Ex Parte McLaughlin et al

Patent Trial and Appeal Board

Aug 14, 2018

12071821 (P.T.A.B. Aug. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/071,821 02/27/2008 Edward Joseph McLaughlin
22428 7590 08/16/2018
Foley & Lardner LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
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.
057898-0126 4788
EXAMINER
ALI,HATEMM
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
08/16/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD JOSEPH MCLAUGHLIN,
WILLIAM TAO-YANG WONG, and
BART CURTIS BOSTER
Appeal2016-006535
Application 12/071,821 1
Technology Center 3600
Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
NINA L. MEDLOCK, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Edward Joseph McLaughlin et al. (Appellants) seek our review under
35 U.S.C. § 134(a) of the Final Rejection of claims 2-6, 8-20, and 43-57.
We have jurisdiction under 35 U.S.C. § 6(b).
An oral hearing was held on March 29, 2018.
1 The Appellants identify N etDeposit, LLC as the real party in interest.
Appeal Br. 3.
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Application 12/071, 821
We AFFIRM.
SUMMARY OF DECISION
THE INVENTION
Claim 49, reproduced below, is illustrative of the subject matter on
appeal.
49. A computer-implemented method for processing checks,
compnsmg:
receiving, by one or more computers, electronically data
regarding an identity of a human depositor for paper checks for a
corporate entity with multiple deposit accounts;
scanning, by the one or more computers, paper checks to obtain
a respective image file of a face of the respective paper check and
respective check data therefor;
determining, by the one or more computers, electronically for
the checks the corporate entity and a plurality of the deposit accounts
of the corporate entity associated with the identity of the depositor;
selecting, by the one or more computers, one of the deposit
accounts from among the plurality of deposit accounts of the
corporate entity based at least in part on one or more selected from the
group:
characteristics of magnetic ink character recognition
(MICR) data from the face of the check, the identity of the
human depositor, a time of day, a cost of the check to clear, and
a check amount;
determining, by the one or more computers, if the
corporate entity or the deposit account selected is associated
with a request to embed a corporate payee endorsement in a
check image file;
embedding, by the one or more computers, corporate
endorsement data into the image file of a face of a check, when
there is an association to a request to embed;
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and
creating, by the one or more computers, a file that
includes the image file of the face of the check with the
embedded endorsement data therein in a file format for
clearing;
sending, by one or more computers, electronically the file
to an electronic portal;
sending electronically different of the files to different banks of
first deposit wherein one of the deposit accounts is selected from
among the plurality of deposit accounts of the corporate entity using
at least the identity of the human depositor.
THE REJECTION
The following rejection is before us for review:
1. Claims 2---6, 8-20, and 43-57 are rejected under 35 U.S.C. § 101 as
being directed to judicially-excepted subject matter.
ISSUE
Did the Examiner err in rejecting claims 2---6, 8-20, and 43-57 under
35 U.S.C. § 101 as being directed to judicially-excepted subject matter?
ANALYSIS
The Appellants argued these claims as a group. See Appeal Br. 10-
27. We select claim 49 as the representative claim for this group, and the
remaining claims 2---6, 8-20, 43--48, and 50-57 stand or fall with claim 49.
37 C.F.R. § 4I.37(c)(l)(iv).
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Alice Corp. Party. Ltd. v. CLS Bank International, 134 S. Ct. 2347
(2014) identifies a two-step framework for determining whether claimed
subject matter is judicially-excepted from patent eligibility under § 101.
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, 134 S. Ct. at 2355.
In that regard, the Examiner initially determined that
[t]he claim(s) is/are directed to the abstract idea of a
fundamental economic practice of processing checks, by one or more
computers with an electronic portal for receiving electronic data
regarding an identity of a human depositor for paper checks for a
corporate entity with a plurality of deposit accounts and to embed a
corporate payee endorsement in a check image file to send
electronically to an electronic portal.
Final Rej. 5. Later the Examiner determined that "[t]he claims are directed
to an abstract idea of processing check deposits." Ans. 2.
The Appellants disagree.
The Appellants begin by questioning the sufficiency of the procedure
the Examiner used in determining that claim 49 is directed to the abstract
idea of processing check deposits. Appeal Br. 10-12. But the central
concern is a legal one; that is, whether the Examiner properly characterized
the concept the claimed subject matter is directed to and whether such a
concept is an abstract idea. "Whether an invention recites patent-eligible
subject matter under section 101 is a pure question of law [ ]. Genetic
Techs. Ltd. v. Merial LLC., 818 F.3d 1369, 1373 (Fed. Cir. 2016)." In re
Wang,_F. App'x._, 2018 WL 3045563, at *2 (Fed. Cir. June 20, 2018).
Be that as it may, the Examiner correctly followed the Alice two-step
framework to make a determination as to whether the claim is directed to an
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abstract idea. See Final Rej. 4--7 whereat the Alice framework is applied in
detail. In doing so, the Appellants were put on notice of the reasons for the
rejection. See 35 U.S.C. § 132, which sets forth a more general notice
requirement whereby the applicant is notified of the reasons for a rejection
together with such information as may be useful in judging the propriety of
continuing with prosecution of the application. See also In re Jung, 637
F.3d 1356, 1362 (Fed. Cir. 2011).
The Appellants next argue that the Examiner was wrong in
characterizing claim 49 as being directed to "processing checks."
However, claim 49 introduces the subject matter the Appellants are
claiming precisely as the Examiner has characterized it: "49. A computer-
implemented method for processing checks [ ]." Cf Two-Way Media Ltd. v.
Comcast Cable Communications, LLC, 874 F.3d 1329, 1340 (Fed. Cir.
2017) ("[W]e see no error here in the district court citing to the preamble in
its review of whether the claims are directed to an abstract idea.")
Moreover, the general description of the invention set forth in the
Specification is one of processing checks. See para 2: "[i]n one
embodiment, a computer-implemented method is provided for processing
checks .... "
The Appellants are correct that "processing checks" characterizes the
concept to which claim 49 is directed at a "high level abstract idea." Appeal
Br. 12. The Appellants are also correct that "it is imperative that the specific
claim language be analyzed when identifying an abstract idea." Appeal
Br. 13. And the Appellants are correct that "[p ]ertinent to the Step 2A
"directed to" analysis is whether the claim as a whole pre-empts a judicial
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exception to patent-eligibility, i.e., a law of nature, natural phenomenon, or
abstract idea." Appeal Br. 14. However, we disagree that the Examiner
discounted the claim as a whole, including all its limitations, in reaching the
determination that claim 49 is directed to the "processing checks" abstract
idea.
The Examiner initially articulated that the claims are directed to the
practice of "processing checks, by one or more computers with an electronic
portal for receiving electronic data regarding an identity of a human
depositor for paper checks for a corporate entity with a plurality of deposit
accounts and to embed a corporate payee endorsement in a check image file
to send electronically to an electronic portal." Final Rej. 5. Accordingly,
the Examiner did consider the claim as a whole. That articulation described
the concept at a lower level of abstraction. The later articulation
("processing check deposits") simply described the concept to which
claim 49 is directed at a different, albeit, higher level of abstraction.
Cf Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240-1241 (Fed. Cir.
2016) ("An abstract idea can generally be described at different levels of
abstraction. As the Board has done, the claimed abstract idea could be
described as generating menus on a computer, or generating a second menu
from a first menu and sending the second menu to another location. It could
be described in other ways, including, as indicated in the specification,
taking orders from restaurant customers on a computer.") Irrespective of the
level of abstraction the concept to which the claim is directed to is
characterized, the claim is directed to an abstract idea.
To be sure,
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[t]he "directed to" inquiry [] cannot simply ask whether the claims
involve a patent-ineligible concept, because essentially every routinely
patent-eligible claim involving physical products and actions involves
a law of nature and/or natural phenomenon-after all, they take place
in the physical world. See Mayo, 132 S. Ct. at 1293 ("For all
inventions at some level embody, use, reflect, rest upon, or apply laws
of nature, natural phenomena, or abstract ideas.") Rather, the
"directed to" inquiry applies a stage-one filter to claims, considered in
light of the specification, based on whether "their character as a whole
is directed to excluded subject matter." Internet Patents Corp. v.
Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015); see
Genetic Techs. Ltd. v. Merial L.L.C., 2016 WL 1393573, at *5
(Fed. Cir. 2016) (inquiring into "the focus of the claimed advance
over the prior art").
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016).
With respect to computer-enabled claimed subject matter, it can be
helpful to determine whether "the claims at issue in [ ] can readily be
understood as simply adding conventional computer components to well-
known business practices" or not. Id. at 1338. See also Affinity Labs of
Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016).
In Enfzsh, for example, the court noted that "[ s ]oft ware can make
non-abstract improvements to computer technology just as hardware
improvements can[.]" Id. The court put the question as being "whether the
focus of the claims is on [a] specific asserted improvement in computer
capabilities ... or, instead, on a process that qualifies as an 'abstract idea'
for which computers are invoked merely as a tool." Enfish at 1335-1336.
In Enfzsh, the court found that the "plain focus of the claims" there was on
"an improvement to computer functionality itself, not on economic or other
tasks for which a computer is used in its ordinary capacity." Id at 1336.
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"In determining the eligibility of respondents' claimed process for
patent protection under § 101, their claims must be considered as a whole."
Diamond v. Diehr, 450 U.S. 175, 188 (1981). The question is whether the
claims as a whole "focus on a specific means or method that improves the
relevant technology" or are "directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery." McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir.
2016).
In this case, the claims as a whole are focused not on any
improvement to computer functionality but on using generic devices in their
ordinary capacity in order to practice a scheme for processing checks; that is,
(a) receiving information A, (b) scanning paper checks to obtain an image,
( c) determining information B; ( d) selecting one of deposit accounts from
among a plurality of deposit accounts of a corporate entity based at least in
part on "sending, by one or more computers, electronically the file to an
electronic portal"; and ( e) "sending electronically different of the files to
different banks of first deposit wherein one of the deposit accounts is
selected from among the plurality of deposit accounts of the corporate entity
using at least the identity of the human depositor," where A = "an identity of
a human depositor for paper checks for a corporate entity with multiple
deposit accounts" and B = "the corporate entity and a plurality of the deposit
accounts of the corporate entity associated with the identity of the
depositor." Claim 49. The other independent claims - claims 44 and 54 -
parallel this scheme.
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The Specification supports the view that the focus of the invention is
on a scheme for depositing checks, and not on any on any improvement to
computer functionality. This is so because the Specification repeatedly
states that the invention can be implemented via a "general purpose"
computer. See e.g., para. 26. Cf In re TL! Communications LLC Patent
Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016) (the claims' focus "was not
on an improved telephone unit or an improved server.")
"The 'abstract idea' step of the inquiry calls upon us to look at the
'focus of the claimed advance over the prior art' to determine if the claim's
'character as a whole' is directed to excluded subject matter."' Affinity
Labs, 838 F.3d at 1257 (quoting Elec. Power Grp., LLC v. Alstom S.A., 830
F.3d 1350, 1353 (Fed. Cir. 2016); see also Enfzsh, 822 F.3d at 1335, quoted
in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016).
In that regard, the Specification indicates that
[ t ]he present invention contemplates both methods and systems for
remotely accepting an instrument, such as a check, for deposit and
electronically processing the deposit without need for physically
routing the physical paper copy of the instrument.
Para. 25. The Specification also indicates that "[a]s this system may be
designed to process deposits for multiple customers, with different
respective banks of first deposit, the system of the present invention is
capable of sending communications regarding deposits to multiple banks of
first deposit." Para. 73. The heart of the invention appears to be in
electronically processing checks for multiple customers. Cf Intellectual
Ventures I LLC v. Erie Indemnity Company, 850 F.3d 1315, 1328 (Fed. Cir.
2017) ("the heart of the claimed invention lies in creating and using an index
to search for and retrieve data . . . an abstract concept.").
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Given the focus of the claims as a whole is on using generic devices in
their ordinary capacity for implementing a scheme for depositing checks as
set forth in the claim and, in light of the Specification, the heart of the
invention is electronically depositing checks for multiple customers, the
claims are properly characterized as being "directed to," as the Examiner
initially characterized it, "processing checks, by one or more computers with
an electronic portal for receiving electronic data regarding an identity of a
human depositor for paper checks for a corporate entity with a plurality of
deposit accounts and to embed a corporate payee endorsement in a check
image file to send electronically to an electronic portal." Final Rej. 5.
We now tum to the question of whether said concept which the claims
are "directed to" is a patent-ineligible abstract idea.
"[T]he decisional mechanism courts now apply [ to help answer that
question] 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." Amdocs (Israel) Limited v. Openet Telecom, Inc.,
841 F.3d 1288, 1294 (Fed. Cir. 2016). In that regard, we see little difference
between said concept and the concepts at issue in Content Extraction and
Transmission LLC v. Wells Fargo Bank, Nat. Ass 'n, 776 F.3d 1343, 1347
(Fed. Cir. 2014):
the abstract idea of 1) collecting data, 2) recognizing certain data
within the collected data set, and 3) storing that recognized data in a
memory. The concept of data collection, recognition, and storage is
undisputedly well-known. Indeed, humans have always performed
these functions. And banks have, for some time, reviewed checks,
recognized relevant data such as the amount, account number, and
identity of account holder, and stored that information in their records.
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Notably, as in claim 49, some of the claims at issue in Content Extraction
included a "scanner." See e.g., claim 15 of US 5,369,508. Several other
decisions involving claims to check processing have held such claims as
directed to abstract ideas, including Global Check Services, Inc. v.
Electronic Payment Systems, LLC, Case No. 1:14-cv-01430-PAB-CBS
(D. Col. 2016), ajfd, 2017-1062 (Mem) (Fed. Cir. 2017) and Fidelity
National Information Services, Inc. v. DataTreasury Corp., 2015 WL
1967327 (PTAB April 29, 2015), ajfd, 2016 WL 5939431 (Mem) (Fed. Cir.
2016).
Accordingly, we agree with the Examiner's determination that
claim 49 is directed to an abstract idea.
We note the Appellants direct our attention to apparatus claim 44. See
Appeal Br. 13 and 24 where claim 44 is reproduced and various recited
elements and functions bolded. But the "electronic portal," "association-
determining electronic device," and "selecting component" cover well-
known and conventional devices, not any assertedly inventive technology.
The Specification supports this view. See e.g., para. 3 ("the electronic portal
is a substitute check (IRD) printer"). Cf Interval Licensing LLC v. AOL,
Inc.,_ F.3d. _, 2018 WL 3485608, at *6 (Fed. Cir. July 20, 2018).
Other software-based claimed inventions, however, have failed
to pass section 101 muster, because they did not recite any assertedly
inventive technology for improving computers as tools and/or because
the elements of the asserted invention were so result-based that they
amounted to patenting the patent-ineligible concept itself.
See also Credit Acceptance Corp. v. Westlake Services, LLC, 859 F .3d 1044,
1057 (Fed. Cir. 2017):
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Significantly, the claims do not provide details as to any non-
conventional software for enhancing the financing process. See
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332,
1342 (Fed. Cir. 2017) (explaining that "[o]ur law demands more" than
claim language that "provides only a result-oriented solution, with
insufficient detail for how a computer accomplishes it"); Elec. Power
Grp., 830 F.3d at 1354 [Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1354 (Fed. Cir. 2016)] (explaining that claims are
directed to an abstract idea where they do not recite "any particular
assertedly inventive technology for performing [ conventional]
functions").
We now tum to the step two determination.
Step two is "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."' Id. (alteration in original) (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1294 (2012)).
The Examiner determined, inter alia, that
[ t ]he additional element( s) or combination of elements in the claim( s)
other than the abstract idea per se amount(s) to no more than: (i) mere
instructions to implement the idea on a computer, and/or (ii) recitation
of generic computer structure that serves to perform generic computer
functions that are well-understood, routine, and conventional activities
previously known to the pertinent industry. Viewed as a whole, these
additional claim element( s) do not provide meaningful limitation( s) to
transform the abstract idea into a patent eligible application of the
abstract idea such that the claim(s) amounts to significantly more than
the abstract idea itself.
Final Rej. 5.
The Appellants disagree.
According to the Appellants
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[i]n particular, the claims are directed to an unconventional
combination for improving upon prior art computer check processing
systems, and particularly to solving a problem in the manual and
computer check art in the context of volume corporate check
processing that highlights the always-present fundamental limitation
to computer check processing; that miss-keying account numbers at
the front end will void whatever sophisticated processing might
follow, i.e., the technical problem that computer computation is only
as good as the accuracy of the data input.
Appeal Br. 1 7.
A principal difficulty with this argument is that it is not commensurate
in scope with what is claimed. Claim 49 is not limited so as to be directed to
volume corporate check processing. Nor is the subject matter claimed so
that in practice it necessarily reduces miss-keying account numbers at the
front end.
The Appellants go through the steps of claimed scheme and conclude
that "[a] result of this system is that the manual deposit slip process
and/or the requirement to key in an account number are eliminated from
the generic process in the context of multiple corporate accounts, thereby
eliminating computer processing steps and the potential for error attendant to
such corporate deposits." Appeal Br. 22-23. The Appellants also argue that
"[t]his ordered combination is not in the manual or computer-implemented
prior art for check processing, and it adds a dimension that cuts out the
deposit slip operation and account keying and allows use as a clearinghouse
for multiple banks of first deposit in a corporate deposit process.
Accordingly, the claim as a whole goes substantially beyond any prior art
check deposit process." App. Br. 23. But using a generic computer to do
what was previously done by hand more quickly and accurately is
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insufficient to transform the check processing scheme into an inventive
concept. "[R ]elying on a computer to perform routine tasks more quickly or
more accurately is insufficient to render a claim patent eligible." OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015).
We note the Appellants' argument that "[i]f the claimed method and
system is novel and non-obvious, it could not possibly monopolize a
'fundamental economic practice long prevalent in our system of
commerce,' but rather inherently adds significantly more to the alleged
abstract idea." App. Br. 26. However, a finding of novelty or
nonobviousness does not necessarily lead to the conclusion that subject
matter is patentable eligible. "Groundbreaking, innovative, or even brilliant
discovery does not by itself satisfy the§ 101 inquiry." Ass 'nfor Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2117 (2013). The
question in step two of the Alice framework is not whether an additional
feature is novel but whether the implementation of the abstract idea involves
"more than the performance of 'well-understood, routine, [and] conventional
activities previously known to the industry."' Content Extraction, 77 6 F .3d
at 1347--48 (quoting Alice, 134 S. Ct. at 2359).
On the concern of pre-emption, "[ w ]hat matters is whether a claim
threatens to subsume the full scope of a fundamental concept, and when
those concerns arise, we must look for meaningful limitations that prevent
the claim as a whole from covering the concept's every practical
application." CLS Bank Intern. v. Alice Corp. Pty. Ltd., 717 F.3d 1269,
1281 (Fed. Cir. 2013) (Lourie, J., concurring). Here, said argued-over claim
limitations simply narrow the abstract idea so that it is described at a lower
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level of abstraction. They do not render the abstract idea to which the claim
is directed any less an abstract idea. Moreover, pre-emption is not a separate
test.
To be clear, the proper focus is not preemption per se, for some
measure of preemption is intrinsic in the statutory right granted with
every patent to exclude competitors, for a limited time, from
practicing the claimed invention. See 35 U.S.C. § 154. Rather, the
animating concern is that claims should not be coextensive with a
natural law, natural phenomenon, or abstract idea; a patent-eligible
claim must include one or more substantive limitations that, in the
words of the Supreme Court, add "significantly more" to the basic
principle, with the result that the claim covers significantly less. See
Mayo, 132 S. Ct. at 1294. Thus, broad claims do not necessarily raise
§ 101 preemption concerns, and seemingly narrower claims are not
necessarily exempt.
Id. See also Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
13 79 (Fed. Cir. 2015) ("[ w ]hile preemption may signal patent ineligible
subject matter, the absence of complete preemption does not demonstrate
patent eligibility."). Because we find the claimed subject matter covers
patent-ineligible subject matter, the pre-emption concern is necessarily
addressed. "Where a patent's claims are deemed only to disclose patent
ineligible subject matter under the Mayo framework, [] preemption concerns
are fully addressed and made moot." Ariosa Diagnostics, 788 F.3d at 1379.
For the foregoing reasons, we agree with the Examiner's
determination that claim 49 does not include an element or combination of
elements sufficient to ensure that the claimed subject matter in practice
amounts to significantly more than the abstract idea itself.
We have considered all of the Appellants' remaining arguments and
have found them unpersuasive. Accordingly, because representative
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claim 49, and claims 2---6, 8-20, 43--48, and 50-57, which stand or fall with
claim 49, are directed to an abstract idea and do not present an "inventive
concept," we sustain the Examiner's determination that they are directed to
ineligible subject matter under 35 U.S.C. § 101. Cf LendingTree, LLC v.
Zillow, Inc., 656 F. App'x 991,997 (Fed. Cir. 2016) ("We have considered
all of Lending Tree's remaining arguments and have found them
unpersuasive. Accordingly, because the asserted claims of the patents in suit
are directed to an abstract idea and do not present an 'inventive concept,' we
hold that they are directed to ineligible subject matter under 35 U.S.C.
§ 101.").
DECISION
The decision of the Examiner to reject claims 2---6, 8-20, and 43-57 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)(iv).
AFFIRMED
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