Corville Orain. Allen et al.

Patent Trials and Appeals Board

Aug 22, 2019

14332573 - (D) (P.T.A.B. Aug. 22, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/332,573 07/16/2014
75916 75·90 09/06/2019
IBM AUS IPLA W (GLF)
c/o Garg Law Finn, PLLC
10701 Corporate Dr., Suite 230
Stafford, TX 77477
FIRST NAMED INVENTOR
CORVILLE ORAIN ALLEN
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PA TENTS
P.O. llox 1450
Alexondrio, Virginia 22313-1450
www.uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
AUS920 I 30283US2 1037
EXAMINER
SECK, ABABACAR
ART UNIT PAPER NUMBER
2122
NOTIFICATION DATE DELIVERY MODE
09/06/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning th_is 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):
dpandya@garglaw.com
uspto@garglaw.com
garglaw@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CORVILLE ORAIN ALLEN, IAN MICHAEL BENNETT,
TORSTEN BITTNER, and KAY MULLER
Appeal 2018-008979
Application 14/332,573
Technology Center 2100
Before JOHN A. JEFFERY, DENISE M. POTHIER, and
JUSTIN BUSCH, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellants 1 appeal from the Examiner's
decision to reject claims 1-12, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify the real party in interest as International Business
Machines Corporation. App. Br. 2.
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Application 14/332,573
STATEMENT OF THE CASE
Appellants' invention expands an answer key by ( 1) creating an
extended answer type in the answer key according to a definition; (2)
populating the extended answer type such that an unrepresented answer
becomes an additional valid response to a question; and (3) using the
populated extended answer type to verify that a generated answer from a
question and answer (Q and A) system is correct. See generally Abstract;
Spec. ,r,r 1, 14-16.
Claim 1 is illustrative:
1. A method for expanding an answer key to verify a
question and answer (Q and A) system, the method comprising:
constructing a definition of an extended answer type,
wherein the extended answer type represents an answer type of
an unrepresented answer, wherein the unrepresented answer is
unrepresented in the answer key as a valid response to a
question in a set of valid responses to the question in the answer
key;
creating, using a processor and a memory, the extended
answer type in the answer key according to the definition;
populating the extended answer type such that the
unrepresented answer becomes as [sic] additional valid
response to the question, the creating and the populating
extending the answer key to form an extended answer key; and
using the populated extended answer type in the extended
answer key to verify that a generated answer from the Q and A
system is correct.
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THE REJECTION
The Examiner rejected claims 1-12 under 35 U.S.C. § 101 as directed
to ineligible subject matter. Final Act. 2-6. 2
CONTENTIONS
The Examiner determines that the claimed invention is directed to the
abstract idea of "expanding an answer key to verify a question and answer
(Q and A) system." Ans. 3. The Examiner adds that the "processor" and
"memory" recited in the claims are additional elements that do not add
significantly more than the abstract idea. Id. at 4-5. Based on these
determinations, the Examiner concludes that the claims are ineligible under
§ 101. Id. at 3.
Appellants argue that the claimed invention is not directed to an
abstract idea. App. Br. 8-1 O; Reply Br. 2-4. According to Appellant, not
only did the Examiner fail to provide sufficient evidence to support the
second step of the analysis set forth in Alice Corp. v. CLS Bank Int'!, 573
U.S. 208,216 (2014), but the claimed invention is said to solve a problem
unique to a Q and A system, which is said to improve the existing state of
the recognized technological field of endeavor. App. Br. 8-9; Reply Br.
2-4.
2 Throughout this opinion, we refer to (1) the Final Rejection mailed
November 9, 2017 ("Final Act."); (2) the Appeal Brief filed March 26, 2018
("App. Br."); (3) the Examiner's Answer mailed August 13, 2018 ("Ans.");
and (4) the Reply Brief filed September 21, 2018.
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Application 14/332,573
ISSUE
Under § 101, has the Examiner erred in rejecting claims 1-12 as
directed to ineligible subject matter? This issue turns on whether the claims
are directed to an abstract idea and, if so, whether recited elements-
considered individually and as an ordered combination-transform the
nature of the claims into a patent-eligible application of that abstract idea.
PRINCIPLES OF LAW
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. See, e.g., Alice, 573 U.S. at 216.
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593,611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
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mathematical formulas (Parker v. Flook, 437 U.S. 584, 594-95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 191
(19 81)); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267-68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 69 ( citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). That
said, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. (citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we turn to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
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eligible application." Alice, 573 U.S. at 221 ( quotation marks and citation
omitted). "A claim that recites an abstract idea must include 'additional
features' to ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].'" Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic compl!ter implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention." Id.
In January 2019; the USPTO published revised guidance on the
application of§ 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("Guidance").
Under the Guidance, we first look to whether the claim recites:
( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MANUAL OF PA TENT EXAMINING PROCEDURE
(MPEP) §§ 2106.05(a)-(c), (e)-(h) (9th ed. Rev. 08.2017, Jan. 2018)).
Only if a claim ( 1) recites a judicial exception, and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional in the field (see MPEP
§ 2106.0S(d)); or
( 4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.
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ANALYSIS
Alice/Mayo Step One
Independent claim 1 recites:
A method for expanding an answer key to verify a
question and answer (Q and A) system, the method comprising:
constructing a definition of an extended answer type,
wherein the extended answer type represents an answer type of
an unrepresented answer, wherein the unrepresented answer is
unrepresented in the answer key as a valid response to a
question in a set of valid responses to the question in the
answer key,·
creating, using a processor and a memory, the extended
answer type in the answer key according to the definition,·
populating the extended answer type such that the
unrepresented answer becomes as[an] additional valid
response to the question, the creating and the populating
extending the answer key to form an extended answer key; and
using the populated extended answer type in the extended
answer key to verify that a generated answer from the Q and A
system is correct. 3
As the Specification explains, the present invention expands an
answer key by ( 1) creating an extended answer type in the answer key
according to a definition; (2) populating the extended answer type such that
an unrepresented answer becomes an additional valid response to a question;
and (3) using the populated extended answer type to verify that a generated
answer from a question and answer (Q and A) system is correct. Spec. ,r,r 1,
14-16.
3 Unless otherwise indicated, we italicize and/or quote text reproducing the
recited limitations for emphasis and clarity.
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We first note that the claim 1 recites "[a] method for expanding an
answer key to verify a question and answer (Q and A) system, the method
comprising: .... " We emphasize "method" because to the extent
Appellants contend that claim 1 somehow falls within the manufacture or
machine categories of patentable subject matter identified by 35 U.S.C.
§ 101 by arguing that the claimed invention "satisfies an 'article of
manufacture' or 'machine' requirement for patentability" (see App. Br. 8),
claim 1 nevertheless falls only in the process category of § 101. See
Guidance, 84 Fed. Reg. at 53-54 (citing MPEP §§ 2106.03, 2106.06); see
also MPEP § 2104.
But despite falling within this statutory category, we must still
determine whether the claim is directed to a judicial exception, namely an
abstract idea. See Alice, 573 U.S. at 217. To this end, we must determine
whether the claim (1) recites a judicial exception, and (2) fails to integrate
the exception into a practical application. See Guidance, 84 Fed. Reg. at
52-55. If both elements are satisfied, the claim is directed to ajudicial
exception under the first step of the Alice/Mayo test. See id.
In the rejection, the Examiner determines that claim 1 is directed to an
abstract idea, namely "a mental process" (Final Act. 4) and "expanding an
answer key to verify a question and answer (Q and A) system" (Ans. 3). To
determine whether a claim recites an abstract idea, we ( 1) identify the
claim's specific limitations that recite an abstract idea, and (2) determine
whether the identified limitations fall within certain subject matter
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groupings, namely, ( a) mathematical concepts4; (b) certain methods of
organizing human activity5; or (c) mental processes. 6
Turning to claim 1, we first note that the only recited method step that
uses a processor and memory is the step that calls for creating an extended
answer type in the answer key: no other steps use these components.
Nevertheless, apart from these two components, all of claim 1 's recited
steps, which collectively are directed to expanding an answer key to verify
an answer is correct, fit squarely within at least one of the above categories
of the USPTO's guidelines.
First, the step reciting
constructing a definition of an extended answer type,
wherein the extended answer type represents an answer type of
an unrepresented answer, wherein the unrepresented answer is
unrepresented in the answer key as a valid response to a question
in a set of valid responses to the question in the answer key
merely recites a function that could be done by a person who constructs such
information, such as a teacher. Notably, the constructing could be done
4 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. at 52.
5 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Guidance, 84 Fed. Reg. at 52.
6 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Guidance, 84 Fed. Reg.
at 52.
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mentally by merely thinking about, or writing down, such a definition of an
extended answer type that does not already exist in an answer key-a step
that can involve mere observation and logical reasoning. Cf CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011)
(noting that a recited step that utilized a map of credit card numbers to
determine the validity of a credit card transaction could be performed
entirely mentally by merely using logical reasoning to identify a likely
instance of fraud by merely observing that numerous transactions using
different credit cards all originated from the same IP address); MERRIAM-
WEBSTER'S COLLEGIATE DICTIONARY 248 (n. def lb) (10th ed. 1993)
( defining "construct" as "something constructed by the mind: as ... a
product of mental invention."). Accordingly, the recited constructing step
falls squarely within the mental processes category of the agency's
guidelines and, therefore, recites an abstract idea. See Guidance, 84 Fed.
Reg. at 52 (listing exemplary mental processes, including observation and
evaluation).
Second, the step reciting "creating . .. the extended answer type in the
answer key according to the definition" merely recites a function that could
be done by a person who creates such information, such as a teacher.
Notably, the creating could be done mentally by merely thinking about, or
writing down, such an extended answer type-a step that can involve mere
observation and logical reasoning. Cf CyberSource, 654 F.3d at 1372-73
(Fed. Cir. 2011); Blue Spike, LLC v. Google Inc., 2015 WL 5260506, at *6
(N.D. Cal. 2015), aff'd, 669 F. App'x 575 (Fed. Cir. 2016) (holding a claim
reciting creating an abstract of a reference signal input as mirroring the
manner in which the human mind undertakes the same task). Accordingly,
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the recited creating step falls squarely within the mental processes category
of the agency's guidelines and, therefore, recites an abstract idea. See
Guidance, 84 Fed. Reg. at 52.
Third, the step reciting "populating the extended answer type such
that the unrepresented answer becomes as additional valid response to the
question, the creating and the populating extending the answer key to form
an extended answer key" merely recites a function that could be done by a
person who populates such information, such as a teacher. Notably, the
populating could be done mentally by merely thinking about, or writing
down, such a populated extended answer type-a step that can involve mere
observation and logical reasoning. Cf CyberSource, 654 F.3d at 1372-73
(Fed. Cir. 2011 ); The Jewelry Channel, Inc. USA d/b/a Liquidation Channel
v. America's Collectibles Network, Inc., 2014 WL 53 86840, at * 11 (PTAB
2014), aff'd America's Collectibles Network, Inc. v. Jewelry Channel, Inc.
USA, 672 F. App'x 997 (Fed. Cir. 2017) (holding a claim reciting, among
other things, placing each caller into a queue can be performed by a person
using mental steps). Accordingly, the recited populating step falls squarely
within the mental processes category of the agency's guidelines and,
therefore, recites an abstract idea. See Guidance, 84 Fed. Reg. at 52.
Fourth, the step reciting "using the populated extended answer type in
the extended answer key to verify that a generated answer from the Q and A
system is correct" merely recites a function that could be done by a person
who verifies such information, such as a teacher. Notably, the verifying
could be done mentally by merely thinking about, or writing down, such a
verification-a step that can involve mere observation and logical reasoning.
Cf CyberSource, 654 F.3d at 1372-73 (Fed. Cir. 2011). Accordingly, the
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recited verification step falls squarely within the mental processes category
of the agency's guidelines and, therefore, recites an abstract idea. See
Guidance, 84 Fed. Reg. at 52.
Although the claim recites an abstract idea based on these mental
processes, we nevertheless must still determine whether the abstract idea is
integrated into a practical application, namely whether the claim applies,
relies on, or uses the abstract idea in a manner that imposes a meaningful
limit on the abstract idea, such that the claim is more than a drafting effort
designed to monopolize the abstract idea. See id. at 54-55. To this end, we
( 1) identify whether there are any additional recited elements beyond the
abstract idea, and (2) evaluate those elements individually and collectively to
determine whether they integrate the exception into a practical application.
See id.
Here, the recited (1) ''processor" and (2) "memory" are the only
recited elements beyond the abstract idea, but those additional elements do
not integrate the abstract idea into a practical application when reading claim
1 as a whole. Accord Ans. 4-5 (finding the recited (1) "processor" and (2)
"memory" are the additional elements of claim 1 ).
First, Appellants' reliance on the decision in DDR Holdings, LLC v.
Hotels.Com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) (App. Br. 8; Reply Br. 3)
is unavailing. There, instead of a computer network operating in its normal,
expected manner by sending a website visitor to a third-party website
apparently connected with a clicked advertisement, the claimed invention in
DDR generated and directed the visitor to a hybrid page that presented (1)
product information from the third party, and (2) visual "look and feel"
elements from the host website. DDR, 773 F.3d at 1258-59. Given this
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particular Internet-based solution, the court held that the claimed invention
did not merely use the Internet to perform a business practice known from
the pre-Internet world, but rather was necessarily rooted in computer
technology to overcome a problem specifically arising in computer
networks. Id. at 1257.
That is not the case here. As noted previously, Appellants' claimed
invention, in essence, is a concept performed in the human mind. Despite
Appellants' arguments to the contrary (App. Br. 8; Reply Br. 3), the claimed
invention here is not necessarily rooted in computer technology in the sense
contemplated by DDR where the claimed invention solved a challenge
particular to the Internet. Although the Appellants' invention uses
computer-based components, including a processor and a memory to create
an extended answer type in an answer key according to a definition, the
claimed invention does not solve a challenge particular to the computer or
the network used to implement this functionality.
Appellants' reliance on the decisions in Enfish LLC v. Microsoft
Corporation, 822 F.3d 1327 (Fed. Cir. 2016); Visual Memory LLC v.
NVIDIA Corp., 867 F.3d 1253 (Fed. Cir. 2017); and Thales Visionix Inc. v.
United States, 850 F.3d 1343 (Fed. Cir. 2017) (Reply Br. 3) is unavailing.
The claimed self-referential table in Enfish was a specific type of data
structure designed to improve the way a computer stores and retrieves data
in memory. Enfish, 822 F.3d at 1339. As the Enfish court emphasized, the
claims were not directed to any form of storing tabular data, but were instead
directed to a self-referential table for a computer database. Enfish, 822 F.3d
at 1337. Notably, the court explained that the table stored information
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related to each column in rows of that very table, such that new columns can
be added by creating new rows in the table. Id. at 1338.
Similarly, in Visual Memory, the court determined that the claims at
issue were directed to an "improved memory system" that configured
operational characteristics of a computer's cache memory based on the type
of processor connected to the memory system. Visual Memory, 867 F .3d at
1261. And in Thales, the court determined that the claims at issue recited a
unique configuration of inertial sensors and the use of a mathematical
equation for calculating the location and orientation of an object relative to a
moving platform. Thales, 850 F.3d at 1347.
The database structure of Enfish and programmable cache memory of
Visual Memory were innovative structures that improve computer operation.
Thales focused on improved ways of motion tracking. To the extent
Appellants contend that the claimed invention improves a computer's
functionality or efficiency, or otherwise changes the way that device
functions (see Reply Br. 3), there is no persuasive evidence on this record to
substantiate such a contention.
Appellants' reliance on BASCOM Global Internet Services, Inc. v.
AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) (Reply Br. 3) is
likewise unavailing. There, the .court held eligible claims directed to a
technology-based solution to filter Internet content that overcame existing
problems with other Internet filtering systems by making a known filtering
solution-namely a "one-size-fits-all" filter at an Internet Service Provider
(ISP)-more dynamic and efficient via individualized filtering at the ISP.
BASCOM, 827 F.3d at 1351. Notably, this customizable filtering solution
improved the computer system's performance and, therefore, was patent-
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eligible. See id. But unlike the filtering system improvements in BASCOM
that added significantly more to the abstract idea in that case, the claimed
invention here uses generic computing components to implement an abstract
idea as noted previously.
Appellants' reliance on McRO, Inc. v. Bandai Namco Games
America, Inc., 837 F.3d 1299 (Fed. Cir. 2016) (Reply Br. 3) is unavailing.
There, the claimed process used a combined order of specific rules that
rendered information in a specific format that was applied to create a
sequence of synchronized, animated characters. McRO, 83 7 F .3d at 1315.
Notably, the recited process automatically animated characters using ·
particular information and techniques-an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses computer-based components, including a
processor and a memory to create an extended answer type in an answer key
according to a definition. The claimed invention here also does not improve
a display mechanism as was the case in McRO. See SAP Am. v. InvestPic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishing McRO).
Appellants' reliance on Amdocs (Isr.) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288 (Fed. Cir. 2016) (Reply Br. 3) is also unavailing. There, a
claim directed to using accounting information with which a network
accounting record is correlated to enhance the record was held eligible
because the claim involved an unconventional technological solution
(enhancing data in a distributed fashion) to a technological problem
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(massive record flows which previously required massive databases).
Although the court recognized that this solution used generic components,
the recited enhancing function necessarily required these generic
components to operate in an unconventional manner to achieve an
improvement in computer functionality. Amdocs, 841 F.3d at 1300-01.
Notably, the recited enhancement in Amdocs depended on not only the
network's distributed architecture, but also on the network devices and
"gatherers" working together in a distributed environment. Id. at 1301. In
reaching its eligibility conclusion, the court noted the patent's emphasis on
the drawbacks of previous systems where all network information flowed to
one location making it very difficult to keep up with massive record flows
from network devices and re'quiring huge databases. Id. at 1300. The court
also noted similar network-based drawbacks that were overcome by similar
unconventional distributed solutions in other patents at issue. See id. at
1305-06.
That is not the case here. Although the claimed invention uses
conventional computing components that construct, create, populate, and
verify data, there is no persuasive evidence on this record to show that these
generic components operate in an unconventional manner to achieve an
improvement in computer functionality as in Amdocs.
Appellants' reliance on the decisions in Ex parte Steiner, Appeal No.
2012-0012381 (PTAB April 23, 2015) (App. Br. 9) and Ex parte Krampe,
Appeal No. 2013-010784 (PTAB Mar. 31, 2016) (App. Br. 9; Reply Br. 4)
are unavailing. Steiner and Krampe are non-precedential decisions of the
Board and, therefore, are not binding. See PT AB Standard Operating
Procedure 2, Rev. 10 § I, at 3 ( noting that "[ e ]very decision other than a
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precedential decision by the Precedential Opinion Panel is, by default, a
routine decision. A routine decision is binding in the case in which it is
made, even if it is not designated as precedential or informative, but it is not
otherwise binding authority.")7; accord Ans. 11 (finding PTAB cases are not
binding).
To the extent Appellants rely on the machine-or-transformation test
because "[ o ]riginal claim 1 ... satisfies an 'article of manufacture' or
'machine' requirement for patentability" (App. Br. 8 (citing Spec.~ 2)), we
are not persuaded of error. The machine-or-transformation test, although not
the only test, can nevertheless indicate whether additional elements integrate
the exception into a practical application. See Guidance, 84 Fed. Reg. at 55
(citing MPEP § 2106.05(c)); accord Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 716 (Fed. Cir. 2014) (quoting Bilski, 561 U.S. at 594). Under the
"machine-or-transformation" test, a claimed process may be patent eligible
under § 101 if it: ( 1) is tied to a particular machine or apparatus, or (2)
transforms a particular article into a different state or thing. In re Bilski, 545
F.3d 943,954 (Fed. Cir. 2008), aff'd sub nom. Bilski, 561 U.S. at 593.
Appellants' apparent reference to the machine-or-transformation test
(App. Br. 8) ignores the fact that "after Alice, there can remain no doubt:
recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible .... The bare fact that a computer exists in
the physical rather than purely conceptual realm is beside the point." DDR,
773 F.3d at 1256 (internal citations and quotation marks omitted). That is
7 This document is available at
https://www.uspto.gov/sites/default/files/documents/SOP2%20R10%20FIN
AL.pdf (last accessed May 16, 2019).
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the case here. Leaving aside the fact that the recited processor and memory
are only used in one step of claim 1, these components are nonetheless
recited at a high level of generality-the recited processor disclosure
describes (1) "processor" and (2) "memory" in generalities. See Spec.
~~ 50-59; Figs. 1-2. In short, the claimed invention does not focus on
improving computers as tools, but rather certain independently abstract ideas
that use computers as tools. See Elec. Power Grp., LLC v. Alstom SA., 830
F.3d 1350, 1354 (Fed. Cir. 2016); see also Fair Warning, 839 F.3d at 1096
(noting that using generic computing components like a microprocessor
does not transform an otherwise abstract idea into eligible subject matter);
Smartjlash LLC v. Apple Inc., 680 F. App'x 977, 983 (Fed. Cir. 2017)
(unpublished) (noting that merely storing, transmitting, retrieving, and
writing data to implement an abstract idea on a computer does not transform
the nature of the claim into a patent-eligible application); Mortg. Grader Inc.
v. First Choice Loan Servs., Inc., 811 F.3d 1314, 1324-25 (Fed. Cir. 2016)
(noting that a component such a "database" is a generic computer
component that does not satisfy the inventive concept requirement); see also
Guidance, 84 Fed. Reg. at 55 ( citing MPEP § 2106.05(f)).
Therefore, we do not find that the claim recites additional elements ( 1)
improving the computer itself; (2) improving another technology or
technical field; or (3) implementing the abstract idea in conjunction with a
particular machine or manufacture that is integral to the claim. See
Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(a)-(b)). Rather, the
above-noted additional elements merely (1) apply the abstract idea on a
computer; (2) include instructions to implement the abstract idea on a
computer; or (3) use the computer as a tool to perform the abstract idea. See
18
Appeal2018-008979
Application 14/332,573
Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(±)). Therefore, the
recited additional elements, namely the recited (1) ''processor" and (2)
"memory" do not integrate the abstract idea into a practical application when
reading claim 1 as a whole.
That claim 10 further defines ( 1) the extended answer key as an
Extensible Markup Language (XML) document, and (2) the definition as an
XML structure likewise does not integrate the abstract idea into a practical
application. See Intellectual Ventures I LLC v. Capital One Bank (USA),
792 F.3d 1363 (Fed. Cir. 2015) (holding ineligible claims that manipulate
XML documents); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d
1315 (Fed. Cir. 2017) (holding ineligible claims including XML tags); ·
EasyWeb Innovations, LLC v. Twitter, Inc., 689 Fed. App'x 969 (Fed. Cir.
2017) (holding ineligible claims 47 and 48 including XML); GT Nexus, Inc.
v. INTTRA, Inc., 2015 WL 6747142 (N.D. Cal. 2015), aff'd, 669 F. App'x
562 (Fed. Cir. 2016) (holding ineligible claim 13 of US 7,756,794 including
XML).
Nor do we find availing Appellants' contention that the claimed
invention somehow improves the existing state of the recognized
technological field of endeavor. App. Br. 1 O; Reply Br. 4. "The search for a
§ 101 inventive concept is ... distinct from demonstrating § 102 novelty."
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016); see Diehr, 450 U.S. at 188-89; Two-Way Media Ltd. v. Comcast
Cable Commc 'ns, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017). "[U]nder the
Mayo/Alice framework, a claim directed to a newly discovered law of nature
(or natural phenomenon or abstract idea) cannot rely on the novelty of that
19
Appeal2018-008979
Application 14/332,573
discovery for the inventive concept necessary for patent eligibility." Genetic
Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016).
In conclusion, although the recited functions may be beneficial by
expanding an answer key to verify an answer is correct, a claim for a useful
or beneficial abstract idea is still an abstract idea. See Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379-80 (Fed. Cir. 2015); see also
Synopsys, 839 F .3d at 1151 (noting "a claim for a new abstract idea is still an
abstract idea.").
We, therefore, agree with the Examiner that claim 1 is directed to an
abstract idea.
Alice/Mayo Step Two
Turning to Alice/Mayo step two, claim 1 's additional recited elements,
namely the recited ( 1) "processor" and (2) "memory"-considered
individually and as an ordered combination--do not provide an inventive
concept such that these additional elements amount to significantly more
than the abstract idea. See Alice, 573 U.S. at 221; see also Guidance, 84
Fed. Reg. at 56. As noted above, the claimed invention merely uses generic
computing components to implement the recited abstract idea.
The generic computing functionality of the additional recited
elements, namely the recited (1) "processor" and (2) "memory", is well-
understood, routine, and conventional. See, e.g., Alice, 573 U.S. at 225-26
(holding that "implement[ing] the abstract idea ... on a generic computer"
was not sufficient "to transform an abstract idea into a patent-eligible
invention"); Intellectual Ventures, 792 F.3d at 1368 (noting that a recited
database is a generic computer element); Mortg. Grader, 811 F.3d at 1324-
20
Appeal2018-008979
Application 14/332,573
25 (noting that components such an "interface," "network," and "database"
are generic computer components that do not satisfy the inventive concept
requirement); Smartflash, 680 F. App'x at 983 (noting that merely storing,
transmitting, retrieving, and writing data to implement an abstract idea on a
computer does not transform the nature of the claim into a patent-eligible
application); accord Ans. 4-5 (noting that using a generic processor to
perform the recited steps does not impose any meaningful limit on the
abstract idea's computer implementation); see also, e.g., Spec.
,r,r 51-59; Fig. 2 ( describing generic computer components associated with
the disclosed invention).
In conclusion, the additional recited elements-considered
individually and as an ordered combination-do not add significantly more
than the abstract idea to provide an inventive concept under Alice/Mayo step
two. See Alice, 573 U.S. at 221; see also Guidance, 84 Fed. Reg. at 56 .
. Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2-12 not argued separately with particularity.
CONCLUSION
The Examiner did not err in rejecting claims 1-12 under§ 101.
21
Appeal2018-008979
Application 14/332,573
DECISION
The Examiner's decision to reject claims 1-12 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
22
Application/Control No. Applicant(s)/Patent Under Patent
Appeal No.
Notice of References Cited
14/332,573 2018-008979
Examiner Art Unit
Page 1 of 1
2122
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K US-
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M US-
FOREIGN PATENT DOCUMENTS
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u
MERRJAM-WEBSTER'S COLLEGIATE DICTIONARY 248 (n. def I b) (10th ed. 1993)
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X
*A copy of this reference 1s not being furnished with this Office action. (See MPEP § 707.0S(a).)
Dates in MM-YYYY format are publication dates. Classifications may be US or foreign.
U.S. Patent and Trademark Office
PT0-892 (Rev. 01-2001) Notice of References Cited Part of Paper No.
• err1am
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• ...._...o eg1ate
Dictionar~ //
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TENTH EDITION
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A GENUINE MERRIAM-WEBSTER
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Made in the United States of America
456RMcN93
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