Ex Parte Drabble et al

Patent Trial and Appeal Board

Oct 22, 2018

12016255 (P.T.A.B. Oct. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/016,255 01/18/2008 Christopher Peter Drabble
30449 7590 10/24/2018
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
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.
GB920060124US 1 3929
EXAMINER
ARAQUE JR, GERARDO
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
10/24/2018 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):
30449@IPLA WUSA.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER PETER DRABBLE and GARY PAUL NOBLE
Appeal2017---002364
Application 12/016,255
Technology Center 3600
Before MURRIEL E. CRAWFORD, ANTON W. PETTING, and
BIBHU R. MOHANTY, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Christopher Peter Drabble and Gary Paul Noble (Appellants) seek
review under 35 U.S.C. § 134 ofa final rejection of claims 1, 3, 4, 7, 8, 10-
1 Our decision will make reference to the Appellants' Appeal Brief ("App.
Br.," filed April 8, 2016) and Reply Brief ("Reply Br.," filed November 23,
2016), and the Examiner's Answer ("Ans.," mailed September 23, 2016),
and Final Action ("Final Act.," mailed November 18, 2015).
Appeal2017---002364
Application 12/016,25 5
13, and 18-28, the only claims pending in the application on appeal. We
have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
The Appellants invented a publish[ ed] and subscribe system in a
geofence2 environment. Specification 1 :2-3.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method for providing location specific information,
said method configured to be implemented in a data processing
network, said method comprising:
[ 1] a processing server of the data processing network receiving
subscriptions to topics subscribed to by a plurality of
subscribers,
wherein the processing server comprises three distinct
data stores consisting of a first data store, a second data
store, and a third data store,
wherein first data stored in the first data store consists of
a plurality of locations and an associated at least one
geofence within which each location stored in the first
data store is located interior to each exterior boundary of
the at least one geofence,
wherein second data stored in the second data store
consists of a plurality of topics and a geofence to which
each topic is associated such that each said geofence
identified in the second data store is identified in the first
data in the first data store in association with a location of
the plurality of locations,
2 A geofence is a virtual boundary on a geographic region.
https://wordspy.com/index.php?word=geofence
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Application 12/016,25 5
wherein third data stored in the third data store consists
of a subscriber profile of each subscriber of the plurality
of subscribers along with a topic that each subscriber has
subscribed to
such that each subscribed to topic is comprised by
the plurality of topics in the second data in the
second data store, and wherein each geofence has a
geometric shape located within a geographic area;
[2] after said receiving subscriptions, said processing server
receiving event data pertaining to an event that has occurred,
said event data being received from an event reporting
system that has gathered the event data from a data
gathering means situated where the event has occurred,
wherein the event data comprises location identification
data from which a location of the event may be
determined and event description data that describes the
event;
[3] after said receiving event data, said processing server
identifying,
from analysis of the location identification data in
the received event data and the first data stored in
the first data store,
one or more geofences associated with the location
determined from the location identification data;
[ 4] after said identifying one or more geofences, said processing
server identifying,
from analysis of the identified one or more
geofences and the second data stored in the second
data store,
at least one topic associated with each geofence of the
identified one or more geofences;
[5] after said identifying at least one topic associated with each
geofence of the identified one or more geofences, said
processing server identifying,
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and
from analysis of each identified topic and the third
data stored in the third data store,
at least one subscriber of the plurality of subscribers
having a subscription to at least one topic associated with
a geofence of the identified one or more geofences;
[ 6] after said identifying at least one subscriber, said processing
server publishing the event description data across a network to
a computer device directly accessed by each subscriber of the
identified at least one subscriber.
Claims 1, 3, 4, 7, 8, 10-13, and 18-28 stand rejected under 35 U.S.C. §
101 as directed to non-statutory subject matter.
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.
ANALYSIS
Method claim 1 recites a series of telescoping data selections based on
several predefined data associations to select which data regarding events to
send to subscribers of such services. To the extent claim 1 may be novel and
non-obvious, it is only in the choice of data sets and selection criteria.
Appellants ask for a patent on what is perhaps a novel set of selection
criteria upon which to base data selection and transmission. Any such
novelty is outside the scope determining patent eligibility.
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Application 12/016,25 5
Method claim 1 recites receiving subscription and event data, identifying
geofence, topic, and subscriber data, and publishing event data. Thus, claim
1 recites receiving, analyzing, modifying, and transmitting 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, modification, and transmission are all generic,
conventional data processing operations to the point they are themselves
concepts awaiting implementation details. The sequence of data reception-
analysis-modification-display-transmission is equally generic and
conventional. The ordering of the steps is therefore ordinary and
conventional. The remaining claims merely describe process parameters,
with no implementation details.
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 Bank Intl, 134 S. Ct. 2347, 2355 (2014)
( citing Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66 (2012)).
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Application 12/016,25 5
To perform this test, we must first determine whether the claims at issue
are directed to a patent-ineligible concept. The Examiner determines the
claims to be directed to location based customer service and information
look-up. The Examiner further determines that this is accomplished by
managing location based topics associated with subscribers and their profile
information, identifying when a particular trigger for a topic has occurred
based on location information of the subscriber ( e.g., when the user has
entered the location, general location, geofence, or the like associated with
the topic), and informing the subscriber of the specifics of the topic in
response to the trigger, which is (i) a fundamental economic practice, (ii) a
method of organizing human activities, (iii) an idea of itself, or (iv) a
mathematical relationship or formula. Final Act. 2-3.
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 location
specific information. The steps in claim 1 result in publishing event
description data across a network absent any technological mechanism other
than a conventional computer for doing so. The Specification at 1 :2-3
recites that the invention relates to a publish and subscribe system in a
geofence environment. Thus, all this evidence shows that claim 1 is directed
to providing and publishing information, i.e., publishing. This is consistent
with the Examiner's determination.
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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 publishing
is a fundamental business practice long prevalent in our system of
commerce. The use of publishing is also a building block of ingenuity in
information gathering. Thus, publishing, like hedging, is an "abstract idea"
beyond the scope of §101. See Alice Corp. Pty. Ltd. at 2356.
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 publishing
at issue here. Both are squarely within the realm of "abstract ideas" as the
Court has used that term. See Alice Corp. Pty. Ltd. at 2357.
Further, claims involving 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 cases, uses
generic computer technology to perform data reception, analysis,
modification, and transmission 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
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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, modifying, and transmitting data.
The remaining claims merely describe process 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.
the 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 "implement[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).
"[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.
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Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, analyzing, modifying, and transmitting 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. Also see In re Katz Interactive Call Processing
Patent Litigation, 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 America Inc.
v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018).
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-
modification-display-transmission 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) (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.
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Application 12/016,25 5
v. Comcast Cable Communications, 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 publishing as performed by a generic computer. To be sure, the claims
recite doing so by advising one to receive subscription and event data,
identify geofence, topic, and subscriber data, and publish event data. But
this is no more than abstract conceptual advice on the parameters for such
publishing 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
publishing 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 publishing using some unspecified, generic computer.
3 The Specification describes hand held devices and desktop computers.
Spec. 6:7-9.
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Under our precedents, that is not enough to transform an abstract idea into a
patent-eligible invention. See Alice Corp. Pty. Ltd. 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. at 2360.
As to Appellants' Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action 2-21 and Answer 2-31 and
reach similar legal conclusions. We now tum to the Reply Brief.
Appellants analogize their claims to those in McRO, Inc. v. Bandai
Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016). Reply Br. 2-
5. Appellants do so by relating specific limitations to each step in a claim
table. These limitations are specific only in the sense they are specified with
words. The limitations recite conventional data reads and writes and
analysis based on predefined associations. These are the most generic of
computer operations. This differs from the claims reciting physical
improvements in McRO. The instant claims offer no technological
implementations and therefore no technological improvements.
Contrary to InvestPic' s contention, the claims here are
critically different from those we determined to be patent
eligible in McRO, Inc. v. Bandai Namco Games America Inc.,
837 F.3d 1299 (Fed. Cir. 2016). The claims inMcROwere
directed to the creation of something physical-namely, the
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display of "lip synchronization and facial expressions" of
animated characters on screens for viewing by human eyes. Id.
at 1313. The claimed improvement was to how the physical
display operated (to produce better quality images), unlike
(what is present here) a claimed improvement in a mathematical
technique with no improved display mechanism. The claims in
McRO thus were not abstract in the sense that is dispositive
here. And those claims also avoided being "abstract" in another
sense reflected repeatedly in our cases (based on a contrast not
with "physical" but with "concrete"): they had the specificity
required to transform a claim from one claiming only a result to
one claiming a way of achieving it. McRO, 837 F.3d at 1314;
see Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305---06
(Fed. Cir. 2018); * 1168 Apple, Inc. v. Ameranth, Inc., 842
F.3d 1229, 1241 (Fed. Cir. 2016); Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1265 (Fed. Cir. 2016); see
also Two-Way Media, 874 F.3d at 1337; Secured Mail Solutions
LLC v. Universal Wilde, Inc., 873 F.3d 905, 909 (Fed. Cir.
2017); RecogniCorp, 855 F.3d at 1326; Symantec, 838 F.3d at
1316.
SAP America v. Investpic, 898 F.3d 1161, 1167-1168 (Fed. Cir. 2018). In
contrast, the claims of the instant application merely implement an old
practice of using decision criteria in making content decisions in a new
environment. Appellants have not argued that the claimed processes of
selecting content do so in a manner technologically different from those
which humans used, albeit with less efficiency, before the invention was
claimed. Merely using particular subsets of geographic and interest
matching for the objects of decision making to aid decision making is both
old and itself abstract.
We are not persuaded by Appellants' argument that "there is no nexus in
the claims between the provision of services and parameters of the
economy." Reply Br. 5---6. The Examiner perhaps might have better
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referred to business than the economy, but the principle remains that
publishing data is a vital part of the market economy.
We are not persuaded by Appellants' argument that "there is no
disclosure in independent claims 1, 19 and 20 that the subscribers wish to be
notified about particular events, since the subscribers subscribe to topics and
not to events." Reply Br. 6-7. A plain reading of claim 1 shows that
subscribers receive event data. The fact that they subscribe to receive this
data implies a desire to do so.
We are not persuaded by Appellants' argument that the subscribers are
not being monitored. Reply Br. 14. Although we agree that the subscribers
are not being monitored, this is harmless error as the issue is whether the
claims are directed to a fundamental economic or business practice. We
determined they are, supra.
We are not persuaded by Appellants' argument that "the claims are
totally silent as to customers." Reply Br. 15. The claims recite subscribers,
which are a species of the genus customer.
We are not persuaded by Appellants' argument that "claims 1, 19 and 20
improve the technology of providing location specific information." Reply
Br. 18. Appellants goes on to contend this is evidenced by the prior appeal
determining the claims to be non-obvious. Id. This conflates obviousness
will eligibility. "A claim for a new abstract idea is still an abstract idea.
The search for a § 101 inventive concept is thus distinct from demonstrating
§ 102 novelty." Synopsys, Inc. v. Mentor Graphics Corporation, 839 F.3d
1138, 1151 (Fed. Cir. 2016).
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We are not persuaded by Appellants' argument that "it is logically
impossible for the claims to be both (i) novel and unobvious over the prior
art and (ii) well-understood, routine and conventional in the field of the
claimed invention." Br. 20. It is only the data operated upon that may be
non-obvious. As determined supra, data reads and writes are primitive
computer operations and therefore conventional. SAP America Inc., supra,
holds that the nature of the data cannot render a claim non-abstract.
We are not persuaded by Appellants' argument that the claims recite
significantly more and do not preempt. Br. 20-23. The claims do not recite
a technological solution to a technological problem.
Unlike the claim in Content Extraction, claim 1 of the '065
patent depends upon a specific enhancing limitation that
necessarily incorporates the invention's distributed
architecture-an architecture providing a technological solution
to a technological problem. This provides the requisite
'something more' than the performance of "well-understood,
routine, [ and] conventional activities previously known to the
industry."
Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1301 (Fed.
Cir. 2016)
As to preemption, "Where a patent's claims are deemed only
to disclose patent ineligible subject matter under the Mayo
framework, as they are in this case, preemption concerns are fully
addressed and made moot." Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Appellants further argue that the asserted claims are akin to the
claims found patent-eligible in DDR Holdings, LLC v. Hotels.com, L.P.
773 F.3d 1245 (Fed. Cir. 2014). Reply Br. 24-25. In DDR Holdings, the
Court evaluated the eligibility of claims "address[ing] the problem of
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retaining website visitors that, if adhering to the routine, conventional
functioning of Internet hyperlink protocol, would be instantly
transported away from a host's website after 'clicking' on an
advertisement and activating a hyperlink." Id. at 1257. There, the Court
found that the claims were patent eligible because they transformed the
manner in which a hyperlink typically functions to resolve a problem
that had no "pre-Internet analog." Id. at 1258. The Court cautioned,
however, "that not all claims purporting to address Internet-centric
challenges are eligible for patent." Id. For example, in DDR Holdings the
Court distinguished the patent-eligible claims at issue from claims found
patent-ineligible in Ultramercial. See id. at 1258-59 (citing Ultramercial,
772 F.3d 7 0 9, 715-16 (Fed. Cir. 2014)). As noted there, the Ultramercial
claims were "directed to a specific method of advertising and content
distribution that was previously unknown and never employed on the
Internet before." Id. at 1258 (quoting Ultramercial, 772 F.3d at 715-16).
Nevertheless, those claims were patent ineligible because they "merely
recite[d] the abstract idea of 'offering media content in exchange for
viewing an advertisement,' along with 'routine additional steps such as
updating an activity log, requiring a request from the consumer to view the
ad, restrictions on public access, and use of the Internet."' Id.
Appellants' asserted claims are analogous to claims found ineligible in
Ultramercial and distinct from claims found eligible in DDR Holdings.
The ineligible claims in Ultramercial recited "providing [a] media product
for sale at an Internet website;" "restricting general public access to said
media product;" "receiving from the consumer a request to view [a]
sponsor message;" and "if the sponsor message is an interactive message,
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presenting at least one query to the consumer and allowing said consumer
access to said media product after receiving a response to said at least one
query." 772 F.3d at 712. Similarly, Appellants' asserted claims recite
receiving, analyzing, modifying, and transmitting data. This is precisely the
type of Internet activity found ineligible in Ultramercial.
We are not persuaded by Appellants' argument that "claims 27 and 28
specify that the data gathering means for gathering the event data is special
purpose hardware, namely a camera, a speed sensor apparatus, a RFID
reader, or a GPS device." Reply Br. 26-28. These components are used
only for their conventional purpose.
Turning to the second step in our analysis, we find that the
claims fail to recite any elements that individually or as an
ordered combination transform the abstract idea of classifying
and storing digital images in an organized manner into a patent-
eligible application of that idea. It is well-settled that mere
recitation of concrete, tangible components is insufficient to
confer patent eligibility to an otherwise abstract idea. Rather,
the components must involve more than performance of 'well-
understood, routine, conventional activit[ies]' previously known
to the industry." Alice, 134 S. Ct. at 2359 (quoting Mayo, 132
S.Ct. at 1294). We agree with the district court that the claims'
recitation of a "telephone unit," a "server", an "image analysis
unit," and a "control unit" fail to add an inventive concept
sufficient to bring the abstract idea into the realm of
patentability.
As an initial matter, TLI argues that, even if known in the prior
art, the components recited in the claims cannot be
"conventional" within the meaning of the Alice absent fact-
finding by the court. While we must be mindful of extraneous
fact finding outside the record, particularly at the motion *614
to dismiss stage, here we need to only look to the specification,
which describes the telephone unit and server as either performing
basic computer functions such as sending and receiving data, or
performing functions "known" in the art. In other words, as will be
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discussed below, the claimed functions are "well-understood,
routine, activit[ies ]' previously known to the industry." Id. at 2359
(quoting Mayo, 132 S. Ct. at 1294).
In re TL! Communications LLC Patent Litigation, 823 F.3d 607,613---614
(2016).
CONCLUSIONS OF LAW
The rejection of claims 1, 3, 4, 7, 8, 10-13, and 18-28 under 35 U.S.C. §
101 as directed to non-statutory subject matter is proper.
DECISION
The rejection of claims 1, 3, 4, 7, 8, 10-13, and 18-28 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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