Ex Parte Benmbarek

Patent Trial and Appeal Board

Feb 9, 2016

12797496 (P.T.A.B. Feb. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121797,496 06/09/2010
31688 7590
TRAN & ASSOCIATES
P.O. Box68
Saratoga, CA 95071-0068
02/09/2016
FIRST NAMED INVENTOR
Akram Benmbarek
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SOOVOX-003 4912
EXAMINER
SANTOS-DIAZ, MARIA C
ART UNIT PAPER NUMBER
3689
MAILDATE DELIVERY MODE
02/09/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AKRAM BENMBAREK
Appeal2013-008853 1
Application 12/797,4962
Technology Center 3600
Before PHILIP J. HOFFMANN, BRUCE T. WIEDER, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellant's Appeal Brief ("Appeal Br.," filed
March 27, 2013) and Reply Brief ("Reply Br.," filed June 30, 2013), and the
Examiner's Answer ("Ans.," mailed May 10, 2013) and Final Office Action
("Final Act.," mailed November 7, 2012).
2 Appellant identifies Available for Licensing (APL) as the real party in
interest (Appeal Br. 1 ).
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Application 12/797,496
CLAIMED INVENTION
Appellant's claimed invention relates generally to a system and
method "for location based branding" (Spec. 3).
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A computer implemented method for location based
branding, comprising:
[a] detecting a business location or a predetermined
neighborhood using a computing device connected to a location
based social network;
[b] determining if a business or other businesses in the
neighborhood are running an advertising campaign at the
business location or predetermined neighborhood and
[ c] matching one or more influencers with a predetermined
social influence (Social IQ) score with the advertising campaign,
wherein the Social IQ score is related to the influencer's
authenticity, connectivity, and expertise; and
[ d] transmitting social influence messages from the
influencers who have checked into the business's location or are
in the neighborhood and \"1ho are participating in the campaign.
REJECTIONS
Claims 1-16 are rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter (see Final Act. 2).
Claims 1--4, 9, and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ransom (US 2009/0222348 Al, pub. Sept. 3, 2009),
Zhang (US 2010/0228614 Al, pub. Sept. 9, 2010), and Micah Baldwin,
How To: Measure Online Influence, Mashable, March 2, 2009,
http://mashable.com/2009/03/02/measuring-online-influence/ (hereafter,
"Mashable.com") (see Final Act. 4).
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Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Ransom, Zhang, Mashable.com, and Banks (US 7,742,946 B2, iss.
June 22, 2010) (see Final Act. 10-11 ).
Claims 6-8, 11, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ransom, Zhang, Mashable.com, and Yelp.com,
Wikipedia, the free encyclopedia, last edited May 16, 2010,
http:/ /en.wikipedia.org/wlindex.php?title=Y elp, Inc.&oldid=3625 l 9458.
(hereafter, "Yelp.com") (see Final Act. 12).
Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ransom, Zhang, Mashable.com, and Cho
(US 2010/0191770 Al, pub. July 29, 2010) (see Final Act. 19).
Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Ransom, Zhang, Mashable.com, and Jean-Claude (US 2011/0153502 Al,
pub. June 23, 2011) (see Final Act. 23).
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Ransom, Zhang, Mashable.com, and Blackhurst (US 2011/0191181 Al, pub.
Aug. 4, 2011) (see Final Act. 24).
Claims 17-20 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Ransom and Zhang (see Final Act. 26).
ANALYSIS
Non-statutory subject matter
The Examiner rejects independent claim 1, as well as its dependent
claims 2-16, under 35 U.S.C. § 101 as directed to non-statutory subject
matter (see Final Act. 2-3). The Examiner asserts that "[b ]ased upon
consideration of all the relevant factors with respect to the claims as a whole,
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claims 1-16 are held to claim an abstract idea" (id. at 2 ). To support this
assertion, the Examiner finds
the lack of a particular machine conducting a significant step of
the method, the lack of transformation of an article, the scope of
the invention being drawn to a general business concept, and that
the limitations are broad enough to encompass any and all
manner of providing pricing data for services.
(Id. at 2-3). More particularly, the Examiner finds that "it is not clear if the
computer is performing the tasks or merely being used by a person where the
person is performing the tasks" (id. at 3; see also Ans. 3--4), and concludes
the claim is directed to the abstract idea of "promot[ing] the brand of a
product, which is a general business concept" (Final Act. 3; see also Ans. 3-
4).
In response, Appellant argues only that "claims 1-16 are directed at
statutory subject matter" because independent claim 1 "recites a computer
implement[ ed] method with two different hardware: a computer or
computing device, and a social network which is described as a server and a
computer network" (Appeal Br. 4-5).
We agree with the Examiner that independent claim 1 is directed to
the abstract idea of "promot[ ing] the brand of a product, which is a general
business concept," however, after the mailing of the Examiner's Answer, the
Supreme Court issued its decision in Alice Corp. Pty. Ltd. v. CLS Bank Int 'l,
134 S.Ct. 2347 (2014), which explains the law as it relates to patent-eligible
subject matter.
In Alice, the Supreme Court reaffirmed the framework set forth
previously in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.
Ct. 1289, 1293-94 (2012) "for distinguishing patents that claim laws of
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nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of these concepts." Alice, 134 S. Ct. at 2355. The first
step in the analysis is to "determine whether the claims at issue are directed
to one of those patent-ineligible concepts." Id. If the claims are directed to
a patent-ineligible concept, then the second step in the analysis is to consider
the elements of the claims "individually and 'as an ordered combination' to
determine whether the additional elements 'transform the nature of the
claim' into a patent-eligible application." Id. (quoting Mayo, 132 S. Ct. at
1298, 1297). In other words, the second step is to "search for an 'inventive
concept'- i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Id. (brackets in original) (quoting
Mayo, 132 S. Ct. at 1294). "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. at 2357
(brackets in original) (quoting Mayo, 132 S. Ct. at 1297). The prohibition
against patenting an abstract idea "cannot be circumvented by attempting to
limit the use of the formula to a particular technological environment or
adding insignificant post-solution activity." Bilski v. Kappas, 561 U.S. 593,
610-11 (2010) (citation and internal quotation marks omitted). The Court in
Alice noted that "' [ s ]imply appending conventional steps, specified at a high
level of generality,' was not 'enough' [in Mayo] to supply an 'inventive
concept."' Alice, 134 S. Ct. at2357 (quoting Mayo, 132 S. Ct. at 1300, 1297,
1294).
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We, thus, apply the framework as set forth by the Court in Mayo and
reaffirmed by the Court in Alice for determining whether claims 1-16 are
directed to patent-eligible subject matter.
Step one: Are the claims at issue directed to a patent-ineligible concept?
We conclude that they are.
Claim 1 recites a "computer implemented method for location based
branding," which includes the steps of "[a] detecting a business location or a
predetermined neighborhood using a computing device connected to a
location based social network," "[b] determining if a business or other
businesses in the neighborhood are running an advertising campaign at the
business location or predetermined neighborhood,""[ c] matching one or
more influencers with a predetermined social influence (Social IQ) score
with the advertising campaign, wherein the Social IQ score is related to the
influencer's authenticity, connectivity, and expertise," and"[ d] transmitting
social influence messages from the influencers who have checked into the
business's location or are in the neighborhood and who are participating in
the campaign" (Appeal Br. 16, Claims App.).
Appellant's Specification states that "[t]he present invention relates to
location based branding" (Spec. 1 ). In this regard, the Specification
describes that the claimed invention
give[ s] the consumer a significant voice that influences the way
services are provided and the way products are made, and that
helps the buyer get the right help to get the best deal in his/her
shopping experience above and beyond the current product
review applications that are offered on the web today
(Spec. 7).
In our view, claim 1 merely recites the concept of locating a business,
determining if the business is running an advertising campaign, matching
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one or more potential advertisers with the advertising campaign, and
transmitting an advertising message. We, thus, determine that, when read as
a whole and as reasonably broadly construed, independent claim 1
constitutes a patent-ineligible abstract idea and is directed particularly to the
abstract idea of "promot[ing] the brand of a product" (Final Act. 3).
Step two: Is there something else in the claims that ensures that they are
directed to significantly more than a patent-ineligible concept?
We conclude that independent claim 1 and dependent claims 2-16,
which merely require a generic "computing device" and "social network,"
which Appellant contends is "a server and a computer network" (Appeal Br.
4-5), fail to transform that abstract idea into a patent-eligible invention. See
Alice, 134 S. Ct. at 2357 ("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-eligible application. 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].'") (citation omitted).
Taking the claim elements separately, for example, claim 1 requires "a
computing device connected to a location based social network," as recited
by limitation [a]. However, we determine that the recitation of such generic
components is insufficient to transform the nature of independent claim 1
into a patent-eligible application. In this regard, as the Examiner points out,
"it is not clear if the computer is performing the tasks or merely being used
by a person where the person is performing the tasks" (Final Act. 3). And,
when considered as an ordered combination, the computer components of
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Appellant's claims add nothing that is not already present when the elements
are considered separately.
Thus, Appellant's argument that claims 1-16 are directed to statutory
subject matter simply because independent claim 1 "recites a computer
implement[ ed] method with two different hardware" (Appeal Br. 4-5) fails
to persuaded us that the use of a computer in the claim is anything other than
well-understood, routine, conventional activity previously known to the
industry. Thus, independent claim 1 and dependent claims 2-16 amount to
nothing significantly more than instructions to apply the abstract idea of
"promot[ ing] the brand of a product" using some unspecified, generic
"computing device" and "social network" to "detect[] a business location or
a predetermined neighborhood," as recited by limitation [a] of claim 1,
which is not enough to transform an abstract idea into a patent-eligible
invention.
Based on the above, we agree with the Examiner that independent
claim 1 and its dependent claims 2-16, which Appellants do not argue
separately, are directed to non-statutory subject matter, and as such, we
sustain the Examiner's rejection of claims 1-16 under 35 U.S.C. § 101.
Obviousness
Independent claim 1 and dependent claims 2-16
We are not persuaded the Examiner erred in asserting that a
combination of Ransom, Zhang, and Mashable.com discloses or suggest the
subject matter of independent claim 1 because "[M]ashable.com is not prior
art to the instant application per the attached Declaration of inventor
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Bemnbarek that antedated the mashable reference" (Appeal Br. 6; see also
Reply Br. 1 ).
Appellant filed a First Declaration ("First Deel.") on March 15, 2013,
in conjunction with their Appeal Brief, to antedate the Mashable.com
reference. The First Declaration, states in its entirety "I state under the
penalty of perjury as follows: My name is Akram Benmbarek. I invented
the Soovox system, the subject matter of the instant invention prior to March
1, 2009" (Appeal Br. 15, First Deel.). The Examiner found the First
Declaration insufficient, and issued an Advisory Action After the Filing of
an Appeal Brief, mailed May 6, 2013, to that effect. We agree with the
Examiner's analysis and adopt the Examiner's conclusions concerning this
First Declaration.
In an attempt to remedy the insufficient First Declaration, Appellant
filed a Second Declaration ("Second Deel.") on June 30, 2013, in
conjunction with their Reply Brief. The Examiner did not consider the
Second Declaration, and ostensibly, Appellant now asks the Board to enter
the Second Declaration and review its merits to antedate the Mashable.com
reference. 3 We cannot, however, consider the Second Declaration as it was
never entered and considered by the Examiner, and as such, is untimely. See
37 C.F.R. § 41.33(d)(2) ("All other affidavits or other evidence filed after
3 The question of sufficiency of affidavits or declarations under 37 CPR
1.131 should be reviewed and decided by a primary examiner.
Review of questions of formal sufficiency and propriety are by petition
>filed under 37 CPR 1.181 <. Such petitions are answered by the Technology
Center Directors (MPEP § 1002.02(c)). Review on the merits of a 37 CPR
1.131 affidavit or declaration is by appeal to the Board of Patent Appeals
and Interferences. (MPEP 715.08, 8th ed., July 2008.)
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the date of filing an appeal pursuant to § 41.31 (a)( 1) through (a )(3) will not
be admitted except as permitted by§§ 41.39(b)(l), 41.50(a)(2)(i) and
41.50(b)(l)."). Therefore, Appellant's argument is not persuasive to
antedate the Mashable.com reference.
Appellant also argues that the Examiner erred in rejecting independent
claim 1 under 35 U.S.C. § 103(a) because the combination of Ransom,
Zhang, and Mashable.com fails to disclose or suggest "matching one or
more influencers with a predetermined social influence (Social IQ) score
with the advertising campaign, wherein the Social IQ score is related to the
influencer's authenticity, connectivity, and expertise," as recited by
limitation [ c] of claim 1 (Appeal Br. 5-9; see also Reply Br. 1--4).
The Examiner cites paragraphs 113-114 of Zhang as disclosing
"matching one or more influencers with a predetermined social influence
(Social IQ) score with the advertising campaign" (Final Act. 6). However,
the Examiner acknowledges that Zhang does not explicitly disclose "wherein
the Social IQ score is related to the influencer's authenticity, connectivity,
and expertise" (id. at 7, emphasis omitted), and the Examiner cites page 3 of
Mashable.com to cure the deficiency of Zhang (id.). In particular, the
Examiner finds "Mashable.com teaches how the online influence of an [sic]
user is measured" (id.), and concludes that it would have been obvious "to
include the specific[] components of masable.com [sic] into the Social Score
of Ransom in view of Zhang in order to base the score of social influence on
the activity of the user in social networks or online .. . "(id.).
Zhang is directed to a social network advertising system which targets
users of the social network with "advertisements based upon the content of
each user's profile page" (Zhang ,-i 4). Zhang discloses that its system
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"generat[ es] influence scores for the user based on the received information
and ... propagate[ s] an ad through the social network between users having
an acquaintance relationship by transmitting the ad" based on a difference
between respective influence scores (id. at iJ 7). Zhang discloses that "a
user's influence on the social network can be represented as a heat intensity
or a heat score, where users with more influence have a higher heat score"
(id. at iJ 20) which enables Zhang's system to propagate ads "throughout the
social network from more influential users to less influential users" (id.).
Zhang also discloses that its system "receives a list of ranked users
from a server, where the rank is based on a similarity of the characteristics
and user influence score" (id. at iJ 113). More particularly, Zhang discloses
an advertiser Al may input parameters for users to be targeted
with its ad such as males, between the ages of 18 and 35, who are
interested in sports. The advertiser Al may then receive a list of
ranked users Ul-US. The user Ul, ranked at the top of the list,
may most closely match the characteristics submitted by the
advertiser Al and may also have a high influence score on a
social network. The user US, ranked at the bottom of the list,
may least match the characteristics submitted by the advertiser
Al and/or may have a low influence score on the social network.
(Id. at iJ 114).
Zhang further discloses that its "influence score can be a metric of a
user's influence with other users of a social network. The influence score
may be based on a user's activity level and/or acquaintance relationships. A
user's activity level can be a measure of a user's interactions on a social
network" (id. at iJ 35; see also id. at iii! 36--47).
Mashable.com is directed to an article on measuring online influence
as it relates to "personal branding" which it describes as "the sum of your
online activities and sets an expectation about who you are" (see
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Mashable.com). Mashable.com describes that influence can be "broken
down into its core components: Brand, Expertise and Trust" (id.).
Mashable.com further describes that a mathematical measurement of
influence may be based on components such as "Incoming Traffic,"
"Incoming Links," "Reader Engagement," "Recommendations,"
"Connections," "Track Record," and "Engagement" (id.).
Appellant acknowledges that Mashable.com "shows how one gets to
be an 'expert,'" but argues that "Mashable addresses only the expertise part
of the triad recited in claim l" (Appeal Br. 6; Reply Br. 1 ). In response, "the
Examiner interpreted the components authenticity, which is the member's
credibility, as an equivalent to mashable's component of Trust, connectivity,
which is based in user's connection, as an equivalent of mashable' s
component of Brand and expertise, which is based on knowledge, as an
equivalent of mashable's component of expertise" (Ans. 8, emphasis
omitted). We agree with and adopt the Examiner's interpretation as our
own.
In this regard, we do not see why, and Appellant does not make any
attempt to adequately explain why the cited portion of Mashable.com (see
Final Act. 7-8 (citing Mashable.com 3); see also Ans. 6-8) related to
"Brand, Expertise and Trust" fails to meet the argued claim language. We
note that the Examiner's interpretation is commensurate in scope with the
language of the claim and reasonable in light of Appellant's Specification
(cf Spec. 17-18). Thus, we agree with the Examiner that Mashable.com
discloses the "triad recited in claim l ," i.e., "influencer's authenticity,
connectivity, and expertise," as recited by limitation [ c] of claim 1 (see Final
Act. 6-8; see also Ans. 6-8).
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Appellant also argues that Mashable.com fails to teach
the claimed specifics of matching one or more influencers with a
predetermined social influence (Social IQ) score with the
advertising campaign, wherein the Social IQ score is related to
the influencer's authenticity, connectivity, and expertise; and
transmitting social influence messages from the influencers who
have checked into the business's location or are in the
neighborhood and who are participating in the campaign.
(Appeal Br. 6; Reply Br. 1)
However, Appellant's argument is not persuasive at least because
claim 1 is rejected based on the combination of Ransom, Zhang, and
Mashable.com, and not based on any one reference alone. See In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be
established by attacking the references individually where the rejection is
based upon the teachings of a combination of references."). Here, the
Examiner relies on Zhang, not Mashable.com, as disclosing "matching one
or more influencers with a predetermined social influence (Social IQ) score
with the advertising campaign" (Ans. 9-12 (citing Zhang ,-i,-i 113-114)). The
Examiner also relies on Ransom, not Mashable.com, as disclosing
"transmitting social influence messages from the influencers," as recited by
limitation [ d] of claim 1 (Final Act. 5 (citing Ransom ,-i,-i 65 and 107) ).
In this regard, Ransom is directed to a system for "integrating online
promotions/campaigns with social networks" (Ransom ,-i 2). Ransom
discloses that its system may access GPS data provided by a participant's
mobile phone to determine whether the participant is located within a
predetermined area (id. at ,-i 51 ). Ransom further discloses that the
participant is "presented with a list of promotions that the participant's social
network friends have recently entered and/or interacted with" (id. at ,-i 107).
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Appellant further argues that the Examiner's proposed combination of
Ransom, Zhang, and Mashable.com is based on hindsight, and because "the
teaching or suggestion to make the claimed combination and the reasonable
expectation of success is not found in the cited references, there is an
inference that it came from Applicants' disclosure" (Appeal Br. 6-9; Reply
Br. 2--4). To the extent Appellant seeks an explicit suggestion or motivation
in the reference itself, this is not the law. See KSR Int 'l Co. v. Teleflex Inc.,
550 U.S. 398, 419 (2007). We find that the Examiner has provided an
"articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness" (see id. at 418 (citing In re Kahn, 441F.3d977,
988 (Fed. Cir. 2006)). On pages 6-8 of the Final Action, the Examiner
provides the required rationale to support the combination. We note that
Appellant's argument does not address whether the modification described
by the Examiner is more than the predictable use of prior art elements
according to their established functions, nor does Appellant specifically
mention or contest the substance of the Examiner's rationale, but rather
Appellant only makes a general assertion that "the Examiner has not pointed
to any evidence in Mashable, or how knowledge of those skilled in the art,
provide a suggestion or motivation to modify the reference teaching so as to
produce the claimed invention of independent claim l" (Appeal Br. 9).
Moreover, the Supreme Court has made clear that when considering
obviousness "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ." See KSR, 550 U.S. at 418. Here, we agree with the
Examiner:
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it would be obvious to one having ordinary skill in the art to
include the specific[] components of masable.com [sic] into the
Social Score of Ransom in view of Zhang in order to base the
score of social influence on the activity of the user in social
networks or online, the real expectations of the user in order to
know the output of the user is trustworthy and in expertise in
order to be sure the user is giving information based on
knowledge.
(Final Act. 7).
Thus, Appellant's argument is not persuasive.
In view of the foregoing, we sustain the Examiner's rejection of
claim 1under35 U.S.C. § 103(a). For the same reasons, we also sustain the
rejections of claims 2-16, which while separately argued, do not rise to the
level of a separate argument for patentability (see Appeal Br. 9-13). See In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("more substantive
arguments in an appeal brief [are required] than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art").
Independent claim 17 and dependent claims 18-20
Appellant does not offer any argument in support of the patentability
of independent claim 17 other than to assert that "[t]he Office Action
rejected the claim based on general allegations, but fails to point out with
specificity where the references teach the exact limitations recited in the
claim" and reproduce the independent claim (see Appeal Br. 13).
Appellant's argument is not persuasive of error on the part of the
Examiner because it does not amount to a substantive argument for
patentability. See In re Lovin, 652 F.3d at 1357. Therefore, in the absence
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of any substantive arguments, we sustain the Examiner's rejection of
independent claim 17 under 35 U.S.C. § 103(a). For the same reason, we
also sustain the rejection of claims 18-20, which while separately argued, do
not rise to the level of a separate argument for patentability (see Appeal
Br. 13-14).
DECISION
The Examiner's rejection of claims 1-16 under 35 U.S.C. § 101 as
directed to non-statutory subject matter is affirmed.
The Examiner's rejections of claims 1-20 under 35 U.S.C. § 103(a)
are 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 )(iv).
AFFIRMED
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