Ex Parte Krause et al

Patent Trial and Appeal Board

Sep 21, 2017

11556419 (P.T.A.B. Sep. 21, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
5226-004 8648
EXAMINER
MANSFIELD, THOMAS L
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
11/556,419 11/03/2006
24112 7590 09/22/2017
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
Peter Krause
09/22/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER KRAUSE, TIMOTHY FRAZER,
WILLIAM D. BIGGS, JOSHUA MICHAEL RYMER,
and MARK SPRAETZ
Appeal 2016-005578
Application 11/556,419
Technology Center 3600
Before ERIC S. FRAHM, CATHERINE SHIANG, and ALEX S. YAP,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-005578
Application 11/556,419
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—44 and 46—60. Claims 45 and 61 have been
canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Independent claims 1 (method) and 46 (non-transitory computer
readable storage medium with stored computer-executable process steps for
performing the method) are directed to analyzing and displaying data to
indicate real estate market growth by analyzing multiple listing service
(MLS) data of properties sold during two time frames to display metrics
indicating sales growth. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method, performed by a computer having access to one or
more Multiple Listing Service (MLS) real estate databases, of
analyzing and displaying data to indicate real estate market
growth, comprising:
accepting, from a user of the computer having MLS
database access, a plurality of selection criteria that
dynamically define a real estate market comprising a plurality
of properties matching the selection criteria;
accepting, from a user of the computer having MLS
database access, two time period definitions defining a first
duration and a second duration, both durations comprising
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multiple days, and wherein the first duration precedes the
second duration;
accessing, by the computer, one or more MLS real estate
databases;
retrieving, by the computer, from the MLS databases, at
least data associated with properties in the defined real estate
market sold during the two durations;
aggregating, by the computer having MLS database
access, the data retrieved from the MLS database;
analyzing, by the computer having MLS database access,
the data associated with properties in the defined real estate
market sold during the two durations to produce one or more
metrics indicative of growth in sales in the defined real estate
market from the first duration to the second duration; and
displaying the metrics indicating growth in sales, by the
computer, in at least one graph.
REFERENCES and REJECTIONS
The Examiner made the following rejections:
(1) Claims 1—44 and 46—60 are rejected under 35 U.S.C. § 101
because the claimed invention is directed to a judicial exception (i.e., a law
of nature, a natural phenomenon, or an abstract idea) without significantly
more. Final Act. 5—7; Ans. 2—5, 5—6. Specifically, the Examiner determines
the claims are directed to the abstract idea of analyzing and displaying data
to indicate real estate market growth, and the additional claimed elements in
the claims are generic computer structure and/or instructions to implement
the idea on a generic computer (a personal computer having database access
to analyze and display data indicating real estate market growth). Final Act.
6; Ans. 3. The Examiner further determines that the method could be
performed without the use of a computer, and could even be done manually.
Ans. 3.
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(2) Claims 1—44 and 46—60 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Florance (US 2004/0128215 Al;
published July 1, 2004) and Sklarz (US 2002/0087389 Al; published Jul. 4,
2002).1 Final Act. 7—17; Ans. 6—23. Specifically, the Examiner determines
that Florance teaches ah of the recited subject matter of independent claims
1 and 46, including retrieving data associated with properties in a real estate
market, except for specifically teaching the real estate data being sales data
during two durations. Final Act. 8—11; Ans. 6—12; 14—17. The Examiner
determines that Sklarz teaches the missing subject matter pertaining to sales
data during two durations. Ans. 11.
ISSUES
Based on Appellants’ arguments in the Appeal Brief (App. Br. 3—16),
the following two issues are presented on appeal:2
1 Although page 8 of the Final Rejection lists “Robbins (US 2001/0039506)”
as the secondary reference, this is harmless error because page 11 of Final
Rejection discusses Sklarz as the secondary reference, and the U.S. Patent
Application Publication number for Sklarz is US 2002/0087389. Neither
Appellants nor the Examiner dispute the application of Sklarz as the
secondary reference. The Examiner properly refers to Sklarz as the
secondary reference at page 2 of the Answer, as do Appellants at page 7 of
the Appeal Brief.
2 Appellants states that “the claims are grouped together for appeal” (Br. 3),
and argues the merits of claims 1 and 46 (Br. 3—14). Although separate
arguments are presented as to claims 2-44 and 47—60 (Br. 14—17), these are
merely nominal arguments that do no more than restate the language of the
claims. Claims 1 and 46 recite similar methods and subject matter, namely
that of analyzing and displaying data to indicate real estate market growth by
analyzing multiple listing service (MLS) data of properties sold during two
time frames to display metrics indicating sales growth. In view of the
foregoing, we select claim 1 as representative of the group of claims
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(1) Did the Examiner err in rejecting claims 1—44 and 46—60 under
35 U.S.C. § 101 because the invention recited in representative claim 1 is
directed to an abstract idea without significantly more?
(2) Did the Examiner err in rejecting claims 1—44 and 46—60 under
35 U.S.C. § 103(a) over the combination of Florance and Sklarz because the
combination fails to teach or suggest the method of using a computer to
access one or more MLS real estate databases, and analyzing and displaying
data from two time periods to indicate real estate market growth, as recited
in representative claim 1 ?
ANALYSIS
35 U.S.C. § 101 Non-Statutory Subject Matter
Under 35 U.S.C. § 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. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[ljaws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS
Banklnt’l, 134 S. Ct. 2347, 2354 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75—77 (2012), “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice Corp., 134 S. Ct. at 2355.
The first step in that analysis is to “determine whether the claims at issue are
consisting of claims 1—44 and 46—60 as to both the rejections under 35
U.S.C. § 101 and 35 U.S.C. § 103(a).
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directed to one of those patent-ineligible concepts” (id.), e.g., to an abstract
idea. For example, abstract ideas include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Id. at 2355—57. If
the claims are not directed to a patent-ineligible concept, the inquiry ends.
Otherwise, the inquiry proceeds to the second step where the elements of the
claims are considered “individually and ‘as an ordered combination”’ to
determine whether there are additional elements that “‘transform the nature
of the claim’ into a patent-eligible application.” Alice Corp., 134 S. Ct. at
2355 (quoting Mayo, 566 U.S. at 78—9). For claims to pass muster, “at step
two, an inventive concept must be evident in the claims.” RecogniCorp,
LLCv. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir. 2017).
The Court acknowledged in Mayo, that “all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas.” Mayo, 566 U.S. at 71. We, therefore, look to whether the
claims focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery.
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept,” such as an
abstract idea. Alice Corp., 134 S. Ct. at 2355. We have considered all of
Appellants’ arguments (Br. 3—7), but find them unpersuasive as to error in
the rejection for at least the following reasons.
Here, in rejecting the claims under 35 U.S.C. § 101, the Examiner
finds, and we agree, that claim 1 is directed to the abstract idea of analyzing
and displaying data to indicate real estate market growth, and the additional
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claimed elements in the claims are generic computer structure and/or
instructions to implement the idea on a generic computer (a personal
computer having database access to analyze and display data indicating real
estate market growth). Final Act. 6; Ans. 3.
Additionally, examining earlier cases can have a role, especially in
deciding whether a concept that claims are found to be directed to is an
abstract idea. See Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d
1288, 1294 (Fed. Cir. 2016) (“Instead of a definition [for what an ‘abstract
idea’ encompasses], then, the decisional mechanism courts now apply is to
examine earlier cases in which a similar or parallel descriptive nature can be
seen—what prior cases were about, and which way they were decided.”).
Here, the instant case concerns analyzing and displaying data to indicate real
estate market growth — a fundamental economic, commercial, and/or
business practice.
And, at least the following decisions from our reviewing court have
found many similar types of fundamental commercial practices patent
ineligible: American Needle, Inc. v. Zazzlelnc., 2016 WL 6647774 (Fed.
Cir.) (mem.) (affirming the district court’s holding that showing
merchandise to potential customers is patent ineligible); Cyberfone Sys.,
LLC v. CNN Interactive Grp., 558 Fed. Appx. 988 (Fed. Cir. 2014)
(affirming the district court’s holding that using categories to organize, store,
and transmit information is well-established and the idea of collecting
information and then separating and transmitting that information according
to its classification is patent ineligible); Content Extraction and
Transmission LLC v. Wells Fargo Bank, Nat. Ass ’n, 776 F.3d 1343 (Fed.
Cir. 2014)(cert. denied, 136 S.Ct. 119 (2015) (data collection, recognition,
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and storage is undisputedly well-known and collecting data, recognizing
certain data within the collected data set, and storing that recognized data in
a memory is patent ineligible); Concaten, Inc. AmeriTrak Fleet Solutions,
LLC, 2016 WL 5899749 (Fed. Cir. 2016) (mem.) (cert, denied), 2017 WL
1001313 (2017) (receiving, processing, and transmitting data is patent
ineligible); Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed.
Cir. 2016) (holding that collecting information, analyzing it, and displaying
certain results of the collection and analysis is patent ineligible). In this
light, Appellants’ method of analyzing and displaying data to indicate real
estate market growth recited in claim 1 on appeal is a commercial practice
that is economic and fundamental in nature.
We conclude that analyzing and displaying data to indicate real estate
market growth as recited in method claim 1 is a fundamental economic
practice and, therefore, constitutes patent-ineligible subject matter. See
Alice, 134 S. Ct. at 2357; Bilski v. Kappos, 561 U.S. 593, 611 (2010); Enfish,
LLCv. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (“fundamental
economic and conventional business practices are often found to be abstract
ideas, even if performed on a computer”).
The Examiner also finds, and we agree, claim 1 does not include
limitations that are “significantly more” than the abstract idea because the
claims do not include an improvement to another technology or technical
field, an improvement to the functioning of the computer itself, or
meaningful limitations beyond generally linking the use of an abstract idea
to a particular technological environment. See Final Act. 6; Ans. 3—5.
The numerous claim limitations recite generally a method (claims
1—44), and a non-transitory computer readable storage medium with
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computer-executable code to perform the method (claims 46—60),
“performed by a computer having access to one or more Multiple Listing
Service (MLS) real estate databases, of analyzing and displaying data to
indicate real estate market growth” (claim 1). All of the recited steps,
including analyzing and displaying the necessary real estate data, are
performed “by the computer” (claim 1). Thus, no more than a general
purpose computer is recited in the claims on appeal, and we find the claims
are not directed to an improvement to computer functionality, but to an
abstract idea.
In summary, none of the individual steps of representative claim 1,
viewed “both individually and ‘as an ordered combination,’” transforms the
nature of the claim into patent-eligible subject matter. See Alice, 134 S. Ct.
at 2355 (quoting Mayo, 566 U.S. at 79). The claimed sequence of steps is an
abstract idea comprising only “conventional steps, specified at a high level
of generality,” which is insufficient to supply an “inventive concept.” Id. at
2357 (quoting Mayo, 566 U.S. at 71—2, 77—8, 82—3). In view of the
foregoing, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of
representative independent claim 1, as well as claims 2 44 and 46—60
grouped therewith.
35 U.S.C. §103
We disagree with Appellants’ arguments (Br. 7—14) as to independent
claims 1 and 46. With regard to representative claim 1, we adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken (Final Act. 7—11; Ans. 13—23), and (2) the reasons
set forth by the Examiner in the Examiner’s Answer in response to the
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Appellants’ Appeal Brief (Ans. 6—12). We highlight and amplify certain
teachings and suggestions of the references as follows.
In response to Appellants’ argument as to claim 1 that Florance fails
to teach or suggest two time periods or analyzing growth, we note that each
reference cited by the Examiner must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole. See In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (finding one cannot show non­
obviousness by attacking references individually where the rejections are
based on combinations of references). And, we agree with the Examiner’s
response (Ans. 7), which Appellants do not refute with argument or
evidence, that Florance (118) teaches analyzing growth trends. In this light,
Appellants’ arguments (Br. 7—12) concerning the individual shortcomings in
the teachings of Florance are not persuasive, and are not convincing of the
non-obviousness of the claimed invention set forth in independent claim 1.
Appellants’ arguments that (i) Sklarz fails to teach analyzing market
growth by tracking the number of sales over defined durations (Br. 13—14);
and (ii) Sklarz’s paragraph 247 fails to teach analyzing market growth (Br.
13—14), are unpersuasive. We agree with the Examiner (Final Act. 11; Ans.
10-11, 17) that Sklarz teaches analyzing sales data during two durations.
The Examiner’s further explanation (Ans. 10—11), which Appellants have
not responded to with evidence or argument, that paragraph 271 and Figures
75 teach or suggest comparable sales information, is both reasonable and
well-articulated. And our review of Sklarz reveals detailed description of
real estate sales data during two different durations (see Figs. 9, 15, 18, 25,
26; H28, 34, 37, 44, 45, 222, 247). Furthermore, Sklarz describes a
“comparable market analysis engine” (135, 247) and a “trend engine” (136,
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247) for analyzing and displaying real estate market data that indicates
growth.
In summary, Appellants’ arguments have not shown error in the
Examiner’s factual findings or ultimate conclusion of obviousness of
independent claim 1, or remaining independent claim 46, which are argued
for the same reasons as claim 1. In view of the foregoing, we sustain the
Examiner’s rejection of representative claim 1 under 35 U.S.C. § 103 over
the combination of Florance and Sklarz, as well as that of claims 2 44 and
46—60 grouped therewith.
CONCLUSIONS
The Examiner did not err in rejecting claims 1—44 and 46—60 based
upon a lack of patent eligible subject matter under 35 U.S.C. § 101, and the
Examiner did not err in rejecting claims 1—44 and 46—60 for obviousness
under 35 U.S.C. § 103(a).
DECISION
For the above reasons, we sustain the Examiner’s rejections of claims
1—44 and 46-60 under 35 U.S.C. §§ 101 and 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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