Stephen Tucker

Patent Trials and Appeals Board

Dec 1, 2021

2021001745 (P.T.A.B. Dec. 1, 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.
15/783,374 10/13/2017 Stephen L Tucker 1748-2.840BS 5879
86636 7590 12/01/2021
BRUNDIDGE & STANGER, P.C.
1925 BALLENGER AVENUE, STE. 560
ALEXANDRIA, VA 22314
EXAMINER
ERB, NATHAN
ART UNIT PAPER NUMBER
3628
MAIL DATE DELIVERY MODE
12/01/2021 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 STEPHEN L TUCKER
____________

Appeal 2021-001745
Application 15/783,374
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and
JAMES P. CALVE, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 1–7. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies inventor Stephen L. Tucker as the
real party in interest (Appeal Br. 3).
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THE INVENTION
Appellant’s claims relate to the field of travel and travel related
services and more particularly to an autonomous computerized system for
managing exercisable rights (Spec. 1, Title).
Claim 1 is representative of the subject matter on appeal.
1. An electronic computer system for managing the
ownership of exercisable rights among members of said system
in accordance with a set of predetermined exercise rules, said
exercisable rights being provided by exercisable rights providers
for ownership by members of said system, each of said
exercisable rights being comprised of a plurality of separately
exercisable sub-rights, said computer system comprising:
a central processing unit (CPU) for controlling the
operation of said electronic computer system;
a storage unit coupled to said CPU for storing said
exercisable rights that are owned by members of said system; and
a clearing house coupled to said CPU for storing said
exercisable sub-rights that have been relinquished by their
owners, said clearing house comprising:
an administration module for administrating said clearing
house;
a membership module coupled to said administration
module for managing the members of said system; and
a communications module coupled to said administration
module for communicating the availability and status of said sub-
exercisable rights to said members.

THE REJECTIONS
Claims 1–7 are rejected under 35 U.S.C. § 101 as directed to a judicial
exception without significantly more.
Claims 1, 2, and 5 are rejected under pre-AIA 35 U.S.C. § 102(b) as
being anticipated by Muralidhar (US 2007/0208634 A1, Sept. 6, 2007).
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Claim 3 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Muralidhar in view of Robinson (US 2007/0288319 A1,
Dec. 13, 2007).
Claim 4 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Muralidhar in view of Robinson in further view of Nelson
(US 2004/0153374 A1, Aug. 5, 2004).
Claims 6 and 7 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Kohavi (US 2007/0073605 A1, Mar. 29, 2007), in
view of Pappas (US 2011/0307279 A1, Dec. 15, 2011), in further view of
Park (US 2012/0209673 A1, Aug. 16, 2012), in further view of Muralidhar.
FINDINGS OF FACT
We adopt the Examiner’s findings as set forth on page 13 of the Final
Office Action.
ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 1–7 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
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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, 217–218 (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 72–73 (2012)).
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.
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.
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 Fed. Reg. 50, 50–57 (Jan. 7, 2019) (“Guidance”).
The Examiner determines that the claims are directed to managing the
ownership of exercisable rights, each of which comprises a plurality of
separately exercisable sub-rights (Final Act. 9; Ans. 14). The Examiner
determines that the claim limitations relate to a certain method of organizing
human activity (Final Act. 9). The Examiner finds that the judicial
exception is not integrated into a practical application because the additional
elements when considered both individually and as an ordered combination
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do not integrate the abstract idea into a practical application. The Examiner
also finds that the claims do not include additional elements that are
sufficient to amount to significantly more than the judicial exception, either
individually or as on ordered combination (Id.).
The Specification discloses that the present invention is generally
directed to the field of travel and travel related services and more
particularly, is directed to an autonomous computerized system for
managing exercisable rights related to such travel and related services (Spec.
1). The Specification teaches that there is a need for an improved method
and apparatus for planning and sharing travel and travel related services. In
the present invention, a person can hold several options in different locations
and pay no upfront purchase price, no maintenance, or yearly assessment
fees, and no mortgage but receive a discounted rental fee (Spec. 8). The
Specification discloses that the invention relates to selling options for travel
and if one is unable to exercise the option purchased, he or she will have the
ability to make that option available to others in the marketplace in order to
minimize the loss of the investment (Spec. 8). As such, the Specification
teaches that the invention relates to the sale of options for travel related
services.
Consistent with this disclosure, claim 1 recites “storing said
exercisable rights that are owned by members,” “storing said exercisable
sub-rights that have been relinquished by their owners,” “administrating said
clearing house,” “managing the members of said system,” “communicating
the availability and status of said sub-exercisable rights to said members.”
We thus agree with the Examiner’s findings that the claims are
directed to managing the ownership of exercisable rights, each of which
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comprises a plurality of separately exercisable sub-rights. As such, the
Specification discloses and claim 1 recites a system for controlling the
behavior of persons concerning exercisable rights. Controlling the behavior
of persons concerning exercisable rights is a method of organizing human
behavior.
Also, we find the steps such as storing exercisable rights owned by
members, storing exercisable rights relinquished by members, storing
exercisable subrights and, communicating the availability and status of
sub-exercisable rights constitute “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.” 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, 1355 (Fed. Cir. 2014) (claims
directed to certain arrangements involving contractual relations are directed
to abstract ideas). Thus, we find that claim 1 recites the judicial exceptions
of a method of organizing human activity and in the alternative, a mental
process.
Turning to the second prong of the “directed to test,” claim 1 requires
a “central processing unit,” a “storage unit” and a “clearing house.” These
recitations do 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 does Appellant direct us to any indication, that the
operations recited in 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
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other than generic computer components to perform generic computer
functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation
of generic computer limitations does not make an otherwise ineligible claim
patent-eligible.”).
We also find no indication in the Specification that the claimed
invention affects 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 this regard, the recitation does not affect an improvement in the
functioning of CPU, storage unit or clearing house or other technology, does
not recite a particular machine or manufacture that is integral to the claim,
and does not transform or reduce a particular article to a different state or
thing. Id. Thus, claim 1 recites judicial exceptions that are not integrated
into practical applications and thus claim 1 is directed to abstract ideas.
Turning to the second step of the Alice analysis, because we find that
the claim 1 is directed to abstract ideas, the claim must include an “inventive
concept” in order to be patent-eligible, i.e., there must be an element or
combination of elements that are 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).
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The introduction of computer components, such as, the CPU, storage
unit, and clearing house into the claim does not alter the analysis at Alice
step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
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. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly 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.”
Alice, 573 U.S. at 223 (alterations in original) (citations omitted).
Instead, “the relevant question is whether the claim[] here do[es] more
than simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Id. at 225. It does not.
Taking the claim elements separately, the function performed by the
computer components at each step of the process is purely conventional.
Using a computer to retrieve, select, and apply decision criteria to data and
modify the data as a result amounts to electronic data query and retrieval—
one of the most basic functions of a computer. All of these computer
functions are well-understood, routine, conventional activities previously
known to the trading industry. See Elec. Power Grp., 830 F.3d at 1354; see
also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
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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.”). In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, “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.” SAP Am. Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168
(Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim add nothing that is not already present when the steps are
considered separately. The sequence of data reception-analysis-access-
display is equally generic and conventional or otherwise held to be abstract.
See Ultramercial, 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 ordering of the steps is, therefore, ordinary and conventional.
Claim 1 does not, for example, purport to improve the functioning of
the CPU, storage unit, or clearing house. As we stated above, claim 1 does
not affect an improvement in any other technology or technical field. Thus,
the claims at issue amount to nothing significantly more than instructions to
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apply the abstract idea of information access using some unspecified,
generic computer. 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. 7–12) Appellant has
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 emphasis, 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
Appellant’s argument that the invention recites an improvement in a
computer system (Appeal Br. 11). Specifically, Appellant argues that the
corresponding Specification and drawings describe a problem not previously
performable by a computer that improves computer-related technology by
allowing computer performance of a function not performable by a
computer, i.e., the management of exercisable rights and sub-rights. In
support of this argument, Appellant argues that the claims are similar to the
claims in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299
(Fed. Cir. 2016) (Appeal Br. 12).
The claims in McRO were directed to “a specific asserted
improvement in computer animation, i.e., the automatic use of rules of a
particular type.” McRO, 837 F.3d at 1314. “[T]he claimed improvement
[was] allowing computers to produce ‘accurate and realistic lip
synchronization and facial expressions in animated characters’ that
previously could only be produced by human animators. The claimed rules
in McRO transformed a traditionally subjective process performed by human
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artists into a mathematically automated process executed on computers.”
FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1094 (Fed. Cir.
2016) (citations omitted) (differentiating the claims at issue from those in
McRO).
Contrary to Appellant’s contention, claim 1 here is critically different
from those determined to be patent eligible in McRO. The claims in McRO
were directed to the creation of something physical—namely, the display of
“lip synchronization and facial expressions” of animated characters on
screens for viewing by human eyes. McRO, 837 F.3d at 1313. The claimed
improvement was to how the physical display operated (to produce better
quality images).
Unlike McRO, the claims here are not directed to an improvement that
changed what computers can do. Rather, the instant claims recite typical
computer functions that can be done on any general purpose computer. In
this regard, any general computer can store, transmit, and analyze data as is
recited in claim 1.
In view of the foregoing, we will sustain the rejection as it is directed
to claim 1. We will also sustain the rejection as it is directed to the
remaining claims subject to this rejection because Appellant does not argue
the separate eligibility of these claims.
PRIOR ART REJECTIONS
The Examiner has rejected claims 1, 2, and 5 under 35 U.S.C. § 102
as anticipated by Muralidhar. Appellant argues that Muralidhar does not
disclose separately exercisable sub-rights and directs our attention to
paragraph 13 of Muralidhar. Appeal Br. 4–6. We agree with the Examiner
that this subject matter is disclosed in paragraph 49 of Muralidhar which
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states that the creation of options includes the ability to split the rights to
post season tickets associated with season ticket ownership.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that Muralidhar does not disclose a clearing house for
storing exercisable sub-rights. Appellant bases this argument partly on the
argument that Muralidhar does not disclose separately exercisable sub-rights
we have found unpersuasive. In addition, Appellant argues that the
sub-rights in Muralidhar are sold and this cannot be considered a
relinquishment as claimed (Appeal Br. 6). We agree with the Examiner’s
response to this argument found on pages 10–12 of the Answer. We note
that the Specification does not provide a definition for “relinquished.” As
such, we find the ordinary and customary meaning of the term
“relinquished” to mean to give up or to give over possession or control
of. See Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/relinquished, retrieved Nov. 17, 2021. Thus, we
agree with the Examiner that the sale of options in Muralidhar is a
relinquishment. In addition, we note that Appellant’s own Specification
discloses that the rights or options in the clearing house may be relinquished
by selling the rights (Spec. 5, 7; Fig. 5).
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claims do not require that the exercisable
sub-rights be sold in order to be placed in the clearing house. We agree with
the Examiner that because there is no recitation that the sub-rights are not
sold in claim 1, this argument is not commensurate with the scope of claim 1
and therefore is not persuasive.
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In view of the forgoing, we will sustain this rejection as it is directed
to claim 1. We will also sustain this rejection as it is directed to claims 2
and 5 because Appellant has not argued the separate patentability of these
claims.
We will also summarily sustain the rejections of claims 3, 4, 6, and 7
under 35 U.S.C. § 103 because Appellant does not address these rejections
and these claims.
CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1–7 under
35 U.S.C. § 101 and in rejecting claims 1, 2, and 5 under 35 U.S.C. § 102
and claims 3, 4, 6, and 7 under 35 U.S.C. § 103(a).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7 101 Eligibility 1–7
1, 2, 5 102(b) Muralidhar 1, 2, 5
3 103(a) Muralidhar,
Robinson
3
4 103(a) Muralidhar,
Robinson, Nelson
4
6, 7 103(a) Kohavi, Pappas,
Park, Muralidhar
6, 7
Overall
Outcome
1–7

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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