Ex Parte Subramanian et al

Patent Trials and Appeals Board

May 22, 2019

13278043 - (D) (P.T.A.B. May. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/278,043 10/20/2011 Peruvemba V. Subramanian
66945 7590 05/24/2019
KILPATRICK TOWNSEND & STOCKTONLLP/VISA
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
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.
79900-821887(PS-099900USN 8349
EXAMINER
CAO, VINCENT M
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
05/24/2019 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):
ipefiling@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PERUVEMBA V. SUBRAMANIAN,
ZHIQIANG MICHAEL ZHANG, and LEX BA YER
Appeal 2017-011567
Application 13/278,043
Technology Center 3600
Before HUNG H. BUI, KARA L. SZPONDOWSKI, and
PHILLIP A. BENNETT, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1, 3-9, 11, 13-19, and 21-40, constituting all claims
pending in the current application. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
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Application 13/278,043
STATEMENT OF THE CASE
Appellants' invention is directed to generating a targeted subscription
package to offer a user in a virtual environment. Spec. ,-J 5. Claim 1,
reproduced below, is representative of the claimed subject matter:
1. A method comprising:
analyzing, by a computer apparatus, one or more user attributes
of a user of one or more virtual environments, the one or more user
attributes including frequency of access to the one or more virtual
environments, existing virtual assets possessed by the user in a
particular virtual environment, game data related to the user's
participation in an online game, and social network information
provided by a social network associated with the user, wherein the
game data includes a character type, gender characteristics of the
character type, and a character level in the online game;
determining, by the computer apparatus, a customized
subscription package to be offered to the user for purchase based at
least in part on the one or more user attributes of the user, comprising:
determining a term of access to the one or more virtual
environments to be included in the customized subscription
package based at least in part on the one or more user attributes;
and
determining one or more virtual assets associated with
the one or more virtual environments to be included in the
customized subscription package, wherein the one or more
virtual assets include at least one of a virtual currency usable in
the virtual environment and a virtual good usable in the virtual
environment, wherein at least one of the one or more virtual
assets for the subscription package is determined based on at
least one user attribute of the one or more user attributes, the
virtual good and the virtual currency corresponding to the
character type, the gender characteristics of the character type,
and the character level in the online game;
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offering the customized subscription package to the user;
and
updating, by the computer apparatus, the virtual assets
possessed by the user in the particular virtual environment
based in part on input provided by the user accepting the
customized subscription package and the game data.
App. Br. 33 (Claims App.).
REJECTION
Claims 1, 3-9, 11, 13-19, and 21-40 stand rejected under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter.
ANALYSIS
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int'!, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
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Application 13/278,043
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594-95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)).
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 ("Memorandum").
Under that guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
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(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)-(c), (e)-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum, 84 Fed. Reg. at 52-57.
Furthermore, the Memorandum "extracts and synthesizes key
concepts identified by the courts as abstract ideas to explain that the abstract
idea exception includes the following groupings of subject matter, when
recited as such in a claim limitation(s) (that is, when recited on their own or
per se )":
(a) Mathematical concepts-mathematical relationships,
mathematical formulas or equations, mathematical calculations;
(b) Certain methods of organizing human activity-
fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or
relationships or interactions between people (including social
activities, teaching, and following rules or instructions); and
( c) Mental processes-concepts performed in the human
mind (including an observation, evaluation, judgment, opinion).
Id. at 52 (footnotes omitted).
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USPTO Memorandum, Step 2A, Prong 1
Under the first step in the Alice/Mayo framework, the Examiner
determines the claims recite "determining and offering subscription
packages for virtual environments including virtual assets based on user
attributes," which are directed to the abstract idea, i.e., certain methods of
organizing human activity, specifically advertising, marketing, and sales
activity. Final Act. 3; see also Ans. 2. The Examiner determines the claims
are similar to those in Gametek LLC v. Zynga Inc., 597 F. App'x 644 (Fed.
Cir. 2015) and Affinity Labs of Texas, LLC v. Amazon.com, 838 F.3d 1266
(Fed. Cir. 2016) in that the claims define marketing information to
communicate to a user and collect user information and target marketing
materials to the user based on the collected information. Ans. 2-3.
Appellants argue "the present application is unrelated to any of the
examples of 'certain methods of organizing human activity' listed in the
Interim Guidance ... found by the courts, or ... in general." App. Br. 11-
12. Appellants argue the claims "include a computer apparatus using
specific user attributes ... to determine the virtual assets to include in a
customized subscription package." App. Br. 11. According to Appellants,
"[t]he recited claims include steps and features that are not capable, or at
least efficiently capable, of being performed by mere human mental
activity." App. Br. 11. Appellants argue "[t]he recited steps and features are
not ... advertising, marketing," but "[i]nstead, the claims are directed at
utilizing relevant data of a user or the user's activities in virtual environment
to determine a customized subscription package that is appropriate and
useful for the user within the particular virtual environment." App. Br. 11;
see also App. Br. 14-15. Appellants further argue the Examiner has failed
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to meet its initial burden of proof because the "Office has provided merely
conclusory statements that the claimed subject matter is abstract." App. Br.
13; see also Reply Br. 3-4.
We are not persuaded by Appellants' arguments. The Office carries
its procedural burden of establishing a prima facie case when its rejection
satisfies the requirements of 35 U.S.C. § 132 by notifying the applicant of
the reasons for rejection, "together with such information and references as
may be useful in judging of the propriety of continuing the prosecution of
[the] application." See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
All that is required of the Office is that it set forth the statutory basis of the
rejection in a sufficiently articulate and informative manner as to meet the
notice requirement of§ 132. Id.; see also Chester v. Miller, 906 F.2d 1574,
1578 (Fed. Cir. 1990) (noting that section 132 "is violated when a rejection
is so uninformative that it prevents the applicant from recognizing and
seeking to counter the grounds for rejection"). We conclude that the
Examiner's rejection is sufficient to place Appellants on notice as to the first
step in the Alice/Mayo framework. Further, Appellants' understanding of
the Examiner's rejection is manifested by their response to the rejection in
the Appeal Brief. Appellants did not respond by asserting that they did not
understand the Examiner's rejection, but instead presented arguments as to
why the claims are not directed to an abstract idea.
We agree with the Examiner that the claims recite an abstract idea.
Appellants' Specification states " [ e ]mbodiments of the present invention are
directed to methods and systems associated with dynamically generating a
customized subscription package to offer to a user of one or more virtual
environments." Spec. ,-J 5. Appellants' claims generally recite ( 1) analyzing
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one or more attributes of a user in a virtual environment; (2) determining a
customized subscription package, including a term of access and one or
more virtual assets, to be offered to the user for purchase based at least in
part on the user attributes; (3) offering the customized subscription package
to the user; and (4) updating the user's virtual assets in the virtual
environment based on the user accepting the offer.
We conclude that providing targeted marketing and advertising to a
user based on certain user attributes is a certain method of organizing human
activity, specifically, marketing, sales, and advertising, as set forth in the
Memorandum. See Memorandum, 84 Fed. Reg. at 52; see also Affinity
Labs, 838 F.3d at 1269 ("we hold that the concept of delivering user-
selected media content to portable devices is an abstract idea"); Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369-70 (Fed.
Cir. 2015) (the practice of tailoring advertising to individual customers is a
"fundamental ... practice long prevalent in our system"); Ultramercial, Inc.
v. Hulu, LLC, 772 F.3d 709, 714-715 (Fed. Cir. 2014) ("showing an
advertisement before delivering free content" is an abstract idea); Morsa v.
Facebook, Inc., 77 F. Supp. 3d 1007, 1013 (C.D. Cal. 2014), ajfd, 622 F.
App'x 915 (Fed. Cir. 2015) (quoting Tuxis Techs., LLC v. Amazon.com, Inc.,
No. CV 13-1771-RGA, 2014 WL 4382446, at *5 (D. Del. Sept. 3, 2014))
("[T]argeted advertising is [a well-known] concept, insofar as matching
consumers with a given product or service "has been practiced as long as
markets have been in operation."'). Appellants have not sufficiently argued
why the claims do not recite an abstract idea, specifically certain methods of
organizing human activity.
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USPTO Memorandum, Step 2A, Prong 2
In determining whether the claims are "directed to" the identified
abstract idea, we next consider whether the claims recite additional elements
that integrate the judicial exception into a practical application. 1 We discern
no additional element ( or combination of elements) recited in the claims that
integrates the judicial exception into a practical application. See
Memorandum, 84 Fed. Reg. at 54-55.
Appellants argue "the claimed solution is 'necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks," similar to the claims in DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). App. Br.
15. Specifically, Appellants argue there is "no pre-computer analog" and the
claimed subject matter "necessarily includes a user interacting with f!
computer and a computer network, to accept the package and utilize the
package contents." App. Br. 16.
We are not persuaded. We find no indication in the Specification, nor
do Appellants direct us to any indication, that the operations recited by the
claims invoke any inventive programming, require any specialized computer
hardware or other inventive computer components, i.e., a particular machine,
or that the claimed invention is implemented using other than generic
1 We acknowledge that some of the considerations at Step 2A, Prong Two,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
guidance). For purposes of maintaining consistent treatment within the
Office, we evaluate them under Step 1 of Alice (Step 2A of the Office
guidance). See Memorandum, 84 Fed. Reg. at 55 n.25, 27-32.
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computer components ( e.g., computer apparatus, server, processor, compute
readable medium) to perform generic computer functions (analyzing and
displaying information). S'ee DDR Holdings, 773 F.3d at 1256 ("[A]fter
Alice, there can rernain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent- eligible."); see Fina]
Act 3---4; Ans. 3----6. The claims merely add generic computer components
(e.g., computer apparatus, server, processor, computer readable medium) to
support the abstract idea, which is insufficient to integrate the judicial
exception into a practical application. 11oreover, we agree with the
Examiner that the invention is directed to a business/marketing function: that
'--' ·'
it takes place in a virtual environment does not make it any less abstract
See Ans. 6; Versata Development Group, Inc. v. SAP America, Inc., 793
F.3d 1306, 1332 (Fed. Cir. 2015) (citations omitted) ('"[T]he prohibition on
patenting an ineligible concept cannot be circumvented by limiting the use
of an ineligible concept to a particular technological environment").
Appellants further argue the claims are similar to those in Enfzsh, LLC
v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016) in that they "are
instead directed to a specific improvement to the way computers receive and
analyze user data including user attributes to determine a customized
subscription package that includes virtual currency and goods usable in a
particular virtual environment that is appropriate for the user." App. Br. 18.
Appellants direct us to the Specification that "discusses the problems with
conventional systems for providing subscription packages." App. Br. 18-19
( citing Spec. ,-J,-J 1-2); see also Reply Br. 7-8. According to Appellants,
"[ u ]nlike conventional methods which lack flexibility and are inefficient, the
claims allow for providing a dynamic customized subscription package for a
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user by analyzing user attributes of a user of a virtual environment to
determine a customized subscription package to offer the user where the
customized subscription package includes virtual assets associated with the
virtual environment and include virtual currency and virtual good usable in
the virtual environment." App. Br. 19; see also App. Br. 28-29; Reply
Br. 6-7. Appellants further argue "the claimed solution improves the
obtaining and analyzing user data to determine appropriate customized
subscription packages for use in virtual environments." App. Br. 27.
Appellants have not sufficiently explained how the claims specifically
improve "the way computers receive and analyze user data" or "the
obtaining and analyzing user data" (App. Br. 18, 27). Although Appellants
argue conventional methods for providing subscription packages lack
flexibility and are inefficient, we agree with the Examiner that any
improvements are directed to the underlying abstract idea as opposed to
improvements to the functionality of the computer. Ans. 6. Rather, the
claimed analyzing and determining only uses the computer as a tool.
Appellants further argue the Examiner has oversimplified the claim
language and "ignores the 'set of rules' which the claims recite and which
the McRO[, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed.
Cir. 2016)] court found eligible." App. Br. 20; see also Reply Br. 5.
Appellants argue "there are several 'meaningful requirements' for at least
'offering the customized subscription package to the user,' which parallels
similar analysis to the 'first set of rules' limitation in McRO." App. Br. 20.
According to Appellants, the "improvement in computer-related technology"
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is provided with the "specific 'set of rules' recited in at least claim l." App.
Br. 21.
We disagree the claims here are like those in McRO. In lv1cRO, the
Federal Circuit addressed claims directed to "'[a] method for automatically
animating lip synchronization and facial expression of three-dimensional
characters." McRO, 837 F.3d at 1307. The claimed improvement inlvlcRO
'"allow[ ed] computers to produce • accurate and realistic lip synchronization
and facial expressions in animated characters' that previously could only be
produced by human animators ... through 'the use of nlles, rather than
artists, to set the rnorph weights and transitions between phonemes."' 837
F.3d at 1313. The court reviewed the specification of the patent at issue and
found that, rather than invoking the computer merely as a tool, "'[c]laim 1 of
the [asserted] patent is focused on a specific asserted improvement in
computer animation." Id. at 1314. The court found that the plain focus of
the claim was on an improvement to computer functionality itself, not on
economic or other tasks for which a computer is used in its ordinary
capacity. Id. at 1315.
Unlike in lvfcRO, the claims here do not recite specific mks that
improve computer animation techniques or some other technology. Instead,
the claims recite generic computer operations, in which a computer is used
in its ordinary capacity, for determining and presenting customized offers to
a customer. For exarnple, instead of presenting any specific nlles for
determining a customized subscription package, the claims generally recite
determining the customized subscription packages, term of access, and
virtual assets "based at least in part on the one or more user attributes of the
user."
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For these reasons, we are not persuaded of error in the Examiner's
determination that the claims are directed to an abstract idea.
USPTO Memorandum, Step 2B
Turning to step 2 of the Al ice/lvfayo framework, we look to whether
claim 1: ( a) adds a speci fie limitation or combination of limitations that are
not weII-understood, routine, conventional activity in the field, or (b) simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. l\1emorandmn, 84 Fed. Reg. at 56.
The Exarniner determines the "claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception because the claimed invention is directed towards the execution of
the judicial exception by a generic computer system performing routine and
conventional functions." Final Act. 3 (citing Spec. ii~ 79---80). The
Examiner determines the "steps are routine and conventional functions as
the claimed invention is receiving and transmitting information over a
network, and retrieving stored information." Final Act. 3-4; Ans. 3, 7.
Appellants argue "'the Office has provided no evidence or
docurnentation indicating that the features recited in clairn 1 are 'well-
understood, routine, and conventional activities previously known to the
industry,' or that they are 'routine and conventional functions."' App.
Br. 27. Appellants argue the "claims include features which are not taught
or suggested by any of the cited references provided during prosecution of
the appHcation," so "[s]ince no references were found that discfose, teach, or
suggest the features recited in claim 1, AppeIIant submits that the recitations
of claim l cannot be "well-understood, routine, and conventional activities
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previously known in the industry."' App. Br. 27. Appellants further argue
"the limitations amount to significantly more than the alleged abstract idea
when viewed as an ordered combination." App. Br. 28. According to
Appellants, "[t]his is evidenced by the fact that the limitations are not
disclosed by the prior art ... and relate to an improvement of computer
functionality." App. Br. 28. Appellants further argue the claims are similar
to those in Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC, 827
F.3d 1341, 1350 (Fed. Cir. 2016). App. Br. 30-31; see also Reply Br. 10.
Appellants' arguments are not persuasive. Appellants' claims do not
recite specific limitations ( or a combination of limitations) that are not well-
understood, routine, and conventional. See Ans. 7. For example, the
claimed '"computer apparatus," "server," "processor," and "computer
readable medium" are described at a high level of generality and perform
generic functions that are well-understood, routine, and conventionaL See
Spec. i] 33 ('"tenn 'computer' as used herein refers to a system comprising a
processor and a computer readable medium, such as computer memory or
other data storage device, coupled to the processor"); ,r 79 ("'[a]ny of the
elements in Figures [sic] 1, including any servers or databases, rnay use any
suitable number of subsysterns to facilitate the functions described herein");
ii 80, Fig. 1. Such generic disclosures do not amount to "significantly more"
than the judicial exception. See Elec. Power Grp., LLC v. Alstom SA, 830
F.3d 1350, 1355 (Fed. Cir. 2016) ("Nothing in the claims, understood in
light of the specification, requires anything other than off-the-shell~
conventional computer, network, and display technology for gathering,
sending, and presenting the desired infonnation"); buySAFE, bic. v. Google,
inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) ("T'hat a computer receives and
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sends the information over a network-------with no further specification-------is not
even arguably inventive"); Alice, 573 U.S. at 224----26 (receiving, storing,
sending information over networks insufficient to add an inventive concept);
In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303,
1316 (Fed. Cir. 2011) ("'Absent a possible narrower construction of the tenns
'processing; ·receiving,' and ·storing,' ... those functions can be achieved
by any general purpose computer without special programming").
Accordingly, Appellants have not adequately explained how the
claims are performed such that they are not routine, conventional functions
of a generic computer. The claims at issue do not require any
nonconventional computer cmnponents, or even a "'non-conventional and
non-generic arrangement of known, conventional pieces," but merely call for
performance of the claimed information receiving, processing, and
displaying "on a set of generic computer components." Bascom, 827 F.3d at
1349---52.
To the extent Appellants argue the clairns necessarily contain an
'"inventive concept" based on their alleged novelty or non-obviousness,
AppeHants misapprehend the controlling precedent. Although the second
step in the Alice/lvfayo framework is tenned a search for an "inventive
concept," the analysis is not an evaluation of novelty or non-obviousness,
but, rather, a search fr1r "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, 573 U.S. at 217-
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218. A novel and nonobvious claim directed to a purely abstract idea is,
nonetheless, patent-ineligible. See Afayo, 566 U.S. at 90.
Appellants further argue "the claims clearly do not seek to tie up the
alleged abstract idea such that others cannot practice it." App. Br. 24; see
also App. Br. 25-26; see also App. Br. 29, 31. This preemption argument is
likewise unpersuasive of Examiner error. vVe find that this argument is
adequately addressed by the Alice/Afayo analysis. See Ariosa Diagnostics,
Inc. v. Sequenom, inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) ("\Vhere a
patent's claims are deemed only to disclose patent ineligible subject matter
under the A1ayo framework, as they are in this case, preemption concerns are
fully addressed and made moot."); see also OJP Techs., Inc. v. Arnazon.com,
inc., 788 F.3d 1359, 1362---63 (Fed. Cir. 2015) ("[T]hat the claims do not
preempt all price optirnization or may be limited to price optirnization in the
e-commerce setting do not make them any less abstract.").
Accordingly, for the foregoing reasons, we sustain the Examiner's
35 U.S.C. § 101 rejection of claims 1, 3-9, 11, 13-19, and 21-40.
DECISION
We affirm Examiner's 35 U.S.C. § 101 rejection of claims 1, 3-9, 11,
13-19, and 21-40.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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