Ex Parte Ricci

Patent Trial and Appeal Board

Aug 3, 2017

13371143 (P.T.A.B. Aug. 3, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/371,143 02/10/2012 Christopher P. Ricci 6568-1 1641
22442 7590
Sheridan Ross PC
1560 Broadway
Suite 1200
Denver, CO 80202
EXAMINER
PATEL, RONAK
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
08/07/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
e-docket @ sheridanross. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER P. RICCI
Appeal 2017-000824
Application 13/371,143
Technology Center 2400
Before JUSTIN BUSCH, CATHERINE SHIANG, and
LINZY T. McCARTNEY, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—23, which are all the claims pending and rejected in
application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Introduction
According to the Specification, the present invention relates to
interacting with users. See generally Spec. 1. Claim 1 is exemplary:
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Application 13/371,143
1. A method, comprising:
receiving, by a microprocessor executable political-orientation social
networking module and over an Internet from an Internet-capable
communication device of an actual user, a profile of a selected actual user,
the profile indicating a set of political orientations of the selected actual
user;
comparing, by the microprocessor executable political-orientation
social networking module, a selected portion of the selected actual user’s
profile against a selected portion of a profile of one or more selected objects,
the one or more selected objects being one or more of another actual user, a
political party platform, a political issue, a ballot, and an aggregate user, the
aggregate user being determined from a set of a plurality of actual users;
identifying, by the microprocessor executable political orientation
social networking module and based on the comparing step, at least one of a
degree of similarity and dissimilarity between the selected portion of the
selected actual user’s profile and a selected portion of the profile of the one
or more selected objects, wherein the profile of the selected actual user is
determined based on the responses of the selected actual user to
predetermined questions indicating a belief of the selected actual user on a
set of political issues, each predetermined set of questions corresponding to
a selected one of the political beliefs; and
based on the identifying step, performing, by the microprocessor
executable political-orientation social networking module, at least one of the
following steps:
(i) generating, for transmission over the Internet to the actual user’s
communication device for display by the actual user’s communication
device, a visual map comparing a degree of similarity and/or dissimilarity
between the selected actual user and at least one of a aggregate user and an
actual user with a distance between an icon representing the selected actual
user and an icon representing the at least one of a aggregate user and an
actual user being related to the at least one of a degree of similarity and
dissimilarity between the selected actual user and the at least one of an
aggregate user and an actual user; and
(ii) determining a characteristic of an aggregate user based on an
average of the characteristic among the members of the selected set of the
plurality of actual users and comparing the characteristic of actual users to
the characteristic of the aggregate user for transmission over the Internet to
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the actual user’s communication device for display by the actual user’s
communication device to the selected actual user, wherein the plurality of
actual users is a subset of all actual users, and wherein the aggregate user is
not representative of all of the actual users.
Wallman
Macadaan
Singh
Buyukkokten
Kantarek
Tranter
References and Rejections1
US 2005/0288996 A1
US 2008/0209343
US 2009/0313094 A1
US 7,680,770 B1
US 2010/0145765 A1
US 2010/0325179 A1
Dec. 29, 2005
Aug. 28, 2008
Dec. 17, 2009
Mar. 16,2010
June 10, 2010
Dec. 23,2010
Claims 1—23 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to non-statutory subject matter.
Claims 1, 2, 4—7, and 11—14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Singh, Macadaan, Wallman, and Tranter.
Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Singh, Macadaan, Wallman, Tranter, and Buyukkokten.
ANALYSIS
We disagree with Appellant’s arguments, and agree with and adopt
the Examiner’s findings and conclusions in (i) the action from which this
appeal is taken and (ii) the Answer to the extent they are consistent with our
analysis below.2
1 The Examiner withdrew the rejection of claims 8—10 and 15—23 under 35
U.S.C. § 103. Ans. 11.
2 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments. See 37
C.F.R. §41.41 (b)(2).
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Application 13/371,143
35U.S.C.§ 101
The Examiner rejects the claims under 35U.S.C. § 101 because they
are directed to non-statutory matter, as the claims amount to abstract ideas.
See Final Act. 2-A; Ans. 3—6. Appellants argue the Examiner fails to
establish a prima facie case. See App. Br. 8—19.
Appellant has not persuaded us of error. Section 101 of the Patent Act
provides “[wjhoever 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.” 35 U.S.C. § 101. That provision “contains
an important implicit exception: Laws of nature, natural phenomena, and
abstract ideas are not patentable.” Alice Corp. v. CLS Banklnt’l, 134 S. Ct.
2347, 2354 (2014). According to the Supreme Court:
[W]e 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, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. ... If so, we then ask,
“[wjhat else is there in the claims before us?” ... To answer
that question, we consider the elements of each claim both
individually and “as an ordered combination” to determine
whether the additional elements “transform the nature of the
claim” into a patent-eligible application. . . . We have 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., 134 S. Ct. at 2355.
The Federal Circuit has described the Alice step 1 inquiry as looking
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at the “focus” of the claims, their “character as a whole,” and the Alice step
2 inquiry as looking more precisely at what the claim elements add—
whether they identity an “inventive concept” in the application of the
ineligible matter to which the claim is directed. See Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Enfish, LLCv.
Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016); Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015).
In response to Appellant’s arguments, the Examiner provides further
findings showing the claims are directed to non-statutory matter. See Ans.
3—6. In particular, the Examiner finds the claims are directed to the abstract
idea of profiling, comparing and identifying information, determining
similarity or dissimilarity, and displaying results (such as displaying a visual
map). See Ans. 3—6. The Examiner further finds the claims use generic
computer components to perform generic computer functions. See Ans. 3—6.
Appellant fails to persuasively respond to such findings and therefore, fails
to show error in the Examiner’s findings.
Further, the Examiner’s findings are correct.
Regarding Alice step 1,
we have treated collecting information, including when limited
to particular content (which does not change its character as
information), as within the realm of abstract ideas. ... In a
similar vein, we have treated analyzing information by steps
people go through in their minds, or by mathematical
algorithms, without more, as essentially mental processes
within the abstract-idea category. . . . And we have recognized
that merely presenting the results of abstract processes of
collecting and analyzing information, without more (such as
identifying a particular tool for presentation), is abstract as an
ancillary part of such collection and analysis.. . .
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Elec. Power, 830 F.3d at 1353—54 (emphases added).
Claims 1,15, and 21 “fall into a familiar class of claims ‘directed to’ a
patent-ineligible concept.” Elec. Power, 830 F.3d at 1354. Contrary to
Appellant’s arguments (App. Br. 10—12), the claims are similar to the claims
of Electric Power, and are focused on the combination of abstract-idea
processes or functions. See Elec. Power, 830 F.3d at 1354. Claim 1 is
directed to receiving or collecting information (the “receiving . . .” step),
analyzing information (the “comparing . . . identifying . . . generating . . .
and determining . . .” steps), and displaying certain results of the collection
and analysis (the display element in the generating and determining steps).
See Elec. Power, 830 F.3d at 1353. Similarly, claim 15 is directed to
receiving or collecting information (the “receiving ...” step), analyzing
information (the “determining . . . comparing . . . and providing . . .” steps),
and displaying certain results of the collection and analysis (the display
element in the providing step). See Elec. Power, 830 F.3d at 1353. Claim
21 is directed to a system implementing similar functions. See Claim 21.
Regarding Alice step 2, contrary to Appellant’s assertion (App. Br.
12—19), Appellant has not shown the claims in this case require an arguably
inventive set of components or methods, or invoke any assertedly inventive
programming. See Elec. Power, 830F.3dat 1355.
Further, contrary to Appellant’s arguments (App. Br. 12—19), the
claims are similar to the claims of Electric Power, because they do not
require any non-conventional computer, network, or display components, or
even a “non-conventional and non-generic arrangement of known,
conventional pieces,” but merely call for performance of the claimed
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information collection, analysis, and display functions on generic computer
components and display devices. See Elec. Power, 830 F.3d at 1355; see
also Claim 1 (reciting “a microprocessor executable political-orientation
social networking module” for performing the “receiving . . . comparing . . .
identifying . . . generating . . . and determining . . steps; and reciting “for
display by the actual user’s communication device ... the actual user’s
communication device for display . . . .”); Claim 15 (reciting a
“microprocessor executable member profile module” and a “microprocessor
executable comparison module” for performing the “receiving . . .
determining . . . comparing . . . and providing . . .” steps; and reciting “a
selected actual user’s communication device for display . . . .”); Claim 21
(reciting “a microprocessor executable political-orientation social
networking module operable to . . . receive . . . determine . . . compare . . .
and provide . . .”; and reciting “the selected actual user’s communication
device for display . . . .”).
In short, Appellant has not shown the claims, read in light of the
Specification, require anything other than conventional computer, network,
and display technology for gathering, analyzing, sending, and presenting the
desired information. See Elec. Power, 830 F.3d at 1354. Such invocations
of computers and networks that are not even arguably inventive are
“insufficient to pass the test of an inventive concept in the application” of an
abstract idea. See Elec. Power, 830 F.3d at 1355.
Finally, Appellant’s interpretation (App. Br. 18—19) of DDR
Holdings, LLCv. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) is
incorrect. In DDR Holdings, the Court found:
the claims at issue here specify how interactions with the
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Internet are manipulated to yield a desired result—a result that
overrides the routine and conventional sequence of events
ordinarily triggered by the click of a hyperlink. Instead of the
computer network operating in its normal, expected manner by
sending the website visitor to the third-party website that
appears to be connected with the clicked advertisement, the
claimed system generates and directs the visitor to the above-
described hybrid web page that presents product information
from the third-party and visual “look and feel” elements from
the host website. When the limitations of the ‘399 patent’s
asserted claims are taken together as an ordered combination,
the claims recite an invention that is not merely the routine or
conventional use of the Internet.
DDR Holdings, 773 F.3d at 1258-59.
This case is materially different from DDR because as discussed
above, the claims here recite inventions that are merely the routine or
conventional use of the technology—the opposite of what the claims of
DDR represent. See DDR Holdings, 773 F.3d at 1258—59.
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claims 1,15, and 21.
We also sustain the Examiner’s rejection of corresponding dependent
claims 2—14, 16—20, 22, and 23, as Appellant does not advance separate
substantive arguments about those claims.
35U.S.C.§ 103
On this record, the Examiner did not err in rejecting claim 1.
Appellant contends the cited references do not collectively teach
generating, for transmission over the Internet to the actual
user’s communication device for display by the actual user’s
communication device, a visual map comparing a degree of
similarity and/or dissimilarity between the selected actual user
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and at least one of a aggregate user and an actual user with a
distance between an icon representing the selected actual user
and an icon representing the at least one of a aggregate user and
an actual user being related to the at least one of a degree of
similarity and dissimilarity between the selected actual user and
the at least one of an aggregate user and an actual user,
as recited in claim 1. See App. Br. 20-22.
Appellant has not persuaded us of error. Claim 1 recites:
based on the identifying step, performing, by the
microprocessor executable political-orientation social
networking module, at least one of the following steps: (i)
generating, for transmission over the Internet to the actual
user’s communication device for display by the actual user’s
communication device, a visual map comparing a degree of
similarity and/or dissimilarity between the selected actual user
and at least one of a aggregate user and an actual user with a
distance between an icon representing the selected actual user
and an icon representing the at least one of a aggregate user and
an actual user being related to the at least one of a degree of
similarity and dissimilarity between the selected actual user and
the at least one of an aggregate user and an actual user
(“Generating Step”); and (ii) determining a characteristic of an
aggregate user based on an average of the characteristic among
the members of the selected set of the plurality of actual users
and comparing the characteristic of actual users to the
characteristic of the aggregate user for transmission over the
Internet to the actual user’s communication device for display
by the actual user’s communication device to the selected actual
user, wherein the plurality of actual users is a subset of all
actual users, and wherein the aggregate user is not
representative of all of the actual users (“Determining Step”).
Claim 1 (emphasis added).
Therefore, claim 1 requires at least one of the Performing Step or the
Determining Step. Because the Examiner finds—and Appellant does not
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dispute—the cited references teach the Determining Step (Ans. 9—10),
Appellant has not shown the Examiner erred.
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of independent claim 1.
We also sustain the Examiner’s rejection of corresponding dependent
claims 2—4, 6, 7, and 11—14, as Appellant does not advance separate
substantive arguments for those claims.
Regarding dependent claim 5, Appellant argues the cited reference do
not collectively teach “wherein the one or more selected objects comprise
one or more of a political party platform, a political issue, a ballot, and an
aggregate user.” See App. Br. 23—25. In particular, Appellant contends
Macadaan’s paragraph 58 “refers to an image of the President. The
president is not one or more of a political party platform, a political issue, a
ballot, and an aggregate user.” App. Br. 24. In response, the Examiner finds
Macadaan teaches “a political issue” because “Macadaan explains selecting
an image of the President of the United States may produce feeds related to
the most popular current political issues.” Ans. 10. Appellant does not
dispute that finding. Therefore, and for similar reasons discussed above with
respect to claim 1, we sustain the Examiner’s rejection of dependent claim 5.
DECISION
We affirm the Examiner’s decision rejecting claims 1—23 under 35
U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 1—7 and 11—14
under 35 U.S.C. § 103.
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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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