Ex Parte Koka et al

Patent Trials and Appeals Board

May 31, 2019

13552609 - (D) (P.T.A.B. May. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/552,609 07/18/2012
20995 7590 06/04/2019
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
Vikram Venkata Koka
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.
110653-8054.USOl 2979
EXAMINER
KIM, STEVENS
ART UNIT PAPER NUMBER
3685
NOTIFICATION DATE DELIVERY MODE
06/04/2019 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte VIKRAM VENKATA KOKA and ANN SHVARTS
Appeal 2018-002402 1
Application 13/552,6092
Technology Center 3600
Before ERIC B. CHEN, JAMES B. ARPIN, and MICHAEL M. BARRY,
Administrative Patent Judges.
ARPIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-12, 16, and 20-26. Non-Final Act. 2; App. Br. 7.
Appellants withdrew claims 13-15 and 17-19 from consideration. Non-
Final Act. 2; App. Br. 7. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 In this Decision, we refer to Appellants' Appeal Brief ("App. Br.," filed
September 5, 2017) and Reply Brief ("Reply Br.," filed January 2, 2018);
the Non-Final Office Action ("Non-Final Act.," mailed February 8, 2017);
the Examiner's Answer ("Ans.," mailed October 30, 2017); and the
originally-filed Specification ("Spec.," filed August 14, 2012). Rather than
repeat the Examiner's findings and determinations and Appellants'
contentions in their entirety, we refer to these documents.
2 Appellants assert Flexera Software, LLC is the real party-in-interest. App.
Br. 2.
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STATEMENT OF THE CASE
Appellants' claimed methods, systems, and computer-readable media
"relate[] to licensing," and, more specifically, "to a framework for providing
licensing programs." Spec. ,-J 1. Known licensing properties may concern
count, count type, overdraft, and return interval. Id. ,-i 7. As the
Specification explains:
Under the concurrent model for licensing software, the number
of users that may access the licensed software at the same time
may be referred to as the count. The count may be capped with
a predetermined limit or uncapped ( e.g., generally a very large
number).
In instances where the count is capped, the business may
also wish to provide for overdraft licenses. An overdraft license
may provide a licensed user access to the same service, though
the pricing may negotiated differently. Where an overdraft
license is available and the number of users meets the maximum
count allowed under the license, any additional users may be
considered to access the same service under an overdraft license.
The availability of overdraft licenses allow for flexibility where
a business may see only occasional spikes in usage ....
An alternative licensing model relies on metering or
counting a total number of uses such that the licensee is billed
for each use. Under such a metered model, the licensee may
purchase a fixed number of total uses. For example, a business
may pay for a hundred total licensed uses of a service. One
difference between concurrent and metered model lies in how the
count is calculated. As noted above, a concurrent count applies
to a number of users using a service at a particular moment in
time. A metered count applies to a total number of instances that
the service was used. Similar to the concurrent count, a metered
count may be zero, capped, or uncapped ( e.g., a very large
number), and overdraft licenses ( capped or uncapped) may also
be available.
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One complication in the metered model is verifying that a
use has occurred for the purpose of enforcing a capped count or
billing the licensee. For example, there may be instances where
a user may request a service, but not end up actually using the
service. For example, a network connection may be interrupted
or other failure may occur that prevents the user from using the
licensed service .... This creates accounting issues with respect
to identifying contested uses and billing only for legitimate or
completed uses. On the other hand, there could be metered
licensing models where no return is allowed or only allowed
within limited time interval.
Id. ,i,i 3-5 (emphases added). At the time of the filing of Appellants'
application, such licensing models were implemented and deployed using
hardware and software, which was customized to the particular licensing
model. Id. ,i 6. Consequently, changes to the licensing model might require
changes to the underlying hardware and software. Id. Because different
licensing models might be necessary to address different needs, developing
licensing programs for multiple licensors was difficult and complicated to
scale effectively or efficiently. Id.
As noted above, claims 1-12, 16, and 20-26 are under consideration.
Claims 1, 16, and 20 are independent. App. Br. 17-18 ( claim 1 ), 20-21
(claim 16), 22-23 (claim 20) (Claims App.). Claims 2-12 and 21 depend
directly or indirectly from claim 1, claims 23 and 24 depend directly or
indirectly from claim 16, and claims 25 and 26 depend directly or indirectly
from claim 20. Id. at 18-19, 23-24.
Claim 1, reproduced below, is representative.
1. A method for updating electronic licenses within a
licensing program, the method comprising:
receiving information concerning one or more rules defining
one or more licensing properties from a user associated with a
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licensor, the licensing properties selected from the group
consisting of count, count type, overdraft, and return interval;
storing information associated with the licensor in memory,
the stored information including:
one or more licensees of the licensor, and
the received information regarding the licensing
properties;
a licensor providing one or more electronic licenses to one or
more of said licensees by installing a licensing program for said
one or more licensees comprising one or more of said licensing
properties, said licensing program comprising an underlying
software framework running on a license server;
subsequently generating a new electronic license in which
either enforcement or usage-based deployment for one or more
of said electronic licenses for one or more of said licensees of the
licensor is changed, said new electronic license itself defining
said one or more [rules] providing for either said enforcement or
usage based deployment, the new electronic license specific to
the information received from the user, wherein the new
electronic license specifies the following license properties:
a number of licenses available to a requesting licensee,
wherein the number of available licenses is determined based
on the licensing property concerning count,
a license model based on concurrent or metered use,
wherein the license model is based on the licensing property
concerning count type,
a number of overdraft licenses available to the requesting
licensee, wherein the number of available overdraft licenses
is determined based on the licensing property concerning
overdraft, and
an interval of available time within which return of a used
license is accepted, wherein the interval of available time is
determined based on the licensing property concerning return
interval and wherein an accepted return of the used license
results in adjustment of the number of used licenses;
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automatically applying said license properties for the new
electronic license to one or more of said licensees of the licensor;
and
upon request by one or more licensees, distributing the new
electronic license to each of said one or more requesting
licensees for deployment by each said requesting licensee on a
respective licensee device to regulate the licensed functionality
of the device without updating the previously installed licensing
program for each said requesting licensee on the underlying
software framework to accommodate changes to said
enforcement or usage-based licensing deployment in said new
electronic license.
Id. at 17-18.
REFERENCES AND REJECTIONS
The Examiner relies upon the following reference:
Name Number Issued Filed
Ginter3 us 5,892,900 Apr. 6, 1999 Aug.30, 1996
Further, the Examiner relies upon Appellants' Admitted Prior Art (APA), as
set forth in the Specification. Non-Final Act. 3 ( citing Spec. ,-J,-J 3-6).
The Examiner rejects the claims on the following grounds:
1. claims 1-12, 16, and 20-26 under 35 U.S.C. § 101 as directed
to patent ineligible subject matter (Final Act. 6-12);
2. claims 1-12, 16, and 20-26 under 35 U.S.C. § 112, first
paragraph, as lacking adequate written description (id. at 12-
21) and under 35 U.S.C. § 112, second paragraph, as
indefinite (id. at 5, 20); and
3. claims 1-12, 16, and 20-26 under 35 U.S.C. § 103(a) as
rendered obvious over Ginter and the AP A (id. at 22-26).
3 This reference citation is to the first named inventor only.
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We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). Arguments not made are waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Unless otherwise indicated, we adopt the Examiner's
findings in the Final Action or the Answer as our own and add any
additional findings of fact for emphasis. We address the rejections below.
ANALYSIS
I. Patent Ineligible Claims
The Examiner rejects the claims 1-12, 16, and 20-26 under 35 U.S.C.
§ 101 as directed to patent ineligible subject matter. Non-Final Act. 6-12.
For the reasons given below, we sustain the Examiner's rejection.
A. Section 101
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: "[l]aws of nature, natural phenomena, and
abstract ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573
U.S. 208,216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court's two-part framework, described in Mayo and Alice.
Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75-77 (2012)). In accordance with that framework, we first
determine what concept the claim is "directed to." See Alice, 573 U.S. at
219 ("On their face, the claims before us are drawn to the concept of
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intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk."). According to the Court, concepts determined to be abstract
ideas and, thus, patent ineligible, include certain methods of organizing
human activity, such as fundamental economic practices (Alice, 573 U.S. at
219-20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook,
437 U.S. 584, 594-95 (1978)); and mental processes (Gottschalkv. Benson,
409 U.S. 63, 67 (1972)).
In Diamond v. Diehr, 450 U.S. 175, 176 (1981), the claim at issue
recited a mathematical formula, but the Court held that "[a] claim drawn to
subject matter otherwise statutory does not become nonstatutory simply
because it uses a mathematical formula." Diamond, 450 U.S. at 176.
Having said that, the Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citing Benson and Flook). Nevertheless, the Court noted
that "[i]t is now commonplace that an application of a law of nature or
mathematical formula to a known structure or process may well be deserving
of patent protection." Id. at 187.
If the claim is "directed to" an abstract idea, we next "must examine
the elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
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ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [ abstract idea]."' Id. ( alterations in original) ( quoting Mayo,
566 U.S. at 77). "[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention." Id.
B. Office Patent Eligibility Guidance
In an effort to achieve clarity and consistency in how the Office
applies the Court's two part test, the Office recently published revised
guidance on the application of§ 101. 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019).4 As an initial matter,
we look to see whether the claims, as written, fall within one of the four
statutory categories identified in § 101. Id. at 53 ("Examiners should
determine whether a claim satisfies the criteria for subject matter eligibility
by evaluating the claim in accordance with the criteria discussed in MPEP
2106, i.e., whether the claim is to a statutory category (Step 1) and the
Alice/Mayo test for judicial exceptions (Steps 2A and 2B)").
Under the guidance, we then look to whether the claim recites:
(1) Step 2A - Prong One: any judicial exceptions, including
certain groupings of abstract ideas (i.e., mathematical concepts,
certain methods of organizing human activity, such as a
fundamental economic practice, or mental processes); and
4 This guidance supersedes previous guidance memoranda. See 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. at 51 ("All
USPTO personnel are, as a matter of internal agency management, expected
to follow the guidance.").
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(2) Step 2A- Prong Two: additional elements that integrate the
judicial exception into a practical application (see MPEP5
§ 2106.05(a)-(c), (e)-(h)).
See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
at 54-55 ("Revised Step 2A").
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not "well-understood, routine, conventional" in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See id. at 56 ("Step 2B: If the Claim Is Directed to a Judicial Exception,
Evaluate Whether the Claim Provides an Inventive Concept.").
C. Statutory Categories
As an initial matter, each of the pending claims must be directed to at
least one of four recognized statutory categories, namely, apparatus, process,
article of manufacture, or composition of matter. MPEP § 2106(1). Here,
independent claims 1, 16, and 20 are directed to methods, i.e., "processes";
systems, i.e., "machines"; and computer-readable media, i.e., "articles of
5 All Manual of Patent Examining Procedure ("MPEP") citations herein are
to MPEP, Rev. 08.2017, January 2018.
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manufacture," and respectively. Non-Final Act. 7; see 35 U.S.C. § 101.
Thus, the pending claims are directed to recognized statutory categories.
Despite being directed to different statutory categories, the limitations
of claims 16 and 20 closely track those of claim 1. See Non-Final Act. 10
("The other independent claims are significantly similar to claim 1 with
difference being that claim 16 is directed to a system and claim 20 is
directed to non-transitory computer readable storage medium."); see also
Accenture Global Servs. GmbH v. Guidewire Software, Inc., 728 F.3d 1336,
1341 (Fed. Cir. 2013) ("Although CLS Bank issued as a plurality opinion, in
that case a majority of the court held that system claims that closely track
method claims and are grounded by the same meaningful limitations will
generally rise and fall together.") ( citation omitted). Therefore, we focus our
analysis on the limitations of claim 1.
D. Two-Part Alice/Mayo Analysis
1. Step 2A, Prong One- Claims "Directed To" Abstract Idea
Applying the first part of the Alice/Mayo analysis (Step 2A), the
Examiner concludes claim 1 "describes a business process/concept, of
provisioning/updating of licensing agreement and enforcement of the
updated licensing agreement." Non-Final Act. 10 (emphasis added); Ans. 3.
As the Specification explains, "[t]he present invention generally relates to
licensing," and, "[ m Jore specifically, the present invention relates to a
framework for providing licensing programs." Spec. ,i 1. Further, the
Examiner finds that claim 1 "describes a well-known, and widely-
understood financial activity concept - business process of management of
licensing and enforcement of licensing", similar to those previously
recognized by the courts as abstract ideas. Non-Final Act. 10; see buySAFE,
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Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) ("The claims are
squarely about creating a contractual relationship-a 'transaction
performance guaranty'-that is beyond question of ancient lineage.");
Accenture Global Servs., 728 F.3d at 1342 ("Both the claimed system and
the claimed method contain an insurance transaction database containing
information relating to an insurance transaction 'decomposed into a plurality
of levels from the group comprising a policy level, a claim level, a
participant level and a line level, wherein the plurality of levels reflects a
policy, the information related to the insurance transaction, claimants and an
insured person in a structured format."' ( citations omitted)); Dealertrack Inc.
v. Huber, 674 F.3d 1315, 1316-18 (Fed. Cir. 2012) (The claims recite a
method of obtaining and forwarding credit application data and forwarding
a funding decision in response to the application.)); see also Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) ("We need
not define the outer limits of 'abstract idea,' or at this stage exclude the
possibility that any particular inventive means are to be found somewhere in
the claims, to conclude that these claims focus on an abstract idea-and
hence require stage-two analysis under§ 101.").
Appellants contend, however, that "[ c ]laim 1 does not recite a
mathematical algorithm, nor does it recite a fundamental or longstanding
commercial practice. Rather, claim 1 addresses a challenge to electronic
licensing that is particular to operation of computer systems." App. Br. 8-9.
In particular, Appellants contend,
claim 1 recites specific technical features regarding updating
electronic licenses that extend beyond organized human activity
and business processes. This includes rules defining licensing
properties, a license model, generating new electronic licenses,
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distributing the new electronic licenses, and other features that
provide significant technical detail implementing a technological
solution rather than a mere business practice related to organized
human activity.
Reply Br. 2. We disagree.
Claim 1 broadly recites the limitations of (1) receiving information
concerning one or more "rules" defining one or more known licensing
properties from a user6 associated with a licensor ("receiving information
concerning one or more rules defining one or more licensing properties from
a user associated with a licensor, the licensing properties selected from the
group consisting of count, count type, overdraft, and return interval");
(2) remembering the one or more licensees and the received user information
("storing information associated with the licensor in memory, the stored
information including: one or more licensees of the licensor, and the
received information regarding the licensing properties"); (3) providing by
the licensor to the licensees one or more electronic licenses comprising one
or more of the licensing properties ("a licensor providing one or more
electronic licenses to one or more of said licensees ... comprising one or
more of said licensing properties ... "); ( 4) generating a new electronic
license for one or more of the licensees, the new license specific to the
information received from the user and defining one or more "rules"7
6 See Spec. ,-J 20 ("A licensee may be an entity that includes one or more
users associated with user devices 120.").
7 The Specification explains "[t]he rule providing for either enforcement or
usage-based deployment is defined in the electronic license itself via the
count related properties described herein." Spec. ,-J 31; see id. ,-i 23. We
understand that "said one or more rules providing for either said
enforcement or usage based deployment" recited in this limitation refers to
the "one or more rules defining one or more licensing properties[, e.g.,
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providing for enforcement or usage-based license deployment
("subsequently generating a new electronic license in which either
enforcement or usage-based deployment for one or more of said electronic
licenses for one or more of said licensees of the licensor is changed, said
new electronic license itself defining said one or more [rules] providing for
either said enforcement or usage based deployment, the new electronic
license specific to the information received from the user, wherein the new
electronic license specifies the following license properties"8); ( 5) applying
the license properties to the new license ("automatically applying said
license properties for the new electronic license to one or more of said
licensees of the licensor"); and ( 6) distributing the new licenses to requesting
licensees for deployment on a requesting licensees' device ("upon request by
one or more licensees, distributing the new electronic license to each of said
one or more requesting licensees for deployment by each said requesting
licensee on a respective licensee device ... "). See App. Br. 17-18 (Claims
App.). These limitations, under their broadest reasonable interpretation,
recite the commercial or legal interactions of receiving information about the
use of licensed software on a user's device and generating and disseminating
a modified, i.e., new, license to licensees including changes responsive to
the received information. Non-Final Act. 10; Ans. 3; see 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. at 52 ("Certain
methods of organizing human activity-. . . commercial or legal
count, count type, overdraft, or return interval] from a user associated with a
licensor" recited above. See App. Br. 17 (Claims App.).
8 Each of these "license properties" is described in the AP A and was known
at the time the application was filed. See Spec. ,-J,-J 3-6.
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interactions (including agreements in the form of contracts; legal
obligations; ... ; business relations)" (emphasis added)); see also Spec. ,i 6
("[T]he process of developing licensing programs for multiple licensors has
been difficult and complicated to scale effectively or efficiently."). Thus,
we determine that the Examiner persuasively argues that the rejected claims
recite "Certain methods of organizing human activity," and, thus, an abstract
idea. See Non-Final Act. 7; Ans. 3, 6-7; 2019 Revised Patent Subject
Matter Eligibility Guidance, 84 Fed. Reg. at 52.
2. Step 2A, Prong Two -Abstract Idea Not Integrated Into Practical
Application
Applying the second part of the Alice/Mayo analysis,9 the Examiner
concludes,
the additional elements or combination of elements in the
claim(s) are recited at a high level generality and are recited as
performing generic computer functions, e.g. receiving, storing,
installing, etc. routinely used in computer. Generic computer
components recited as performing generic computer functions
that are well-understood, routine and conventional activities
amount to no more than implementing the abstract idea with a
computerized system. . . . There is no indication that the
combination of elements improves the functioning of a processor
based computing device, in this case, the data processing
apparatus or the processor based system or improves any other
technology. Their collective functions merely provide
conventional computer implementation. In other words, the
invention is directed to licensing and controlling usage based on
9 We acknowledge that some of the considerations at Step 2A, Prong Two,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
guidance). For purposes of maintaining consistent treatment within the
Office, we evaluate them under first part of the Alice/Mayo analysis (Step
2A of the Office guidance). See 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. at 55 n.25, 27-32.
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the licensing at a high level generality .... Regarding claims
directed to a computer-readable medium, likewise, the mere
recitation that the computer program is on a generic computer-
readable medium and includes program code to be executed by a
computer does not transform the abstract idea into patent-eligible
subject matter.
Non-Final Act. 11-12 (emphasis omitted); see Ans. 3-6. Further, the
Specification discloses that the additional, recited elements are generic. See
Spec. ,i,i 20 ("general purpose computers, mobile phones, smartphones, ...
or any other type of computing device capable of communicating over
communication network 11 O"), 21 ("Licensor back office 130 may include
any type and number of servers or other computing devices known in the art,
including standard hardware computing components such as network and
media interfaces, non-transitory computer-readable storage (memory), and
processors for executing instructions or accessing information that may be
stored in memory."), 37 ("Any type of software known in the art may be
offered for licensing."), 50 ("Common forms of non-transitory
computer-readable media include, for example, a floppy disk, a flexible disk,
a hard disk, ... , and any other memory chip or cartridge."), 51 ("Various
forms of storage may likewise be implemented as well as the necessary
network interfaces and network topologies to implement the same.").
Appellants contend
the claimed solution is necessarily rooted in computer
technology in order to overcome a problem specifically arising
in the realm of operation of computer systems. Here, Appellant
has a non-abstract solution to an industry problem in connection
with computer systems, for example, access control. The
invention focuses upon the need to alter the rights of access to
computer resources automatically without otherwise disturbing
an established relationship between a licensor and a licensee.
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App. Br. 9 ( emphasis added). Appellants, however, describe an
improvement to the abstract idea, not to the associated technology. But see
Reply 3 ("Rather, [ claim 1] is directed towards a technical solution related to
licensing rather than the practice of licensing itself."). Computer-based
efficiency, however, does not save an otherwise abstract method. See Spec.
,i 6 ("the process of developing licensing programs for multiple licensors has
been difficult and complicated to scale effectively or efficiently"); see also
Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d
1266, 1277-78 (Fed. Cir. 2012) (performance by computer of operations that
previously were performed manually or mentally, albeit less efficiently, does
not convert a known abstract idea into eligible subject matter).
In BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC,
827 F.3d 1341 (Fed. Cir. 2016), our reviewing court explained that, even if
the individual components were known, "an inventive concept can be found
in the ordered combination of claim limitations that transform the abstract
idea of filtering content into a particular, practical application of that
abstract idea." BASCOM, 827 F.3d at 1352 (emphasis added). Citing
BASCOM, Appellants assert the "claims recite specific features to provide a
technology-based solution directed to altering the rights of access to
computer resources." App. Br. 11. Despite Appellants' reliance on
BASCOM, the claims in this case do not improve the technology in the way
BASCOM's claims did. In BASCOM, the patent improved prior art content
filtering solutions by making them more dynamic, thus using software to
improve the performance of the computer system itself. BASCOM, 827 F.3d
at 13 51. Here, the recited method does nothing to improve how the users'
devices or the license server functions, nor does it improve the operation of
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the licensing program or the licensed software. Instead, the claims merely
apply generic components to "perform[] generic computer functions, e.g.
receiving, storing, installing, etc. routinely used in computer" to an abstract
idea. See Alice, 573 U.S. at 223. This is simply an "abstract-idea-based
solution implemented with generic technical components in a conventional
way." BASCOM, 827 F.3d at 1351.
Neither the claims nor the Specification states that any of the
described embodiments invokes particular hardware or software (see MPEP
§ 2106.05(b)) or, as discussed above, results in improvements in component
technology or functions (see MPEP § 2106.05(a)). 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. at 55 n.25, 27. Thus, the
claims rely on generic or known hardware and software techniques, and
these do not provide meaningful limitations beyond generally linking the use
of the identified abstract idea to a particular technological environment.
Ans. 4-5 ("The claim merely applies a well-known idea using generic
computer "to the particular technological environment of the Internet."
(citation omitted)); see MPEP § 2106.05(h), 2019 Revised Patent Subject
Matter Eligibility Guidance, 84 Fed. Reg. at 55 n.29, 32. Further, the step of
"storing information associated with the licensor in memory" is merely
insignificant, extra-solution activity associated with the implementation of
the abstract idea. Final Act. 11; see MPEP § 2106.05(g), 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. at 55 n.31. The
Examiner concludes that:
Looking at the limitations as an ordered combination adds
nothing that is not already present when looking at the elements
taken individually. There is no indication that the combination
of elements improves the functioning of a processor based
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computing device, in this case, the data processing apparatus or
the processor based system or improves any other technology.
Their collective functions merely provide conventional computer
implementation. In other words, the invention is directed to
licensing and controlling usage based on the licensing at a high
level generality.
Ans. 6. We agree with the Examiner.
In view of Appellants' Specification and the identified prior art and
consistent with the Examiner's determinations, we are persuaded the
rejected claims do not recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a
different state or thing; or
(v) other meaningful limitations beyond generally linking the
use of the abstract idea to a particular technological
environment.
See MPEP § 2106.05(a)-(c), (e)-(h). Thus, we conclude that the rejected
claims do not integrate the judicial exception into a practical application and
are directed to an abstract idea. See ChargePoint, Inc. v. SemaConnect, Inc.,
920 F.3d 759, 768 (Fed. Cir. 2019) ("In short, looking at the problem
identified in the patent, as well as the way the patent describes the invention,
the specification suggests that the invention of the patent is nothing more
than the abstract idea of communication over a network for interacting with
a device, applied to the context of electric vehicle charging stations.").
3. Step 2B-Not Significantly More than the Abstract Idea
Because we find that the claims are directed to an abstract idea and do
not integrate that abstract idea into a practical application, we now consider
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whether the claims include additional limitations, such that the claims
amount to significantly more than the abstract idea. As noted above,
applying second part of the Alice/Mayo analysis, the Examiner concludes,
the claims do not include additional elements that are sufficient to amount to
significantly more than the judicial exception. Non-Final Act. 11-12; Ans.
3-6. In particular, the Examiner finds
the additional elements or combination of elements in the
claim(s) are recited at a high level generality and are recited as
performing generic computer functions, e.g. receiving, storing,
installing, etc. routinely used in computer. Generic computer
components recited as performing generic computer functions
that are well-understood, routine and conventional activities
amount to no more than implementing the abstract idea with a
computerized system. Thus, taken alone, the additional elements
do not amount to significantly more than a judicial exception.
Non-Final Act. 11; Ans. 6. We agree.
The Specification does not assert that any of the recited components,
alone or in combination, are novel. On the contrary, the Specification makes
clear that the components and techniques recited in the rejected claims are
well-understood, routine, and conventional. See Spec. ,-J,-J 3-6, 20, 21, 37,
50, and 51.
As discussed above, Appellants contend, "when taken as a whole, the
claimed invention has additional limitations that amount to significantly
more than an abstract idea." App. Br. 9; but see Alice, 573 U.S. at 222 ("In
holding that the process was patent ineligible, we rejected the argument that
'implement[ing] a principle in some specific fashion' will 'automatically
fal[l] within the patentable subject matter of§ 101 "' (alterations in original)
(quoting Flook, 437 U.S. at 593).). We are not persuaded that the recited
combinations of these few components are in any way unconventional or
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non-generic. See Reply Br. 3. We agree with the Examiner that the ordered
combination of limitations in claim 1 do not amount to significantly more
than an abstract idea.
On this record, we agree with the Examiner that the independent claim
1, as well as independent claims 16 and 20, is directed to an abstract idea
and fails to recite "significantly more" than the identified abstract idea.
Thus, we are not persuaded that the Examiner erred in determining that these
claims are patent ineligible, and we sustain those rejections. Appellants do
not argue the eligibility of the dependent claims separately, and we find that
the dependent claims fall with their base claims. See Non-Final Act. 10
( addressing the patent eligibility of the dependent claims). Therefore, we
also sustain the patent ineligibility rejection of the dependent claims.
II. Lack of Written Description
The Examiner rejects claims 1-12, 16, and 20-26 under 35 U.S.C.
§ 112, first paragraph, as lacking adequate written description. Non-Final
Act. 12-21. 35 U.S.C. § 112, first paragraph, states
The specification shall contain a written description of the
invention, and of the manner and process of making and using it,
in such full, clear, concise, and exact terms as to enable any
person skilled in the art to which it pertains, or with which it is
most nearly connected, to make and use the same, and shall set
forth the best mode contemplated by the inventor of carrying out
his invention.
Non-Final Act. 12. The Federal Circuit explained that "[t]he test for the
sufficiency of the written description 'is whether the disclosure of the
application relied upon reasonably conveys to those skilled in the art that the
inventor had possession of the claimed subject matter as of the filing date.'"
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Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 682 (Fed.
Cir. 2015).
The Examiner concludes that the rejected claims fail to satisfy the
requirements of the first paragraph of 35 U.S.C. § 112 due to at least four
deficiencies. For the reasons given below, we sustain the Examiner's
rejections.
First, claim 1 recites "receiving information concerning one or more
rules defining one or more licensing properties from a user associated with a
licensor." App. Br. 17 ( Claims App.) ( emphasis added). The Examiner
finds that "while the Specification does disclose receiving information
concerning one or more licensing properties from a user associated with a
licensor, the Specification does not disclose that receiving information
concerning one or more rules defining one or more licensing properties from
a user associated with a licensor." Non-Final Act. 14. 10 In particular, the
Specification discloses that:
Information is received concerning one or more licensing
properties desired by a licensor. The licensing properties may
concern count, count type, overdraft, and return interval. License
information is used to generate an electronic license specific to
the licensor and licensee contract[.] This electronic license is
then used by the licensing program that specifies a number of
available licenses that is based on the count property, a license
10 Appellants cite to incorrect paragraph numbers in the Appeal Brief, and
the Examiner's Answer is responsive to those incorrect citations. App.
Br. 12-13; Ans. 7-11; see Reply Br. 3 ("Appellant provided paragraph
numbers corresponding to the application as published rather than as filed
and, therefore, some of the paragraph numbers are offset. Appellant
respectfully apologizes. In relation to the specification as filed, the
paragraph numbers are 7, 17, 23, and 31 (i.e., each indicated paragraph
appears to be offset by 2 paragraphs).").
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model ( associated with one or more algorithms) for calculating a
number of used licenses that is based on the count type property,
a number of available overdraft licenses that is based on the
overdraft property, and an interval of available time within which
return of a used license is accepted, which is based on the return
interval property.
Spec. ,i 7 ( emphasis added). The Specification, however, does not disclose
receiving information concerning "one or more rules defining" one or more
licensing properties, and only mentions "rules" twice, but in different
contexts. See Spec. ,i,i 23 ("Because the use of the device or service is not
measured, the uncounted property may not coexist with other count-related
properties. Such (in)compatibility rules may be automatically applied as
part of registration, sign-up, or provisioning process for the licensor."
(emphases added)), 31 ("The rule providing for either enforcement or usage-
based deployment is defined in the electronic license itself via the count
related properties described herein." ( emphases added)).
Appellants do not respond to the Examiner's argument regarding the
lack of written description for this claim limitation in the Appeal Brief and
only quote paragraphs 7, 23, and 31 of the Specification in response in the
Reply Brief. App. Br. 12-14 (no discussion of "information concerning one
or more rules defining one or more licensing properties"); Reply Br. 3-4.
Thus, we are persuaded that the Examiner has shown that this limitation of
claim 1 lacks adequate written description in the Specification.
Second, the Examiner finds that the Specification discloses that
describes that the license server may act as intermediary for all user devices
associated with each licensee. Final Act. 16 ( citing Spec. ,i,i 28-31,
Fig. lB). User devices may request licensed software from the license
server, and the license server may use "algorithms and electronic license
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information received from the back office 130 to determine if the license is
available for the user device 120A." Id.; see Spec. ,i 29. In a usage-based
deployment to the user device, the user device sends reports regarding usage
of the licensed software to the license server, which may convey them to the
back office. Non-Final Act. 16. However, claim 1 recites
installing a licensing program comprising an underlying software
framework running on a license server, generating a new
electronic license that specifies recited license properties, and
that the license properties for the new electronic license is
automatically applied in regulating the licensed functionality of
the individual devices.
Id. ( emphasis added). Thus, the Examiner concludes "[ w ]hen reading the
claim in light of the Specification, it appears that it is the license server that
receives the electronic license and the licensing program running on the
license server regulating the licensing properties in the electronic license, not
the electronic license distributed to the individual user device(s)." Id. at 16-
17 ( emphasis added). Consequently, the Examiner asserts that the recited
method is not taught by the Specification.
Appellants contend that the Specification describes that "a
'framework described herein [that] allows for a plurality of different
licensing models and programs to be deployed, managed, and updated in a
scalable manner.' Thus, the distributing the generated new electronic
licenses can include properties that provide such regulation." App. Br. 12
(quoting Spec. ,i 23); see Reply Br. 3. Consequently, Appellants contend the
Specification broadly discloses that the license regulating the software on
the user device may be stored on the license server. We agree with
Appellants.
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Third, as noted above, the Specification explains that the methods of
claim 1 "address[] issues of having to change the licensing program when a
change to a licensing model occurs by defining the rule providing for either
enforcement or usage-based deployment in the electronic license itself."
Non-Final Act. 17 ( citing Spec. ,i,i 6, 31 ). Further, the Specification
explains that the described methods "address[] this inflexibility by utilizing
the license server that uses the algorithms and electronic license information
in enforcement of licensing properties." Id.; see Spec. ,i,i 7-9, 17, and 29.
The Examiner asserts, however, that the Specification does not disclose the
algorithms or how they are used to change the licensing model, nor does it
"describe[] what the underlying software framework is and how this
underlying software framework achieves the desired result. In other words,
the instant specification merely describes in a high level concept that a
software, e.g.[,] licensing software, is configured to accommodate different
licensing models as defined by the licensing agreement." Final Act. 17.
Appellants contend that:
The specifics of the algorithms are disclosed through the
application, including Figures 3 and 4 and their corresponding
description. Regarding how to generate the electronic license to
incorporate the licensing properties, this is also described
throughout the specification, including paragraph [22] 11 stating
"[b Jack office 130 may generate, enforce, and/or provide usage
information regarding licensing programs for particular
licensors. In generating a licensing program for a licensor, the
back office 130 may receive information regarding properties
that are desired by the licensor. Such properties are illustrated in
FIG. 2 and may include count 240A-D, count type 250A-B,
overdraft 260A-C, and return interval 270A-C." Regarding the
11 See supra note 10.
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underlying software framework, paragraph [23] 12 states "the
framework described herein allows for a plurality of different
licensing models and programs to be deployed, managed, and
updated in a scalable manner." One having ordinary skill in the
art would understand this as functionality to employ some of the
claimed features.
App. Br. 12-13 (emphases added); see Reply Br. 11.
Claim 1 recites that "the new electronic license specifies the following
license properties: ... a license model based on concurrent or metered use,
wherein the license model is based on the licensing property concerning
count type." App. Br. 17 (Claims App.) (emphasis added); see Spec. ,i 4
("An alternative licensing model relies on metering or counting a total
number of uses such that the licensee is billed for each use."). Such
licensing models are part of the AP A. Consequently, we agree with
Appellants that Figures 3 and 4 of the Specification disclose algorithms and
electronic license information in deployment of a licensing program for
applying licensing properties, including count-type. See Spec. ,i,i 35-49
(describing Figures 3 and 4).
Appellants describe where the electronic license is generated (i.e., the
back office) and what is used to generate a licensing program for a licensor
(i.e., information received regarding properties). App. Br. 12-13 (citing
Spec. ,i,i 22, 23); see Reply Br. 11. We agree with the Examiner, however,
that Appellants fail to explain how the algorithms and electronic license
information are used to change the licensing model. Non-Final Act. 17.
Further, Appellants contend "an underlying software framework"
is described throughout the specification, for example, in
12 See supra note 10.
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paragraph [31] 13 it is stated that "the underlying software
framework ( e.g., licensing program) [runs] on the license
server." One having ordinary skill in the art would therefore
understand that the software framework is a licensing program
running on the license server providing some of the
functionalities described in the claim.
App. Br. 13 (emphasis added). Nevertheless, as the Examiner correctly
notes, claim 1 recites "said licensing program comprising an underlying
software framework running on a licensing server." Ans. 16; see App.
Br. 17 (Claims App.) (emphasis added). Thus, the claim recites that the
licensing program includes, but is not limited to, the underlying software
framework, not the other way around. Ans. 16; see Non-Final Act. 19.
Consequently, we also agree with the Examiner that Appellants fail to
provide an adequate written description of what the "underlying software
framework" is.
Fourth, the Examiner finds that certain limitations of the claims are
unclear, and, consequently, the Examiner cannot discern the written
description supporting these limitations. Ans. 16-17. Initially, claim 1
recites "a licensor providing one or more electronic licenses to one or more
of said licensees by installing a licensing program for said one or more
licensees comprising one or more of said licensing properties." App. Br. 17
(Claims App.) (emphases added). The Examiner finds that it is not clear
whether the phrase "comprising one or more of said licensing properties"
modifies "one or more electronic licenses" or "a licensing program."
Ans. 16. Further, the Examiner asserts that this limitation appears to omit
certain steps necessary to explain how licenses are provided by installing a
13 See supra note 10.
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licensing program. Id. Appellants respond that "comprising one or more of
said licensing properties" is directed towards the "one or more electronic
licenses" and that "[ n Jone of the steps described by the Office Action [ as
missing] are essential matter and, therefore, do not need to appear in any
claim describing the invention." Reply Br. 11-12. Despite Appellants'
explanation of this limitation, Appellants fail to cite to written description
supporting their construction. See App. Br. 14 ("[O]ne having ordinary skill
in the art can organize and correlate a memory and a processor providing the
claimed features."); Ans. 17. We find that claim 1 remains unclear and, as
written, the claim recites a result, but neither the claim recites nor the
Specification discloses the steps to achieve it. See Final Act. 19.
Claim 1 also recites
upon request by one or more licensees, distributing the
new electronic license to each of said one or more requesting
licensees for deployment by each said requesting licensee on a
respective licensee device to regulate the licensed functionality
of the device without updating the previously installed licensing
program for each said requesting licensee on the underlying
software framework to accommodate changes to said
enforcement or usage-based licensing deployment in said new
electronic license.
App. Br. 18 (Claims App.) ( emphases added). This limitation appears to
recite that "the previously installed licensing program" is installed "on the
underlying software framework." See Final Act. 19. The Examiner finds,
however, that "it is unclear what claimed element is modified by 'on the
underlying software framework'." Ans. 17. As noted above, claim 1 recites
that "said licensing program comprising an underlying software framework
running on a license server." App. Br. 17 (Claims App.) (emphasis added).
The Specification does not explain this apparent inconsistency. See Spec.
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,i 31.
The Examiner also finds that "[i]t is unclear to one of ordinary skill in
the art how the electronic license and the license used in the properties are
different or whether they are same." Ans. 17. Regarding the "electronic
license," the Specification states:
This electronic license is then used by the licensing program that
specifies a number of available licenses that is based on the
count property, a license model (associated with one or more
algorithms) for calculating a number of used licenses that is
based on the count type property, a number of available overdraft
licenses that is based on the overdraft property, and an interval
of available time within which return of a used license is
accepted, which is based on the return interval property. An
accepted return of the used license may result in adjustment of
the number of used licenses.
Spec. ,i 7 ( emphasis added); see id. at ,i,i 3-6 ( describing known licensing
properties). Thus, we are persuaded that a person of ordinary skill in the art
would have known that the recited electronic license and the licenses
described with respect to the recited licensed properties are the same
licenses.
The Examiner did not err in determining that claim 1 lacks adequate
written description. Independent claims 16 and 20 also lack adequate
written description for the same reasons as those given with respect to
claim 1. Dependent claims 2-12 and 21-26 suffer from the same
deficiencies as their base claims. Consequently, we sustain the Examiner's
lack of written description rejections of claims 1-12, 16, and 20-26.
III. Indefiniteness
The Examiner rejects claims 1-12, 16, and 20-26 under 35 U.S.C.
§ 112, second paragraph. Final Act. 5. Specifically, the Examiner asserts
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that "the recited 'the licensed functionality of the device' lack[s] antecedent
basis." Ans. 17; see Final Act. 20. Appellants do not challenge this
assertion. We sustain the Examiner's indefiniteness rejections. See 37
C.F.R. § 41.37(c)(l)(iv); MPEP § 2173.05(e).
IV. Obviousness Over Ginter and the AP A
The Examiner rejects claims 1-12, 16, and 20-26 under 35 U.S.C.
§ 103 (a) as rendered obvious over the combined teachings of Ginter and the
APA. Final Act. 22-26. For the reasons set forth below, we sustain the
Examiner's obviousness rejections.
A. Independent Claims 1, 16, and 20
The Examiner determines that independent claim 1 is rendered
obvious over the combined teachings of Ginter and the APA. Final Act. 22-
25; see Ans. 17-18. In particular, the Examiner provides a detailed mapping
of the limitations of independent claim 1 that are taught or suggested by the
combined teachings of Ginter and the APA (Final Act. 22-24) and reasons
for combining the teachings of each of these references to achieve the
methods recited in claim 1, as well as the systems and computer-readable
media recited in claims 16 and 20, respectively (see id. at 24-25). Compare,
e.g., Ginter, 20:39-43 (describing providing licensed properties based on "a
metering history of their licensing of properties) and Spec. ,-J 4 ("An
alternative licensing model relies on metering or counting a total number of
uses such that the licensee is billed for each use.").
Claim 1 recites that a new electronic license is generated and
distributed "without updating the previously installed licensing program for
each said requesting licensee on the underlying software framework to
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accommodate changes to said enforcement or usage-based licensing
deployment in said new electronic license." App. Br. 17 (Claims App.); see
id. at 15. Appellants contend that, although Ginter discloses that "a
permission record (PERC) can be modified to 'provide additional ( or lesser)
rights"' (App. Br. 14 (quoting Ginter, 2:64-65)), this does not teach
generating a new license. Thus, Appellants maintain Ginter does not
disclose the steps of "generating" a new electronic license or "distributing"
the new electronic license, as recited in claim 1 (id. at 14-15). See Reply
Br. 13-14.
Appellants appear to equate Ginter' s permission record with the
licensing program, rather than the license. Because Ginter' s permission
record, however, may be modified to include additional or lesser rights,
Appellants contend that Ginter does not teach or suggest that new electronic
licenses are generated and distributed "without updating the previously
installed licensing program," as recited in claim 1. App. Br. 15; Reply
Br. 13 ("Thus, even if Ginter discloses using PERC without VDE, the PERC
is still modified and, therefore, not distributed without any sort of updating
or modifying.").
As the Examiner explains, however, the recited "new electronic
license" is taught or suggested by Ginter' s modified permission record.
Ans. 17-18. New electronic licenses (i.e., modified permission records) are
generated and distributed "without updating the previously installed
licensing program." Id. In particular, the Examiner finds that Ginter
specifically teaches generating and distributing a new electronic license,
e.g., a modified permission record. Non-Final Act. 23. Ginter teaches that:
Use rights distributed by publishing house 214 may, for
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example, permit office 210 to make and distribute copies of the
content to its employees. Office 210 may act as a redistributor by
extending a "chain of handling and control" 15 to its employees.
The office 210 may add or modify "rules and controls"
( consistent with the "rules and controls" it receives from
publishing house 214) to provide office internal control
information and mechanisms. For example, office 210 may set
a maximum usage budget for each individual user and/or group
within the office, or it may permit only specified employees
and/or groups to access certain information.
Ginter, 55: 12-23. Thus, the Examiner finds that Ginter teaches or suggests
that, like a new electronic license, the modified permission record "defin[ es]
said one or more [rules] providing for either said enforcement or usage
based deployment, the new electronic license specific to the information
received from the user." Ans. 18; see App. Br. 17 (Claims App.).
Moreover, the Examiner finds that Ginter teaches or suggests that, like the
recited "previously installed licensing program," the virtual distribution
environment (VDE), in which Ginter' s permission records are managed (see
Ginter, 2:20-32), may include a Rights Operating System (ROS) (see id.,
91:57-92:8, 92:33-61). Ginter's permission record, without the VDE
including the ROS, is installed on electronic appliances. Ans. 18. Thus, the
Examiner finds that, as recited in claim 1, the permission record is
distributed "for deployment on a respective licensee device to regulate the
licensed functionality of the device," without updating the VDE including
the ROS. Id.; App. Br. 18 (Claims App.). We agree with the Examiner and
find Appellants' contentions to the contrary unpersuasive.
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We are not persuaded that the Examiner erred in determining that the
combined teachings of Ginter and the AP A render independent claims 1, 16,
and 20 obvious, and we sustain those rejections.
B. Dependent Claims
The Examiner also rejects claims 2-12 and 21-26 over the combined
teachings of Ginter and the AP A. Final Act. 25-26. Appellants rely solely
on their contentions with respect to the base claims, claims 1, 16, and 20, to
overcome these rejections. App. Br. 15 ("The dependent claims include the
features of the independent claims from which they are based. Therefore,
the cited references, whether considered individually or in combination, also
fail to fail to disclose or suggest all of the features of the dependent
claims."). For the reasons given above, we are not persuaded that the
Examiner erred in determining that the combined teachings of Ginter and the
AP A render claims 1, 16, and 20 obvious; and we also sustain the rejections
to the dependent claims.
Accordingly, on this record, we sustain the Examiner's obviousness
rejections of claims 1-12, 16, and 20-26.
CONCLUSIONS
1. The Examiner did not err in rejecting claims 1-12, 16, and 20-26
under 35 U.S.C. § 101, as directed to patent-ineligible subject matter.
2. The Examiner did not err in rejecting claims 1-12, 16, and 20-26
under 35 U.S.C. § 112, first paragraph, as lacking adequate written
description and under 35 U.S.C. § 112, second paragraph, as
indefinite.
3. The Examiner did not err in rejecting claims 1-12, 16, and 20-26
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under 35 U.S.C. § 103(a), as rendered obvious over the combined
teachings of Ginter and the AP A.
4. Claims 1-12, 16, and 20-26 are not patentable.
DECISION
We affirm the Examiner's rejections of claims 1-12, 16, and 20-26.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
33