Ex Parte LUTNICK

Patent Trial and Appeal Board

Dec 14, 2018

12757270 (P.T.A.B. Dec. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/757,270 04/09/2010
63710 7590 12/18/2018
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
FIRST NAMED INVENTOR
Howard W. LUTNICK
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.
10-2240 2336
EXAMINER
DUNHAM, JASON B
ART UNIT PAPER NUMBER
3684
NOTIFICATION DATE DELIVERY MODE
12/18/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentdocketing@cantor.com
lkorovich@cantor.com
phowe@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HOWARD W. LUTNICK
Appeal2017-004031
Application 12/757,270
Technology Center 3600
Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
ANTON W. PETTING, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Howard W. Lutnick (Appellant2) seeks review under 35 U.S.C. § 134
of a final rejection of claims 1-21, the only claims pending in the application
on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
1 Our Decision will make reference to the Appellant's Appeal Brief ("App.
Br.," filed August 24, 2016) and Reply Brief ("Reply Br.," filed January 4,
2017), and the Examiner's Answer ("Ans.," mailed November 4, 2016), and
Final Office Action ("Final Act.," mailed June 15, 2015).
2 According to Appellant, the real party in interest is CFPH, L.P. See App.
Br. 4.
Appeal2017-004031
Application 12/757,270
The Appellant does not describe what it invented, but instead
describes a series of embodiments of whatever it is it invented. No summary
section is provided, but instead the Specification begins with a list of the
figures, followed by 14 pages of 77 paragraphs covering glossary and
various caveats as to how the Specification is to be interpreted. At that
point, the series of embodiments are described with no description of any
thread of commonality as to what the invention is and how it is used. Thus,
we must rely on the independent claims as the embodiments chosen as the
inventions for this particular application.
Exemplary claim 1 is reproduced below (bracketed matter and some
paragraphing added).
1. A method comprising:
[ 1] receiving an indication of items that a user desired to be
delivered multiple times in the future;
[2] receiving an indication of a payment method that the user
desires to use for each of the multiple times to pay for the items;
[3] in response to receiving the indication of items and the
indication of the payment method, establishing,
by a computing device of the user,
a control in a user interface
that may be actuated by the user
to place an order for delivery of the items paid for using
the payment method;
[ 4] receiving, by the computing device of the user, a plurality of
actuations of the control in the user interface;
[ 5] in response to receiving each actuation of the plurality of
actuations of the control in the user interface from the user,
transmitting
a respective indication of the items and the payment
method
from the computing device of the user
to a remote device;
[ 6] receiving each indication of the items and the payment
method by the remote device;
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[7] in response to receiving each indication of the items and the
payment method, facilitating,
by the remote device,
delivery of the items to the user
without requesting additional input from the user other
than the actuation;
and
[8] in response to receiving each indication of the items and the
payment method, facilitating,
by the remote device,
completion of payment for the items
using the payment method
without requesting additional input from the user other
than the actuation.
The Examiner relies upon the following prior art:
Bueno
Bowman-Amuah
("Bowman")
Robinson
US 2002/0013734 Al
US 7,289,964 Bl
US 8,370,271 Bl
Jan. 31, 2002
Oct. 30, 2007
Feb. 5,2013
Claims 1-21 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 1-21 stand rejected under 35 U.S.C. § 112(b) as failing to
particularly point out and distinctly claim the invention.
Claims 1, 2, 5, 7, 8, 10, 11, 14--16, and 18-21 stand rejected under 35
U.S.C. § I03(a) as unpatentable over Robinson.
Claims 3, 4, 6, 12, and 13 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Robinson and Bowman.
Claims 9 and 17 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Robinson and Bueno.
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ISSUES
The issues of eligible subject matter tum primarily on whether the
claims recite more than abstract conceptual advice of what a computer is to
provide without implementation details.
The issues of indefiniteness tum primarily on whether the claim terms
are broad or indefinite.
The issues of obviousness tum primarily on whether Robinson
describes establishing, by a computing device of the user, a control in a user
interface that may be actuated by the user to place an order for delivery of
the items paid for using the payment method in response to receiving the
indication of items and the indication of the payment method.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Appellant's Disclosure
01. The only support from the Specification for the limitation of
in response to receiving the indication of items and the
indication of the payment method, establishing, by a
computing device of the user, a control in a user interface
that may be actuated by the user to place an order for
delivery of the items paid for using the payment method
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is Specification paragraphs 209 and 210. These paragraphs recite
phrasing similar to that in the claims and provide no implementation
details or examples of how such response is detected or performed. 3
Facts Related to the Prior Art
Robinson
02. Robinson is directed to recurring delivery of products to a
customer on a periodic basis, without requiring the customer
repeatedly place orders for the products. Robinson 2:7-10.
03. Robinson describes a recurring delivery module that allows the
customer to select products for recurring delivery, specify a
quantity and frequency of delivery for each product, specify a
delivery address, specify a delivery slot for the delivery of the
products, and specify a payment method for the delivery. The
customer makes these selections through a user interface.
Robinson 4:8-18.
04.Robinson describes a recurring delivery module that store the
customer's selections of products for recurring delivery in a
recurring delivery list. The recurring delivery module allows the
customer to manage the product selections and other parameters in
3 We note for the record an ambiguity in Specification paragraphs 208-228.
Paragraph 208 explicitly states that the remaining paragraphs are
embodiments and not claims. Paragraphs 211-218 and 220-228 refer to
paragraphs 209,210, and 219 as claims and not as embodiments. This has
no effect on the analysis here, but the ambiguity may require resolution in
any continued prosecution.
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the recurring delivery list, such as changing the quantity and/or
frequency of delivery of a product or suspending the delivery of a
product for a specified period or indefinitely. The customer may
manage the recurring delivery list through a UI presented by the
recurring delivery module to the customer at the customer
computer, as will be described in regard to Figures 8-11.
Robinson 4:32-52.
OS.Robinson describes the user interface as including UI components
that provide information regarding a number of scheduled future
orders that may be generated from the recurring delivery list. The
group of UI components display the date of delivery of the future
orders. In addition, a number of delivery indicator icons display
whether the product identified in the corresponding list item is to
be included in each of the future orders. Robinson 12:31--40.
ANALYSIS
Claims 1-21 rejected under 35 US.C. § 101 as directed to ajudicial
exception without significantly more
Method claim 1 recites receiving indications of items and payments,
in response to receiving, establishing a control, and receiving actuations of
that control, in response to such actuations, transmitting and receiving
indications, and in response to such receivings, somehow facilitating
delivery and payment. Thus, claim 1 recites receiving, analyzing,
modifying, displaying, and transmitting data. None of the limitations recite
implementation details for any of these steps, but instead recite functional
results to be achieved by any and all possible means. Data reception,
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analysis, modification, display, and transmission are all generic,
conventional data processing operations to the point they are themselves
concepts awaiting implementation details. The sequence of data
reception-analysis-modification----display-transmission is equally
generic and conventional. The ordering of the steps is, therefore, ordinary
and conventional. The remaining claims merely describe process
parameters, with no implementation details.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, ...
determine whether the claims at issue are directed to one of those
patent-ineligible concepts .... If so, we then ask, "[ w ]hat else is
there in the claims before us? . . . To answer that question, . . .
consider the elements of each claim both individually and "as an
ordered combination" to determine whether the additional
elements "transform the nature of the claim" into a patent-
eligible application .... [The Court] described step two of this
analysis as a search for an "'inventive concept"'-i.e., an
element or combination of elements that is "sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself."
Alice Corp. Pty. Ltd. v. CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Examiner determines
the claims to be directed to "allowing consumers to shop, optionally place
recurring orders for merchandise and having the items delivered." Final Act.
5.
Although the Court in Alice Corp. Pty. Ltd. made a determination as
to what the claims were directed to, we find that this case's claims
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themselves and the Specification provide enough information to inform one
as to what they are directed to.
The preamble to claim 1 does not recite what it is directed to, but the
steps in claim 1 result in order entry and somehow facilitating delivery and
payment, absent any technological mechanism other than a conventional
computer for doing so. In particular, actual delivery and payment are
outside the scope of the claim. Order entry per se facilitates shipping and
payment, if only by providing the address to be shipped to and the amount to
be paid. The Specification provides no description of what the invention
relates to, but instead only describes various embodiments. Thus, all this
evidence shows that claim 1 is an embodiment directed to order entry and
somehow facilitating delivery and payment, i.e., order entry. This is
consistent with the Examiner's determination.
It follows from prior Supreme Court cases, and Bilski (Bilski v.
Kappas, 561 U.S. 593 (2010)) in particular, that the claims at issue here are
directed to an abstract idea. Like the risk hedging in Bilski, the concept of
order entry is a fundamental economic practice long prevalent in our system
of commerce. The use of order entry is also a building block of ingenuity in
any modem economy. Thus, order entry, like hedging, is an "abstract idea"
beyond the scope of§ 101. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2356.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of order entry
at issue here. Both are squarely within the realm of "abstract ideas" as the
Court has used that term. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2357.
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Further, claims involving data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing it, and
displaying certain results of the collection and analysis" are "a familiar class
of claims 'directed to' a patent ineligible concept"); see also In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, analysis,
modification, display, and transmission and does not recite an improvement
to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims
not abstract because they "focused on a specific asserted improvement in
computer animation"). As such, claim 1 is directed to the abstract idea of
receiving, analyzing, modifying, displaying, and transmitting data.
The remaining claims merely describe process parameters. We
conclude that the claims at issue are directed to a patent-ineligible concept.
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it"' is not
enough for patent eligibility. Nor is limiting the use of an abstract
idea "'to a particular technological environment."' Stating an
abstract idea while adding the words "apply it with a computer"
simply combines those two steps, with the same deficient result.
Thus, if a patent's recitation of a computer amounts to a mere
instruction to "implemen[ t ]" an abstract idea "on . . . a
computer," that addition cannot impart patent eligibility. This
conclusion accords with the preemption concern that undergirds
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our§ 101 jurisprudence. Given the ubiquity of computers, wholly
generic computer implementation is not generally the sort of
"additional featur[ e ]" that provides any "practical assurance that
the process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (internal citations omitted).
"[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer." Alice Corp. Pty. Ltd., 134 S. Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, analyzing, modifying, displaying, and transmitting
data amounts to electronic data query and retrieval----one of the most basic
functions of a computer. The limitation of generating a control is itself part
of generating an interface, as a user interface requires controls by definition.
Such controls in interfaces have been part of generic computers since at least
the advent of windowing operating systems, as evidenced by Microsoft
Windows and Unix XWindows. All of these computer functions are well-
understood, routine, conventional activities previously known to the
industry. See Elec. Power Grp. v. Alstom S.A., supra. Also see In re Katz,
639 F.3d 1303, 1316 (Fed. Cir. 2011) ("Absent a possible narrower
construction of the terms 'processing,' 'receiving,' and 'storing,' ... those
functions can be achieved by any general purpose computer without special
programming"). In short, each step does no more than require a generic
computer to perform generic computer functions. As to the data operated
upon, "even if a process of collecting and analyzing information is 'limited
to particular content' or a particular 'source,' that limitation does not make
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the collection and analysis other than abstract." SAP Am. Inc. v. InvestPic
LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (internal citation omitted).
Considered as an ordered combination, the computer components
of Appellant's method add nothing that is not already present when
the steps are considered separately. The sequence of data
reception-analysis-modification----display-transmission is equally
generic and conventional or, otherwise, held to be abstract. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Commc 'ns, LLC, 874
F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is, therefore,
ordinary and conventional.
Viewed as a whole, Appellant's method claims simply recite the
concept of order entry as performed by a generic computer. To be sure, the
claims recite doing so by advising one to enter data as to items and payment,
generate an interface control to transmit the data, and somehow facilitate
delivery and payment. But this is no more than abstract conceptual advice
on the parameters for such order entry and the generic computer processes
necessary to process those parameters, and do not recite any particular
implementation. Again, the data entered and transmitted facilitates payment
and delivery by providing address and amount.
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The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The Specification spells out
different generic equipment4 and parameters that might be applied using this
concept and the particular steps such conventional processing would entail
based on the concept of order entry under different scenarios. They do not
describe any particular improvement in the manner a computer functions.
Instead, the claims at issue amount to nothing significantly more than an
instruction to apply the abstract idea of order entry using some unspecified,
generic computer. Under our precedents, that is not enough to transform an
abstract idea into a patent-eligible invention. See Alice Corp. Pty. Ltd., 134
S. Ct. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic computer
components configured to implement the same idea. This Court
has long "warn[ ed] ... against" interpreting § 101 "in ways that
make patent eligibility 'depend simply on the draftsman's art."'
Alice Corp. Pty. Ltd., 134 S. Ct. at 2360.
As to Appellant's Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from the Final Office Action at pages 4--7 and
Answer at pages 15-27 and reach similar legal conclusions. We now tum to
the Reply Brief.
4 The Specification describes using appropriately programmed general
purpose computers. Spec. para. 62.
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We are not persuaded by Appellant's argument that the Examiner
failed to show that the claims are directed to an abstract idea. Reply Br. 2--4.
Claims 1-21 rejected under 35 US.C. § l 12(b) as failing to particularly
point out and distinctly claim the invention
We are persuaded by Appellant's argument that the claim terms the
Examiner refers to are broad rather than indefinite. App. Br. 22-25. First,
Appellant contends
Moreover, the PTO interim guidelines, which are binding
on the Examiner, require an analysis of the abstract idea that
includes citation to related cases with similar claims when claims
are found to be abstract. There is no citation to any similar
concept or case as required by the PTO guidelines.
Reply Br. 3. Appellant mischaracterizes the purpose of section 1 (B)(3) of
the USPTO's 2014 INTERIM GUIDANCE ON PATENT SUBJECT MATTER
ELIGIBILITY guidelines as placing a requirement on the Examiner. Rather,
section l(B)(3) is available to the Examiner as a discretionary streamlined
§ 101 Alice/Mayo analysis favoring Applicant. Section l(B)(3) is explicit
that "if there is doubt as to whether the applicant is effectively seeking
coverage for a judicial exception itself, the full analysis should be
conducted." Emphasis added. Contrary to Appellant's argument, the
streamlined patent-eligibility analysis under section l(B)(3) is not required
to be available to Appellant; rather, it is at the Examiner's discretion. The
Examiner choosing to perform a full § 101 Alice/ Mayo analysis is not an
error.
This case, unlike Enfzsh, presents a "close call[] about how to
characterize what the claims are directed to." See [Enfzsh LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016)]. ... The
Enfzsh claims, understood in light of their specific limitations,
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were unambiguously directed to an improvement in computer
capabilities. See id. at 1335-37 .... Here, in contrast, the claims
and their specific limitations do not readily lend themselves to a
step-one finding that they are directed to a nonabstract idea. We
therefore defer our consideration of the specific claim
limitations' narrowing effect for step two.
BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d
1341, 1349 (Fed. Cir. 2016).
Further, any Examiner's failure to follow the Director's guidance is
appealable only to the extent that the Examiner has failed to follow the
statutes or case law. That is, to the extent the Director's guidance goes
beyond the case law and is more restrictive on the Examiner than the case
law, failure of the Examiner to follow those added restrictions is a matter for
petition to the Director. We review Appellant's particular arguments against
the case law and find no requirement in the law that the Examiner perform a
section l(B)(3) streamlined§ 101 Alice/Mayo analysis.
Appellant then contends "these claims clearly add functionality to a
computer that was previously not available." Reply Br. 3. But the idea of
adding functionality is just that, an idea, which is an abstraction. No
technological implementation details are recited.
Finally, Appellant contends the claims do not preempt the abstract
idea identified. Reply Br. 3--4. "Where a patent's claims are deemed only to
disclose patent ineligible subject matter under the Mayo[/Alice] framework,
as they are in this case, preemption concerns are fully addressed and made
moot." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379
(Fed. Cir. 2015).
We are not persuaded by Appellant's argument that there is no
showing of fundamentality and long prevalence. Reply Br. 4. Such a
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showing as to the operations involved are described supra. As to the
fundamentality of order entry, the long history of order entry forms is more
than enough to take notice of. As to the limitation of establishing a control
in response to entering order data, this is the equivalent of a salesperson
taking up pen and entry form after a customer asks for an item and is quoted
a price, but in the computer context.
We are not persuaded by Appellant's argument that organizing human
activity is an improper rationale. Reply Br. 4--5. This rationale is not
necessary to the rejection, but in any event, the Alice Corp. Pty. Ltd. Court
held such to be a basis for finding an activity to be abstract. Alice Corp. Pty.
Ltd., 134 S. Ct. at 2356. Appellant contends "certain methods of organizing
human activities was never identified as a category of abstract idea but
rather used as a manner of distinguishing cases." App. Br. 9 (internal
quotation marks and citation omitted). The Court in Alice Corp. Pty. Ltd.,
however, recited this as characterizing the Bilski claims found abstract,
which renders the characterization as a category of abstract ideas.
We are not persuaded by Appellant's argument that the remaining
limitations add significantly more. Reply Br. 9-10. Such showing is
included supra.
Claims 1, 2, 5, 7, 8, 10, 11, 14-16, and 18-21 rejectedunder35 US.C.
§ 103(a) as unpatentable over Robinson
We are persuaded by Appellant's argument that Robinson fails to
describe establishing, by a computing device of the user, a control in a user
interface that may be actuated by the user to place an order for delivery of
the items paid for using the payment method in response to receiving the
indication of items and the indication of the payment method. This
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limitation requires that the control itself, as contrasted with the data the
control affects, is established in response to the recited criteria. The
Examiner cites Robinson column 2, lines 7-18 (Final Act. 13) and Robinson
column 4, lines 32-52 (Ans. 31 ). Both of these portions describe altering
the data with a control and not establishing the control in response to the
data entry. None of Robinson's figures even show so much as a
confirmation control established after data entry. Robinson's figures and
text imply changes to delivery data occur as the data is altered, so Robinson
would have no need for establishing a control as recited in the claims.
Claims 3, 4, 6, 12, and 13 rejected under 35 US.C. § 103(a) as unpatentable
over Robinson and Bowman
These are dependent claims.
Claims 9 and 17 rejected under 35 US.C. § 103(a) as unpatentable over
Robinson and Bueno
These are dependent claims.
CONCLUSIONS OF LAW
The rejection of claims 1-21 under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more is proper.
The rejection of claims 1-21 under 35 U.S.C. § 112(b) as failing to
particularly point out and distinctly claim the invention is improper.
The rejection of claims 1, 2, 5, 7, 8, 10, 11, 14--16, and 18-21 under
35 U.S.C. § 103(a) as unpatentable over Robinson is improper.
The rejection of claims 3, 4, 6, 12, and 13 under 35 U.S.C. § 103(a) as
unpatentable over Robinson and Bowman is improper.
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The rejection of claims 9 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Robinson and Bueno is improper.
DECISION
The rejection of claims 1-21 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED
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