Ex Parte Gagner et alDownload PDFPatent Trial and Appeal BoardOct 30, 201412995940 (P.T.A.B. Oct. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MARK B. GAGNER, VERNON W. HAMLIN, LARRY J. PACEY, SCOTT H. SCHULHOF, and CRAIG J. SYLLA ____________________ Appeal 2012-009759 Application 12/995,940 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, STEFAN STAICOVICI, and LISA M. GUIJT, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mark B. Gagner et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–17 and 19–28. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-009759 Application 12/995,940 2 THE CLAIMED SUBJECT MATTER Claims 1, 12 and 21, reproduced below, are illustrative of the claimed subject matter. 1. A method comprising: aggregating wagering game data from a plurality of wagering game machines in a wagering game establishment, wherein the wagering game data indicates a plurality of patrons and times; generating patron flow data from the aggregated wagering game data, wherein the patron flow data indicate flows of the plurality of patrons among the plurality of wagering game machines in the wagering game establishment with respect to the times; determining at least one of intersecting flows and overlapping flows of a subset of the plurality of patrons based, at least in part, on the patron flow data; and indicating a social group comprised of the subset of the plurality of patrons based on said determining the at least one of intersecting flows and overlapping flows. 12. A method comprising: aggregating data associated with a plurality of patrons of a wagering game establishment during a time period; deriving locations of the plurality of patrons within the wagering game establishment during the time period based, at least in part, on the aggregated data; determining times that correspond to the derived locations based, at least in part, on the aggregated data; determining flows of the plurality of patrons within the wagering game establishment based, at least in part, on the derived locations and the determined times that correspond to the derived locations; determining that a plurality of the flows at least one of intersect and overlap, wherein the plurality of flows corresponds to a subset of the plurality of patrons; and Appeal 2012-009759 Application 12/995,940 3 indicating a social group comprised of the subset of the plurality of patrons based on said determining that the plurality of flows at least one of intersect and overlap. 21. One or more machine-readable media having stored therein instructions, which when executed by a set of one or more processors causes the set of one or more processors to perform operations that comprise: aggregating wagering game data from a plurality of wagering game machines in a wagering game establishment, wherein the wagering game data indicates a plurality of patrons and times; generating patron flow data from the aggregated wagering game data, wherein the patron flow data indicate flows of the plurality of patrons among the plurality of wagering game machine in the wagering game establishment with respect to the times; determining at least one of intersecting flows and overlapping flows of a subset of the plurality of patrons based, at least in part, on the patron flow data; and indicating a social group comprised of the subset of the plurality of patrons based on said determining the at least one of intersecting flows and overlapping flows. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Moser Bryson US 2007/0087834 A1 US 2008/0268959 A1 Apr. 19, 2007 Oct. 30, 2008 REJECTIONS (1) Claims 1–17, 19, and 20 stand rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter (an abstract idea). Answer 5. Appeal 2012-009759 Application 12/995,940 4 (2) Claims 21–23 stand rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter (a transitory propagating signal per se). Answer 7. (3) Claims 1–17 and 19–28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Moser and Bryson. Answer 7. OPINION Rejection (1) — Claims 1–17, 19, and 20 In contesting this rejection, Appellants group claims 1–17, 19, and 20 together. Appeal Br. 6–8. Thus, we select claim 12 to decide the appeal of this rejection as to the entire group. 37 C.F.R. § 41.37(c)(1)(vii) (2011). 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 Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289, 1294 (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. 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. Appeal 2012-009759 Application 12/995,940 5 The Examiner determined, and we agree, that the steps of claim 12 “are capable of being done by a human being simply observing and gathering data which falls in the general concept of a mental activity.” Answer 18. This determination supports the Examiner’s conclusion that claim 12 is directed to patent-ineligible subject matter. Our reviewing court, relying on Supreme Court precedent, has “consistently ‘refused to find processes patentable when they merely claimed a mental process standing alone and untied to another category of statutory subject matter[,] even when a practical application was claimed.’” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011) (quoting In re Comiskey, 554 F.3d 967, 980 (Fed. Cir. 2009)). “Such a method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under § 101.” Id. at 1373. Following the framework set forth in Alice, we determine that claim 12 is directed to the mental process or abstract intellectual concept of identifying a social group of a subset of patrons whose flows either overlap or intersect. Mental processes and abstract intellectual concepts are not patentable. Parker v. Flook, 437 U.S. 584, 589 (1978); Gottschalk v. Benson, 409 U.S. 63, 67–68 (1972). Having determined that claim 12 is directed to a patent-ineligible concept, we must secondly consider the elements of claim 12 individually and as an ordered combination to determine whether the additional elements of the claim transform the nature of the claim into a patent-eligible application. The step of “aggregating data . . . ” is nothing more than a general step of gathering data, specified at a high level of generality. This is not enough to supply the inventive concept needed to transform claim 12 into a patent- Appeal 2012-009759 Application 12/995,940 6 eligible application. The steps of deriving times, determining locations, determining flows, and determining overlaps or intersections of flows are simply steps of manipulating, or making observations about, the data, which could be performed mentally, and, thus, also are insufficient to supply the inventive concept needed to transform claim 12 into a patent-eligible application. The final step of claim 12 is simply the mental step of identifying a social group of a subset of patrons whose flows either overlap or intersect. The method of claim 12 does not apply this concept of a social group in any tangible way. In other words, the identification of a social group is a disembodied intellectual concept. Considering the steps of claim 12 as an ordered combination adds nothing to the disembodied concept of identifying a social group of a subset of patrons whose flows either overlap or intersect. The first five steps of claim 12 simply require the performer of the method to gather and make observations about data from which to draw an inference, namely, the identification of a social group of a subset of patrons based on overlap or intersection of their flows. Those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately, and, thus are not sufficient to transform the disembodied concept of identifying a social group of a subset of patrons whose flows either overlap or intersect into a patent-eligible application of the concept. Appellants contend that “[a]ggregating wagering game data and generating patron flow data based on the aggregated wagering game data is a functional and palpable application in the field of computer technology.” Appeal Br. 8. This argument is not convincing. First, claim 12 makes no reference to a computer, and, notably, does not recite the use of a computer Appeal 2012-009759 Application 12/995,940 7 to aggregate data. Moreover, the mere recitation of the use of a computer to aggregate the data would not be sufficient to transform claim 12 into a patent-eligible application. See Alice, 134 S. Ct. at 2358 (“These cases demonstrate that the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”). This conclusion also follows from CyberSource, 654 F.3d at 1373, in which, based on earlier precedents, our reviewing court held that section 101 did not embrace a process defined simply as using a computer to perform a series of mental steps that people, aware of each step, can and regularly do perform in their heads; see also In re Grams, 888 F.2d 835, 840–41 (Fed. Cir. 1989); In re Meyer, 688 F.2d 789, 794–95 (CCPA 1982). As CyberSource explains, those precedents rest on Supreme Court decisions indicating that section 101 covers neither “mental processes” associated with or as part of a category of “abstract ideas” nor processes that merely invoke a computer and its basic functionality for implementing such mental processes, without specifying even arguably new physical components or specifying processes defined other than by the mentally performable steps. See Benson, 409 U.S. at 67– 68; Flook, 437 U.S. at 589. Additionally, although not dispositive, the Examiner correctly determined that claim 12 includes “no recitation or insufficient recitation of a machine or transformation.” Answer 7. Appellants do not contest this determination. According to Supreme Court precedents, “the machine-or- transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under § 101,” but “is not the sole test for deciding whether an invention is a patent-eligible ‘process.’” Bilski v. Kappos, 130 S. Ct. 3218, 3227 (2010). Claim 12 does Appeal 2012-009759 Application 12/995,940 8 not recite any machine, and, as mentioned above, recites a general step of gathering data, specified at a high level of generality; steps of manipulating, or making observations about, the data, all of which could be performed mentally; and a step of identifying a social group of a subset of patrons whose flows either overlap or intersect, which likewise could be performed mentally. Thus, claim 12 does not require a particular machine implementing a process or a particular transformation of matter. For all of the foregoing reasons, the Examiner correctly determined that claim 12 is directed to patent-ineligible subject matter. We, thus, sustain the rejection of claims 1–17, 19, and 20 under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. Rejection (2) — Claims 21–23 In contesting this rejection, Appellants group claims 21–23 together. Appeal Br. 9. Thus, we decide the appeal of this rejection on the basis of claim 21. 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 21–23 are directed to “machine-readable media.” Appeal Br. 26, Claims App. The Examiner finds that “machine-readable media” covers a transitory propagating signal because “there are propagated signals that are machine-readable, i.e., wireless data transmitted to and from portable computers, cell phones, and other wireless communication devices,” and that Appellants’ Specification does not exclude these transmission types from the scope of “machine-readable media.” Answer 7, 18. Appellants contend that paragraph 83 of their Specification distinguishes between “machine-readable media” and “communications media,” which encompasses propagating signals. Appeal Br. 9; Reply Br. 2. Appeal 2012-009759 Application 12/995,940 9 According to Appellants, paragraph 83 lists “various forms of propagated signals as communications media,” and the terminology “‘machine-readable media’ is not directed to propagated signals.” Appeal Br. 9. Appellants argue that because claims 21–23 “recite a machine-readable medium instead of a communications medium, the claims do not encompass a propagating signal.” Reply Br. 2. The paragraph relied upon by Appellants reads, in pertinent part: The described embodiments may be provided as a computer program product, or software, that may include a machine- readable medium having stored thereon instructions, which may be used to program a computer system (or other electronic device(s)) to perform a process according to embodiments, whether presently described or not, since every conceivable variation is not enumerated herein. A machine readable medium includes any mechanism for storing or transmitting information in a form (e.g., software, processing application) readable by a machine (e.g., a computer). The machine- readable medium may include, but is not limited to, magnetic storage medium (e.g., floppy diskette); optical storage medium (e.g., CD-ROM); magneto-optical storage medium; read only memory (ROM); random access memory (RAM); erasable programmable memory (e.g., EPROM and EEPROM); flash memory; or other types of medium suitable for storing electronic instructions. In addition, embodiments may be embodied in an electrical, optical, acoustical or other form of propagated signal (e.g., carrier waves, infrared signals, digital signals, etc.), or wireline, wireless, or other communications medium. Spec. 17–18, ¶ 83 (emphasis added). Paragraph 83 of Appellants’ Specification defines “machine-readable medium” as any mechanism for storing or transmitting information in a form readable by machine. Accordingly, the Examiner correctly determined that “machine-readable media” covers a propagated signal, “because there are Appeal 2012-009759 Application 12/995,940 10 propagated signals that are machine-readable.” Answer 18. Although paragraph 83 of Appellants’ Specification appears to label such propagated signals as “communications medi[a],” Appellants’ Specification does not explicitly exclude such communications media from the scope of “machine- readable media.” Rather, paragraph 83 of the Specification appears to identify the propagated signals (or communications media) as embodiments or forms of machine-readable media, in addition to the various other enumerated forms of machine-readable media, such as ROM, RAM, EPROM, EEPROM, and magnetic, optical, and magneto-optical media. Accordingly, the Examiner correctly construed claims 21–23 as encompassing transitory propagating signals. Thus, these claims cover subject matter that is not patent-eligible under 35 U.S.C. § 101. See Ex parte Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential) (holding recited machine-readable storage medium ineligible under § 101 because it encompassed transitory media); see also David J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (“The broadest reasonable interpretation of a claim drawn to a computer readable medium . . . typically covers forms of . . . transitory propagating signals”); In re Nuijten, 500 F.3d 1346, 1356–57 (Fed. Cir. 2007) (transitory embodiments are not directed to statutory subject matter).1 1 As noted in Subject Matter Eligibility of Computer Readable Media, “[a] claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the limitation ‘non-transitory’ to the claim.” Answer 7. Appeal 2012-009759 Application 12/995,940 11 Obviousness — Claims 1–17 and 19–28 In contesting this rejection, Appellants argue claims 1–16, 21–23, and 26–28 together as a first group; claims 17, 19, and 20 together as a second group; and claims 24 and 25 together as a third group. Appeal Br. 11, 15, 18. We select claims 1, 17, and 24 to decide the appeal of the rejection as to the claims in each of these groups. 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appellants’ arguments are essentially the same for each of the three groups. Appellants argue that neither Moser nor Bryson “discloses or suggests determining at least one of intersections and overlaps in patron flows and then indicating or engineering social groups based on the at least one of intersections and overlaps.” Appeal Br. 10. Further, according to Appellants, the Examiner failed to provide any articulated reasoning with a rational underpinning why it would have been obvious to do so, “in light of the complete absence of intersecting and overlapping flows in both Moser and Bryson.” Id. at 11. As acknowledged by the Examiner (Answer 19), Moser does not expressly disclose intersections or overlaps in patron flows. However, the Examiner observes that intersections in patron flow, as described in Appellants’ Specification, do not require that multiple patrons be at the same location at the same time. Id.; Spec., paras. 65 (describing an overlap in which two patrons are located in the group wagering area early in the morning and at the sushi restaurant within minutes of each other, and an intersection in which three patrons visit the Big Event gaming machines at different times during the day), 66 (distinguishing flows with intersections from flows with overlap in which, for example, patrons were at a first bank of wagering game machines during a first time window and moved to a Appeal 2012-009759 Application 12/995,940 12 second bank of machines during a second time window). We agree with the Examiner that given the numbers of patrons in a casino in a given day and the numbers of different paths any particular patron might take, the probability of at least some overlaps and intersections in flow is high. Answer 19. Moser discloses collection of “data related to the behavior of multiple people in a gaming establishment.” Para. 8. Such data collection may include passively tracking a patron’s movement and activity in a casino, thereby producing a traffic pattern for the person, and may also include recording what the person did at stop points along a journey in the casino. Paras. 30, 119–122. The Examiner finds that Bryson discloses indicating communities (i.e., social groups) comprised of the subset of the plurality of patrons who are determined to have intersecting and overlapping flows based, at least in part, on aggregated game data. Answer 9 (citing Bryson, paras. 4, 8, 11, 71, 89). Specifically, the Examiner finds that Bryson discloses determining at least one of intersections and overlaps in patron flows in paragraphs 11, 59, and 89. Id. at 20. We agree that Bryson discloses determining at least intersections in patron flows. In particular, Bryson discloses using a player’s wagering game history to assign or migrate a customer to or from a community. Paras. 11, 59. Bryson also discloses that a player community may correspond to a particular type of wagering game. Paras. 8, 14, 50. In other words, based on determinations of intersections in the flow of a subset of customers, such as a history of playing a particular type of gaming machine, Bryson creates a customer community (i.e., social group). Appeal 2012-009759 Application 12/995,940 13 Further, Moser discloses use of the collected data “to better entertain patrons,” such as by tailoring offerings of advertisements for services “or games on gaming machines that the person may enjoy.” Paras. 2, 5. Likewise, Bryson discloses creating the customer communities so that specific marketing messages, promotions, and the like “may be provided to attract and retain players having similar characteristics and preferences.” Para. 4. Thus, both Moser and Bryson provide a rational underpinning for the Examiner’s articulated reason for combining Moser’s patron traffic pattern tracking system with Bryson’s teaching of creating communities (i.e., social groups) based on intersections of flows of a subset of a plurality of patrons, such as at a bank of a particular type of gaming machine, “in order to provide players with access to others with common interest” and “to increase player patronage and profits for gaming establishments.” Answer 9. For the above reasons, Appellants do not apprise us of error in the Examiner’s rejection of claims 1, 17, and 24 as unpatentable over Moser and Bryson. Thus, we sustain the rejection of claims 1–17 and 19–28 under 35 U.S.C. § 103(a) as being unpatentable over Moser and Bryson. DECISION (1) The Examiner’s decision rejecting claims 1–17, 19, and 20 under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter (an abstract idea) is affirmed. (2) The Examiner’s decision rejecting claims 21–23 under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter (a transitory propagating signal per se) is affirmed. Appeal 2012-009759 Application 12/995,940 14 (3) The Examiner’s decision rejecting claims 1–17 and 19–28 under 35 U.S.C. § 103(a) as being unpatentable over Moser and Bryson 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)(1)(iv). AFFIRMED hh Copy with citationCopy as parenthetical citation