Whitehead, Lorne A. et al.

Patent Trials and Appeals Board

Aug 20, 2019

12701706 - (D) (P.T.A.B. Aug. 20, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/701,706 02/08/2010 Lorne A. Whitehead MAM-0100 1623
92364 7590 08/20/2019
Spectrum IP Law Group LLC
8 Crystalglen
Aliso Viejo, CA 92656
EXAMINER
RINES, ROBERT D
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
08/20/2019 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):
dan.salehi@slgip.com
docketing@slgip.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LORNE A. WHITEHEAD, MICHELE ANN MOSSMAN, and
BLAKE R. WIGGS
____________________

Appeal 2018-007634
Application 12/701,7061
Technology Center 3600
____________________

Before LARRY J. HUME, JAMES W. DEJMEK, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 2, 5–14, and 16–20. Appellants have canceled claims 1, 3, 4, and 15.
See Br. 18–24. We have jurisdiction over the remaining pending claims
under 35 U.S.C. § 6(b).
We affirm.

1 Appellants identify Lorne Whitehead and Michele Mossman as the real
parties in interest. Br. 3.
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STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention generally relates to
“identifying permutations of features of an invention which can be used to
structure a reasonable number of (e.g.[,] 20) patent application claims
including claims of broad scope, claims of narrow scope, and a uniform
range of claims of intermediate scope . . . .” Spec. ¶ 2. In a disclosed
embodiment, the various features of an invention are identified. See e.g.,
Spec. ¶¶ 32–33. All combinations (i.e., permutations) of features are
identified. Spec. ¶ 35. User constraints may be applied to remove those
permutations that are illogical or impractical. Spec. ¶ 45. In addition, a user
may apply rankings (e.g., importance and/or specificity) to features of an
invention. Spec. ¶ 61. Based on the assigned rankings of the individual
features, total rankings for the different permutations may be determined.
Spec. ¶ 70. Ranked permutations of features may then be grouped (such as,
based on a level of specificity) according to a disclosed equation. See, e.g.,
Spec. ¶¶ 74–75. Within each group, the permutations may be sorted further
according to other rankings (e.g., importance). Spec. ¶ 80. A desired
number of permutations may be selected from the different groups and
structured into claims for a patent application. Spec. ¶¶ 80–81.
Claim 5 is representative of the subject matter on appeal and is
reproduced below:
5. A computer-implemented method of identifying textually
representable permutations of an integer number, N, of features
characterizing an invention, each identified permutation
corresponding to one of a desired number, L, of claims to be
included in an application to patent the invention, the steps of the
method being performed by a computer and comprising:
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receiving from a user a predetermined first rank value, S,
and a predetermined second rank value, I, for each one of the
features;
forming a plurality of initial permutations, each initial
permutation representative of one or more of the invention
features;
receiving from a user predetermined constraints
representative of: interdependent invention features, and a set of
invention feature combinations;
applying the predetermined constraints to the initial
permutations to identity an integer number, PT, of candidate
permutations which exclude the set of invention feature
combinations and include the interdependent invention features;
for each one of the candidate permutations: determining a
total first value, ST, for the one of the candidate permutations by
summing the first rank value, S, received for each one of the
features included in the one of the candidate permutations;
determining a total second value, IT, for the one of the
candidate permutations by summing the second rank value, l,
received for each one of the features included in the one of the
candidate permutations;
sorting the candidate permutations in accordance with the
total first value, ST, of each one of the candidate permutations;
allocating an overall first rank value, SR, to each one of the
candidate permutations;
separating the candidate permutations into L groups in
accordance with the overall first rank value, SR, of each one of
the candidate permutations;
selecting L of the candidate permutations, comprising
selecting, from each one of the L groups, one candidate
permutation having a total second value, IT, which is greater than
or equal to the total second value, IT, of any other candidate
permutation in the one of the L groups; and
textually representing each one of the L selected candidate
permutations;
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wherein the predetermined importance feature is
determined as a function of one of at least one of commercial
importance or capability of distinguishing over prior art.
The Examiner’s Rejections
1. Claims 2, 5–14, and 16–20 stand rejected under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Act. 2–4.
2. Claims 2, 5–14, and 16–20 stand rejected under pre-AIA
35 U.S.C. § 112, second paragraph, as being indefinite. Final Act. 5–8.
3. Claims 2, 5–14, and 16–20 stand rejected under pre-AIA
35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement. Final Act. 9–11.
ANALYSIS2
Rejections under pre-AIA 35 U.S.C. § 112
The Examiner has rejected claims 2, 5–14, and 16–20 under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. Final Act. 9–11. In particular, the Examiner found insufficient
support in the Specification for the claimed “predetermined first rank value.”
Final Act. 10. In addition, the Examiner has rejected claims 2, 5–14, and
16–20 under 35 U.S.C. § 112, second paragraph, as being indefinite. Final
Act. 5–8. In particular, the Examiner concluded “commercial importance,”
as recited in the independent claims, to be “a subjective appraisal relevant

2 Throughout this Decision, we have considered the Appeal Brief, filed
March 7, 2016 (“Br.”); the Examiner’s Answer, mailed September 23, 2016
(“Ans.”); and the Final Office Action, mailed June 24, 2015 (“Final Act.”),
from which this Appeal is taken. Appellants did not file a Reply Brief. To
the extent Appellants have not advanced separate, substantive arguments for
particular claims or issues, such arguments are considered waived.
See 37 C.F.R. § 41.37(c)(1)(iv) (2015).
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only to the user/entity at a specific time” and, therefore, indefinite. Final
Act. 5–6. Moreover, the Examiner also concluded the selection of rank
values to be indefinite. Final Act. 6–7.
In the Answer, the Examiner states (again) that Appellants’
amendments to the claims (prior to the Final Rejection) do not overcome the
rejections under pre-AIA 35 U.S.C. § 112, first paragraph, and pre-AIA
35 U.S.C. § 112, second paragraph, and that the rejections are maintained.
Ans. 2. Appellants do not respond to the Examiner’s rejection of claims 2,
5–14, and 16–20 under either 35 U.S.C. § 112, first paragraph or under pre-
AIA 35 U.S.C. § 112, second paragraph. See Br. 13 (seeking review and
reconsideration only of the Examiner’s rejection under 35 U.S.C. § 101).
To the extent Appellants have not advanced separate, substantive
arguments for particular claims or issues, such arguments are considered
waived. See 37 C.F.R. § 41.37(c)(1)(iv); see also Hyatt v. Dudas, 551 F.3d
1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a ground
of rejection to the Board, . . . the Board may treat any argument with respect
to that ground of rejection as waived.”). Additionally, “[i]f a ground of
rejection stated by the examiner is not addressed in the appellant’s brief,
appellant has waived any challenge to that ground of rejection and the Board
may summarily sustain it unless the examiner subsequently withdrew the
rejection in the examiner’s answer.” Manual of Patent Examining Procedure
(“MPEP”) § 1205.02 (9th ed. Rev. 08.2017, Jan. 2018).
Accordingly, we summarily sustain the Examiner’s rejection of claims
2, 5–14, and 16–20 under pre-AIA 35 U.S.C. § 112, first paragraph, and pre-
AIA 35 U.S.C. § 112, second paragraph.
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Rejection under 35 U.S.C. § 101
Appellants dispute the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. Br. 13–16. In particular,
Appellants argue the claimed invention is not abstract because the claims of
the pending application result in the identification of claims for a patent
application, and “claims are tangible and not abstract if drafted in
compliance with 35 U.S.C. § 112 requirements” and patents (as well as
patent applications) have value. Br. 13–14. Moreover, Appellants assert the
claims recite additional elements “to transform a computer to more than a
generic object.” Br. 15.
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 217 (2014). In addition, the Office recently published revised
guidance for evaluating subject matter eligibility under 35 U.S.C. § 101,
specifically with respect to applying the Alice framework. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Office Guidance”). If a claim falls within one of the statutory
categories of patent eligibility (i.e., a process, machine, manufacture, or
composition of matter) then the first inquiry is whether the claim is directed
to one of the judicially recognized exceptions (i.e., a law of nature, a natural
phenomenon, or an abstract idea). Alice, 573 U.S. at 217. As part of this
inquiry, we must “look at the ‘focus of the claimed advance over the prior
art’ to determine if the claim’s ‘character as a whole’ is directed to excluded
subject matter.” Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d
1253, 1257 (Fed. Cir. 2016). Per Office Guidance, this first inquiry has two
prongs of analysis (i) does the claim recite a judicial exception (e.g., an
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abstract idea), and (ii) if so, is the judicial exception integrated into a
practical application. 84 Fed. Reg. at 54. Under the Office Guidance, if the
judicial exception is integrated into a practical application, see infra, the
claim is patent eligible under § 101. 84 Fed. Reg. at 54–55. If the claim is
directed to a judicial exception (i.e., recites a judicial exception and does not
integrate the exception into a practical application), the next step is to
determine whether any element, or combination of elements, amounts to
significantly more than the judicial exception. Alice, 573 U.S. at 217;
84 Fed. Reg. at 56.
Here, we conclude Appellants’ claims recite an abstract idea.
Appellants’ claims are generally directed to organizing permutations of
features of an invention based on user-supplied criteria (e.g., constraints and
ranking values) to identify a desired set of permutations. See Final Act. 3;
see also Ans. 4–5. This is consistent with how Appellants describe the
claimed invention. See Spec. ¶ 2 (“identifying permutations of features of
an invention which can be used to structure a reasonable number of (e.g. 20)
patent application claims . . . .”); see also Br. 13 (“applicant’s disclosure
relates to [a] system and method for identifying invention feature
permutations for a reasonable number of patent application claims.”). As
described in the Specification, the number of possible permutations for a
given number of features, f, is defined by the mathematical relationship 2^f.
See Spec. ¶ 35. Additionally, organizing the available permutations by
applying user constraints is the application of a mathematical relationship of
the constraints to the permutations. See Spec. ¶¶ 46–54, Fig. 2. Therefore,
consistent with our Office Guidance and case law, we conclude that
organizing permutations of features of an invention based on user-supplied
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criteria (e.g., constraints and ranking values) to identify a desired set of
permutations is a mathematical concept (e.g., mathematical relationship or
mathematical calculation)—i.e., an abstract idea. See 84 Fed. Reg. at 52; see
also Digitech Image Techs., LLC v. Elec. for Imaging, Inc., 758 F.3d 1344,
1350 (Fed. Cir. 2014) (concluding that “a process of organizing information
through mathematical correlations and is not tied to a specific structure or
machine” to be abstract); SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
1167 (Fed. Cir. 2018) (concluding claims for providing statistical analysis of
investment data were directed to the abstract idea of “selecting certain
information, analyzing it using mathematical techniques, and reporting or
displaying the results of the analysis”).
Moreover, our reviewing court has noted that, in certain instances,
there may be an overlap between an abstract idea within the mathematical
concepts category and an abstract idea within the mental processes category.
See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir.
2016) (concluding that “analyzing information by steps people go through in
their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category”). Thus, we further
conclude organizing permutations of features of an invention based on user-
supplied criteria (e.g., constraints and ranking values) to identify a desired
set of permutations is a mental process (i.e., a concept performed in the
human mind, such as, an observation, evaluation, judgment, and opinion)—
i.e., an abstract idea. See 84 Fed. Reg. at 52; see also Content Extraction &
Transmission v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir.
2014) (concluding the claimed method of processing information from
various sources (i.e., hard copy documents) was directed to the abstract idea
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of “1) collecting data, 2) recognizing certain data within the collected data
set, and 3) storing that recognized data in a memory”); Berkheimer v. HP
Inc., 881 F.3d 1360, 1366 (Fed. Cir. 2018) (concluding the claimed method
of archiving an item in a generic computer processing system was directed
to the abstract ideas of “parsing and comparing data”).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., LTD.,
855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea . . . to
another abstract idea . . . does not render the claim non-abstract.”); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir.
2016) (determining the pending claims were directed to a combination of
abstract ideas).
Claim 5, reproduced below, identifies the claim limitations that recite
organizing permutations of features of an invention based on user-supplied
criteria (e.g., constraints and ranking values) to identify a desired set of
permutations in italics:
5. A computer-implemented method of identifying textually
representable permutations of an integer number, N, of features
characterizing an invention, each identified permutation
corresponding to one of a desired number, L, of claims to be
included in an application to patent the invention, the steps of the
method being performed by a computer and comprising:
receiving from a user a predetermined first rank value, S,
and a predetermined second rank value, I, for each one of the
features;
forming a plurality of initial permutations, each initial
permutation representative of one or more of the invention
features;
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receiving from a user predetermined constraints
representative of: interdependent invention features, and a set of
invention feature combinations;
applying the predetermined constraints to the initial
permutations to identity an integer number, PT, of candidate
permutations which exclude the set of invention feature
combinations and include the interdependent invention features;
for each one of the candidate permutations: determining a
total first value, ST, for the one of the candidate permutations by
summing the first rank value, S, received for each one of the
features included in the one of the candidate permutations;
determining a total second value, IT, for the one of the
candidate permutations by summing the second rank value, l,
received for each one of the features included in the one of the
candidate permutations;
sorting the candidate permutations in accordance with the
total first value, ST, of each one of the candidate permutations;
allocating an overall first rank value, SR, to each one of
the candidate permutations;
separating the candidate permutations into L groups in
accordance with the overall first rank value, SR, of each one of
the candidate permutations;
selecting L of the candidate permutations, comprising
selecting, from each one of the L groups, one candidate
permutation having a total second value, IT, which is greater than
or equal to the total second value, IT, of any other candidate
permutation in the one of the L groups; and
textually representing each one of the L selected candidate
permutations;
wherein the predetermined importance feature is
determined as a function of one of at least one of commercial
importance or capability of distinguishing over prior art.
More particularly, the concept of organizing permutations of features
of an invention based on user-supplied criteria (e.g., constraints and ranking
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values) to identify a desired set of permutations comprises (i) generating an
initial set of permutations from the feature set for the invention (i.e., the
claimed step of forming a plurality of initial permutations); (ii) applying the
user supplied criteria to the generated set of permutations (i.e., the claimed
step of applying the predetermined constraints); (iii) ranking and sorting the
permutations based on the user-supplied ranking values (i.e., the claimed
steps of determining a total first ranking value and total second ranking
value for each permutation using the user-supplied ranking values for each
feature; sorting the permutations based on the determined total ranking
values; allocating an overall rank value to each of the permutations; and
separating the permutations into a number of groups); and (iv) selecting,
based on the determined total ranking value for the permutations, a desired
number of permutations from each of the groups of permutations (i.e., the
claimed step of selecting a number, L, of permutations).
In addition, to the extent Appellants assert the pending claims are not
abstract because they have value, are tangible, and comply with the
requirements of 35 U.S.C. § 112 (see Br. 13–14), we disagree. Subject-
matter eligibility under 35 U.S.C. § 101 is a requirement separate from other
patentability inquiries. See Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 90 (2012) (recognizing that the § 101 inquiry and other
patentability inquiries “might sometimes overlap,” but that “shift[ing] the
patent-eligibility inquiry entirely to these [other] sections risks creating
significantly greater legal uncertainty, while assuming that those sections
can do work that they are not equipped to do”). Moreover, the importance
or value of the result of Appellants’ claim (which, in this case, is a patent
claim itself) does not demonstrate patent eligibility. See Ass’n for Molecular
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Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013)
(“Groundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry.”).
Because the claim recites a judicial exception, we next determine
whether the claim integrates the judicial exception into a practical
application. 84 Fed. Reg. at 54. To determine whether the judicial
exception is integrated into a practical application, we identify whether there
are “any additional elements recited in the claim beyond the judicial
exception(s)” and evaluate those elements to determine whether they
integrate the judicial exception into a recognized practical application.
84 Fed. Reg. at 54–55 (emphasis added); see also MPEP § 2106.05(a)–(c),
(e)–(h).
Here, we find the additional limitation(s) do not integrate the judicial
exception into a practical application. More particularly, the claims do not
recite (i) an improvement to the functionality of a computer or other
technology or technical field (see MPEP § 2106.05(a)); (ii) a “particular
machine” to apply or use the judicial exception (see MPEP § 2106.05(b));
(iii) a particular transformation of an article to a different thing or state
(see MPEP § 2106.05(c)); or (iv) any other meaningful limitation
(see MPEP § 2106.05(e)). See 84 Fed. Reg. at 55. Rather, the steps of
receiving user-supplied rank values and constraints, and presenting the
output of the judicial exception (i.e., textually representing the selected
permutations) are the type of extra-solution activities (i.e., in addition to the
judicial exception) the courts have determined insufficient to transform
judicially excepted subject matter into a patent-eligible application. See
MPEP § 2106.05(g); see also Bilski v. Kappos, 561 U.S. 593, 612 (2010)
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(holding the use of well-known techniques to establish inputs to the abstract
idea as extra-solution activity that fails to make the underlying concept
patent eligible); Elec. Power, 830 F.3d at 1355 (explaining that “selecting
information, by content or source, for collection analysis, and display does
nothing significant to differentiate a process from ordinary mental
processes”); Elec. Power, 830 F.3d at 1354 (recognizing “that merely
presenting the results of abstract processes of collecting and analyzing
information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and
analysis”); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir.
2014) (determining “the steps of consulting and updating an activity log
represent insignificant data-gathering steps” (internal quotation omitted));
Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can., 771 F.Supp.2d 1054,
1065 (E.D. Mo. 2011) aff’d, 687 F.3d 1266 (Fed. Cir. 2012) (explaining that
“storing, retrieving, and providing data . . . are inconsequential data
gathering and insignificant post solution activity”). Moreover, additional
elements in the limitations (e.g., describing how a total rank value is
calculated, or how an importance feature is determined) merely refine
elements of the abstract idea and do not otherwise confer patent eligibility to
the claims.
To the extent Appellants assert the additional limitations “transform a
computer to more than a generic object” (see Br. 15), we disagree. The
claims merely recite that the method is “performed by a computer” or that
the system comprises a computer to perform the claimed method, but
otherwise fail to recite a transformation of the computer to more than a
generic object. A general purpose computer that applies the judicial
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exception by use of conventional computer functions does not qualify as a
particular machine. Ultramercial, 772 F.3d at 716–17; see also
CyberSource Corp. v. Retail Decision, Inc., 654 F.3d 1366, 1375 (Fed. Cir.
2011) (“The mere manipulation or reorganization of data, however, does not
satisfy the transformation prong.”); MPEP § 2106.05(b), (c).
For at least the foregoing reasons, the claims do not integrate the
judicial exception into a practical application.
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to “significantly more” than
the abstract idea. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 77–
79). As stated in the Office Guidance, many of the considerations to
determine whether the claims amount to “significantly more” under step two
of the Alice framework are already considered as part of determining
whether the judicial exception has been integrated into a practical
application. 84 Fed. Reg. at 56. Thus, at this point of our analysis, we
determine if the claims add a specific limitation, or combination of
limitations, that is not well-understood, routine, conventional activity in the
field, or simply appends well-understood, routine, conventional activities at
a high level of generality. 84 Fed. Reg. at 56.
Appellants assert the claims require a computer to perform more than
generic computing functions and instead “require the computer to rapidly
devise every possible and suitable permutation of the claimed features and to
group them according to a user-defined ranking preference.” Br. 15.
However, contrary to Appellants’ assertions, Appellants’ claims do not
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recite specific limitations (or a combination of limitations) that are not well-
understood, routine, and conventional. See Final Act. 3–4; Ans. 9; see also
OIP Techs., Inc. v. Amazon.com, Inc., 788 F. 3d 1359, 1363 (Fed. Cir. 2015)
(“relying on a computer to perform routine tasks more quickly or more
accurately is insufficient to render a claim patent eligible”); Content
Extraction, 776 F.3d at 1347 (“The concept of data collection, recognition,
and storage is undisputedly well-known.”). Moreover, in the Specification,
Appellants indicate that an ordinarily skilled artisan could develop and
configure computer software to carry out the disclosed invention. See, e.g.,
Spec. ¶¶ 108, 119.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claims 2, 5–14,
and 16–20 under 35 U.S.C. § 101. See 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
We summarily affirm the Examiner’s decision rejecting claims 2, 5–
14, and 16–20 under pre-AIA 35 U.S.C. § 112, first paragraph.
We summarily affirm the Examiner’s decision rejecting claims 2, 5–
14, and 16–20 under pre-AIA 35 U.S.C. § 112, second paragraph.
We affirm the Examiner’s decision rejecting claims 2, 5–14, and 16–
20 under 35 U.S.C. § 101.
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.
§ 41.50(f).

AFFIRMED