Ex Parte Vee et al

Patent Trials and Appeals Board

May 2, 2019

14031943 - (D) (P.T.A.B. May. 2, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/031,943
149109 7590
EGL/Excalibur
P.O. Box 10395
Chicago, IL 60610
FILING DATE FIRST NAMED INVENTOR
09/19/2013 Erik Vee
05/02/2019
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.
12729-1175 (Y06098USOO) 5311
EXAMINER
BUSCH, CHRISTOPHER CONRAD
ART UNIT PAPER NUMBER
3681
MAIL DATE DELIVERY MODE
05/02/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIK VEE, JAY A VEL SHANMUGASUNDARAM,
LONG JI LIN, PEIJI CHEN, DATONG CHEN,
and QI HE
Appeal2017-008788 1
Application 14/031,943 2
Technology Center 3600
Before ANTON W. PETTING, MATTHEWS. MEYERS, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("Appeal Br.," filed
November 29, 2016) and Reply Brief ("Reply Br.," filed May 23, 2017), and
the Examiner's Answer ("Ans.," mailed March 23, 2017) and Final Office
Action ("Final Act.," mailed June 29, 2016).
2 Appellants identify "Excalibur IP, LLC, the assignee of record, which is a
subsidiary of Yahoo! Inc." as the real party in interest. Appeal Br. 2.
Appeal2017-008788
Application 14/031,943
CLAIMED INVENTION
Appellants' claims relate "to display advertising" (Spec. ,r 2).
Claims 1, 8, and 15 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A method of providing a display advertising supply
forecast to an advertiser system over a network, comprising:
[a] receiving, at an ad supply forecaster system, a query
over a network from an advertiser system, the query to estimate
a number of first impressions, which are to occur in a future time
period, that have a combination of specified attribute values, the
combination including a first subset of the specified attribute
values and a second subset of the specified attribute values;
[b] combining, by an ad supply forecaster system, an
interim trend and a number of second impressions that are linked
to the interim trend to provide a revised trend, the second
impressions occurring in a past time period and having the first
subset of the specified attribute values and the second subset of
the specified attribute values, the interim trend being based on a
plurality of aggregates of impressions that have a third
combination of attribute values, the third combination of
attribute values being related to the second subset of the specified
attribute values, the plurality of aggregates corresponding to a
plurality of respective time periods; and
[ c] estimating, by the ad supply forecaster system, the
number of the first impressions that have the combination of
specified attribute values based on the revised trend to provide
the display advertising supply forecast;
[ d] wherein the ad supply forecaster system provides the
advertiser system an estimated number of the first impressions
having the specified attribute values specified in the query
received from the advertiser system.
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REJECTIONS
Claims 1-20 are rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
Claims 1-20 are rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1-13 and 21-27 of U.S. Patent
No. 8,554,621 B2 patent (issued Oct. 8, 2013, "the '621 patent").
ANALYSIS
Patent-Ineligible Subject Matter
Appellants argue the pending claims as a group (see Appeal Br. 5-8;
see also Reply Br. 2-15). We select independent claim 1 as representative,
and the remaining claims stand or fall with claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
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. 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
Bankint'l, 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 id. 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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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, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
(1981) ); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1853))); and manufacturing flour (Gottschalk, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is "directed to" an abstract idea, we tum to the second
step of the Mayo/Alice 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.
(alterations in original) ( 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 United States Patent and Trademark Office recently published
revised guidance on the application of§ 101. 2019 Revised Patent Subject
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Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("2019 Revised
Guidance"). 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
(2) additional elements that integrate the judicial exception into a
practical application, i.e., that "apply, rely on, or use the judicial exception
in a manner that imposes a meaningful limit on the judicial exception, such
that the claim is more than a drafting effort designed to monopolize the
judicial exception." See 2019 Revised Guidance, 84 Fed. Reg. at 53 ; see
also 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 2019 Revised Guidance.
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
analyzes the claims using the Mayo/Alice two-step framework (see Final
Act. 4---6; see also Ans. 2-10). The Examiner determined that the claims are
directed to the abstract idea of "forecasting a supply of ads based on trends"
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(Final Act. 2; see also Ans. 2), and more particularly, determined that
independent claim 1 recites
in part, a system for performing the steps of receiving a request
from an advertiser to estimate/forecast a number of ads to be
displayed to users, combining trends with ads, estimating the
number of ads that have specific characteristics, and providing a
forecast of an estimated number of ads with the values specified
in the advertiser's request.
(Final Act. 4).
The Examiner regards this characterization as being similar to:
concepts identified as abstract ideas by the courts, such as
comparing new and stored information and using rules to identify
options (SmartGene, Inc. v. Advanced Biological Labs, 555 Fed.
Appx. 950), using categories to organize, store, and transmit
information (Cyberfone Sys. V. CNN Interactive Grp., 558 Fed.
Appx. 988), processing information through a clearinghouse
(Dealertrack Inc. v. Huber, 674 F.3d 1315), and organizing
information through mathematical correlations (Digitech Image
Tech., LLCv. Electronics for Imaging, Inc., 758 F.3d 1344).
(Id. at 4--5). According to the Examiner, the "concept[s] described in claims
1, 8, and 15 are not meaningfully different than those economic concepts
found by the courts to be abstract ideas" (id. at 5). The Examiner further
determined that independent claim 1 does not include additional elements or
a combination of elements sufficient to transform the claim into a patent-
eligible application of the abstract idea (id.).
When viewed through the lens of the 2019 Revised Guidance, the
Examiner's analysis depicts the claimed subject matter as one of the
ineligible "[ c ]ertain methods of organizing human activity" that include
"fundamental economic principles or practices" and "commercial ...
interactions," such as "advertising, marketing or sales activities or
behaviors" and "business relations," as well as "managing personal behavior
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or relationships or interactions between people (including social activities,
teaching, and following rules or instructions)" under Prong One of Revised
Step 2A. See 2019 Revised Guidance, 84 Fed. Reg. at 51-52.
In response to the Examiner's determination, Appellants argue that the
Examiner erred in determining that the present claims are directed to an
abstract idea and "grossly overgeneralizes the claim" (see Appeal Br. 3-5;
see also Reply Br. 3-5).
Under the first prong of step 2A of the 2019 Revised Guidance, we
first determine if the claims recite an abstract idea. In this regard, we note
that the Specification is titled "IMPRESSION-TREND TECHNIQUES FOR
PROVIDING A DISPLAY ADVERTISING SUPPLY FORECAST."
According to the Specification a publisher can theoretically "generate a
forecast for every possible combination of attribute values for which
inventory is available to ensure that a forecast for impressions having
attribute values that are specified by an advertiser is available to be provided
to the advertiser" (Spec. ,r 5). The Specification, however, identifies that
such a practice may be impractical, because "providing a forecast for every
possible combination of attribute values may require extensive
computations, which may consume substantial bandwidth and/or resources
of the publisher" (id.).
To address this drawback, the present invention utilizes "an
impression-trend technique to provide a display advertising supply forecast"
(id. ,r 6). A display advertising supply forecast is identified as "an estimate
of a number of impressions, which are to occur at a future time period, that
have specified attribute values" and an impression-trend technique is
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described as one that "uses trends regarding past impressions to forecast a
number of future impressions that have specified attribute values" (id.).
Consistent with this description, independent claim 1 recites broadly
"[a] method of providing a display advertising supply forecast" including
steps for "receiving ... a query to estimate a number of first impressions,
which are to occur in a future time period, that have a combination of
specified attribute values, the combination including a first subset of the
specified attribute values and a second subset of the specified attribute
values," "combining ... an interim trend and a number of second
impressions that are linked to the interim trend to provide a revised trend,"
and "estimating ... the number of the first impressions that have the
combination of specified attribute values based on the revised trend to
provide the display advertising supply forecast."
Upon reviewing the Specification and the claim as whole, as
summarized above, we agree with the Examiner that exemplary independent
claim 1 is directed broadly to "forecasting a supply of ads based on trends,"
and as such, at least directed to "organizing human activities." Here,
independent claim 1 receives information (i.e., a query (limitation [a])), and
then analyzes information (i.e., combining an interim trend and a number of
second impressions (limitation [b ])) to estimate and provide a display
advertising supply forecast (limitation [ c ]). Thus, it is clear that exemplary
independent claim 1 recites a form of advertising, marketing or sales
activities ( cf Spec. ,r,r 2---6), and as such, recites fundamental economic
practices and/ or commercial interactions that, under the Revised Guidance,
fall under the category of "certain methods of organizing human activity."
Accordingly, independent claim 1 recites an abstract idea. See Ultramercial,
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Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (Holding that claim
"describ[ing] only the abstract idea of showing an advertisement before
delivering free content" is patent ineligible.); In re Ferguson, 558 F.3d 1359,
1364 (Fed. Cir. 2009) (Holding methods "directed to organizing business or
legal relationships in the structuring of a sales force ( or marketing
company)" to be ineligible.).
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, we tum to the second prong of step 2A of the 2019 Revised
Guidance and determine whether the claims recite a practical application of
the recited judicial exception. Here we look to see if, for example, (i) any
additional elements of the claims reflects an improvement in the functioning
of a computer or to another technological field, (ii) an application of the
judicial exception with, or by use of, a particular machine, (iii) a
transformation or reduction of a particular article to a different state or thing
(iv) or a use of the judicial exception in some other meaningful way beyond
generally linking the use of the judicial exception to a particular
technological environment. See 2019 Revised Guidance, 84 Fed. Reg. at 55;
See also MPEP § 2106.05(a}-(c), (e}-(h).
Appellants argue that claim 1 is not directed to an abstract idea
pursuant to the Federal Circuit decisions in Enfzsh, LLC v. Microsoft Corp.,
822 F.3d 1327 (Fed. Cir. 2016) andMcRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) (see Appeal Br. 6-8; see also
Reply Br. 7-15). However, there is a fundamental difference between
computer functionality improvements, on the one hand, and uses of existing
computers as tools to perform a particular task, on the other. Indeed, the
Federal Circuit applied this distinction in Enfzsh in rejecting a§ 101
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challenge at the step one stage of the Mayo/Alice analysis because the claims
at issue focused on a specific type of data structure, i.e., a self-referential
table for a computer database, designed to improve the way a computer
carries out its basic functions of storing and retrieving data, and not on
asserted advances in uses to which existing computer capabilities could be
put. Enfzsh, 822 F.3d at 1335-36.
We find no parallel here between independent claim 1 and the
claims in Enfzsh nor any comparable aspect in claim 1 that represents "an
improvement to computer functionality." Appellants assert that the focus of
the claim is "on the improvement of generating an ad forecast in a manner
that uses fewer resources" (Appeal Br. 7) and "to improve the underlying
technology by reducing bandwidth and resource consumption for the
publisher" (Reply Br. 9). However, Appellants do not persuade us that
"forecasting a supply of ads based on trends" or even more specifically
receiving information, i.e., a query (limitation [a]) and then analyzing
information, i.e., combining an interim trend and a number of second
impressions (limitation [b]) to estimate and provide a display advertising
supply forecast (limitation [ c]) provides a technological improvement, but
rather we find the focus of claim 1 is on the implementation of the abstract
idea, "for which computers are invoked merely as a tool." See Enfzsh, 822
F.3d at 1336.
Here, Appellants argue that "[i]t is clear from the [S]pecification that
the focus of the claims, as a whole, is to improve the underlying technology
by reducing bandwidth and resource consumption for the publisher" (Reply
Br. 7-9 (citing Spec. ,r,r 28)). The difficulty with Appellants' argument,
however, is that the term "bandwidth" and any reference to "reducing
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resources" is found only in the above paragraphs cited by the Appellants.
Exemplary independent claim 1, unlike the claims found non-abstract in
prior cases, uses generic computer technology to collect data, analyze the
data, and then present the data based on the analysis, and does not recite an
improvement to a particular computer technology. See, e.g., McRO, 837
F.3d at 1314--15 (finding claims not abstract because they "focused on a
specific asserted improvement in computer animation").
Furthermore, we find no indication in the Specification that this
purported improvement to the computer, i.e., reduction of bandwidth and/or
resources, invokes any assertedly inventive programming, requires any
specialized computer hardware or other inventive computer components ( cf
Spec. ,r,r 27-30, 37, 39), i.e., a particular machine, or that the claimed
invention is implemented using other than generic computer components to
perform generic computer functions. See DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) ("[A]fter Alice, there
can remain no doubt: recitation of generic computer limitations does not
make an otherwise ineligible claim patent-eligible."). Instead, we find that
the "improvement" to which Appellants refer is a business improvement
rather than an improvement to a technological or technical field (see OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015)
("[R ]elying on a computer to perform routine tasks more quickly or more
accurately is insufficient to render a claim patent eligible.").
We also find no parallel between independent claim 1 and the claims
at issue in McRO (see Appeal Br. 7-8; see also Reply Br. 10-13).
Appellants assert that like the claims in McRO, the claims are patent-eligible
because "[t]he specificity of the claims and the processes described therein
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prevent preemption of all means of providing the same results" (Reply Br.
11).
However, the Federal Circuit premised its determination that the
claims in McRO were patent-eligible, not merely on the specificity of the
claimed animation scheme, but rather on the fact that the claims, when
considered as a whole, were directed to a technological improvement over
the existing, manual 3-D animation techniques and used limited rules in a
process specifically designed to achieve an improved technological result in
conventional industry practice. We are not persuaded that a comparable
situation is presented here.
Instead, in the present invention, available data regarding impressions
of online advertisements is simply analyzed/compared in order to improve a
business practice. Here, as the Examiner points out, the limitations argued
by Appellants are "a set of instructions (i.e. computer software) to
implement the abstract idea on a basic computer" (Ans. 7). As our
reviewing court has made clear, "relying on a computer to perform routine
tasks more quickly or more accurately is insufficient to render a claim patent
eligible." OIP Techs., 788 F.3d at 1363. Accordingly, we are not persuaded
that independent claim 1 provides any improvement in computer technology
and/or functionality to the claimed invention or that otherwise indicates that
the claimed invention "appl[ies], rel[ies] on, or us[es] the judicial exception
in a manner that imposes a meaningful limit on the judicial exception, such
that the claim is more than a drafting effort designed to monopolize the
judicial exception." See 2019 Revised Guidance, 84 Fed. Reg. at 55.
Turning to Step 2B of the of the 2019 Revised Guidance, we
determine whether the additional elements (1) add a specific limitation or
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combination of limitations that is not well-understood, routine, and
conventional activity in the field, which is indicative that an inventive
concept may be present or (2) simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exception, which is indicative that an
inventive concept may not be present. See 2019 Revised Guidance, 84 Fed.
Reg. at 56.
The Examiner determines under step two in the Mayo/Alice
framework that independent claim 1
recites the additional limitations of a "processor" programmed to
execute the method, and a "computer readable medium" for
storing executable data. These components are recited at a high
level of generality and are recited as performing generic
computer functions routinely used in computer applications.
Generic 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. The use of generic
computer components to transmit information through an
unspecified interface does not impose any meaningful limit on
the computer implementation of the abstract idea. Thus, taken
alone, the additional elements do not amount to significantly
more than the above-identified judicial exception ( the abstract
idea).
(Final Act. 5; see also Ans. 6-10).
In response, Appellants argue that "[t]he lack of a prior art rejection is
evidence that the invention causes a computer to operate in a novel or
unusual manner" and "is strong evidence that the claims include 'something
significantly more' and are patent eligible" (Reply Br. 15; see also Appeal
Br. 6). However, to the extent Appellants maintain that the claimed
invention is patent-eligible, i.e., that the claims amount to "significantly
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more" than an abstract idea, and/or that the recited functions are not "well-
understood, routine, and conventional activities," because of the lack of
§ 102 or§ 103 rejections of the claimed subject matter, Appellants
misapprehend the controlling precedent.
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 (alteration in original). "Groundbreaking,
innovative, or even brilliant discovery does not by itself satisfy the § 101
inquiry." Ass 'n for Molecular Pathology v. 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 Diehr, 450 U.S. at 188-89 ("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.").
Appellants last argue that independent claim 1 "recite[ s] a particular
ordered combination of steps" which constitute particular rules that "serve to
prevent preemption of all processes having a similar goal" (see Reply Br.
10-12). However, a lack of complete preemption does not make the claims
any less abstract. See buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355
(Fed. Cir. 2014); see also Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788
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F.3d 1371, 1379 (Fed. Cir. 2015) ("While preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility."); see also OIP Techs., 788 F.3d at 1362-
1363 ("[T]hat 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.").
We are not persuaded, on the present record, that the Examiner erred
in rejecting claims independent claim 1 under 3 5 U.S. C. § 101. Therefore,
we sustain the Examiner's rejection of independent claim 1, and claims 2-
20, which fall with independent claim 1.
Double Patenting
The Examiner rejected claims 1-20 on the ground of nonstatutory
double patenting over claims 1-13 and 21-27 of U.S. Patent No. 8,554,621
(the '621 patent) (see Final Act. 2-3). Appellants argue that the present
application is a divisional application of the '621 patent (U.S. Patent
Application 12/726, 149), and as such, not "subject to nonstatutory double
patenting rejections over their issued parent" (Reply Br. 15 ( citing MPEP
§ 804.01 ). Accordingly, we agree with Appellants that based on the current
record, the ground of rejection cannot stand.
Based on the foregoing, we reverse the nonstatutory double patenting
rejection of claims 1-20.
DECISION
The Examiner's rejection of claims 1-20 under 35 U.S.C. § 101 is
affirmed.
The Examiner's rejection of claims 1-20 on the grounds of
nonstatutory double patenting is reversed.
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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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