Ex Parte Gibson et al

Patent Trial and Appeal Board

Jun 18, 2018

12750226 (P.T.A.B. Jun. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/750,226 03/30/2010
69316 7590 06/20/2018
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
FIRST NAMED INVENTOR
Chad Gibson
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.
328949.01 8434
EXAMINER
EVANS, KIMBERLYL
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
06/20/2018 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):
usdocket@microsoft.com
chriochs@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHAD GIBSON and ARJUN DAY AL
Appeal2017-001817
Application 12/750,226
Technology Center 3600
Before HUBERT C. LORIN, KENNETH G. SCHOPPER, and
AMEE A. SHAH, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1 and 3-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Throughout this Decision, we refer to the Appellants' Appeal Brief
("Appeal Br.," filed Feb. 10, 2016), Reply Brief ("Reply Br.," filed Nov. 14,
2016), and Specification ("Spec.," filed Mar. 30, 2010), and to the
Examiner's Answer ("Ans.," mailed Sept. 12, 2016), and Final Office
Action ("Final Act.," mailed July 10, 2015).
2 According to the Appellants, the real party in interest is Microsoft
Technology Licensing, LLC. Appeal Br. 3.
Appeal2017-001817
Application 12/750,226
STATEMENT OF THE CASE
The Appellants' invention relates to "[ s ]mnmary presentation of
media consumption" (Spec. ,r 2) that "allow[s] a user to review previously
consumed media in the form of a personal highlight reel" (id. ,III).
Claims 1, 7, and 14 are the independent claims on appeal. Claim 1
(Appeal Br. 65---66 (Claims App.)) is exemplary of the subject matter on
appeal and is reproduced below (lettered bracketing added for reference).
1. A method for generating a personal highlight reel at a
media consumption aggregator computing device including an
input/output interface, a logic subsystem, and a data-holding
subsystem, the method comprising:
[(a)] receiving via a first computer network, at the media
consumption aggregator computing device, computer-readable
personal consumption data indicating one or more media units
consumed by a user computing device;
[ (b)] automatically computer-processing the personal
consumption data with the media consumption aggregator
computing device to identify a user corresponding to the personal
consumption data;
[ ( c)] storing, on the media consumption aggregator device,
the personal consumption data in association with the user
identifier;
[ ( d)] automatically computer-evaluating consumption
parameters of each of the one or more media units to identify,
with the media consumption aggregator computing device, one
or more relevant personal media units, the consumption
parameters including one or more of a number of times the
identified user consumed each of the one or more media units, a
time at which each of the one or more media units was consumed
by the identified user, a rating of each of the one or more media
units by the identified user, and a recommendation associated
with each of the one or more media units from the identified user;
[ ( e)] generating, with the media consumption aggregator
computing device, a computer displayable personal highlight
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reel including a computer-viewable collection of one or more
personal media events representative of the one or more relevant
personal media units arranged in a computer-determined viewing
order; and
[ ( f)] outputting the personal highlight reel from the media
consumption aggregator computing device to a reviewing
computing device via the first or a second computer network for
computer presentation to a user via the reviewing computing
device.
REJECTIONS 3
I. Claims 1 and 3-20 stand rejected under 35 U.S.C. § 101 as
being a judicial exception.
II. Claims 1 and 3---64 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Horowitz et al. (US 2009/0160859 Al, pub. June
25, 2009) (hereinafter "Horowitz") and Dunk et al. (US 2011/0060649 Al,
pub. Mar. 10, 2011) (hereinafter "Dunk").
III. Claims 7, 8, and 10 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Horowitz, Crawford (US 2007/0214180 Al, pub.
Sept. 13, 2007), and Chijiiwa et al. (US 2009/0070852 Al, pub. Mar. 12,
2009) (hereinafter "Chijiiwa").
IV. Claims 9 and 11 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Horowitz, Crawford, Chijiiwa, and Dunk.
V. Claims 12 and 13 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Horowitz, Crawford, Chijiiwa, and Luo et al.
(US 2011/0010384 Al, pub. Jan. 13, 2011) (herein after "Luo").
3 We rely on the grounds of rejection as presented in the Answer at page 2.
4 We consider the Examiner's inclusion of claim 2 (Ans. 2), which has been
cancelled, as harmless error.
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VI. Claims 14 and 16-20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Horowitz, Crawford, and Dunk.
VII. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Howoritz, Crawford, Dunk, and Luo.
ANALYSIS
Rejection I-Patent-Ineligible Subject Matter-§ 101
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 'nfor
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 588-89
(2013)).
The Supreme Court in Alice reiterated the two-step framework, set
forth previously in Mayo Collaborative Services v. Prometheus
Laboratories, 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, 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. (emphasis
added) ( citing Mayo, 566 U.S. at 79). 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
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claim' into a patent-eligible application." Id. (quoting Mayo, 566 U.S.
at 78-79).
The step-one analysis requires us to consider the claims "in their
entirety to ascertain 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). The question is whether the claim as
a whole "focus[ es] on a specific means or method that improves the relevant
technology" or is "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).
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."' Alice, 134 S. Ct. at 2355 (alteration in original)
(quoting Mayo, 566 U.S. at 72-73).
Claims 1, 3, and 4
Under the first step of the Alice framework, the Examiner determines
that the claimed invention is directed to "a method of reviewing previously
consumed media data in the form of a personal highlight reel" (Ans. 4) and a
method of "organizing, collecting information, separating and transmitting
information according to its classification" (Final Act. 9), an abstract idea.
The Appellants recite the limitations of claim 1 and contend that they
were not considered by the Examiner (Appeal Br. 11-12; see also Reply
Br. 2) and that the Examiner's rejection "does not cite any decision that has
held that outputting a computer-displayable personal highlight reel for
computer presentation to a user via a reviewing computing device, or any
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similar concept, is an abstract idea" (Appeal Br. 12). These arguments are
unpersuasive because the Examiner does look to the language of the claim in
making the determination that the claim is directed to an abstract idea. See
Final Act. 9; Ans. 4--5. The Examiner also and cites to and compares the
stated abstract idea to judicial decisions. See Final Act. 10; Ans. 5.
We note that the Title of the Specification provides for a
"SUMMARY PRESENTATION OF MEDIA CONSUMPTION." The
Background section of the Specification discusses that "receiving
recommendations from a friend ... can result in a user receiving unwelcome
or too-frequent recommendations, and manually filtering a friend's media
consumption history can be cumbersome and time-consuming." Spec. ,r 1.
The claimed invention addresses these problems by a "[ s ]ummary
presentation of media consumption" (id. ,r 2) that "allow a user to review
previously consumed media in the form of a personal highlight reel" (id.
,r 11 ).
Claim 1 provides for "[a] method for generating a personal highlight
reel at a media consumption aggregator computing device[,] ... the method
comprising:" (a) receiving, at an aggregator computing device, personal
consumption data indicating media units consumed by a user computing
device, (b) processing, with the aggregator device, the personal consumption
data to identify a user corresponding to the data, ( c) storing, on the
aggregator device, the personal consumption data with the user identifier,
( d) evaluating, with the aggregator device, consumption parameters to
identify relevant personal media units, ( e) generating, with the aggregator
device, a computer displayable personal highlight reel, and (f) outputting,
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from the aggregator device, the personal highlight reel. Appeal Br. 65---66
(Claims App.).
The Specification does not provide details for steps (b ), ( d), and ( e) of
processing to identify a user, evaluating parameters to identify media units,
and generating a reel. Based on the portions relied on by the Appellants as
support for limitation (b) of processing to identify a corresponding user
(Appeal Br. 5 (citing Spec. ,r,r 20, 45, 89, Figs. 3, 6)), the processing
involves asking for and receiving data representative of a user identifier. See
Spec. ,r 20 ("users of the media consumption aggregator 108 may be asked
to provide a user log-in in order to consume media units and/or to track
media consumption"), ,r 45 ("receiving personal consumption data which
may be associated with a user identifier"), ,r 89 ("receiving personal
consumption data indicating media units consumed by a user represented by
a user identifier"). For limitation (d) of evaluating parameters to identify
media units, the Specification does not mention the word "evaluate." The
Appellants rely on paragraph 29 and Figure 2 of the Specification for
support for this limitation. Appeal Br. 5---6. Although paragraph 29
discusses the parameters claimed, there is no discussion of the technological
manner or algorithm for how or in what way the parameters are evaluated.
For limitation ( e) of generating the personalized reel, the Appellants cite to
paragraphs 52, 63, and 71 and Figures 3 and 7 of the Specification as
support for this limitation. Appeal Br. 6. These portions simply state that a
personalized highlight reel is generated or created (see Spec. ,r,r 52, 63, 71,
Figs. 3, 7), but provide no further details on the technological manner or
algorithm used to generate the reel.
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The Specification provides that "[ t ]the types of devices capable of
implementing the system and methods described herein are not limited to the
devices illustrated, and may include any of a television, set-top box, desktop
computing device, laptop computing device, personal digital assistant
(PDA), mobile phone, gaming computing device, etc." Spec. ,r 117. "[T]he
systems, methods, and user interfaces illustrated herein are merely
exemplary and not meant to be limiting specifically." Id. ,r 118. The media
consumption aggregator is a generic computing system that includes a logic
subsystem configured to execute instructions, and a data-holding subsystem
configured to store data. See id. ,r,r 118-125.
In light of the Specification's description of the problem and solution,
the purported advance over the prior art by the claimed invention is a way to
present a summary of media content that is more relevant to and easier for
the user. In that context, claim 1 is directed to generating and displaying
summarized and personalized media content based on the evaluation of
consumption parameter data. 5 The claim here is akin to ones our reviewing
court has deemed abstract in Intellectual Ventures I LLC v. Capital One
Bank (USA), 792 F.3d 1363, 1369-70 (Fed. Cir. 2015) (customizing and
tailoring web page content based on navigation history and known user
information), Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350,
1353-54 (Fed. Cir. 2016) (gathering and analyzing information of a specific
content and displaying the results), Affinity Labs of Texas, LLC v.
5 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 Board's "slight revision of its abstract idea analysis
does not impact the patentability analysis." Id. at 1241.
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Amazon.com Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016) (customizing a user
interface to have targeted advertising based on user information), and Two-
Way Media Ltd. V. Comcast Cable Communications, LLC, 874 F.3d 1329,
1337-38 (Fed. Cir. 2017) ("routing information using result-based
functional language" comprising converting, routing, controlling,
monitoring, and accumulating records). Here, the claim involves nothing
more than receiving, processing, storing, and analyzing/identifying data of a
specific content, and generating and presenting content based on the
analysis, without any particular inventive technology or description of how
to achieve the results in a non-abstract way- an abstract idea. See Elec.
Power, 830 F.3d at 1354; Two-Way Media. As such, we find unpersuasive
the Appellants' arguments that the claim is not directed to an abstract idea
because it is not directed to a formula or a fundamental economic practice.
See Appeal Br. 14--18.
We also find unpersuasive the Appellants' argument that the claim is
analogous to those of DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245 (Fed. Cir. 2014), because "claim 1 is necessarily rooted in computer
technology and overcomes a problem specifically arising in the realm of
computer systems." Appeal Br. 13; see also Reply Br. 4 ("claim 1 is
directed to solving a technological problem that specifically arises in the
realm of computers"). In DDR Holdings, 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
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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. The court
cautioned that "not all claims purporting to address Internet-centric
challenges are eligible for patent." Id. at 1258. And the court contrasted the
claims to those at issue in Ultramercial, in that, in DDR Holdings, the
computer network was not operating in its "normal expected manner" and
the claims did not "recite an invention that is ... merely the routine or
conventional use of the Internet." Id. at 1258-59.
In contrast, there is no indication here that the claimed invention
claims a solution "necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks."
Id. at 1257. According to the Appellants, the claim "specifically addresses
the problem of decreasing the time a user spends searching for and
reviewing representations of consumed content." Appeal Br. 14; see also
Reply Br. 5 ("the problem of being unable to quickly review relevant content
that was previously consumed on a computing device"). As discussed
above, the Specification provides that the claim addresses the problem
regarding "receiving unwelcome or too-frequent recommendations" and the
"cumbersome and time-consuming" nature of manually filtering history
data. Spec. ,r 1. Although the content is computer-centric, i.e., "the human
mind cannot generate and output a computer-displayable personal highlight
reel as recited in claim 1" ( Appeal Br. 13; Reply Br. 3) ( emphasis added),
and is thus tied to a computer, the problems of unwelcome and frequent
recommendations and time-consuming nature of searching, reviewing, and
filtering data are ones that existed prior to the Internet. See Ultramercial,
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772 F.3d at 716-17. As the Appellants note, recording, selecting, and
editing media clips had been done manually ( Appeal Br. 14) and can be
presented manually, i.e., through a film reel. The purported solution
automates that process using conventional computers/ devices and a network
operating in their normal capacities to receive, process, store, and analyze
data of a specific content, and generate and present content based on the
analysis. See Spec. i-fi-fl 17-125. The claim recites an invention that is
merely the routine or conventional use of computers to perform an abstract
practice. DDR Holdings, 773 F.3d at 1258-59.
Under the second step of the Mayo/Alice framework, we agree with
and find supported the Examiner's determination that the elements of
claim 1, individually or as an ordered combination, do not amount to
significantly more than the above-identified abstract idea. See Final Act. 9-
10; Ans. 6-13. We are not persuaded of Examiner error by the Appellants'
arguments that assert the opposite. See Appeal Br. 19-21. We note that the
Specification conveys that the computer-related components recited in the
claims ( e.g., computing devices and network) are routine and conventional
computer components. See e.g., Spec. ,r,r 16, 117-125, 69-80, Fig. 1.
We find unpersuasive the Appellants' arguments that "the precise
manner in which claim 1 performs the above actions and outputs the
computer-displayable personal highlight reel offers improvements that
qualify as something more." Appeal Br. 19. The steps of receiving, storing,
and outputting data are well-understood, routine, and conventional functions
of a generic computer. See, e.g., Elec. Power, 830 F.3d at 1354--55
(gathering, sending, monitoring, analyzing, selecting, and presenting
information does not transform the abstract process into a patent-eligible
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invention), Intellectual Ventures I, 792 F.3d at 1371 (entering, breaking
down, organizing, and transmitting information through use of a
conventional computer do not confer patent eligibility), and Versata
Development Group, Inc. v. SAP America, Inc. 793 F.3d 1306, 1334 (Fed.
Cir. 2015) ( storing, retrieving, sorting, eliminating, and receiving data are
well-known, routine, and conventional functions of a generic computer).
Further, as noted above, the Specification provides no details on how
the steps of processing, evaluating, identifying, and generating are
performed; rather, the functions are claimed generically. See Affinity Labs,
838 F.3d at 1271; see also Affinity Lab of Texas v, DIRECTV, LLC, 838 F.3d
1253, 1262 (Fed. Cir. 2016) ("More generally, 'simply appending
conventional steps specified at a high level of generality' to an abstract idea
does not make the idea patentable.") (quoting Mayo, 132 S.Ct. at 1300).
There is no further description of any particular technology for performing
the steps. See TDE Petroleum Data Sols., Inc., v. AKM Enter., Inc., 657
F. App'x 991, 993 (Fed. Cir. 2016), cert. denied, 137 S. Ct. 1230 (2017)
("As we discussed at greater length in Electric Power, the claims of the '812
patent recite the what of the invention, but none of the how that is necessary
to tum the abstract idea into a patent-eligible application.") (citing Elec.
Power Grp., 830 F.3d at 1353); see also Internet Patents Corp. v. Active
Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015) ("As the district court
observed, claim 1 contains no restriction on how the result is
accomplished.").
We also find unpersuasive the Appellants' contention that claim 1
improves the computer functionality by providing "a faster computer search"
compared to a manual sifting (Appeal Br. 19) and "by decreasing the
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resource load on the computer when presenting a collection of personal
media events" (id. at 20). See also Reply Br. 5---6 ("claim 1 of the subject
application (like the claims in Enfish) is directed to an improvement to
computer functionality itself'). The computer technology or functionality
itself is not improved. Any improvement resides in the routine tasks of
receiving, processing, evaluating, and generating data. "[R ]elying on a
computer to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible." OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (citing Alice, 134
S. Ct. at 2359);
"In order for the addition of a machine to impose a
meaningful limit on the scope of a claim, it must play a
significant part in permitting the claimed method to be
performed, rather than function solely as an obvious mechanism
for permitting a solution to be achieved more quickly."
Versata, 793 F.3d at 1335 (quoting SiRF Tech., Inc. v. Int'! Trade Comm 'n,
601 F.3d 1319, 1333 (Fed. Cir. 2010)). Here, the claim does not meet this
test, but instead functions solely as a mechanism for automating a manual
process so that the process is performed more quickly. See Intellectual
Ventures I, 792 F.3d at 1367 ("claiming the improved speed or efficiency
inherent with applying the abstract idea on a computer [ does not] provide a
sufficient inventive concept"). The introduction of a computer to implement
an abstract idea is not a patentable application of the abstract idea. Alice,
134 S. Ct. at 2357-58.
Further, although the Appellants now contend that the claim reduces
resource loads (Appeal Br. 20), the Specification provides no support for
such a contention. As discussed above, the Specification provides that the
invention achieves benefits in reducing intrusions to the user and making the
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process less cumbersome and time-consuming for the user. See Spec. ,r 1;
Appeal Br. 19--20. The components used for the claimed method are
conventional, generic computers. See Spec. ,r,r 117-125. There is no
discussion of how the process reduces resource load or that this was a
purpose of the invention at the time the invention was filed.
We are further not persuaded by the Appellants' argument that
claim 1 is analogous to "example claim 4 of Example 23 of the July 2015
Update." Appeal Br. 20 (citing "July 2015 Update Appendix 1: Examples").
In that example, the "limitations are not merely attempting to limit the
mathematical algorithm to a particular technological environment. Instead,
these claim limitations recites a specific application of the mathematical
algorithm that improves the functioning of the basic display function of the
computer itself." July 2015 Update 12. Specifically, the "scaling and
relocating textual information in overlapping windows improves the ability
of the computer to display information and interact with the user." Id. The
Appellants argue that claim 1 similarly "recites features that improve the
ability of the computer to display information and interact with the user"
because "automatically computer-evaluating consumption parameters of
media units enables the computer to efficiently find the most relevant
consumption data, generate, and output a reviewable computer-displayable
highlight reel of representations of associated consumed content." Appeal
Br. 20-21. However, this does not improve the computer's ability to display
the information. Rather, the computer is simply displaying content more
relevant to the user (see id. at 21 ), similar to the display of customized
content in Intellectual Venture I, 792 F.3d at 1370-71.
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Finally, we are also not persuaded by the Appellants' reliance on SiRF
Technology Inc. v. International Trade Commission. Appeal Br. 21. In
SiRF Tech., decided prior to Alice, the court found that the method clearly
could not be performed without the use of the GPS receiver claimed because
"without a GPS receiver it would be impossible to generate pseudoranges or
to determine the position of the GPS receiver whose position is the precise
goal of the claims." SiRF Tech., 601 F.3d at 1332. Although claim 1
requires a computer (see Reply Br. 3-5 ("The elements recited in claim 1 are
not abstract concepts that can be executed without a computer")), the claim
automates a manual process by using generic computer components
operating in their ordinary capacities. See 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)).
Based on the foregoing, we sustain the Examiner's rejection under
35 U.S.C. § 101 of independent claim 1 and of dependent claims 3 and 4, for
which the Appellants rely on the same arguments presented for claim 1
(Appeal Br. 23).
Claims 5 and 6
The Appellants contend that dependent claims 5 and 6 are "patent
eligible for at least all of the reasons discussed with reference to claim 1."
Appeal Br. 22. The Appellants also repeat the argument presented for
claim 1 that the claims are not abstract because a court has not identified a
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similar concept as claimed. Id. at 22-23. These arguments are not
persuasive for the reasons provided above with respect to claim 1.
The Appellants further argue that "claim 5 is directed to an even
more-specific method of sending the computer-displayable personal
highlight reel to at least one friend computing device and thus is further
removed from being directed to an abstract idea." Appeal Br. 22. The
Appellants similarly argue that:
claim 6 is directed to an even more-specific method of receiving
friend consumption data, identifying relevant community media
units from the friend consumption data, filtering relevant
community media units, and generating and outputting a
computer-displayable community highlight reel including friend
media events, and thus is further removed from being directed to
an abstract idea.
Id. at 22-23. This argument is unpersuasive because "the abstract nature of
the claims is not altered at step one by the existence of claim limitations
(much less characterizations in the specification) that 'add a degree of
particularity' to the implementation of the abstract idea." In re Eberra, No.
2017-2394, 2018 WL 2077938, at *2 (Fed. Cir. May 4, 2018) (citing
Ultramercial, 772 F.3d at 715).
In response to the Appellants' argument that the claims are "neither
anticipated nor rendered obvious by any prior art, thus demonstrating that
the specific limitations of claim[ s] 5 [ and 6] are neither routine nor
conventional" (Appeal Br. 22-23), we note that an abstract idea does not
transform into an inventive concept just because the prior art does not
disclose or suggest it. See Mayo, 132 S. Ct. at 1304. "Groundbreaking,
innovative, or even brilliant discovery does not by itself satisfy the § 101
inquiry." Ass 'nfor Molecular Pathology, 133 S. Ct. at 2117. Indeed, "[t]he
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'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); see also Mayo, 132 S. Ct. at 1304
(rejecting "the Government's invitation to substitute§§ 102, 103, and 112
inquiries for the better established inquiry under § 101 ").
Further, sending, receiving, identifying, filtering, and generating data
are well-understood, routine, and conventional functions of a generic
computer, including that used to perform the method claimed. See supra;
see also BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827
F.3d 1341, 1341, 1347--49 (Fed. Cir. 2016) (filtering content is an abstract
idea and by itself, a routine activity).
Thus, we sustain the Examiner's rejection under 35 U.S.C. § 101 of
dependent claims 5 and 6.
Claims 7-12
The Appellants contend that independent claim 7 is patent-eligible for
substantially similar reasons as presented for claim 1. See Appeal Br. 23-
34. For the reasons discussed above with respect to claim 1, we do not agree
with the Appellants' contention.
Specifically, regarding the first step of the Alice/Mayo analysis, the
Appellants recite the limitations of claim 7 and contend that they were not
considered by the Examiner (id. at 23-25; see also Reply Br. 2) and that the
Examiner's rejection "does not cite any decision that has held that outputting
a targeted computer-displayable friend highlight reel for computer
presentation to a user via a reviewing computing device, or any similar
concept, is an abstract idea" (Appeal Br. 25). We are unpersuaded by this
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argument because, as discussed above, the Examiner does look to the
language of the claim in making the determination that the claim is directed
to an abstract idea, and cites to and compares the stated abstract idea to
judicial decisions. See Final Act. 9; Ans. 4--5.See Final Act. 10; Ans. 5.
For the reasons discussed above with respect to claim 1, independent
claim 7 is directed to generating and displaying summarized and
personalized media content based on the evaluation of consumption
parameter data, akin to ones our reviewing court has deemed abstract in the
cases cited above. Here, the claim involves nothing more than receiving,
storing, and evaluating data of a specific content (i.e., friend consumption
data), and generating and presenting content based on the analysis, without
any particular inventive technology or description of how to achieve the
results in a non-abstract way- an abstract idea. See Elec. Power, 830 F .3d
at 1354; Two-Way Media. As discussed above, we find unpersuasive the
Appellants' arguments that the claim is not directed to an abstract idea
because it is not directed to a formula or a fundamental economic practice.
See Appeal Br. 27-31.
With regards to the Appellants' argument that claim 7 is analogous to
those of DDR Holdings (see Appeal Br. 25-27), we disagree for the reasons
provided above. To summarize, there is no indication here that the claimed
invention claims a solution "necessarily rooted in computer technology in
order to overcome a problem specifically arising in the realm of computer
networks." DDR Holdings, 773 F.3d at 1257. As discussed above, the
problem of "decreasing the time a user spends searching for and reviewing
representations of a friend's consumed content" (Appeal Br. 26; see also
Reply Br. 5 ("the problem of being unable to quickly review relevant content
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that was previously consumed on a computing device"), although requiring a
computer (see Appeal Br. 24--25; Reply Br. 3) existed prior to the Internet,
having been done manually. See Appeal Br. 26; see also Ultramercial, 772
F.3d at 716-17. And, as discussed above, the purported solution automates
that process using conventional computers/ devices and a network operating
in their normal capacities to receive, process, store, and analyze data of a
specific content, and generate and present content based on the analysis. See
Spec. i-fi-fl 17-125.
Under the second step of the Mayo/Alice framework, for the reasons
discussed above, we agree with and find supported the Examiner's
determination that the elements of claim 7, individually or as an ordered
combination, do not amount to significantly more than the above-identified
abstract idea. See Final Act. 9-10; Ans. 6-13. We are not persuaded of
Examiner error by the Appellants' arguments that assert the opposite. See
Appeal Br. 31-34.
Specifically, receiving, storing, identifying, generating, and outputting
data (see Appeal Br. 31) are well-understood, routine, and conventional
functions of a generic computer, including that used to perform the method
claimed. See supra. And, the Appellants repeat the arguments presented for
claim 1 that claim 7 improves computer functionality, is analogous to
example claim 4 of Example 23 of the July 2015 Update, and is analogous to
SiRF Tech. See Appeal Br. 31-34. For the reasons discussed above, these
arguments are not persuasive.
Thus, we sustain the Examiner's rejection under 35 U.S.C. § 101 of
independent claim 7 and of dependent claims 8-12, which rely on the same
arguments presented for claim 7 (Appeal Br. 34).
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Claim 13
The Appellants contend that dependent claim 13 is "patent eligible for
at least all of the reasons discussed with reference to claim 7." Appeal
Br. 34. The Appellants also repeat the argument presented for claim 7 that
the claims are not abstract because a court has not identified a similar
concept as claimed. Id. at 34. These arguments are not persuasive for the
reasons provided above with respect to claim 7.
The Appellants further argue that "claim 13 is directed to an even
more-specific method of receiving a selected upcoming event of the
interactive schedule and, in response, scheduling an appointment related to
the selected upcoming event, and thus is further removed from being
directed to an abstract idea." Id. This argument is unpersuasive because
"the abstract nature of the claims is not altered at step one by the existence
of claim limitations (much less characterizations in the specification) that
'add a degree of particularity' to the implementation of the abstract idea." In
re Eberra, 2018 WL 2077938, at *2.
In response to the Appellants' argument that the claims are "neither
anticipated nor rendered obvious by any prior art, thus demonstrating that
the specific limitations of claim 13 are neither routine nor conventional"
(Appeal Br. 34), as discussed above with respect to claim 5 and 6, we
emphasize that an abstract idea does not transform into an inventive concept
just because the prior art does not disclose or suggest it. See Mayo, 132
S. Ct. at 1304. Further, as discussed above with respect to claims 1 and 7,
receiving and scheduling, i.e., entering, data are well-understood, routine,
and conventional functions of a generic computer, including that used to
perform the method claimed.
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Thus, we sustain the Examiner's rejection under 35 U.S.C. § 101 of
dependent claim 13.
Claims 14, 15, and 17-20
The Appellants contend that independent claim 14 is patent-eligible
for substantially similar reasons as presented for claims 1 and 7. See Appeal
Br. 35--46. For the reasons discussed above with respect to claims 1 and 7,
we do not agree with the Appellants' contention.
Specifically, regarding the first step of the Alice/Mayo analysis, the
Appellants recite the limitations of claim 14 and contend that they were not
considered by the Examiner (id. at 35-36; see also Reply Br. 2) and that the
Examiner's rejection "does not cite any decision that has held that outputting
a computer-displayable community highlight reel for computer presentation
to a user via a reviewing computing device, or any similar concept, is an
abstract idea" (Appeal Br. 36). We are unpersuaded by this argument
because, as discussed above, the Examiner does look to the language of the
claim in making the determination that the claim is directed to an abstract
idea, and cites to and compares the stated abstract idea to judicial decisions.
See Final Act. 9-10; Ans. 4--5.
For the reasons discussed above with respect to claims 1 and 7,
independent claim 14 is directed to generating and displaying summarized
and personalized media content based on the evaluation of consumption
parameter data, akin to ones our reviewing court has deemed abstract in the
cases cited above. Here, the claim involves nothing more than receiving,
determining, storing, identifying, and filtering data of a specific content (i.e.,
friend and community consumption data), and compiling and presenting
content based on the analysis, without any particular inventive technology or
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description of how to achieve the results in a non-abstract way- an abstract
idea. See Elec. Power, 830 F.3d at 1354; Two-Way Media. As discussed
above, we find unpersuasive the Appellants' arguments that the claim is not
directed to an abstract idea because it is not directed to a formula or a
fundamental economic practice. See Appeal Br. 38--42.
With regards to the Appellants' argument that claim 14 is analogous
to those of DDR Holdings (see Appeal Br. 37-38), we disagree for the
reasons provided above. To summarize, there is no indication here that the
claimed invention claims a solution "necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks." DDR Holdings, 773 F.3d at 1257. As discussed
above, the problem of "decreasing the time a user spends searching for and
reviewing representations of a community's consumed content" (Appeal
Br. 38; see also Reply Br. 5 ("the problem of being unable to quickly review
relevant content that was previously consumed on a computing device"),
although requiring a computer (see Appeal Br. 37-38; Reply Br. 3) existed
prior to the Internet, having been done manually. See Appeal Br. 38; see
also Ultramercial, 772 F.3d at 716-17. And, as discussed above, the
purported solution automates that process using conventional
computers/devices and a network operating in their normal capacities to
receive, process, store, and analyze data of a specific content, and generate
and present content based on the analysis. See Spec. i-fi-fl 17-125.
Under the second step of the Mayo/Alice framework, for the reasons
discussed above, we agree with and find supported the Examiner's
determination that the elements of claim 14, individually or as an ordered
combination, do not amount to significantly more than the above-identified
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abstract idea. See Final Act. 9--10; Ans. 6-13. We are not persuaded of
Examiner error by the Appellants' arguments that assert the opposite. See
Appeal Br. 43--46.
Specifically, receiving, determining, storing, identifying, and filtering
data of a specific content, and compiling and presenting content based on the
analysis (see Appeal Br. 43) are well-understood, routine, and conventional
functions of a generic computer, including that used to perform the method
claimed. See supra; BASCOM, 827 F.3d at 1347--49. And, the Appellants
repeat the arguments presented for claims 1 and 7 that claim 14 improves
computer functionality, is analogous to example claim 4 of Example 23 of
the July 2015 Update, and is analogous to SiRF Tech. See Appeal Br. 31-
34. For the reasons discussed above, these arguments are not persuasive.
Thus, we sustain the Examiner's rejection under 35 U.S.C. § 101 of
independent claim 14 and of dependent claims 15 and 17-20, which rely on
the same arguments presented for claim 14 (Appeal Br. 46).
Claim 16
The Appellants contend that dependent claim 16 is "patent eligible for
at least all of the reasons discussed with reference to claim 14." Appeal
Br. 46. The Appellants also repeat the argument presented for claim 14 that
the claims are not abstract because a court has not identified a similar
concept as claimed. Id. These arguments are not persuasive for the reasons
provided above with respect to claim 14.
The Appellants further argue that:
claim 16 is directed to an even more-specific method of basing
the identifying of relevant community media units on one or
more of a threshold number of times a particular media unit has
been consumed in a time period and a threshold number of
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consumptions of the particular media unit in association with the
friend identifiers.
Id. This argument is unpersuasive because "the abstract nature of the claims
is not altered at step one by the existence of claim limitations (much less
characterizations in the specification) that 'add a degree of particularity' to
the implementation of the abstract idea." In re Eberra, 2018 WL 2077938,
at *2.
In response to the Appellants' argument that the claims are "neither
anticipated nor rendered obvious by any prior art, thus demonstrating that
the specific limitations of claim 16 are neither routine nor conventional"
(Appeal Br. 46), as discussed above with respect to claims 5, 6, and 13, we
emphasize that an abstract idea does not transform into an inventive concept
just because the prior art does not disclose or suggest it. See Mayo, 132
S. Ct. at 1304. Further, as discussed above with respect to claims 1, 7, and
14, identifying data is a well-understood, routine, and conventional function
of a generic computer, including that used to perform the method claimed.
Thus, we sustain the Examiner's rejection under 35 U.S.C. § 101 of
dependent claim 16.
Rejections II-VII - Obviousness-§ 103 (a)
Rejection II- Claims 1 and 3---6
We agree with the Appellants' contention that the Examiner does not
adequately show that the prior art teaches "identifying relevant media units
based on one or more consumption parameters" as defined in limitation ( d)
of independent claim 1, and generating a personal highlight reel including
media events representative of the identified media units, as recited in
limitation (e) of claim 1. Appeal Br. 49-50.
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The Examiner relies on the combination of Horowitz and Dunk for
teaching these limitations. See Final Act. 11-14; Ans. 18-19. Specifically,
the Examiner finds, in relevant part, that limitation ( d) of automatically
computer-evaluating consumption parameters of each of the media units to
identify relevant personal media units, the consumption parameters
including a time at which the units was consumed by the identified user, is
met by Horowitz's disclosure of a slider that permits a user to select a period
of time in which first and second pluralities of media accesses took place
and of an interface that provides the media access patterns of consumers in
relation to the parameter to a user. See Final Act. 11-13 ( citing Horowitz
,r 5); Ans. 18. The Examiner further finds that Dunk teaches generating a
personal highlight reel including media events representative of the relevant
media units, as recited in limitation ( e) of claim 1 (see id. at 13-14 ( citing
Dunk ,r,r 61, 64, Figs. 4--8)) and determines that:
it would have been obvious to one of ordinary skill in the art at
the time of the invention to combine the media provider system
of Horowitz and the method/system for media asset with the
system for providing media content of Dunk because the media
player provides an efficient means for presenting and
manipulating media content via a carousel on a user device
([Dunk,] Figure 5, paragraph 66).
Id. at 15; Ans. 18-19.
However, the Examiner has not adequately shown that the
combination of Horowitz and Dunk teaches evaluating consumption
parameters to identify relevant media units and generating content with
media events that are representative of the identified relevant media units.
The Examiner does not explain, such that one would readily understand,
what the Examiner considers the relevant media units in Horowitz of which
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media events in Dunk are representative. To the extent the Examiner
considers Horowitz's media access patterns provided in response to a
selected time period parameter to be the relevant media units (see Final
Act. 12-13; Ans. 18) and Dunk's media content of a file to be the media
event representative of the media unit (see Final Act. 14; Ans. 18), the
Examiner does not explain how Dunk' s media content/file is representative
of the identified media access pattern. As such, one of ordinary skill in the
art would not understand how the combination of Horowitz and Dunk
teaches the limitations of ( d) and ( e) of generating content with media events
representative of relevant media units identified by defined parameters, as
required by independent claim 1.
Rejection III - Claims 7, 8, and 10
We agree with the Appellants' contention that the Examiner does not
adequately show that the prior art teaches "automatically computer-
evaluating consumption parameters of only the friend media units to
identify, with the media consumption aggregator computing device, one or
more relevant friend media units" and generating a highlight reel including a
"collection of only friend media events representative of the one or more
relevant friend media units arranged in a computer-determined viewing
order," as recited in independent claim 7. See Appeal Br. 53, 67.
The Examiner relies on the combination of Horowitz, Crawford, and
Chijiiwa for teaching these limitations. See Final Act. 22-24; Ans. 20-21.
Specifically, the Examiner finds, in relevant part, that the limitation of
automatically computer-evaluating consumption parameters of friend media
units to identify relevant friend media units is taught by Crawford's
disclosure of a social network server that makes available content and
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automatically communicates images or videos from a first user to friends
based on location information. See Final Act. 22-23 ( citing Crawford
,r,r 20, 26); Ans. 20. The Examiner determines that:
it would have been obvious to one of ordinary skill in the art at
the time of the invention to combine the method/system of
presenting media access patterns of Horowitz and the
method/system for operating a social network application of
Crawford because it provides an efficient means for users to view
uploaded images from their friends and associating images or a
video with a user's account ([Crawford,] paragraph 21, 26).
Final Act. 23.
The Examiner further finds that Chijiiwa teaches generating a friend
highlight reel including a collection of friend media events representative of
the relevant friend media units, as recited in claim 7. See Final Act. 23-24
(citing Chijiiwa ,r,r 46, 47, Fig, 4). The Examiner determines that:
It would have been obvious to one of ordinary skill in the art at
the time of the invention to combine the method/system of
presenting media access patterns of Horowitz and the
method/system for operating a social network application of
Crawford with the method/system for enhanced user interaction
of a social network site of Chijiiwa because it provides an
efficient means for users to access friend lists and share content
(images, photos, video and the like) with friends via media player
modules ([Chijiiwa,] Figure 4, paragraphs 3, 37, 38, 47).
Id. at 25.
However, the Examiner has not adequately shown that the
combination of Horowitz, Crawford, and Chijiiwa teaches evaluating
consumption parameters of friend media units to identify relevant friend
media units and generating content with only friend media events that are
representative of the identified relevant friend media units. The Examiner
does not explain, such that one would readily understand, what the Examiner
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considers the consumption parameters of friend media units that are
evaluated in Crawford, what the Examiner considers the relevant friend
media units identified in Crawford, or what the Examiner considers the
friend media events in Chijiiwa that are representative of the identified
relevant friend media units. To the extent the Examiner considers
Horowitz's media access patterns provided in response to a selected time
period parameter to be the relevant media units (see Final Act. 12-13), the
Examiner does not explain how Crawford identifies relevant friend media
units based on the evaluation of the access patterns, or how Chijiiwa's media
content is representative of the identified units based on the access patterns.
To the extent the Examiner considers Crawford's uploading, organizing, and
receiving of images/videos as the consumption parameters of friend media
units (see Ans. 21 ), the Examiner does not adequately explain how Crawford
identifies relevant friend media units based on the evaluation of the
uploading, organizing, and receiving of images, or how Chijiiwa's media
content is representative of the identified units. As such, one of ordinary
skill in the art would not understand how the combination of Horowitz,
Crawford, and Chijiiwa teaches the limitations of generating content with
friend media events representative of relevant friend media units identified
by friend consumption parameters, as required by independent claim 7.
Based on the foregoing, we do not sustain the Examiner's rejection
under 35 U.S.C. § 103(a) of independent claim 7 and of dependent claims 8
and 10.
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Rejections IV and V - Claims 9 and 11-13
Claims 9 and 11-13 ultimately depend from independent claim 7.
The Examiner relies on the same findings as for claim 7 for the rejection of
these dependent claims. Therefore, we also do not sustain the Examiner's
rejections under 35 U.S.C. § 103(a) of claims 9 and 11-13 for the same
reasons discussed above with respect to claim 7.
Rejection VI - Claims 14 and 16-20
We agree with the Appellants' contention that the Examiner does not
adequately show that the prior art teaches "computer-processing only the
friend consumption data to identify, with the media consumption aggregator
computing device, relevant community media units, based at least on a
consumption frequency of the media units" and compiling a highlight reel
including a "collection of only community media events representative of
the filtered relevant community media units," as recited in independent
claim 14. See Appeal Br. 61---62, 70.
The Examiner relies on the combination of Horowitz, Crawford, and
Dunk for teaching these limitations. See Final Act. 34--37; Ans. 24.
Specifically, the Examiner finds, in relevant part, that the limitation of
computer-processing friend consumption data to identify relevant
community media units is taught by Crawford's disclosure of a social
network server that makers available content and automatically
communicates images or videos from a first user to friends based on location
information. See Final Act. 34--35 (citing Crawford ,r,r 20, 26). The
Examiner finds that Dunk also teaches this processing limitation in that
Dunk teaches collecting subscriber usage information indicative of user
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interests, such as how many times a video was watched or liked,
communicating that information to the media service provider, determining
the relevance of particular media content by scoring items using a relevance
engine, and using that relevance information to affect the media content
delivered to a subscriber's device. See id. at 3 5-3 6 ( citing Dunk ,r,r 63, 114,
129). The Examiner further finds that Dunk teaches compiling a community
highlight reel including a collection of community media events
representative of filtered relevant community media units. See Final
Act. 36-37 (citing Dunk ,r,r 61, 63, 64, 69, Figs. 4--8). The Examiner
determines that:
it would have been obvious to one of ordinary skill in the art at
the time of the invention to combine the media provider system
of Horowitz and the method/system for managing a social
network application account of Crawford with the system for
providing media content of Dunk because the media player
provides an efficient means for presenting and manipulating
media content via a carousel on a user device ([Dunk,] Figure 5,
paragraph 66).
Id. at 38.
However, as with claims 1 and 7, the Examiner has not adequately
shown that the combination of Horowitz, Crawford, and Dunk teaches
processing of friend consumption data to identify relevant community media
units and generating content with only community media events that are
representative of filtered identified relevant community media units. The
Examiner does not explain, such that one would readily understand, what the
Examiner considers the friend consumption data that are processed in
Crawford and/or Dunk, what the Examiner considers the relevant
community media units identified in Crawford and/or Dunk, or what the
Examiner considers the community media events in Dunk that are
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representative of the identified relevant community media units. To the
extent the Examiner considers Horowitz's media access patterns provided in
response to a selected time period parameter to be the relevant media units
(see Final Act. 12-13), the Examiner does not explain how Crawford
identifies relevant community media units based on the evaluation of the
access patterns. To the extent the Examiner considers Crawford's
uploading, organizing, and receiving of images/videos as the friend
consumption data (see Final Act. 34--35; Ans. 21 ), the Examiner does not
adequately explain how Crawford identifies relevant community media units
based on the evaluation of the uploading, organizing, and receiving of
images.
Further, to the extent the Examiner considers Dunk's statistics on
videos watched, liked, etc. as the friend consumption data that are used to
identify relevant community content that are then compiled and outputted
(see Final Act. 35-38), the Examiner does not explain why one of ordinary
skill in the art would combine Dunk's carousel of relevant content with
Horowitz's presentation of access patterns and Crawford's social network.
Although the Examiner provides the reason for combining the art as
providing "an efficient means for presenting and manipulating media content
via a carousal" (Final Act. 3 8), the Examiner does not adequately explain
how Dunk's use of statistics combine (see id. at 35-38) with Crawford's
social network server that receives, stores, and makes available content data
(see id. at 32-35) and Horowitz's receiving of pattern/consumption data (see
id. at 31-32) to make "an efficient means for presenting and manipulating
media content via a carousal maps" (id. at 38). The Examiner does not
provide sufficient articulated reasoning with rational underpinning to
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support a legal conclusion of obviousness. See KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398,418 (2007).
Based on the foregoing, we do not sustain the Examiner's rejection
under 35 U.S.C. § 103(a) of independent claim 14 and of dependent
claims 16-2 0.
Rejection VII - Claim 15
Claim 15 depends from independent claim 14. The Examiner relies
on the same findings as for claim 14 for the rejection of this dependent
claim. Therefore, we also do not sustain the Examiner's rejection under
35 U.S.C. § 103(a) of claim 15 for the same reasons discussed above with
respect to claim 14.
DECISION
The Examiner's rejection of claims 1 and 3-20 under 35 U.S.C. § 101
(Rejection I) is AFFIRMED.
The Examiner's rejections of claims 1 and 3-20 under 35 U.S.C.
§ 103(a) (Rejections II-VII) are 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
32