Ex Parte Dvorak et al

Patent Trial and Appeal Board

Jan 25, 2018

13452598 (P.T.A.B. Jan. 25, 2018)

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.
13/452,598 04/20/2012 Martin Dvorak 82963636 9556
56436 7590 01/29/2018
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
LOFTIS, JOHNNA RONEE
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN DVORAK, JURAJ KOJDJAK,
JAKUB TRAVNIK, and NOAM FRAENKE
Appeal 2016-001154
Application 13/452,5981
Technology Center 3600
Before JOSEPH A. FISCHETTI, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’
final rejection of claims 1—3 and 5—21. We have jurisdiction under
35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 Appellants identify Hewlett-Packard Development Company, LP, as the
real party in interest (Appeal Br. 2).
Appeal 2016-001154
Application 13/452,598
THE INVENTION
Appellants claim a “system and method for reputation-based service
valuation” (Abstract).
Claim 1, reproduced below with emphasis added to disputed
limitation, is representative of the subject matter on appeal.
1. A method for reputation-based service valuation,
comprising:
receiving, at a computing system, subjective evaluation
criteria and objective evaluation criteria relating to a service
from a database, wherein the subject evaluation criteria
comprise social data collected from a plurality of users of the
service, the plurality of users performing service evaluation
actions;
scaling, via a processor of the computing system, the
subjective evaluation criteria based on a reputation of each of
the plurality of users to produce reputation-based subjective
evaluation criteria, wherein the reputation of each user is
determined via the processor based on a productivity of the user
and a credibility of the user with respect to the service
evaluation actions of the user, wherein the productivity of the
user is based on multiple types of actions of the user, and
wherein the credibility of the user is based on other users’
ratings of the service evaluation actions of the user;
generating, via the computing system, a service valuation
for the service based on the reputation-based subjective
evaluation criteria and the objective evaluation criteria;
generating, via the computing system, a report relating to
the service based on the service valuation; and
displaying the report via a display device of the
computing system.
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Appeal 2016-001154
Application 13/452,598
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Zacharia
Chang
Vander Mey
US 6,892,179 B1 May 10, 2005
US 2008/0244527 A1 Oct. 2, 2008
US 7,519,562 B1 Apr. 14, 2009
The following rejections are before us for review.
Claims 1—3 and 5—21 are rejected under 35U.S.C. § 101.
Claims 1—3 and 5—21 are rejected under 35 U.S.C. § 103(a) over
Chang, Vander Mey, and Zacharia.
ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 1—3 and 5—21 under 35 U.S.C.
§101.
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, “[wjhat
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
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Application 13/452,598
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp., Pty. Ltd. v CLSBankInt’l, 134 S. Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72—73,
78-79 (2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept.
Although the Court in Alice made a direct finding 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 steps in representative claim 1 result in generating, “a service
valuation for the service based on the reputation-based subjective evaluation
criteria and the objective evaluation criteria.”
The Specification further states,
Evaluation criteria that may be used by service portfolio
strategists include objective evaluation criteria and subjective
evaluation criteria. According to current techniques, objective
evaluation criteria form the essential input for the evaluation of
service portfolios. However, objective evaluation criteria
describe only the quality, health, and technical performance of a
service. Thus, if a service is to be used by people, subjective
evaluation criteria can be used to determine a level of service
satisfaction relating to the service.
Specification 12.
Thus, all this evidence shows that claim 1 is directed to determining a
level of service satisfaction relating to a service based on a reputation of
each of the plurality of users to produce reputation-based subjective
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evaluation criteria and objective criteria. It follows from prior Supreme
Court cases, and Gottschalk v. Benson, 409 U.S. 63 (1972), in particular, that
the claims at issue here are directed to an abstract idea. Determining an
accurate level of service satisfaction relating to a service offered to a
consumer is a fundamental economic practice because insuring returning
customers and a strong reputation is the hallmark of goodwill. The patent-
ineligible end of the 35 U.S. C. § 101 spectrum includes fundamental
economic practices. See Alice, 134 S. Ct. at 2355—1257. Also, we find the
steps of,
• receiving subjective evaluation criteria and objective evaluation
criteria relating to a service,
• scaling the subjective evaluation criteria based on a reputation
of each of the plurality of users to produce reputation-based
subjective evaluation criteria,
• the reputation of each user being determined based on a
productivity of the user and a credibility of the user with respect
to the service evaluation actions of the user, and
• the productivity of the user being based on multiple types of
actions of the user, and the credibility of the user being based
on other users’ ratings of the service evaluation actions of the
user,
constitute “analyzing information by steps people go through in their minds,
or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category.” Electric Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016). Thus, determining a
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level of service satisfaction relating to a service using service valuation for
the service based on reputation-based subjective evaluation criteria and
objective evaluation criteria is an “abstract idea” beyond the scope of § 101.
As in Alice, 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
an intermediated settlement in Alice and the concept of determining a level
of service satisfaction relating to a service using service valuation for the
service based on reputation-based subjective evaluation criteria and
objective evaluation criteria, at issue here. Both are squarely within the
realm of “abstract ideas” as the Court has used that term. That the claims do
not preempt all forms of the abstraction or may be limited to service
evaluations, does not make them any less abstract. See OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362—63 (Fed. Cir. 2015).
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on ... a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the pre-emption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
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implementation is not generally the sort of “additional
featur[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice, 134 S. Ct. at 2358 (alterations in original) (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, 134 S. Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to take in data, compute a result, and return the result to a user
amounts to electronic data query and retrieval—some of the most basic
functions of a computer. All of these computer functions are well-
understood, routine, conventional activities previously known to the
industry. In short, each step does no more than require a generic computer
to perform generic computer functions.
Considered as an ordered combination, the computer components of
Appellants’ method add nothing that is not already present when the steps
are considered separately. Viewed as a whole, Appellants’ claims simply
recite the concept of determining a level of service satisfaction relating to a
service using service valuation for the service based on reputation-based
subjective evaluation criteria and objective evaluation criteria. The 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. Instead, the claims at issue amount to nothing significantly
more than instructions to determine a level of service satisfaction relating to
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a service using service valuation for the service based on reputation-based
subjective evaluation criteria and objective evaluation criteria. Under our
precedents, that is not enough to transform an abstract idea into a patent-
eligible invention. See Alice, 134 S. Ct. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “wam[ed] . . . against” interpreting § 101
“in ways that make patent eligibility ‘depend simply on the
draftsman’s art.’”
Alice, 134 S. Ct. at 2360 (alterations in original) (citation omitted).
We have reviewed all the arguments (Appeal Br. 6—12) Appellants
have submitted concerning the patent eligibility of the claims before us
which stand rejected under 35U.S.C. §101. We find that our analysis
above substantially covers the substance of all the arguments which have
been made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
Appellants, citing to DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245 (Fed. Cir. 2014), argue that, “[t]he claims are directed to a
computer system (and method of a computer system) to utilize hundreds,
thousands, or even millions of user assessments of other user evaluations of
Internet services (Appeal Br. 8, Reply Br. 4),” and that “the claimed solution
is necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer systems and associated
services.” (Appeal Br. 11).
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We disagree with Appellants. In light of the breadth of the claim, the
Appellants’ argument is not persuasive as to error in the rejection because
none of the claims on appeal even require an Internet connection. That is, in
DDR, the claims at issue involved, inter alia, “web pages displays [with] at
least one active link associated with a commerce object associated with a
buying opportunity of a selected one of a plurality of merchants” (claim 1 of
US 7,818,399). There is no such claim element with this degree of detail
here before us here. All that is required by the claims are generically recited
“database”, “storage device”, “processor”, and “computing system.” In fact,
the Specification supports the view that these item are conventional. See,
e.g., Specification || 17—24.
35 U.S.C. § 103(a) REJECTION
Each of independent claims 1, 9, and 15 recites in one form or
another,
scaling, ... the subjective evaluation criteria based on a
reputation of each of the plurality of users to produce
reputation-based subjective evaluation criteria, wherein the
reputation of each user is based on a productivity and a
credibility of the user, wherein the credibility of the user is
based on other users’ ratings of the service evaluation actions of
the user, and wherein the productivity of the user is based on
actions of the user, the actions comprising multiple types of
actions.
Claim 1, Appeal Br. 18.
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Application 13/452,598
To meet the limitation, “wherein the productivity of the user is based
on actions of the user, the actions comprising multiple types of actions,” the
Examiner relies on Zacharia to disclose,
reputation of each user is based on the user’s productivity and
the credibility of the user ... (at least columns 7 and 8 — a
rater’s reputation is determined based on other rater’s ratings of
the first rater; column 14, lines 40+ — rater reputations are
scaled (by weighting) based on the most recent M ratings (i.e.,
the productivity or number of ratings provided).
Answer 4, Final Act. 5.
Appellants argue,
Zacharia addresses reputation without reference to productivity
of the entity. See Zacharia, Abstract; col. 5, 1.31— col. 6,
1. 25; col. 7, 1. 26 — col. 8, 1. 19. In the base rejection, the
Examiner cited Zacharia to address credibility (not
productivity). See Final Office Action, pp. 5-6. To be sure,
Zacharia does not consider productivity, much less disclose
“the productivity of the user is based on multiple types of
actions of the user,” as recited.
Appeal Br. 16.
We agree with Appellants. Our review of Zacharia reveals that
Zacharia discloses, “determining a rater reputation” (Col. 7,11. 25—26). In
Zacharia, the rater reputation is determined by calculating a ratee reputation
deviation which “represents a deviation of ratings of the rated entity from an
expected value of the rating of the rated entity” (Col. 8.11. 10-13). More
specifically, Zacharia discloses:
In an aspect of determining a rater reputation of an entity,
the result of the comparison of (a) the rating provided by the
first rater of a rated entity and (b) other ratings of the rated
entity provided by other raters may be weighted over a ratee
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reputation deviation of the rated entity, as will be described in
more detail below in relation to FIG. 5. This ratee reputation
deviation represents a deviation of ratings of the rated entity
from an expected value of the rating of the rated entity. Entities
whose ratee reputations fluctuate over a wide range of values,
such as new entities and entities that receive a wide range of
ratings (i.e., unstable entities), typically have high ratee
reputation deviations.
Col. 8,11. 5—16. Thus, according to Zacharia, the reputation of the user/rater
uses a statistical deviation calculation based on “(a) the rating provided by
the first rater of a rated entity and (b) other ratings of the rated entity
provided by other raters.” Id. at 6—8. These ratings are based on other
users’ inputs and are not based on multiple types of actions of the user.
Accordingly, we will not sustain the rejection of independent claims
1, 9, and 15 under 35 U.S.C. § 103(a). Since claims 2, 3, 5—8, 10-14, and
16—21 depend from claim 1, 9, and 15, and since we cannot sustain the
rejection of claims 1, 9, and 15, the rejection of the dependent claims
likewise cannot be sustained.
CONCLUSIONS OF LAW
We conclude the Examiner did err in rejecting claims 1—3 and 5—21
under 35 U.S.C. § 103(a).
We conclude the Examiner did not err in rejecting claims 1—3 and 5—
21 under 35 U.S.C. § 101.
DECISION
The decision of the Examiner to reject claims 1—3 and 5—21 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.
§ 1.136(a)(l)(iv).
AFFIRMED.
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