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.
13/679,830 11/16/2012 Steven W. Lundberg 3431.009US1 1010
21186 7590 09/30/2019
SCHWEGMAN LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
GREGG, MARY M
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
09/30/2019 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):
SLW@blackhillsip.com
uspto@slwip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte STEVEN W. LUNDBERG, LARS OLOF HUGO SVENSSON,
PETER W. REBUFFONI, TYLER L. NASIEDLAK, JILL D. YOUNG,
PIERS A. BLEWETT, and JOSEPH R. WILLIAMS
____________
Appeal 2018-009240
Application 13/679,830
Technology Center 3600
____________
Before JOHN A. JEFFERY, DENISE M. POTHIER, and
JUSTIN BUSCH, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1 and 3–17, which constitute all the claims pending
in this application. Claim 2 has been cancelled. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as BLACK
HILLS IP HOLDINGS, LLC. Appeal Br. 2.
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STATEMENT OF THE CASE
Appellant’s invention manages a patent portfolio by (1) assigning a
first patent value unit to an issued patent in the portfolio that is not cited by
another patent or patent application; (2) assigning a second patent value unit
to an issued patent in the portfolio that is cited by another patent or patent
application; and (3) summing the first and second patent value units to
derive an aggregate value of the patent portfolio. See generally Abstract;
Spec. ¶¶ 5–6, 226–229; Fig. 5.
Claim 1 is illustrative:
1. A computer-implemented method of deriving an
aggregate value for a patent portfolio, the method comprising:
displaying, using one or more computer processors, a
user interface, the user interface including a plurality of user
interface elements;
selecting, using the one or more computer processors,
upon determination of a user selection of a first selectable user
interface element of the plurality of user interface elements, the
patent portfolio, wherein determination of the user selection of
the first selectable user interface element includes determining
that a user of the user interface has interacted with the first
selectable user interface element;
identifying, using the one or more computer processors, a
first patent of the patent portfolio that has not been cited by
another patent or patent application;
assigning, using the one or more computer processors, a
first patent value unit to the first patent;
identifying, using the one or more computer processors, a
second patent of the patent portfolio that has been cited by
another patent or patent application;
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determining, using the one or more computer processors,
a corresponding industry of the second patent;
calculating, using the one or more computer processors, a
value multiplier based on the number of patent office rejections
of the second patent and the revenue of the corresponding
industry and a quantity of total patents issued to the
corresponding industry;
generating, using the one or more computer processors, a
second patent value unit based on the product of the value
multiplier and the first patent value unit;
calculating, using the one or more computer processors,
the second patent value unit by multiplying the second patent
value unit by a weighting multiplier for each forward citation of
the second patent, wherein the weighting multiplier is based on
a forward cite value and each forward cite value is assigned
individually;
assigning, using the one or more computer processors,
the second patent value unit to the second patent of the patent
portfolio;
deriving, using the one or more computer processors, the
aggregate value of the patent portfolio based on the number of
patents in the portfolio assigned the first patent value unit and
the number of patents in the portfolio assigned the second
patent value unit; and
displaying, in the user interface, the aggregate value of
the patent portfolio.
Related Appeals
On pages 3 and 4 of the Appeal Brief, Appellant identifies 32 related
appeals as follows:
Appeal No. Application No. Decided/Status
2009-005709 10/128,141 Decision mailed Mar. 23, 2010
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Application 13/679,830
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2009-006404 10/874,486 Decision mailed Aug. 2, 2010
2011-009966 11/061,383 Decision mailed Jan. 31, 2014
2012-004166 11/061,312 Decision mailed Nov. 4, 2014
2015-000319 13/309,080 Decision mailed May 27, 2016
2015-000321 13/309,127 Decision mailed July 26, 2017
2015-003180 13/309,039 Decision mailed Sept. 23, 2016
2015-007422 13/309,146 Decision mailed June 1, 2016
2016-000912 13/309,060 Decision mailed Aug. 25, 2017
2016-001687 11/888,632 Decision mailed Jan. 19, 2017
2016-002121 13/309,200 Decision mailed Aug. 28, 2017
2016-002680 13/310,279 Decision mailed Aug. 30, 2017
2016-002792 12/605,030 Decision mailed Sept. 1, 2017
2016-006797 13/310,368 Decision mailed Aug. 30, 2017
2016-007186 13/573,803 Decision mailed July 28, 2017
2016-007415 13/464,598 Decision mailed July 31, 2017
2016-007623 13/408,877 Decision mailed Sept. 6, 2017
2016-007787 13/310,322 Decision mailed Sept. 20, 2017
2016-008030 13/253,936 Decision mailed Aug. 3, 2017
2017-000280 13/408,917 Decision mailed Sept. 12, 2017
2017-000386 11/098,761 Decision mailed Nov, 17, 2017
2017-002337 14/010,376 Decision mailed Sept. 8, 2017
2017-003702 14/483,903 Decision mailed Sept. 25, 2017
2017-003815 14/094,542 Decision mailed Sept. 18, 2017
2017-004158 14/010,391 Decision mailed Oct. 25, 2017
2017-004159 14/010,380 Decision mailed Sept. 27, 2017
2017-004188 14/010,400 Decision mailed Nov. 3, 2017
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2017-006390 13/409,189 Decision mailed Dec. 18, 2017
2017-006642 13/310,452 Decision mailed Sept. 29, 2017
2017-011247 13/253,811 Decision mailed Nov. 1, 2017
2017-011549 14/608,520 Decision mailed Nov. 27, 2017
2017-011552 14/628,941 Decision mailed Dec. 6, 2017
THE REJECTION2
The Examiner rejected claims 1 and 3–17 under 35 U.S.C. § 101 as
directed to ineligible subject matter. Final Act. 7–60.3
FINDINGS, CONCLUSIONS, AND CONTENTIONS
The Examiner determines that claim 1 is directed to the abstract idea
of “identifying, assigning data and calculating values used to derive an
aggregate value in order to assign a specifically tailored aggregate value to a
portfolio,” which is said to be a fundamental economic practice and
mathematical relationship. Final Act. 7–19. The Examiner adds that claim
1’s additional elements do not add significantly more than the abstract idea.
Id. at 19–24. Based on these determinations, the Examiner concludes that
claim 1 is ineligible under § 101. Id. at 7–24.
Appellant argues that the claimed invention is not directed to an
abstract idea. Appeal Br. 10–16; Reply Br. 2–6. According to Appellant,
2 Because the Examiner withdrew an obviousness rejection of claims 1 and
3–17 (Ans. 3), that rejection is not before us.
3 Throughout this opinion, we refer to (1) the Final Rejection mailed
November 15, 2017 (“Final Act.”); (2) the Appeal Brief filed May 15, 2018
(“Appeal Br.”); (3) the Examiner’s Answer mailed August 16, 2018
(“Ans.”); and (4) the Reply Brief filed September 27, 2018 (“Reply Br.”).
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the Examiner failed to provide a reasoned rationale to support the rejection
by, among other things, characterizing the claimed invention overly broadly.
Appeal Br. 10–11; Reply Br. 2. Appellant adds that the claimed invention
adds significantly more than the purported abstract idea by reciting
limitations that are said to be other than what is well-understood, routine,
and conventional in the field. Appeal Br. 12–13; Reply Br. 4–6.
ISSUE
Under § 101, has the Examiner erred in rejecting claims 1 and 3–17 as
directed to ineligible subject matter? This issue turns on whether the claims
are directed to an abstract idea and, if so, whether recited elements—
considered individually and as an ordered combination—transform the
nature of the claims into a patent-eligible application of that abstract idea.
PRINCIPLES OF LAW
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. See, e.g., Alice Corp. v. CLS Bank Int'l, 573 U.S.
208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
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U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). That
said, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
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environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks and citation
omitted). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
In January 2019, the USPTO published revised guidance on the
application of § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”).
Under the 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 activities 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. Rev. 08.2017, Jan. 2018)).
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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 is not
well-understood, routine, and conventional in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.
ANALYSIS
Prima Facie Case of Ineligibility
Despite Appellant’s arguments to the contrary (Appeal Br. 10, 16;
Reply Br. 4, 6), we conclude that the Examiner established a prima facie
case of ineligibility under § 101.
The Examiner has a duty to give notice of a rejection with sufficient
particularity to give Appellant a fair opportunity to respond to the rejection.
See 35 U.S.C. § 132(a). Here, we find the Examiner’s rejection satisfies the
initial burden of production by identifying that the claims include limitations
similar to the identified abstract idea of “identifying, assigning data[,] and
calculating values used to derive an aggregate value in order to assign a
specifically tailored aggregate value to a portfolio” (Final Act. 9), and that
the remainder of the claims do not add significantly more to the abstract idea
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because the generically-recited computer elements are well-understood,
routine, and conventional (id. at 20–24).
Accordingly, the Examiner (1) set forth the statutory basis for the
rejection, namely 35 U.S.C. § 101; (2) concluded that the claims are directed
to a judicial exception to § 101, namely an abstract idea; and (3) explained
the rejection in sufficient detail to permit Appellant to respond meaningfully.
See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). On this record, then,
the Examiner established a prima facie case of ineligibility.
Alice/Mayo Step One
Appellant argues the claims as a group. See Appeal Br. 10–16; Reply
Br. 2–6. We, therefore, select independent claim 1 as the representative
claim for this group, and claims 3–17 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv). Claim 1 recites:
A computer-implemented method of deriving an
aggregate value for a patent portfolio, the method comprising:
displaying, using one or more computer processors, a
user interface, the user interface including a plurality of user
interface elements;
selecting, using the one or more computer processors,
upon determination of a user selection of a first selectable user
interface element of the plurality of user interface elements, the
patent portfolio, wherein determination of the user selection of
the first selectable user interface element includes determining
that a user of the user interface has interacted with the first
selectable user interface element;
identifying, using the one or more computer processors,
a first patent of the patent portfolio that has not been cited by
another patent or patent application;
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assigning, using the one or more computer processors, a
first patent value unit to the first patent;
identifying, using the one or more computer processors,
a second patent of the patent portfolio that has been cited by
another patent or patent application;
determining, using the one or more computer processors,
a corresponding industry of the second patent;
calculating, using the one or more computer processors,
a value multiplier based on the number of patent office
rejections of the second patent and the revenue of the
corresponding industry and a quantity of total patents issued to
the corresponding industry;
generating, using the one or more computer processors,
a second patent value unit based on the product of the value
multiplier and the first patent value unit;
calculating, using the one or more computer processors,
the second patent value unit by multiplying the second patent
value unit by a weighting multiplier for each forward citation of
the second patent, wherein the weighting multiplier is based on
a forward cite value and each forward cite value is assigned
individually;
assigning, using the one or more computer processors,
the second patent value unit to the second patent of the patent
portfolio;
deriving, using the one or more computer processors, the
aggregate value of the patent portfolio based on the number of
patents in the portfolio assigned the first patent value unit and
the number of patents in the portfolio assigned the second
patent value unit; and
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displaying, in the user interface, the aggregate value of
the patent portfolio.4
As the Specification explains, the present invention manages a patent
portfolio by (1) assigning a first patent value unit to an issued patent in the
portfolio that is not cited by another patent or patent application; (2)
assigning a second patent value unit to an issued patent in the portfolio that
is cited by another patent or patent application; and (3) summing the first
and second patent value units to derive an aggregate value of the patent
portfolio. See Spec. ¶¶ 5–6, 226–229; Fig. 5.
Turning to claim 1, we first note that the claim recites a method and,
therefore, falls within the process category of § 101. See Guidance, 84 Fed.
Reg. at 53–54 (citing MPEP §§ 2106.03, 2106.06). But despite falling
within this statutory category, we must still determine whether the claim is
directed to a judicial exception, namely an abstract idea. See Alice, 573 U.S.
at 217. To this end, we must determine whether the claim (1) recites a
judicial exception, and (2) fails to integrate the exception into a practical
application. See Guidance, 84 Fed. Reg. at 52–55. If both elements are
satisfied, the claim is directed to a judicial exception under the first step of
the Alice/Mayo test. See id.
Contrary to Appellant’s contention that the Examiner ostensibly
ignored the claim as a whole (see Appeal Br. 11), the Examiner determines
that claim 1 is directed to an abstract idea, namely “identifying, assigning
data[,] and calculating values used to derive an aggregate value in order to
assign a specifically tailored aggregate value to a portfolio,” which is said to
4 Unless otherwise indicated, we italicize or quote text reproducing the
recited limitations for emphasis and clarity.
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be a fundamental economic practice and a mathematical relationship (Final
Act. 9–10). To determine whether a claim recites an abstract idea, we (1)
identify the claim’s specific limitations that recite an abstract idea, and (2)
determine whether the identified limitations fall within certain subject matter
groupings, namely, (a) mathematical concepts5; (b) certain methods of
organizing human activity6; or (c) mental processes.7
Here, apart from the recited (1) “computer-implemented” method; (2)
“one or more computer processors”; (3) “user interface including a plurality
of user interface elements”; and (4) “first selectable user interface element of
the plurality of user interface elements,” all of claim 1’s recited steps, which,
when read as a whole, collectively are directed to deriving an aggregate
value for a patent portfolio based on relative values of patents in that
portfolio, fit squarely within at least one of the above categories of the
agency’s guidelines.
First, the step reciting “displaying” information could be done by
merely writing down and showing such information—a step that can involve
5 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. at 52.
6 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Guidance, 84 Fed. Reg. at 52.
7 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Guidance, 84 Fed. Reg.
at 52.
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mere judgment and logical reasoning. Cf. CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011) (noting that a
recited step that utilized a map of credit card numbers to determine the
validity of a credit card transaction could be performed entirely mentally by
merely using logical reasoning). Accordingly, the first displaying step falls
squarely within the mental processes category of the agency’s guidelines
and, therefore, recites an abstract idea. See Guidance, 84 Fed. Reg. at 52
(listing exemplary mental processes including observation and evaluation).
Second, the step reciting “selecting . . . , upon determination of a user
selection . . . , the patent portfolio” could be done entirely mentally by
merely thinking about, or writing down, such a patent portfolio—a step that
can involve mere observation and logical reasoning. Cf. CyberSource, 654
F.3d at 1372–73; Mortg. Grader Inc. v. First Choice Loan Servs., Inc., 811
F.3d 1314, 1324 (Fed. Cir. 2016) (holding a claim reciting, among other
things, selecting information, upon determining a borrower wishes to obtain
a loan, could be performed by humans without a computer); accord Final
Act. 11–12 (finding the selecting step can be performed mentally).
Accordingly, the selecting step falls squarely within the mental processes
category of the agency’s guidelines and, therefore, recites an abstract idea.
See Guidance, 84 Fed. Reg. at 52.
Third, the step reciting “identifying . . . a first patent of the patent
portfolio that has not been cited by another patent or patent application”
and “identifying . . . a second patent of the patent portfolio that has been
cited by another patent or patent application” could be done entirely
mentally by merely thinking about, or writing down, such a first and second
patent of a patent portfolio—a step that can involve mere observation and
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logical reasoning. Cf. CyberSource, 654 F.3d at 1372–73; Mortg. Grader,
811 F.3d at 1324 (holding a claim reciting, among other things, identifying
lenders for a borrower could be performed by humans without a computer).
Accordingly, the identifying step falls squarely within the mental processes
category of the agency’s guidelines and, therefore, recites an abstract idea.
See Guidance, 84 Fed. Reg. at 52.
Fourth, the step reciting “determining . . . a corresponding industry of
the second patent” could be done entirely mentally by merely thinking
about, or writing down, such a corresponding industry—a step that can
involve mere observation and logical reasoning. Cf. CyberSource, 654 F.3d
at 1372–73; Mortg. Grader, 811 F.3d at 1324 (holding a claim reciting,
among other things, determining underwriting criteria to generate a credit
grading could be performed by humans without a computer); Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016)
(noting that nothing in a claim reciting determining a set of actions from
selected business rules forecloses it from being performed mentally or with
pen and paper except generic computer-implemented steps). Accordingly,
the determining step falls squarely within the mental processes category of
the agency’s guidelines and, therefore, recites an abstract idea. See
Guidance, 84 Fed. Reg. at 52.
Fifth, the step reciting “calculating . . . a value multiplier based on the
number of patent office rejections of the second patent and the revenue of
the corresponding industry and a quantity of total patents issued to the
corresponding industry” could be done entirely mentally by merely thinking
about, or writing down, such a value multiplier—a step that can involve
mere observation and logical reasoning. Cf. CyberSource, 654 F.3d at
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1372–73. In addition, this calculation involves at least mathematical
relationships or formulas because this calculation can be a mathematical
determination. Cf. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 161
(10th ed. 1993) (“Merriam-Webster Dictionary”) (defining “calculate,” in
pertinent part, as “to determine by mathematical processes”); see also In re
Grams, 888 F.2d 835, 837 n.1 (Fed. Cir. 1989) (“Words used in a claim
operating on data to solve a problem can serve the same purpose as a
formula.”); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016) (noting that analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, are
essentially mental processes within the abstract idea category). Therefore,
the recited value multiplier calculation step falls squarely within the mental
processes and mathematical concepts categories of the agency’s guidelines
and, therefore, recites an abstract idea. See Guidance, 84 Fed. Reg. at 52
(additionally listing exemplary mathematical concepts).
Sixth, the step reciting “generating . . . a second patent value unit
based on the product of the value multiplier and the first patent value unit”
could be done entirely mentally by merely thinking about, or writing down,
such a value multiplier—a step that can involve mere observation and
logical reasoning. Cf. CyberSource, 654 F.3d at 1372–73. In addition, the
generating step’s “product” involves at least mathematical relationships or
formulas because the product can be a number resulting from multiplying
the value multiplier and first patent value unit together. Cf. Merriam-
Webster Dictionary at 930 (defining “product,” in pertinent part, as “the
number or expression resulting from the multiplication together of two or
more numbers or expressions”); see also Grams, 888 F.2d at 837 n.1; Elec.
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Power, 830 F.3d at 1354. Accordingly, the generating step falls squarely
within the mental processes and mathematical concepts categories of the
agency’s guidelines and, therefore, recites an abstract idea. See Guidance,
84 Fed. Reg. at 52.
Seventh, the step reciting “calculating . . . the second patent value unit
by multiplying the second patent value unit by a weighting multiplier for
each forward citation of the second patent, wherein the weighting multiplier
is based on a forward cite value and each forward cite value is assigned
individually” could be done entirely mentally by merely thinking about, or
writing down, such a value multiplier—a step that can involve mere
observation and logical reasoning. Cf. CyberSource, 654 F.3d at 1372–73.
In addition, this calculation also involves at least mathematical relationships
or formulas given the recited multiplication between the second patent value
unit and weighting multiplier. See Grams, 888 F.2d at 837 n.1; Elec. Power,
830 F.3d at 1354. Accordingly, the calculating second patent value unit step
falls squarely within the mental processes category of the agency’s
guidelines and, therefore, recites an abstract idea. See Guidance, 84 Fed.
Reg. at 52.
Eighth, the steps reciting “assigning . . . a first patent value unit to the
first patent” and “assigning . . . the second patent value unit to the second
patent of the portfolio” could be done entirely mentally by merely thinking
about, or writing down, such a first patent value unit—a step that can
involve mere observation and logical reasoning. Cf. CyberSource, 654 F.3d
at 1372–73. Accordingly, the assigning steps fall squarely within the mental
processes category of the agency’s guidelines and, therefore, recite an
abstract idea. See Guidance, 84 Fed. Reg. at 52.
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Ninth, the step reciting “deriving . . . the aggregate value of the patent
portfolio based on the number of patents in the portfolio assigned the first
patent value unit and the number of patents in the portfolio assigned the
second patent value unit” could be done entirely mentally by merely
thinking about, or writing down, such an aggregate value—a step that can
involve mere observation and logical reasoning. Cf. CyberSource, 654 F.3d
at 1372–73. Accordingly, the deriving step falls squarely within the mental
processes category of the agency’s guidelines and, therefore, recite an
abstract idea. See Guidance, 84 Fed. Reg. at 52.
Tenth, the step reciting “displaying . . . the aggregate value of the
patent portfolio” could be done by writing down and showing such
information—a step that can involve mere judgment and logical reasoning.
Cf. CyberSource, 654 F.3d at 1372–73. Accordingly, the displaying
aggregate value step falls squarely within the mental processes category of
the agency’s guidelines and, therefore, recites an abstract idea. See
Guidance, 84 Fed. Reg. at 52.
Although the claim recites an abstract idea based on these mental
processes and mathematical concepts, 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 limit on the abstract idea, such that the claim is
more than a drafting effort designed to monopolize the abstract idea. See id.
at 54–55. To this end, we (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.
Appeal 2018-009240
Application 13/679,830
19
Here, the recited (1) “computer-implemented” method; (2) “one or
more computer processors”; (3) “user interface including a plurality of user
interface elements”; and (4) “first selectable user interface element of the
plurality of user interface elements” are the only recited elements beyond the
abstract idea, but those additional elements do not integrate the abstract idea
into a practical application when reading claim 1 as a whole.
Notably, we do not find that the claim recites additional elements
(1) improving the computer itself; (2) improving another technology or
technical field; (3) implementing the abstract idea in conjunction with a
particular machine or manufacture that is integral to the claim;
(4) transforming or reducing a particular article to a different state or thing;
or (5) applying or using the abstract idea in some other meaningful way
beyond generally linking the abstract idea’s use to a particular technological
environment, such that the claim as a whole is more than a drafting effort
designed to monopolize the exception. See Guidance, 84 Fed. Reg. at 55
(citing MPEP §§ 2106.05(a)–(c), (e)). Rather, the above-noted additional
elements merely (1) apply the abstract idea on a computer; (2) include
instructions to implement the abstract idea on a computer; or (3) use the
computer as a tool to perform the abstract idea. See id. (citing MPEP §
2106.05(f)). Therefore, the recited additional elements, namely the recited
(1) “computer-implemented” method; (2) “one or more computer
processors”; (3) “user interface including a plurality of user interface
elements”; and (4) “first selectable user interface element of the plurality of
user interface elements” do not integrate the abstract idea into a practical
application when reading claim 1 as a whole.
Appeal 2018-009240
Application 13/679,830
20
We add that the first displaying step not only recites an abstract idea
and uses generic computing components to perform the abstract idea as
noted above, but the first displaying step is also insignificant pre-solution
activity and, therefore, does not integrate the exception into a practical
application for that additional reason. See In re Bilski, 545 F.3d 943, 963
(Fed. Cir. 2008) (en banc), aff'd on other grounds, 561 U.S. 593 (2010)
(characterizing data gathering steps as insignificant extra-solution activity);
see also CyberSource, 654 F.3d at 1371–72 (noting that even if some
physical steps are required to obtain information from a database (e.g.,
entering a query via a keyboard, clicking a mouse), such data-gathering steps
cannot alone confer patentability). Accord Ans. 11; Guidance, 84 Fed. Reg.
at 55 (citing MPEP § 2106.05(g)).
In addition, the aggregate value displaying step is insignificant post-
solution activity, at least in the sense that it is merely ancillary to the
aggregate value deriving focus of the claimed invention, given its high level
of generality and context in the claimed invention. Thus, the recited
displaying aggregate value step is insignificant post-solution activity and,
therefore, does not integrate the exception into a practical application for this
additional reason. See Guidance, 84 Fed. Reg. at 55 (citing MPEP
§ 2106.05(g)); accord Ans. 11.
In conclusion, although the recited functions may be beneficial by
deriving an aggregate value for a patent portfolio based on relative values of
patents in that portfolio, a claim for a useful or beneficial abstract idea is still
an abstract idea. See Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379–80 (Fed. Cir. 2015); see also Synopsys, Inc. v. Mentor Graphics
Appeal 2018-009240
Application 13/679,830
21
Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (noting “a claim for a new
abstract idea is still an abstract idea.”).
We, therefore, agree with the Examiner that claim 1 is directed to an
abstract idea.
Alice/Mayo Step Two
Turning to Alice/Mayo step two, claim 1’s additional recited elements,
namely the recited (1) “computer-implemented” method; (2) “one or more
computer processors”; (3) “user interface including a plurality of user
interface elements”; and (4) “first selectable user interface element of the
plurality of user interface elements”—considered individually and as an
ordered combination—do not provide an inventive concept such that these
additional elements amount to significantly more than the abstract idea. See
Alice, 573 U.S. at 221; see also Guidance, 84 Fed. Reg. at 56. As noted
above, the claimed invention merely uses generic computing components to
implement the recited abstract idea.
Appellant asserts the Examiner’s findings “satisfy the evidentiary
requirement of [Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)] in
relation to computer functions” (Reply Br. 4), but contends the Examiner
does not provide any evidentiary support that the combination of elements is
well-understood, routine, and conventional (id. at 5, emphasis added). We
are not persuaded of error.
To the extent that Appellant contends that the combination of recited
elements detailed above in connection with Alice/Mayo step one add
significantly more than the abstract idea to provide an inventive concept
under Alice/Mayo step two (see Appeal Br. 13, 15–16; Reply Br. 4–5), these
Appeal 2018-009240
Application 13/679,830
22
elements are not additional elements beyond the abstract idea, but rather are
directed to the abstract idea as noted previously. See Guidance, 84 Fed. Reg.
at 56 (instructing that additional recited elements should be evaluated in
Alice/Mayo step two to determine whether they (1) add specific limitations
that are not well-understood, routine, and conventional in the field, or (2)
simply append well-understood, routine, and conventional activities
previously known to the industry (citing MPEP § 2106.05(d)).
Rather, the recited (1) “computer-implemented” method; (2) “one or
more computer processors”; (3) “user interface including a plurality of user
interface elements”; and (4) “first selectable user interface element of the
plurality of user interface elements”—individually and in combination—are
the additional recited elements whose generic computing functionality is
well-understood, routine, and conventional. See Fair Warning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (noting that using
generic computing components like a microprocessor or user interface do
not transform an otherwise abstract idea into eligible subject matter); Mortg.
Grader, 811 F.3d at 1324–25 (Fed. Cir. 2016) (noting that components such
as an interface are generic computer components that do not satisfy the
inventive concept requirement); Intellectual Ventures I LLC v. Capital One
Bank (USA), 792 F.3d 1363, 1368 (Fed. Cir. 2015) (noting that a recited user
profile (i.e., a profile keyed to a user identity), database, and communication
medium are generic computer elements); accord Final Act. 23 (citing Spec.
¶¶ 32, 35–36, 66; Figs. 1, 2, 4 and concluding that the claims’ generically
recited computer components do not add significantly more than the abstract
idea); Ans. 11 (citing Spec. ¶¶ 230–236, 238–240).
Appeal 2018-009240
Application 13/679,830
23
We reach a similar conclusion regarding the recited insignificant
extra-solution activity, namely the first displaying step and the aggregate
value displaying step. That information is displayed does not mean that
these steps are performed in an unconventional way to add significantly
more than the abstract idea and provide an inventive concept under
Alice/Mayo step two. See Guidance, 84 Fed. Reg. at 56. Given these
limitations’ (1) high level of generality, and (2) use of generic computing
components whose functionality is well-understood, routine, and
conventional for the reasons noted previously, the recited insignificant extra-
solution activity does not add significantly more than the abstract idea to
provide an inventive concept under Alice/Mayo step two.
Appellant’s reliance on the decision in BASCOM Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)
(Appeal Br. 14–16) is unavailing. There, the court held eligible claims
directed to a technology-based solution to filter Internet content that
overcame existing problems with other Internet filtering systems by making
a known filtering solution—namely a “one-size-fits-all” filter at an Internet
Service Provider (ISP)—more dynamic and efficient via individualized
filtering at the ISP. BASCOM, 827 F.3d at 1351. Notably, this customizable
filtering solution improved the computer system’s performance and,
therefore, was patent-eligible. See id. But, unlike the filtering system
improvements in BASCOM that added significantly more to the abstract idea
in that case, the claimed invention here uses generic computing components
to implement an abstract idea as noted previously.
That the Examiner withdrew an obviousness rejection of the claimed
invention as Appellant indicates (see Reply Br. 4) is not dispositive to patent
Appeal 2018-009240
Application 13/679,830
24
eligibility—a separate statutory inquiry. See Return Mail, Inc. v. U.S. Postal
Serv., 868 F.3d 1350, 1370 (Fed. Cir. 2017). Although the second step in
the Alice/Mayo test is a search for an “inventive concept,” the analysis is not
directed to novelty or nonobviousness, but rather searches for elements
sufficient to ensure that the claimed invention is directed to more than a
patent ineligible concept, such as an abstract idea. See Alice, 573 U.S. at
217–18. “Groundbreaking, innovative, or even brilliant discovery does not
by itself satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v.
Myriad Genetics, Inc., 569 U.S. 576, 591 (2013); see also Diehr, 450 U.S. at
188–89 (“The ‘novelty’ of any element or steps in a process, or even of the
process itself, is of no relevance in determining whether the subject matter of
a claim falls within the § 101 categories of possibly patentable subject
matter.”); Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253,
1263 n.3 (Fed. Cir. 2016) (noting that an eligibility finding does not turn on
the novelty of using a user-downloadable application for the particular
purpose recited in the claims).
In conclusion, the additional recited elements—considered
individually and as an ordered combination—do not add significantly more
than the abstract idea to provide an inventive concept under Alice/Mayo step
two. See Alice, 573 U.S. at 221; see also Guidance, 84 Fed. Reg. at 56.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 3–17 not argued separately with particularity.
Appeal 2018-009240
Application 13/679,830
25
CONCLUSION8
In summary:
Claims Rejected Basis Affirmed Reversed
1, 3–17 § 101 1, 3–17
AFFIRMED
8 We leave to the Examiner to determine whether the claims comply with the
written description requirement of 35 U.S.C. § 112, first paragraph due to
the possibility that new matter may have been introduced into independent
claims 1, 7, and 8 by amendment during prosecution. See Amd’t filed Sept.
23, 2015, at 2–6 (Claims App’x). Although the Board is authorized to reject
claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the
Board elects not to do so. See MPEP § 1213.02.
Notice of References Cited
Application/Control No. Applicant(s)/Patent Under
Reexamination
Examiner Art Unit
Page 1 of 1
U.S. PATENT DOCUMENTS
* Document Number Country Code-Number-Kind Code Date MM-YYYY Name Classification
1 A US- 1 1
B US-
C US-
D US-
E US-
F US-
G US-
H US-
I US-
J US-
K US-
L US-
M US-
FOREIGN PATENT DOCUMENTS
* Document Number Country Code-Number-Kind Code Date MM-YYYY Country Name Classification
N
O
P
Q
R
S
T
NON-PATENT DOCUMENTS
* Include as applicable: Author, Title Date, Publisher, Edition or Volume, Pertinent Pages)
U Cf. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 161 (10th ed. 1993) (defining “calculate,” in pertinent part, as “to determine by mathematical processes”)
V
W
X
*A copy of this reference is not being furnished with this Office action. (See MPEP § 707.05(a).)
Dates in MM-YYYY format are publication dates. Classifications may be US or foreign.
U.S. Patent and Trademark Office
PTO-892 (Rev. 01-2001) Notice of References Cited Part of Paper No.
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calculare. fr. calculus pebble (used in reckoning), perh. irreg. d!m, of
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mathematical processes h : to reckon by exercise of practtcal Judg-
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ing to profane_: (_)ESECRATINO ,tor-\llt/lu· ·,. ·.
ipro-fane \pro-'Can, pr:.i-\ vi J)ro-faned; pr ~>.,,.,,
fr. L profanare. fr. prof anus] ( 14c) 1: to !r
abuse, irreverence, or contempt: DESEciu.n
unworthy, or vulgar use - Pro-fan-er n
lprofane adj [ME prophane, fr. MF, fr. L Profa
Jan um tempi~-;- more at PRO., FEAST] (!Sc)
1
~
religion or rehg1ous purposes: SECtrLAR 2: not b
crated, impure, or defiled : UNSANCTIFJED 3 ,
defile what is holy : IRREVERENT 4 a : not bcin
b : not possessin~ esoteric or expett knowledge_: t"tl li<:r:.
pro•fane,ness \· fan-n;,s\ n re, ~t-li., :
pro,fan•MY \pro-'fa-n;,-te, pr;>-\ n, pl •ties 060Jl '
or state or being profane b: the use
fane language b : an utterance of pr
pro,fess \pr.r'fes, pro-\ Yb fin sense
professed one's vows, fr. Ml", fr. LL
profess. con fess, fr. pro- before + ..
senses, fr. L professus. pp. more at ,r'\·
fomially into a feligious community following a 00111~11 ~ "":; lance of the required vows. 2 a : to declare or a.dmir ol'C!:l,,,'."..
: AFFlRM b ; to declare, m .words or appearancts only :n.:'
CLAlM 3: to confess ones C.nth in or allegiance to 4 1: ~- ·
or claim to be versed in (a calling or profession) b: 101;:i:lt~;;:
fessor ,..., vi 1 : to make a profession or a,owal Io~:~,}
friendship
pro,fessed \.'fest\ adj (ca. 1569) 1 : op<:nly and fm:1, d~.:.,;
acknowledged : AFFIRMED 2: professing to bequalifi«i:a!ii:s:·
pro,fessed•IY \pr;>-'fe-s;;,d-le, .'fest-le\ adv !1570) I: by pc;du,:
declaration : AVOWEDLY 2: with pretense: AHEGED,Y . l.
pro,fes•siori \pr.r'fe-sh,m\ n [ME profmio~n. Ir, OF!V'!ff:1.,
& L; LL profession-. professio, fr. L. pubhc declaratJcn, . r?
(13c) I: the act of taking the vows ofa.religiousromro1101t1 •"
act of openly declaring or publicl
: PROTESTATION 3: an avowed
ing specialized knowledge and oft ~ 1 1;,. aration b : a principal calling, vocauon, or miploiir: ,
whole body of persons engaged in a calling ~, ( tmJ 1 , '
1pro,fes-sion•al \pr;;-'fesh-n:il, .'fe-sh.l-q"I\ a.., ca. cdio.~··
relating to, or characteristic of a professJOOd r ~~onn::f·'
learned professions c ( 1) : characten~ { )°. c!hi~ltni';,
technical qr ethical standards of a pr~ressr~n 2~1lf!intllt'(\
ous, consc11;n_llo~s, and ge1~erally. bu~mes
00
sh~e ~ acthilY o,: i~: ..
2 a : pamc1patmg for gam or hvel1ho,.... m !fer) b: 1u,1n1.'.;,
dea vor often engaged in by amateurs (a go ldier) c: !lj.ll',,
ular profession as a permanent career (a b~I} 3, roJJa,•.:lr~i
persons receiving financial return (7' foo( 1 patri;;)-Pf'l' i
conduct as though it were a profession a,..,
1
1,11,f al-ly adv • .i· esf: cci :
2professional n ( 1811) : one that is profession ' . '
in a pursuit or acti vii y professional!)'
professional corporation n {l 910di) : r
or more licensed individuals (as a, oc
pose of providing professional SC:rv1ces
pro.fes,sion,al.ism \-'fesh-n~.11-z:im, • n ,
conduct, aims, or qualities that ch2:ractef a i'.
Pr?fessi(?nal. person 2: the following O
56
): w9'.~'
ga111 or hvehhood • __ .1 •• jz,ini! 0.1 hf(¢"·
Pro,~es•sion-al•ize \.,Jiz, .,1z\ vi -1~, ,aJ.i,:rJl•tlO~ ,l.
fess1onal character to - pro•fes,sion fc,.11"- 1 ,, ·
sh:m, ·,fe-sh:rn•I-->-\ n oe that pr~ ·r!;f
Pro,fes•sor \pr;i-'fe-~r\ 11 (14<:) lf: he highest ;cJI ,r, '
declares 2 a : a faculty member o t cherat a ~111 ,
institution of higher education b : a 1~ 01 teachi:i
O 'i" i
sometimes secondary school c : one, t n rt-'fe-~r;it\ n (18 '
1>os111on of a professor .. .•sor
Pro,fes,so,ri,at \,pn:i-fa-'sor-e-:it, ,pru~, rr.
ate \-:it, • at\ n rmodii. or F pra/rS$O i,'odr
Prafe.s.!lf>r. Ir M,..l;,;,.t1 it ri,;li\ l l the .
