 84, 86,
90–94, 97,
98
Overall
Outcome
75, 79–
86, 90–
94, 97,
98

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The Examiner’s decision is affirmed because we have affirmed at
least one ground of rejection with respect to each claim on appeal. See 37
C.F.R. § 41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED