Ex Parte Hammad et al

Patent Trial and Appeal Board

Nov 30, 2017

12563586 (P.T.A.B. Nov. 30, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/563,586 09/21/2009 Ay man Hammad 016222-044010US 6707
66945 7590 12/04/2017
KILPATRICK TOWNSEND & STOCKTON LLP/VISA
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
EXAMINER
PRESTON, JOHN O
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
ipefiling@kilpatricktownsend.com
EDurrell @ kilpatrickto wnsend .com
KT S Docketing2 @ kilpatrick. foundationip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AYMAN HAMMAD AND MARK CARLSON
Appeal 2016-005367
Application 12/563,586
Technology Center 3600
Before ST. JOHN COURTENAY III, JOHN D. HAMANN, and
JASON M. REPKO Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—3, 6—12, 14—16, 19-21, 23—26, and 28—30, which are all the claims
pending in this application. Claims 4, 5, 13, 17, 18, 22, and 27 are
cancelled. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.
STATEMENT OF THE CASE
Introduction
Appellants’ invention relates to “systems and methods for generating
intelligent alert messages.” (Spec. 1 5).
Appeal 2016-005367
Application 12/563,586
Exemplary Claim
Claim 1 is exemplary of the invention and reads as follows.
1. An intelligent messaging system comprising:
a database comprising alert customization data; and
a notification server computer coupled to the database, wherein
the notification server computer comprises a processor and a
computer-readable medium coupled to the processor, the
computer-readable medium comprising code executable by the
processor for implementing a method comprising:
receiving transaction data for a transaction in an authorization
request message from a merchant;
identifying merchant information from the transaction data for
the transaction, the merchant information including one or more
of a merchant identifier, a merchant location, and a merchant
category code;
accessing the database comprising the alert customization data;
[LI] selecting an intelligent alert message template for the
transaction based on the merchant information from the
received transaction data, the selected intelligent alert message
template being unique to the merchant;
[L2] generating an intelligent alert message based on the
alert customization data, the intelligent alert message including
the intelligent alert message template and one or more data
elements in the transaction data; and
sending the intelligent alert message to a user device to confirm
that the transaction has been performed, wherein the intelligent
alert message has text that depends on the alert customization
data.
(Contested limitations LI and L2 are bracketed and emphasized in bold and
italics).
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Rejections
A. Claims 1—3, 6—12, 14—16, 19-21, 23—26, and 28—30 are rejected under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter
(Final Act. 3—4).
B. Claims 1—4, 6, 7, 15, 16, 24—26, 28, and 29 are rejected under pre-
AIA 35 U.S.C. § 103(a) as being obvious over the combined teachings
and suggestions of Wilson (US 5,539,189; Jul. 23, 1996) in view of
Asikainen (US 6,647,272 Bl; Nov. 11, 2003).
C. Claims 8—12, 14, 19-21, and 23 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Wilson, Asikainen, and Meador et al. (US 7,431,202
Bl; Oct. 7, 2008) (hereinafter “Meador”).
Issues on Appeal
Did the Examiner err in rejecting claims 1—3, 6—12, 14—16, 19—21,
23—26, and 28—30 under 35 U.S.C. § 101, as being directed to patent-
ineligible subject matter?
Did the Examiner err in rejecting claims 1—3, 6—12, 14—16, 19—21,
23—26, 28, and 29 under pre-AIA 35 U.S.C. § 103(a), as being obvious over
the cited combinations of references?1
ANALYSIS
Rejection A of Claims 1—3, 6—12, 14—16, 19—21, 23—26, and 28—30
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
1 We note the Examiner does not set forth a rejection for dependent claim
30 under § 103 rejections B or C.
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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. v.
CLS BankInt 7, 134 S. Ct. 2347, 2354 (2014) (quoting Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). The
Supreme Court in Alice reiterated the two-step framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132
S. Ct. 1289, 1300 (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, such as an
abstract idea. Abstract ideas may include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Id. at 2355—57.
If the claims are not directed to a patent-ineligible concept, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’
to determine whether the additional elements ‘transform the nature of the
claim’ into a patent-eligible application.” Alice, 134 S. Ct. at 2355 (quoting
Mayo, 132 S. Ct. at 1298, 1297).
We, therefore, look to whether the claims focus on a specific means or
method that improves the relevant technology, or instead are directed to a
result or effect that itself is the abstract idea, and merely invoke generic
processes and machinery. See Enfish, LLC v. Microsoft Corp., 822 F.3d
1327, 1336 (Fed. Cir. 2016).
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Step 1
Turning to the first part of the Alice!Mayo analysis, the Examiner
concludes the claims are directed to “to the abstract idea of an intelligent
alert system.” (Final Act. 3).
Regarding A lice Step 1, Appellants contend, inter alia:
Here, the alleged abstract idea of “an intelligent alert system” is
not the analogous to any of the “abstract ideas” that have been
identified by the courts or in the USPTO's July 2015 Interim
Eligibility Guidance for Identifying Abstract Ideas, and any
such analogous case. In addition, the Final Office Action has
provided no explanation or similarity to any concept the courts
have identified as abstract. As such, the Examiner has failed to
establish a prima facie case of patent ineligibility.
The rejection is also improper, because the Examiner has
also failed to provide any evidence which establishes that “an
intelligent alert system” is an abstract idea. In PNC
Bank v. Secure Axcess, LLC, the PTAB found that there was not
sufficient evidence to demonstrate that the placing of a trusted
stamp or seal on a document was a fundamental economic
practice or a building block of the modem economy, noting that
in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.
there were various references cited on the record that related to
the concept of intermediated settlement (the abstract idea in
Alice). PNC Bank, CBM2012-00100, PTAB, September 9,
2014. Likewise, here, the Examiner has failed to produce any
evidence that establishes that “an intelligent alert system” is an
“abstract idea.” As such, the Examiner has failed to established
a prima facie case of unpatentability under 35 U.S.C. 101 for
yet another reason.
Since claim 1 is not directed to an abstract idea, there
is no need for the analysis to proceed to Step 2B of the
flowchart.
(App. Br. 8—9) (emphasis added in bold).
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However, we find Appellants’ arguments (id.) ignore the
transactional features of the claims, and focus solely on the intelligent alert
system feature. We consider Appellants’ claims as a whole, under a broad
but reasonable interpretation. See n.2, infra.
Appellants’ independent claim 1 is directed to an “intelligent
messaging system” pertaining to transaction data:
“receiving transaction data for a transaction in an
authorization request message from a merchant; identifying
merchant information from the transaction data for the
transaction, the merchant information including one or more of
a merchant identifier, a merchant location, and a merchant
category code; [and] selecting an intelligent alert message
template for the transaction based on the merchant information
from the received transaction data, the selected intelligent
alert message template being unique to the merchant. . . .”
(emphasis added).
Similarly, independent claims 8 and 14 are broadly directed to methods
pertaining to the processing of transaction data with a merchant.
Therefore, we conclude all claims on appeal are directed to the
abstract idea of a fundamental economic practice, i.e., the processing of
financial transactions which trigger intelligent alert messages. Our
reviewing court has found similar methods to be abstract ideas. See e.g.,
Dealertrack, Inc. v. Huber, 674 F.3d 1315 (Fed. Cir. 2012) (processing loan
information); Bancorp Servs., L.L.C. v. Sun LifeAssur. Co. of Canada
(U.S.), 687 F.3d 1266 (Fed. Cir. 2012) (managing an insurance policy).
Applying this guidance to the claims presented here on appeal, we
agree with the Examiner’s conclusion that claims 1—3, 6—12, 14—16, 19—21,
23—26, and 28—30 are directed to an abstract idea.
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Step 2
Because the claims are directed to an abstract idea, we turn to the
second part of the Alice!Mayo analysis. We analyze the claims to determine
if there are additional limitations that individually, or as an ordered
combination, ensure the claims amount to “significantly more” than the
abstract idea. Alice, 134 S. Ct. at 2357.
Regarding A lice, Step 2, Appellants contend, inter alia:
Here, it is clear that the claims recite additional features to
ensure that the alleged exception of an “intelligent alert system”
is not monopolized. For example, as explained in detail below,
the steps including “selecting an intelligent alert message
template for the transaction based on the merchant information
from the received transaction data, the selected intelligent alert
message template being unique to the merchant; [and]
generating an intelligent alert message based on the alert
customization data, the intelligent alert message including the
intelligent alert message template and one or more data
elements in the transaction data” limit any alleged “intelligent
alert system” to a specific, novel, and inventive intelligent alert
system. As noted above, these limitations define and make the
present claims patentable over the prior art of record so they
must recite “significantly more.”
(App. Br. 9).
Appellants’ arguments do not persuade us the Examiner erred.
Appellants essentially recite claim limitations without any persuasive
explanation of how the limitations either individually, or as an ordered
combination, amount to an inventive concept that converts the abstract idea
into patent-eligible subject matter (Id. ).
To the extent Appellants argue the claims “must recite ‘significantly
more,’” because the “limitations define and make the present claims
patentable over the prior art of record” (id.), we note that “[eligibility and
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novelty are separate inquiries.” Two-Way Media Ltd. v. Comcast Cable
Communications, LLC, 874 F.3d 1329, 1340 (Fed Cir. 2017); see also
Affinity Labs of Texas, LLCv. DIRECTV, LLC, 838 F.3d 1253, 1263 (Fed.
Cir. 2016) (holding that “even assuming” that a particular claimed feature
was novel does not “avoid the problem of abstractness”). Moreover, “a
claim for a new abstract idea is still an abstract idea.” Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016).
We conclude Appellants’ independent claims 1, 8, and 14 are each
directed to utilizing a generic processor, i.e., a computer server and/or user
device in combination with a database to automate the process of the
intelligent message system to deliver transaction alerts to a user device.
However, the Supreme Court guides: “the mere recitation of a generic
computer cannot transform a patent ineligible abstract idea into a patent-
eligible invention.” See Alice, 134 S. Ct. at 2358.
Nor have Appellants shown that the claims (directed to the processing
of financial transactions which trigger intelligent alert messages) improve
the functioning of the computer itself and amount to significantly more than
the abstract idea of a fundamental economic practice. See, e.g.,
BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,
1348 (Fed. Cir. 2016) (“An abstract idea on ‘an Internet computer network’
or on a generic computer is still an abstract idea.”); Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (“We have repeatedly
held that such invocations of computers and networks that are not even
arguably inventive are insufficient to pass the test of an inventive concept in
the application of an abstract idea.”) (Internal quotations omitted).
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Regarding the method or process claims on appeal, “a method that can
be performed by human thought alone is merely an abstract idea and is not
patent-eligible under § 101.” CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1373 (Fed. Cir. 2011).
Nor do we find persuasive Appellants’ arguments (App. Br. 11),
which refer to DDR Holdings, LLC v. Hotels.com, 773 F.3d 1245 (Fed. Cir.
2014), as relevant authority. We conclude Appellants’ claimed solution is
not rooted in computer technology, such that the invention on appeal
overcomes a problem specifically arising in the realm of computer networks,
as was the case presented in DDR. (Id. at 1257).
Applying the aforementioned guidance here, we conclude Appellants’
claims are not directed to an improvement in computer functionality, or
database functionality, or network functionality. Therefore, we conclude that
none of the claim limitations, viewed “both individually and as an ordered
combination,” amount to significantly more than the judicial exception in
order to sufficiently transform the nature of the claims into patent-eligible
subject matter. See Alice, 134 S. Ct. at 2355 (internal quotations omitted)
(quoting Mayo, 132 S. Ct. at 1297).
For at least the aforementioned reasons, and on this record, Appellants
have not persuaded us the Examiner erred. Accordingly, we sustain the
Examiner’s rejection under 35 U.S.C. § 101 of all claims on appeal.2
2 To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv).
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Rejection B of Claim 1 under pre-AIA 35 U.S.C. § 103(a)
Issue: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by
finding the cited combination of Wilson, and Asikainen teaches or suggests
contested limitations LI and L2:
[LI] selecting an intelligent alert message template for the
transaction based on the merchant information from the
received transaction data, the selected intelligent alert message
template being unique to the merchant;
[L2] generating an intelligent alert message based on the
alert customization data, the intelligent alert message including
the intelligent alert message template and one or more data
elements in the transaction data;
within the meaning of independent claim l?3 (Emphasis added).
We have considered all of Appellants’ arguments and any evidence
presented. Regarding the Examiner’s rejection under § 103(a) of
independent claim 1, Appellants contend, inter alia:
The cited portion of Asikainen states that a first notification
message is sent when a credit transaction is performed, while a
second message is sent when a debit transaction is performed.
Asikainen, col. 3, lines 33-36. However, while the message in
Asikainen may be different for triggering events, Asikainen
only indicates that “the message generated by the
notification message includes information indicating which of
the triggering events of which occurrence is detected by the
detector.” Asikainen, col. 5, lines 63-66. This indication is
then used to generate an audible signal to the user that is
different for each triggering event, and “thereby the user of the
mobile station is alerted to the occurrence of the triggering
event.” Asikainen, col. 3, lines 44-46, and col. 6, lines 8-12.
3 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 111
F.3d 1048, 1054 (Fed. Cir. 1997).
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While Asikainen, col. 3, lines 30-33, describes a “banking
service-related event,” such as a debit or credit transaction, no
portion of Asikainen describes the “alert message being
unique to the merchant” or that the alert message is generated to
include an “intelligent alert message template and one or more
data elements in the transaction data,” as recited in claim 1.
(App. Br. 15).
Appellants further contend:
No portion of Asikainen describes generating or sending
messages based on triggering events related to different
merchants or using generating a message using a template
and one or more data elements from the transaction data.
At best, while different triggering events may be detected, the
notification to the user is only that a particular type of
triggering event occurred. The user in Asikainen is not
provided with any information specific to the transaction
beyond the type of triggering event that was triggered. As the
notification to the user is an audible or melodic tune associated
with the type of triggering event, the notification cannot convey
detailed information to the user that is based on the transaction
data. See Asikainen, col. 6, lines 64-67. The user in Asikainen
would have to conduct a further inquire to obtain the specifics
related to the triggering event that occurred.
(App. Br. 16) (emphasis added).
Regarding the contested intelligent alert message template, The
Examiner disagrees:
Asikainen teaches an alert system wherein a user can select a
unique alert to be sent to the user's device whenever a triggering
event or combination of triggering events occur that involves
the user's associated account (Asikainen: col 3, lines 30-50;
col 7, lines 5-60). .The messaging service can then detect the
user-defined triggering event, select an intelligent alert message
template for the transaction based on merchant information
from the monitored transaction data (the selected intelligent
alert message being unique to the merchant), and generate an
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intelligent alert message based on the alert customization data
(i.e. triggering event), the intelligent alert message including the
intelligent alert message template and one or more data
elements in the transaction data (e.g. a tune could signal a
transaction that involves a unique merchant, a unique account,
and whether a debit or credit occurred). In this case, the data
elements in the transaction data are represented by the
identifying the unique merchant and the type of transaction (i.e.
debit or credit). The template is the signal itself. Since
the user defines the triggering event in Asikainen, a triggering
event can be tailored for only transactions with a specific
merchant.
(Ans. 8-9).
In the Reply Brief (6), the Appellants respond to the Examiner’s new
findings regarding Asikainen’s audio signal as purportedly teaching or
suggesting the claimed intelligent alert message template:
The Examiner is now alleging that the “audio signal” in
Asikainen is a “template.”
The Examiner's interpretation that an “audio signal” in
Asikainen is a “template” is nonsensical. According to
Dictionary.com, a “template” is a “an electronic file with a
predesigned, customized format and structure . . . ready to be
filled in.” Clearly, an “audio signal” does not fit this definition
or any other reasonable definition of the word
“template.” Further, even if the “audio signal” in Asikainen
could be construed as a “template,” there is no teaching of a
“merchant specific” audio signal in Asikainen et al. For
example, col. 3, lines 45-47 of Asikainen describes audio
signals that are generated based upon whether the notification
message indicates a debit or credit to a user's account, not
whether the triggering event was for a specific merchant. In
fact, the word “merchant” is not even in Asikainen at all.
This is actually admitted by the Examiner as the
Examiner states at section 8 on page 10 of the Examiner's
Answer that “[njowhere in Asikainen is the user precluded from
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using merchant information to define a triggering event and its
associated alert.” The Examiner is alleging that the absence
of a “template being unique to the merchant” suggests that
Asikainen teaches the limitation. This again is nonsensical.
(emphasis added).
We turn to Appellants’ Specification flflf 62—63) for context
[0062] Various tables of different specific messages or message
templates may be associated with each of these data elements or
combinations of data elements. For example, a message
template under an MCC data element indicating a grocery store
might be “You purchased $ [insert purchased amount] of
groceries on January 4, 2009.” A message template under an
MCC data element indicating a gas station might include
“amount may vary” when an authorization request message is
sent from the fuel dispenser, and might include “You purchased
$ [insert purchase amount] in gas at [insert merchant name] on
[insert date] when the actual amount of
the gas purchase is determined.”
[0063] Further, under the MCC data elements, the message
templates can be further subdivided using other data elements
such as the location of the transaction or the native language of
the user. The location of the transaction can be determined
using a merchant identifier and the native language of the user
can be determined using the account number of the portable
consumer device (i.e., by checking for the address associated
with the account number). For instance, in the
prior example, grocery store message templates can be further
subdivided based upon the language of the cardholder.
(emphasis added).
Turning to the evidence relied upon by the Examiner, we note
Asikainen (col. 3,11. 23—25), describes: “The transducer generates an audio
signal to alert the user of the mobile station of the occurrence of the
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triggering event.” Asikainen (col. 7,11. 54—56) similarly describes: “When
detected at the mobile station, an audio tune is caused to be played to alert a
user of the mobile station of the occurrence of the triggering event.”
((emphasis added)).
As recently emphasized by our reviewing court:
Even when giving claim terms their broadest reasonable
interpretation, the Board cannot construe the claims “so broadly
that its constructions are unreasonable under general claim
construction principles.” Microsoft Corp. v. Proxyconn, Inc.,
789 F.3d 1292, 1298 (Fed. Cir. 2015). “[T]he protocol of giving
claims their broadest reasonable interpretation ... does not
include giving claims a legally incorrect interpretation”
“divorced from the specification and the record evidence.” Id.
(citations and internal quotation marks omitted); see PPC
Broadband, Inc. v. Corning Optical Commc'ns Rb\ LLC, 815
F.3d 747, 751-53 (Fed. Cir. 2016).
The correct inquiry in giving a claim term its broadest
reasonable interpretation in light of the specification is
not whether the specification proscribes or precludes some
broad reading of the claim term adopted by the examiner.
And it is not simply an interpretation that is not inconsistent
with the specification. It is an interpretation that
corresponds with what and how the inventor describes his
invention in the specification, i.e., an interpretation that
is “consistent with the specification.” In re Morris, 111
F.3d 1048, 1054 (Fed. Cir. 1997) (citation and internal
quotation marks omitted); see also In re Suitco Surface,
603 F.3d 1255, 1259-60 (Fed. Cir. 2010).
In re Smith Inti, Inc., No. 2016-2303, 2017 WF 4247407, at *5 (Fed.
Cir. Sept. 26, 2017).
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Applying this guidance here, we are constrained on this record to
reverse the Examiner’s obviousness rejection B of claim 1, and rejection B
of the corresponding associated dependent claims.
Although paragraphs 62 and 63 of the Specification provide examples
(not a definition per se) for the contested claim term “intelligent alert
message template,” on this record, we find a preponderance of the evidence
supports Appellants’ contention that the Examiner’s claim interpretation is
overly broad and unreasonable.
Thus, we find the Examiner has not fully developed the record to
show how the claimed contested “intelligent alert message template” is
reasonably taught or suggested by the audio alert signal in Asikainen.
Moreover, limitation LI (“selecting an intelligent alert message template”
is a separate and distinct claim term from limitation L2 “generating an
intelligent alert message.” We find the Examiner has blurred the
distinction between these separately recited claim terms.
Rejection C underpre-AIA 35 U.S.C. § 103(a)
In light of our reversal of rejection B of claims 1—4, 6, 7, 15, 16,
24—26, 28, and 29, supra, we also reverse Rejection C under § 103 of claims
8—12, 14, 19-21, and 23 for the same reasons, as argued by Appellants. On
this record, the Examiner has not shown how the additionally cited Meador
reference overcomes the aforementioned deficiency with the base
combination of Wilson and Asikainen, as discussed above regarding
independent claim 1.
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CONCLUSIONS
The Examiner did not err in rejecting claims 1—3, 6—12, 14—16, 19—21,
23—26, and 28—30 under 35U.S.C. § 101 as being directed to patent-
ineligible subject matter.
The Examiner erred in rejecting claims 1—3, 6—12, 14—16, 19—21, 23—
26, 28, and 29 under 35 U.S.C. § 103(a) as being obvious over the combined
teachings and suggestions of the cited references.
DECISION
We affirm the decision of the Examiner rejecting claims 1—3, 6—12,
14—16, 19-21, 23-26, and 28-30 under 35 U.S.C. § 101.
We reverse the decision of the Examiner rejecting claims 1—3, 6—12,
14—16, 19-21,23-26,28, and 29 under 35 U.S.C. § 103(a).
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See 37
C.F.R. § 41.50(a)(1).
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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