Ex Parte Pulnikova

Patent Trial and Appeal Board

Mar 28, 2017

12821495 (P.T.A.B. Mar. 28, 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.
12/821,495 06/23/2010 Valentina Pulnikova Pulnikova 4067
68380 7590 03/28/2017
DR. PULNIKOVA VALENTINA
WEIHERS TRAS SE 9
VILLINGEN-SCHWENNINGEN, 78050
GERMANY
EXAMINER
JASMIN, LYNDA C
ART UNIT PAPER NUMBER
3629
MAIL DATE DELIVERY MODE
03/28/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VALENTINA PULNIKOVA
Appeal 2014-008062
Application 12/821,4951
Technology Center 3600
Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
BRUCE T. WIEDER, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 2-4. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
1 Appellant identifies the inventor as the real party in interest. (Br. 1).
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Application 12/821,495
THE INVENTION
Appellant claims a system and method of a global electronic job
market in the internet. (Spec. 12).
Claim 2, reproduced below, is representative of the subject matter on
appeal.
2. A method of operation of system of global electronic
job market for jobseekers and employers in the Internet,
comprising the combination at least of following steps:
a) creating a group of related data tables of an
International Classification of Specialities, where the
International Classification of Specialities represents by itself a
tree-like structure with names and corresponding codes of
branches and sub-branches of main types of activity of the
person, where final branches of the tree represent names of
specialities;
b) creating a group of related data tables of an
International Classification of Job Positions, where the
International Classification of Job Positions represents by itself
a tree-like structure with names and corresponding codes of the
basic groups and subgroups of job positions, where final
branches of the tree represent names of job positions;
c) forming a database of information about job seekers on
the basis of data provided by themselves, where a name of his
speciality and qualification the jobseeker specifies according to
the International Classification of Specialities and where a
name of desired job position the jobseeker specifies according
to the International Classification of Job Positions and where
the database of information about jobseekers represents a group
of related tables of data, where a group of fields, in which
information about specialities is contained, represents foreign
keys, related with primary keys of all tables of the International
Classification of Specialities, and where a group of fields, in
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which information about job positions is contained, represents
foreign keys, related with primary keys of all tables of the
International Classification of Job Positions;
d) forming a database of information about offers of
employers on the basis of data provided by themselves, where a
name of proposed job position the employer specifies according
to the International Classification of Job Positions and where a
name of required speciality and qualification for said job
position the employer specifies according to the International
Classification of Specialities and where the database of
information about offers of employers represents a group of
related tables of data, where a group of fields, in which
information about job positions is contained, represents foreign
keys, related with primary keys of all tables of the International
Classification of Job Positions and where a group of fields, in
which information about specialities is contained, represents
foreign keys, related with primary keys of all tables of the
International Classification of Specialities;
e) forming a request for searching of an information
about job vacancies by jobseeker, where a name of his
speciality and qualification in a form of request the jobseeker
specifies according to the International Classification of
Specialities and where the jobseeker specifies a name of desired
job position in a form of request according to the International
Classification of Job Positions;
f) forming a request for searching of an information
about needed employees by employer, where a name of
proposed job position in a form of request the employer
specifies according to the International Classification of Job
Positions and where the employer specifies a name of required
speciality and qualification for said job position in a form of
request according to the International Classification of
Specialities;
g) searching of job vacancies according to a request of a
jobseeker and selection of corresponding information from the
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database of offers of employers, when a code of speciality in
request of the jobseeker and a code of speciality in the database
of offers of employers represent related information on the
basis of the International Classification of Specialities and
when a code of job position in request of the jobseeker and a
code of job position in the database of offers of employers
represent related information on the basis of the International
Classification of Job Positions;
h) forming a file of results of search on the basis of a
request of a jobseeker, the structure of which completely
corresponds to the structure of the database of offers of
employers and which completely corresponds to request of the
jobseeker;
i) searching of needed employees according to a request
of a[n] employer and selection of corresponding information
from the database of jobseekers, when a code of speciality in
request of the employer and code of speciality in the database
of jobseekers represent related information on the basis of the
International Classification of Specialities and when a code of
job position in request of the employer and a code of job
position in the database of jobseekers represent related
information on the basis of the International Classification of
Job Positions;
j) forming a file of results of search on the basis of a
request of a[n] employer, the structure of which completely
corresponds to the structure of the database of information
about jobseekers and which completely corresponds to request
of the employer;
k) sorting of data from a file of results of search on the
basis of selected by a user of criterion of sorting, where criteria
of sorting comprise: a job position according to the
International Classification of Job Positions; a country, a region
and a city; a qualification according to the International
Classification of Specialities; a salary; an experience of work; a
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type of work; a level of education; a scientific degree; a level of
knowledge of languages; an age; a sex;
l) selecting of data from a file of results of search;
m) holding a competition for vacant job position (tender)
by an employer.
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Wong
Singh
Vianello
Hill
US 2001/0049615 A1
US 2005/0149538 A1
US 7,424,438 B2
US 8,001,057 B1
Dec. 6, 2001
July 7, 2005
Sept. 9, 2008
Aug. 16, 2011
The following rejections are before us for review.2
Claim 3 under 35U.S.C. § 112, first paragraph, as failing to comply
with the written description requirement.
Claims 2—\ under 35 U.S.C. § 101 as being directed to non-statutory
subject matter.
Claim 2 under 35 U.S.C. § 103(a) as unpatentable over Vianello and
Singh.
Claim 3 under 35 U.S.C. § 103(a) as unpatentable over Vianello,
Singh, and Hill.
2 The Examiner withdrew the rejection of claims 2-4 under 35 U.S.C. § 112,
second paragraph. (Answer 2).
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Claim 4 under 35 U.S.C. § 103(a) as unpatentable over Vianello,
Singh, Wong, and Official Notice.
FINDINGS OF FACT
1. We adopt the Examiner’s findings as set forth on pages 4—5 of the
Final Rejection concerning the 35 U.S.C. § 112, first paragraph, rejection,
and on pages 9—10 of the Final Action concerning the rejection under
35 U.S.C. § 101.
2. Appellant presents the below block scheme of algorithm to rebut
the 35 U.S.C. § 112, first paragraph, rejection as set forth on page 67 of the
Brief.
internal cycle | second cycle
nJ , ,
Sei(x) ■— £e <— 3«leet*Criteria*^ .Select! Cmerio-s| , Seise
fo
:(Criterios^5 ,x) j)
Above is a block scheme of algorithm as set forth on page 67 of the
Appeal Brief.
3. The formula (FF. 2) was not part of the Specification as originally
filed.
ANALYSIS
35 U.S.C. § 101 REJECTION
We will affirm the rejection of claims 2^4- under 35 U.S.C. §101. As
a preliminary note, Appellant, in several instances in the Brief, asserts
“plagiarism” on the part of the Office. (See, e.g., Br. 73, 76, 77, 86, 87, 88,
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93, 98, 99, 100). This is a misdirected approach on appeal before this Board.
The argument is not responsive to any rejections and will not be considered.
Rather, we follow the appropriate statutes and precedents. Accordingly, and
in view of the precedential decisions cited below, we affirm the Examiner’s
rejection of claims 2-A under 35U.S.C. § 101.3 * * * 7
Appellant argues the 35 U.S.C. § 101 rejection by applying a
machine-or-transformation test of data. (Br. 87—89). In so doing, Appellant
argues,
It is said in Claim 2 of my invention about forming the
database of the information about jobseekers and about forming
the database of the information about offers of employers.
These data about jobseekers and about offers of employers were
isolated and were not structured data before the forming of said
databases of jobseekers and employers. The forming of above
mentioned databases is not a simple displacement of these data.
These data are [sic] became structured data during the process
of the forming of these databases. The structuring of
information in these databases gives possibility of a future
automatic search, a sorting and a selecting of information.
These databases are relational databases. The name of
specialities and name of job positions are got through these
databases from the International Classification of Specialities
and from the International Classification of Job Positions.
(Br. 89).
We disagree with Appellant because storing data in a given
3 35 U.S.C. § 101 Inventions patentable. Whoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.
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arrangement such as in a relational database does not change the essence of
the data. The data still remain the same data. Calling the data “structured”
only refers to the way the same data are stored. The Supreme Court
clarified, in Bilski v. Kappos, 130 S. Ct. 3218 (2010), that the machine-or-
transformation test “is not the sole test for deciding whether an invention is a
patent-eligible ‘process’ [under § 101].” Id. at 3227. But, the Court did not
state, or otherwise suggest, that failure to satisfy the machine-or-
transformation test creates a presumption that a claimed method is directed
to patent-ineligible subject matter.
More recently, in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
2347 (2014), the Supreme Court further clarified the law regarding
patentable subject matter. In doing so, the Supreme Court reiterated the
two-step framework previously set forth in Mayo Collaborative Services v.
Prometheus Labs., Inc., 132 S. Ct. 1289, 1300 (2012), “for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of these concepts.”
Alice Corp., 134 S. Ct. at 2355.
Appellant argues, inter alia,
Thus, the “abstract idea" “doesn't have a clear
applicability to real life” and “doesn't pictorially represent
reality”. There is not any reason to consider the real Web sites,
which in reality exist in the Internet, as “abstract ideas".
The method of operation of the system of the global
electronic job market in the Internet is a real method, which can
be realized in reality, because the systems of searching of job
vacancies are widely used in the Internet. The method of
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operation of the system of the global electronic job market in
the Internet is absolutely not the idea, which “doesn7 have a
clear applicability to real life'1'’ and “doesn'tpictorially
represent reality'”. Based on the logic of the examiner, all Web
sites, which really exist and really work in the Internet, and
which are connected with the job market, actually don’t exist,
and they “don 7 have a clear applicability to real life” and
“doesn 7 pictorially represent reality”. It is full absurdity.
(Appeal Br. 80).
We disagree with Appellant because the Supreme Court has spoken
on the legal standard for patent eligibility, and claims 2-4 do not pass the
tests set forth by the Supreme Court’s standards.
The first step in the analysis is to “determine whether the claims at
issue are directed to one of those patent-ineligible concepts,” id., e.g., to an
abstract idea. If the claims are not directed to one of those patent-ineligible
concepts, the inquiry ends. Otherwise, the inquiry proceeds to the second
step where the elements of the claims are considered “individually and ‘as
an ordered combination’” to determine whether there are additional elements
that “‘transform the nature of the claim’ into a patent-eligible application.”
Alice Corp., 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1297).
The Court acknowledged in Mayo, that “all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas.” Mayo, 132 S. Ct. at 1293. We, therefore, look to whether
the claims focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
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abstract idea and merely invoke generic processes and machinery.
See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
Applying the framework set forth in Alice, and as the first step of that
analysis, we find that the claims are directed to the abstract idea of the
“structuring” of information — a finding that also is fully consistent with the
Specification (see Spec. 110 (stating that, “First of all, it is necessary to
structure the main data...”)).
Claim 2, the sole independent claim before us, recites, inter alia, a
method comprising the steps of:
• creating a group of related data tables of a Classification, where the
Classification represents by itself a tree-like structure with branches
and sub-branches and final branches of the tree represent names of
specialities;
• creating a group of related data tables of the Classification where the
Classification represents by itself a tree-like structure with names and
corresponding codes of the basic groups and subgroups of job
positions, where final branches of the tree represent names of job
positions;
• forming a database of information about job seekers the jobseeker
specifies according to the Classification and where the database of
information about jobseekers represents a group of related tables of
data, where a group of fields, in which information about specialities
is contained, represents foreign keys, related with primary keys of all
tables of the Classification a group of fields, in which information
about job positions is contained, represents foreign keys, related with
primary keys of all tables of the Classification of Job Positions;
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• forming a database of information about offers of employers
according to the International Classification of Job Positions and
where the database of information about offers of employers
represents a group of related tables of data, where a group of fields, in
which information about job positions is contained, represents foreign
keys, related with primary keys of all tables the Classification and
where a group of fields, in which information about specialities is
contained, represents foreign keys, related with primary keys of all
tables of the Classification;
• forming a request for searching of an information about job vacancies
by jobseeker, where a name of jobseeker speciality and qualification
in a form of request specifies according to the Classification;
• forming a request for searching of an information about needed
employees by employer, where a name of proposed job position in a
form of request the employer specifies according to the Classification
and where the employer specifies a name of required speciality and
qualification for said job position in a form of request according to the
Classification;
• searching of job vacancies according to a request from the database of
offers, when a code of speciality in request of the jobseeker and a
code of speciality in the database of offers of employers represent
related information on the basis of the Classification and when a code
of job position in request of the jobseeker and a code of job position in
the database of offers represent related information on the basis of the
Classification;
• forming a file of results of search on the basis of a request of a
jobseeker, the structure of which completely corresponds to the
structure of the database of offers of employers and which completely
corresponds to request of the jobseeker;
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• searching of needed employees according to a request from the
database of jobseekers, when a code of speciality in request of the
employer and code of speciality in the database of jobseekers
represent related information on the basis of the Classification and
when a code of job position in request of the employer and a code of
job position in the database of jobseekers represent related
information on the basis of the Classification;
• forming a file of results of search on the basis of a request of an
employer, the structure of which completely corresponds to the
structure of the database of information about jobseekers and which
completely corresponds to request of the employer; and
• sorting of data from a file of results of search on the basis of selected
by a user of criterion of sorting.
The limitations above, all involve acts that could be performed by a
human, i.e., either mentally, or manually using pen and paper, without the
use of a computer or any other machine, i.e., creating, forming a database/
compilation, requesting, searching, gathering results in a file, and matching
like criteria. The thought process involved here is “to carry out structuring”
of information (Specification 110) resulting in “the operation of the global
electronic job market.” {Id. 112). Hiring of qualified personnel is a
fundamental economic practice because it is the basis of how work gets done
in society.
The law is clear that “[a] method that can be performed by human
thought alone is merely an abstract idea and is not patent-eligible under
§ 101.” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372—
73 (Fed. Cir. 2011); see also Gottschalkv. Benson, 409 U.S. 63, 67 (1972)
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(“[phenomena of nature . . mental processes, and abstract intellectual
concepts are not patentable, as they are the basic tools of scientific and
technological work.”). Moreover, mental processes remain unpatentable
even when automated to reduce the burden on the user of what once could
have been done with pen and paper. CyberSource, 654 F.3d at 1375 (“That
purely mental processes can be unpatentable, even when performed by a
computer, was precisely the holding of the Supreme Court in Gottschalk v.
Benson”).
Turning to the second step of the Alice analysis, because we find that
claim 2 is directed to an abstract idea, the claim must include an “inventive
concept” in order to be patent-eligible, i.e., there must be an element or
combination of elements that is sufficient to ensure that the claim in practice
amounts to “significantly more” than the abstract idea itself. Here, claim 2
refers generally to “the Internet” and, in some part, claim 3, refers to a
device, i.e., a host server. But, the body of these claims merely refers to
these in general terms.
Nothing in claims 2—A purports to improve computer functioning or
“effect an improvement in any other technology or technical field.” Alice,
134 S. Ct. at 2359. Nor do the claims solve a problem unique to the Internet.
See DDR Holdings LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir.
2014). Claim 2 also is not adequately tied to “a particular machine or
apparatus.” See Bilski v. Kappos, 561 U.S. 593, 601 (2010).
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Because we find that dependent claims 3 and 4 lack additional
elements that would render the claims patent-eligible and because claim 2 is
directed to an abstract idea and nothing in the claim adds an inventive
concept, claims 2-4 are not patent-eligible under § 101.
35 U.S.C. § 103 REJECTIONS
We will not sustain the rejections of claims 2-4 under 35 U.S.C.
§103.
Claim 2, the sole independent claim before us, requires at section j):
forming a file of results of search on the basis of a
request of a[n] employer, the structure of which completely
corresponds to the structure of the database of information
about jobseekers and which completely corresponds to request
of the employer;
The Examiner found that this limitation is disclosed by Vianello,
stating: “(See at least Fig. 10 and associated text, Col. 42, lines 6-24; See
also Col. 43, lines 33-43 & lines 55-64, forming a file of results of the search
which corresponds to an employer search request).” (Final Act. 14).
Appellant argues,
according to the patent US 7,424,438, "search results"
contain "talentprofile ", "search results" are provided in a
structured format and "search results" satisfy with "all of the
criteria as set forth in connection with employer-provided
talent profde search parameters". No other information about
"search results" is present in the Col. 42, lines 6-24, Col. 43,
lines 33-43 and Col. 43, lines 13-16 of the patent US 7,424,438
"Apparatus and methods for providing career and employment
services" by Vianello.
(Br. 240).
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We agree with Appellant. Our review of Vianello at the sections cited
by the Examiner reveals that in these sections, Viannello discloses saving
“each employer-specified search routine,” and/or “the employer identified a
talent profile via a self-search.” Vianello, col. 43,11. 37-40. The Examiner
has not explained, nor is it apparent, how “each employer-specified search
routine,” and/or “the employer identified a talent profile via a self-search,”
which are self-tailored searches, equates to or makes obvious, the claimed
forming a file of results of search on the basis of a request of an employer,
the structure of which completely corresponds to the structure of the
database of information about jobseekers and which completely corresponds
to a request of the employer. Also, even though Vianello discloses an
automatic search (see col. 43,11. 33—35), there is no indication in what form
the automatic search is saved.
Because claims 3 and 4 depend from claim 2, and because we cannot
sustain the rejection of claim 2, the rejection of claims 3 and 4 likewise
cannot be sustained.
35 U.S.C. § 112, FIRST PARAGRAPH, REJECTION
We will sustain the rejection of claim 3 under 35 U.S.C. § 112, first
paragraph.
The Examiner rejected claim 3 under 35 U.S.C. § 112(a) or 35 U.S.C.
§ 112 (pre-AIA), first paragraph, as failing to comply with the written
description requirement. In so doing the Examiner found,
Amended claim 3 recites “the algorithm of selecting consists of
enclosed cycles and where the criterion of selecting on an
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external cycle will possess the highest priority and the criterion
of selecting on an internal cycle will possess the lowest
priority;” however, the specification does not describe the steps
of the algorithm or how the algorithm is carried out. The
limitation claimed is found in the disclosure at paragraph
[0069], but there is no explanation related to the steps of the
algorithm. Paragraph [0067] describes the algorithm of sorting
according to the name of the country, region and a city will be
enclosed. The paragraph further states an external cycle of
sorting according to country will be made, a following cycle of
sorting according to region will be made and the last cycle
sorting according to city will be made. Is this just one example
of “enclosed cycle” sorting, since the paragraph goes on to
describe sorting according to salary, work type, etc., or is this
intended to be the algorithm claimed? As described, the
disclosure in paragraph [0067] to not described [sic] how the
algorithm is carried out, nor does it adequately describe how
priority is given to the cycles. Paragraph [0067] describes an
order of sorting, not an assignment of priority. It would be
unclear to one of ordinary skill in the art how to perform the
algorithm claimed based on specification filed.
(Final Act. 4—5).
Appellant argues, inter alia, that,
The phrase “external cycle” is also the well-known
concept for persons, which are the specialists with ordinary
skill in field of informatics and computer programming. This
phrase means the cycle, which is situated from outside of other
cycles. Thus, this phrase does not need any additional
explanation in the specification.
Once again, I present below the block scheme of
algorithm with enclosed cycles. [FF. 2.]
(Br. 66-67).
As one can see, the concepts “internal cycle'1'’ and
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“external cycle” are the quite elementary things for students of
universities. Therefore, these concepts are well-known for
persons, which are the specialists with ordinary skill in field of
informatics and computer programming.
(Br. 67).
We disagree with Appellant. “To satisfy this requirement, the
specification must describe the invention in sufficient detail so ‘that one
skilled in the art can clearly conclude that the inventor invented the claimed
invention as of the filing date sought.’” In re Alonso, 545 F.3d 1015, 1019
(Fed. Cir. 2008) (citations omitted). An applicant shows possession of the
claimed invention by describing the claimed invention with all of its
limitations using such descriptive means as words, structures, figures,
diagrams, and formulas that fully set forth the claimed invention. Lockwood
v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997).
The formula (FF. 2) which Appellant presents in the Appeal Brief at
page 67 was not part of the Specification as originally filed (FF. 3). We find
the formula (FF. 2) is sufficient in detail to address the Examiner’s
inadequacy finding of the Specification, e.g., “the disclosure in
paragraph [0067] to [sic does] not describe^ how the algorithm is carried
out, nor does it adequately describe how priority is given to the cycles.”
(Final Act. 5). But, again this formula was not part of the Specification as
originally filed. (FF. 3). We are not persuaded by the Appellant’s argument
that, “[a]s one can see, the concepts ‘internal cycle’ and ‘external cycle’ are
the quite elementary things for students of universities” (Appeal Br. 67)
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because one having ordinary skill in the art is not definable by way of
credentials, e.g„, a student of a university. Ex parte Hiyamizu, 10 USPQ2d
1393, 1394 (BPAT 1988)”
Other than making the general statement that the subject equation
involves “quite elementary things for students of universities” (Appeal
Br. 67), Appellant fails to produce evidence of other factors which help
determine the skill level of one having ordinary skill in the art. (The person
of ordinary skill in the art is a hypothetical person who is presumed to know
the relevant prior art. Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc.,
807 F.2d 955, 962 (Fed. Cir. 1986).) In determining this skill level, the
Board may consider various factors including “type of problems encountered
in the art; prior art solutions to those problems; rapidity with which
innovations are made; sophistication of the technology; and educational
level of active workers in the field.” Id. Appellant does not present
persuasi ve evidence that one of ordinary skill in the art would have
understood that the inventor, as of the filing date, was in possession of the
claimed invention.
Accordingly, we sustain the rejection of dependent claim 3 under
35 U.S.C. § 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph.
CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claim 3 under
35 U.S.C. § 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph.
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We conclude the Examiner did not err in rejecting claims 2—A under
35 U.S.C. § 101.
We conclude the Examiner did err in rejecting claims 2—A under
35 U.S.C. §103.
DECISION
The decision of the Examiner to reject claims 2-4 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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