Ex Parte Dey et al

Patent Trial and Appeal Board

Sep 18, 2018

13530398 (P.T.A.B. Sep. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/530,398 06/22/2012
75739 7590 09/20/2018
RYAN, MASON & LEWIS, LLP
2425 Post Road
Suite 204
Southport, CT 06890
FIRST NAMED INVENTOR
Kunta1Dey
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.
IN920 l 20085US 1 9916
EXAMINER
ROSS, SCOTT M
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
09/20/2018 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):
CTOFFICE@RML-LA W.COM
kmm@rml-law.com
mjc@rml-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KUNTAL DEY and SEEMA NAGAR
Appeal2017-005747
Application 13/530,398 1
Technology Center 3600
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-3, 5, 7-11, 14, 16, 17, 19, and 20, which are all of the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
Claims 4, 6, 12, 13, 15, and 18 have been cancelled.
We AFFIRM.
1 According to Appellants, the real party in interest is International Business
Machines Corporation (App. Br. 1 ).
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Application 13/530,398
CLAIMED SUBJECT MATTER
According to Appellants, the claims are directed to monitoring an
ongoing campaign to determine the success of the campaign and to
subsequently re-direct the campaign if the campaign is not heading towards
success (Spec. 3: 11-21 ). Claim 1, reproduced below, is representative of the
claimed subject matter:
1. A method for incorporating contextual reinforcement to
dynamically evolve an information campaign, the method
compnsmg:
determining an evolution of an information campaign with
respect to at least one end objective up to a pre-determined point
of advancement in the life cycle of the information campaign,
wherein said determining comprises determining the evolution
of the information campaign at (i) an overall campaign level and
(ii) a level associated with each of multiple target demographic
groups, wherein said determining further comprises generating a
success curve to quantify the evolution of the information
campaign and to characterize a campaign class to which the
information campaign belongs, and wherein said determining is
carried out by a campaign engine, in communication with a
campaign database, executing on a computing device, wherein
the campaign database comprises campaign status data and
reinforcement campaign status data;
computing a campaign compatibility score for each of the
multiple target demographic groups of the information campaign
based on (i) past behavior of each of the multiple target
demographic groups in response to one or more campaigns of a
given campaign class, (ii) total number and rate of conversions
among each of the multiple target demographic groups in
response to the one or campaigns of said given campaign class,
(iii) one or more attributes of the multiple target demographic
groups, and (iv) evolution over time of the one or more attributes
among the multiple target demographic groups in response to the
one or more campaigns of said given campaign class;
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assigning a priority value to each of the multiple target
demographic groups based on (i) historical information
pertaining to the multiple target demographic groups, (ii)
behavior of each of the multiple target demographic groups up to
the pre-determined point of advancement in the life cycle of the
information campaign, and (iii) said campaign compatibility
score computed for each of the multiple target demographic
groups, wherein said assigning is carried out by the campaign
engine, deriving campaign status data from the campaign
database, executing on the computing device;
comparing the success curve with an expected curve of
evolution of success status over time to quantify the deviation of
a current status of the campaign with respect to an expected
status at a given time, wherein the expected curve of evolution
of success is generated using all points (p,k), wherein p is the
average expected accumulated number of converted targets
based upon all previous campaigns of the given campaign class
until time k measured from launch time of each of the previous
campaigns, wherein said comparing is carried out by the
campaign engine, deriving campaign status data from the
campaign database, executing on the computing device;
predicting a future progression of the information
campaign from the pre-determined point of advancement with
respect to the at least one end objective based on (a) said
evolution, (b) said deviation of the current status of the campaign
with respect to the expected status at the given time, and ( c) at
least one learned model of progression, wherein said future
progression includes a prediction of a potential outcome of the
information campaign at one or more given time points in the life
cycle, wherein said predicting comprises predicting the future
progression of the information campaign at (i) the overall
campaign level and (ii) the level associated with each of the
multiple target demographic groups, and wherein said predicting
is carried out by the campaign engine, deriving campaign status
data from the campaign database, executing on the computing
device; and
incorporating a contextual reinforcement campaign
directed at a given one of the multiple target demographic groups
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into the information campaign to dynamically evolve the
information campaign toward the at least one end objective,
wherein the given target demographic group comprises the target
demographic group with the highest assigned priority value
among target demographic groups that are associated with a
number of failures surpasses a pre-determined threshold of
failures occurring in the future progression, thereby generating
an evolved information campaign, wherein the reinforcement
campaign is based on said future progression, and wherein said
incorporating is carried out by a campaign reinforcement engine,
deriving reinforcement campaign status data from the campaign
database, executing on the computing device.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sussman
Lei
Holton
Pinchuk
US 2007 /0055554 Al
US 2007/0192167 Al
US 2008/0086359 Al
US 2011/0016058 Al
REJECTIONS
Mar. 8, 2007
Aug. 16, 2007
Apr. 10, 2008
Jan. 20, 2011
Claims 1-3, 5, 7-11, 14, 16, 17, 19, and 20 stand rejected under 35
U.S.C. § 101 as being directed to patent-ineligible subject matter (Final
Act. 2-5).
Claims 1-3, 5, 7-11, 14, 16, 17, 19, and 202 stand rejected under 35
U.S.C. § I03(a) as being unpatentable over Pinchuk, Holton, Lei, and
Sussman (id. at 11-26).
2 The Examiner includes claims 4, 6, and 18 in the rejection (Final Act. 11,
21, 22, 25-26), but claims 4, 6, and 18 have been cancelled (App. Br. 21,
23). Accordingly, we do not include claims 4, 6, and 18 in our analysis of
the 35 U.S.C. § I03(a) rejection over Pinchuk, Holton, Lei, and Sussman.
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Our review in this appeal is limited only to the above rejections and
the issues raised by Appellants. Arguments not made are waived (see MPEP
§ 1205.02; 37 C.F.R. §§ 4I.37(c)(l)(iv) and 4I.39(a)(l)).
ISSUE 1
35 U.S.C. § 101: Claims 1-3, 5, 7-11, 14, 16, 17, 19, and 20
Appellants argue their invention as recited in claims 1-3, 5, 7-11, 14,
16, 17, 19, and 20, is directed to patent eligible subject matter (App. Br. 11-
13). The issue presented by the arguments is:
Issue 1: Has the Examiner erred in concluding the invention as
recited is directed to patent-ineligible subject matter?
ANALYSIS
In Alice, the Supreme Court set forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts" (Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.
Ct. 1289, 1296-97 (2012))). 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 so, the second step 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 1297-98)). 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
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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)).
First Step
We agree with the Examiner's conclusion that independent claims 1,
19, and 20 are directed to patent-ineligible subject matter. We first observe
that independent claim 1 is directed to a method, independent claim 19 is
directed to an article of manufacture, and independent claim 20 is directed to
a system. As such, claims 1, 19, and 20 are each directed to statutory subject
matter within the meaning of 35 U.S.C. § 101.
Next, we analyze the claims to determine whether they are directed to
any judicial exception, e.g., an abstract idea. We agree with the Examiner's
determination that the claims are directed to an abstract idea (Ans. 4--5; Final
Act. 2-3). We disagree with Appellants' assertion that the Examiner, in
determining the claims are directed to an abstract idea, "has not considered
the collection of specific claim limitations as a whole" (Ans. 11-12) and
does not "analyz[ e] the specific language of the multiple, narrow limitations
recited in the claims" (Reply Br. 3). The Examiner describes or specifically
identifies specific limitations in the claims, e.g., "tracking the status of
campaigns ... computing campaign compatibility scores ... assigning
priority values ... comparing success curves ... predicting future
progression ... identifying campaigns ... [and] assisting campaigns"
(Ans. 4--5 (emphasis omitted); Final Act. 2-3). Upon analyzing those
limitations, the Examiner determines that those limitations "are directed to a
series of abstract concepts" (Ans. 4), e.g., processes for "tracking,
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computing, assigning, comparing, predicting, identifying" information,
"comparing new and stored information," "using rules to identify options,"
"using categories to organize, store, and transmit information," and using
"mathematical relationships/formulas" to analyze information (Ans. 5).
We agree with the Examiner that the claims recite a collection of
abstract-idea processes, and, accordingly, "the combination of those
abstract-idea processes" is directed to an abstract idea (Elec. Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)). Certain features
of the claims not specifically listed by the Examiner recite details of the
identified abstract processes that limit the information processed to a
particular content, e.g., the tracking of the campaign status includes
collecting information for "determining an overall campaign level" or
"levels associated with each of multiple target demographic groups." But
limiting the information being processed "to particular content ... does not
change its character as information," and, thus, the process remains "within
the realm of abstract ideas" (see Elec. Power Grp., 830 F.3d at 1353).
Second Step
Because the claims are directed to an abstract idea, we next consider
whether the additional elements recited by the claims transform the claims
into a patent-eligible application of the claimed subject matter. We agree
with the Examiner that the claims do not (Final Act. 3; Ans. 8).
Appellants argue "the claims are not 'well-understood, routine and
conventional in the field,'" because the claims are "novel and non-obvious
over the cited art" and, accordingly, recite significantly more than an
abstract idea itself (App. Br. 13; Reply Br. 4--5). This argument is
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predicated on the conclusion that the claims are non-obvious over the cited
art. This argument is directed to the rejection under 35 U.S.C. § 103 as to
which, as discussed infra, we agree with the Examiner's conclusion that the
claims would have been obvious over the prior art. Accordingly, this
argument is unpersuasive. Moreover, the alleged novel or non-obvious
improvements recited by the claims do not focus on "an improvement in
computers as tools, but on certain independently abstract ideas that use
computers as tools." Electric Power Grp., 830 F.3d at 1354. Here, the
claims merely recite generic computing components, e.g., "database[ s ]" and
"computing device[ s ]," to implement the improved abstract-idea processes
recited in the claims. Indeed, the Specification makes it clear that the
invention is "implemented in various forms of hardware, software, or
combinations thereof, for example ... an appropriately programmed general
purpose digital computer with associated memory" (Spec. 22:24--28).
Additionally, Appellants' argument that "the instant claims are clearly
drawn with sufficient narrowness so as not to preempt any and all generic
techniques in a similar system" (Reply Br. 5) does not persuade us that the
claims are directed to patent-eligible subject matter. Although preemption is
characterized as a driving concern for patent eligibility, preemption itself is
not the test for patent eligibility. Rather, "[ w ]hile preemption may signal
patent ineligible subject matter, the absence of complete preemption does
not demonstrate patent eligibility" (Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)). Where claims are deemed to
recite only patent-ineligible subject matter under the two-step Alice analysis,
as they are here, "preemption concerns are fully addressed and made moot"
(id.).
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Accordingly, Appellants have not persuaded us independent claims 1,
19, and 20 are directed to patent-eligible subject matter. Further, Appellants
have not proffered sufficient evidence or argument to persuade us that any of
the limitations in the dependent claims provide a meaningful limitation that
thus transforms the claims into a patent eligible application. Therefore, we
sustain the rejection of claims 1-3, 5, 7-11, 14, 16, 17, 19, and 20 under 35
U.S.C. § 101 as not being directed to patent-eligible subject matter.
ISSUE 2
35 U.S.C. § 103(a): Claims 1-3, 5, 7-11, 14, 16, 17, 19, and 20
Appellants contend their invention as recited in claims 1-3, 5, 7-11,
14, 16, 17, 19, and 20, is patentable over Pinchuk, Holton, Lei, and Sussman
(App. Br. 14--17). The issues presented by the arguments are:
Issue 2 a: Has the Examiner shown the combination of Pinchuk and
Sussman teaches or suggests "computing a campaign compatibility score for
each of the multiple target demographic groups of the information campaign
based on ... (ii) total number and rate of conversions among each of the
multiple target demographic groups in response to the one or campaigns of
said given campaign class," as recited in claim 1 and similarly recited in
claims 19 and 20?
Issue 2b: Has the Examiner shown the combination of Pinchuk,
Holton, and Sussman teaches or suggests "assigning a priority value to each
of the multiple target demographic groups based on ... (iii) said campaign
compatibility score computed for each of the multiple target demographic
groups," as recited in claim 1 and similarly recited in claims 19 and 20?
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ANALYSIS
Issue 2a
Appellants contend the Examiner erred in finding Sussman teaches or
suggests "computing a campaign compatibility score for each of the multiple
target demographic groups of the information campaign based on ... (ii)
total number and rate of conversions among each of the multiple target
demographic groups in response to the one or campaigns of said given
campaign class," as recited in claim 1 and similarly recited in claims 19 and
20 (App. Br. 14--15; Reply Br. 7-8). Specifically, Appellants argue
"Sussman clearly do[es] not disclose the express limitations of number and
rates of conversions 'of the multiple target demographic groups'" (App.
Br. 15; Reply Br. 8).
We are not persuaded. Rather, we agree with the Examiner's finding
that the combination of Pinchuk and Sussman teaches "computing a
campaign compatibility score for each of the multiple target demographic
groups of the information campaign based on ... (ii) total number and rate
of conversions among each of the multiple target demographic groups in
response to the one or campaigns of said given campaign class" (Final
Act. 19-20; Ans. 10-11).
Appellants' argument unpersuasively attacks Sussman individually
when the Examiner relies on the combination of Pinchuk and Sussman (In re
Keller, 642 F.2d 413,426 (CCPA 1981) (citation omitted)). Specifically,
the "Examiner emphasizes" that Sussman is relied on to teach the recited
"total number and rate of conversions" (Ans. 11 ). Therefore, the
Examiner's combination relies on Pinchuck's description of entities that
engage in different types of interactions to teach "multiple target
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demographic groups of the information campaign" of a "given campaign
class" (Final Act. 12-13).
More specifically, the Examiner finds, and we agree, Pinchuk teaches
"multiple target demographic groups of the information campaign" of a
"given campaign class" (Final Act. 12-13 (citing Pinchuk ,r,r 5, 45, 68, 71,
233); Ans. 10). Specifically, Pinchuck describes "grouping together a
number of customers, which is one type of entity, based on the
demographics of the customers" (Pinchuck ,r 5) and further describes
providing behavioral "predictions ... to optimize the interactions between a
plurality of entities and [an] organization" (Pinchuk ,r 3; see Pinchuk ,r,r 7,
45, 68, 71, 233). We also agree with the Examiner's finding (Final Act. 19;
Ans. 10) that Sussman's disclosure of "cumulative sales percentages relative
to the total number of event tickets offered for sale" and "cumulative sales"
(Sussman ,r 468) teaches a "total number and rate of conversions."
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Pinchuk and Sussman teaches "computing a campaign
compatibility score for each of the multiple target demographic groups of the
information campaign based on ... (ii) total number and rate of conversions
among each of the multiple target demographic groups in response to the
one or campaigns of said given campaign class," as recited in claim 1 and
similarly recited in claims 19 and 20.
Issue 2b
Appellants contend the Examiner erred in finding Holton teaches or
suggests "assigning a priority value to each of the multiple target
demographic groups based on ... (iii) said campaign compatibility score
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computed for each of the multiple target demographic groups," as recited in
claim 1 and similarly recited in claims 19 and 20 (App. Br. 16-17).
Specifically, Appellants argue "Holton teaches 'prioritiz[ing] the sales
problems and sales opportunities,' which, even if accurate, is clearly
distinct from the explicitly claimed limitation of 'a priority value to each of
the multiple target demographic groups"' (id. at 16). Appellants further
argue that Holton's "sales decline benchmark deviation" does not teach a
"campaign compatibility score" and that "it is unclear what" a sales decline
benchmark deviation is (id. at 17).
We are not persuaded. The Examiner relies on Holton's description
of prioritized sales for "retailers in different geographic areas (Publix
'Jacksonville' v. Publix 'Lakeland' v. Publix 'Miami')" (Ans. 14 (citing
Holton Fig. 5); Final Act. 16-17 (citing Holton ,r,r 24--27, 31-38)). The
Examiner further relies on (Ans. 14--15) Holton's disclosure that those
prioritized sales are based on alerts calculated from a "deviation"
quantifying a "decline in sales exceed[ing] [a] computed benchmark"
(Holton ,r,r 31-3 6), which the Examiner describes as a "sales decline
benchmark deviation" (Ans. 14).
We agree with the Examiner's finding that Holton teaches "multiple
target demographic groups" (Ans. 12-14). In particular, as the Examiner
describes, Holton's system analyzes retailers in different geographic areas
where each retailer represents "a different demographic group," e.g., the
geographic demographic groups of "Jacksonville," "Lakeland," and
"Miami" (Ans. 14 ( citing Holton Fig. 5); see Holton ,r 132).
Further, we determine Holton's deviation quantifying a decline in
sales exceeding a benchmark is within the scope of a "campaign
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compatibility score" (see Ans. 15). Although the Specification does not
define a "campaign compatibility score," the Specification does provide a
broad example of a campaign compatibility score reflecting a failure to make
sales (Spec. 6:7-20). Consistent with that description, Holton's "deviation"
quantifying a "decline in sales exceed[ing] [a] computed benchmark"
represents a failure to make sales (Holton ,r,r 31-36) and so teaches a
"campaign compatibility score." While not relied upon to reach our
decision, we note the Examiner also finds that the combination of Pinchuk
and Sussman teaches the computation of a "campaign compatibility score"
(Final Act. 12-13, 19-20).
Accordingly, we are not persuaded the Examiner fails to show the
combination of Pinchuk, Holton, Lei, and Sussman teaches or suggests the
limitations as recited in claims 1, 19, and 20. Therefore, we sustain the
rejection of claims 1, 19, and 20 under 35 U.S.C. § 103(a) as being
unpatentable over Pinchuk, Holton, Lei, and Sussman. It follows, we sustain
theExaminer'srejectionofclaims2, 3, 5, 7-11, 14, 16, and 17, for which
Appellants offer no additional persuasive arguments for patentability (see
App. Br. 14--17).
DECISION
The Examiner's rejection of claims 1-3, 5, 7-11, 14, 16, 17, 19, and
20 under 35 U.S.C. § 101 as being directed to patent-ineligible subject
matter is affirmed.
The Examiner's rejection of claims 1-3, 5, 7-11, 14, 16, 17, 19, and
20 under 35 U.S.C. § 103(a) as being unpatentable over Pinchuk, Holton,
Lei, and Sussman is affirmed.
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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.
§ 4I.50(f).
AFFIRMED
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