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Patent Trials and Appeals BoardOct 14, 2021

2020002386 (P.T.A.B. Oct. 14, 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. 13/967,301 08/14/2013 Wenhui Liao 516059.000093 5491 25764 7590 10/14/2021 FAEGRE DRINKER BIDDLE & REATH LLP PATENT DOCKETING - INTELLECTUAL PROPERTY 2200 WELLS FARGO CENTER 90 SOUTH SEVENTH STREET MINNEAPOLIS, MN 55402-3901 EXAMINER FIGUEROA, KEVIN W ART UNIT PAPER NUMBER 2124 NOTIFICATION DATE DELIVERY MODE 10/14/2021 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): PatentDocketing@FaegreDrinker.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WENHUI LIAO, MASOUD MAKREHCHI, and SAMEENA SHAH Appeal 2020-002386 Application 13/967,301 Technology Center 2100 Before MIRIAM L. QUINN, GREGG I. ANDERSON, and ADAM J. PYONIN, Administrative Patent Judges. QUINN, Administrative Patent Judge. DECISION ON REQUEST FOR RECONSIDERATION Appeal 2020-002386 Application 13/967,301 2 Appellant requests rehearing under 37 C.F.R. § 41.52 of our Decision on Appeal mailed June 15, 2021 (“Decision” or “Dec.”) where we affirmed the Examiner’s final rejection of claims 1, 5−7, 9, 12−16, 21−28 under 35 U.S.C. § 101 by applying the Offices 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). The Request for Rehearing is denied. ANALYSIS A request for rehearing must state with particularity the points believed to have been misapprehended or overlooked. Arguments not raised in the briefs before the Board and evidence not previously relied upon in the briefs are not permitted in the request for rehearing. 37 C.F.R. § 41.52(a)(1). A request for rehearing is not an opportunity to express disagreement with a decision. The proper course for an applicant dissatisfied with a Board decision is to appeal, not to file a request for rehearing to re-argue issues that have already been decided. See 35 U.S.C. §§ 141, 145. Because the arguments presented are directed to certain claim limitations and based on our determination under the Guidance, we include for reference below an annotated version of claim 1, which is illustrative of the claimed subject matter and showing italicized portions denoting the limitations the Examiner has found are abstract ideas: [A] building a dynamic dictionary by: [1] accessing, using a computing device having a processor and a memory, event information from an event information source, [2] identifying, using the processor and the event information, a first event, wherein the first event comprises either a gain event associated with a stock Appeal 2020-002386 Application 13/967,301 3 price of a stock or a loss event associated with the stock price, wherein the first event is a gain event when the event information indicates a relative increase of the stock price that exceeds a predetermined return associated with a market index, and wherein the first event is a loss event when the event information indicates a relative decrease of the stock price that exceeds a predetermined loss associated with the market index, [3] accessing, using the computing device, a first set of messages from a message source, wherein the first set of messages is generated by a plurality of messaging users before the first event occurred, [4] associating, using the processor, the first set of messages with the first event, [5] determining, using the processor and based on whether the first event is a gain event or loss event, that a text feature of each message associated with the first event includes a positive or negative sentiment, respectively, and [6] storing the sentiment-associated text features in the dynamic dictionary in the memory; [B] accessing, using the computing device, a second set of messages associated with a second event from the message source; [C] computing, using the processor and dynamic dictionary of sentiment-associated text, an aggregate sentiment score for the second set of messages; [D] predicting, using the processor and aggregate sentiment score, a positive or negative event; [E] taking a long position with respect to the stock if the second event comprises a gain event; and Appeal 2020-002386 Application 13/967,301 4 [F] taking a short position with respect to the stock if the second event comprises a loss event. See Dec. 7−8. Appellant presents various arguments that we group according to topic. Claim Not Directed to Organizing Human Activity Appellant argues that it made arguments in the Reply refuting the Examiner’s findings that the claim was directed to an abstract idea of organizing human activity, and that we failed to consider those arguments. Req. Reh’g 1−2. In particular, Appellant argues that the claim is not directed to such an abstract idea because the claim is directed to “automatically associating text features with positive or negative sentiment based on a particular set of criteria (i.e., gain events or loss events) without necessarily comparing the text features to or looking up the text features.” Id. at 3. Appellant argues that neither the Examiner nor our Decision explains “how Appellant’s claimed specific approach for building a dynamic dictionary can be fairly characterized as organizing human activity or fundamental economic principles or practices.” Id.; see also id. at 3 (arguing for claim 25 that “the Examiner provides no explanation as to why these features are being ignored for determining what the claim is directed to.”). Appellant states: “What does building a dynamic dictionary – regardless of how the dictionary is used – have to do with organizing human activity or fundamental economic principles or practices?” Id. According to Appellant, our Decision focuses on the use of the dynamic dictionary, rather than the more appropriate focus of “building the dynamic dictionary.” Id. Appellant’s argument is not persuasive. First, just because the Reply was not cited does not mean it was overlooked; it was not. Rather, the Appeal 2020-002386 Application 13/967,301 5 Decision addressed the Appeal Brief, which made the argument Appellant says was included in the Reply and not considered. The Appeal Brief states that “the Examiner provides no explanation as to why the majority of claim 1’s features are being ignored for determining what the claim is directed to.” Appeal Br. 6. The Appeal Brief also argued that “the above-noted features of building a dictionary show that the claim is not directed to ‘organizing human activity.’” Id. The Appeal Brief continues, “Instead, the claim is directed to a particular approach for building a dynamic dictionary and a particular approach for applying the dynamic dictionary that cannot be fairly characterized as automating what a person performs in their mind.” Id. at 6−7. Thus, Appellant’s Appeal Brief did make the argument that the Examiner did not explain its finding that certain claim limitations are directed to an abstract idea of organizing human activity. And our Decision considered that argument fully. Dec. 8−10. For instance, we determined that limitations A(3)−A(5) recite the concept of searching for text in messages . . . to determine words that indicate the sentiment about the event, whether positive or negative. Id. at 9. These particular limitations are specific to building a dynamic dictionary. The Decision also explains that other claim limitations, limitations C−F, are more specifically directed to the application of the gathered sentiment- associated words in order to analyze the stock price. Id. The analyzed limitations, we stated, “set forth a process of analyzing a stock price fluctuation in relation to how the public feels about events surrounding the timing of the fluctuation.” Id. at 9−10. “This process is a fundamental economic practice of stock price analysis and prediction.” Id. at 10 (citing Bilski v. Kappos, 561 U.S. 593, 609, 611−612). Appeal 2020-002386 Application 13/967,301 6 Thus, our Decision addresses with specificity the combination of claimed limitations, building a dictionary and the alleged “application” of that dictionary to stock price analysis and prediction as a fundamental economic practice. Accordingly, we are not persuaded we misapprehended or overlooked Appellant’s argument presented in the Appeal Brief and in the Reply concerning the scope of “building” of the dynamic dictionary. As for Appellant’s argument about what the claim is really directed to, that argument was considered and found unpersuasive. Dec. 11. To the extent Appellant’s Reply re-characterizes the claimed “building a dynamic dictionary,” that argument was not materially different than the one presented in the Appeal Brief. In its Reply, Appellant states that the claim is directed to “automatically associating text features with positive or negative sentiment based on a particular set of criteria (i.e., gain events or loss events) without necessarily comparing the text features to or looking up the text features.” Id. at 2. Here, Appellant highlights the automatic association of text features with sentiments, and goes on to add something the claim does not require: “without comparing the text features to or looking up the text features.” The “determining” limitation does not place limits on the technique to be used in determining that a text feature includes a positive or negative sentiment. Therefore arguing that “building a dynamic dictionary” is an automatic association without performing any lookups or comparisons is not commensurate with the scope of the claim. Claim Not Directed to Mental Processes Appellant argues that the “the claim features recited for building a dictionary—individually or as combined—show that the claim is not directed . . . to ‘mental processes.’” Req. Reh’g 2. According to Appellant, Appeal 2020-002386 Application 13/967,301 7 our Decision focuses on the application of the dynamic dictionary, rather than the building of it, leading us to the “incorrect conclusion that the claims are directed towards ‘mental processes.’” Id. We are not persuaded by this argument. We addressed the limitations recited in the claims alone and as a combination in determining that certain limitations of the claim are directed to mental processes. Dec. 7−8, 10−11. Our Decision specifically addressed limitations A(1)—A(5) as “compiling the words used to describe the stock, Apple, or its products to determine if the words used in those posts are positive or negative.” Id. at 10. This particular part of the analysis focused on the building of the dynamic dictionary, as opposed to other limitations of the claim that address the application of the dynamic dictionary for stock prediction. Id. at 10 (analyzing limitations B−F). Accordingly, we are not persuaded we misapprehended or overlooked Appellant’s argument in the Appeal Brief, and repeated in the Reply, that Appellant’s argument was directed to “building” of the dynamic dictionary, rather than its “use.” To the extent Appellant argues that the claims are directed to a more specific way of “automatically associating text features with positive or negative sentiment based on a particular set of criteria (i.e., gain events or loss events),” that argument was found not persuasive. Dec. 11 (stating that Appellant’s argument that the claim is directed to a particular approach for building a dynamic dictionary was not persuasive). Also, it is not persuasive to argue that the claims perform the association “without necessarily comparing the text features to or looking up the text features.” Again, the claim language does not support that argument as stated above. Furthermore, Appellant takes issue with our summary of the claim language in describing how the claim is directed to mental processes. For Appeal 2020-002386 Application 13/967,301 8 instance, Appellant argues that the Board mischaracterized the claim feature because the claim does not recite that “if the words are used in those posts are positive or negative” or that posts are scanned for those “concerning a rise in a stock of interest.” Req. Reh’g 2−3. Pointing out these alleged inaccuracies, Appellant argues that the claimed approach does not involve “comparing words to a sentiment dictionary or determining whether the words themselves in a post suggest a rise or fall in a stock of interest.” Id. Patent Owner’s argument is not persuasive. Our Decision referred to the Specification in showing that the description of the invention supports a broad reading of the claimed functions being performable as a mental process. The claim requires that the messages are associated with an event, and an event relates to an increase or decrease in the price of a company stock. Spec. ¶ 14 (describing the objective of analyzing, to form predictions, messages generated by user’s who “often make references associated with such events” and describing events as stock price changes). Thus, a mental process performed by a human of associating the messages with the event and determining the text feature of each message including positive or negative sentiment would encompass the concept of “reading through past social media postings . . . for posts concerning a rise in a stock of interest” “and compiling the words used to describe the stock, Apple, or its products to determine if the words in those posts are positive or negative.” Dec. 10 (citing Spec. ¶¶ 21, 23−24). This comports with the claim language which states “determining . . . that a text feature of each message associated with the first event includes a positive or negative sentiment, respectively.” The claim does not require any particular method of determining that the text feature includes a positive Appeal 2020-002386 Application 13/967,301 9 or negative sentiment. Accordingly, we are not persuaded that we erred in determining that the claim is directed to a mental process as stated in our Decision. Claim 25 and Its Dependents Appellant argues that the Examiner and the Board ignored certain claimed features in concluding what the claim is directed to. Req Reh’g 3. We are not persuaded by Appellant’s argument. The arguments were included in the Appeal Brief and the Reply, and considered together with those of claim 1 because the substance was identical: the claim is not directed to “organizing human activity” but rather to a “particular approach for building a dynamic dictionary.” Appeal Br. 8; Reply 3. We addressed the substantively identical limitations of claims 1 and 25 together. See Dec. 11 (noting also that the arguments presented for why the claims were not directed to “organizing human activity” were bare assertions). To the extent Appellant’s argument attempts to focus more specifically on whether additional features of claim 25 should have been addressed in more detail, we note that the Examiner analyzed claim 1 as representative of the subject matter claimed in the independent claims, and they all claim in substantively similar language the “determining” limitation and its surrounding “accessing” and “predicting” steps. Final Act. 4. Nevertheless, the Examiner made a specific finding concerning the limitation of claim 25 that Appellant contends was ignored in the portion of the Answer that analyzes the claim as recited mental processes and methods of organizing human activity. Ans. 3−4 (listing for instance “computing a score based on previous text”). Thus, the Examiner finds, and we agree, that the limitation is directed to a mental process, as it merely requires computing Appeal 2020-002386 Application 13/967,301 10 an aggregate score for a set of messages by scoring text features within those messages as being positive or negative. The Reply did not address the Examiner’s finding that computing an aggregate score was a mental process. Nor did Appellant address with any specificity the Examiner’s finding that “using the processor and aggregate sentiment score” were generic computer functions. Ans. 5. Rather, the Reply raised a bare assertion, without foundation, that the Examiner ignored claim limitations. Accordingly, we find unpersuasive the argument that we misapprehended or erred in not noticing Appellant’s erroneous argument that the Examiner ignored claim language recited in claim 25. Inconsistency Argument Appellant argues that the Examiner is inconsistent in rejecting the claims under § 103 and § 101. According to Appellant, giving a variety of reasons a person of ordinary skill in the art would have arrived at the claimed invention, the Examiner contradicts the findings that the claims fail to recite a practical application. Req. Reh’g 4−5. According to Appellant, the “benefits” found by the Examiner in combining the references “are not asserted as being beneficial for improving ‘mental processes’ or ‘organizing human activity.’” Id. at 5. Appellant faults the Board for not addressing these alleged inconsistencies. We are not persuaded by Appellant’s argument. We did not address the inconsistency because it has no legal merit. First, the Examiner’s § 103 has been reversed, so whatever finding made for that rejection that could arguably be germane to the § 101 analysis has been vacated. Second, it is not inconsistent for the Office to assert that under the § 101 analysis the claims fail to recite a practical application and then under the § 103 analysis Appeal 2020-002386 Application 13/967,301 11 make findings of recognizable benefits in combining prior art teachings. The combination of teachings analysis is distinct and separate from the analysis of whether a claim, under § 101 law, is directed to an abstract idea. Here, for example, while the claims are performed as a mental process, there is no inconsistency in determine that one reference may recognize the benefit of, for example, improving stock prediction events and reaction analysis. The Examiner is not required to reconcile an “inconsistency” that does not exist: between the recognition of a “benefit” in predicting stocks with whether the mental process would also “benefit” from that recognition such that it transforms the mental process into a non-abstract idea. Regardless of how “beneficial” the use of the mental process may be, it is still a mental process. And Appellant presents no legal authority for the proposition presented. Provisional Application Appellant argues that the provisional application incorporated by reference provides examples of how the “claimed approaches improve upon prior art approaches and therefore provide a technical improvement.” Req. Reh’g 5. Appellant further argues that the Decision includes an impermissible finding that warrants designating the Decision as a New Grounds of Rejection. Id. at 5−6. In particular, Appellant states that the “Board asserted that ‘the claims are directed to automating that which was manually performed previously.’” Id. at 6. According to Appellant, the Examiner never made the assertion that automating a manual task does not transform the abstract idea into a practical application, and Appellant should have an opportunity to respond. Appeal 2020-002386 Application 13/967,301 12 We do not agree. Appellant argued the content of the provisional application as support for its argument that the claimed approach provided a technical improvement. Appeal Br. 9−10. For instance, stating that the claim does not attempt to monopolize “organizing human activity” or “fundamental economic principles or practices,” Appellant focused on the automatic generation of a dynamic dictionary as follows, the provisional application incorporated by reference in the pending application provides several examples of how the claimed approaches improve upon prior approaches and therefore provide a technical improvement. For example, the provisional application describes that prior approaches did not automatically generate a dynamic dictionary in the manner claimed. Id. at 9 (emphasis added). The Examiner responded to Appellant’s argument that the claim is directed to “automating a process.” Ans. 9 (addressing specifically that “it is also stated that the prior approaches did not automatically generate a dynamic dictionary.”) Our Decision analyzed the provisional application argument in light of the Examiner’s finding that there was no technological improvement. Thus, we do not agree that our Decision contains a “new” ground of rejection, but, rather, provides an explanation of how we view the argument presented and the Examiner’s finding in turn. Applying Berkheimer Appellant argues that the Examiner failed to account for a number of claim features under Prong One of the Guidance and that the “facts indicate that the claims are not well-understood, routine, and conventional.” Req. Reh’g 5. This argument included in the Reply merely repeats argument made in the Appeal Brief. Appeal Br. 10−11. We did not misapprehend or Appeal 2020-002386 Application 13/967,301 13 overlook it. Rather, we analyzed in detail whether any additional element, alone or as a combination with all other elements of the claim, adds a limitation that is not well-understood, routine, or conventional. Dec. 18−21. CONCLUSION The Request for Rehearing has been considered and denied. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). REHEARING DENIED Outcome of Decision on Rehearing Claims Rejected 35 U.S.C. § Reference(s)/Basis Granted Denied 1, 5–7, 9, 12–16, 21– 28 101 Eligibility 1, 5–7, 9, 12–16, 21– 28 Overall Outcome 1, 5–7, 9, 12–16, 21– 28 Final Outcome of Appeal After Rehearing Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5–7, 9, 12–16, 21– 28 101 Eligibility 1, 5–7, 9, 12–16, 21– 28 Overall Outcome 1, 5–7, 9, 12–16, 21– 28