Ex Parte FoxDownload PDFPatent Trial and Appeal BoardAug 8, 201811139875 (P.T.A.B. Aug. 8, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 11/139,875 05/27/2005 Billy Shane Fox 86548 7590 08/10/2018 Garlick & Markison (IH) 106 E. 6th Street, Suite 900 Austin, TX 78701 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. l 78-LAN-05-2005 3782 EXAMINER REFAI, RAMSEY ART UNIT PAPER NUMBER 3627 NOTIFICATION DATE DELIVERY MODE 08/10/2018 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): MMurdock@TEXASPATENTS.COM bpierotti@texaspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BILLY SHANE FOX Appeal2017-002710 Application 11/139,875 Technology Center 3600 Before MURRIEL E. CRAWFORD, MEREDITH C. PETRA VICK, and AMEE A. SHAH, Administrative Patent Judges. CRAWFORD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner's final decision rejecting claims 34--37. We have jurisdiction over the appeal under 35 U.S.C. § 6(b ). We affirm. BACKGROUND Appellant's invention is directed to an integrated inventory management system. Spec. 1. Appeal2017-002710 Application 11/139,875 Claim 34 is illustrative: 34. A method of multi-member station inventory management for an enterprise that includes a plurality of member stations communicatively coupled via a data network, wherein each of the plurality of member stations is a media property having a name and associated market area or geographic region in which the media property delivers media programming to consumers, and has associated advertising inventory for sale, the method being implemented by a computer including a processor and a memory, the computer configured to maintain a multi- member station inventory management system usable by the plurality of member stations through remote access via the data network, the method comprising: receiving available inventory for the associated advertising inventory for sale from the each of the plurality of the member stations to effect consistent revenue management of the available inventory across the plurality of the member stations; mirroring the available inventory in a master database for the each of the plurality of the member stations; calculating, under control of a yield management system, advertising inventory pricing information relating to the associated advertising inventory across the plurality of member stations in accordance with a demand curve based pricing logic to effect a consolidation; transmitting the advertising inventory pricing information to a price forecasting system included in the inventory management system, wherein the advertising inventory pricing information includes prices to be quoted to a customer; receiving initial advertising order information, including a firm order, from the customer; 2 Appeal2017-002710 Application 11/139,875 entering the initial advertising order information into both a traffic billing system and a yield management system; first recalculating, based on the initial advertising order information, by yield management program logic of the yield management system the advertising inventory pricing information in accordance with the demand curve based pricing logic and price changes due to a reduction in the available inventory across the plurality of member stations for remaining availabilities to produce first recalculated advertising inventory pricing information; receiving booked data at the traffic billing system, wherein the booked data includes data that changes the initial advertising order information; exporting the booked data from the traffic billing system back to the yield management system; making a change to the initial advertising order information affecting inventory levels stored by traffic billing program logic of the traffic billing system; and second recalculating, based on the change to the advertising order information, by the yield management program logic the first recalculated advertising inventory pncmg information in accordance with the pricing logic and the price change to produce a second recalculated advertising inventory pricing information; and providing the available inventory and the second recalculated advertising inventory pricing information to the each of the plurality of member stations such that when at least one of the plurality of member stations is not communicatively coupled via the data network, the at least one of the plurality of member stations further functioning to sell the associated advertising inventory for that respective member station of the plurality of member stations. 3 Appeal2017-002710 Application 11/139,875 Claims 34--37 stand rejected under 35 U.S.C. § 101. PRINCIPLES OF LAW An invention is patent-eligible if it claims a "new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101 to include implicit exceptions: "[l]aws of nature, natural phenomena, and abstract ideas" are not patentable. E.g.,Alice Corp. Pty. Ltd. v. CLS Banklnt'l, 134 S. Ct. 2347, 2354 (2014). In determining whether a claim falls within the excluded category of abstract ideas, we are guided in our analysis by the Supreme Court's two- step framework, described in Mayo and Alice. Alice, 134 S. Ct. at 2355 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296-97 (2012)). In accordance with that framework, we first determine whether the claim is "directed to" a patent-ineligible abstract idea. See Alice, 134 S. Ct. at 2356 ("On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk."); Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4 in petitioners' application explain the basic concept of hedging, or protecting against risk."); Diamond v. Diehr, 450 U.S. 175, 184 ( 1981) ("Analyzing respondents' claims according to the above statements from our cases, we think that a physical and chemical process for molding precision synthetic rubber products falls within the § 101 categories of possibly patentable subject matter."); Parker v. Flook, 437 U.S. 584, 594-- 595 (1978) ("Respondent's application simply provides a new and presumably better method for calculating alarm limit values."); Gottschalk v. 4 Appeal2017-002710 Application 11/139,875 Benson, 409 U.S. 63, 64 (1972) ("They claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals."). The patent-ineligible end of the spectrum includes fundamental economic practices, Alice, 134 S. Ct. at 2357; Bilski, 561 U.S. at 611; mathematical formulas, Parker, 437 U.S. at 594--95; and basic tools of scientific and technological work, Gottschalk, 409 U.S. at 69. On the patent- eligible side of the spectrum are physical and chemical processes, such as curing rubber, Diamond, 450 U.S. at 184 n.7, "tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores," and a process for manufacturing flour, Gottschalk, 409 U.S. at 69. If the claim is "directed to" a patent-ineligible abstract idea, we then consider the elements of the claim-both individually and as an ordered combination-to assess whether the additional elements transform the nature of the claim into a patent-eligible application of the abstract idea. Alice, 134 S. Ct. at 2355. This is a search for an "inventive concept"-an element or combination of elements sufficient to ensure that the claim amounts to "significantly more" than the abstract idea itself. Id. In addition, the Federal Circuit has held that if a method can be performed by human thought alone, or by a human using pen and paper, it is merely an abstract idea and is not patent-eligible under § 101. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) ("[A] method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under§ 101."). 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 5 Appeal2017-002710 Application 11/139,875 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). ANALYSIS The Examiner holds that claim 34 is directed to an abstract idea because the claims are directed to management of inventory and handling placement of orders based on price forecasting. Final Act. 2. The Examiner holds that the steps of claim 34 could be done by a human by hand or merely thinking and thus is a method of organizing human activity. Id. at 2--4. The Examiner also holds that claim 34 is directed to a fundamental economic practice because the concept of management of inventory and handling placement of orders based on price forecasting is a well-known and conventional step in the field of business finance. Id. at 3. The Examiner further holds that the claims are directed to a series of mathematical steps, which is an abstract idea. Id. at 4. We agree and further hold that claim 34 is also directed to the collection, analysis, storage, and transmission of data and thus is directed to an abstract idea on that basis as well. The Examiner finds that the other elements of claim 34 in addition to the abstract idea require no more than a generic computer to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the industry. Id. at 2. The Examiner finds that the recitation of a yield management system, a price forecasting system, and an inventory management system are merely general purpose computer components that require a processor and memory for performing basic 6 Appeal2017-002710 Application 11/139,875 computer functions of retrieving, storing, manipulating and processing data. Ans. 3. We agree. Appellant argues on page 11 of the Appeal Brief that claim 34 is not directed to management of inventory and handling placements of orders. Rather according to Appellant, claim 34 is directed to a particular method that improves managing inventory in a networked, enterprise environment involving multiple geographically dispersed member stations and produces a synergistic result. This argument is not persuasive because the Appellant does not explain what are these improvements. We note that Appellant's specification states on page 4 that the invention is directed to improving price accuracy so that the effect of each order on pricing is taken into account before the next order is placed. This alleged improvement does not concern an improvement to computer capabilities but instead relates to an alleged improvement in accurate pricing for which a computer is used as a tool in its ordinary capacity. Appellant also argues on page 12 of the Appeal Brief that although claim 34 may involve a series of mathematical steps, these calculations are not the focus of the claim. This argument is also unpersuasive because as we discussed above, even if the Appellant is correct that the calculation steps are not the focus of the claim 34, the steps of the claim are directed to the collection, analysis, storage, and transmission of data and are thus directed to an abstract idea on that basis. The Appellant's argument on page 14 of the Appeal Brief that the claim is not directed to a method of organizing human activities, because the recitation of a computer precludes performance of the method elements by a human is also not persuasive, because the recitation of a computer in the 7 Appeal2017-002710 Application 11/139,875 claims is considered in the second Alice step, not in the first step. As such, the Examiner considers the recitation of a computer and the various software modules in the finding that the claim does not include significantly more than the abstract idea. We are not persuaded of error on the part of the Examiner by Appellant's argument on page 14 of the Appeal Brief, that all of the recitations of claim 34 are not part of an abstract idea articulated by the Examiner, i.e., management of inventory and handling placement of orders based on price forecasting. This argument is directed to a level of abstraction used by the Examiner to characterize the claims. See Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240-1241 (Fed. Cir. 2016) ("An abstract idea can generally be described at different levels of abstraction. As the Board has done, the claimed abstract idea could be described as generating menus on a computer, or generating a second menu from a first menu and sending the second menu to another location. It could be described in other ways, including, as indicated in the specification, taking orders from restaurant customers on a computer."). \,Vhile the claimed invention can be articulated at a lower level than the level used by the Examiner, the abstract nature remains the same. We are not persuaded of error on the part of the Examiner by Appellant's argument on page 11 of the Brief that the claims do not attempt to preempt the entire concept. \\lhile preernption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362---63 (Fed. Cir. 2015), cert, denied, 8 Appeal2017-002710 Application 11/139,875 136 S. Ct. 701, 193 (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."). And, "[ w]here a patent's claims are deemed only to disclose patent ineligible subject matter under the 1-iayo framework, as they are in this case, preemption concerns are fully addressed and made moot" Ariosa, 788 F.3d at 1379. We are not persuaded of error on the part of the Examiner by Appellant's argument in the Reply Brief on page 3 that the claims are like the claims in McRO, Inc. dba Planet Blue v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016). Appellant contends that as in lvicRO, the instant claims do not simply automate conventional activity already performed by humans but recite specific interactions between various special purpose systems. We do not agree with Appellant that the claimed invention is analogous to the claimed invention in 1'1cRO. The clairns in AfcRO were directed to a specific asserted improvement in computer animation, i.e., the automatic use of rules of a particular type. AicRO, 837 F.3d at 1313. By contrast, the independent claims under appeal recite only collection and analysis of data. In addition, there is no recitation of a special purpose system but rather merely a generic computer including a processor and memory. \Ve find untimely Appe11anf s arguments in the Reply Brief that the claims include technological implementation like the claims in DDR Holdings, LLC v. Hotels.cmn LP., 773 F.3d 1245 (Fed. Cir. 2014) and that the claims do not simply automate conventional activity but rather include specific interactions between various special purpose systems. (Reply Br. 9 Appeal2017-002710 Application 11/139,875 6.). \Ve note that these new arguments were raised by Appellant for the first tirne in the Reply Brie( and they are not in response to a new issue brought up by the Examiner in the Answer .. Appellant is reminded that [T]he purpose of a reply brief is to ensure the Appellant the opportunity to have the last word on an issue raised by the Examiner. The reply brief enables the Appellant to address any new grounds of rejection the Examiner may have raised in the answer, or to address changes or developments in the law that may have occuned after the principal brief was filed. The reply brief is not an opportunity to make arguments that could have been made during prosecution, but were not. Nor is the reply brief an oppmiunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not Giving cognizance to belated arguments in a reply would vitiate the force of the requirement in Board Rule 3 7 ( c)( l )(vii) that "[a]ny arguments or authorities not included in the brief ... will be refused consideration by the Board, unless good cause is shown." The reference in that section to the "reply brief filed pursuant to § 41 A I'' does not create a right for the Appellant to raise an argument in the reply brief that could have been raised in the principal brief but was not. Rather, that reference merely puts Appellants on notice that arguments that could be made in the reply briet but are not, are waived. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010). \Ve, therefore, consider Appellant's arguments improperly raised in the Reply Brief to be waived. In view of the foregoing, we will sustain the Examiner's rejection of claim 34. We will also sustain the Examiner's rejection of claims 35-37 because the Examiner has not argued the separate patent eligibility of these claims. 10 Appeal2017-002710 Application 11/139,875 DECISION We affirm the Examiner's§ 101 rejection. TIME PERIOD 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). AFFIRMED 11 Copy with citationCopy as parenthetical citation