Ex Parte Ren

Patent Trial and Appeal Board

May 22, 2018

13538247 (P.T.A.B. May. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/538,247 06/29/2012
25537 7590 05/24/2018
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
Dahai Ren
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.
20120383 4924
EXAMINER
CROSS, MICHAEL J
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
05/24/2018 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAHAI REN
Appeal 2016-005 865
Application 13/538,247
Technology Center 3600
Before ANTON W. PETTING, NINA L. MEDLOCK, and
MATTHEWS. MEYERS, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Dahai Ren ("Appellant") seeks review under 35 U.S.C. § 134 from a
final rejection of claims 1-9 and 11-21, the only claims pending in the
application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b ).
We affirm.
1 Our decision will make reference to the Appellant's Appeal Brief ("Br.,"
filed September 8, 2015) and the Examiner's Answer ("Ans.," mailed March
4, 2016), and Final Action ("Final Act.," mailed May 13, 2015).
Appeal 2016-005865
Application 13/538,247
The Appellant invented a way of providing a cloud based customer
incentive program. Spec., para. 13.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A computer-implemented method comprising:
[ 1] receiving, by a processing device, at a third party network
location,
a first business profile from a first business partner,
wherein the first business profile includes a first
customer incentive program identifier that identifies
the first business partner
and
a first customer incentive program provided by the
first business partner;
[2] receiving, by the processing device,
a second business profile from a second business partner,
wherein the second business profile includes a second
customer incentive program identifier that identifies
the second business partner
and
a second customer incentive program provided by
the second business partner;
[3] adding, by the processing device,
the first business partner and the second business partner
to a list of available retailers;
[ 4] receiving, by the processing device and from a user device,
customer profile information for
a customer
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and
at least one selected retailer from the list of
available retailers;
[5] storing, by the processing device,
a customer profile that includes the customer profile
information in association with the at least one selected
retailer;
[ 6] generating, by the processing device,
and
at least one customer incentive program user identifier
associated with each of the at least one selected retailer,
wherein the customer incentive program user identifier
identifies a particular customer account for the customer
with the at least one selected retailer;
[7] sending, by the processing device and to the user device,
the at least one[]customer incentive program user
identifier,
wherein the user device is operable to present the
customer incentive program user identifier to a business
device,
the business device being operable
and
to identify the customer in association with the
particular customer account
and
to allow the customer to participate in a customer
incentive program provided by the at least one
selected retailer
based on the customer incentive program
user identifier,
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each customer is eligible for rewards associated with the
customer incentive program based on one or more
qualifying purchases.
The Examiner relies upon the following prior art:
Figueroa US 2009/0222328 Al Sept. 3, 2009
Hendrickson US 2011/0040655 Al Feb. 17, 2011
Reuthe US 2011/0137717 Al June 9, 2011
Claims 1-9 and 11-21 stand rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
Claims 1-9 and 11-21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hendrickson, Figueroa, and Reuthe. 2
ISSUES
The issues of eligible subject matter tum primarily on whether the
claims recite more than abstract conceptual advice of what a computer is to
provide without implementation details.
2 Although the statutory statement of rejection omits claim 21, claim 21 is
included in the analysis. The omission is taken as a typographic error.
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The issues of obviousness tum primarily on the degree of patentable
weight afforded the non-functional limitations, whether the non-functional
limitations are sufficiently broad in any event to encompass the art, and
whether the references describe reasons for combining them.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Hendrickson
01. Hendrickson is directed to improving the accuracy of marketing
to consumers by compiling a consumer profile database using
inputs from web-based, point-of-service-based, and mobile device-
based systems that collect data relating to consumer preferences
and purchases, by developing profiles based on consumer
preferences and purchases in certain industry sectors and the like,
and by using such profiles and purchase information in conjunction
with the geographic position of the customer to make purchasing
recommendations and marketing offers across several industry
sectors and to submit preregistered retail orders for purchase.
Hendrickson, para. 2.
02. Hendrickson describes entering plural different service
providers who desire to participate in the same network.
Hendrickson, para. 24.
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03. Hendrickson describes entering a user identifier by way of the
user's mobile device. Hendrickson, para. 27.
04. Hendrickson describes using this user identifier to pre-order
purchases. Hendrickson, para. 27. Pre-ordering is a service that
augments and, therefore, promotes a purchase and as such is within
the scope of a promotional activity.
05. Hendrickson describes a promotional loyalty program in which
each customer would receive his/her most frequently purchased,
most recently purchased, or least expensive dessert purchased
complimentary from the vendor. Hendrickson, para. 37.
06. Hendrickson describes a promotional text alert a vendor can
personalize as a message regarding, for example, a comic's
background, rating, accomplishments, and other individual
information or offer special discounts in the same fashion as that of
the embodiment of the method for the travel industry. As tickets
sell quickly, promotion prices can be lifted. For customers that
prefer a certain seat or section at an event, he/she will be notified
when the option to purchase these tickets becomes available.
Hendrickson, para. 40.
Figueroa
07. Figueroa is directed to providing business information and
facilitating contact between businesses and consumers. Figueroa,
para. 2.
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08. Figueroa describes a network based business and consumer
resource system for businesses to open a dialog channel with
customers and clients, and for potential customers and clients to
open a dialog channel with businesses. By creating business
profile pages on the publicly available system, business owners can
perform such tasks as updating business information, scheduling
meetings, responding to customer requests for service in an area,
creating coupons that are available in any of the areas in which the
business owner is subscribed, and improving the business's
ranking in popular publicly accessible search engines. This gives
the business owner (particularly small business owners in single
locations) an improved ability to market to a specific area.
Figueroa, para. 26.
Reuthe
09. Reuthe is directed to digital incentives for electronic financial
transactions. Reuthe, para. 2.
10. Reuthe describes loyalty and rewards programs as popular
incentive tools used by merchants and service providers. These
programs generally reward customer loyalty by crediting a
consumer's rewards account with reward currency-points, miles,
reward dollars, etc.-upon the completion of a qualifying
transaction and allowing the consumer to redeem accumulated
reward currency for merchandise, services, or discounts. Some
loyalty and reward program implementations provide rebates or
discounts to the consumer based on the achievement of preset
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milestones. In general, loyalty and reward programs reward a
pattern of customer loyalty performed in the past with a future
reward. While these programs provide an incentive for consumers,
the consumers must wait until a point in time after one or more
purchases have been made before realizing any program-related
benefit. Consumers do not receive any immediate benefit at the
point of sale as they would with coupon-type incentives. Reuthe,
para. 14.
ANALYSIS
Claims 1-9 and 11-21 rejected under 35 USC§ 101 as directed to non-
statutory subject matter
Method claim 1 recites receiving data representing provider profiles,
adding those provider identities to a list, receiving and storing data
representing customer profiles, and generating and sending data representing
a customer incentive program user identifier. Thus, claim 1 recites
receiving, storing, generating, and transmitting data. None of the limitations
recites implementation details for any of these steps; instead, the limitations
recite functional results to be achieved by any and all possible means. Data
reception, generation and storage, and transmission are all generic,
conventional data processing operations to the point they are themselves
concepts awaiting implementation details. The sequence of data reception-
storage-generation-transmission is equally generic and conventional. The
ordering of the steps is, therefore, ordinary and conventional. The remaining
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claims merely describe parameters for the data content and destinations, with
no implementation details.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, ...
determine whether the claims at issue are directed to one of
those patent-ineligible concepts .... If so, we then ask, "[ w ]hat
else is there in the claims before us? . . . To answer that
question, ... 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 .... [The Court]
described step two of this analysis 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."
Alice Corp. Pty. Ltd. v CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Examiner finds the
claims directed to manipulating data to perform the fundamental economic
practice of providing incentives to customers. Final Act. 6.
Although the Court in Alice made a determination as to what the
claims were directed to, we find that this case's claims themselves and the
Specification provide enough information to inform one as to what they are
directed.
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The preamble to claim 1 does not recite what it is directed to, but the
steps in claim 1 result in sending a piece of data representing a customer
incentive program user identifier. The Specification at paragraph 13 recites
that the invention relates to providing a cloud based customer incentive
program. Thus, all this evidence shows that claim 1 is directed to creating
customer incentives, i.e. sales promotion.
It follows from prior Supreme Court cases, and Bilski (Bilski v.
Kappas, 561 U.S. 593 (2010)) in particular, that the claims at issue here are
directed to an abstract idea. Like the risk hedging in Bilski, the concept of
sales promotion is a fundamental business practice long prevalent in our
system of commerce. The use of sales promotion is also a building block of
human ingenuity in marketing. Thus, sales promotion, like hedging, is an
"abstract idea" beyond the scope of§ 101. See Alice, 134 S. Ct. at 2356.
As in Alice, we need not labor to delimit the precise contours of the
"abstract ideas" category in this case. It is enough to recognize that there is
no meaningful distinction in the level of abstraction between the concept of
risk hedging in Bilski and the concept of sales promotion at issue here. Both
are squarely within the realm of "abstract ideas" as the Court has used that
term. See Alice, 134 S. Ct. at 2357.
Further, claims involving data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp., LLC v. Alstom S.A., 830 F .3d
1350, 1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing
it, and displaying certain results of the collection and analysis" are "a
familiar class of claims 'directed to' a patent-ineligible concept"); see also
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In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, generation, and
transmission and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims not abstract
because they "focused on a specific asserted improvement in computer
animation"). As such, claim 1 is directed to the abstract idea of receiving,
generating, and transmitting data.
The remaining claims merely describe parameters for the data content
and destinations. We conclude that the claims at issue are directed to a
patent-ineligible concept.
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it"' is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implement[t]" an abstract
idea "on ... a computer," that addition cannot impart patent
eligibility. This conclusion accords with the pre-emption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of "additional
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featur[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself."
Alice, 134 S. Ct. at 2358 (citations omitted).
"[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer." Alice, 134 S. Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to receive, generate, and transmit data amounts to electronic data
query and retrieval---one of the most basic functions of a computer. The
limitation of
wherein the user device is operable to present the customer
incentive program user identifier to a business device, the
business device being operable to identify the customer in
association with the particular customer account and to allow
the customer to participate in a customer incentive program
provided by the at least one selected retailer based on the
customer incentive program user identifier, and each customer
is eligible for rewards associated with the customer incentive
program based on one or more qualifying purchases
is not a step and is aspirational rather than functional, describing aspirational
characteristics of the device and data that do not affect the actual recited
steps. All of these computer functions are well-understood, routine,
conventional activities previously known to the industry. In short, each step
does no more than require a generic computer to perform generic computer
functions.
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Considered as an ordered combination, the computer components of
Appellant's method add nothing that is not already present when the steps
are considered separately. Viewed as a whole, Appellant's method claims
simply recite the concept of sales promotion as performed by a generic
computer. To be sure, the claims recite doing so by advising one to place
identifiers in a list and generate and send another identifier for the
promotion. But this is no more than abstract conceptual advice on the
parameters for such sales promotion and the generic computer processes
necessary to process those parameters, and does not recite any particular
implementation.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The 22 pages of Specification spell
out different generic equipment and parameters that might be applied using
this concept and the particular steps such conventional processing would
entail based on the concept of sales promotion under different scenarios.
They do not describe any particular improvement in the manner a computer
functions. Instead, the claims at issue amount to nothing significantly more
than an instruction to apply the abstract idea of sales promotion using some
unspecified, generic computer. Under our precedents, that is not enough to
transform an abstract idea into a patent-eligible invention. See Alice,
134 S. Ct. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
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computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long "warn[ ed] ... against" interpreting
§ 101 "in ways that make patent eligibility 'depend simply on
the draftsman's art.'
Alice, 134 S. Ct. at 2360.
We are not persuaded by Appellant's argument that the Examiner has
not provided evidence that the claims are directed to an abstract idea. Br. 9-
10. We find sufficient intrinsic evidence supra. Beyond that, claims
directed to fundamental business ideas have widely been held to be directed
to abstract ideas.
Here, the claims are directed to the concept of offer-based price
optimization. . . . This concept of "offer based pricing" is
similar to other "fundamental economic concepts" found to be
abstract ideas by the Supreme Court and this court. See, e.g.,
Alice, 134 S. Ct. at 2357 (intermediated settlement); Bilski v.
Kappas, 561 U.S. 593, 611 [(2010)] (risk hedging);
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (using advertising as an exchange or currency); Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat'!
Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (data collection);
Accenture Global Servs., GmbH v. Guidewire Software, Inc.,
728 F.3d 1336, 1346 (Fed. Cir. 2013) (generating tasks in an
insurance organization). And that the claims do not preempt all
price optimization or may be limited to price optimization in
the e-commerce setting do not make them any less abstract. See
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir.
2014) (collecting cases); Accenture, 728 F.3d at 1345.
OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir.
2015). And the court in Elec. Power Group further held that claims directed
to fundamental data processing operations, such as claim 1, are also directed
to abstract ideas. Electric Power Grp., 830 F.3d at 1353.
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We are not persuaded by Appellant's argument that each claim is
clearly directed to one of the four statutory categories. Br. 10. Under
35 U.S.C. § 101, an invention is patent-eligible if it claims a "new and useful
process, machine, manufacture, or composition of matter." 3 5 U.S. C. § 101.
The Supreme Court, however, has long interpreted § 101 to include an
implicit exception: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. See, e.g., Alice, 134 S. Ct. at 2354.
We are not persuaded by Appellant's argument that "the
characterization of the alleged abstract idea (i.e., providing incentives to
customers) does not correspond to the actual features of claim 1 and the
features of claim 1 cannot be fairly construed as an idea of itself." Br. 12.
The features of the claims are recited generically devoid of implementation
details.
Features such as network streaming and a customized user
interface do not convert the abstract idea of delivering media
content to a handheld electronic device into a concrete solution
to a problem. The features set forth in the claims are described
and claimed generically rather than with the specificity
necessary to show how those components provide a concrete
solution to the problem addressed by the patent.
Affinity Labs of Texas, LLC v. Amazon.com Inc., 838 F.3d 1266, 1271
(Fed. Cir. 2016).
We are not persuaded by Appellant's argument that:
The Appellant respectfully submits that these features cannot be
reasonably construed to amount to mere instructions to apply an
abstract idea or generic computer structure to perform generic
computer functions. The Appellant also asserts that these
features do effect an improvement to another technology or
technical field. For example, the features of claim 1 provide a
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computer-implemented customer incentive solution that allows
customers to present a customer incentive program user
identifier to participate in an incentive program. Similar to the
findings in DDR Holdings, LLC v. Hotels.com, (Fed. Cir.
2014) the solution "is necessarily rooted in computer
technology" in order to overcome a problem specifically arising
in the area of customer incentives (see DDR Holdings, 13-1505,
at 20).
Br. 13-14. The argument that "these features cannot be reasonably
construed to amount to mere instructions to apply an abstract idea or generic
computer structure to perform generic computer functions" is conclusory
and provides no evidence or other support. The argument that the features
effect an improvement are based on DDR Holdings. "The patent claims here
do not address problems unique to the Internet, so DDR has no
applicability." Intellectual Ventures I LLC v. Capital One Bank (USA),
792 F.3d 1363, 1371 (Fed. Cir. 2015).
The remaining arguments are variations on those supra.
Claims 1-9 and 11-21 rejected under 35 USC§ 103(a) as unpatentable
over Hendrickson, Figueroa, and Reuthe
First, as we find supra, the limitation of
wherein the user device is operable to present the customer
incentive program user identifier to a business device, the
business device being operable to identify the customer in
association with the particular customer account and to allow
the customer to participate in a customer incentive program
provided by the at least one selected retailer based on the
customer incentive program user identifier, and each customer
is eligible for rewards associated with the customer incentive
program based on one or more qualifying purchases
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is not a step and is aspirational rather than functional, describing aspirational
characteristics of the device and data that do not affect the actual recited
steps. As such this limitation is afforded no patentable weight. King
Pharm., Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1279 (Fed. Cir. 2010) (The
relevant inquiry here is whether the additional instructional limitation has a
"new and unobvious functional relationship" with the method, that is,
whether the limitation in no way depends on the method, and the method
does not depend on the limitation).
We are not persuaded by Appellant's argument that
the coupons of Figueroa cannot be reasonably construed to
correspond to the customer incentive program identifier of
claim 1 in which each customer is eligible for rewards
associated with the customer incentive program based on one or
more qualifying purchases. Further, none of the cited portions
of Figueroa, nor any portion of Figueroa discloses a customer
incentive program, much less a first customer incentive
program identifier that identifies the first business partner and a
first customer incentive program provided by the first business
partner.
Br. 18. Hendrickson describes a promotional loyalty program in which each
customer would receive his/her most frequently purchased, most recently
purchased, or least expensive dessert purchased complimentary from the
vendor. Hendrickson describes doing so after entering a user identifier by
way of the user's mobile device. Claim 1 recites no particular
implementation for the recited identifier, and does not recite how directly or
indirectly identification occurs and does not even recite unique
identification. Thus, any identifier entered relative to a particular vendor's
sale for which promotions exist is an identifier for the user related to an
incentive program for that partner. Moreover, the meaning of the identifier
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beyond being related to a user is entirely in the mind of the beholder and
afforded no patentable weight. In re Bernhart, 417 F.2d 1395, 1399 (CCPA
1969).
We are not persuaded by Appellant's argument that "neither
Hendrickson nor Figueroa discloses sending at least one customer incentive
program user identifier to the user device." Br. 19. Hendrickson describes a
promotional text alert a vendor can personalize as a message regarding, for
example, a comic's background, rating, accomplishments, and other
individual information or offer special discounts in the same fashion as that
of the embodiment of the method for the travel industry. As tickets sell
quickly, promotion prices can be lifted. For customers that prefer a certain
seat or section at an event, he/she will be notified when the option to
purchase these tickets becomes available. Such a text alert sent to a user's
device inherently sends the user's identifier, for otherwise the message
would not be received. As we find supra, the remaining limitations
regarding the capability of the device and data are aspirational rather than
functional, and also are sufficiently broad to encompass the device and data
in the art.
We are not persuaded by Appellant's argument that there is no reason
to combine the references. Br. 21-22. The Examiner applies Figueroa for
its description of combining similar data into lists. Final Act. 8. Figueroa
provides the motivation as facilitating contact between businesses and
consumers. The Examiner applies Reuthe for its description of initiating via
a qualifying purchase. Reuthe provides the motivation as describing digital
incentives for electronic financial transactions.
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Separately argued claims 6 and 9 recite further data limitations, which
again are discemable only in the mind of the beholder.
CONCLUSIONS OF LAW
The rejection of claims 1-9 and 11-21under35 U.S.C. § 101 as
directed to non-statutory subject matter is proper.
The rejection of claims 1-9 and 11-21under35 U.S.C. § 103(a) as
unpatentable over Hendrickson, Figueroa, and Reuthe is proper.
DECISION
The rejection of claims 1-9 and 11-21 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) (2011).
AFFIRMED
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