Ex Parte Lidstrom et al

Patent Trial and Appeal Board

May 14, 2018

12809097 (P.T.A.B. May. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/809,097 07/02/2010 Mattias Lidstrom
24112 7590 05/14/2018
COATS & BENNETT, PLLC
1400 Crescent Green, Suite 300
Cary, NC 27518
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.
4015-6914 I P24382-US1 7237
EXAMINER
GILKEY, CARRIE STRODER
ART UNIT PAPER NUMBER
3689
MAILDATE DELIVERY MODE
05/14/2018 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 MATTIAS LIDSTROM and MONA MATTI
Appeal2016-008295
Application 12/809,097
Technology Center 3600
Before JOHN A. EV ANS, BETH Z. SHAW, and KIMBERLY McGRAW,
Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 22--42, which represent all the pending
claims. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 Throughout this Decision we have considered the Appeal Brief filed
January 21, 2016 ("App. Br."), Reply Brief filed September 2, 2016 ("Reply
Br."), the Specification filed June 18, 2010 ("Spec."), the Examiner's
Answer mailed July 7, 2016 ("Ans."), the Advisory action mailed October 2,
2015 ("Advisory Act."), and the Final Rejection mailed May 22, 2015
("Final Act.").
2 Appellants identify Telefonaktiebolaget L M Ericsson on as the real party
in interest (App. Br. 2).
Appeal 2016-008295
Application 12/809,097
INVENTION
Appellants' invention is directed to "a method and apparatus for
providing differentiated and flexible levels of service quality to terminal
users in a communication network." Spec. p. 1, 11. 5-8. Method claim 22
and system claim 36 are the only independent claims on appeal. Claim 22 is
illustrative of the claims at issue and is reproduced below:
22. A method of adapting a multi-media service level for a
service consumed by a terminal user in a communication network,
comprising the following steps, executed automatically in a service
level control system:
collecting information on service usage of said multi-media
service by the user;
extracting features of a usage pattern of the user from the
collected service usage information;
estimating the user with respect to his/her service usage based
on the extracted usage pattern features, by applying a machine
learning algorithm on data of the extracted usage pattern features;
adjusting or introducing a corresponding rule or policy in the
user's subscription profile in addition to a Quality-of-Service (QoS)
service level already subscribed by the user based on the result from
said user estimating step, wherein said rule or policy impacts the
resulting service quality;
adapting the service level of said multi-media service in
accordance to the rule or policy in the user's subscription profile;
and
enforcing said rule or policy by a policy enforcing node in the
communication network whenever the user invokes the multi-media
service, wherein the multi-media service is consumed by said user
with the adapted service level. 3
3 Appellants' Claims Appendix includes a list of claims that appear to
correspond to the list of amended claims that was submitted to the Office on
August 21, 2015 in response to Examiner's Final Office Action. Compare
App. Br. 23-26 with Response dated August 21, 2015, pp. 2-5 (Amendment
after Final). However, these amendments were not entered by the
Examiner. Advisory Act. 2-3. As such, Appellants' Claims Appendix does
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REJECTIONS
The Examiner rejected claims 22--42 under 35 U.S.C. § 101 as
directed to non-statutory subject matter. Final Act. 2--4.
The Examiner rejected claims 22--42 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
Final Act. 4--5.
The Examiner rejected claims 22, 25-29, 34--37, 39, 40, and 41 under
35 U.S.C. § 102(e) as being anticipated by Taylor (US 2007/0133428).
Final Act. 5-15.
The Examiner rejected claims 23, 24, and 38 under 35 U.S.C. § 103(a)
as being unpatentable over Taylor and Soliman (US 2004/0085909). Final
Act. 15-17.
The Examiner rejected claims 30 and 31 under 35 U.S.C. § 103(a) as
being unpatentable over Taylor and McKinnon (US 2009/0070454). Final
Act. 17-19.
The Examiner rejected claims 32, 33, and 42 under 35 U.S.C. § 103(a)
as being unpatentable over Taylor and Vasametti (US 200710195788). Final
Act. 19-20.
not accurately reflect the claims that are under appeal. This Decision
considers the claims as rejected in the Final Rejection, as under appeal.
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Section 101 Rejection
ANALYSIS
Appellants argue the Examiner erred in rejecting claims 22--42 under
35 U.S.C. § 101 as directed to non-statutory subject matter. App. Br. 7-18.
The Examiner finds claims 22--42 are directed to:
an abstract idea of adjusting a service level specifically, directed
towards collecting information, extracting a usage pattern from the
information, estimating the user based on the pattern, adjusting a rule
in the user's profile to adjust the service quality, adapt the service
level in accordance with the rule, and enforce the rule, which is (i) a
fundamental economic practice, (ii) a method of organizing human
activities, (iii) an idea of itself, or (iv) a mathematical relationship or
formula.
Ans. 5-7 (emphases in original). The Examiner further states the claims are
directed to a "fundamental economic practice, because they are directed to
concepts relating to the economy and commerce." Id. at 8. The Examiner
also finds that the claims are directed to "certain methods of organizing
human activity as the claims include concepts relating to managing
relationships or transactions between people." Id. at 9. The Examiner finds
the claims do not include additional elements sufficient to amount to
significantly more than the judicial exception because "because the
additional elements or combination of elements in the claims other than the
abstract idea per se amounts to no more than: (i) adjusting a service level,
and/or (ii) recitation of computer readable storage medium having
instructions encoded to perform functions of adjusting a service level are
well understood, routine, and conventional activities previously known to
the industry." Id. at 23.
Claim 22 is directed to a method of adapting a multi-media service
level for a service consumed by a terminal user in a communication network.
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Claim 36 is directed to a system for adjusting a service level for a service
consumed by a user. Appellants argue that "adjusting a service level (i.e.,
quality level) is not a fundamental economic process as alleged by the
Office." Reply Br. 2. We agree with Appellants.
We conclude that Appellants' claims are patent eligible as directed
to a specific improvement (adapting a multi-media service level for a
service consumed by a terminal user in a communication network) in a
technological process and solve a problem by adapting the service layer in
the network. Our reviewing court has approved claims of this general
character. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
1299, 1316 (Fed. Cir. 2016) (finding eligible claims that use "limited rules"
in a computerized "process specifically designed to achieve an improved
technological result in conventional industry practice"); DDR Holdings, LLC
v. Hotels.com, L.P., 773 F.3d 1245, 1256-1259 (Fed. Cir. 2014) (finding
eligible claims directed to creation of an improved type of web page); see
also Trading Techs. Int'!, Inc. v. CQG, Inc., 675 F. App'x 1001, 1005 (Fed.
Cir. 201 7) ("Abstraction is avoided or overcome when a proposed new
application or computer-implemented function is not simply the generalized
use of a computer as a tool to conduct a known or obvious process, but
instead is an improvement to the capability of the system as a whole.");
Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300--01 (Fed.
Cir. 2016) (finding claims eligible where, although "[t]he solution requires
arguably generic components," a specific limitation "requires that these
generic components operate in an unconventional manner to achieve an
improvement in computer functionality."). The instant claims are subject
matter eligible because they are directed to an improvement in the
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functioning of a computer by adapting a multi-media service level for a
service consumed by a terminal user in a communication network.
We note that, because the claims are narrowly directed to adapting a
multi-media service level for a service consumed by a terminal user in a
communication network, any preemption is appropriately limited to
Appellants' contribution to the art, and not to adjusting service levels in
general. For these reasons, we do not sustain the rejection of claims 22--42
under 35 U.S.C. § 101.
Section 112 Rejection
Appellants also argue the Examiner erred in rejecting claims 22--42
under 35 U.S.C. § 112, i-f 1 as failing to comply with the written description
requirement. App. Br. 18-19; Reply Br. 3--4. The Examiner rejected claims
22--42 for failing to provide written description support for the term "multi-
media service" (Final Act. 5) and rejected claims 22-35 and 39 for failing to
provide written description support for the phrase "machine learning
algorithm" (Ans. 2--4). Specifically, the Examiner states that although the
background section of the Specification mentions "multimedia services," the
Specification "does not make it clear that the invention is directed to
multimedia services." Final Act. 5, 2 7. The Examiner further states that the
Specification does not sufficiently describe the "specific machine learning
algorithm" in such a way as to convey possession of the "machine learning
algorithm" recited in claims 22 and 39. Ans. 2-3 (rejecting claims 22-35
and 39 under§ 112, i-f 1).
Appellants point to the Specification for support of the claimed
"multimedia service." App. Br. 19 (citing Spec. p. 1, 11. 15-19). We agree
with Appellants that page 1, lines 15-19, inter alia, of the Specification
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provide support for the recited "multi-media service." The Specification
states that "multimedia services typically involve the transmission of media
in different formats and combinations over IP networks." Spec. p. 1, 11. 13-
15. The Specification then describes a particular network architecture,
commonly referred to as "the IMS network," which "control[s] multimedia
services" including "file transfers," "media downloads" and "conversational
sessions" such as "Multimedia Telephony and Push-to-Talk over Cellular."
Id. at p. 1, 11. 15-19. The Specification then goes on to state that the
"present invention is not limited to services enabled by IMS." Id. at p. 1, 11.
26-27. We find that a person of ordinary skill in the art would understand
from these disclosures in the Specification that the present invention is not
limited to, and therefore includes, the multi-media services enabled by IMS.
We also disagree with the Examiner's finding that the Specification
does not convey possession of the "machine learning algorithm" recited in
claims 22 and 39. Ans. 2-3. The Specification provides examples of
machine learning algorithms including "clustering methods (such as 'Soft
Clustering with Probabilistic Latent Semantic Analysis' (PLSA) and 'Soft
Clustering with Gaussian Mixture Models' ( GMMs) ), novelty detection
(such as 'One-Class Support Vector Machines' and 'Density Modelling
techniques)[,] ... Social Networks (SN) (such as 'kernel methods applied
over graph'), and supervised classification (such as 'Neural network
Multilayer Perceptrons' (MLPs), 'Radial Basis Function Networks'
(RBFNs), Decision trees, 'Support Vector Machine' (SVM))." Spec. p. 20,
11. 10-21.
Thus, we disagree with the Examiner's findings that the terms "multi-
media service" and "machine learning algorithm" are not supported by the
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Specification. Accordingly, we do not sustain the rejection of claims 22--42
under 35 U.S.C. § 112 as failing to comply with the written description
requirement.
Section 102 Rejection
Appellants argue the Examiner erred in rejecting claim 22, 25-29, 34--
37, 39, 40, and 41under35 U.S.C. § 102(e) as being anticipated by Taylor.
App. Br. 19-21. We agree with Appellants that the cited portions of Taylor
do not disclose "applying a machine learning algorithm on data of the
extracted usage pattern features," as recited in independent claim 22.App.
Br. 20; Reply Br. 4--5.
The Examiner finds Taylor teaches "that the quality of service level is
determined for the group and is based upon the determined usage pattern. "
Ans. 28. The Examiner concludes, "[s]ince Taylor uses a machine to discern
the usage pattern, Taylor therefore applies a machine learning algorithm."
Id. We disagree. The Examiner has not persuasively explained why
Taylor's discernment of a usage pattern constitutes the claimed "applying a
machine learning algorithm on data of the extracted usage pattern features."
As Appellants argue, and we agree, the usage pattern is an input to the
machine-learning algorithm. Reply Br. 5.
This is a rejection under Section 102.
[U]nless a reference discloses within the four comers of the
document not only all of the limitations claimed but also all of
the limitations arranged or combined in the same way as recited
in the claim, it cannot be said to prove prior invention of the
thing claimed and, thus, cannot anticipate under 35 U.S.C.
§ 102.
Net Moneyin, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir.
2008).
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Id.
Thus, it is not enough that the prior art reference discloses part
of the claimed invention, which an ordinary artisan might
supplement to make the whole, or that it includes multiple,
distinct teachings that the artisan might somehow combine to
achieve the claimed invention.
Thus, we persuaded of error in the Examiner's rejection of
independent claim 22 under 35 U.S.C. § 102(a). Therefore, we do not
sustain the§ 102 rejection of independent claim 22. For the same reasons,
we do not sustain the§ 102 rejection of claims 25-29, 34, 35, and 39, which
depend directly or indirectly from claim 22. Further, we do not sustain the
Examiner's rejection of dependent claims 23, 24, and 30-33 because the
Examiner does not find that the additional references cure the deficiencies
discussed above. We address independent claim 36 separately below.
Independent Claim 3 6
As noted above, Appellants' Claims Appendix includes a list of
claims with amendments that were not entered by the Examiner. See
Advisory Act. 2. Appellants' arguments appear to consider claim 36 as
including the "machine learning algorithm" limitation addressed above with
respect to claim 22. 4 App. Br. 19-20. If the amendment submitted by
Appellants after the Final Rejection was entered, claim 36 would include the
"machine learning algorithm" limitation discussed above with respect to
claim 22. However, because this amendment was not entered, claim 36 does
4 Appellants' argument related to "features of service usage are relevant and
to be considered") (App. Br. 20) relates to a claim element of dependent
claim 25, which is not found in independent claim 36. Because we do not
sustain the rejection of dependent claim 25, we need not reach this issue.
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not recite "machine learning algorithm." As such, Appellants' arguments
are not persuasive.
We are also not persuaded by Appellants' arguments that Taylor does
not disclose "a multi-media service." App. Br. 20-21. Taylor describes, in
paragraph 4, "high bandwidth applications, such as streaming video or audio
applications," which discloses multi-media services.
Accordingly, we sustain the § 102 rejection of independent claim 36,
and dependent claims 37, 38, and 40-42, which were not argued separately.
CONCLUSION
We reverse the rejection of claims 22--42 under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
We reverse the rejection of claims 22--42 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
We reverse the§ 102 rejection of claims 22, 25-29, 34, 35, and 39.
We reverse the§ 103 rejection of claims 23, 24, and 30-33.
We affirm the§ 102 rejection of independent claim 36, and dependent
claims 37, 38, and 40-42.
DECISION
The decision of the Examiner to reject claims 22-35 and 39 is
reversed.
The decision of the Examiner to reject claims 36-38 and 40-42 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)(l). See 37 C.F.R.
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§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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