Ex Parte Raikula et al

Patent Trial and Appeal Board

Nov 28, 2018

14199654 (P.T.A.B. Nov. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/199,654 03/06/2014
42532 7590 11/30/2018
PROSKAUER ROSE LLP
ONE INTERNATIONAL PLACE
BOSTON, MA 02110
FIRST NAMED INVENTOR
Ronald Raikula
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.
FID-086 1370
EXAMINER
OFORI-AWUAH,MAAME
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
11/30/2018 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):
DocketingPatentBoston @proskauer.com
oandrews@proskauer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD RAIKULA and MEGAN KELLEY
Appeal2017-008710
Application 14/199,654
Technology Center 3600
Before CARL W. WHITEHEAD JR., ADAM J. PYONIN and
MICHAEL M. BARRY, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1, 2, 4--11, 13-
16, 18-25, and 27-32 under 35 U.S.C. § 134(a). Appeal Brief 10. We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Introduction
The invention is directed to "methods and apparatuses, including
computer program products, for generating an index of social health for
companies, business segments, and markets." Specification ,r 1.
Illustrative Claim
1. A computerized method for generating an index of social
health, the method comprising:
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Application 14/199,654
receiving, by a data assimilation and analysis module
executing on a processor of a server computing device, social
media interactions from a plurality of social media networks,
each social media interaction including social media sharing
activity
data for the interaction;
determining, by the data assimilation and analysis
module, a plurality of companies identified in the social media
interactions;
annotating, by the data assimilation and analysis module,
for each of the plurality of companies, each social media
interaction with a plurality of dimensions based upon the social
media sharing activity data, the annotating comprising:
determining a velocity of the social media interaction based
upon a volume of sharing activity for the interaction that
occurred both within the social media network where the
interaction originated and across the plurality of social media
networks for a defined time period;
determining a directionality of the social media
interaction based upon a dispersal of sharing activity for the
interaction both within the social media network where the
interaction originated and across the plurality of social media
networks for the defined time period; and
modifying the social media interaction to include a
reference to the velocity and the directionality;
determining, by an index data processing module
executing on the processor of the server computing device, a
component signal for each dimension of the social media
interaction by identifying a change in the dimension for a
particular time period and assigning a weight to each
component signal according to a weight matrix provided by a
data tuning module executing on the processor of the server
computing device;
generating, by the index data processing module, a social
media health index score for each of the plurality of companies
based upon the component signals;
identifying, by a trend data and signal threshold
processing module executing on the processor of the server
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computing device, one or more trends associated with the social
media health index score for each of the plurality of companies;
and
generating, by the trend data and signal threshold
processing module,
a social media health index for an industry by aggregating the
social media health index scores for the plurality of companies.
Rejections on Appeal
Claims 1, 2, 4--11, 13-16, 18-25 and 27-32 stand rejected under 35
U.S.C. § 101 as being directed to non-statutory subject matter. Final
Action 3--4.
Claims 1, 2, 4, 5, 7-9, 14--16, 18, 19, 21-23 and 28-32 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Andrews (U.S. Patent
Application Publication 2012/0296845 Al; published November 22, 2012),
Schubert (U.S. Patent Application Publication 2013/0124257 Al; published
May 16, 2013), Varghese (U.S. Patent Application Publication
2013/0325550 Al; published December 5, 2013) and Mischuk (U.S. Patent
Application Publication 2014/0025478 Al; published January 23, 2014).
Final Action 5-13.
Claims 6, 10, 13, 20, 24 and 27 stand rejected under 35 U.S.C. § 103
as being unpatentable over Andrews, Schubert, Varghese, Mischuk and
Gidwani (U.S. Patent Application Publication 2011/0047035 Al; published
February 24, 2011). Final Action 14--15.
Claims 11 and 25 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Andrews, Schubert, Varghese, Mischuk and Zhang (U.S.
Patent Application Publication 2013/0035982 Al; published February 7,
2013). Final Action 15-16.
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Application 14/199,654
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Briefs (filed February 2, 2016; June 23, 2016), the
Reply Brief (filed January 3, 2017), the Answer (mailed November 3, 2016)
and the Final Action ( mailed June 3 0, 2015) for the respective details.
35 U.S.C. § 101 Rejection
The Supreme Court has set forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 71-73 (2012)). In the first step of the analysis, we determine
whether the claims at issue are "directed to" a judicial exception, such as an
abstract idea. Alice, 134 S. Ct. at 2355. If not, the inquiry ends. Thales
Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are
determined to be directed to an abstract idea, then we consider under step
two whether the claims contain an "inventive concept" sufficient to
"transform the nature of the claim into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quotations and citation omitted).
Noting that the two stages involve "overlapping scrutiny of the
content of the claims," the Federal Circuit has described "the first-stage
inquiry" as "looking at the 'focus' of the claims, their 'character as a
whole,"' and "the second-stage inquiry (where reached)" as "looking more
precisely at what the claim elements add--specifically, whether, in the
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Supreme Court's terms, they identify an 'inventive concept' in the
application of the ineligible matter to which (by assumption at stage two) the
claim is directed." Electric Power Grp, LLC v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016). In considering whether a claim is directed to an
abstract idea, we acknowledge, as did the Court in Mayo, that "all inventions
at some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We, therefore, look
to: (1) whether the claims focus on a specific means or method that improves
the relevant technology, or (2) are directed to a result or effect that itself is
the abstract idea, in which the claims merely invoke generic processes and
machinery. See Enfzsh, 822 F.3d at 1336.
Step One: Whether the Claims Are Directed to a Patent-Ineligible
Concept (Abstract Idea)
Appellants argue, "In Flook ... the claims at issue were directed to
making a computation according to a mathematical formula. In contrast,
currently-pending claims are not directed to making a computation
according to a mathematical formula, particularly in view that the claims
recite many elements directed expressly to the operation of specialized
hardware components of the recited devices." Appeal Brief 13 (citing
Parker v. Flook, 437 U.S. 584, 594 (1978)). Appellants recite multiple
limitations from claim 1 to support this argument. Appeal Brief 13.
However, the mere recitation of claim limitations fails to address the
Examiner's determination that the claimed invention relies upon a
mathematical formula to obtain or generate the index of social health. See
Final Action 3. Appellants' Specification discloses, "[t]he server computing
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device generates a social media health index for an industry by aggregating
the index scores for the plurality of companies" and "[t]he server computing
device is configured to generates a social media health index for an industry
by aggregating the index scores for the plurality of companies."
Specification ,r 4.
Appellants further argue, "the claims presented herein are directed to
methods and systems for 'generating an index of social health,' including
detailed steps for carrying out such processes." Appeal Brief 14. We do not
find Appellants' arguments persuasive. As the Supreme Court has said, "'if
a claim is directed essentially to a method of calculating, using a
mathematical formula, even if the solution is for a specific purpose, the
claimed method is nonstatutory."' Parker, 437 U.S. at 595 ( quoting In re
Richman, 563 F.2d 1026, 1030 (CCPA 1977)). In addition, the Federal
Circuit has repeatedly made clear that "merely limiting the field of use of the
abstract idea to a particular existing technological environment does not
render the claims any less abstract." Affinity Labs of Texas, LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016). The claims of the
instant application here are abstract because they recite nothing but a series
of steps of data selection and gathering, manipulation of that data based on
application of mathematical rules, and presentation of the results.
Consequently, claim 1 is analogous to claims our reviewing court has
deemed abstract in Cyberfone Sys., LLC v. CNN Interactive Grp., 558 Fed.
Appx. 988 (Fed. Cir. 2014) (Affirming the district court's holding that using
categories to organize, store, and transmit information is well-established
and the idea of collecting information and then separating and transmitting
that information according to its classification is patent ineligible.); Content
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Extraction and Transmission LLC v. Wells Fargo Bank, Nat. Ass 'n, 776 F.3d
1343 (Fed. Cir. 2014)(cert. denied, 136 S.Ct. 119 (2015) (Data collection,
recognition, and storage is undisputedly well-known and collecting data,
recognizing certain data within the collected data set, and storing that
recognized data in a memory is patent ineligible.); Concaten, Inc. AmeriTrak
Fleet Solutions, LLC, 669 Fed. Appx. 571 (Fed. Cir. 2016) (mem.) (cert.
denied), 137 S. Ct. 1604 (2017) (Receiving, processing, and transmitting
data is patent ineligible.); Elec. Power Group, LLC v. Alstom S.A., 830 F.3d
1350 (Fed. Cir. 2016) (Holding that collecting information, analyzing it, and
displaying certain results of the collection and analysis is patent ineligible.).
We agree with the Examiner's determination, that at step one of the
Alice analysis, the claims are directed to one or more abstract ideas; we tum
to the second step of the Alice analysis, in which we must determine whether
the additional elements of the claims transform them into patent-eligible
subject matter.
Step Two: Whether Additional Elements Transform the Idea into
Patent-Eligible Subject Matter
The Examiner determines:
[T]hat the specific type of information (i.e. social media
interactions that relate to specific companies), does not impose
meaningful limitations on the claims or render the claims less
abstract. Moreover, the steps of synthesizing the content of social
media interactions that relate to specific companies with social
media sharing activity data for the same interactions to generate
a unique social media health index score for the companies, and
then assemble the individual social media health index scores
into a sector-wide, or industry-wide, social media health index
that compares the social media health of a plurality of companies
over a predetermined time period describes the abstract idea of
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manipulating data through mathematical correlations such as in
Digitech.
Answer 21.
Appellant contends:
The additional elements, according to the Examiner, "are not
sufficient to amount to significantly more than the judicial
exception" because they involve "recitation of generic computer
structure [that] serves to perform generic computer functions that
are well-understood, routine, and conventional activities
previously known to the pertinent industry."
Appeal Brief 15 ( citing Final Action 3--4 ).
Appellants further contends:
Applicant's claims add specific, unconventional limitations that
confine the claim to a particular useful technological application
- which the Interim Guidance identifies as sufficient to show that
the claims contain significantly more than any alleged abstract
idea.
Appeal Brief 20.
Appellants conclude, "[t]here is no evidence in the record that [the
claimed limitations] are well-understood, routine, or conventional in the
industry." Appeal Brief 21.
Under the examination procedure published on line by the USPTO on
April 19, 2018, entitled "Changes in Examination Procedure Pertaining to
Subject lviatter Eligibility, Recent Subject 1\1atter Eligibility Decision
(Berkheimer v. HP, Inc.)" (hereinafter "Berkheimer Memorandum"), there is
a fact finding requirement for Examiners, as applicable to rejections under§
101. Specifically, Examiners must provide specific types of evidence to
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suppmi a finding that claim elements ( or combinations of elements) are
well-understood, routine, and conventional. The Examiner finds:
The claims recites additional elements of a "data assimilation and
analysis module" executing on a processor of a server computing
device, "a data tuning module," "an index data processing
module," "a trend data and signal threshold processing module."
These modules include using a generic computer (see
Specification, P[0059]: general purpose computer) to perform
generic computer functions of obtaining and processing
information (e.g. receiving, determining, annotating, generating,
identifying and modifying).
Answer 18.
Appellants do not provide evidence or technical reasoning to show
these findings are in error. See page 3 of the Berkheimer l\1emorandum ("A
specification demonstrates the well-understood, routine, conventional nature
of additional elements ... in a manner that indicates that the additional
elements are sufficiently well-known that the specification does not need to
describe the particulars of such additional elements to satisfy 35 U.S.C.
§ l 12(a).") Accordingly, we find the Examiner satisfied the burden of
establishing a prima facie case of ineligibility under§ 101 by providing the
requisite factual support for limitations that are said to be well-understood,
routine, and conventional. We agree with the Examiner's determination and
therefore we do not find that the claims recite significantly more to
transform the abstract idea into a patent-eligible application. We sustain the
Examiner's 35 U.S.C. § 101 rejection of claim 1, independent claims 15 and
29 as well as claims 2, 4-11, 13, 14, 16, 18-25 and 27, 28 and 30-32
rejected on the same basis and argued collective1y by Appellants.
35 U.S.C. § 103 Rejection
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Appellants address the alleged inadequacies of each reference and
contend these inadequacies fail to establish a prima facie case of
obviousness. See Appeal Brief 23-24. Appellants conclude, "that the
combination of Andrews, Schubert, Varghese, and Mischuk simply fails to
teach, suggest, or render obvious" a myriad of quoted claim limitations.
Appeal Brief 25. "Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references." In re Merck, 800 F.2d 1091, 1097 (Fed. Cir.
1986) (citing In re Keller, 642 F.2d 413,425 (Fed. Cir. 1981)). We do not
find Appellants' arguments persuasive because Appellants fail to address the
specificity of the Examiner's obviousness rejection. See Final Action 5-16.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103 rejections of claims
1, 2, 4--11, 13-16, 18-25 and 27-32 rejected on the same basis and argued
collectively by Appellants.
DECISION
The Examiner's 35 U.S.C. § 101 rejection of claims 1, 2, 4--11, 13-
16, 18-25 and 27-32 is sustained.
The Examiner's 35 U.S.C. § 103 rejections of claims 1, 2, 4--11, 13-
16, 18-25 and 27-32 are sustained.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 1.136(a)(l )(v).
AFFIRMED
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