Ex Parte Dunmire et al

Patent Trial and Appeal Board

Aug 24, 2017

11426206 (P.T.A.B. Aug. 24, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/426,206 06/23/2006 David Dunmire 20103/IT1124 1530
83417 7590 08/25/2017
AT&T Legal Department - HFZ
ATTN. Patent Docketing
One AT&T Way
Room 2A-207
Bedminster, NJ 07921
EXAMINER
LI, SUN M
ART UNIT PAPER NUMBER
3681
MAIL DATE DELIVERY MODE
08/25/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID DUNMIRE, BRIAN NOVACK,
CHAD C. KEITH, and JEFF CLARK
____________

Appeal 2015-006698
Application 11/426,206
Technology Center 3600
____________

Before HUBERT C. LORIN, PHILIP J. HOFFMANN, and
AMEE A. SHAH, Administrative Patent Judges.

SHAH, Administrative Patent Judge.

DECISION ON APPEAL1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1–9, 19–24, 26–36, 54, and 55 under
35 U.S.C. § 101 as being directed to non-statutory subject matter. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 Throughout this Opinion, we refer to the Appellants’ Appeal Brief
(“Appeal Br.,” filed Feb. 25, 2015), Reply Brief (“Reply Br.,” filed July 6,
2015), and Specification (“Spec.,” filed June 23, 2006), and to the
Examiner’s Answer (“Ans.,” mailed May 4, 2015) and Final Office Action
(“Final Act.,” mailed Nov. 25, 2014).
2 According to the Appellants, the real party in interest is “‘AT&T
Intellectual Property I, L.P.’, formerly known as ‘SBC Knowledge Ventures,
L.P. a Nevada Partnership.’” Appeal Br. 2.
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STATEMENT OF THE CASE
The Appellants’ invention is directed to “[m]ethods and an apparatus
to provide an electronic agent in a telecommunication system.” Spec. ¶ 13.
Claims 1, 19, and 28 are the independent claims on appeal. Claim 1 is
illustrative of the subject matter on appeal and is reproduced below:
1. A method comprising:
identifying, using a processor, an interactive television
program received at an information presenting device;
accessing, using the processor, a list of keywords
associated with the interactive television program via a network,
the keywords associated with the interactive television program
by a provider of the interactive television program;
identifying, using the processor, a user identifier of a user
of the information presenting device;
accessing user profile information associated with the user
identifier;
automatically accessing, using the processor, a first
database using at least one of the keywords to retrieve at least
two advertisements associated with the interactive television
program;
automatically determining, using the processor, a selected
advertisement of the at least two advertisements based on a
proximity of a business represented in the selected advertisement
to a location indicated in the user profile information; and
presenting an electronic agent on the information
presenting device to at least one of present the selected
advertisement retrieved from the first database or offer to retrieve
the selected advertisement identified via the first database.
Appeal Br. (Claims App. A1).

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ANALYSIS
Under 35 U.S.C. § 101, a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” The Supreme Court has “long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. Pty.
Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014) (quoting Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116
(2013)).
The Supreme Court in Alice reiterated the two-step framework, set
forth previously in Mayo Collaborative Services v. Prometheus Labs., Inc.,
566 U.S. 66, 78–79 (2012), “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., 134 S. Ct. at 2355.
The first step in that 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.
(citing Mayo, 566 U.S. 79, 78).
In other words, the second step is to “search for an ‘inventive
concept’—i.e., an element or combination of elements that is ‘sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.’” Id. (alteration in original) (citing
Mayo, 566 U.S. at 72–73). The Court acknowledged in Mayo, that “all
inventions at some level embody, use, reflect, rest upon, or apply laws of
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nature, natural phenomena, or abstract ideas.” Mayo, 566 U.S. at 71. We,
therefore, look to whether the claims focus on a specific means or method
that improves the relevant technology or are instead directed to a result or
effect that itself is the abstract idea, and merely invoke generic processes and
machinery. See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed.
Cir. 2016).
Turning to the first step of the Alice framework, we find unpersuasive
the Appellants’ arguments that “the analysis offered by the Examiner is at
odds with the Alice decision” because the Examiner does not “properly
identify an abstract concept set forth or described in claim 1,” and because
the “Examiner fails to identify an abstract concept to which the claim as a
whole is directed.” Appeal Br. 13.
Before determining whether the claims at issue are directed to an
abstract idea, we must first determine to what the claims are directed.
The “directed to” inquiry[] . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural
phenomenon—after all, they take place in the physical world.
See Mayo, 132 S. Ct. at 1293 (“For all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas.”) Rather, the “directed to” inquiry
applies a stage-one filter to claims, considered in light of the
specification, based on whether “their character as a whole is
directed to excluded subject matter.” Internet Patents Corp. v.
Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015); see
Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1375, 2016
WL 1393573, at *5 (Fed. Cir. 2016) (inquiring into “the focus of
the claimed advance over the prior art”).
Enfish, 822 F.3d at 1335.
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With respect to computer-enabled claimed subject matter, it can be
helpful to determine whether “the claims at issue . . . can readily be
understood as simply adding conventional computer components to well-
known business practices” or not. Id. at 1338. See also Affinity Labs of
Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016). In
Enfish, for example, the court noted that “[s]oftware can make non-abstract
improvements to computer technology just as hardware improvements
can[.]” Enfish, 822 F.3d at 1335. The court put the question as being
“whether the focus of the claims is on [a] specific asserted improvement in
computer capabilities . . . or, instead, on a process that qualifies as an
‘abstract idea’ for which computers are invoked merely as a tool.” Id. at
1335–36. In Enfish, the court found that the “plain focus of the claims”
there was on “an improvement to computer functionality itself, not on
economic or other tasks for which a computer is used in its ordinary
capacity.” Id. at 1336.
“In determining the eligibility of respondents’ claimed process for
patent protection under § 101, their claims must be considered as a whole.”
Diamond v. Diehr, 450 U.S. 175, 188 (1981). The question is whether the
claims as a whole “focus on a specific means or method that improves the
relevant technology” or are “directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery.” McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir.
2016).
In this case, the claims as a whole are focused on presenting targeted
advertisements. We are not persuaded by the Appellants’ argument that “no
abstract concept can be found recited” in claim 1. Appeal Br. 13; see also
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id. at 14–17. Independent claims 1, 19, and 28 recite the limitations of
identifying data comprising a program, accessing data comprising keywords
associated with the program, identifying data comprising a user identifier,
accessing data comprising the identified user profile, accessing a database
using the keyword data to retrieve advertisements, determining a selected
advertisement based on data criteria comprising proximity, and presenting
an electronic agent to present or offer to retrieve the selected advertisement.
Appeal Br. (Claims App. A1, A3–A5). Dependent claims 2–9, 20–24, 26,
27, 29–36, 54, and 55 recite limitations further defining the program data,
the database from which the advertisement is selected, the presentation of
the agent, the data retrieved from the database, and the step of accessing the
database; and limitations adding steps of retrieving the advertisement and
joining an online chat. The Specification provides that the invention is
directed to providing an electronic information to present information
retrieved from a database. Spec. ¶¶ 13, 39. Thus, the “character as a whole”
of the claims, considered in light of the Specification (see Enfish, 822 F.3d
at 1335), is directed to presenting advertisements via an electronic agent,3 as

3 We note that “[a]n abstract idea can generally be described at different
levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240
(Fed. Cir. 2016). The Examiner’s and Board’s “slight revision of its abstract
idea analysis does not impact the patentability analysis.” Id. at 1241. We do
not consider whether the Examiner’s Answer presented a new grounds of
rejection (see Reply Br. 3) because such a request must be made by way of
petition to the Director under 37 C.F.R. § 1.181. 37 C.F.R. § 41.40 (setting
forth the exclusive procedure for Appellants to request review of the
Examiner’s failure to designate the rejection as a new ground of rejection).
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found by the Examiner to be a “fundamental economic principle[] prevalent
in advertising and [a] marketing business practice.” Ans. 5.
The Appellants’ argument that the Examiner is required to present
“actual evidence” that presenting an electronic agent to provide information
is a fundamental economic practice (Reply Br. 3) is unpersuasive because
there is no such requirement nor, contrary to the Appellants’ suggestion (see
Appeal Br. 17), did this Board so hold, in PNC Bank v. Secure Axcess, LLC.4
Notwithstanding that the Alice Court relied, inter alia, on Emery,
Speculation on the Stock and Produce Exchanges of the United States, in
7 STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 283, 346–56 (1896), in
reaching the determination that intermediated settlement is an abstract idea,
as a general matter, what a court or a different Board panel has relied on in
determining the abstract nature of what claims are directed to, under a
different set of facts, is not dispositive of the basis on which such a
determination must be made in this case.
There is no such requirement that Examiners must provide evidentiary
support in every case before a conclusion can be made that a claim is
directed to an abstract idea. See, e.g., para. IV JULY 2015 UPDATE: SUBJECT
MATTER ELIGIBILITY to 2014 INTERIM GUIDANCE ON SUBJECT MATTER
ELIGIBILITY (2014 IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014) (“Interim
Guidance”)

4 Initially, we note that PNC Bank has not been designated as precedential,
and, thus, is not binding in the instant proceeding. See PTAB, STANDARD
OPERATING PROCEDURE 2 (REVISION 9) (available at
http://www.uspto.gov/patents-application-process/patent-trial-and-appeal-
board/resources). That being said, we have considered the opinion to the
extent it offers guidance on the issue before us in this appeal.
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The courts consider the determination of whether a claim is
eligible (which involves identifying whether an exception such
as an abstract idea is being claimed) to be a question of law.
Accordingly, courts do not rely on evidence that a claimed
concept is a judicial exception, and in most cases resolve the
ultimate legal conclusion on eligibility without making any
factual findings.
Id. (emphasis added).
Evidence may be helpful in certain situations where, for instance,
facts are in dispute. But it is not always necessary. It is not necessary in this
case.
Still, examining earlier cases can have a role, especially in deciding
whether a concept that claims are found to be directed to is an abstract idea.
See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288, 1294
(Fed. Cir. 2016) (“Instead of a definition [what an ‘abstract idea’
encompasses], then, the decisional mechanism courts now apply is to
examine earlier cases in which a similar or parallel descriptive nature can be
seen—what prior cases were about, and which way they were decided”). In
that regard, the patent claims (US 7,631,191 (“’191 patent”)) the PNC Bank
panel had before them are not comparable to the claims here at issue.
The ’191 patent claims involve authenticating a web page and were
classified in class 713 covering electrical computers and digital processing
systems subject matter. They are comparable to the claims involved in
BASCOM Global Internet Services v. AT&T Mobility LLC., 827 F.3d 1341
(Fed. Cir. 2016) (US 5,987,606, classified in class 713). In contrast, the
claims here at issue, classified in class 705, subclass 14, involve information
generation. In this manner, the claims are similar to the fundamental
economic and conventional business practices our reviewing court have
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deemed ineligible. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713
(Fed. Cir. 2014) (using advertisement as currency); Intellectual Ventures I
LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015)
(tailoring information presented to a user based on particular information);
and Affinity Labs of Texas, LLC v. Amazon.com, Inc., 838 F.3d 1266, 1271
(Fed. Cir. 2016) (customizing a user interface to have targeted advertising
based on user information). The presenting of a targeted advertisement via
an agent is similar to these abstract ideas, and, thus, we determine that the
claims are directed to an abstract idea. The claims involve nothing more
than providing specific, targeted advertising via an agent by obtaining and
analyzing information, without any particular inventive technology — an
abstract idea. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016).
We further find unpersuasive the Appellants’ argument that the claims
are not directed to an abstract idea because “there is no danger of
preemption” in that “independent claim 1 as a whole is not directed to an
abstract idea that would give rise to ‘a concern that monopolization of the
basic tools of scientific and technological work might impede innovation
more than it would promote it.’” Appeal Br 14–15; see also id. at 16–20 and
Reply Br. 4–5, 9–10. Although the Supreme Court has described “the
concern that drives this exclusionary principle[, i.e., the exclusion of abstract
ideas from patent eligible subject matter,] as one of pre-emption” (see Alice,
134 S. Ct. at 2354), characterizing pre-emption as a driving concern for
patent eligibility is not the same as characterizing pre-emption as the sole
test for patent eligibility. “The Supreme Court has made clear that the
principle of preemption is the basis for the judicial exceptions to
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patentability” and “[f]or this reason, questions on preemption are inherent in
and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice, 134 S. Ct. at 2354).
Although “preemption may signal patent ineligible subject matter, the
absence of complete preemption does not demonstrate patent eligibility.”
Id.; cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed.
Cir.), cert denied, 136 S. Ct. 701, 193 L. Ed. 2d 522 (2015) (“[T]hat the
claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract.”)
We also find unpersuasive the Appellants’ argument that the invention
is not directed to an abstract idea because it is “directed to a real world
activity inherently grounded in technology.” Reply Br. 6. In DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014),
the Federal Circuit determined that the claims addressed the problem of
retaining website visitors who, if adhering to the routine, conventional
functioning of Internet hyperlink protocol, would be transported instantly
away from a host’s website after clicking on an advertisement and activating
a hyperlink. DDR Holdings, 773 F.3d at 1257. The Federal Circuit, thus,
held that the claims were directed to statutory subject matter because they
claim a solution “necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks.”
Id. In contrast, there is no indication here that the claimed invention requires
something other than the normal, conventional computer functions of
accessing, identifying, determining, and presenting data.
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Turning to the second step of the Alice analysis, we find unpersuasive
the Appellants’ arguments that the claims recite “meaningful limitations
beyond generally linking the use of judicial exception to a particular
technological environment.” Appeal Br. 19 (quoting Interim Guidance,
79 Fed. Reg. at 74624). The Appellants argue that the claims recite
limitations of automatically accessing a first database and determining a
selected advertisement that are novel over the prior art and notes the
Examiner’s indication of allowability indicating as such. Id.
Specifically, we find unpersuasive the Appellants’ argument that the
claims are significantly more than the abstract idea because they “provide
‘meaningful limitations beyond generally linking the use of judicial
exception to a particular technological environment.’” Appeal Br. 19
(quoting Interim Guidance, 79 Fed. Reg. at 74624). The Appellants argue
that the limitations of automatically accessing a database and determining a
selected advertisement are not well-understood, routine, and conventional
activities of a general processor because the Examiner specifically indicated
that the limitations are not obvious over the prior art. Appeal Br. 19–21;
Reply Br. 7–8. As such, the Appellants argue that the claims are “directed to
a specific real world method, with real world effects not previously known
in science, economics, or industry,” and are thus
far more analogous to the claim in Diamond v. Diehr, 450 U.S.
175 (1981) (holding a computer-implemented process for curing
rubber based on calculated cure times from temperature
measurements to be patent eligible) and to the claim of PNC
Bank (directed to transforming data with an authentication key)
than to the intermediated settlement claim of Alice.
Appeal Br. 19–20.
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Claim limitations found to be novel and/or nonobvious can affect a
patent-eligibility determination. Cf. Ariosa, 788 F.3d at 1377 (“For process
claims that encompass natural phenomenon, the process steps are the
additional features that must be new and useful.”) Thus, novelty is a factor
to be considered when determining “whether the claims contain an
‘inventive concept’ to ‘transform’ the claimed abstract idea into patent-
eligible subject matter.” Ultramercial, 772 F.3d at 715. “[N]ovelty in
implementation of the idea is a factor to be considered only in the second
step of the Alice analysis.” Id.
However, an abstract idea does not transform into an inventive
concept just because the prior art does not disclose or suggest it. See Mayo,
566 U.S. at 90–91. A finding of novelty or nonobviousness does not
necessarily lead to the conclusion that subject matter is patentable eligible.
“Groundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry.” Ass’n for Molecular, 133 S. Ct. at 2117.
Indeed, “[t]he ‘novelty’ of any element or steps in a process, or
even of the process itself, is of no relevance in determining
whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.” Diamond v.
Diehr, 450 U.S. 175, 188–89 . . . (1981) (emphasis added); see
also Mayo, 132 S. Ct. at 1303–04 (rejecting “the Government’s
invitation to substitute §§ 102, 103, and 112 inquiries for the
better established inquiry under § 101”).[] Here, the jury’s
general finding that Symantec did not prove by clear and
convincing evidence that three particular prior art references do
not disclose all the limitations of or render obvious the asserted
claims does not resolve the question of whether the claims
embody an inventive concept at the second step of Mayo/Alice.
Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1315 (Fed.
Cir. 2016).
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Nor does a finding of obviousness necessarily lead to the conclusion
that subject matter is patentable ineligible. See also Rapid Litig. Mgmt. Ltd.
v. CellzDirect, Inc., 827 F.3d 1042, 1050 (Fed. Cir. 2016) (“That each of the
claims’ individual steps (freezing, thawing, and separating) were known
independently in the art does not make the claim unpatentable.”) “[P]atent-
eligibility does not turn on ease of execution or obviousness of application.
Those are questions that are examined under separate provisions of the
Patent Act.” Id. at 1052 (citing Mayo, 566 U.S. at 90).
Notwithstanding that “‘the § 101 patent-eligibility inquiry and, say,
the § 102 novelty inquiry might sometimes overlap,’ . . . a claim for a new
abstract idea is still an abstract idea.” Synopsys, Inc. v. Mentor Graphics
Corp., 839 F.3d 1138, 1151 (quoting Mayo, 566 U.S. at 90). The question in
step two of the Alice framework is not whether an additional feature is novel
but whether the implementation of the abstract idea involves “more than the
performance of ‘well-understood, routine, [and] conventional activities
previously known to the industry.’” Content Extraction and Transmission
LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1347–48 (quoting
Alice, 134 S.Ct. at 2359).
In that regard, the Appellants have not shown that the novel features
transform the abstract idea into patent-eligible subject matter. The
Appellants do not provide adequate evidence or technical reasoning that the
claims improve some existing technological process or solves some
technological problem in conventional industry practice, such as in Diehr.
See Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir.
2015), cert. denied, 136 S. Ct. 2510, 195 L. Ed. 2d 841 (2016) (finding that
the “claims recit[ed] a commonplace business method aimed at processing
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business information despite being applied on a general purpose computer”);
see also Alice, 134 S. Ct. at 2359. The steps/functions of identifying data,
accessing data, determining data, and presenting data are well-understood,
routine, and conventional functions of a generic computer. See FairWarning
IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016). The
Specification supports this view. See Spec. ¶ 60 (“The system 900 of the
instant example includes a processor 912 such as a general purpose
programmable processor”); ¶ 62 (“The computer 900 also includes a
conventional interface circuit 924”). There is no further specification of
particular technology for performing the steps. See Versata, 793 F.3d
at 1334; Affinity Labs, 838 F.3d at 1263; see also Enfish, 822 F.3d. at 1336
(focusing on whether the claim is “an improvement to [the] computer
functionality itself, not on economic or other tasks for which a computer is
used in its ordinary capacity”); DDR Holdings, 773 F.3d at 1256 (“[A]fter
Alice, there can remain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible. . . . The bare
fact that a computer exists in the physical rather than purely conceptual
realm ‘is beside the point’” (internal citation omitted) (quoting Alice, 134 S.
Ct. at 2358)). The Appellants do not adequately show how the claimed steps
are technically done such that they are not routine, conventional functions of
a generic computer, nor do the Appellants provide evidence why the steps
are not routine and conventional functions of a generic computer. See
Intellectual Ventures, 792 F.3d at 1370 (“Rather, the ‘interactive interface’
simply describes a generic web server with attendant software, tasked with
providing web pages to and communicating with the user’s computer.”)
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Based on the foregoing, we are not persuaded that the Examiner erred
in the rejection of claims 1–9, 19–24, 26–36, 54, and 55 under 35 U.S.C.
§ 101.

DECISION
The Examiner’s decision to reject claims 1–9, 19–24, 26–36, 54, and
55 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)(1)(iv).

AFFIRMED