Ex Parte BUCKNER

Patent Trial and Appeal Board

Mar 6, 2019

15053049 (P.T.A.B. Mar. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/053,049 02/25/2016
73325 7590 03/08/2019
Matthew G. McKinney
Allen, Dyer, Doppelt & Gilchrist, P.A.
255 South Orange A venue
Suite 1401
Orlando, FL 32801
FIRST NAMED INVENTOR
Don M. BUCKNER
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.
0121826_CIP1 6001
EXAMINER
CHEN,CAIY
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
03/08/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mmckinney@allendyer.com
creganoa@allendyer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DON M. BUCKNER 1
Appeal2018-004959
Application 15/053,049
Technology Center 2400
Before CARL W. WHITEHEAD JR., JASON V. MORGAN, and
ADAM J. PYONIN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The identified real party in interest is Appellant. App. Br. 2.
Appeal2018-004959
Application 15/053,049
STATEMENT OF THE CASE
Introduction
The Application is directed to a "system and method for an interactive
crowdfunding platform [that] is intended to be the most real of all reality
shows," by having "participants [] explain their product and tell their
personal story, which may encourage the public to invest in their product."
Spec. ,r 24. Claims 1-11, 13-17, 19, and 20 are pending; of these, claims 1,
10, and 16 are independent. See App. Br. 14--18. Claim 1 is reproduced
below for reference ( emphasis added):
1. A method for an interactive crowdfunding platform, the
method comprising:
storing a graphical user interface ( GUI) on a device of a
viewer; and
receiving a video crowdfunding offering for a product at a
production server sent from a data portal, the production server
comprising a microprocessor and a memory that stores
preferences of the viewer for video format, destination address,
specified investment value, investment category, and
transmission schedule, wherein the microprocessor
filters the received video crowdfunding offering by
comparing content of the received video crowdfunding offerings
to the stored preferences of the viewer to find a match,
generates an alert in response to a matched filtered video
crowdfunding offering, the alert includes at least one of the
investment category, the investment value, and a universal
resource locator (URL), which specifies the location of the data
portal, and
transmits the alert to the GUI of the viewer when the
viewer has not viewed the matched filtered video crowdfunding
offering,
wherein the alert activates the GUI to cause the alert to
display on the device of the viewer and to enable connection via
the URL to the data portal and to enable the viewer to invest in
the product shown in the video crowdfunding offering.
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Application 15/053,049
References and Re} ections2
The following is the prior art relied upon by the Examiner in rejecting
the claims on appeal:
Dresner
Cohen
Clarke
Mathews
US 2013/0185228 Al July 18, 2013
US 2014/0025473 Al Jan. 23, 2014
US 2014/0143120 Al May 22, 2014
US 2016/0035034 Al Feb. 4, 2016
Claims 1-11, 13-17, 19, and 20 stand rejected under 35 U.S.C. § 101
as being patent ineligible. Final Act. 3; App. Br. 5.
Claims 1, 3, 4, 6-8, 10, 11, 13, 14, 16, 17, and 19 stand rejected under
35 U.S.C. § I03(a) as being unpatentable over Dresner and Mathews. Final
Act. 4--7.
Claims 2, 5, 15, and 20 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Dresner, Mathews, and Cohen. Final Act. 8-9.
Claim 9 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over Dresner, Mathews, and Clarke. Final Act. 9.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2017). We adopt
the Examiner's findings and conclusions as our own, and we add the
following primarily for emphasis.
2 The Examiner erroneously lists canceled claims 12 and 18 as part of the
rejections. See Final Act. 3, 4.
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Application 15/053,049
A. 35U.S.C.§101
The Examiner determines claim 1 is patent ineligible under 35 U.S.C.
§ 101, because it is directed to an abstract idea and does not include
additional elements that are sufficient to amount to significantly more than
the abstract idea. See Ans. 9-1 O; see also Alice Corp. v. CLS Bank Int 'l, 573
U.S. 208,217 (2014) (Describing the two-step framework "for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.").
After the mailing of the Answer and the filing of the Briefs in this
case, the US PTO published revised guidance on the application of§ 101
("Guidance"). See USPTO's 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("Memorandum"). Pursuant to the
Guidance "Step 2A," the office first looks to whether the claim recites:
( 1) Prong One: any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain
methods of organizing human activity such as a fundamental
economic practice, or mental processes); and
(2) Prong Two: additional elements that integrate the judicial
exception into a practical application (see MPEP § 2106.05(a}-
( C ), ( e }-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then (pursuant to the
Guidance "Step 2B") look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are not "well-understood, routine, conventional" in the field
(see MPEP § 2106.05(d)); or
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Application 15/053,049
( 4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum.
I. Step 2A
Prong One
Appellant argues the Examiner errs in determining claim 1 is abstract,
because it is "not directed to the creation of a contractual relationship."
App. Br. 6; see also Reply Br. 2. Instead, Appellant contends claim 1 is
"directed to an alert that activates the GUI to cause the alert to display on the
device of the viewer and to enable connection via the URL to the data portal
and to enable the viewer to invest in the product shown in the video
crowdfunding offering." App. Br. 6 (emphasis omitted).
Pursuant to the Guidance, we are not persuaded the Examiner errs in
determining claim 1 recites "the creation of a contractual relationship by
way of crowdfunding, which is a commercial arrangement involving
contractual relations similar to the fundamental economic practices found by
the courts to be abstract ideas." Ans. 10; see also Memorandum,
Section III(A)(l) (Prong One: Evaluate Whether the Claim Recites a Judicial
Exception), fn. 13, 84 Fed. Reg. at 54.
Claim 1 recites a method for an interactive crowdfunding platform,
including receiving a video crowdfunding offering, filtering the offering, and
alerting a viewer of a matched offering which enables the viewer to see and
invest in the offering. We agree with the Examiner that such steps are part
of creating a "financial contract" (i.e., the investment), because the steps are
commercial or legal interactions (including agreements in the form of
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Application 15/053,049
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations) conducted to create the investment. Advisory
Act. 2; Memorandum 84 Fed. Reg. at 52; see also Spec. ,r 41 ("An investor
agreement is transmitted, at 312, to each viewer that invested and the money
is disbursed to the entrepreneur."). We also determine that such steps are
part of "managing personal behavior or relationships or interactions between
people," including "following rules or instructions." Memorandum, 84 Fed.
Reg. at 52.
Accordingly, claim 1 recites the abstract concept under the Guidance
of "[c]ertain methods of organizing human activity." Id.
Prong Two
We are also not persuaded the Examiner's rejection is in error
pursuant to Step 2A, Prong Two of the Guidance. The recited "alert system
that enables a connection via the URL to the data portal," as discussed by
Appellant (Reply Br. 2), is the claimed means of communicating the offering
to the viewer. See Final Act. 2-3 ([T]he recitation of claim elements
'transmits ... wherein ... ' of the claim 1 amounts to no more than stating create
a financial contract on a computer and send it over a network."). Rather
than providing a technical benefit, the alert provides a financial/commercial
benefit of allowing the offering to "reach the necessary funding and [reduce]
the possibility of competitors having their product to market first." Spec.
,r 6. Therefore, the use of the alert system with a universal resource locator
(URL) is part of the recited abstract idea, itself, as the communication is part
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of the organizing human activity; 3 alternatively, at most such elements "do[]
no more than generally link the use of a judicial exception to a particular
technological environment." Memorandum, 84 Fed. Reg. at 55; see also
Ans. 10.
Accordingly, we determine the claim does not integrate the judicial
exception into a practical application. See Memorandum, 84 Fed. Reg. at
54. As the "claim recites a judicial exception and fails to integrate the
exception into a practical application," we must proceed with "further
analysis pursuant to the second step of the Alice/ Mayo test (USPTO Step
2B)." Memorandum, 84 Fed. Reg. at 51.
II. Step 2B
We agree with the Examiner that the claimed elements and
combination of elements do not amount to significantly more than the
judicial exception itself. See Final Act. 2--4; Memorandum, Section III (B)
(Step 2B), 84 Fed. Reg. at 56. The claimed additional elements only recite
generic components and steps that are well-understood, routine, and
conventional. See Ans. 10; Spec. ,r,r 2---6, 23, 38, 42; Alice, 573 U.S. at 226.
Accordingly, we agree with the Examiner that claim 1 is patent ineligible.
See Final Act. 3--4.
3 See Final Act. 2; see also BSG Tech LLC v. Buyseasons, Inc., 899 F.3d
1281, 1290 (Fed. Cir. 2018); Memorandum, 84 Fed. Reg. 54--55 ("evaluate
integration into a practical application by: (a) Identifying whether there are
any additional elements recited in the claim beyond the judicial
exception(s)"); Memorandum fn. 24 ("USPTO guidance uses the term
'additional elements' to refer to claim features, limitations, and/or steps that
are recited in the claim beyond the identified judicial exception.").
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Application 15/053,049
B. 35U.S.C.§103
I. Independent Claim 1
Appellant argues the Examiner's obviousness rejection of claim 1 is in
error, because "there is no mention at all or suggestion in Dresner to include
a 'universal resource locator (URL), which specifies the location of the data
portal"' as claimed. App. Br. 8. Appellant further argues that "Matthews
[sic] simply does not describe or suggest that 'the alert activates the GUI to
cause the alert to display on the device of the viewer"' as claimed, because
"Matthews [sic] suggests that the user must activate the user interface."
App. Br. 10-11 (emphasis omitted).
Appellant's arguments unpersuasively focus on the individual
teachings of each reference, whereas the Examiner's rejection is based on
the combined teachings Dresner and Mathews. See Ans. 11 ("the entire
claim limitation is met by the combination of Dresner and Matthew [sic]").
Here, the Examiner finds "Dresner disclose[s] the concept of sending [an]
email alert" (Ans. 11) and Mathews teaches "the url which contain the link
to the video of crowdfunding offer is sent to the user to allow user to see"
(Final Act. 6). See Dresner ,r,r 218, 260; Mathews ,r 11. We agree, as
Dresner discloses "email alerts letting an investor know ... when a new
project that meets their interest criteria has been posted on a crowdfunding
website," and Mathews discloses "a user is presented via a user interface
with an array of links to various crowdfunding opportunities." Dresner
,r 218; Mathews ,r 11. Appellant does not persuasively show the Examiner
errs in finding one of ordinary skill would modify Dresner' s system to send
an alert which "activates the GUI to cause the alert to display on the device
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Application 15/053,049
of the viewer, and to enable connection via the URL" within the meaning of
the claim. See Ans. 11-12. 4
Accordingly, we are not persuaded the Examiner errs in finding the
combination of Dresner and Mathews teaches or suggests the limitations of
independent claim 1.
II. Dependent Claim 5
error:
Appellant argues the Examiner's obviousness rejection of claim 5 is in
the cited portions of Dresner and Matthews [sic] do not disclose
that the alert is transmitted over a wireless communication
channel to the device associated with the viewer based upon the
destination address and the transmission schedule. Further, the
cited portions of Cohen describing a general network
arrangement ... also fails to disclose this feature of Claim[] 5.
App. Br. 12-13.
We are not persuaded the Examiner errs. We agree with the
Examiner, and Appellant does not challenge, that Cohen teaches or suggests
"the concept of communicating using a wireless network (para. 23)." Ans.
13. Further, Appellant's argument consists essentially of quoting the
entirety of claim 5 and the cited paragraph of Cohen. See App. Br. 12-13;
Reply Br. 4. Such a response to the Examiner's findings is insufficient to
persuade us of Examiner error, as "mere statements of disagreement ... do
4 We note that, contrary to Appellant's contention, Mathews discloses the
user will activate the URL, not that the user will activate the GUI to cause
the alert to display. See Reply Br. 3; Mathews ,r 11. As the alert contains
the URL, the combination of Dresner and Mathews teaches or suggests the
recited "alert activates the GUI," for the user's view (and subsequent URL
activation). See Final Act. 3.
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not amount to a developed argument." SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006); see also In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.").
Accordingly, we are not persuaded the Examiner errs in finding the
combination of Dresner, Mathews, and Cohen teaches or suggests the
limitations of dependent claim 5.
CONCLUSION
We sustain the Examiner's rejections of independent claim 1 and
dependent claim 5. Appellant advances no further argument on the
remaining claims. See App. Br. 7, 11. Accordingly, we sustain the
Examiner's rejections of all pending claims for the same reasons discussed
above.
DECISION
The Examiner's decision rejecting claims 1-11, 13-17, 19, and 20 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)(l )(iv).
AFFIRMED
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