Ex Parte Mehanian et al

Patent Trial and Appeal Board

Apr 24, 2018

13830957 (P.T.A.B. Apr. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/830,957 03/14/2013 Courosh Mehanian
500 7590 04/26/2018
SEED INTELLECTUAL PROPERTY LAW GROUP LLP
701 FIFTH A VE
SUITE 5400
SEATTLE, WA 98104
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.
400094.407 3343
EXAMINER
FRUNZI, VICTORIA E.
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
04/26/2018 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):
USPTOeAction@SeedIP.com
pairlinkdktg@seedip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte COUROSH MEHANIAN, LUCA CAZZANTI,
JULIE PENZOTTI, JACKSON FENG, and OLIVER DOWNS
Appeal2017-001964
Application 13/830,957
Technology Center 3600
Before JOHN A. JEFFERY, JUSTIN BUSCH, and SCOTT E. BAIN,
Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-28. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellants' invention targets offerings to telecommunications
customers by leveraging time series techniques that express entity-activity
data to dynamically classify the entity's behavior. See generally Abstract;
Spec. 1. Claim 1 is illustrative:
1 Appellants identify the real party in interest as Globys, Inc. App. Br. 2.
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1. A network device, comprising:
a transceiver to send and receive data over a network; and
a processor configured to perform actions, comprising:
receiving telecommunications customer data for a plurality of
customers;
extracting, for each of the plurality of customers from the
received telecommunications customer data, time series data for the
customer that identifies a changing balance on an account of the
customer;
analyzing the time series data for one of the plurality of
customers to identify a pattern in the changing balance on the account
of the one customer and to identify a modification to the identified
pattern;
determining that the identified modification to the identified
pattern results from a change in a telecommunication plan associated
with the account of the one customer; and
in response to determining that the identified modification
results from the change in the telecommunication plan, providing
promotional information to the one customer that is related to the
change in the telecommunication plan.
THE REJECTIONS
The Examiner rejected claims 1-28 under 35 U.S.C. § 101 as directed
to ineligible subject matter. Final Act. 2-3. 2
The Examiner rejected claims 1and3 under 35 U.S.C. § 102(e) as
anticipated by Raleigh et al. (US 2012/0101952 Al; Apr. 26, 2012)
(hereinafter "Raleigh"). Final Act. 3-7.
2 Throughout this opinion, we refer to (1) the Final Rejection mailed October
29, 2015 ("Final Act."); (2) the Appeal Brief filed April 29, 2016 ("App.
Br."); (3) the Examiner's Answer mailed September 23, 2016 ("Ans."); and
(4) the Reply Brief filed November 16, 2016 ("Reply Br.").
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The Examiner rejected claims 2, 4, 10, 11, 14, 18, and 22 under
35 U.S.C. § 103 as unpatentable over Raleigh and Erman et al. (US
8,565,718 Bl; Oct. 22, 2013) (hereinafter "Erman"). Final Act. 8-15.
The Examiner rejected claims 7, 17, and 24 under 35 U.S.C. § 103 as
unpatentable over Raleigh, Erman, and Gargi et al. (US 8,019,702 Bl; Sept.
13, 2011) (hereinafter "Gargi"). Final Act. 15-18.
The Examiner rejected claims 8, 9, 15, 16, and 23 under 35 U.S.C.
§ 103 as unpatentable over Raleigh, Erman, and Anderson et al. (US
2009/0132347 Al; May 21, 2009) (hereinafter "Anderson"). Final Act. 18-
22.
The Examiner rejected claim 5 under 35 U.S.C. § 103 as unpatentable
over Raleigh and Edler et al. (US 2010/0161319 Al; June 24, 2010)
(hereinafter "Edler"). Final Act. 22-23.
The Examiner rejected claim 6 under 35 U.S.C. § 103 as unpatentable
over Raleigh, Edler, and Jain et al. (US 2003/0212619 Al; Nov. 13, 2003)
(hereinafter "Jain"). Final Act. 23-24.
The Examiner rejected claims 12, 19-21, 25, and 27 under 35 U.S.C.
§ 103 as unpatentable over Raleigh, Erman, and Edwards et al. (US
2010/0262487 Al; Oct. 14, 2010) (hereinafter "Edwards"). Final Act. 24--
29.
The Examiner rejected claim 13 under 35 U.S.C. § 103 as
unpatentable over Raleigh, Erman, and Young et al. (US 2012/0115433 Al;
May 10, 2012) (hereinafter "Young"). Final Act. 29-31.
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The Examiner rejected claims 26 and 28 under 35 U.S.C. § 103 as
unpatentable over Raleigh, Erman, Edwards, 3 and Jain. Final Act. 31-33.
THE INELIGIBILITY REJECTION
The Examiner finds that the claimed invention is directed to an
abstract idea, namely providing targeted offers to consumers based on a
pattern of telecommunication data-a fundamental economic practice. Final
Act. 2; Ans. 7. According to the Examiner, the claimed elements do not add
significantly more to the abstract idea because, among other things, the
claims recite generic computing functionality that performs the recited
fundamental economic practice. Final Act. 2-3; Ans. 8-10. Based on these
findings, the Examiner concludes that the claims are ineligible under § 101.
Final Act. 2-3; Ans. 7-10.
Appellants argue that the claims are not directed to an abstract idea,
but rather are necessarily rooted in computer technology to address problems
specific to a networked environment, including improving efficiency when
dealing with vast amounts of telecommunications data. App. Br. 33-34;
Reply Br. 9-14. According to Appellants, by determining the relationship
between changes to telecommunications plans and the resulting changes in
usage patterns in the manner claimed, a services provider can deploy
3 Although the Examiner rejects claims 26 and 28 over Raleigh, Erman,
Edler, and Jain, these claims depend from claims 25 and 27, respectively,
that were rejected over Raleigh, Erman, and Edwards. Compare Final Act.
31 with Final Act. 24. Accordingly, we presume that the Examiner intended
to reject claims 26 and 28 over Raleigh, Erman, Edwards, and Jain in light of
this dependency, and treat the Examiner's error in this regard as harmless.
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computing resources more efficiently to reflect those changes. Reply
Br. 12-14.
Appellants add that, even if the claims are directed to an abstract idea
as the Examiner contends, the claims recite significantly more than the
abstract idea, namely by reciting ( 1) a centralized telecommunications
service provider that interacts with and provides functionality to users in
customized manners specific to those users, and (2) particular detailed
techniques for how such interactions are performed. App. Br. 35; Reply
Br. 14--17. According to Appellants, not only is the basis for the Examiner's
rejection unsupported, but the Examiner also failed to show that the claims
preempt using the alleged abstract idea in all fields. App. Br. 36; Reply Br.
17.
ISSUE
Has the Examiner erred in rejecting claims 1-28 by concluding that
they are directed to ineligible subject matter under§ 101? This issue turns
on whether the claimed invention is directed to a patent-ineligible abstract
idea and, if so, whether the recited elements---considered individually and as
an ordered combination-transform the nature of the claim into a patent-
eligible application of that abstract idea.
ANALYSIS
To determine whether claims are patent eligible under § 101, we apply
the Supreme Court's two-step test articulated in Alice Corp. Proprietary Ltd.
v. CLS Bank International, 134 S. Ct. 234 7 (2014 ). First, we determine
whether the claims are directed to a patent-ineligible concept: laws of nature,
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natural phenomena, and abstract ideas. Id. at 2354--55. If so, we then
proceed to the second step and examine the recited elements-both
individually and as an ordered combination-to determine whether the
claims contain an "inventive concept" sufficient to transform the claimed
abstract idea into a patent-eligible application. Id. at 2357.
Alice Step One
Applying Alice step one, we are not persuaded of error in the
Examiner's finding that the claimed invention is directed to an abstract idea,
namely providing offers to customers based on a pattern of data associated
with those customers (Final Act. 2; Ans. 7}-targeted promotion that is a
fundamental economic practice.
Independent claim 1 recites a network device with two structural
elements: a transceiver and a processor. The transceiver sends and receives
"data" over a network, but the processor performs different functions based
on receiving "telecommunications customer data"---data that is distinct from
the data sent and received by the transceiver.
Notably, the recited transceiver has no further involvement in the
processor's functionality recited in claim 1. That is, the processor and its
associated functionality do not refer to, let alone utilize, the transceiver or its
associated functionality. As claimed, the transceiver and processor are
distinct elements of the recited network device that function independently
of the other.
We emphasize this distinction, for the claim is directed primarily to
the processor's functionality-not the transceiver. Indeed, the processor's
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functionality forms the principal basis for this dispute with respect to both
the eligibility and prior art rejections.
According to claim 1, the processor is configured to perform various
functions, namely ( 1) receive telecommunications customer data for plural
customers; (2) extract time series data for each customer from the received
data; (3) analyze the time series data for one customer to identify (a) a
pattern in the changing balance on the customer's account, and (b) a
modification to the identified pattern; ( 4) determine that the identified
modification results from a change in telecommunications plan associated
with the customer's account; and (5) provide promotional information to the
customer related to that change responsive to determining that the identified
modification results from the change.
In essence, the recited processor of claim 1 ( 1) receives data;
(2) extracts certain data from the received data; (3) analyzes the extracted
data to identify patterns and their modifications; ( 4) determines the cause of
those modifications, namely whether they resulted from a change in a
customer's telecommunications plan; and, if so, (5) provides promotional
information to the customer.
Despite Appellants' arguments to the contrary (App. Br. 33-35; Reply
Br. 9-14), we agree with the Examiner that claim 1 is directed to an abstract
idea given the claimed invention's fundamental data analysis function noted
above.
It is well settled that collecting information is within the realm of
abstract ideas---even when the information is limited to particular content.
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016). It is also well settled that analyzing information by steps people go
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through in their minds, or by mathematical algorithms, without more, are
essentially mental processes within the abstract idea category. Id. at 1354.
And merely presenting the results of abstract processes of collecting and
analyzing information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and analysis.
Id.
Similar to the claims at issue in Electric Power, the claimed invention
here gathers, manipulates, analyzes, and provides information of a specified
content, but does not use any particular inventive technology for performing
those functions. See also Berkheimer v. HP Inc., 881F.3d1360, 1366---67
(Fed. Cir. 2018) (holding claims directed to (1) evaluating parsed object
structures according to previously-stored structures, and (2) presenting an
evaluated structure were directed to the abstract idea of parsing and
comparing data); Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d
1057, 1067 (Fed. Cir. 2011) (noting that methods that simply collect and
compare data, without applying the data in a step of the overall method, may
be ineligible under § 101 ). That time-series data is extracted and analyzed to
identify modifications to account balance patterns does not change our
conclusion, for this analysis is still a part of the recited abstract idea, as is
determining the cause of those modifications based on that analysis. Cf
Elec. Power, 830 F.3d at 1351-54.
Despite Appellants' arguments to the contrary (App. Br. 33-35; Reply
Br. 9-14), the claimed invention is directed to the abstract idea of targeted
promotion, specifically analyzing data to target "promotional information"
to those customers who have changed their telecommunications plan, which
is at least a fundamental economic practice. Such fundamental economic
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and business practices are often held to be abstract. See, e.g., Alice, 134 S.
Ct. at 2356 (holding the concept of intermediated settlement is an abstract
idea directed to a "fundamental economic practice long prevalent in our
system of commerce") (citation omitted); see also buySAFE v. Google, Inc.,
765 F.3d 1350, 1353-54 (Fed. Cir. 2014) (citing cases where contractual
relations at issue constituted fundamental economic practices, and noting
that forming or manipulating economic relations may involve an abstract
idea); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat.
Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (explaining that claims directed
to "the mere formation and manipulation of economic relations" and "the
performance of certain financial transactions" have been held to involve
abstract ideas).
Appellants' reliance on DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245 (Fed. Cir. 2014) on pages 33 to 35 of the Appeal Brief is
unpersuasive. There, instead of a computer network operating in its normal,
expected manner by sending a website visitor to a third-party website
apparently connected with a clicked advertisement, the claimed invention in
DDR generated and directed the visitor to a hybrid page that presented
(1) product information from the third party, and (2) visual "look and feel"
elements from the host website. DDR, 773 F.3d at 1258-59. Given this
particular Internet-based solution, the court held that the claimed invention
did not merely use the Internet to perform a business practice known from
the pre-Internet world, but rather was necessarily rooted in computer
technology to overcome a problem specifically arising in computer
networks. Id. at 1257.
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That is not the case here. As noted previously, Appellants' claimed
invention essentially analyzes data to identify a modification to a pattern in a
customer's account balance, and then determines whether the modification
resulted from a change in the telecommunications plan. If so, promotional
information related to that change is provided to the customer.
Although this analyzed data pertains to a customer's usage of a
telecommunications network and the customer's contractual relation with a
telecommunications provider in terms of a particular telecommunication
plan, it not necessarily rooted in that technology. Rather, this fundamental
concept of analyzing data to determine whether patterns associated with a
customer's account balance change due to the customer's particular
contractual relationship with an enterprise is analogous to a variety of
similar data analysis functions in other commercial contexts, such as
banking, retail stores, or even fraud prevention. Accord Spec. 6:8-13
(noting the disclosed invention's applicability to not only
telecommunications, but also "virtually any other industry in which that
industry's customers interact with the services and/or products offered by an
entity within that industry").
Suppose, for example, a customer has a checking account at a bank.
By analyzing data associated with a customer's account, patterns could be
discerned with respect to, among other things, the customer's depositing and
withdrawing money from the checking account over time. But if the
customer later opens a savings account at that bank, this change could affect
the customer's established pattern of deposits and withdrawals for the
checking account, for the customer may now be depositing money in the
savings account that was formerly deposited in the checking account.
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Such a change could trigger providing "promotional information" to
the customer associated with their newly-opened savings account, including
information pertaining not only to the savings account, but also other
accounts and financial services that may be of interest to the customer.
Given the claimed invention's fundamental data analysis and pattern
recognition functions that are applicable to other commercial contexts, the
claimed invention is not necessarily rooted in computer or
telecommunications technology. Rather, the claimed invention essentially
uses a computer to mine data to determine the cause of modifications to a
pattern with respect to a customer's account, and provide promotional
information to the customer if the modification resulted from a change to a
particular contractual relationship with a provider, namely a
telecommunications plan change. In short, this functionality is directed to a
fundamental economic practice-an abstract idea.
That customers are grouped with other customers with similar patterns
as recited in dependent claim 2 and independent claims 10 and 18 does not
change our conclusion. In short, grouping similar items together that share
common characteristics or attributes does not render an otherwise abstract
idea less abstract. See Versata Development Gp., Inc. v. SAP Am., Inc., 793
F.3d 1306, 1312, 1330-36 (holding ineligible claims directed to product
price determination involving hierarchy of organizational and product
groups); see also Elec. Power, 830 F.3d at 1351-56.
Appellants' reliance on McRO, Inc. v. Bandai Namco Games
America, Inc., 837 F.3d 1299 (Fed. Cir. 2016) on pages 11 and 12 of the
Reply Brief is likewise misplaced. There, the claimed process used a
combined order of specific rules that rendered information in a specific
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format that was applied to create a sequence of synchronized, animated
characters. McRO, 837 F.3d at 1315. Notably, the recited process
automatically animated characters using particular information and
techniques-an improvement over manual three-dimensional animation
techniques that was not directed to an abstract idea. Id. at 1316.
But unlike McRO, the claimed invention analyzes data to identify a
modification to a pattern in a customer's account balance, determines
whether the modification resulted from a change in the telecommunications
plan, and if so, provides promotional information related to that change to
the customer. That these functions are implemented in a
telecommunications environment does not change our conclusion, for such
field-of-use limitations do not render the recited abstract idea patent-eligible.
See Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (noting that Parker v.
Flook, 437 U.S. 584 (1978) "stands for the proposition that the prohibition
against patenting abstract ideas cannot be circumvented by attempting to
limit the use of the [idea] to a particular technological environment")
(internal quotation marks omitted).
We, therefore, agree with the Examiner that claim 1 is directed to an
abstract idea.
Alice Step Two
Nor do the recited elements---considered individually and as an
ordered combination-transform the nature of claim 1 into a patent-eligible
application of the abstract idea to ensure that the claim amounts to
significantly more than that idea. See Alice, 134 S. Ct. at 2357.
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That a processor is configured to perform the recited actions does not
change our conclusion. In short, this processor is merely a generic
computing component implementing conventional generic computing
functions, such as (1) receiving data, (2) extracting and analyzing time series
data to identify balance pattern modifications, (3) determining the cause of
the modifications, and (4) providing information to a customer. Accord
Final Act. 2-3; Ans. 8.
In short, the claimed invention merely uses generic computing
components to do that which can be performed mentally or with a pen and
paper---exclusive mental functions ineligible for patent protection under
§ 101. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1372 (Fed. Cir. 2011).
We reach this conclusion even assuming, without deciding, that the
recited components add efficiency, for any speed increase comes from the
capabilities of the generic computer components-not the recited process
itself. See FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1095
(Fed. Cir. 2016) (citing Bancorp Services, LLC v. Sun Life Assurance Co.,
687 F.3d 1266, 1278 (Fed. Cir. 2012) ("[T]he fact that the required
calculations could be performed more efficiently via a computer does not
materially alter the patent eligibility of the claimed subject matter.")). Like
the claims in Fair Warning, the focus of claim 1 is not on an improvement in
computer processors as tools, but on certain independently abstract ideas that
use generic computing components as tools. See FairWarning, 839 F.3d at
1095 (citations and quotation marks omitted).
In short, merely reciting these generic computing components cannot
transform a patent-ineligible abstract idea into a patent-eligible invention.
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Alice, 134 S. Ct. at 2358. In other words, merely reciting an abstract idea
while adding the words "'apply it with a computer'" does not render an
abstract idea non-abstract: there must be more. See id. Nor does the
claimed invention improve the computer's functionality or efficiency, or
otherwise change the way that device functions. Cf Enfzsh LLC v. Microsoft
Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016).
In addition, the claimed invention's using a computer to extract and
analyze data to identify patterns and modifications to those patterns with
respect to a customer's account to determine the cause of those
modifications and provide associated promotional information is essentially
a data mining operation that is well-understood, routine, and conventional.
See John Daintith & Edmund Wright, THE FACTS ON FILE DICTIONARY OF
COMPUTER SCIENCE 52 (Revised ed. 2006) (defining "data mining" as "[t]he
analysis of large quantities of data to discover previously unknown
patterns"). Notably, the above dictionary provides an example of data
mining in a commercial context, namely with respect to a store's loyalty
cards, as noted below:
The use of store loyalty cards, for example, means that a record
of each customer's purchases can be built up over a period of
time; data mining can then identifY any patterns, such as
favored brands, amount usually spent on each visit to the store,
etc., which can be used to generate marketing literature and
even spread offers tailored to each customer.
Id. (emphases added).
Other dictionaries define data mining similarly. See, e.g., McGRAW-
HILL DICTIONARY OF COMPUTING & COMMUNICATIONS 88 (2003) (defining
"data mining" as "[t]he identification or extraction of relationships and
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patterns from data using computational algorithms to reduce, model,
understand, or analyze data"); see also THE OXFORD DICTIONARY OF
COMPUTING 130 (6th ed. 2008) (defining "data mining" in terms of an
example involving detecting the pattern of using a credit card to detect
possible fraud, and noting that data mining involves different artificial
intelligence methods together with statistical methods such as cluster
analysis and data summarization).
That a processor is used to obtain the telecommunications customer
data is of no consequence here, for such data gathering steps are
insignificant extra-solution activity that is insufficient to render the claim
patent-eligible. See In re Bilski, 545 F.3d 943, 962 (Fed. Cir. 2008) (en
bane), aff'd on other grounds, 561 U.S. 593 (2010) ("[T]he involvement of
the machine or transformation in the claimed process must not merely be
insignificant extra-solution activity."); see also id. at 963 (characterizing
data gathering steps as insignificant extra-solution activity). And to the
extent that the data received by the transceiver is somehow also used by the
processor in performing the recited actions, gathering that data is likewise
insignificant extra-solution activity.
Lastly, we find unavailing Appellants' contention the Examiner also
failed to show that the claims preempt using the alleged abstract idea in all
fields. App. Br. 36; Reply Br. 17. Where, as here, the claims cover a patent-
ineligible concept, preemption concerns "are fully addressed and made
moot" by an analysis under the Alice framework. See Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
For the foregoing reasons, then, the recited elements---considered
both individually and as an ordered combination---do not contain an
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"inventive concept" sufficient to transform the claimed abstract idea into a
patent-eligible application. Therefore, we are not persuaded that the
Examiner erred in rejecting claims 1-28 under§ 101.
THE ANTICIPATION REJECTION
The Examiner finds that Raleigh discloses every recited element of
claim 1 including (1) extracting, from received telecommunications
customer data, time series data for a customer to identify (a) a pattern in the
changing balance on the customer's account, and (b) a modification to the
identified pattern; (2) determining that the identified modification results
from a change in the telecommunications plan associated with the
customer's account; and (3) providing promotional information to the
customer related to that change responsive to this determination. Final
Act. 3-7; Ans. 3---6. According to the Examiner, Raleigh's system notifies a
user when the usage rate or velocity is high or low compared to the overall
service usage plan rate, thus indicating a change in the service usage plan
rate. Ans. 5-6.
Appellants argue that Raleigh's system does not analyze a customer's
time series data to identify the recited pattern modification, let alone
determine that the identified modification results from a change in the
telecommunications plan associated with the customer's account as claimed.
App. Br. 14--20; Reply Br. 5-7.
ISSUE
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Raleigh discloses (1) analyzing a customer's time series data to identify
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the recited pattern modification, and (2) determining that the identified
modification results from a change in the telecommunications plan
associated with the customer's account?
ANALYSIS
We begin by noting, as do Appellants, that claim 1 requires
determining that the identified modification to the identified pattern in the
customer's account balance results from a change in a telecommunication
plan associated with that account. Accord Reply Br. 7 (noting that the
change to the telecommunication plan causes the modification to the
customer's usage pattern in claim 1). Although the Specification does not
define the term "telecommunication plan" unlike other terms on pages 3 and
4, the Specification nevertheless notes that changes in a customer's observed
behavior may be attributed to a change in the customer's "rate plan."
Spec. 24:22-23. In this context, then, a "telecommunication plan" is
equivalent to a "rate plan," namely a particular level of telecommunication
service offered by a provider to a customer at a given rate.
Given this construction, we find the Examiner's anticipation
rejection problematic on this record. In the rejection, the Examiner cites
Raleigh's paragraph 390 for disclosing the recited determination function.
Final Act. 5---6. But as Appellants indicate (App. Br. 18-19), this paragraph
does not disclose any change in the telecommunication plan, let alone that
the identified pattern modification results from a change in that plan.
Although this paragraph describes indicating aggregate usage associated
with multi-user service-a service that is associated with a certain
telecommunications plan-Raleigh's paragraph 390 says nothing about any
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changes to that plan, let alone that such changes would cause modifications
to an identified pattern associated with a customer's account balance as
claimed. Raleigh's paragraph 391 fares no better in this regard.
In the Answer, however, the Examiner cites four new paragraphs from
Raleigh, namely paragraphs 273, 279, 280, and 282, that are said to provide
specific examples of service usage patterns cited in the rejection. See
Ans. 4--6. But these new citations, like the Examiner's other citations, do
not anticipate the recited determination.
Even assuming, without deciding, that a user's service usage velocity
or rate is derived from time series data as the Examiner indicates (Ans. 5),
these values are merely compared to a service plan limit or average values to
notify the user accordingly. See Raleigh i-fi-1273, 279, 282. That users can
be offered an option to change their service plan in connection with these
notifications in Raleigh's paragraphs 275, 280, and 282 does not mean that
the plan was actually changed, let alone that such a change caused a
modification to an identified pattern associated with a customer's account
balance.
Therefore, to the extent that the Examiner relies on these options for a
user to possibly change a service plan at some time in the future for teaching
the recited telecommunication plan change, such findings are problematic on
this record. And to the extent that the Examiner finds that changes in usage
rates in Raleigh somehow change a telecommunication plan (see Ans. 6),
we disagree.
Therefore, we are persuaded that the Examiner erred in rejecting
(1) independent claim 1, and (2) dependent claim 3 for similar reasons.
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THE OBVIOUSNESS REJECTIONS
Because the Examiner has not shown that the other cited prior art
cures Raleigh's foregoing deficiencies regarding the rejection of
independent claim 1, and because independent claims 10 and 18 recite
commensurate limitations, we will not sustain the obviousness rejections of
claims 2 and 4--28 (Final Act. 8-33) for similar reasons.
CONCLUSION
The Examiner did not err in rejecting claims 1-28 under § 101. The
Examiner, however, erred in rejecting (1) claims 1 and 3 under § 102, and
(2) claims 2 and 4--28 under§ 103.
DECISION
We affirm the Examiner's decision to reject claims 1-28.
Because the rejection of each appealed claim is affirmed on at least
one of the grounds specified in the Office Action from which the appeal was
taken, the Examiner's decision to reject claims 1-28 is affirmed. See
37 C.F.R. § 41.50(a)(l).
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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