Ex Parte Gojkovic et al

Patent Trial and Appeal Board

Aug 21, 2018

11785435 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/785,435 04/18/2007
96592 7590 08/23/2018
FIS/FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER LLP
901 NEW YORK A VENUE
WASHINGTON, DC 20001-4413
FIRST NAMED INVENTOR
Mirko Gojkovic
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 1360.0395-00000 4245
EXAMINER
BEKERMAN,MICHAEL
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
jeffrey.berkowitz@finnegan.com
regional-desk@finnegan.com
michael. wrobel@fisglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIRKO GOJKOVIC, DARYL COLIN HALLIDAY, and
NENAD STOJANOVIC
Appeal2017-005923
Application 11/785,435 1
Technology Center 3600
Before ANTON W. PETTING, BRUCE T. WIEDER, and
MATTHEWS. MEYERS, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner's rejection of claims 1, 4--7, 12-24, 26-28, 30, 35--47, 49, and 50.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellants' invention "generally relates to processing loyalty rewards
programs." (Spec. 1.)
1 According to Appellants, the real party in interest is VALUECENTRIC
MARKETING GROUP, INC. (Appeal Br. 2.)
Appeal2017-005923
Application 11/785,435
Claims 1, 26, and 49 are the independent claims on appeal. Claim 26
is illustrative. It recites:
26. A method for processing a transaction in connection with
a loyalty rewards program, said method comprising:
identifying, via at least one processor, at least one
individual associated with the transaction;
receiving, via the at least one processor, information
associated with the transaction, the transaction comprising a use
of at least one tender;
storing data descriptive of each item purchase [sic] in the
transaction in a line item format, the line item data comprising
information associated with an identity of the purchased item, the
transaction, the at least one individual, and at least one promotion
related to the loyalty rewards program;
comparing the line item data with rules associated with the
loyalty rewards program;
determine whether the at least one individual is eligible for
the at least one promotion, based at least on
the rules associated with the loyalty rewards
program, and
at least one of demographic information or
transactions made by the at least one individual prior to the
transaction;
determining whether the at least one tender is eligible for
the at least one promotion based on the rules associated with the
loyalty rewards program;
determining, via the at least one processor, an amount
associated with the transaction eligible for the at least one
promotion, based at least on whether the at least on [sic]
individual and the at least one tender are eligible for the at least
one promotion; and
determining at least one reward based on the comparison,
the amount, and the at least one promotion.
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REJECTIONS
Claims 1, 4--7, 12-24, 26-28, 30, 35--47, 49, and 50 are rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
Claims 1, 4--7, 12-24, 26-28, 30, 35--47, 49, and 50 are rejected under
35 U.S.C. § I03(a), as unpatentable in view ofVoltmer
(US 2002/0143626 Al, pub. Oct. 3, 2002), Valliani (US 7,324,962 Bl, iss.
Jan. 29, 2008), and Kingsborough (US 2007/0022008 Al, pub.
Jan. 25, 2007).
ANALYSIS
The§ 1 OJ re;ection
"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title." 35 U.S.C. § 101. Section 101, however,
"'contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.'" Alice Corp. Pty. Ltd. v.
CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quoting Assoc.for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(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.
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Under the two-step framework, it must first be determined if "the
claims at issue are directed to a patent-ineligible concept." Id. If the claims
are determined to be directed to a patent-ineligible concept, e.g., an abstract
idea, then the second step of the framework is applied to determine if "the
elements of the claim ... contain[] an 'inventive concept' sufficient to
'transform' the claimed abstract idea into a patent-eligible application." Id.
at 2357 (citing Mayo, 566 U.S. at 72-73, 79).
With regard to step one of the Alice framework, the Examiner
determines that the "claims are directed to providing purchasing rewards and
incentives, which is a fundamental economic practice and/or a method of
organizing human activities," i.e., the claims are directed to an abstract idea.
(Final Action 2; see also Answer 2-3.)
Appellants disagree and argue that "[f]irst, the Examiner's assertion is
not supported by prior court decisions." (Appeal Br. 10.) Appellants also
argue:
Second, Appellant's [sic] claims are directed to neither
fundamental economic practice nor ineligible method of
organizing human activities. The Examiner asserted that "the
claims as a whole are directed to profile or transaction based
targeting or incentives which is a 'fundamental economic
practice'," citing Alice Corp., Bilski, buySAFE, Inc., and
Ultramercial Inc. Final Office Action, p. 8. However, as the
USPTO explained, buySAFE, Inc. ("creating a contractual
relationship") and Bilski ("hedging") "found concepts relating to
agreements between people or performance of financial
transactions abstract." July 2015 Update, p. 4. Alice Corp.
("mitigating settlement risk") and Bilski "found concepts
relating to mitigating risks abstract." Id. The Examiner has
provided nothing to show why Appellant's [sic] claims, or even
the purported idea, are similar to the above-identified concepts.
(Id. at 11-12.)
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Application 11/785,435
Under step one of the Alice framework, we "look at the 'focus of the
claimed advance over the prior art' to determine if the claim's 'character as a
whole' is directed to excluded subject matter." Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
The Specification provides evidence as to what the claimed invention
is directed. In this case, the Specification discloses that the invention
"generally relates to processing loyalty rewards programs." (Spec. 1.)
Claim 26 provides additional evidence. Claim 26 recites "[a] method for
processing a transaction in connection with a loyalty rewards program ...
comprising: identifying ... at least one individual associated with the
transaction," "receiving ... information associated with the transaction,"
"storing data descriptive of each item purchase[ d] ... in a line item format,"
"comparing the line item data with rules associated with the loyalty
program," "determin[ing] whether the ... individual is eligible for the ...
promotion," "determining whether ... the tender is eligible for the ...
promotion," "determining ... an amount associated with the transaction
eligible for the ... promotion," "and determining at least one reward."
Although we and the Examiner describe, at different levels of
abstraction, to what the claim is directed, it is recognized 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). That need not
and, in this case does not, "impact the patentability analysis." See id.
at 1241.
Circuit Judge Bryson, sitting in District Court for the Eastern District
of Texas, determined that " [ t] he core idea of ... providing a computer-based
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incentive award program-is plainly an unpatentable abstract idea by itself."
Kray IP Holdings, LLC v. Safeway, Inc., 107 F. Supp. 3d 677, 690 (E.D. Tx.
2015), ajf'd 639 F. App'x 637 (Fed. Cir. 2016). Additionally:
The use of incentive award programs in marketing is
indistinguishable in principle from the kinds of financial or
business operations that were at issue in Bilski and Alice, as well
as similar financial or business operations that were at issue in
various Federal Circuit decisions in which the claims have been
held patent-ineligible under section 101. See buySAFE, 765 F.3d
13 50 (guaranty service for on-line transactions); Accenture, 728
F.3d 1336 ("system for generating tasks to be performed in an
insurance organization"); Bancorp, 687 F.3d 1266 (method for
managing a life insurance policy, including generating the
policy, calculating fees, and determining the surrender value and
investment value of the policy); Dealertrack, Inc. v. Huber, 674
F.3d 1315 (Fed.Cir.2012) (method for processing credit
applications); Fort Properties, Inc. v. Am. Master Lease LLC,
671 F.3d 1317 (Fed.Cir.2012) (method for creating a real estate
investment instrument adapted for performing tax-deferred
exchanges).
Id. at 691.
In view of the above, we disagree with Appellants that "the
Examiner's assertion is not supported by prior court decisions" (see Appeal
Br. 10), and that e.g., Alice, Bilski, and buySAFE, are not similar to
Appellants' claimed invention (see id. at 11-12).
Additionally, Appellants seek to analogize the present claims to the
claims in McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1313 (Fed. Cir. 2016). (Reply Br. 17-18.) Appellants argue that the present
claims are not directed to an abstract idea because, like the claims in McRO,
"Appellant's [sic] claims employ a 'specific means or method' that enables a
'technological improvement over the existing manual ... techniques' for
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determining a reward." (Id. at 17, emphasis omitted.) We disagree. In
McRO, the court determined that
the claimed improvement here is allowing computers to produce
"accurate and realistic lip synchronization and facial expressions
in animated characters" that previously could only be produced
by human animators. As the district court correctly recognized,
this computer automation is realized by improving the prior art
through "the use of rules, rather than artists, to set the morph
weights and transitions between phonemes." The rules are
limiting in that they define morph weight sets as a function of the
timing of phoneme sub-sequences.
McRO, 837 F.3d at 1313 (citations omitted). Rather than a technological
improvement, here, the asserted improvement is to a business practice
regarding what information is stored, i.e., "line item data," as part of a
"method for processing a transaction in connection with a loyalty rewards
program." (See Claim 26.)
In the Reply Brief, Appellants, for the first time in this appeal,
separately argue dependent claim 17. (See Reply Br. 18-19.) Appellants'
new argument in the Reply Brief was not responsive to a new argument
raised in the Examiner's Answer. Under 37 CPR§ 4I.41(b)(2), we need not
consider new arguments absent a showing of good cause. No showing was
made. Nonetheless, we note that Appellants argue that "claim 17 recites a
'specific means or method' of tracking rewards in regards to returned or
exchanged merchandise via line-item stored data." (Id. at 18, citing Spec.
21, 11. 13-15.) But this is simply an argument regarding the kinds of
information stored, i.e., line item data, and additional routine steps for
processing that data, i.e., comparing, analyzing/determining, and issuing
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instruction based on the determination. 2 See, e.g., Elec. Power Grp., 830
F.3d at 1353-54. This does not change our analysis. In short, rather than a
technological improvement, as argued by Appellants (Reply Br. 17), "[t]hese
claims in substance [are] directed to nothing more than the performance of
an abstract business practice ... using a conventional computer. Such
claims are not patent-eligible." DDR Holdings, LLC, 773 F.3d at 1256.
In view of the above, we are not persuaded that the Examiner erred in
determining that the claims are directed to an abstract idea.
We next look to part two of the Alice framework which has been
described "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.'" Alice, 134 S. Ct. at 2355 (citing Mayo, 566 U.S. at 72-73).
2 Claim 17 recites:
1 7. The system of claim 14 wherein the method further
comprises:
comparing the line item data with stored data relating to
the at least one individual to determine whether or not there is a
return of the purchase;
when the comparison determines a return:
retracting the at least one reward;
determining whether the owed amount is
associated with the at least one line item; and
when the owed amount is associated with the at
least one line item:
refunding the owed amount if the owed
amount has been paid; and
voiding the owed amount when the owed
amount has not paid [sic].
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The Examiner determines that "the computer processor, and the steps
performed thereon, do not include additional elements that are sufficient to
amount to significantly more than the judicial exception because the only
other element in the claims besides the abstract ideas identified above is the
computer processor." (Final Action 8.)
Appellants disagree and argue that "the Examiner failed to consider
claim 1 as a whole." (Appeal Br. 13.) In particular, Appellants argue that
claim 1 (like claim 26),
recites a combination including: "storing data descriptive of each
item purchased in the transaction in a line item format, the line
item data comprising information associated with an identity of
the purchased item, the transaction, the at least one individual,
and at least one promotion related to the loyalty rewards
program" ( emphases added). The Final Office Action does not
provide any reasoned explanation as to whether the above-quoted
claim elements are "widely prevalent" or their "combination with
any other additional elements is well-understood, routine,
conventional activity." May 2016 Update, p. 4.
(Id. at 14, citing "Formulating a Subject Matter Eligibility Rejection and
Evaluating the Applicant's Response to a Subject Matter Eligibility
Rejection," Memorandum, Robert W. Bahr, Deputy Commissioner for
Patent Examination Policy, May 4, 2016.) Appellants further argue that
"[b ]y 'stor[ing] ... information on a line item level for each item purchased
in the transaction,' 'the system is capable of providing cumulative eligible
amounts and rewards for a particular individual, promotion, or other
criteria."' (Id. at 15, quoting Spec. 46).) But this is not an argument that a
unique or special data format improves the functioning of the processor, this
is an argument that storing more detailed information, i.e., line item data,
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addresses a particular business problem. Cf Bascom Global Internet Servs.,
Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51 (Fed. Cir. 2016). 3
The processor in Appellants' invention identifies data, receives data,
stores data, compares data, and analyzes the data to determine results based
on the data. Receiving, storing, and comparing/analyzing data are all routine
computer functions. See, e.g., Elec. Power Grp., 830 F.3d at 1353-54. And
Appellants' Specification discloses using generic computer components to
perform these functions. (Spec. 10-11.)
Nor do Appellants "claim a particular way of programming or
designing the software ... , but instead merely claim the resulting systems."
Apple, Inc., 842 F.3d at 1241. And "under the Mayo/Alice framework, a
claim directed to a newly discovered law of nature ( or natural phenomenon
or abstract idea) cannot rely on the novelty of that discovery for the
inventive concept necessary for patent eligibility." Genetic Techs. Ltd. v.
Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016).
3 In the Reply Brief, Appellants argue, for the first time in this appeal, that
because the claims recite storing data in a "line item format," the claims are
not directed to an abstract idea, i.e., an argument directed to step one of the
Alice framework. (See Reply Br. 11-12.) In the Appeal Brief, Appellants'
argument with regard to storing data in a "line item format" was only with
regard to step two of the Alice framework. Appellants' new argument in the
Reply Brief was not responsive to an argument raised in the Examiner's
Answer. Under 3 7 CPR § 41.41 (b )(2), we need not consider new arguments
absent a showing of good cause. No showing was made. Regardless, for the
reasons discussed, we do not find this argument persuasive that the claims
are not directed to an abstract idea. Additionally, even if we "defer[red] our
consideration of the specific claim limitations' narrowing effect for step
two," which we may do, see Bascom, 827 F.3d at 1349, for the same
reasons, we would still not be persuaded that the claims recite patent eligible
subject matter.
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Appellants also seek to analogize the claims to the claims in DDR
Holdings. (Appeal Br. 16.) We disagree. Unlike the claims here, the claims
in DDR Holdings "specify how interactions with the Internet are
manipulated to yield a desired result-a result that overrides the routine and
conventional sequence of events ordinarily triggered by the click of a
hyperlink." DDR Holdings, 773 F.3d 1245, 1258 (Fed. Cir. 2014) (emphasis
added). In other words, the invention claimed in DDR Holdings does more
than "simply instruct the practitioner to implement the abstract idea with
routine, conventional activity." See Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 715 (Fed. Cir. 2014); see also DDR Holdings, 773 F.3d at 1259.
Appellants other arguments have been considered but were not found
persuasive.
In view of the above, we agree with the Examiner that claim 26 is
directed to a judicial exception under § 101 without significantly more.
Independent claims 1 and 49 contain similar language and for similar
reasons we agree with the Examiner that the claims are directed to a judicial
exception under § 101 without significantly more. Dependent claims 4--7,
12-24, 27, 28, 30, 35--47, and 50, are not separately argued and fall with
claims 1, 26, and 49. See 37 C.F.R. § 4I.37(c)(l)(iv).
The§ 103 re;ection
Appellants assert:
Independent claim 1 recites a combination including, for
example:
determining whether the at least one individual is
eligible for the at least one promotion, based at least
on ... one of demographic information or
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transactions made by the at least one individual
prior to the transaction; ...
determining an amount associated with the
transaction eligible for the at least one promotion,
based at least on whether the at least one individual
and the at least one tender are eligible for the at least
one promotion.
(Appeal Br. 19.) Appellants argue that "nothing in paragraphs [0033],
[0034], or [0046] [ofVoltmer] teaches that the information on prior
transactions is used to determine whether a consumer is eligible for a
particular promotion, nor does it teach demographic data as determining the
consumer's eligibility for the promotion." (Id. at 20.) Appellants make a
similar argument regarding paragraphs 51 and 52 of Voltmer. (Id. at 21-22.)
The Examiner, however, finds that
[p ]aragraph 0044 states "manufacturer may provide frequency-
based incentives, such as every 10th purchase of a particular item
will be discounted by 50%". Paragraph 004 7 teaches "Retailer 1
may purchase 10,000 points from the system administrator and
then offer consumers 1 point for every $10 dollars spent in
Retailer 1 's store or, perhaps, some number of points for every
fifth transaction in the store". Therefore, Voltmer clearly teaches
prior transactions as determining eligibility.
(Answer 8.)
Appellants reply that "this statement at best teaches providing a
reward when the current purchase is a 10th purchase. It does not teach the
information on the prior 9 purchases is used to determine whether a
consumer is eligible for a particular promotion." (Reply Br. 27.)
As an initial matter, we note that claim 1 recites "determining whether
the at least one individual is eligible for the at least one promotion, based at
least on ... at least one of [(1 )] demographic information or [(2)]
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transactions made by the at least one individual prior to the transaction."
(Emphasis added.) Thus, applying a broadest reasonable interpretation, it is
sufficient for the Examiner to find that Voltmer teaches determining
eligibility for a promotion based on either demographic information or prior
transactions. Here, the Examiner finds that "Voltmer clearly teaches prior
transactions as determining eligibility." (Answer 8.)
Voltmer discloses "a system for implementing a loyalty program on a
network-wide level." (Voltmer, Abstract.) As discussed above, Voltmer
further discloses that "[f]or example, a manufacturer may provide
frequency-based incentives, such as every 10th purchase of a particular item
will be discounted by 50%." (Id. ,r 44.) In other words, Voltmer discloses
using the fact of the prior purchases/transactions to determine eligibility for
the promotion. Appellants do not persuasively argue why this does not teach
determining eligibility for a promotion based on transactions made prior to
the current transaction. Appellants also do not argue that the term
"transactions" should be interpreted, under a broadest reasonable
interpretation, to exclude purchases, or that the Specification discloses such
an interpretation.
Therefore, we do not find this argument persuasive of error.
Appellants also argue that
the cited prior art also fails to teach "determining an amount
associated with the transaction eligible for the at least one
promotion, based at least on whether ... the at least one tender
... [is] eligible for the at least one promotion," wherein at least
one reward is determined based on the amount, as recited in
claim 1. The Final Office Action correctly concedes Voltmer and
Valliani do not teach these elements, but asserts Kingsborough
teaches them, citing paragraphs [0018] and [0019] of
Kingsborough. This assertion is incorrect.
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(Reply Br. 28, citations omitted.)
However, Appellants did not argue this alleged deficiency in
Kingsborough in the Appeal Brief. Appellants' new argument in the Reply
Brief was not responsive to an argument raised in the Examiner's Answer.
Under 37 CPR§ 4I.41(b)(2), we need not consider new arguments absent a
showing of good cause. No showing is made.
Nonetheless, we note that the Examiner determined that
Kingsborough teaches determining eligibility in a promotion
(and, therefore, an eligible amount) based on a type of tender
used (Paragraphs 0018 and 0019). It would have been obvious
to one having ordinary skill in the art at the time the invention
was made to determine eligibility for a promotion based on a type
of tender used in order to promote the use of a specific desired
tender.
(Final Action 5.)
Kingsborough discloses "card-free programs provided by a merchant
to a customer, whereby the customer has access to functions such as
payment options and/or loyalty program benefits without needing to present
a physical card at a point of sale." (Kingsborough, Abstract.) In particular,
Kingsborough discloses that "a customer may be rewarded under a linked
loyalty program for using a specific card-free payment type such as an ACH
[automated clearing house] debit." (Id. ,r 19.) Thus, we agree with the
Examiner that "Kingsborough teaches determining eligibility in a promotion
... based on a type of tender used." (See Final Action 5.)
Nonetheless, Appellants argue that "Kingsborough does not teach or
suggest 'determining an amount associated with the transaction eligible for
the at least one promotion."' (Reply Br. 28.) But Kingsborough further
discloses that "a customer may be rewarded under a loyalty program for a
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cumulative purchase of a given number of a specific product [i.e., an amount
of product] using a specific card-free payment type such as an ACH debit."
(Kingsborough ,r 19; see also Spec. 9 ("The term 'eligible amount' as used
herein is meant to include any amount of items (goods and/ or services) or
currency deemed eligible for any promotion by any means consistent with
the present invention.").)
Finally, Appellants argue that "[ n Jo prima facie case of obviousness
has been established." (Appeal Br. 18.)
The USPTO carries its procedural burden of establishing a prima facie
case when its rejection satisfies the requirements of 35 U.S.C. § 132 by
notifying the applicant of the reasons for rejection, "'together with such
information and references as may be useful in judging of the propriety of
continuing the prosecution of [the] application."' In re Jung, 637 F.3d 1356,
1362 (Fed. Cir. 2011) (brackets in original, quoting 35 U.S.C. § 132(a)).
Particularly in view of Appellants' responses to the Examiner's stated
reasons for the rejection, we do not agree that the Examiner did not notify
Appellants of the reasons for the rejection.
In view of the above, we are not persuaded that the Examiner erred in
rejecting claim 1 under§ 103(a). Independent claims 26 and 49 contain
similar language and Appellants argue that they are allowable for similar
reasons. (Appeal Br. 23.) Appellants further argue that dependent claims 4--
7, 12-24, 27, 28, 30, 35--47, and 50, are allowable due to their dependence
from allowable claims. (Id.) We disagree for the reasons discussed above
with regard to claim 1.
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DECISION
The Examiner's rejection of claims 1, 4--7, 12-24, 26-28, 30, 35--47,
49, and 50 under 35 U.S.C. § 101 is affirmed.
The Examiner's rejection of claims 1, 4--7, 12-24, 26-28, 30, 35--47,
49, and 50 under 35 U.S.C. § 103(a) 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)(l )(iv).
AFFIRMED
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