Alexei Kisselev et al.

Patent Trials and Appeals Board

May 19, 2020

2019006645 (P.T.A.B. May. 19, 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.
12/926,896 12/16/2010 Alexei M. Kisselev 880417-0106-US00 8235
134795 7590 05/19/2020
MICHAEL BEST & FRIEDRICH LLP (DC)
790 N WATER ST
SUITE 2500
MILWAUKEE, WI 53202
EXAMINER
YOUNG, MICHAEL C
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
05/19/2020 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):
DCipdocket@michaelbest.com
nbenjamin@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXEI M. KISSELEV, YONG CHEN, ERIC ROSENBLATT,
MEGAN C. BERRY, and PATRIA S. KUNDE
Appeal 2019-006645
Application 12/926,896
Technology Center 3600
Before MICHAEL J. STRAUSS, ADAM J. PYONIN, and
MICHAEL M. BARRY, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. 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(a). Appellant identifies the real party in interest as Fannie
May. Page 2 of Appeal Brief in Response to Notice of Non-Compliant Brief
filed March 12, 2019 (“Appeal Br.”).
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Application 12/926,896

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STATEMENT OF THE CASE
Introduction
The Application is directed to “estimat[ing] the market value of a
single family home” by “model[ing] comparable properties and render[ing]
map images and associated information useful for analyzing comparable
properties.” Spec. ¶¶ 3, 16. Independent claims 1, 13, and 20 are the only
pending claims. Appeal Br. 25–28. Claim 1 is reproduced below for
reference (emphasis added):
1. A method for modeling appropriate comparable
properties, the method comprising:
accessing, by a processing unit, property data
corresponding to a geographical area;
performing, by the processing unit, a regression based
upon the property data, the regression modeling the relationship
between price and explanatory variables, wherein the
explanatory variables include property characteristics variables,
a time variable and a location variable;
identifying a subject property and a plurality of
comparable properties;
for each of the comparable properties, determining, by the
processing unit, value adjustments that respectively correspond
to each of the explanatory variables based upon differences in
values for the explanatory variables between the subject property
and each respective one of the comparable properties;
determining, by the processing unit, an economic distance
between the subject property and each of the plurality of
comparable properties, the economic distance constituted as a
single quantified value determined from respective proportional
contributions of each of the value adjustments corresponding to
the explanatory variables for each respective comparable
property;
weighting the plurality of comparable properties based
upon the appropriateness of each of the plurality of comparable
properties as comparables for the subject property, the weighting
being calculated according to a single function wherein the
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weighting is inversely proportional to each of the economic
distance from the subject property, geographic distance from the
subject property, and age of transaction;
displaying a map image corresponding to the geographical
area, wherein the map image includes a first indicator type
indicative of the subject property and a second indicator type
indicative of a subset of the plurality of comparable properties,
the subset being determined from the weighting of the plurality
of comparable properties; and
displaying a text listing that includes entries for the subject
property and the subset of the plurality of comparable properties
concurrently with displaying the map image.
References and Rejections
Claims 1, 13, and 20 are rejected under 35 U.S.C. § 101 as being
patent ineligible. Final Act. 10.
Claims 1, 13, and 20 are rejected under 35 U.S.C. § 103(a) as being
obvious in view of Robbins (US 2001/0039506 A1; Nov. 8, 2001), Kim (US
2005/0154657 A1; July 14, 2005), and Ramer (US 2007/0073717; Mar. 29,
2007). Final Act. 16.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Any arguments Appellant could have made but chose not to
make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We
discuss each of the grounds of rejection below.

Patent Eligibility
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101, because the claim limitations “do not offer “significantly
more” than the abstract idea itself.” Final Act. 14 (quotations omitted); see
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Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–218 (2014) (describing the
two-step framework “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.”).
After the mailing of the Final Action—but prior to the mailing of the
Answer or the filing of the Reply Brief—the U.S. Patent and Trademark
Office (USPTO) published revised guidance on the application of § 101
(“Guidance”). See 2019 Revised Patent Subject Matter Eligibility Guidance
Notice, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Notice”); see also USPTO, October
2019 Update: Subject Matter Eligibility (“October Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df). “All USPTO personnel are, as a matter of internal agency management,
expected to follow the guidance.” Notice, 84 Fed. Reg. at 51; see also
October Update at 1.
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 activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).2
Notice, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial
exception and (2) does not integrate that exception into a practical

2 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Notice - Section III(A)(2), 84 Fed. Reg. 54–55.
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application, does the Office then look, under Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
Notice, 84 Fed. Reg. at 52–56.
We agree with, and adopt as our own, the Examiner’s eligibility
analysis. We add the following primarily for emphasis and clarification with
respect to the Guidance.

A. Step 2A, Prong One
We agree with the Examiner’s determination that the claims recite the
judicial exception of “certain methods of organizing human activity
specifically advertising, marketing or sales activities” pursuant to Prong One
of the Guidance. Ans. 6. Claim 1, for example, recites steps of accessing
property data, analyzing the data, and displaying the results of the analysis.
See Appeal Br. 22 (describing the claim as “a combined order of specific
rules that renders information [e.g., property data, altered property, and
updates based upon geographical area] into a specific format [e.g., first and
second rankings of properties based upon separate instances of a comparable
selection model],” “that are then used and applied to create desired results
[e.g., map image updates and corresponding ranked listing updates]”). The
Examiner concludes the particular limitations of claim 1 recite a judicial
exception:
The claim[ed] invention amounts to receiving information
regarding a subject property and a plurality of comparable
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properties in order to analyze and determine differences
between the subject property and the comparable properties. The
invention displays a list of identified comparable properties that
is most comparable to the subject property. The invention
analyzes property information in order to assess differences and
similarities between the properties which is similar to the
abstract idea identified in the 2019 PEG in grouping “b” in that
the claims are directed to certain methods of organizing human
activity such as commercial or legal interactions such as
marking and advertising.
Ans. 8. We determine the Examiner has properly analyzed the claim
limitations under Prong One of the Guidance—the Examiner has identified
the specific limitations in the claim that fall within the subject matter
groupings of abstract ideas enumerated in the Guidance, and has provided a
reasoned explanation sufficient to support the determination. See Ans. 6–9;
Notice, 84 Fed. Reg. at 54. We also agree with the Examiner that “the
claims recite abstract mental processes” (Final Act. 12), as the limitations
identified by the Examiner (see Final Act. 11, 12) are steps of “observation,
evaluation, judgment, opinion.” Notice, 84 Fed. Reg. at 52; see also
October Update at 7–9.
Accordingly, we find no error in the Examiner’s determination that
the claims recite a judicial exception under Prong One of the Guidance. See
Notice, 84 Fed. Reg. at 54; cf. Trading Techs. Int’l, Inc. v. IBG LLC, 921
F.3d 1084, 1093 (Fed. Cir. 2019) (“As a general rule, ‘the collection,
organization, and display of two sets of information on a generic display
device is abstract.’”) (quoting Interval Licensing LLC v. AOL, Inc., 896 F.3d
1335, 1345 (Fed. Cir. 2018)); Elec. Power Grp., 830 F.3d at 1354–55
(finding claim directed to the abstract idea of “collecting information,
analyzing it, and displaying certain results” to be ineligible); Versata Dev.
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Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015)
(determining claims recite “the abstract idea of determining a price using
organization and product group hierarchies”); OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir. 2015) (“This concept of
offer based pricing is similar to other fundamental economic concepts found
to be abstract ideas.”) (quotations omitted); In re Villena, 745 F. App’x 374,
376 (Fed. Cir. 2018) (determining “the concept of property valuation, that is,
determining a property’s market value, is a fundamental economic practice
long prevalent in our system of commerce”) (quotations omitted); Move, Inc.
v. Real Estate All. Ltd., 721 F. App’x 950, 954 (Fed. Cir. 2018) (determining
claims recite “the abstract idea of a method for collecting and organizing
information about available real estate properties and displaying this
information on a digital map that can be manipulated by the user”)
(quotations omitted).
Accordingly, independent claim 1, and independent claims 13 and 20
which include similar limitations, recite a judicial exception under Prong
One of the Guidance. See Notice, 84 Fed. Reg. at 54; see also October
Update at 2.

B. Step 2A, Prong Two
Appellant argues claim 1 “recite[s] a practical application” by
“set[ting] forth additional elements that reflect an improvement in the
functioning of a computer, or an improvement to other technology or
technical field.” Reply Br. 6, 8. According to Appellant, the recited
“[r]egression analysis is performed on very large datasets, where it is
completely impractical to individually tweak runs in order to provide
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improved results.” Id. at 8; see also Appeal Br. 18–20. Appellant further
contends claim 1 provides “an improved technical implementation and
corresponding user interface improvements that provide improved
identification of appropriate comparables along with an ability to review
them in map-and-text b[a]sed form in an improved and more meaningful
manner.” Reply Br. 9; see also Appeal Br. 20, 21.
We are not persuaded the Examiner errs in determining the additional
elements of claim 1 “fail[] to integrate the judicial exception into a practical
application because the instant application merely recites words ‘apply it’
(or an equivalent) with the judicial exception or merely includes instructions
to implement an abstract idea.” Ans. 9. The alleged “additional elements”
that Appellant relies on for arguments3 under Step 2A, Prong Two are part
of the abstract idea as identified by the Examiner. See Reply Br. 7, 8; Ans.
10 (“[T]he instructions entirely comprise the abstract idea.”). Appellant
cannot rely solely on improvements recited by the abstract idea as providing
the basis to conclude the abstract idea is integrated into a practical
application. See Notice, 84 Fed. Reg. at 55 n. 24; Trading Techs. Int’l., Inc.
v. IBG LLC, 921 F.3d 1084, 1093 (Fed. Cir. 2019) (“The abstract idea itself
cannot supply the inventive concept, no matter how groundbreaking the
advance.”). Here, Appellant has not identified additional elements,
individually or in combination, that integrate the exception into a practical

3 See, e.g. Appeal Br. 20 (“[T]he features of the pending claims, and in
particular claim 1, include a specific process or a specific structure that
provides an improved technological result, i.e., an updatable ranked listing
of comparable properties with separate and distinct applications of a
valuation model that is a new means for assessing and updating listings of
comparable properties against a correspondingly updatable map image.”)
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application. See Notice, 84 Fed. Reg. at 54, 55. Rather, claim 1 includes a
“processing unit” as an additional element, and we agree with the Examiner
the claimed use of this element “amounts merely to an instruction to apply
the abstract idea on the generic computing system/platform.” Ans. 11;
Notice, 84 Fed. Reg. at 55.
Even if we consider the disputed limitations as additional elements,
we disagree with Appellant’s contentions that such limitations remove the
claims from the realm of ineligible subject matter. The claimed method
identifies and displays real estate properties that are similar to a subject
property, which merely automates processes normally performed by realtors
and others who are ordinarily skilled in the real estate arts. See Spec. ¶¶ 2–
5; Robbins ¶ 4 (“In order to estimate the market value, the real estate
appraiser attempts to find recent sales that could be construed as reasonable
substitutes for the subject property.”); Peter F. Colwell & Gene Dilmore,
1999, “Who Was First? An Examination of an Early Hedonic Study,” Land
Economics, University of Wisconsin Press, vol. 75(4), pages 620–26. The
claimed display of a text listing and map image is recited at a high level of
generality, and is used to merely display the results of the analysis.4 See
October Update n. 20; Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335,
1347 (Fed. Cir. 2018) (“The asserted improvement here is the presentation
of information in conjunction with other information. Such an information-
based improvement is not an improvement rooted in computer technology.”)
(quotations omitted); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,

4 We note that, contrary to Appellant’s arguments (see, e.g. Appeal Br. 18),
claim 1 does not recite that the displayed image is updated or adjusted.
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1355 (Fed. Cir. 2016) (“The claims at issue here do not require an arguably
inventive device or technique for displaying information.”).
Based on the foregoing, we agree with the Examiner that the elements
of claim 1 do not improve the underlying or other technology, or otherwise
integrate the judicial exception into a practical application. See Final Act. 3;
Ans. 9; October Update at 12, 13; Customedia Techs., LLC v. Dish Network
Corp., No. 2018-2239, 2020 WL 1069742, at *4 (Fed. Cir. Mar. 6, 2020)
(“We have also held that improving a user’s experience while using a
computer application is not, without more, sufficient to render the claims
directed to an improvement in computer functionality.”); OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d at 1363 (“[T]he ability to automate or otherwise
make more efficient traditional price-optimization methods . . . . is
insufficient to render [the] claim patent eligible.”); In re Villena, 745 F.
App’x at 376 (“[T]he basic steps of receiving user input, producing property
valuations, and providing display information . . . . is a classic case of
implementing an abstract idea on a computer.”); Move, Inc., 721 F. App’x at
956 (“While the ideas of storing available real estate properties in a database
and selecting and displaying a particular geographic area may well be
improvements in the identification of available real estate properties, there is
no evidence that these ideas are technological improvements.”).
Furthermore, we determine the specificity of the present claim is
insufficient to establish patent eligibility. Cf. Alice, 573 U.S. at 222
(alterations in original) (quoting Parker v. Flook, 437 U.S. 584, 593 (1978))
(“In holding that the process was patent ineligible, we rejected the argument
that ‘implement[ing] a principle in some specific fashion’ will
‘automatically fal[l] within the patentable subject matter of § 101.’”).
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Similarly, any questions on preemption in the instant case have been
resolved by the analysis herein and by the Examiner. See Two-Way Media
Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir.
2017) (“[W]here a patent’s claims are deemed only to disclose patent
ineligible subject matter under the Alice framework, as they are in this case,
preemption concerns are fully addressed and made moot.”).
Accordingly, we determine claim 1 does not integrate the judicial
exception into a practical application. See Notice, 84 Fed. Reg. at 54. As
the claim recites a judicial exception and fails to integrate the exception into
a practical application, the claim is “directed to the . . . judicial exception.”
Id. at 54.

C. Step 2B
Appellant argues “Examiner’s blanket assertions that the additional
elements in the pending claims are well-understood, routine, and
conventional is improper,” and “the Examiner has not expressly supported
the rejection of the pending claims under 35 U.S.C. § 101 in writing with the
required objective evidence.” Appeal Br. 15.
We are not persuaded the Examiner errs. The Examiner reasonably
determines that the additional elements recited by independent claim 1—
individually and in combination—are well understood, routine, and
conventional. See Final Act. 5, 6, 13–15 (citing Spec. ¶ 73); Ans. 9–11
(citing Spec. ¶¶ 73, 74); Alice, 573 U.S. at 226 (“Nearly every computer will
include a ‘communications controller’ and ‘data storage unit’ capable of
performing the basic calculation, storage, and transmission functions
required by the method claims.”). In response, Appellant has not identified
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additional elements that amount to significantly more than the judicial
exception. See, e.g., Appeal Br. 13–15; Notice, 84 Fed. Reg. at 55–56;
Thus, we determine the claim limitations, individually and as an ordered
combination, do not provide significantly more than the recited judicial
exception.
We are not persuaded the Examiner errs in determining independent
claim 1 is patent ineligible. Appellant does not present additional
substantive arguments on the remaining claims. See Reply Br. 10.
Accordingly, we sustain the Examiner’s eligibility rejection of claims 1, 13,
and 20.

Obviousness
Appellant argues the Examiner’s obviousness rejection is in error,
because “Robbins . . . fails to disclose the weighting features that are . . .
particularly-claimed by Applicant.” Appeal Br. 10. Appellant contends the
Examiner finds “that Robbins and Kim make such a specific disclosure
[regarding weighting] but does not actually explain where the specific
disclosure is found in any reference, other than asserting by relatively large
conjecture that the features are somehow present.” Reply Br. 4. Appellant
further asserts that “[n]owhere does Robbins mention a weighting inversely
proportional to each of the named factors,” and Kim and Ramer fail to make
up for such deficiencies. Id. at 4, 5; Appeal Br. 10, 11.
Claim 1 recites weighting the comparable properties, “wherein the
weighting is inversely proportional to each of the economic distance from
the subject property, geographic distance from the subject property, and age
of transaction.” Appeal Br. 25. The Examiner finds the combination
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teaches the weighting limitation as claimed, because “the combination of
Robbins and Kim teaches a regression model that provides for a quality
score (a weighted value) based of various factors including economic
distance, geographic distance and age of transaction (See at least Robbins: []
137, 147, 154, 173-174, 178-179, 182, 184, 186 and 193).” Ans. 4; see
Final Act. 18–26.
We are persuaded the Examiner’s obviousness rejection is in error.
Notably, although the Examiner relies on the combination of Robbins and
Kim for the weighting limitation, the rejection fails to cite any paragraphs of
Kim that teach or suggest the various factors being weighted. See Ans. 4
(citing only specific paragraphs of Robbins); Final Act. 25 (not mentioning,
e.g., distance or age of a property). The Examiner cites to various
paragraphs of Robbins without explaining which specific disclosures teach
or suggest each claim element. See Ans. 4. Nor do we see, based on the
record before us, that Robbins and Kim teach or suggest the weighting
factors as claimed. Accordingly, the Examiner provides insufficient
evidence to support a finding that the references teach the recited “weighting
[that] is inversely proportional to each of the economic distance from the
subject property, geographic distance from the subject property, and age of
transaction.” See MPEP § 2142 (“[T]he examiner must provide evidence
which as a whole shows that the legal determination sought to be proved
(i.e., the reference teachings establish a prima facie case of obviousness) is
more probable than not.”).
We are persuaded the Examiner errs in rejecting independent claim 1
as obvious in view of the cited references. Independent claims 13 and 20
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recite similar limitations. See Final Act. 16. Accordingly, we do not sustain
the Examiner’s obviousness rejection of independent claims 1, 13, and 20.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Basis/Reference(s) Affirmed Reversed
1, 13, 20 101 Eligibility 1, 13, 20
1, 13, 20 103 Robbins, Kim,
Ramer
1, 13, 20
Overall
Outcome
1, 13, 20

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