Ex Parte Hathaway et al

Patent Trial and Appeal Board

Oct 12, 2018

13452553 (P.T.A.B. Oct. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/452,553 04/20/2012
10782 7590 10/16/2018
Target Brands Inc.
1000 Nicollet Mall, TPS-3165
Minneapolis, MN 55403
FIRST NAMED INVENTOR
Pat Hathaway
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.
201200482 2046
EXAMINER
LUDWIG, PETER L
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
10/16/2018 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):
USPTO.Mail@target.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAT HATHAWAY,
DEREK JOHNSON,
RA VISHANKAR JAGADEESHW ARA,
and SHAM KASHY AP
Appeal2017-001709
Application 13/452,553
Technology Center 3600
Before ANTON W. PETTING, CYNTHIA L. MURPHY, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Pat Hathaway, Derek Johnson, Ravishankar Jagadeeshwara, and Sham
Kashyap (Appellants) seek review under 35 U.S.C. § 134 of a final rejection
1 Our decision will make reference to the Appellants' Appeal Brief ("Appeal
Br.," filed May 27, 2016) and Reply Brief ("Reply Br.," filed November 11,
2016), and the Examiner's Answer ("Ans.," mailed April 10, 2016), and
Final Action ("Final Act.," mailed January 15, 2016).
Appeal2017-001709
Application 13/452,553
of claims 1-11 and 13-20, the only claims pending in the application on
appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ).
The Appellants invented a way of automating aspects of organizing
product placement in retail stores. Specification para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method for generating a product subgroup map with a
computing system, the method comprising:
[ 1] providing a user interface configured for
presenting data on product subgroups for a product
adjacency group
and
receiving user inputs associated with user-editable
mapping criteria for mapping the product subgroups in
the product adjacency group;
[2] configuring the user interface with indications of the
product subgroups that are user-selectable for editing the user-
editable mapping criteria of the product subgroups;
[3] receiving one or more user inputs indicating one or more
user-selected product subgroups from among the product
subgroups;
[ 4] configuring the user interface with user-selectable options
for editing the user-editable mapping criteria of the
product subgroups,
and
for assigning priority values to the user-editable mapping
criteria
wherein configuring the user interface with user-
selectable options for editing the user-editable mapping
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criteria of the product subgroups, and for assigning
priority values to the user-editable mapping criteria
includes
configuring the user interface with a user-
selectable strategy option and a user-selectable
strategy priority option,
wherein the user-selectable strategy option when
activated by a user allows the user to select one of
a plurality of positioning strategies for one or more
of the product subgroups,
and
the plurality of positioning strategies include
collision sensitivity and one of across aisle
affinity and adjacency affinity
wherein the user- selectable strategy priority
option when activated by a user allows the user to
assign a different priority ranking to each of the
plurality of positioning strategies;
[5] configuring the user interface with user-selectable
indications of a plurality of stores;
[ 6] receiving one or more user inputs for each of the user-
editable mapping criteria;
[7] generating a combined set of mapping criteria for the one or
more user-selected product subgroups based on
the one or more user inputs for each of the user-editable
mapping criteria and one or more non-user-editable
mapping criteria stored in a mapping rules data store;
[8] generating a plurality of product subgroup maps for the one
or more user-selected product subgroups for each of a plurality
of store layouts associated with each of a plurality of selected
stores as selected by the user inputs from among the stores,
and
based on the combined set of mapping criteria for the one
or more user-selected product subgroups and a set of
physical store layout data for each of the selected stores;
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[9] providing graphical outputs of the product subgroup maps
for the product adjacency group in each of the selected stores.
Claims 1-11 and 13-20 stand rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more .. (See Final Action 4.)
ISSUES
The issues of eligible subject matter tum primarily on whether the claims
recite more than abstract conceptual advice of what a computer is to provide
without implementation details.
ANALYSIS
Method claim 1 recites an interface for entering product subgroup data
and mapping criteria, configuring the interface with this data for selection
and entering sub-group selections, using the interface to edit criteria and
assign priority values, configuring the interface with a list of stores,
receiving mapping criteria, combining the mapping criteria, producing
product subgroup maps and output the maps graphically. Thus, claim 1
recites using an interface to receive, select, analyze, modify, and present
data. None of the limitations recite implementation details for any of these
steps, but instead recite functional results to be achieved by any and all
possible means. Data reception, selection, analysis and modification, and
display are all generic, conventional data processing operations to the point
they are themselves concepts awaiting implementation details. The
sequence of data reception-selection-analysis-display is equally generic and
conventional. The ordering of the steps is therefore ordinary and
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conventional. The remaining claims merely describe modelling parameters,
with no implementation details.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, []
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. [] If so, we then ask, "[ w ]hat
else is there in the claims before us? [] To answer that question,
[] consider the elements of each claim both individually and "as
an ordered combination" to determine whether the additional
elements "transform the nature of the claim" into a patent-
eligible application. [The Court] described step two of this
analysis as a search for an "'inventive concept"'-i.e., an
element or combination of elements that is "sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself."
Alice Corp., Pty. Ltd. v CLS Bank Intl, 134 S. Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012)).
To perform this test, we must first determine whether the claims at issue
are directed to a patent-ineligible concept. The Examiner finds the claims
directed to planning the placement of products in a store based on the
preamble, end result of the claims, and supporting specification. Final Act.
4.
Although the Court in Alice made a determination as to what the claims
were directed to, we find that this case's claims themselves and the
Specification provide enough information to inform one as to what they are
directed to.
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The preamble to claim 1 recites that it is a method for generating a
product subgroup map with a computing system. The steps in claim 1 result
in providing graphical outputs of the product subgroup maps for the product
adjacency group in each of the selected stores. The Specification at
paragraph 1 recites that the invention relates to automating aspects of
organizing product placement in retail stores. Thus, all this evidence shows
that claim 1 is directed to creating product subgroup maps for organizing
product placement in retail stores, i.e. modelling product placements. This is
consistent with the Examiner's finding.
It follows from prior Supreme Court cases, and Bilski (Bilski v Kappas,
561 U.S. 593 (2010)) in particular, that the claims at issue here are directed
to an abstract idea. The concept of modelling product placements is a
fundamental business practice long prevalent in our system of commerce.
The use of modelling product placements is also a building block of
ingenuity in retail sales. Thus, modelling product placements, like hedging,
is an "abstract idea" beyond the scope of§ 101. See Alice Corp. Pty. Ltd. at
2356.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of modelling
product placements at issue here. Both are squarely within the realm of
"abstract ideas" as the Court has used that term. See Alice Corp. Pty. Ltd. at
2357.
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Further, claims involving only data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing it, and
displaying certain results of the collection and analysis" are "a familiar class
of claims 'directed to' a patent ineligible concept"); see also In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data retrieval, analysis, and
transmission and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims not abstract because
they "focused on a specific asserted improvement in computer animation").
As such, claim 1 is directed to the abstract idea of receiving, analyzing, and
transmitting data.
The remaining claims merely describe modelling parameters. We
conclude that the claims at issue are directed to a patent-ineligible concept.
The introduction of a computer into the claims does not alter the analysis
at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it"' is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implement[t]" an abstract
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idea "on ... a computer," that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of "additional
feature[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (citations omitted).
"[T]he relevant question is whether the claims here do more than simply
instruct the practitioner to implement the abstract idea [] on a generic
computer." Alice Corp. Pty. Ltd., 134 S. Ct. at 2359. Here, they do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to enter, select, analyze, modify, and transmit data amounts to
electronic data query and retrieval----one of the most basic functions of a
computer. All of these computer functions are well-understood, routine,
conventional activities previously known to the industry. See Elec. Power
Grp. v. Alstom S.A., supra. Also see In re Katz Interactive Call Processing
Patent Litigation, 639 F.3d 1303, 1316 (Fed.Cir. 2011) ("Absent a possible
narrower construction of the terms 'processing,' 'receiving,' and 'storing,' ..
. those functions can be achieved by any general purpose computer without
special programming"). In short, each step does no more than require a
generic computer to perform generic computer functions. As to the data
operated upon, "even if a process of collecting and analyzing information is
'limited to particular content' or a particular 'source,' that limitation does
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not make the collection and analysis other than abstract." SAP America Inc.
v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018)
Considered as an ordered combination, the computer components of
Appellants' method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-selection-
analysis-display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (sequence of receiving, selecting, offering for exchange, display,
allowing access, and receiving payment recited an abstraction), Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (sequence of data retrieval, analysis, modification, generation, display,
and transmission), Two-Way Media Ltd. v. Comcast Cable Communications,
LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
Viewed as a whole, Appellants' method claims simply recite the concept
of modelling product placements as performed by a generic computer. To
be sure, the claims recite doing so by advising one to use a computer to enter
the various modelling parameters and let one know the model result. But
this is no more than abstract conceptual advice on the parameters for such
modelling product placements and the generic computer processes necessary
to process those parameters, and do not recite any particular implementation.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The Specification spells out
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different generic equipment and parameters that might be applied using this
concept and the particular steps such conventional processing would entail
based on the concept of modelling product placements under different
scenarios. They do not describe any particular improvement in the manner a
computer functions. Instead, the claims at issue amount to nothing
significantly more than an instruction to apply the abstract idea of modelling
product placements using some unspecified, generic computer. Under our
precedents, that is not enough to transform an abstract idea into a patent-
eligible invention. See Alice Corp. Pty. Ltd. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long "warn[ ed] ... against" interpreting § 101 "in
ways that make patent eligibility 'depend simply on the
draftsman's art."'
Alice Corp. Pty. Ltd. at 2360.
We are not persuaded by Appellants' argument that no claim is directed
to an abstract idea. Appeal Br. 10-11. We find supra that the claims are
directed to the abstract idea of modelling product placement.
We are not persuaded by Appellants' argument that all pending claims
include an inventive concept and thus are significantly more than any
alleged abstract idea. Appeal Br. 11-13. We find supra that the claim
limitations are generic computer operations in a generic conventional
sequence.
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We are not persuaded by Appellants' argument that the claims transform
specific data into a visual depiction that represents specific physical objects
or substances. Reply Br. 14. Transformation of data is itself an abstraction.
See Electric Power, supra. The claims do not recite how the visual
depiction is created, but only directs one to do so by any and all possible
means. Thus, the claims only recited abstract conceptual advice to somehow
present the data as a visual depiction.
We are not persuaded by Appellants' argument that
no consideration was given to the body of the claim in the
process of determining whether Claim 1 was directed to an
abstract idea. As such, the first step of the Alice analysis in the
Official Action dated January 15, 2016 is legally, materially
and fundamentally flawed requiring a reversal of the rejection
of Claim 1 as being patent ineligible.
Appeal Br. 18-19. Appellants conflate the two Alice steps. The first step
asks what the claims as a whole is directed to. If that is an abstract idea,
then the second step looks at the details. Looking at the body of claim 1, for
example, no particular technical implementations are recited, only
conventional data processing operations. Thus, the claim as a whole is not
directed to any particular technical implementation, but rather to what the
claim produces as a result of conventional operations. This is consistent
with Enfish as Appellants cite.
We do not read Alice to broadly hold that all improvements in
computer-related technology are inherently abstract and,
therefore, must be considered at step two. Indeed, some
improvements in computer-related technology when
appropriately claimed are undoubtedly not abstract, such as a
chip architecture, an LED display, and the like. Nor do we think
that claims directed to software, as opposed to hardware, are
inherently abstract and therefore only properly analyzed at the
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second step of the Alice analysis. Software can make non-
abstract improvements to computer technology just as hardware
improvements can, and sometimes the improvements can be
accomplished through either route. We thus see no reason to
conclude that all claims directed to improvements in computer-
related technology, including those directed to software, are
abstract and necessarily analyzed at the second step of Alice,
nor do we believe that Alice so directs. Therefore, we find it
relevant to ask whether the claims are directed to an
improvement to computer functionality versus being directed to
an abstract idea, even at the first step of the Alice analysis.
For that reason, the first step in the Alice inquiry in this case
asks whether the focus of the claims is on the specific asserted
improvement in computer capabilities (i.e., the self-referential
table for a computer database) or, instead, on a process that
qualifies as an "abstract idea" for which computers are invoked
merely as a tool.
Enfzsh, LLCv. Microsoft, 822 F.3d 1327, 1335-36 (Fed. Cir. 2016). The
first sentence discusses improvements in computer-related technology. The
meaning of this is clarified in the final sentence where the inquiry asks
whether the focus of the claims is on the specific asserted improvement in
computer capabilities or, instead, on a process that qualifies as an "abstract
idea" for which computers are invoked merely as a tool. As the claims recite
no improvement in computer technology, only conventional data reads,
analysis and modification, the computers are invoked merely as a tool.
As if in response to this, Appellants cite to the various user selectable
options, strategies, and priority rankings and generated groups recited in
claims 1. Appeal Br. 20-21. Such options, strategies, and priority rankings,
and even groups are themselves abstract ideas. User interfaces are inherent
parts of computers and generating data is a conventional computer operation.
We are not persuaded by Appellants' argument that
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where the novelty and/or non-obviousness of a claim is
attributable to features, steps and/or limitations other than the
abstract idea, law of nature or natural phenomenon, the novelty
and nonobviousness of the other features, steps and/or
limitations dictates a finding that the claim is patent eligible as
it necessarily includes an inventive concept and, therefore, is
significantly more than any alleged abstract idea, law of nature
or natural phenomenon
Appeal Br. 22. Appellants cite Ariosa Diagnostics, Inc., 788 F.3d at 1377
(Fed. Cir. 2015) and Internet Patents Corporation, 790 F.3d 1343, 1346-
1347 (Fed. Cir. 2015). Neither opinion expresses this as such. 2 In any
event, the instant claim 1 steps are all conventional computer operations, and
these are abstractions as such. See Electric Power supra. Indeed, the very
act of creating a model as such is an abstraction, as a model is an abstraction
of what it represents. Absent technical improvements in model building, the
steps to create a model express an abstract idea.
We are not persuaded by Appellants' argument that "[t]here is no
question that Claim 1 recites elements and/or functions that are not well-
understood, routine or conventional as these claims recite elements and/or
functions that are both novel and unobvious." Appeal Br. 25. As we find
supra, all of the recited computer operations are well understood and
conventional. It is only the data operated upon that presents novelty, but that
data is modelling data, including options, strategies, and priority rankings,
and groups. These represented entities are themselves abstractions, as they
2 Appellants go on to cite Ariosa "[ fJor process claims that encompass
natural phenomenon, the process steps are the additional features that
must be new and useful." Id. Appeal Br. 23. But this only expresses a
necessary, not a sufficient condition for patentability.
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only have meaning in the human mind, and as such are undeserving of
patentable weight. See In re Bernhart, 417 F.2d 1395, 1399 (CCPA 1969).
We are not persuaded by Appellants' argument that "the admittedly
novel and unobvious step of configuring the user interface with the detailed
and concrete user-selectable strategy option and user-selectable strategy
priority option is never addressed in the second step of the 101 analysis
set forth in the Final Rejection dated January 15, 2016." Appeal Br. 26.
This is the same argument as the prior argument couched as an Examiner
omission and is equally unpersuasive here.
We are not persuaded by Appellants' argument that "[t]he rejection of
Claim 1 in the Official Action dated January 15, 2016 is predicated on the
legally erroneous interpretation of 3 5 USC § 101 that to be considered
significantly more the claims must recite some improvement to physical
technology." Appeal Br. 28. Insofar as this is what the Examiner is saying,
we agree with the Appellants that Enfzsh allows for a software
implementation to be considered, in certain circumstances, a technological
improvement. Here, however, claim 1 recites only conventional data
processing operations in a conventional sequence.
We are not persuaded by Appellants' argument that the limitations are
novel and non-obvious. Appeal Br. 24. "[A] claim for a new abstract idea is
still an abstract idea. The search for a § 101 inventive concept is thus
distinct from demonstrating § 102 novelty." Synopsys, Inc. v. Mentor
Graphics Corporation, 839 F.3d 1138, 1151 (Fed. Cir. 2016).
We are not persuaded by Appellants' argument that
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Claim 1 transforms specific data into a visual depiction that
represents specific physical objects or substances. Claim 1
transforms user editable mapping criteria (specific data) and
one or more non-user-editable mapping criteria (specific data)
into a graphical output of at least one product subgroup map.
The graphical output is a visual depiction of one or more
product display areas in a brick and mortar store having specific
products. The display area and the specific products in the
graphical output are clearly representations of specific physical
objects or substances. Further, the transformation of data into a
graphical output of at least one product subgroup map is the
objective/purpose of Claim 1.
Appeal Br. 30. Again, claim 1 does not transform data into a visual
depiction in that it recites no method for doing so. Instead, it directs
someone to do so by any and all possible means.
Steps that do nothing more than spell out what it means to
"apply it on a computer" cannot confer patent
eligibility. . .. Requiring the use of a "software" "brain"
"tasked with tailoring information and providing it to the
user" provides no additional limitation beyond applying an
abstract idea, restricted to the Internet, on a generic computer.
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1370-71 (2015).
As for the dependent claims, they only further describe the above-
discussed conventional data manipulation, add more conventional data
manipulation, and/or introduce details regarding the source or content of
information
The remaining claims are system and computer program product variants
of the above method claims.
We are not persuaded by Appellants' argument that "[a]ll pending claims
are directed to inventions that include specific features which improve an
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existing technological process, i.e., optimizing product placement in a
store." Reply Br. 9-10. Appellants do not show how optimizing product
placement is a technological process. Retail staff have manually optimized
product placement since at least the advent of the department store. Merely
modelling the process in a computer does not change the process into a
technological one.
We are not persuaded by Appellants' argument that the claims contain an
inventive concept that is also found in the specific ordered combination of
the limitations, similar to the Federal Circuit's findings in Rapid Litigation
(Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir.
2016)). Reply Br. 9-10. The key fact in Rapid Litigation was the presence
of a new and useful laboratory technique for preserving hepatocytes. In
particular, the techniques, far from being conventional operations, included
subjecting hepatocytes that have been frozen and thawed to density gradient
fractionation, recovering the separated viable hepatocytes, and
cryopreserving the recovered viable hepatocytes.
The Court found
the claims are directed to a new and useful method of
preserving hepatocyte cells. Indeed, the claims recite a
"method of producing a desired preparation of multi-
cryopreserved hepatocytes." Through the recited steps, the
patented invention achieves a better way of preserving
hepatocytes. The '929 patent claims are like thousands of others
that recite processes to achieve a desired outcome, e.g.,
methods of producing things, or methods of treating disease.
Rapid Litig. Mgmt. Ltd., 827 F.3d at 1048--49. The Court acknowledged that
"each of the claims' individual steps (freezing, thawing, and separating) were
known independently in the art," but determined that "does not make the
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claim unpatentable." Id. at 1051. This was because "the claimed process
involves freezing and thawing hepatocytes twice. The individual steps of
freezing and thawing were well known, but a process of preserving
hepatocytes by repeating those steps was itself far from routine and
conventional." Id. Thus, the claims in Rapid Litigation repeated operations
not ordinarily repeated. In contrast, data processing routinely relies on
repletion. The instant claims do not even recite such repetition. On the other
hand, modelling for optimization routinely accepts parameters for options,
strategies, and priority rankings, and groups, as any Operations Research
treatise would show.
We are not persuaded by Appellants' argument that the claims contain an
inventive concept that is also found in the specific ordered combination of
the limitations, similar to the Federal Circuit's findings in BASCOM
(BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350
(Fed. Cir. 2016)). Reply Br. 10-11. Initially, we remind Appellants that
BASCOM did not find claims eligible, but rather that the challenging party
did not provide sufficient evidence to support a Fed. R. Civ. P. 12(b)(6)
motion to dismiss in which facts are presumed in the non-movant's favor.
The key fact in BASCOM was the presence of a structural change in
"installation of a filtering tool at a specific location, remote from the end-
users, with customizable filtering features specific to each end user. This
design gives the filtering tool both the benefits of a filter on a local computer
and the benefits of a filter on the ISP server." BASCOM, 827 F.3d at 1350.
The instant claims have no analogous structural benefit.
We are not persuaded by Appellants' argument that the claims are
analogous to those in Enfzsh. Reply Br. 15-16. The claims differ from
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those found patent eligible in Enfzsh, where the claims were "specifically
directed to a self-referential table for a computer database." Enfzsh, 822
F.3d at 1337. The claims thus were "directed to a specific improvement
to the way computers operate" rather than an abstract idea implemented
on a computer. Id. at 1336. Here, by contrast, the claims are not
directed to an improvement in the way computers operate. Though the
claims purport to accelerate the process of modelling product placement,
our reviewing court has held that speed and accuracy increases stemming
from the ordinary capabilities of a general purpose computer "do[] not
materially alter the patent eligibility of the claimed subject
matter." Bancorp Servs., L.L. C. v. Sun Life Assurance Co. of Can. (US.),
687 F.3d 1266, 1278 (Fed. Cir. 2012). Instead, the claims are more
analogous to those in FairWarning, 839 F.3d 1089 (Fed. Cir. 2016),
wherein claims reciting "a few possible rules to analyze audit log data"
were found directed to an abstract idea because they asked "the same
questions ( though perhaps phrased with different words) that humans in
analogous situations detecting fraud have asked for decades." 839 F.3d at
1094, 1095. Humans have tried out different (modelled) product placements
in department stores to meet constraints for decades, as it the nature of
physical retail stores to constrain the ways products can be placed in the
space.
As to the remaining claims, Appellants separately argue each claim
(Appeal Br. 30-53) but do so by either repeating the arguments in support of
claim 1 or arguing on the basis of those claim 1 arguments. Thus, we find
these arguments equally unpersuasive.
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CONCLUSIONS OF LAW
The rejection of claims 1-11 and 13-20 under 35 U.S.C. § 101 as
directed to non-statutory subject matter is proper.
DECISION
The rejection of claims 1-11 and 13-20 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) (2011).
AFFIRMED
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