Ex Parte Melcher et al

Patent Trial and Appeal Board

Nov 6, 2017

13074520 (P.T.A.B. Nov. 6, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/074,520 03/29/2011 Ryan Melcher 2043.888US1 9947
49845 7590 11/08/2017
SCHWEGMAN LUNDBERG & WOESSNER/EBAY
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
GARG, YOGESH C
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
11/08/2017 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):
USPTO@SLWIP.COM
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN MELCHER, STEVE YANKOVICH,
VINCENT VILLANUEVA, MOHAN PATT,
JENNIFER CHANG, ENOCH CHEN, and DANNY CHANG
Appeal 2016-001142
Application 13/074,5201
Technology Center 3600
Before DEBRA K. STEPHENS, NABEEL U. KHAN, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 2, 4, 5, 8—11, 13, 15, 17, and 20—22. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants’ Brief (“App. Br.”) identifies the real party in interest as eBay,
Inc. App. Br. 2.
Appeal 2016-001142
Application 13/074,520
CLAIMED SUBJECT MATTER
The claims are directed to a systems and methods for inventory
generation and management. Spec. 11. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A system comprising:
a memory that stores:
transaction data for an online marketplace; and
an inventory corresponding to a consumer of goods
from the online marketplace, the inventory comprising a
list of items, the consumer being a member of a family, the
inventory being a family inventory of the family; and
a processor configured to execute:
an identification module configured to:
access a determination that the consumer has
purchased an item, the determination based on the
transaction data for the online marketplace; and
add the item to the inventory based on the
determination, the inventory having permissions to
allow another member of the family to list the item
for sale; and
an interface module configured to:
generate, based on the permissions, an
interface that provides an option to list the item for
sale by another member of the family.
App. Br. 39 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Pugliese US 2002/0072974 A1 Jun. 13, 2002
Ben Simon US 2007/0233585 A1 Oct. 4, 2007
Adstedt US 2008/0222003 A1 Sep. 11,2008
Kalaboukis US 2010/0179857 A1 Jul. 15,2010
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REJECTIONS
Claims 1, 2, 4, 5, 8—11, 13, 15, 17, and 20-22 stand rejected under
35 U.S.C. § 101 as being directed to non-statutory subject matter. Final
Act. 8.
Claims 1, 2, 4, 5, 8—11, 13, 15, 17, and 20-22 stand rejected under
35 U.S.C. § 112, second paragraph as being indefinite. Final Act. 12.
Claims 1, 2, 4, 5, 8—11, 13, 15, 17, and 20 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Adstedt and Pugliese. Final
Act. 14.
Claim 21 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Adstedt, Pugliese, and Kalaboukis. Final Act. 20.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Adstedt, Pugliese, Kalaboukis, and Ben Simon. Final
Act. 21.
ISSUES
First Issue: Has the Examiner erred in concluding the claims are
directed to non-statutory subject matter?
Second Issue: Has the Examiner erred in concluding independent
claims 1,15, and 20, are indefinite?
Third Issue: Has the Examiner erred in concluding the claims are
obvious over the prior art based on a determination that the “permissions”
limitations recited in claims 1,15, and 20, are non-functional descriptive
material not entitled to patentable weight?
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ANALYSIS
First Issue
In rejecting the claims under 35 U.S.C. § 101, the Examiner concludes
the claims are directed to the abstract idea of “managing inventory items and
selling items from the inventory.” Final Act. 9. The Examiner further
determines the concept of managing inventory is a fundamental economic
practice. Final Act. 10 (“The use of the concept of managing inventory of
items and selling items from the inventory is also a building block of the
modem economy.”). The Examiner further finds the claims do not amount
to significantly more than the abstract idea because the abstract idea is
implemented using a generic computer performing conventional functions
“which are well-understood, routine, conventional activities previously
known to the industry.” Final Act. 11. According to the Examiner, when
“viewed as a whole, the method/system/manufacture claims simply recite
the concept of managing inventory of items and selling items from the
inventory and related solutions as performed by a generic computer.” Id. 12.
Appellants assert several errors in the Examiner’s analysis. First,
Appellants assert procedural error, contending the Examiner provided
insufficient evidentiary support for the determination that the claims are
directed to an abstract idea. App. Br. 18. In support of that contention,
Appellants argue the Examiner has failed to perform sufficient fact-finding
to satisfy the requirements of the Administrative Procedure Act. App. Br.
19—20. Appellants further argue the Examiner’s analysis is nothing more
than a conclusory statement, and court decisions invalidating claims under
Section 101 have relied on “authoritative documentation” to support
determinations that claims are directed to an abstract idea. App. Br. 21—22.
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Moreover, Appellants argue the Office prior Board decisions have reversed
rejections under 35 U.S.C. § 101 that are untethered to the language of the
claims and merely express an opinion and not evidence. App. Br. 22—23.
Finally, Appellants argue the Examiner has failed to analyze the dependent
claims individually, and has not provided sufficient reasoning to sustain the
rejections of those claims.
We are not persuaded by Appellants’ assertions of procedural error on
the part of the Examiner. Examiner has set forth with specificity why the
claims are directed to patent ineligible subject matter. We also disagree with
Appellants’ argument that the dependent claims were not sufficiently
addressed. The Examiner explained in the Answer that the limitations
variously recited in the dependent claims “are merely directed to data
processing and extra-solution activities which courts have found to be
abstract.” Ans. 10. We discern no error in the Examiner’s determination or
consideration of the dependent claims.
Appellants assert substantive errors in the Examiner’s analysis as
well. With respect to the Examiner’s determination that the claims are not
directed to an abstract idea, Appellants argue because the claims “are
directed to a specific set of operations for generating, based on the
permissions, an interface that provides an option to list the item for sale by
another member of a family,” they are “not a fundamental economic practice
like risk management or intermediated settlement.” App. Br. 26. Appellants
further argue, “due to their relative novelty,” their claimed concepts cannot
be long prevalent in commerce. Additionally, Appellants contend the claims
do not seek to tie up a judicial exception and include limitations that “are
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specific and meaningful,” and therefore no concern of preemption is present.
App. Br. 27—28.
Moreover, Appellants contend that even if the claims are directed to
an abstract idea, they amount to significantly more and include an inventive
concept. Appellants provide several arguments in support. Specifically,
Appellants argue the claims recite a specially-configured computer which
includes an “identification module” and an “interface module” to perform
various operations. App. Br. 29—30. Appellants further argue the claims are
specific and not general, weighing against a finding of ineligibility. App.
Br. 31. Appellants further argue the claims solve a technological problem
because they “provid[e] to another member of the family, based on the
permissions, an interface that includes an option to list the item for sale.”
App. Br. 30—31. Appellants also contend the functions recited in the claims
are not purely conventional because the Examiner has ignored that the
claims provide a “unique combination of operations,” citing the step of
“providing to another member of the family, based on the permissions, an
interface that includes an option to list the item for sale,” as an example of
such a unique operation. App. Br. 32—34. Appellants also argue the claims
improve the functioning of the computer itself by implementing permissions
which “constitute an improvement to the technical field of machines that
generate and manage inventories.” App. Br. 34—35. Finally, Appellants rely
on DDR Holdings LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014),
arguing the claims solve a technological problem rooted in computer
technology—namely—the problem of generating and maintaining
inventories for a family. App. Br. 36—37.
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We are not persuaded the Examiner has erred. In issues involving
subject matter eligibility, our inquiry focuses on whether the claims satisfy
the two-step test set forth by the Supreme Court in Alice Corp. v. CIS Bank
Int’l., 134 S. Ct. 2347 (2014). The Supreme Court instructs us to “first
determine whether the claims at issue are directed to a patent-ineligible
concept,” Alice, 134 S. Ct. at 2355, and, in this case, the inquiry centers on
whether the claims are directed to an abstract idea. If the initial threshold is
met, we then move to the second step, in which we “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.” Id. {quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). The Supreme Court
describes the second step 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.’” Id. (quoting Mayo, 566 U.S. at
72-73).
Here, the Examiner characterizes the invention as being directed to
the abstract idea of “managing inventory items and selling items from the
inventory.” Final Act. 9. This characterization is supported by the evidence
of record. More specifically, Appellants’ Specification characterizes the
application as providing “[a]n inventory system [ ] to generate and maintain
an inventory of a consumer’s belongings, including, for example, fungible
products and collectibles.” Spec. 111. This characterization is consistent
with the Examiner’s characterization.
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As we discussed above, Appellants make several arguments against
the determination that the claims are directed to an abstract idea. We
address each in turn.
Appellants argue the invention is not an abstract idea because
generating an interface based on permissions to provides an option to list the
item for sale by different family members is not a fundamental economic
practice like risk management or intermediated settlement. App. Br. 26. We
disagree, because the concepts of risk management and intermediated
settlement are not limiting contours of what constitutes an abstract idea, and
instead are better viewed as exemplary in nature. As the Federal Circuit has
noted, while “courts have recognized that it is not always easy to determine
the boundary between abstraction and patent-eligible subject matter . . .
[rjecent precedent illustrates this boundary in a variety of factual
circumstances.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d
1343, 1347 (Fed. Cir. 2015). In evaluating a software-based invention, the
Federal Circuit has conducted the abstract idea inquiry by “ask[ing] whether
the focus of the claims is on the 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.” Enflsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335—36 (Fed. Cir. 2016). Here, the claims
invoke computers merely as a tool to allow a family member to list items for
sale. We do not discern, nor do Appellants identify, any specific
improvement to the operation of a computing device. Rather, the focus on
the claims is on improvement to the process of selling items.
Appellants further argue, “due to their relative novelty,” the claimed
concepts cannot be “one long prevalent in commerce.” App. Br. 26. We
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disagree. Appellants’ argument is, in essence, that because the claims are
not unpatentable over the prior art of record, they cannot be directed to
concepts “long prevalent in commerce.” This argument lacks merit because
it presupposes that any claim found to be novel and non-obvious over prior
art cannot be an abstract idea in the Alice/Mayo framework. We are aware
of no case supporting this proposition, nor do Appellants cite to any. Nor
would such a rule make sense, as it would limit the application of 35 U.S.C.
§ 101 to only those claims found to be otherwise unpatentable under other
sections of the Patent Act (e.g., 35 U.S.C. §§ 102, 103, 112).
Appellants further contend the claims do not seek to tie up a judicial
exception and include limitations that “are specific and meaningful,” and
therefore no concern of preemption is present. App. Br. 27—28. This
argument is unpersuasive because lack of preemption does not make the
claims any less abstract. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788
F.3d 1371, 1379 (Fed. Cir. 2015) (“While preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility.”). Moreover, we are not persuaded the claims
as recited do not preempt the field of allowing one person to allow another
to sell an item for them.
Because we discern no error in the Examiner’s determination that the
claims are directed to an abstract idea, we now turn to Appellants’
arguments regarding the second step of the Alice inquiry.
Appellants argue the claims recites a specially-configured computer
which includes an “identification module” and an “interface module” to
perform various operations. App. Br. 29—30. We disagree. The two recited
modules relied upon by Appellants are not described as specific computer
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hardware, but instead are merely software components that provide
functionality in a conventional manner. For example, the recited
“identification module” performs conventional functions of accessing data
and modifying data based on defined permissions. The recited “interface
module” merely outputs data on a display in accordance with the data
operations performed by the “identification module.” These are
conventional computer data processing activities insufficient to transform
the claim into “something more” than the abstract idea of itself. See
Intellectual Ventures ILLC v. Capital One Fin. Corp., 850 F.3d 1332, 1341
(Fed. Cir. 2017).
Appellants further argue the claims solve a technological problem
because they “provid[e] to another member of the family, based on the
permissions, an interface that includes an option to list the item for sale.”
App. Br. 30-31. We disagree. In DDR Holdings, the nature of the problem
was the technical challenge of preventing customers from being taken away
from a host website to a third-party merchant’s website when the customer
clicked on advertisements related to those third-party merchants. In
contrast, Appellants’ invention, at its core, solves a business problem —
multiple people sharing a sales platform. Although implemented in the
context of an online marketplace, the abstract idea to which the claims are
directed has a close offline analog—namely, the common and long-standing
practice of selling items on consignment, or selling items for family
members. As noted by the Examiner, there is little distinction between
Appellants’ idea and the practice of dropping items at the home of a family
member for selling at a garage sale. Ans. 9. Thus, the fact that Appellants’
invention is implemented in the context of an online marketplace does not
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mean that it solves a problem unique to the Internet as required under DDR
Holdings.
Appellants also contend the functions recited in the claims are not
purely conventional because the Examiner has ignored that the claims
provide a “unique combination of operations,” citing the step of “providing
to another member of the family, based on the permissions, an interface that
includes an option to list the item for sale,” as an example of such a unique
operation. App. Br. 32—34. As we discussed above, however, the operations
performed in Appellants’ claims are conventional data processing operations
in which data is manipulated and displayed in a conventional manner. This
is insufficient to amount to significantly more than the abstract idea itself.
Intellectual Ventures ILLC, 850 F.3d at 1341. Indeed, a family member
may or may not agree to sell items at the garage sale for another family
member.
Appellants also argue the claims improve the functioning of the
computer itself by implementing permissions which “constitute an
improvement to the technical field of machines that generate and manage
inventories.” App. Br. 34—35. This argument is not persuasive. Appellants
make no claim to have invented the use of permissions, nor does the
Specification provide any details for how these permissions are implemented
or defined. Instead, the Specification merely describes what the permissions
do, but not how they do it. Without any details of how the permissions
actually operate, we are not persuaded the permissions amount to an
improvement to the functioning of the computer sufficient to transform the
abstract idea into something more.
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In sum, we are not persuaded the Examiner has erred in determining
the claims are directed to an abstract idea under Alice step 1. Nor are we
persuaded the Examiner has erred in determining the claims do not amount
to something more under Alice step 2. Accordingly, we sustain the rejection
of the claims under 35 U.S.C. § 101.
Second Issue
The Examiner concludes the claims are indefinite in two respects.
First, the Examiner concludes the limitation “access[ing] a determination,”
as recited in claim 1, is indefinite because “[t]he term ‘determination[’]
represents a decision and a processor cannot interact with abstract subject
like a decision of determination.” Final Act. 13. Second, the Examiner
concludes the limitations “inventory having permissions to allow another
member of the family to list the item for sale” and “an interface to provide
an option to list the item for sale by another member of the family, based on
the permissions” are indefinite because the “permissions” constitute non­
functional descriptive matter. The Examiner determines the recited
“permissions” “describes merely an attribute describing the type of
inventory but does not recite or require performing any active steps limiting
the claim to a particular structure.” Final Act. 13. As such, the Examiner
concludes the “permissions” limitations constitute non-functional descriptive
material and their meaning is unclear. Final Act. 6.
Appellants contend “accessing a determination” is not indefinite
because “[processors routinely interact with determinations and decisions.”
App. Br. 10. More specifically, Appellants argue a person of ordinary skill
in the art would understand the “various ways in which determinations may
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be accessed by processors.” App. Br. 10. According to Appellants,
“processors access data, and one of ordinary skill in the art would
understand that a claim to a processor accessing a determination is a claim to
the processor accessing data representing the determination.” Reply Br. 2.
Appellants also dispute the Examiner’s conclusion regarding the
“permissions” limitations, arguing the Examiner improperly conflates
ambiguity with claim scope. App. Br. 11. More specifically, Appellants
argue the rejection does not identify any ambiguity in the limitation, but
instead asserts the rejection appears to object to the breadth of the claim. Id.
According to Appellants, “an indefiniteness rejection is not the proper
response to concerns about claim breadth.” Id. Appellants additionally
contend the Examiner errs in concluding the claims are indefinite because
the recited “permissions” are non-functional descriptive material, because
the “permissions” impact the functionality of the processor. Reply Br. 4.
“A claim is indefinite when it contains words or phrases whose
meaning is unclear.” Ex Parte Me Award, 2017 Pat. App. LEXIS 8537
(P.T.A.B. Aug. 25, 2017) (precedential) (citing In re Packard, 751 F.3d
1310, 1314 (Fed. Cir. 2014). The Examiner concludes the phrase “access a
determination” is indefinite because the abstract concept of a
“determination” cannot be physically interacted with by a processor. We
agree with the Examiner that the claim is unclear. Appellants argue
“accessing a determination” means “accessing data representing the
determination.” But those are not the words Appellants have chosen in this
instance. We must interpret the claim as written in determining whether its
meaning is clear. Chef Am., Inc. v. Lamb-Weston, Inc., 358 F.3d 1371, 1374
(Fed. Cir. 2004) (“we must construe the claims based on the patentee’s
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version of the claim as he himself drafted it”) (quoting Process Control
Corp. v. Hydreclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999)). The
word “determination” is defined as “the process of establishing something
exactly, typically by calculation or research.” New Oxford American
Dictionary, 3d. Edition, p. 474 (2010). Applying this definition of
“determination,” we agree with the Examiner that it is unclear how a
processor would “access” a “process of establishing something . . . .” As
such, we conclude the Examiner’s has not erred in rejecting the phrase
“accessing a determination” is indefinite, and we sustain the rejection in this
respect.
We do not agree with the Examiner’s conclusion that the
“permissions” limitations are indefinite because they merely describe an
attribute of the inventory are constitute non-functional descriptive matter.
We agree with Appellants that the recited “permissions” are functional in
nature, and would have been understood by an ordinarily skilled artisan as
impacting the ability of the processor to access and share the data to which
the permissions pertain. Appellants’ claims recite “inventory having
permissions to allow another member of the family to list the item for sale”
and “generate, based on the permissions, an interface that provides an option
to list the item for sale by another member of the family.” A person of
ordinary skill in the art would have understood the recited “permissions” as
security settings which determine whether a user, namely, a member of the
family, is permitted to list inventory items for sale. Similarly, the recited
“permissions” in the limitation “an interface to provide an option to list the
item for sale by another member of the family, based on the permissions”
functionally determine whether the item can be listed for sale via the
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interface. As such, we do not agree with the Examiner that the meaning of
the “permissions” in Appellants’ claims is unclear, and we do not sustain the
rejections under 35U.S.C. § 112, second paragraph.
Third Issue
In rejecting the independent claims, the Examiner relies primarily on
Adstedt, finding that Adstedt teaches most of the recited limitations, and
specifically, the disputed limitations. Final Act. 15—16. In applying the
teachings of Adstedt, the Examiner declines to give patentable weight to
several claim limitations. Final Act. 15—16. Among these, are the following
limitations from claim 1 shown in italics:
an inventory corresponding to a consumer of goods from the
online marketplace, the inventory comprising a list of items, the
consumer being a member of a family, the inventory being a
family inventory of the family,
add the item to the inventory based on the determination, the
inventory having permissions to allow another member of the
family to list the item for sale; and
generate, based on the permissions, an interface that provides an
option to list the item for sale by another member of the family.
Id. The Examiner concludes these limitations are obvious because:
[The limitations] neither represent active steps being performed
nor are associated functionally with a structural component of the
claimed system but instead merely present the attributes of the
type of inventory and the consumer and conditions not
representing any functional steps, with the result, these
limitations cannot be given any patentable weight.
Final Act. 16; see also Final Act. 7 (interpreting generating step as “merely
providing an interface for the intended use of facilitating a human operator
to list items for sale from an inventory”).
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Appellants contend, inter alia, the Examiner has erred in not
according patentable weight to these limitations. App. Br. 14—16. More
specifically, Appellants argue the “permissions” limitations are functional in
nature, and as such, the Examiner must give these limitations patentable
weight. App. Br. 15—16. Appellants further argue neither reference teaches
or otherwise suggests “generat[ing], based on the permissions, an interface
that provides an option to list the item for sale by another member of the
family”, because Adstedt merely teaches a single-user inventory
management environment, and Pugliese discloses only a family wish list for
desired product purchases. App. Br. 16. According to Appellants,
combining these teachings does not render the limitation obvious because
neither reference teaches the generating any interface based on permissions,
nor does either reference teach or suggest the use of permissions which
allow family members to list items for sale. App. Br. 16—17. We agree with
Appellants that the Examiner has erred.
As we explained above, we agree with Appellants that the recited
“permissions” are functional in nature, as the recited permissions are used in
generating an interface that provides an option to list the item for sale by
another member of the family. The Examiner’s conclusion of obviousness is
premised on the determination that the limitation “based on permissions” is
not entitled to patentable weight. Ans. 5 (“While examining the claim on
merit for prior art rejection, Examiner has not accorded patentable weight to
the limitation ‘based on permissions’.”) Because this determination is in
error, we do not sustain the rejection of independent claims 1,15, and 20
under 35 U.S.C. § 103(a). For the same reasons, we do not sustain the
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rejections of dependent claims 2, 4, 5, 8—11, 13, 17, 21 and 22, which
depend variously therefrom.
DECISION
We affirm the rejection of claims 1, 2, 4, 5, 8—11, 13, 15, 17, and
20-22 under 35 U.S.C. § 101 as being directed to non-statutory subject
matter.
We affirm the rejection of claims 1, 2, 4, 5, 8—11, 13, 15, 17, and
20-22 under 35 U.S.C. § 112, second paragraph as being indefinite.
We reverse the rejections of claims 1, 2, 4, 5, 8—11, 13, 15, 17, and
20-22 under 35 U.S.C. § 103(a).
Because we have affirmed at least one ground of rejection for each
claim on appeal, we affirm the Examiner’s decision to reject claims 1, 2, 4,
5, 8-11, 13, 15, 17, and 20-22. . 37 C.F.R. § 41.50(a)(1).
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).
AFFIRMED
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