Ex Parte Sim et al

Patent Trial and Appeal Board

May 18, 2018

13909315 (P.T.A.B. May. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/909,315 06/04/2013
87851 7590
Facebook/Fenwick
Silicon Valley Center
801 California Street
Mountain View, CA 94041
05/22/2018
FIRST NAMED INVENTOR
Richard Bill Sim
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.
26295-23509 1002
EXAMINER
UBALE, GAUTAM
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
05/22/2018 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):
ptoc@fenwick.com
fwfacebookpatents@fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD BILL SIM, JUN YANG, EITAN SHAY,
JIAHUI WU, SPENCER POWELL, and WILLIAM BULLOCK
Appeal2017-000882
Application 13/909,315
Technology Center 3600
Before ST. JOHN COURTENAY III, JOHN P. PINKERTON, and
JOYCE CRAIG, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-19 and 21, which are all of the claims pending in this
application. Claim 20 is cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellants identify Facebook, Inc. as the real party in interest. App. Br. 1.
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Application 13/909,315
STATEMENT OF THE CASE
Introduction
According to Appellants, the "invention relates to advertising, and in
particular to monitoring conversion of advertisements and determining fees
charged to advertisers." Spec. ,r 1. 2
Claim 1 is representative and reproduced below:
1. A method comprising:
selecting, by an online system, a holdout group of users
from a plurality of users of a social networking system, the
holdout group associated with one or more advertisements
prevented from being presented to users in the holdout group;
selecting an advertisement from the one or more
advertisements for presentation to a user of the social
networking system;
determining, by the online system, whether the user is in
the holdout group;
if the user is not in the holdout group associated with the
advertisement, providing the selected advertisement to a client
device associated with the user;
storing, by the online system, information associated with
the ad in an ad history associated with the user;
receiving information that identifies the user and
indicates that a conversion event occurred on a different client
device associated with the user;
2 Our Decision refers to the Final Office Action mailed Dec. 1, 2015 ("Final
Act."), Appellants' Appeal Brief filed May 18, 2016 ("App. Br.") and Reply
Brief filed Oct. 21, 2016 ("Reply Br."), the Examiner's Answer mailed Sept.
9, 2016 ("Ans."), and the original Specification filed Sept. 24, 2008
("Spec.").
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Application 13/909,315
determining, by the online system, a fee for presentation
of the advertisement to the user based on the conversion event
and the ad history;
determining, by the online system, a holdout conversion
rate associated with the plurality of users in the holdout group,
the holdout conversion rate based on a number of conversion
events associated with users in the holdout group;
determining, by the online system, a target conversion
rate associated with users of the social networking system
presented with the advertisement and not in the holdout subset,
the target conversion rate based on a number of conversion
events associated with users not in the target group;
determining by the online system, an adjustment value of
the fee based on the target conversion rate and the holdout
conversion rate;
reducing, by the online system, the fee based in part on
the adjustment value; and
charging, by the online system, an advertiser associated
with the advertisement the reduced fee.
App. Br. 21-22 (Claims App'x).
Re} ections on Appeal
Claims 1-19 and 21 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to patent-ineligble subject matter.
Claims 1-5, 9-13, 17, 18, and 21 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Belani et al. (US 2012/0089455 Al;
published Apr. 12, 2012) ("Belani"), Minor et al. (US 2008/0288328 Al;
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published Nov. 20, 2008) ("Minor"), and Chan et al. (US 2011/0264519 Al;
published Oct. 27, 2011) ("Chan"). 3
Claims 6-8, 14--16, and 19 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Belani, Minor, Chan, and Farahat et al. (US
2012/0278158 Al; published Nov. 1, 2012) ("Farahat").
ANALYSIS
We have reviewed the Examiner's rejection of claims 1-19 and 21
under 35 U.S.C. § 101 in light of Appellants' arguments in the Briefs (App.
Br. 7-16; Reply Br. 2-8). For the reasons discussed infra, we are not
persuaded by Appellants' arguments that the Examiner erred in rejecting the
claims under § 101.
Applicable Law
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."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "Laws of nature, natural phenomena, and
abstract ideas" are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS
Banklnt'l, 134 S. Ct. 2347, 2354 (2014) (citation omitted).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 75-77 (2012), "for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts." Alice, 134 S. Ct.
3 The Examiner withdrew the rejections of claims 1-19 and 21 under
35 U.S.C. § 103. Ans. 10.
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at 2355. The first step in the analysis is to "determine whether the claims at
issue are directed to one of those patent-ineligible concepts." Id. For
example, abstract ideas include, but are not limited to, fundamental
economic practices, methods of organizing human activities, an idea of
itself, and mathematical formulas or relationships. Id. at 2355-57. The
"directed to" inquiry asks not whether "the claims involve a patent-ineligible
concept," but instead whether, "considered in light of the specification, ...
'their character as a whole is directed to excluded subject matter.'" Enfzsh,
LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (citations
omitted). In that regard, we determine whether the claims "focus on a
specific means or method that improves the relevant technology" or are
"directed to a result or effect that itself is the abstract idea and merely invoke
generic processes and machinery." McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016) (citation omitted).
If, at the first stage of the Alice analysis, we conclude that the claim is
not directed to a patent-ineligible concept, it is considered patent eligible
under § 101 and the inquiry ends. Rapid Litig. Mgmt. Ltd. v. CellzDirect,
Inc., 827 F.3d 1042, 1047 (Fed. Cir. 2016).
If the claims are directed to a patent-ineligible concept, the second
step in the analysis is to consider the elements of the claims "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, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 79, 78).
In other words, the second step is to "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
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[ineligible concept] itself.'" Id. (brackets in original) ( quoting Mayo, 566
U.S. at 72-73). The prohibition against patenting an abstract idea "'cannot
be circumvented by attempting to limit the use of the formula to a particular
technological environment' or adding 'insignificant post solution activity."'
Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (internal citation omitted).
Appellants 'Arguments4
Appellants argue that the claims recite patent-eligible subject matter
because "they, at best, merely relate to or involve an abstract idea," which is
insufficient to meet the first step of the Alice test. App. Br. 8-9. According
to Appellants, the Examiner "improperly ignores the claim language and
dissects the claims" in concluding they are directed to an abstract idea. Id. at
9-10. Appellants argue the Examiner fails to meet the burden under
35 U.S.C. § 132 to provide notice and reasons for the rejection. Reply Br. 3.
Appellants also argue that, contrary to the Examiner's finding the claims do
not recite a particular way the idea is implemented, the claims clearly recite
a particular way to determine a fee that is charged to an advertiser. App. Br.
10-11. Appellants further argue the "claims are directed to a 'business
challenge that is particular to the Internet,' namely processes for
determining/tracking conversions associated with an advertisement ... and
fee determination for the advertisement. Id. at 12. Appellants also argue the
claims recite patentable subject matter because "[t]he invention provides a
solution specifically customized to address an online environment where ad
4 Appellants argue claims 1-19 and 21 as a group. App. Br. 7-16; Reply Br.
2-8. We consider method claim 1 to be representative of the claimed
subject matter on appeal and, therefore, we decide the§ 101 rejection of
claims 1-19 and 21 on the basis of representative claim 1. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
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impressions and ad conversions can occur on separate devices. Id. at 12-13;
Reply Br. 4. Appellants also contend the damed invention is not directed to
an abstract idea because the claims do not preempt all means of the abstract
idea noted in the Answer. Reply Br. 3.
In regard to the second step of the Alice test, Appellants argue "[t]he
claims of DDR Holdings and the claims of this application are similar in that
they both recite methods for detecting various forms of data and data
objects, processing the data and data objects, and performing an action based
on the processing" and consequently the claims "'overcome a problem
specifically arising in the realm of computer networks.'" Id. at 14--15.
Appellants further argue there is no traditional business analog for the
claimed invention outside of interconnected computer networks. Id. at 15.
According to Appellants, "the communications with the client devices occur
over a computer network and do not have a brick/mortar counterpart." Id.
Appellants further argue that, like the claims in DDR Holdings, the claims
here "amount to more than simply stating 'apply the abstract idea on the
Internet."' Id. at 16. Appellants also contend "it was not routine computer
implementation that distinguished the claims over the prior art used in the
now withdrawn§ 102 rejection." Reply Br. 5. Appellants further contend
claim 1 is similar to Internet content filtering addressed in Bascom where the
Federal Circuit "noted that an inventive concept can be found in non-
conventional and non-generic arrangement of known, conventional pieces."
Id. at 7-8; see Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC,
827 F. 3d 1341, 1350 (Fed. Cir. 2016).
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Alice Step One
The Examiner concludes claims 1-19 and 21 are directed to an
abstract idea, specifically:
selecting a holdout group of users ... , selecting an advertisement
from the one or more advertisements . . . , determining whether
the user is in the holdout group[], storing information associated
with the ad in an ad history . . . , determining a fee for
presentation . . . , determining a holdout conversion rate . . . ,
determining a target conversion rate . . . , providing the content
to a client device . . . , etc. is a method of organizing human
activities and fundamental economic practices.
Final Act. 3.
Considering the focus of claim 1 as a whole, we agree with the
Examiner's conclusion that claim 1 is directed to an abstract idea-the
fundamental economic practice of distributing advertisements and
determining a fee for presenting advertisements to users. We see no
meaningful difference in claim 1 and similar or analogous claims in other
cases that our reviewing court has concluded are directed to an abstract idea.
See OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir.
2015) ("automatic pricing method and apparatus for use in electronic
commerce"); 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) ("The concept of data collection, recognition, and storage is
undisputedly well-known.").
We also agree with the Examiner that claim 1 is directed to a
combination of concepts that "are identified by the courts as ... abstract
ideas." Ans. 7. In that regard, we agree with the Examiner that determining
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if a user is in a holdout group and, if not, providing the selected
advertisement to a client device associated with the user is analogous to the
abstract idea of comparing new and stored information and using rules to
identify options. Id. (citing SmartGene). In SmartGene Inc. v. Advanced
Biological Laboratories, SA, 555 F. Appx. 950, 954 (Fed. Cir. 2014), the
Federal Circuit concluded the claims were patent ineligible because they did
"no more than call on a 'computing device,' with basic functionality for
comparing stored and input data and rules, to do what doctors do routinely."
Claim 1 also recites the step of "determining ... a fee for presentation
of the advertisement," including the subsidiary steps of "determining ... a
holdout conversion rate," "determining ... a target conversion rate,"
"determining ... an adjustment value of the fee," and "reducing ... the fee
based in part on the adjustment value." We conclude that these steps could
be performed by a human with pen and paper and involve mathematical
calculations. In that regard, our reviewing court has held that "analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, [are] essentially mental processes within the
abstract-idea category." See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1354 (Fed. Cir. 2016) (claims focus on the abstract idea of collecting
information, analyzing it, and displaying certain results of the collection and
analysis); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146
(Fed. Cir. 2016). "[T]he fact that the required calculations could be
performed more efficiently via a computer does not materially alter the
patent eligibility of the claimed subject matter." Bancorp Servs., LLC v. Sun
Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012).
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Merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., Ltd., 855
F.3d 1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea ... to another
abstract idea ... does not render the claim non-abstract."); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir.
2016) ( determining the pending claims were directed to a combination of
abstract ideas). Thus, the fact that claim 1 combines abstract ideas that are
analogous to "comparing new and stored information and using rules to
identify options" and "analyzing information by steps people go through in
their minds, or by mathematical algorithms" does not render claim 1 any less
abstract.
We are not persuaded by Appellants' arguments that the Examiner
erred in concluding claim 1 is directed to an abstract idea. 5 App. Br. 8-13.
Contrary to Appellants' argument, the Examiner did not improperly dissect
the claim. Id. at 9-10. Instead, as discussed supra, the Examiner considered
the different concepts in claim 1 and, in doing so, considered the related
limitations of claim 1. We note that the Examiner did not specifically
mention the steps of "storing ... information associated with the ad in an ad
history associated with the user" and "receiving information that identifies
the user and indicates that a conversion event occurred on a different device
5 Although Appellants' argue that the Examiner failed to meet the burden
under 35 U.S.C. § 132 to provide notice and reasons for the rejection (see
Reply Br. 3), we disagree. The Examiner stated the statutory basis for the
rejection and performed the two-part Alice test. See Final Act. 3-5; Ans. 6-
10. Thus, we conclude the Examiner provided an adequate explanation of
the rejection under§ 101 and met the notice requirement of 35 U.S.C. § 132.
See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
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associated with the user." We are not, however, persuaded of reversible
error. Instead, we conclude that these steps are also analogous to comparing
new and stored information and using rules to identify options. See
SmartGene, 555 F. Appx. at 954.
Appellants' argument that claim 1 recites a particular way the idea is
implemented by reciting a particular way to determine a fee (App. Br. at 10-
11) is not persuasive because, as discussed supra, the recited steps of
"determining" a fee for presentation of the advertisement constitute an
abstract idea. Nor are we persuaded by Appellants' arguments that the
claims are directed to a business challenge particular to the internet and
provide a solution "customized to address an on line environment." App.
Br. 12-13. Although Appellants correctly argue that "ad impressions and ad
conversions can occur on separate devices" in the method of claim 1, the
claim does not recite any specific technical way to "provid[ e] the selected
advertisement to a client device" or "receiv[ e] information ... that a
conversion event occurred on a different client device." See Accenture
Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345
(Fed. Cir. 2013) (admonishing that "the important inquiry for a§ 101
analysis is to look to the claim"; "the complexity of the implementing
software or the level of detail in the specification does not transform a claim
reciting only an abstract concept into a patent-eligible system or method").
Appellants have also not identified any portion of the Specification, or
provided any evidence or technical reasoning, demonstrating that claim 1
achieves a technical advance or improvement pertaining to the hardware or
software used in the on line environment of claim 1, including transmitting
an advertisement or receiving information regarding a conversion event.
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Thus, contrary to Appellants' arguments, claim 1 does not recite, and is not
directed to, "a specific way to determine/track conversions associated with
an advertisement when an advertisement impression occurs on a client
device associated with a user and a conversion of the advertisement occurs
on a different client device." See Reply Br. 4, 6.
We also are not persuaded by Appellants' argument that "the claimed
invention is not directed to an abstract idea because the claims do not
preempt all means of the abstract idea noted in the Answer." Reply Br. 3.
"While preemption may signal patent ineligible subject matter, the absence
of complete preemption does not demonstrate patent eligibility .... Where a
patent's claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework, as they are in this case, preemption concerns are
fully addressed and made moot." Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs. Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362---63 (Fed. Cir. 2015) ("that the
claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting does not make them any less
abstract").
Alice Step Two
Regarding step two of the Alice analysis, the Examiner finds the
additional claim elements, considered individually and as an ordered
combination, do not amount to significantly more than the abstract idea.
Ans. 9-10. The Examiner finds the limitations of "an online system" and "a
client device" are recited at a high level of generality and as performing
generic computer functions routinely used in computer applications. Id. at 9.
The Examiner also concludes the terms "apparatus" and "computing
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device," as used in the claims, are construed as a general-purpose computing
device, consistent with paragraph 82 of the Specification. Id. The Examiner
further finds the "[g]eneric computer components recited as performing
generic computer functions that are well-understood, routine and
conventional activities amount to no more than implementing the abstract
idea with a computerized system." Id. at 9-10. Thus, the Examiner
concludes "the claim does not amount to significantly more than the abstract
idea." Id. at 10. For the reasons stated by the Examiner, we agree with the
Examiner's findings and conclusions.
We are not persuaded by Appellants' arguments regarding step two of
the analysis. Initially, we are not persuaded by Appellants' arguments that
the claims here are similar to the claims in DDR Holdings and consequently
the claims overcome a problem arising in the "realm of computer networks,"
for which there is no traditional business analog. App. Br. 14--16. In DDR
Holdings, the Federal Circuit explained that the patent-eligible claims
specified "how interactions with the Internet are manipulated to yield a
desired result ... that overrides the routine and conventional sequence of
events ordinarily triggered by the click of a hyperlink." DDR Holdings, LLC
v. Hotels.com L.P, 773 F.3d 1245, 1258 (Fed. Cir. 2014). The court
reasoned that those claims recited a technological solution "necessarily
rooted in computer technology in order to overcome a problem specifically
arising in the realm of computer networks." Id. at 1257. That is not the case
here. The mere fact that the method of claim 1 is performed in an "online
system" does not establish that claim 1 is directed to a "problem specifically
arising in the realm of computer networks."
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Contrary to Appellants' arguments, claim 1 does not "focus on a
specific means or method that improves the relevant technology," but is
"directed to a result or effect that itself is the abstract idea and merely
invoke[s] generic processes and machinery." McRO, 837 F.3d at 1314
( citation omitted). This is not enough to transform an abstract idea into
patent-eligible subject matter. See, e.g., Alice, 134 S. Ct. at 2360 (explaining
that claims that "amount to 'nothing significantly more' than an instruction
to apply the abstract idea ... using some unspecified, generic computer" "is
not 'enough' to transform an abstract idea into a patent-eligible invention"
( quoting Mayo, 566 U.S. at 77, 79)); Intellectual Ventures I LLC v. Capital
One Fin. Corp 850 F.3d 1332, 1342 (Fed. Cir. 2017) ("[T]he claim language
here provides only a result-oriented solution, with insufficient detail for how
a computer accomplishes it. Our law demands more.").
Second, are we not persuaded by Appellants' arguments that because
the Examiner withdrew the prior art rejections, the Examiner has improperly
characterized the claims as being directed to routine computer
implementations. Reply Br. 4--5. A finding of novelty or non-obviousness
does not automatically lead to the conclusion that the claimed subject matter
is patent-eligible. Although the second step in the Mayo/Alice framework is
termed a search for an "inventive concept," the analysis is not an evaluation
of novelty or non-obviousness, but rather, a search for "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 (quoting Mayo, 566 U.S. at
72-73). "Groundbreaking, innovative, or even brilliant discovery does not
by itself satisfy the§ 101 inquiry." Ass 'nfor Molecular Pathology v.
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Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and non-obvious
claim directed to a purely abstract idea is, nonetheless, patent-ineligible. See
Mayo, 566 U.S. at 90; see also Diamond v. Diehr, 450 U.S. 175, 188-89
( 1981) ("The 'novelty' of any element or steps in a process, or even of the
process itself, is of no relevance in determining whether the subject matter of
a claim falls within the § 101 categories of possibly patentable subject
matter").
Third, we are not persuaded by Appellants' argument that "[ c ]laim 1
involves an ordered combination of steps that is significantly more than any
abstract idea, similar to Internet content filtering addressed in Bascom."
Reply Br. 7. We agree with Appellants that the court in Bascom noted that
an inventive concept can be found in a non-conventional and non-generic
arrangement of known, conventional pieces. See Bascom, 827 F.3d at 1350.
However, the claims here are distinguishable from those in Bascom. In
Bascom, the system claims were directed to a "content filtering system for
filtering content retrieved from an Internet computer network," which the
court held were directed to an abstract idea. Id. at 1348--49. The court
further held the claims included an inventive concept in the ordered
combination of system components, including a local client computer and a
remote ISP server connected to the client computer and Internet computer
network providing for "the installation of a filtering tool at a specific
location, remote from the end-users, with customizable filtering features
specific to each end user." Id. at 1350. Claim 1 here does not involve a
similar or analogous arrangement or "ordered combination" of components.
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Thus, we see nothing in the limitations of claim 1, considered "both
individually and as an ordered combination," that transforms the claimed
abstract idea of claim 1 into patent-eligible subject matter.
Accordingly, for the reasons discussed above, we sustain the
Examiner's rejection of claim 1, and of grouped claims 2-19 and 21, under
§ 101. To the extent Appellants have not advanced separate, substantive
arguments for particular claims, such arguments are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
DECISION
We affirm the Examiner's decision rejecting claims 1-19 and 21
under 35 U.S.C. § 101.
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). See 37 C.F.R.
§ 1.136(a)(l)(iv)(2016).
AFFIRMED
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