STUBHUB, INC.

Patent Trials and Appeals Board

Aug 26, 2020

13966649 - (D) (P.T.A.B. Aug. 26, 2020)

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.
13/966,649 08/14/2013 Mark Delun Yuan S2480.10022US01 2034
167980 7590 08/26/2020
Maschoff Brennan/StubHub
1389 Center Drive, Ste. 300
Park City, UT 84098
EXAMINER
MILLER, BRITTNEY N
ART UNIT PAPER NUMBER
3684
NOTIFICATION DATE DELIVERY MODE
08/26/2020 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):
docket@mabr.com
rgilmore@mabr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARK DELUN YUAN
____________

Appeal 2020-000604
Application 13/966,649
Technology Center 3600
____________

Before JAMES A. WORTH, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

BAYAT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1, 2, 5–12, and 15–22, which are all the claims
pending in the application, under 35 U.S.C. § 101 as directed to a judicial
exception without significantly more. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as “eBAY Inc.”
Appeal Br. 4. We note “JPMORGAN CHASE BANK, N.A.” is the assignee
recorded (Feb. 13, 2020) with the USPTO as per reel/frame number
051929/0645.
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BACKGROUND
Appellant’s invention is titled “USER-SPECIFIC SEAT
RECOMMENDATIONS BASED ON COMMON INTERESTS.”
Appellant’s “disclosure relates generally to electronic commerce, and more
particularly to electronic systems and methods for assisting users in
activities relating to purchases and attendance at ticketed events, such as
sitting with fellow fans.” Spec. ¶ 1.
The Background section of the Specification indicates that global
computer networks such as the Internet provide an efficient and cost
effective medium for sellers to advertise and offer to sell goods and accept
orders from remote purchasers. Id. ¶ 2. One example of an electronic
commerce marketplace is for tickets online (e.g., sports, concerts, theater
and other entertainment events), on which “the ability for individuals to buy
and sell tickets online is generally well known.” Id. ¶ 3.
The problem Appellant identifies in this well-known online ticket
marketplace is that “ticket buyers are often not sure of the area where they
might be sitting, and whether there would be friendly or hostile fans
nearby,” which may discourage some from purchasing tickets to attend an
event. Id. ¶ 4. Appellant’s invention purportedly solves this problem by
“assist[ing] users in purchasing tickets for ticketed events in a manner that
results in a higher likelihood that users will be seated at or near people of
similar likes, interests and/or team allegiances.” Id. ¶ 5.
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CLAIMED SUBJECT MATTER
Claims 1, 11, and 21 are the independent claims on appeal and recite
substantially similar subject matter. Claim 1, reproduced below with added
emphasis, is illustrative of the claimed subject matter. See Appeal Br.,
Claims App.
1. A computer system, comprising:
one or more hardware processors configured to execute
operations comprising:
directing to be displayed through a graphical user
interface of a client device for a user, information regarding a
ticketed event;
determining user information for the user based on a
purchase history for the user and user content from a social
networking website of the user;
determining user-defined criteria including a plurality of
prioritized preferences for sitting with other attendees of the
ticketed event based on one or more attributes of the other
attendees, one or more interests of the other attendees, and the
ticketed event;
accessing attendee information for at least one attendee of
the other attendees who has purchased a ticket for the ticketed
event, the attendee information identifying at least one attribute
and at least one interest of the at least one attendee of the other
attendees;
determining ticket suggestion information for the user
regarding the ticketed event based on the user information, the
user-defined criteria, and the attendee information;
generating a ticket or seating recommendation based on
the ticket suggestion information;
communicating the ticket or seating recommendation to
the client device for display through the graphical user
interface; and
facilitating a ticket purchase on the client device based on
the ticket or seating recommendation.
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OPINION
Under 35 U.S.C. § 101, an invention is patent eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 78, 79). This is “a search for an ‘inventive concept’ — i.e., an
element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. at 217–18 (alteration in original) (citation
omitted).
In rejecting independent claims 1, 11, and 21 as being directed to a
judicial exception without significantly more, the Examiner evaluated the
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claims together as a group under the Alice framework and the 2019 Revised
Guidance.2 Final Act. 2–6. Appellant also argues claims 1, 11, and 21 as a
group. Appeal Br. 7–14. We select independent claim 1 as representative of
the group; thus, claims 11 and 21 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv)(2019).
Statutory Categories under § 101
To determine subject matter eligibility under 35 U.S.C. § 101, the
Examiner must first determine if the claims fall into one of the four statutory
categories of invention: processes, machines, manufactures, or composition
of matter. See MPEP § 2106.03. The Examiner determined, and Appellant
agrees, that independent claim 1 is directed to a machine, independent claim
11 is directed to a process, and independent claim 21 is directed to an article
of manufacture. Final Act. 2; Appeal Br. 7. Thus, all claims are directed to
statutory categories under § 101.
We now turn to the two step Alice framework.

2 The U.S. Patent and Trademark Office (“USPTO”) published revised
guidance for use by USPTO personnel in evaluating subject matter
eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57 (Jan. 7, 2019) (the “2019
Revised Guidance”). That guidance revised the USPTO’s examination
procedure with respect to the first step of the Alice framework by
(1) “[p]roviding groupings of subject matter that [are] considered an abstract
idea”; and (2) “clarifying that a claim is not ‘directed to’ a judicial exception
if the judicial exception is integrated into a practical application of that
exception.” Id. at 50.

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Step One of the Alice Framework (2019 Revised Guidance, Step 2A)
Step 2A, Prong One
The first step in the Alice framework is to determine whether the
claims at issue are “directed to” a patent-ineligible concept, e.g., an abstract
idea. Alice Corp., 573 U.S. at 217. This first step, as set forth in the 2019
Revised Guidance (i.e., Step 2A), is a two-prong test; in Step 2A, Prong
One, the Examiner must look to whether the claim recites a judicial
exception, e.g., one of the following three groupings of abstract ideas:
(1) mathematical concepts; (2) certain methods of organizing human
activity, e.g., fundamental economic principles or practices, commercial or
legal interactions; and (3) mental processes. 2019 Revised Guidance,
84 Fed. Reg. at 54. If so, the Examiner must next consider whether the
claim includes additional elements, beyond the judicial exception, that
“integrate the [judicial] exception into a practical application,” i.e., that
apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception (Step 2A,
Prong Two). Id. at 54–55. Only if the claim (1) recites a judicial exception
and (2) does not integrate that exception into a practical application, then the
Examiner can conclude that the claim is “directed to” the judicial exception,
e.g., an abstract idea.
To that end, the Examiner determines that the following limitations of
representative claim 1 recite a judicial exception: “displaying information
regarding a ticketed event;” “determining user information for the user based
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on a purchase history for the user and user content;”3 “determining user-
defined criteria including a plurality of prioritized preferences for sitting
with other attendees of the ticketed event based on one or more attributes of
the other attendees, one or more interests of the other attendees, and the
ticketed event;” “accessing attendee information for at least one attendee of
the other attendees who has purchased a ticket for the ticketed event, the
attendee information identifying at least one attribute and at least one
interest of the at least one attendee of the other attendees;” “determining
ticket suggestion information for the user regarding the ticketed event based
on the user information, the user-defined criteria, and the attendee
information;” “generating a ticket or seating recommendation based on the
ticket suggestion information;” “communicating the ticket or seating
recommendation for display;” and “ facilitating a ticket purchase based on
the ticket or seating recommendation.” Final Act. 3.
According to the Examiner, “the above limitations recite the concept
of product (i.e. ticket or seating) recommendation” which “fall within the
‘Certain Methods of Organizing Human Activity’ and ‘Mental Processes’
groupings of abstract ideas, enumerated in the 2019 Revised Subject Matter
Eligibility Guidance.” Final Act. 3; Ans. 3. In particular, the Examiner
states that these limitations recite a fundamental economic practice and
commercial interactions (i.e., advertising and sales activities/behaviors)
specified under the 2019 Revised Guidance. Final Act. 3; Ans. 3.
Additionally, the Examiner states that the determining and accessing

3 The Examiner modifies the rejection to include the limitation “from a
social networking website of the user” as an additional element that is
evaluated under Step 2A, Prong Two. See Ans. 3.
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limitations recite concepts that can be performed in the human mind (i.e.,
observations/evaluations). Final Act. 3; Ans. 3.
Appellant argues the claims are not concerned with fundamental
economic principles or commercial interactions or behavior between people.
Appeal Br. 7. According to Appellant, “the claims address determining user
preferences from a variety of electronically stored sources in order to
determine a recommended seat based on the user preferences and other
attendees, and enabling the user to purchase the recommended seat on the
user’s client device.” Id. We are not persuaded.
Appellant’s statement that the claims determine a recommended seat
based on user preferences and other attendee information, and enable the
user to purchase the recommended seat reflects the concept the Examiner
identified as a fundamental economic practice and a commercial interaction
involving advertising and sales activities. The limitations in claim 1 recite a
commercial interaction between a marketer/seller and a consumer, such that
the marketer determines consumer information and criteria and accesses
attendee information to determine ticket suggestion information based on the
user information and criteria. Based on that determination a ticket or seating
recommendation is communicated to a consumer to facilitate a ticket
purchase. This activity between a marketer/seller and a consumer to
facilitate the sale of tickets is a well-known fundamental economic practice
and a commercial interaction in the form of marketing or sales activities or
behavior, and therefore an abstract idea. As discussed, Appellant’s
disclosure acknowledges that the ability for individuals to buy and sell
tickets online is generally well-known. Spec. ¶ 3. Appellant’s solution is
using information and criteria from consumers and attendee purchase
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information for delivering targeted seating recommendations to increase the
likelihood consumers will be seated near people with similar interests, thus,
facilitating ticket purchases. Id. ¶ 5.
This abstract idea is not meaningfully different from the ideas found
to be abstract in other cases before our reviewing court involving methods of
organizing human activity. For example, in Bridge and Post, Inc. v. Verizon
Communications, Inc., 778 F. App’x 882 (Fed. Cir. 2019), the Federal
Circuit held that abstract ideas include tracking a user’s computer network
activity and using information gained about the user to deliver targeted
media, such as advertisements. See also, e.g., Affinity Labs of Texas, LLC v.
Amazon.com, Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016) (customizing a user
interface to have targeted advertising based on user information);
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1370 (Fed. Cir. 2015) (tailoring information presented to a user based on
particular information); Morsa v. Facebook, Inc., 77 F. Supp. 3d 1007, 1013
(C.D. Cal. 2014), aff’d, 622 F. App’x 915 (Fed. Cir. 2015) (concluding that
targeting advertisements to certain consumers is no more than an abstract
idea). In light of these precedents, we conclude that claim 1 equally recites
an abstract idea.
Accordingly, we agree with the Examiner that claim 1 recites an
abstract idea.
Step 2A, Prong Two
Having concluded that claim 1 recites a judicial exception, i.e. an
abstract idea (Step 2A, Prong One), we next consider whether the claim
recites additional elements that integrate the judicial exception into a
practical application (Step 2A, Prong Two). 2019 Revised Guidance, 84
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Fed. Reg. at 51. When a claim recites a judicial exception and fails to
integrate the exception into a practical application, the claim is “directed to”
the judicial exception. Id. A claim may integrate the judicial exception
when, for example, it reflects an improvement to technology or a technical
field. Id. at 55.
The Federal Circuit has explained that “the ‘directed to’ inquiry
applies a stage-one filter to claims, considered in light of the specification,
based on whether ‘their character as a whole is directed to excluded subject
matter.’” 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.
Under Step 2A, Prong Two, the Examiner determines claim 1 recites
the additional elements (italicized above): one or more hardware processors,
a client device, and a graphical user interface of the client device. Final Act.
4. According to the Examiner, the claims are not integrated into a practical
application because these additional elements are recited at a high level of
generality and merely invoked as a tool to perform the abstract idea. Final
Act. 4; Ans. 3. In support of this position, the Examiner finds that paragraph
55 of Appellant’s Specification specifies that the claimed invention may be
implemented using one or more general purpose computers. Final Act. 4.
The Examiner states that “[t]he mere addition of the user information being
determined from a social networking website generally links the use of the
abstract idea to a particular technological environment or field of use (i.e., an
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online environment) and, as such, cannot integrate the abstract idea into a
practical application.” Ans. 3.
Appellant argues that the claims “improve online ticketing and/or the
technical field of recommending a ticket personalized for a specific user,
facilitating a purchase and sale of the recommended ticket, and real-time
delivery of the ticket.” Appeal Br. 8. According to Appellant, the
independent “claims provide an electronically automated approach for
gathering information from multiple people, including from various third-
party servers.” Id. at 9. We are not persuaded by Appellant’s argument.
First, because many of these features are part of the abstract idea, they
cannot integrate that into a practical application. Second, Appellant’s
argument regarding “real-time delivery of the ticket” and “third-party
servers” is not commensurate with the scope of claim 1 and therefore cannot
support an integration of the judicial exception. Ans. 4 (The Examiner notes
that the claims are silent regarding real-time delivery of the ticket and third-
party servers). The patent eligibility of a claim is based on the features
recited in the claim. See ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d
759, 769–70 (Fed. Cir. 2019) (“Even if ChargePoint’s specification had
provided, for example, a technical explanation of how to enable
communication over a network for device interaction (which, as discussed
above, it did not), the claim language here would not require those details.
Instead, the broad claim language would cover any mechanism for
implementing network communication on a charging station.”); Ericsson
Inc. v. TCL Commc’ns Tech. Holdings Ltd., 955 F.3d 1317, 1325 (Fed. Cir.
2020) (“[T]he specification may be helpful in illuminating what a claim is
directed to [but it] must always yield to the claim language when identifying
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the ‘true focus of a claim.’”) (citation omitted); Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016) (“The § 101 inquiry
must focus on the language of the Asserted Claims themselves.”); Digitech
Image Techs., LLC v. Elec. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir.
2014) (“Contrary to Digitech’s argument, nothing in the claim language
expressly ties the method to an image processor. The claim generically
recites a process of combining two data sets into a device profile.”);
Accenture Global Servs., GmbH v. Guidewire Software, 728 F.3d 1336,
1345 (Fed. Cir. 2013) (“[T]he important inquiry for a § 101 analysis is to
look to the claim.”).
Third, we agree with the Examiner that this alleged improvement may
reflect an improvement to the abstract idea of recommending an event ticket
based on user information and criteria for which a computer is used as a tool
in its ordinary capacity, but that does not reflect “an improvement in
computer capabilities or computer technology.” Ans. 4. We recognize that
“[s]oftware can make non-abstract improvements to computer technology
just as hardware improvements can, and sometimes the improvements can be
accomplished through either route.” Enfish, 822 F.3d at 1335. However, “to
be directed to a patent-eligible improvement to computer functionality, the
claims must be directed to an improvement to the functionality of the
computer or network platform itself.” Customedia Techs., LLC v. Dish
Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020) (citing Enfish, 822
F.3d at 1336–39). Claim 1 recites generic components arranged in no
particular way to perform generic functions of displaying, determining,
accessing, generating, communicating, and facilitating a purchase without
improving computers or networks. The Specification’s description of these
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components makes clear that they are generic components that do not
improve the functioning of a computer or other technology. See Spec. ¶ 49
(“[A] device that includes computer system 200 may comprise a personal
computing device (e.g., a smart phone, a computing tablet, a personal
computer, laptop, PDA, Bluetooth device, key FOB, badge, etc.) that is
capable of communicating with a network.”)); see also id. ¶¶ 50–55.
Accordingly, we determine that claim 1 lacks any additional elements
sufficient to integrate the abstract idea into a practical application.
Step Two of the Alice Framework (2019 Revised Guidance, Step 2B)
We next consider whether claim 1 recites additional elements,
individually, or as an ordered combination, that provide an inventive
concept. Alice, 573 U.S. at 217–18. The second step of the Alice test is
satisfied when the claim limitations involve more than performance of
well-understood, routine, and conventional activities previously known to
the industry. Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018);
see Revised Guidance, 84 Fed. Reg. 56 (explaining that the second step of
the Alice analysis considers whether a claim adds a specific limitation
beyond a judicial exception that is not “well-understood, routine,
conventional” activity in the field).
Appellant argues that “the combination of the steps ‘operates in a non-
conventional and non-generic way’ to determine a ticket recommendation
for a user based on the user's previous history, the user’s social interactions,
and characteristics of other’s attending the same event. This is supported at
least by the fact that the Examiner admits that the claims would be novel and
non-obvious in light of Sections 102 and 103, if not for the Section 101
rejection.” Appeal Br. 13. We disagree.
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We agree with the Examiner that claim 1 lacks additional elements
that provide an inventive concept. Final Act. 5–6. As discussed, the
additional elements recited in claim 1, i.e., hardware processor, client
device, and its graphical user interface are generic computer components
(see Spec. ¶¶ 49–55) that perform well-understood, routine, or conventional
functions of displaying, determining, accessing, generating, communicating,
and facilitating a purchase at a high level of generality. In fact, Appellant
acknowledges that the ability for individuals to buy and sell tickets online is
generally well-known. Spec. ¶ 3. See buySAFE, Inc. v. Google, Inc., 765
F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and sends the
information over a network—with no further specification—is not even
arguably inventive.”); In re Katz Interactive Call Processing Patent Litig.,
639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower
construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ discussed
below, those functions can be achieved by any general purpose computer
without special programming.”).
As an ordered combination, these additional elements provide no
more than when they are considered individually. Alice, 573 U.S. at 225.
They recite generic computer components that perform well-understood and
conventional functions. They are used as tools to implement the judicial
exception. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1169–70
(Fed. Cir. 2018) (limitations of various databases and processors did not
improve computers but used already available computers and available
functions as tools to execute the claimed process); Inventor Holdings LLC v.
Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (considering
the method steps of the representative claims as an “ordered combination”
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reveals that they “amount to ‘nothing significantly more’ than an instruction
to apply [an] abstract idea” using generic computer technology).
Moreover, “[t]he ‘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.” Diamond v. Diehr, 450 U.S. 175, 188–89,
(1981). Even if the steps are groundbreaking, innovative, or brilliant, that is
not enough for eligibility. See Ass’n for Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 591 (2013); accord SAP Am., 898 F.3d at 1163
(“No matter how much of an advance in the finance field the claims recite,
the advance lies entirely in the realm of abstract ideas, with no plausibly
alleged innovation in the non-abstract application realm. An advance of that
nature is ineligible for patenting.”). “An abstract idea can generally be
described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc.,
842 F.3d 1229, 1240 (Fed. Cir. 2016); see also Western Express Bancshares
v. Green Dot Corp., Appeal No. 2020-1079, 2020 WL 3967855, *3 (Fed.
Cir. July 14, 2020) (“But the absence of the exact invention in the prior art
does not prove the existence of an inventive concept.”). Therefore, the fact
that the Examiner has not rejected the claims under §§ 102 or 103 over the
prior art is not determinative of an inventive concept sufficient to make
claim 1 patent eligible.
Accordingly, we agree with the Examiner that claim 1 lacks an
inventive concept sufficient to transform the abstract idea into patent-eligible
subject matter. Thus, we sustain the rejection of independent claim 1 as
directed to a judicial exception under 35 U.S.C. § 101, and claims 11 and 21,
which fall with claim 1. For the same reasons, we also sustain the rejection
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of dependent claims 2, 5–10, 12, 15–20, and 22, which are not argued
separately.
CONCLUSION
The rejection of claims 1, 2, 5–12, and 15–22 under 35 U.S.C. § 101
is affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5–12,
15–22
101 Eligibility 1, 2, 5–12,
15–22

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED