Ex Parte Pan

Patent Trial and Appeal Board

Apr 30, 2018

13389996 (P.T.A.B. Apr. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/389,996 02/10/2012
29150 7590 05/02/2018
LEE & HAYES, PLLC
601 W. RIVERSIDE A VENUE
SUITE 1400
SPOKANE, WA 99201
FIRST NAMED INVENTOR
Xiao Wen Pan
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.
AB1-0134US 3856
EXAMINER
ZUKANOVICH, BRANDY A
ART UNIT PAPER NUMBER
3684
NOTIFICATION DATE DELIVERY MODE
05/02/2018 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XIAO WEN PAN
Appeal2017-001233 1
Application 13/389,996
Technology Center 3600
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
KIM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the rejection of claims 7-25 and 27. We have
jurisdiction to review the case under 35 U.S.C. §§ 134 and 6.
1 The Appellant identifies Alibaba Group Holding Ltd. as the real party in
interest. Appeal Br. 3.
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Application 13/389,996
The invention relates generally to search methods. Spec. i-f 2.
Independent claim 7 is illustrative:
7. A search method comprising:
obtaining initial web pages that match a descriptive query
from a web page database;
performing first relevancy processing for the initial web
pages to obtain a plurality of relevant web pages;
performing second relevancy processing for the plurality
of relevant web pages, performing the second relevancy
processmg compnsmg:
determining whether a category of a keyword in the
descriptive query does not match with a category of a product
identifier that is related to a relevant web page of the plurality of
relevant web pages, the product identifier being obtained based
at least in part on a corresponding relationship between the
product identifier and the relevant web page that is stored in the
web page database; and
reducing a relevancy score of the relevant web page in
response to determining that the category of the keyword in the
descriptive query does not match with the category of the product
identifier that is related to the relevant web page; and
displaying at least one product for the descriptive query to
a client according to relevancy scores obtained from the second
relevancy processing, the at least one product corresponding to
at least one product identifier that is related to one or more
relevant web pages.
The Examiner rejected claims 7-25 and 27 under 35 U.S.C. § 101 as
directed to ineligible subject matter in the form of abstract ideas.
The Examiner rejected claim 27 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
The Examiner rejected claims 7-14 and 27 under 35 U.S.C. § 112,
second paragraph, as indefinite.
The Examiner rejected claims 7-25 and 27 under 35 U.S.C. § 103(a)
as unpatentable over Bailey et al., (US 2006/0167864 Al, pub. July 27,
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2006) (hereinafter "Bailey") and Sundaresan (US 2009/0144259 Al, pub.
June 4, 2009).
We AFFIRM.
ANALYSIS
Rejection of Claims 7-14 Under 35 US.C. § 101
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include implicit
exceptions: "[l]aws of nature, natural phenomena, and abstract ideas" are
not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct.
2347, 2354 (2014).
In determining whether a claim falls within the excluded category of
abstract ideas, we are guided in our analysis by the Supreme Court's two-
step framework, described in Mayo and Alice. Id. at 2355 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296-97
(2012)). In accordance with that framework, we first determine whether the
claim is "directed to" a patent-ineligible abstract idea. See Alice, 134 S. Ct.
at 2356 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4 in
petitioners' application explain the basic concept of hedging, or protecting
against risk."); Diamond v. Diehr, 450 U.S. 175, 184 (1981) ("Analyzing
respondents' claims according to the above statements from our cases, we
think that a physical and chemical process for molding precision synthetic
rubber products falls within the § 101 categories of possibly patentable
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subject matter."); Parker v. Flook, 437 U.S. 584, 594--595 (1978)
("Respondent's application simply provides a new and presumably better
method for calculating alarm limit values."); Gottschalk v. Benson, 409 U.S.
63, 64 (1972) ("They claimed a method for converting binary-coded decimal
(BCD) numerals into pure binary numerals.").
The following method is then used to determine whether what the
claim is "directed to" is an abstract idea:
[T]he decisional mechanism courts now apply 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. See, e.g., Elec. Power Grp., 830 F.3d at 1353-54. That
is the classic common law methodology for creating law when a
single governing definitional context is not available. See
generally Karl N. Llewellyn, The Common Law Tradition:
Deciding Appeals (1960). This more flexible approach is also
the approach employed by the Supreme Court. See Alice, 134 S.
Ct. at 2355-57. We shall follow that approach here.
Amdocs (Israel) Limited v. Openet Telecom, Inc., 841F.3d1288, 1294 (Fed.
Cir. 2016).
The patent-ineligible end of the spectrum includes fundamental
economic practices, Alice, 134 S. Ct. at 2357; Bilski, 561 U.S. at 611;
mathematical formulas, Flook, 437 U.S. at 594--95; and basic tools of
scientific and technological work, Benson, 409 U.S. at 69. On the patent-
eligible side of the spectrum are physical and chemical processes, such as
curing rubber, Diamond, 450 U.S. at 184 n.7, "tanning, dyeing, making
waterproof cloth, vulcanizing India rubber, smelting ores," and a process for
manufacturing flour, Gottschalk, 409 U.S. at 69.
If the claim is "directed to" a patent-ineligible abstract idea, we then
consider the elements of the claim-both individually and as an ordered
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combination-to assess whether the additional elements transform the nature
of the claim into a patent-eligible application of the abstract idea. Alice, 134
S. Ct. at 2355. This is a search for an "inventive concept"-an element or
combination of elements sufficient to ensure that the claim amounts to
"significantly more" than the abstract idea itself. Id.
The Examiner finds claim 7 is directed to "displaying a product for a
descriptive query according to a relevancy scores (i.e. ranking search
results)." Answer 3. We find that the Examiner's formulation is adequately
supported by the claim language and specification. Independent claim 7
recites gathering input data by obtaining documents with terms that match
terms in a query, ranking the results using two successive algorithms, then
displaying the results. This is consistent with the Specification's description
of the method, as follows:
The search engine server may perform relevancy
processing for the found initial web pages to obtain relevant web
pages that satisfy a predetermined criterion, and perform
relevancy processing for at least one product corresponding to
product identifier(s) that is/are referenced in the relevant web
pages. Furthermore, the search engine server may order the at
least one product that the relevancy processing has been
performed according to respective relevancy score(s), and
display multiple ordered products to a client.
Spec. i-f 26. No steps in the claimed method fall outside the scope of the
idea to which the Examiner finds the claim is directed.
We are not persuaded by the Appellant's assertion that the method
cannot be performed in the human mind using pen and paper. Appeal Br.
14--15; see also Reply Br. 4. In contrast, the Examiner finds "[c]laim 7
never recites any hardware, sever, computer, etc. therefore it is possible for
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the claimed invention to be performed in the human mind or a human using
pen and paper." Answer 19.
The first step in the method involves "obtaining initial web pages that
match a descriptive query from a web page database." A web page is
essentially a document, containing content such as text and images, to which
additional metadata and coded links have typically been added. As
essentially a document, a web page can be, and frequently is, printed out. 2 A
collection of printed documents, which represents a library of web pages on
paper, could then be searched by a human looking for matching words from
a query, to select documents that have the matching terms. Once a subset of
documents is selected, a user could examine each document and sort them
by relevancy to a query, then resort them based on certain categories that are
determined not to match the query. The sorted collection of documents can
then be presented, viewed, or displayed. Because we agree with the
Examiner that each and every operation in the claimed method can be done
manually, by the human mind using pen and paper, we are persuaded that
the claimed search method, which does not call for the use of any specific
tool or computer, can be done mentally, as asserted by the Examiner.
The Examiner also finds the claimed method is similar to claims
found to be directed to abstract ideas in a number of cases before our
reviewing courts. See Answer 18-19. The cited cases appear reasonably
2 To be sure, independent claim 7 is directed to "ranking search results," and
so it is immaterial whether the webpages themselves are printed out or
merely viewed on a computer screen, as, ultimately, the activity that must be
done using pen and paper is the ranking itself. Nevertheless, for the sake of
completeness, we analyze every step of the claim under the "pen and paper"
rubric.
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relevant to "ranking search results," the Appellant does not respond to the
asserted similarities with instant claim 7, and the claims in these cases.
In addition, independent claim 7 is similar to claim 1 in Morsa, which
involves identifying matches and ordering the results, and was found to be
directed to an abstract idea. Morsa v. Facebook, Inc., 77 F.Supp.3d 1007
(C.D.Cal. 2014), ajfd, 622 Fed.Appx. 915 (Mem) (Fed. Cir. 2015). Claim 1
of U.S. Patent No. 7, 904,337 B2, issued March 8, 2011, and cited in Morsa,
is as follows:
1. A method of generating a product/service/benefit result list in
response to a match request from a PSB seeker using in whole or
in part a computer-compatible network, comprising:
maintaining a database including a plurality of PSB
listings, wherein each PSB listing is associated with a PSB
provider, at least one PSB criteria factor, and a modifiable bid
amount that is independent of other components of the PSB
listing, the bid amount being associated with at least one of the
PSB and the PSB provider, the bid amount corresponding to a
money amount that is deducted from an account of a PSB
provider associated with the PSB upon receipt of a request of at
least one of information about the PSB provider or the PSB itself;
receiving a PSB match request, which includes seeker
criteria information, from the PSB seeker;
identifying the PSB listings having PSB criteria which
generate a match with the PSB match request;
ordering the identified PSB listings into a PSB result list
in accordance with the values of the respective bid amounts for
the identified PSB listings;
receiving a retrieval request from the PSB seeker to
retrieve information associated with a PSB listing in the result
list;
recording a retrieval request event including account
identification information corresponding to the PSB provider, to
permit maintenance of accurate account records.
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We, therefore, are unpersuaded the Examiner erred in asserting that
independent claim 7 is directed to an abstract idea. We next determine if the
claim recites, in whole or in part, an "inventive concept" that transforms the
abstract idea into eligible subject matter.
Although independent claim 7 does not specifically require a
computer to perform the steps of the method, the Specification describes that
if computers were used, the method could be implemented on a variety of
"universal", i.e., general-purpose, computer platforms:
The disclosed method and system may be used in an
environment or in a configuration of universal or specialized
computer system(s). Examples include a personal computer, a
server computer, a handheld device or a portable device, a tablet
device, a multi-processor system, and a distributed computing
environment including any system or device above.
Spec. ,-r 24.
Looking at the steps of the method for an "inventive concept," we are
not persuaded by the Appellant's argument that the claimed method is
"necessarily rooted in computer technology to overcome a problem
specifically arising in the technical field of network data processing."
Appeal Br. 15. As noted above, the claim does not require computer
technology to perform any of the steps, and relates only to networks
tangentially, in that web pages are typically deployed over a network.
However, because the method encompasses performance using paper,
instead of computer networks, we are unpersuaded that the argued
"computer technology" is required within the scope of the claim.
We are unpersuaded by the Appellant's argument that the increased
quality of search results for users "provides an improvement to the
technology and/or technical field of network data processing by reducing the
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number of redundant operations in a search engine server, thereby improving
operation speed, work efficiency and work performance of the search engine
server." Appeal Br. 17; see also Id. 22 ("the features of claim 7 improve at
least the technology and/or technical field of network data processing"),
Id. 26 ("claim 7 improves an existing technological process"), Reply Br. 4
("The recited features improve operation speed, work efficiency, and
performance of an engine server.")
The claimed method sorts search results to provide more relevant
results to a user earlier in the displayed search results. This requires extra
processing to perform the claimed "relevancy processing." However, even
without these steps, a search that returns matching results does provide the
results to the user, who may have to search through the results manually to
determine the most relevant results. A user could do that, however, without
having to conduct additional searches. The claimed method merely tries to
avoid additional searches, but that only indirectly affects a computer server
that performs the claimed relevancy processing. A computer that performs
the relevancy processing, compared to one that does not, does not "improve
operation speed, work efficiency, and performance of an engine server,"
because the server's search function is identical, before relevancy
processing, as without relevancy processing. The process may improve the
experience for the user, but the computer performs more work with
relevancy processing than without, so it cannot be said the extra work
improves the speed, efficiency, or performance of the server. See, e.g.,
Appeal Br. 21 ("a user does not need to repeatedly search for related
products").
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The Appellant finally argues "the claims include additional steps and
features that are not routine or conventional." Reply Br. 6; see also Appeal
Br. 21 ("unconventional features that confine claim 7 to a particular useful
application"), Id. at 27 ("claim 7 adds limitations other than what are well-
understood, routine, and conventional in the field of processing
transactions").
We are not persuaded by the Appellant's argument, however, because
a novel and non-obvious claim directed to a purely abstract idea is,
nonetheless, patent-ineligible. See Mayo, 566 U.S. at 90. See also Diamond
v. Diehr, 450 U.S. 175, 188-89 (1981) ("The 'novelty' of any element or
steps in a process, or even of the process itself, is of no relevance in
determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.").
The Appellant's arguments do not persuasively demonstrate error on
the part of the Examiner in rejecting independent claim 7. For these reasons,
we sustain the rejection of independent claim 7 under 35 U.S.C. § 101. We
also sustain the rejection of dependent claims 8-14 that were not argued
separately. See Appeal Br. 50.
Rejection of Claims 15-25 and 27 Under 35 US.C. § 101
The Appellant advances arguments directed to independent claims 15
and 21 that are substantially identical to those advanced for independent
claim 7. Specifically, the arguments assert the claims cannot be performed
by a human with pen and paper, are "deeply rooted" in network technology,
add unconventional steps that confine the claims to a particular useful
application, include improvements to another technology or technical field,
and, add specific limitations other than what is well-understood, routine, and
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conventional in the field. See Appeal Br. 29--50. We are unpersuaded by
these arguments for the same reasons as set forth for independent claim 7,
above. For these reason, we sustain the rejection of independent claims 15
and 21, as well as dependent claims 16-20, 22-25, and 27, under
35 U.S.C. § 101.
Rejection Under 35 US.C. § 112. First Paragraph
Dependent claim 27 recites:
wherein performing the second relevancy processing further
comprises assigning a respective score to a corresponding
product identifier of a particular web page group of the multiple
web page groups based at least in part on a number of web pages
in the particular web page group, a launching time of a product
associated with the corresponding product identifier, and a
degree of relevancy between the product associated with the
corresponding product identifier and the descriptive query.
The Examiner finds "the disclosure does not reveal the manner in
which the score is ultimately determined (i.e. calculated), because the
"failure to disclose any meaningful structure/algorithm as to how this value
is generated raises questions whether applicant truly had possession of this
feature at the time of filing." Answer 5---6.
We are persuaded by the Appellant's argument that the ordinary
artisan would have recognized that the Appellant had possession of the
invention at the time of filing, at least based on paragraphs 59--61, 77,
and 78 of the Specification, and Figure 3. Appeal Br. 54. We agree with the
Appellants that the Specification discloses the following, which is
substantially similar to the claim language:
During the scoring process, a product identifier may be
scored based on factors such as the number of web pages
gathered under that product identifier, second relevancy scores
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of respective web pages, certain attributes (such as price and
launching time, etc.) of that product identifier, and relevancy
between the product and the query term.
Spec. i-f 60.
For these reason, we do not sustain the rejection of claim 27 under
§ 112, first paragraph, as failing to meet the written description requirement.
Rejection of Claims 7-14 Under 35 US.C. § 112. Second Paragraph
The Examiner finds that, citing recited claim language in independent
claim 7, "one would not be reasonably apprised of whether or not the
'product identifier being obtained based at least in part on a corresponding
relationship between the product identifier and the relevant web page that is
stored in the web page database' is required for purposes of infringement,
because the functionality in the clause is "not positively recited." Answer 7.
The Appellant argues that when independent claim 7 is read in light of
exemplary paragraphs 26, 46, 47, and 49 of the Specification as filed, it is
clear the step must be performed to infringe independent claim 7. Reply Br.
8; see also Appeal Br. 54--59.
We agree with the Appellant. The function of obtaining a product
identifier based on a relationship between a product identifier and a web
page is recited in claim 7 in the identical terminology rejected by the
Examiner, so the issue is not what the claim says, because the words
themselves are positively recited. Instead, the issue is whether the recited
function is required to be performed. The Specification describes the step,
saymg:
[T]he method stores the web page, the at least one product
identifier and a relationship between the web page and the
product identifier into a pre-set database. Upon searching the
database based on a query term and finding a web page matching
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the query term, a product identifier is outputted based on a
relationship between the matched web page and the product
identifier.
Spec. i-f 46. We are persuaded that the ordinary artisan would have
understood the claim limitations, in light of this portion of the
Specification, as indicating that the above-recited language is a required
step.
For these reasons, we do not sustain the rejection of independent
claim 7, nor its dependent claims 8-14, under 35 U.S.C. § 112, second
paragraph, as indefinite.
Rejection of Claim 27 Under 35 US.C. § 112. Second Paragraph
Dependent claim 27 recites:
[T]he second relevancy processing further comprises assigning a
respective score to a corresponding product identifier of a
particular web page group of the multiple web page groups based
at least in part on a number of web pages in the particular web
page group, a launching time of a product associated with the
corresponding product identifier, and a degree of relevancy
between the product associated with the corresponding product
identifier and the descriptive query.
In rejecting claim 27, the Examiner finds "one of ordinary skill in the
art cannot determine how to avoid infringement of this claim because they
are not apprised of what is to be determined as a 'score,"' because there is
no "structure/algorithm" in the Specification. Answer 8.
We are persuaded by the Appellant's argument that "[a]lthough a
structure/algorithm may be one of the many ways to generate a score,
Appellant submits that it is not necessary to recite a structure/algorithm in
claim 27." Reply Br. 10; see also Appeal Br. 59---62.
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The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether "those skilled in the art would understand what is claimed when the
claim is read in light of the specification." Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations
omitted). The claim language is certainly broad and does not limit the
assignment of the score to a particular algorithm, but only recites what
factors are to be considered. Nevertheless, the Examiner's concerns are a
matter of claim breadth, not indefiniteness. "Breadth is not indefiniteness."
In re Gardner, 427 F.2d 786, 788 (1970).
For these reasons, we do not sustain the rejection of claim 27 under
35 U.S.C. § 112, second paragraph, as indefinite.
Rejection of Claims 7-14 Under 35 US.C. § 103(a)
We are not persuaded by the Appellant's argument that Sundaresan
fails to disclose the "determining" and "reducing" steps based on "a category
of a keyword in the descriptive query," because Sundaresan, instead, uses
"additional words," or "extra word," from user selections after a query is
made to make determinations that may reduce a relevancy score. Appeal Br.
65---69; see also Reply Br. 11.
Sundaresan discloses a system "that generates relevancy rankings
based upon user item selections that are made after a set of search result
items has been presented to the user in response to the user's search request."
Sundaresan i-f 31. Sundaresan notes "to be useful for future relevancy
determinations; some descriptive factor of the selected item must be
abstracted out from the user's selection in order to use that descriptive factor
for future relevancy determinations." Id. i-f 32.
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The "descriptive factor" corresponds to the claimed "category of a
product identifier."
Sundaresan explains "the descriptive factors that may be used to
identify similar relevant items in the future are additional words in a
descriptive field for an item that were not part of the user's original search
query keywords." Id. i-f 33. Sundaresan notes that some descriptive factors
may be used to "lower a relevancy score" for future searches. Id.
Sundaresan provides an example where a user searches for "ipod nano," but
some results with categories based on descriptive factors of "transmitter"
and "leather" were not selected in the past by users, so their presence in
returned results lowers the relevancy scores for pages returned containing
words corresponding to the categories "transmitter" or "leather." Id. i-fi-134--
36. Thus Sundaresan meets the language of the "determining" and
"reducing" limitations.
The Appellant also argues Sundaresan "teaches away" from reducing
scores, because it also includes examples where scores are increased.
Appeal Br. 69--70. "A reference may be said to teach away when a person
of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant." In re Kahn, 441
F.3d 977, 990 (Fed. Cir. 2006) (citations and internal quotation marks
omitted). See also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(noting that merely disclosing more than one alternative does not teach away
from any of these alternatives if the disclosure does not criticize, discredit,
or otherwise discourage the alternatives).
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We are unpersuaded, however, because Sundaresan discloses the
following: "Similarly, items in a result set for an 'ipod nano' search query
with largely irrelevant additional descriptive words such as 'leather',
'transmitter', or 'case' will reduce the relevancy score for those items."
Sundaresan i-f 49. Sundaresan, thus, does not discourage reducing relevancy
scores, because it also teaches that very action.
For the above reasons, the Appellant has not persuasively shown error
in the Examiner's rejection of independent claim 7, so we sustain the
rejection under 35 U.S.C. § 103(a). We also sustain the rejection of
dependent claims 8-14 that are argued only by their relationship with
independent claim 7. Appeal Br. 71.
The Appellant argues error by the Examiner for not giving patentable
weight to the language "the product identifier being obtained based at least
in part on a corresponding relationship between the product identifier and
the relevant web page that is stored in the web page database." Reply Br.
10; see also Appeal Br. 54--59. This action by the Examiner originates in
the indefiniteness rejection of claim 7 (Answer 7), but is carried over to the
obviousness rejection (Answer 10).
Although we agree with the Appellant on the indefiniteness issue, and,
thus, disagree with the Examiner that this language is outside the claim
scope, the error is moot, because Sundaresan discloses the claimed
"corresponding relationship" is based on the web page containing the
product identifier. See Sundaresan i-f 21.
Rejection of Claims 15-25 and 27 Under 35 US.C. § 103(a)
The Appellant's arguments directed to independent claims 15 and 21
are substantially identical to those advanced for claim 7. See Appeal Br. 71-
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85. We sustain the rejection of these claims for the same reasons we set
forth above at independent claim 7. We also sustain the rejection of
dependent claims 16-20, 22-25, and 27, which are not argued separately.
See Appeal Br. 78, 86.
DECISION
We AFFIRM the rejection of claims 7-25 and 27 under 35 U.S.C.
§ 101.
We REVERSE the rejection of claim 27 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
We REVERSE the rejection of claims 7-14 and 27 under 35 U.S.C.
§ 112, second paragraph, as indefinite.
We AFFIRM the rejections of claims 7-25 and 27 under 35 U.S.C.
§ 103(a).
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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