Ex Parte Fawaz

Patent Trial and Appeal Board

Sep 17, 2018

14703230 (P.T.A.B. Sep. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/703,230 05/04/2015
24256 7590 09/17/2018
DINSMORE & SHOHL LLP
255 East Fifth Street, Suite 1900
CINCINNATI, OH 45202
FIRST NAMED INVENTOR
Mazen N. Fawaz
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.
MAZEN-004 1020
EXAMINER
BORISSOV, IGOR N
ART UNIT PAPER NUMBER
3649
MAIL DATE DELIVERY MODE
09/17/2018 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
ExparteMAZENN. FAWAZ 1
Appeal2017-008901
Application 14/703,230
Technology Center 3600
Before STEFAN STAICOVICI, RICHARD H. MARSCHALL, and
ANTHONY KNIGHT, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE-
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision in the Final Office Action ( dated April 20, 2016, hereinafter "Final
Act.") rejecting claims 1-20. We have jurisdiction over this appeal under 35
U.S.C. § 6(b ).
SUMMARY OF DECISION
We AFFIRM.
1 Appellant (Open House Realty, Inc.) is the applicant as provided in 37
C.F.R. § 1.46.
Appeal2017-008901
Application 14/703,230
INVENTION
Appellant's invention relates to "methods for ranking real estate
agents." Spec. 1, 11. 10-11.
Claim 1, 17, and 18 are independent. Claims 1 is illustrative of the
claimed invention and reads as follows:
1. A method for providing a referral of a ranked real estate
agent through a real estate agent referral system comprising the
steps of:
receiving search criteria with respect to the purchase or
sale of a real estate property;
receiving performance data for two or more real estate
agents;
calculating, by one or more computers, a performance
matching value for each of the two or more real estate agents
indicative of how well the performance data of each of the two
or more real estate agents match the search criteria;
refining, by the one or more computers, the performance
data of the two or more real estate agents with the performance
matching value to obtain a ranking of the two or more real
estate agents for the real estate property; and
generating a web based user portal displayed on a
personal computer or a mobile device, the web based user
portal allowing the user to view the agent search results, select a
real estate agent from the agent search results, and transact
business with the selected agent.
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REJECTIONS 2
I. The Examiner rejects claims 1-20 under 35 U.S.C. § 101 as being as
directed to ineligible subject matter.
II. The Examiner rejects claims 1-20 under 35 U.S.C. § I03(a) as being
unpatentable over Sennott et al. (US 2008/0015879 Al, published Jan.
1 7, 2008, hereinafter "Sennott") and Foley et al. (US 2007/0116240
Al, published May 24, 2007). 3
ANALYSIS
Rejection I
Appellant has not presented arguments for the patentability of claims
1, 3, 4, 6-16, 19, and 20 apart from claim 1. See Br. 18-29. Therefore, in
accordance with 37 C.F.R. § 4I.37(c)(l)(iv), we select claim 1 as the
representative claim to decide the appeal, with claims 3, 4, 6-16, 19, and 20
standing or falling with claim 1. In view of Appellant's arguments, we will
address the rejection of claims 2, 5, 17, and 18 separately.
Section 101 of the Patent Act defines patent-eligible subject matter:
"Whoever invents or discovers any new and useful process, machine,
2 The Examiner's rejections of claims 1-20 under the ground of non-
statutory, obviousness-type double patenting over claims 1-26 of Fawaz
'330 (US 8,332,330 B2, issued Dec. 11, 2012) and over claims 1-15 of
Fawaz '443 (US 8,140,443 B2, issued Mar. 20, 2012) are moot in light of
the Terminal Disclaimers filed by Appellant on Dec. 27, 2016. See Final
Act. 3--4; Appeal Brief 11 (filed Nov. 21, 2016, hereinafter "Br.").
3 Although Foley is not mentioned in the heading of the rejection, it is part
of the body of the rejection. We consider this omission a mere
typographical error.
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Application 14/703,230
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title." 35 U.S.C. § 101. In interpreting this statutory
provision, the Supreme Court has held that its broad language is subject to
an implicit exception for "laws of nature, natural phenomena, and abstract
ideas," which are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank Int 'l,
134 S. Ct. 2347, 2355 (2014).
The Supreme Court has 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." Alice,
134 S. Ct. at 2355 (citing Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66 (2012)). According to the Supreme Court's framework,
we must first determine whether the claims at issue are directed to one of
those concepts (i.e., laws of nature, natural phenomena, and abstract ideas).
Id. If so, we must secondly "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." Id. (quoting Mayo, 566 U.S. at 79, 78). The Supreme Court
characterizes the second step of the 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."' Id. (alteration in original) (quoting
Mayo, 566 U.S. at 72-73).
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Step One
The Examiner determines that the claimed method describes "the
concept of ranking real estate agents based on performance data," which is
"similar to the concepts involving human activity relating to commercial
practices (e.g., hedging in Bilski) that have been found by the courts to be
abstract ideas." Final Act. 4 (citing Bilski v. Kappas, 561 U.S. 593 (2010)).
According to the Examiner, "[t]he recited method involves receiving first
data, receiving second data, calculating third data reflecting matching the
first and second data, modifying ( ranking) the second data based on the third
data, and outputting said data." Id. at 4--5. Thus, the Examiner determines
that the claimed method "is similar to the basic concept of manipulating
information using mathematical relationships (e.g., converting numerical
representation in Benson), which has been found by the courts to be an
abstract idea." Id. at 5 (citing Gottschalkv. Benson, 409 U.S. 63 (1972)).
The first prong of the test requires us to determine whether the
challenged claims are directed to an abstract idea. To that end, Appellant
argues that claim 1 passes step 1 of Alice because it is "directed to a
computer implemented [ method]," and because "computer-implemented
methods are directed to electronic search, such computer-implemented
methods are inextricably tied to computer technology and distinct from the
types of concepts typically found as abstract." Br. 12, 18. Thus, according
to Appellant, the Examiner "fails to analyze claim 1 as a whole and as an
ordered combination of elements," and, furthermore, "utilizes an
impermissibly high level of abstraction that is untethered from the actual
claim language." Id. at 19 (citing Enfzsh, LLC v. Microsoft Corp., 822 F.3d
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1327, 1337 (Fed. Cir. 2016), andMcRO, Inc. v. Bandai Namco Games Am.
Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016)). Moreover, Appellant contends:
No consideration was given to the inventive steps of calculating
a performance matching value of two or more real estate agents
indicative of how well their performance data match search
criteria of a web based user portal. No consideration was given
to the inventive steps of then refining the performance data of
the two or more real estate agents with the performance
matching value to obtain a ranking of the two or more real
estate agents for the real estate property. The ordered
combination of features recited by claim 1 not only enables a
user to perform an electronic search for a real estate property,
but also visualize on a display the very best real estate agents
for the particular property.
Id. at 20.
We do not find Appellant's arguments persuasive. The Examiner is
correct in that claim 1 recites the abstract idea of ranking real estate agents
based upon matching clients' search criteria with agents' performance
(experience). Examiner's Answer 4 (dated Feb. 8, 2017, hereinafter
"Ans."). We agree with the Examiner that the claimed method includes,
inter alia, the steps of "receiving first data, receiving second data,
calculating third data reflecting matching the first and second data,
modifying (ranking) the second data based on the third data, and outputting
said data." Id. At best, claim 1 provides a practical application for ranking
real estate agents based on manipulating information (data) according to
mathematical relationships (i.e., calculating "a performance matching
value"). But a recitation of a practical application for an abstract idea is
insufficient to transform an abstract idea into an inventive concept. Cf
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir.
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2011) ("The Court [Parker v. Flook, 437 U.S. 584 (1978)] rejected the
notion that the recitation of a practical application for the calculation could
alone make the invention patentable .... "). Moreover, we agree with the
Examiner that ranking real estate agents based upon matching clients' search
criteria with agents' performance (experience) by calculating a matching
value "could be performed via pen and paper or in a person's mind." Ans. 6.
We further agree with the Examiner that although the steps of
"calculating," "refining," and "generating" narrow the abstract idea of claim
1, this does not mean that claim 1 is not an abstract idea because a specific
abstract idea is still an abstract idea. See Ans. 5. Other cases have denied
patentability of claims as being directed towards ineligible subject matter
even though they described specific methods, such as, an I I -step method in
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014), that
described "using advertising as an exchange or currency." See Ans. 5.
"[C]ases have not distinguished among different laws of nature according to
whether or not the principles they embody are sufficiently narrow." Mayo,
566 U.S. at 88-89 ( citing Parker v. Flook, 437 U.S. 584 (holding narrow
mathematical formula unpatentable)). Here, we agree with the Examiner
that the recited "calculating" and "refining" steps are "nothing more than
mere manipulation or reorganization of data" and the "generating" step, in
light of Appellant's Specification, "is nothing more than displaying or
outputting information such as contact information of the selected agents,
storing agent search results, and allowing communication with the agents."
Ans. 5. Moreover, we agree with the Examiner that the claimed method
"could be performed via pen and paper or in a person's mind." Id. at 6.
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As to Appellant's pre-emption argument (see Br. 21-22 ), the Supreme
Court has stated that "patents that ... integrate the building blocks [ of
human ingenuity] into something more, thereby transform[ing] them into a
patent-eligible invention ... pose no comparable risk of pre-emption, and
therefore remain eligible for the monopoly granted under our patent laws."
Alice, 134 S. Ct. at 2354--55 (second alteration in original) (citations and
quotations omitted). Although a concern regarding preemption is one that
"undergirds [the Supreme Court's] § 101 jurisprudence" overall (id. at
2358), it is not an issue addressed in the first step of the analysis. See, e.g.,
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1259 (Fed. Cir.
2014) ( discussing preemption in the context of the second step of the
analysis). In other words, in the first step of the analysis, the issue is not
whether the claims preempt all possible implementations of the identified
abstract idea; rather, the issue is "the 'focus' of the claims, their 'character as
a whole."' Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed.
Cir. 2016) (quoting Eefzsh, 822 F.3d at 1335-36, and Internet Patents Corp.
v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)).
In contrast, the second step, when reached, looks "more precisely at
what the claim elements add." Id. Moreover, characterizing preemption as a
driving concern for patent eligibility is not the same as characterizing
preemption as the dispositive test for patent eligibility. Instead, "[t]he
Supreme Court has made clear that the principle of preemption is the basis
for the judicial exceptions to 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)
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(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. Thus, that claim 1 "require[s] ranking
and displaying real estate agents in a specific way" (Br. 21 ), does not
demonstrate error in the determination that claim 1 is directed to patent-
ineligible subject matter.
In conclusion, when read as a whole, independent claim 1 is directed
to ranking real estate agents based on matching clients' search criteria with
agents' performance (experience) (i.e., manipulating information using
mathematical relationships), and, for the reasons discussed above,
constitutes an abstract idea. The question to be settled next is whether claim
1 recites an element, or combination of elements, that is enough to ensure
that the claim is directed to significantly more than an abstract idea.
Step Two
With respect to the second step of the Alice framework, the Examiner
determines that the use of a computer "for conducting calculation and
communicating or presenting data" is "known and conventional" because
"[ t ]he ability to receive, compute, and send data is something that every off
the shelf computer is configured to do." Final Act. 6-7. According to the
Examiner,
[T]he recited steps do not improve the functioning computers
itself; there are no physical improvements in the claim, like a
faster processor or more efficient memory, and there is no
operational improvement, like mathematical computation that
improve the functioning of the computer. [Appellant] did not
invent a new type of computer.
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Id. at 7. Furthermore, the Examiner determines that the limitation of a "web
based user portal," as called for by claim 1, "do[es] not add significantly
more because [ it is] simply an attempt to limit the abstract idea to a
particular technological environment, that is, implementation via
computers." Id. at 8 (citing Bilski, 561 U.S. at 611).
Citing to DDR Holdings, 773 F.3d at 1257, Appellant argues that "the
features of claim 1 ... are 'necessarily rooted in computer technology' and,
as a whole, represent significantly more than the identified abstract idea of
ranking real estate agents." Br. 23. According to Appellant, the limitation
of a "web based user portal," as called for by claim 1, "is necessarily rooted
in computer technology at least because a computer and a connection to the
Internet are required, and the claim is directed to the technical problem of
electronic search and retrieval." Id. at 23-24 (emphasis omitted). Appellant
explains that because "the ranking of real estate agents based on search
criteria and performance data of real estate agents was not a previous
business practice utilized by the real estate industry," "the arrangement of
features recited by claim 1 add significantly more than the identified abstract
idea of ranking real estate agents." Id. at 25 (citing Bascom Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016)).
Furthermore, Appellant notes that "the mere fact that the claim[] do[ es] not
improve the functioning of a computer or invent 'a new type of computer'
does not mean that the claims are not patent-eligible under 35 U.S.C. § 101.
Id. at 26 (citing DDR Holdings, McRO).
We do not find Appellant's arguments persuasive. Claim 1 does not
recite a computer, network (Internet), or display component that would make
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the function performed by these elements unconventional to remove the
claim from the realm of an abstract idea. 4 The test is not whether the
claimed computer, network, or display component can perform a "new"
function, i.e., ranking real estate agents. It is whether the function allows the
claimed computer, network, or display component to function better. Here,
like in Alice, the generic claimed computer performs the task of ranking real
estate agents more efficiently than a human; however, that does not make the
invention patent-eligible. Likewise, the claimed "web based user portal"
uses a network to connect to the Internet, i.e., web, and displays the ranked
real estate agents. The Examiner is correct in that because the claimed "web
based user portal" is "the only website where the user logs in to submit
his/her search criteria and receive[] a list of recommended agents" and "no
'additional' or 'new' portal [is] generated at the end of the [claimed]
method," the "web based user portal" constitutes conventional network and
display components. Ans. 5.
In other words, the computer, network (Internet), or display
components function in a conventional manner to input data ("receiving"
steps), to execute operations ("calculating" and "refining" steps), and to
display data ("generating" step). See Alice, 134 S. Ct. at 2359--60 (holding
patent-ineligible claims that "amount to 'nothing significantly more' than an
instruction to apply the abstract idea ... using some unspecified, generic
computer" and in which "each step does no more than require a generic
4 Although we appreciate that claim 1 does not explicitly recite a "network,"
nonetheless, because it recites a "web based user portal" claim 1 includes a
network for connecting the claimed computer to the Internet, i.e., the "web."
See Br. 51 (Claims App.) (emphasis added).
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computer to perform generic computer functions" (internal quotation marks,
citation omitted)). The fact that these generic computer functions are
applied to the particular environment of a computer-aided real estate agent
ranking process is not sufficient to circumvent the prohibition against
patenting an abstract idea. See Bilski, 561 U.S. at 610-11.
Contrary to Appellant's arguments, claim 1 is not analogous to the
claims recited in DDR Holdings, Enfzsh, McRO, and Bascom. See Br. 16-
19, 23-26. Unlike the situation in DDR Holdings, in which the problem of
retaining website visitors was a challenge particular to the Internet (DDR
Holdings, 773 F.3d at 1257), the problem of ranking real estate agents by
matching real estate agents with clients' search criteria and agents'
performance (experience) is not a challenge particular to a computer
environment. See Ans. 12-13. Rather, "claim 1 uses a conventional,
general purpose computer to perform generic computer functions, i.e.,
receiving and storing data, accessing memory, processing to transform some
data, and outputting data." Id. at 13. Hence, claim 1 at most applies generic
computer technology to the process of ranking real estate agents.
In contrast with the claims in Enfzsh, which were directed to an
improved computer database technique (see Enfzsh, 822 F.3d at 1338-1339),
the focus of claim 1 "is not on such an improvement in computers as tools,
but on certain independently abstract ideas that use computers as tools."
Elec. Power, 830 F.3d at 1354; see also Ans. 7. Appellant's claim 1 does
not affect an improvement to computer functionality itself, but instead,
focuses on the process (i.e., ranking real estate agents by matching clients'
search criteria with agents' performance (experience)) that qualifies as an
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abstract idea, for which computer technology is invoked merely as a tool.
As the Federal Circuit has made clear "the basic character of a process claim
drawn to an abstract idea is not changed by claiming only its performance by
computers, or by claiming the process embodied in program instructions on
a computer readable medium." CyberSource, 654 F.3d at 1375 (citing In re
Abele, 684 F.2d 902 (CCPA 1982)).
Nor does claim 1 recite a specific technological improvement, such as
the improvement over existing manual 3-D animation techniques recited by
the claims in McRO or the filtering arrangement in Bascom. See McRO, 837
F.3d at 1313-16; Bascom, 827 F.3d at 1349; see also Ans. 15-16. Indeed,
Appellant has not presented any persuasive evidence that the recited
computer and display components provide a technological improvement
over an existing computer and display component. Thus, we agree with the
Examiner that the claimed "computing elements are recited at a high level of
generality and perform the basic functions of a computer, such as
performing a mathematical operation and receiving and outputting data, that
would be needed to apply the abstract idea via [a] computer." Ans. 16.
For the above reasons, the recited elements, considered individually
and as an ordered combination, do not constitute an "inventive concept" that
transforms independent claim 1 into patent-eligible subject matter. See
Alice, 134 S. Ct. at 2355. Accordingly, we do not sustain the rejection of
claim 1 under 35 U.S.C. § 101 as directed to patent-ineligible subject matter.
Claims 3, 4, 6-16, 19, and 20 fall with claim 1.
With respect to claims 2, 5, 1 7, and 18, Appellant argues that "the
Final Office Action fails to analyze each ... claim[] ... as a whole under
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35 U.S.C. § 101." Br. 26. According to Appellant, each claim "provide[s]
significantly more than the identified abstract idea of ranking real estate
agents." Id. at 26-29.
We are not persuaded by Appellant's arguments because statements
that merely point out what a claim recites will not be considered an
argument for separate patentability of the claim. See Br. 26-29 (reciting
limitations of claims 2, 5, 17, and 18). The Examiner is correct in that
claims 2, 5, 17, and 18 "merely add further details of the abstract steps
recited in claim 1 without including an improvement to another technology
or technical field, an improvement to the functioning of the computer itself,
or meaningful limitations beyond generally linking the use of an abstract
idea to a particular technological environment." Ans. 17. In other words,
claims 2, 5, 17, and 18 further describe the claimed method of ranking real
estate agents of claim 1, that is, further describe the abstract idea. "[C]ases
have not distinguished among different laws of nature according to whether
or not the principles they embody are sufficiently narrow." Mayo, 566 U.S.
at 88-89 ( citing Parker v. Flook, 437 U.S. 584 (holding narrow
mathematical formula unpatentable)). A specific abstract idea is still an
abstract idea.
Accordingly, for the foregoing reasons, we likewise sustain the
rejection of claims 2, 5, 17, and 18 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
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Rejection II
Each of independent claims 1, 17, and 18 requires, inter alia,
"calculating, by the one or more computers, a performance matching value."
Br. 51, 55, and 56 (Claims App.).
The Examiner finds that Sennott discloses the above noted limitation
because
Sennott teaches matching home buyers or sellers with
appropriate real estate agents based on the needs of the home
buyer or seller and the qualifications of the real estate agent,
thereby suggesting utilizing a certain threshold or value (the
performance matching value) for assessing "appropriateness" of
a particular real estate agents for a particular buyer or seller, for
the benefit of finding a most suitable agent for each customer[.]
Final Act. 9--10 (citing Sennott, paras. 9, 12).
In response, Appellant argues that "Sennott is completely silent
[about] a performance matching value calculated from performance data
with respect to search criteria." Br. 32 (emphasis added).
We agree with Appellant that neither paragraph 9 nor 12 of Sennott
discloses "calculating a performance matching value using one or more
computers." Id. at 33. Appellant is correct in that "paragraph [0009] merely
states that the HomeGift technology 'enables matching participants and
supporters of participating NPOs with appropriate real estate agents,' and
paragraph [0012] merely states that HomeGift matches real estate agents
with home buyers or sellers." Id.
Rather, in contrast to the claimed invention, Sennott discloses a
manual process for selecting a real estate agent where an administrator
conducts an interview with a participant to receive the characteristics or
preferences that the participant is looking for in a real estate agent and then
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references various databases to find a suitable agent. Sennott, para. 83. As
such, although we appreciate the Examiner's position that "a certain
threshold or value ... [may be suggested by Sennott] for assessing
'appropriateness' of a particular real estate agent[] for a particular
[participant]," nonetheless, this does not mean that Sennott necessarily
discloses "calculating" such a value. For example, Sennott's matching of
participants and real estates could be based on a real estate agent satisfying a
pre-set number of the participant's requirements. Accordingly, we agree
with Appellant that Sennott' s "manual process of proposing a real estate
agent" does not disclose "calculating, by one or more computers, a
performance matching value," as called for by each of independent claims 1,
17, and 18. Br. 34 (emphasis added).
The Examiner's use of the Foley disclosure does not remedy the
deficiency of Sennott discussed supra. See Final Act. 11-12. Accordingly,
the Examiner's legal conclusion of obviousness is not supported by
sufficient factual evidence, and thus, cannot stand. See In re Warner, 379
F.2d 1011, 1017 (CCPA 1967) ("The legal conclusion of obviousness must
be supported by facts. Where the legal conclusion is not supported by facts
it cannot stand." (footnote omitted)).
In conclusion, for the foregoing reasons, we do not sustain the
rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over
Sennott and Foley.
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SUMMARY
The Examiner's decision to reject claims 1-20 under 35 U.S.C. § 101
as being as directed to ineligible subject matter is affirmed.
The Examiner's decision to reject claims 1-20 under 35 U.S.C.
§ 103(a) as unpatentable over Sennott and Foley is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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