Ex Parte Binion et al

Patent Trial and Appeal Board

Nov 7, 2018

14203143 (P.T.A.B. Nov. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/203,143 03/10/2014
116886 7590 11/09/2018
Marshall, Gerstein & Borun LLP (State Farm)
233 South Wacker Drive
6300 Willis Tower
Chicago, IL 60606-6357
FIRST NAMED INVENTOR
Todd Binion
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.
32060/48427 1075
EXAMINER
SHRESTHA, BIJENDRA K
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
11/09/2018 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TODD BINION, STEVEN CIELOCHA,
SCOTT THOMAS CHRISTENSEN, GREGORY HAYWARD,
and CHRISTOPHER E. GAY
Appeal2017---002726
Application 14/203, 143 1
Technology Center 3600
Before ANTON W. PETTING, MICHAEL C. ASTORINO, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE2
Todd Binion, Steven Cielocha, Scott Thomas Christensen, Gregory
Hayward, and Christopher E. Gay (Appellants) seek review under
35 U.S.C. § 134 of a final rejection of claims 1, 2, 5-8, 11-14, and 17-24,
1 The real party in interest is State Farm Mutual Automobile Insurance
Company. Br. 2.
2 Our decision will make reference to the Appellants' Appeal Brief ("Br.,"
filed June 7, 2016) and the Examiner's Answer ("Ans.," mailed November
17, 2016), and Final Action ("Final Act.," mailed January 7, 2016).
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Application 14/203,143
the only claims pending in the application on appeal. We have jurisdiction
over the appeal pursuant to 35 U.S.C. § 6(b).
We affirm.
The Appellants invented a way of establishing and using common
driving routes for assessing, pricing, and provisioning of vehicle insurance.
Specification para. 2.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below.
1. A computer implemented method for providing insurance,
the method comprising:
receiving, via a computer network, vehicle data associated with
a vehicle,
wherein the vehicle data includes at least a start point, an end
point, and a frequency value;
determining, by one or more processors, a driving route
including the start point and the end point based upon the
vehicle data;
determining, by the one or more processors, that the driving
route is a common driving route navigated more frequently than
other driving routes included in the vehicle data based upon the
frequency value;
determining, by the one or more processors, a parking location
of the vehicle along the common route;
receiving, by the one or more processors, risk factor data
indicating (i) one or more risk factors resulting from a length of
the common route, (ii) one or more risk factors within the
common route resulting from driving a vehicle along the
common route, and (iii) one or more risk factors associated with
the parking location;
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assigning, by one or more processors, a risk score to each of the
one or more risk factors as indicated by the risk factor data;
determining, by the one or more processors, a total risk score
associated with the common driving route, the total risk score
being based on a sum of risk scores assigned to each of the one
or more risk factors;
and
calculating, by the one or more processors, an insurance
premium price for a vehicle associated with the driving data
based on the total risk score for the common driving route but
not other driving routes included in the driving data besides the
common driving route.
The Examiner relies upon the following prior art:
Hara US 2006/0049925 Al Mar. 9, 2006
Kortge US 2006/0247852 Al Nov. 2, 2006
Bogovich US 8,606,512 Bl Dec. 10, 2013
Rowley US 8,606,514 B2 Dec. 10, 2013
Cote US 2014/0180723 Al June 26, 2014
Yager US 2014/0304011 Al Oct. 9, 2014
Brinkmann US 9,141,995 Bl Sept. 22, 2015
Claims 1, 2, 5-8, 11-14, and 17-24 stand rejected under 35 U.S.C.
§ 101 as directed to a judicial exception without significantly more.
Claims 1, 2, 5-8, 11-14, 17, and 18 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Bogovich, Brinkmann, Rowley, Cote, and
Hara.
Claims 19, 21, and 23 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Bogovich, Brinkmann, Rowley, Cote, Hara, and Kortge.
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Claims 20, 22, and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bogovich, Brinkmann, Rowley, Cote, Hara, and Yager.
ISSUES
The issues of eligible subject matter tum primarily on whether the claims
recite more than abstract conceptual advice of what a computer is to provide
without implementation details.
The issues of obviousness tum primarily on whether the prior art finds a
common route.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Bogovich
01. Bogovich is directed to using geographically encoded
information to promote and/or reward risk mitigation. Bogovich
1:11-15.
02. Bogovich describes a personal navigation device receiving
travel route information including a start location, end location,
road-by-road directions, and/or tum-by-tum directions that uses
the travel route information and mapping software to determine
the road segment upon which the vehicle will travel, and retrieve
the risk value for that road segment. For each subsequent road
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segment remaining in the travel route, the personal navigation
device retrieves the risk value for that road segment. The risk
values retrieved for the travel route may be aggregated and a total
risk value for the travel route may be sent. Bogovich 9:29-47.
03. Bogovich describes route-dependent pricing using route risk
values to adjust insurance pricing based on where a vehicle is
driven, adjusting the price quoted/charged for an insurance policy
based on risk consumed. A vehicle/ driver may be categorized into
a risk class and charged for insurance accordingly. For example,
the vehicle/driver may be provided with notification of a
credit/debit if the vehicle consumed less/more, respectively, of
risk at the end of a policy term than was initially purchased.
Bogovich 14:18-32.
Brinkmann
04. Brinkmann is directed to evaluating one or more driving trips
by a vehicle, identifying driving trip patterns, and performing risk
analyses on the driving trips and patterns. Brinkmann 1: 14--20.
05. Brinkmann describes retrieving available data for each risk
factor identified by the driving analysis server to evaluate the risk
and calculate a risk assessment value for each phase of the driving
trip, or for the entire driving trip. This includes evaluating the
parking risk of a driving trip associated with parking the vehicle
during the driving trip. This parking risk assessment value may be
calculated using the parking availability data for the destination
location, the duration of time that the vehicle will be parked at the
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destination location, and statistics regarding accidents, vehicle
theft or vandalism, parking tickets and towing, and other
stationary vehicle damage reports associated with the destination
at the time that the vehicle was parked at the destination.
Brinkmann 14:5--41.
Rowley
06. Rowley is directed to providing a recommended route that takes
current traffic conditions into account. Rowley 1: 18-21.
07. Rowley describes identifying common paths for a particular
event by identifying multiple identical paths to work and may also
be determined only for characteristic points along the path. The
presence or absence of commonality may be determined at various
levels of granularity. Common paths may also be identified at a
second event level. As one typical example, commonality could
be discerned for all weekdays or for certain weekdays. The search
for commonality may also occur in multiple orders. For example,
all weekdays may be analyzed individually for commonality, and
a common path may be discerned by applying rules to those days.
Alternatively, as just described, trips for particular day may be
analyzed, and a common trip for that day computed. Each of the
daily common trips may then be compared for commonality.
Rowley 5:64---6:32.
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Cote
08. Cote is directed to monitoring, aggregating, analyzing,
tabulating, graphing, mapping, and/ or otherwise processing and/ or
presenting various characteristics of transportation segmentations.
Cote para. 16.
09. Cote describes insurance products as including auto/motor
insurance. Cote para. 18.
10. Cote describes a surface segment type map comprising location
nodes connected surface segment types. The magnitude of the
amount of time and/or distance (e.g., exposure) associated with a
particular surface segment type may be represented. The
expertise, experience, and/or training of a driver may also be
considered with respect to determining frequencies, weighting
factors, and/or risk factors descriptive of the use of the
objects/vehicles. A customer and/or client or other driver that has
a relatively high level of experience driving on a certain surface
segment type, for example, despite and/or due to the frequency
with which such surface segment type is realized by the driver,
may be considered as a weighting factor such as in reducing the
perceived and/or expected risk associated with the driver.
Traversal of a surface segment type may be detected and/or
inferred from sensor readings, such as provided by an on-board
telematics device ( e.g., the bumps associated with crossing a
railway may be identified by a vehicle-related sensor, such as a
shock sensor and/or accelerometer (built-in and/or of a mobile
device such as a smart phone)). It may be determined that the
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customer travels a route with some degree of relatively high
frequency. Cote paras. 98-101.
Hara
11. Hara is directed to an anti-theft system for a vehicle. Hara
para. 3.
12. Hara describes determining a security level based on the risk
level of the theft, the user's schedule and the distance between the
vehicles. In a case where the vehicle of the user is parked, the
present location information, which is sensed by the GPS, of the
vehicle is transmitted to the control center. The risk level of the
theft at a parking region, which includes a present location of the
vehicle, is calculated based on 1) a type of parking space, 2) an
existence of a parking door, 3) an existence of a parking manager,
4) a distance from the past theft location and 5) a time when the
vehicle is parked. Hara paras. 94--95.
13. Hara describes the risk level of the theft being changed with a
parking location and surrounding environments even in the same
region, such as a place around a police station, a home parking
space and a corporate parking space. The risk level of the theft,
which is determined based on a number of a past vehicle theft in a
region is defined as a basic risk level of the theft. Then, a risk
correction degree is determined based on a probability of theft
happening to the vehicle according to a physical relationship with
a facility in the region. Also a risk correction degree of a region,
such as a monthly rental parking space and a region where houses
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are sparse located, becomes +2, because a suspicious person is not
checked adequately in the region. Then, the risk level of the theft
is determined by adding the risk correction degree to the basic risk
level of the theft. A final security level is determined based on the
risk level of the theft, which is calculated by adding the risk
correction degree to the pre-calculated basic risk level of the theft
Hara paras. 103-105.
ANALYSIS
Claims 1, 2, 5---8, 11-14, and 17-24rejectedunder35 US.C. § 101 as
directed to a judicial exception without significantly more
Method claim 1 recites receiving vehicle route data, determining a route,
whether the route is common, and a parking location, receiving risk factor
data, assigning risk scores, determining total risk score, and calculating an
insurance premium. Thus, claim 1 recites receiving, analyzing, and
generating data. None of the limitations recite implementation details for
any of these steps, but instead recite functional results to be achieved by any
and all possible means. Data reception, analysis and modification, and
generation are all generic, conventional data processing operations to the
point they are themselves concepts awaiting implementation details. The
sequence of data reception-analysis-generation is equally generic and
conventional. The ordering of the steps is therefore ordinary and
conventional. The remaining claims merely describe calculation parameters,
with no implementation details.
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The Supreme Court
Set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, []
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. [] If so, we then ask, "[ w ]hat
else is there in the claims before us? [] To answer that question,
[] consider the elements of each claim both individually and "as
an ordered combination" to determine whether the additional
elements "transform the nature of the claim" into a patent-
eligible application. [The Court] described step two of this
analysis as a 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."
Alice Corp., Pty. Ltd. v CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014)
( citations omitted) ( citing Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66 (2012)).
To perform this test, we must first determine whether the claims at issue
are directed to a patent-ineligible concept. The Examiner finds the claims
directed to calculating insurance price for a vehicle based on calculation of a
total risk score. Final Act. 3.
Although the Court in Alice made a determination as to what the claims
were directed to, we find that this case's claims themselves and the
Specification provide enough information to inform one as to what they are
directed to.
The preamble to claim 1 recites that it is a method for providing
insurance. The steps in claim 1 result in calculating an insurance premium
price. The Specification at paragraph 2 recites that the invention relates to
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establishing and using common driving routes for assessing, pricing and
provisioning of vehicle insurance. Thus, all this evidence shows that claim 1
is directed to pricing insurance, i.e., insurance. This is consistent with the
Examiner's finding.
It follows from prior Supreme Court cases, and Bilski (Bilski v Kappas,
561 U.S. 593 (2010)) in particular, that the claims at issue here are directed
to an abstract idea. Like the risk hedging in Bilski, the concept of insurance
is a fundamental economic practice long prevalent in our system of
commerce. The use of insurance is also a building block of ingenuity in risk
management. Thus, insurance, like hedging, is an "abstract idea" beyond the
scope of§ 101. See Alice Corp. Pty. Ltd., 134 S. Ct. at 23 56.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of insurance at
issue here. Both are squarely within the realm of "abstract ideas" as the
Court has used that term. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2357.
Further, claims reciting nothing more than data collection, analysis, and
display are directed to an abstract idea. Elec. Power Grp. v. Alstom S.A.,
830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding that "collecting information,
analyzing it, and displaying certain results of the collection and analysis" are
"a familiar class of claims 'directed to' a patent ineligible concept"); see
also In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir.
2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94
(Fed. Cir. 2016). Claim 1, unlike the claims found non-abstract in prior
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cases, uses generic computer technology to perform data retrieval, analysis,
and generation and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims not abstract because
they "focused on a specific asserted improvement in computer animation").
As such, claim 1 is directed to the abstract idea of receiving, analyzing, and
generating data.
The remaining claims merely describe calculation parameters. We
conclude that the claims at issue are directed to a patent-ineligible concept.
The introduction of a computer into the claims does not alter the analysis
at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it"' is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implemen[ t ]" an abstract idea
"on ... a computer," that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of "additional
feature[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (citations omitted).
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"[T]he relevant question is whether the claims here do more than simply
instruct the practitioner to implement the abstract idea [] on a generic
computer." Alice Corp. Pty. Ltd., 134 S. Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to receive, analyze, modify, and generate data amounts to
electronic data query and retrieval----one of the most basic functions of a
computer. All of these computer functions are well-understood, routine,
conventional activities previously known to the industry. See Elec. Power
Grp. v. Alstom S.A., supra. See also In re Katz Interactive Call Processing
Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) ("Absent a possible
narrower construction of the terms 'processing,' 'receiving,' and 'storing,'
... those functions can be achieved by any general purpose computer
without special programming"). In short, each step does no more than
require a generic computer to perform generic computer functions. As to the
data operated upon, "even if a process of collecting and analyzing
information is 'limited to particular content' or a particular 'source,' that
limitation does not make the collection and analysis other than abstract."
SAP Am. Inc. v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018)
( citation omitted).
Considered as an ordered combination, the computer components of
Appellants' method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-display
is equally generic and conventional or otherwise held to be abstract. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
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(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Commc 'ns, LLC, 874
F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
Viewed as a whole, Appellants' method claims simply recite the concept
of insurance as performed by a generic computer. To be sure, the claims
recite doing so by advising one to price insurance by applying risk factors
associated with route data. But this is no more than abstract conceptual
advice on the parameters for such insurance and the generic computer
processes necessary to process those parameters, and do not recite any
particular implementation.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The 14 pages of Specification do
not bulge with disclosure, but only spell out different generic equipment3
and parameters that might be applied using this concept and the particular
steps such conventional processing would entail based on the concept of
3 The computations are performed in a client device which may be a
personal computer, a smart phone, a tablet computer, a smart watch, a head
mounted display, a wearable computer or other suitable client device. This
is connected to a generic data base server. Spec. paras. 17-18.
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insurance under different scenarios. They do not describe any particular
improvement in the manner a computer functions. Instead, the claims at
issue amount to nothing significantly more than an instruction to apply the
abstract idea of insurance using some unspecified, generic computer. Under
our precedents, that is not enough to transform an abstract idea into a patent-
eligible invention. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long "warn[ ed] ... against" interpreting §
101 "in ways that make patent eligibility 'depend simply on the
draftsman's art."'
Alice Corp. Pty. Ltd., 134 S. Ct at 2360.
As to Appellants' arguments, we adopt the Examiner determinations and
analysis from Final Action 2-8 and Answer 8-13 and reach similar legal
conclusions. In particular, we are not persuaded by Appellants' argument
that "the collection of risk factor data facilitates an improvement to the
accuracy and efficiency in which risk can be assessed, and thus the accuracy
and efficiency of a computer system calculating the corresponding insurance
price quotes, would likewise be increased." Br. 13. The use of a computer
to improve accuracy and efficiency will not make an abstract concept less
abstract. The selection of particular data as parameters in an algorithm may
improve the algorithm results, but an algorithm remains an abstraction unto
itself.
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The steps in Versata's claims (e.g., arranging, storing,
retrieving, sorting, eliminating, determining) are
conventional, routine, and well-known. They involve the
normal, basic functions of a computer. "In order for the
addition of a machine to impose a meaningful limit on the
scope of a claim, it must play a significant part in
permitting the claimed method to be performed, rather than
function solely as an obvious mechanism for permitting a
solution to be achieved more quickly, i.e., through the
utilization of a computer for performing calculations." SiRF
Tech., Inc. v. Int'! Trade Comm'n, 601 F.3d 1319, 1333 (Fed
Cir. 2010); see also Bancorp, 687 F.3d at 1277-78. Versata's
claims do not meet this test, and instead function solely as a
mechanism for permitting the price determination to be
performed more quickly.
Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir.
2015).
Claims 1, 2, 5---8, 11-14, 17, and 18 rejected under 35 US. C. § 103 (a) as
unpatentable over Bogovich, Brinkmann, Rowley, Cote, and Hara
We adopt the Examiner findings from Final Action 10-22 and Answer
13-19 and reach similar legal conclusions. In particular, we are not
persuaded by Appellants' argument that
Rowley is directed to providing a recommended route that takes
current traffic conditions into account. Rowley, 1: 18-21.
Rowley analyzes previous routes in an attempt to predict future
ones more efficiently (See, e.g., Rowley, 4: 12-19), although
Rowley does not use routes as part of a risk assessment process,
as Rowley is not directed to solving issues with insurance
premmm pncmg.
Br. 16.
Cote's techniques associate different surface segments with
various risk metrics, but Cote does not assess the risk of a
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common route by separately addressing the risks associated
with the length of the common route as well as the presence of
other risk factors along the common route. Instead, Cote's
techniques only address risk metrics associated with different
surfaces that are traversed by a driver.
Br. 20.
The combination of Rowley and Cote describes identifying common
paths (Rowley) and using commonality of routes for insurance purposes
(Cote). Cote shows it was known to take commonality of routes with similar
surfaces into account for insurance pricing, and Rowley shows that such
commonality of routes may be extended to an entire route and determined
based on multiple similar trips. One of ordinary skill would have been led to
Rowley from Cote for implementation details as to how to determine
commonality.
Claims 19, 21, and 23 rejected under 35 USC.§ 103(a) as unpatentable
over Bogovich, Brinkmann, Rowley, Cote, Hara, and Kortge
Appellants argue these based on the independent claims.
Claims 20, 22, and 24 rejected under 35 USC.§ 103(a) as unpatentable
over Bogovich, Brinkmann, Rowley, Cote, Hara, and Yager
Appellants argue these based on the independent claims.
CONCLUSIONS OF LAW
The rejection of claims 1, 2, 5-8, 11-14, and 17-24 under 35 U.S.C.
§ 101 as directed to a judicial exception without significantly more is proper.
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The rejection of claims 1, 2, 5-8, 11-14, 17, and 18 under 35 U.S.C.
§ 103(a) as unpatentable over Bogovich, Brinkmann, Rowley, Cote, and
Hara is proper.
The rejection of claims 19, 21, and 23 under 35 U.S.C. § 103(a) as
unpatentable over Bogovich, Brinkmann, Rowley, Cote, Hara, and Kortge is
proper.
The rejection of claims 20, 22, and 24 under 35 U.S.C. § 103(a) as
unpatentable over Bogovich, Brinkmann, Rowley, Cote, Hara, and Yager is
proper.
DECISION
The rejection of claims 1, 2, 5-8, 11-14, and 17-24 is affirmed.
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)(l)(iv) (2011).
AFFIRMED
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