Ex Parte Xiao et al

Patent Trial and Appeal Board

Aug 15, 2017

13565076 (P.T.A.B. Aug. 15, 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.
13/565,076 08/02/2012 Hong Xiao 20120449 3793
25537 7590
VERIZON
PATENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
EXAMINER
JESSEN, DEREK
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
08/17/2017 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):
patents @ verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HONG XIAO, DONGCHEN WANG, ANDRE TURNER, and
AZIM NASIR
Appeal 2016-005773
Application 13/565,0761
Technology Center 3600
Before THU A. DANG, JAMES R. HUGHES, and SCOTT B. HOWARD,
Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—15 and 17—21, which constitute all of the claims pending in this
application. Claim 16 has been cancelled. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 Appellants identify Verizon Communications Inc. and its subsidiary
companies as the real party in interest. Br. 3.
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Application 13/565,076
THE INVENTION
According to Appellants, the disclosed and claimed invention is
directed to “an advertisement platform that allows users to purchase
advertisement space on user devices.” Abstract.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method comprising:
providing, by a network device, a user interface to present
target information to allow for selection of a purchase of or a bid
for an advertisement space on a plurality of mobile devices,
wherein the target information comprises at least one of data
search activity, Internet multimedia consumption, web browsing,
uploads, or downloads pertaining to a user of each of the plurality
of mobile devices;
receiving, by the network device via the user interface, a
bid request or a purchase request for the advertisement space
according to specified advertisement criteria, including an
advertisement period and advertisement display parameters,
based on the target information;
identifying, by the network device, which of the mobile
devices have, when receiving the bid request or the purchase
request, associated user settings for advertisement display that
correspond to the specified advertisement criteria;
accepting, by the network device, the bid request or the
purchase request with respect to the identified mobile devices;
receiving, by the network device, a message from one or
more of the identified mobile devices indicating a change to one
or more of the associated user settings;
determining, by the network device, whether the change to
the one or more associated user settings corresponds to a conflict
with the specified advertisement criteria; and
delivering, by the network device, one or more
advertisements to the identified mobile devices based on the
associated user settings and in accordance with the specified
advertisement criteria.
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REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Schultz US 2009/0265236 A1 Oct. 22, 2009
Schaar US 2010/0324988 A1 Dec. 23, 2010
Repas US 2011/0099076 A1 Apr. 28, 2011
Cohen US 7,945,470 B1 May 17,2011
REJECTIONS
Claims 1—15 and 17—21 stand rejected under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter. Final Act. 2—3, 15—17; Adv.
Act. 2.
Claims 1—3, 5—15, and 17—21 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Repas in view of Cohen and Schultz.
Final Act. 3—14; Adv. Act. 2—3.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Repas in view of Cohen, Schultz, and Schaar. Final Act.
14;2 Ans. 16.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
2 Schultz appears to have been inadvertently omitted from the listing of the
prior art in the Final Action in that claim 4 is dependent on claim 1, which is
rejected over Repas, Cohen, and Schultz. Compare Final Act. 14 (not
including Schultz), with Final Act. 3 (including Schultz), Ans. 16 (including
Schultz in list of references), and Br. 21 (Appellants list Schultz as a basis of
the rejection.
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Although we are persuaded the Examiner erred in rejecting claim 21 as
unpatentable as obvious, we are not persuaded by Appellants’ arguments
regarding the Examiner’s determination that the pending claims are
unpatentable because they are directed to patent-ineligible subject matter and
that claims 1—15 and 17—20 are unpatentable as obvious.
Section 101 Rejection
Patent-eligible subject matter is defined in § 101 of the Patent Act,
which recites:
Whoever 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.
There are, however, three judicially created exceptions to the broad
categories of patent-eligible subject matter in § 101: laws of nature, natural
phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bank Int 7, 134
S. Ct. 2347, 2354 (2014); Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 132 S. Ct. 1289, 1293 (2012). Although an abstract idea, itself, is
patent-ineligible, an application of the abstract idea may be patent-eligible.
Alice, 134 S. Ct. at 2355. Thus, we must 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.” Id. (citing Mayo, 132 S. Ct. at 1297—98). The
claim must contain elements or a combination of elements that are
“sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the [abstract idea] itself.” Id. (citing Mayo, 132 S. Ct. at
1294).
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The Supreme Court set forth a two-part “framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Id. at
2355.
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. [Mayo,] 132 S.Ct., at
1296—1297. If so, we then ask, “[w]hat else is there in the claims
before us?” Id., at------- , 132 S.Ct., at 1297. 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. Id., at------- , 132 S.Ct.,
at 1298, 1297. 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.” Id., at------- , 132 S.Ct., at
1294.
“The ‘abstract idea’ step of the inquiry calls upon us to look at the
‘focus of the claimed advance over the prior art’ to determine if the claim's
‘character as a whole’ is directed to excluded subject matter.” Affinity Labs
of Tex. v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016)); see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed.
Cir. 2016). There is no definitive rule to determine what constitutes an
“abstract idea.” Rather, the Federal Circuit has explained that “both [it] and
the Supreme Court have found it sufficient to compare claims at issue to
those claims already found to be directed to an abstract idea in previous
cases.” Enfish, 822 F.3d 1327, 1334 (Fed. Cir. 2016); see also Amdocs
(Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016)
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(explaining that, in determining whether claims are patent eligible under
§101, “the decisional mechanism courts now apply is to examine earlier
cases in which a similar or parallel descriptive nature can be seen—what
prior cases were about, and which way they were decided”).
The Examiner finds, and we agree, that the claimed invention is
directed to the abstract idea of “[delivering advertisements to mobile
devices based on user settings,” which “is a fundamental economic
practice.” Final Act. 2; see also id. at 15—16; Adv. Act. 2 (determining “that
features such as bidding or purchasing ads for certain time periods and
display parameters is a fundamental economic practice and thus an abstract
idea”); Ans. 18—20. In Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed.
Cir. 2014), our reviewing court found the process of allowing a consumer to
receive copyrighted media in exchange for watching a selected
advertisement was an abstract idea. Similarly, in Affinity Labs of Texas v.
Amazon, 838 F. 3d 1266 (Fed. Cir. 2016), our reviewing court found claims
directed to delivering content to wireless devices to be an abstract concept.
Appellants argue that the specific steps recited in claim 1 “cannot be
fairly construed as being ‘abstract’ in view of the categories set forth in the
Guidance or by any other reasoning.” Br. 11. However, Appellants do no
more than recite the elements of the claim and make a conclusory assertion
that the limitations are not abstract ideas. Id. Appellants do not provide any
reasoning or citations to cases findings similar claims not abstract. Id. That
is insufficient to raise an argument that the Examiner erred. See In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011).
Appellants further argue because the Examiner did not cite supporting
evidence in the record, the argument is insufficient to support the rejection.
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Br. 11—12 (citing Ex parte Poisson, Appeal No. 2012-011084, slip op. at 5
(PTAB Feb. 27, 2015); APA 5 U.S.C. § 500 et seq; In re Gartside, 203 F.3d
1305, 1315 (Fed. Cir. 2000); In re Dembiczak, 175 F.3d 994, 999-1000
(Fed. Cir. 1999)).
As an initial matter, we find nothing in Bits hi ox Alice that requires the
Office to identify specific references to support a finding that a claim is
directed to an abstract idea. Indeed, the Examiner’s § 101 rejection is a
question of law. In re Bilski, 545 F.3d 943, 951 (Fed. Cir. 2008), affd 561
U.S. 593 (2010) (“Whether a claim is drawn to patent-eligible subject matter
under §101 is an issue of law.”); see also DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1255 (Fed. Cir. 2014); CyberSource Corp.
v. Retail Decisions, Inc., 654 F.3d 1366, 1369 (Fed. Cir. 2011) (“Issues of
patent-eligible subject matter are questions of law”); cf. Ex parte Craske,
Appeal 2017-002559, 2017 WL 2928866, *5 (PTAB June 29, 2017)
(holding that “there is no requirement that examiners must provide
evidentiary support in every case before a conclusion can be made that a
claim is directed to an abstract idea”).
Even if the Examiner must explain his underlying factual findings for
patent eligibility, the Federal Circuit has repeatedly noted that “the prima
facie case is merely a procedural device that enables an appropriate shift of
the burden of production.” Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir.
2007) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The
court has, thus, held that the USPTO carries its procedural burden 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
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prosecution of [the] application.” See In re Jung, 637 F.3d 1356, 1362 (Fed.
Cir. 2011).
Here, in rejecting the pending claims under § 101, the Examiner
analyzed the claims using the Mayo two-step framework in view of the
Supreme Court Decision in Alice and Mayo. The Examiner, thus, notified
Appellants of the reasons for the rejection “together with such information
and references as may be useful in judging of the propriety of continuing the
prosecution of [the] application.” 35 U.S.C. § 132. The burden then shifted
to Appellants to explain why the claims are patent-eligible.
An evidentiary showing by the Examiner is not necessary in this case.
We note that despite criticizing the Examiner for not citing any evidence in
support of the rejection, Appellants have put forward no rebuttal evidence
showing the claims are not directed to an abstract idea.
Appellants further argue that even if the claims are directed to an
abstract idea, the claims as a whole are directed to something more. Br. 12—
13. Appellants list all of the limitations of claim 1 and assert “that these
features cannot be reasonably construed to amount to a mere instruction to
apply a method of ‘delivering advertisements to mobile devices based on
user settings.’” Id. at 13. To the contrary, Appellants argue the claims are
similar to those found patent-eligible in DDR. Id. at 13—14.
The Examiner finds that the claims
do not include limitations that are “significantly more” than the
abstract idea because the claims do not include an improvement
to another technology or technical field, an improvement to the
functioning of the computer itself, or meaningful limitations
beyond generally linking the use of an abstract idea to a
particular technological environment.
Final Act. 2; see also id. at 15—17; Adv. Act. 2; Ans. 20-23.
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We are not persuaded by Appellants’ arguments. First, as our
reviewing court held in DDR, “not all claims purporting to address Internet-
centric challenges are eligible for patent.” 775 F.3d at 1258. As the Federal
Circuit recognized:
For example, in our recently-decided UltramerciaP] opinion,
the patentee argued that its claims were “directed to a specific
method of advertising and content distribution that was
previously unknown and never employed on the Internet before.”
772 F.3d at 1264. But this alone could not render its claims
patent-eligible. In particular, we found the claims to merely
recite the abstract idea of “offering media content in exchange
for viewing an advertisement,” along with “routine additional
steps such as updating an activity log, requiring a request from
the consumer to view the ad, restrictions on public access, and
use of the Internet.” Id. at 1265.
Id. Because Appellants have merely identified routine additional steps, they
are insufficient to render the claims patent-eligible.
Moreover, we disagree with Appellants that the claims in this case are
directed to a computer-centric problem similar to that in DDR. In DDR, the
Court found that the claims “do not merely recite the performance of some
business practice known from the pre-Internet world along with the
requirement to perform it on the Internet. Instead, the claimed solution is
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks.” Id. at 1257. Unlike
the claims in DDR, the claims in this case are merely adapting a pre-existing
business practice for use with computer technology.
Instead of DDR, this case is similar to Electric Power, in which our
reviewing court found the claims patent-ineligible because “[t]he claims at
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
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issue do not require any nonconventional 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
information collection, analysis, and display functions ‘on a set of generic
computer components’ and display devices.” Elec. Power, 830 F.3d at 1355
(citing Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827
F.3d 1341, 1349-52 (Fed. Cir. 2016)). Similarly, the claims in this case
merely recite the use of generic computer components and conventional
computer networks. Such an arrangement is not patent eligible. Id.
Accordingly, we sustain the Examiner’s rejection of claims 1—15 and
17—214 as unpatentable under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter.
Section 103 Rejection — Claims 1, 3, 5, 7—9, 11, 13—15, and 17—20
Appellants argue the Examiner erred in finding Schultz teaches or
suggests the “receiving, by the network device, a message from one or more
of the identified mobile devices indicating a change to one or more of the
associated user settings” and the “determining, by the network device,
whether the change to the one or more associated user settings corresponds
to a conflict with the specified advertisement criteria” steps5 recited in claim
4 With regard to the section 101 rejection, Appellants do not argue any of the
claims separately. See 37 C.F.R. § 41.37(c)(l)(iv) (“When multiple claims
subject to the same ground of rejection are argued as a group or subgroup by
appellant, the Board may select a single claim from the group or subgroup
and may decide the appeal as to the ground of rejection with respect to the
group or subgroup on the basis of the selected claim alone.”).
5 These are collectively referred to as the disputed receiving and determining
steps.
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1. Br. 15—16. According to Appellants, Schultz is directed to an “interface
for changing security information related to access rights,” and that “security
information does not correspond to user settings for advertisement display,
and permitting a user to change security information does not disclose or
suggest determining whether the change to the one or more associated user
settings (for advertisement display) corresponds to a conflict with the
specified advertisement criteria.” Id. at 16.
The Examiner finds the combination of Schultz and Cohen teach the
disputed receiving and determining steps. Ans. 23—24. Specifically, the
Examiner finds that
It follows that [in Schultz,] after a user changes the security
settings through the interface a message is sent to the user’s
provider of service after the user makes changes in the user
settings. This in combination with the teaching of Cohen that
identifies which of the mobile devices have, when receiving the
bid request or the purchase request, user settings for
advertisement display that correspond to the specified
advertisement criteria provides that it would have been obvious
at the time of the invention to receive, by a network device, a
message from the mobile device indicating a change to a user
settings (for advertisement display); and determine, by the
network device, whether the change to the one or more
associated user settings (for advertisement display) corresponds
to a conflict with the specified advertisement criteria
Id. at 24 (underlining in original, bold italics added).
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
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matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
425 (CCPA 1981). Therefore, we are not persuaded by Appellants’
arguments directed to Schultz alone—as opposed to the combination of the
teachings of Schultz and Cohen used by the Examiner—that the Examiner
erred.
Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejection of independent claims 9 and 17, which are argued on the
same grounds, and dependent claims 3, 5, 7, 8, 11, 13—15, and 18—20, which
are not argued separately.
Section 103 Rejection — Claims 2 and 10
Appellants argue the Examiner erred in finding Schultz teaches the
additional limitations recited in claims 2 and 10. Br. 16—18. As with claim
1 above, Appellants’ argument focuses on Schultz teaching security settings
and that “permitting a user to change security information does not disclose
or suggest determining one or more conflicts associated with the changes to
the one or more user settings, let alone indicating, via the user interface, that
the one or more conflicts exist.” Id. at 17.
The Examiner finds the combination of Schultz and Cohen teaches the
additional limitations of claims 2 and 10. Ans. 26—27 (focusing on the
teachings of Cohen); see also Final Act. 5 (finding the limitation taught by
modifying the combination of Repas and Cohen with the teachings of
Schultz). Because, as with claim 1, Appellants do not address the
combination of references relied on by the Examiner and, instead, only
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discuss one of the references, we are not persuaded by Appellants’
arguments that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claims 2 and 10.
Section 103 Rejection —Claims 6 and 12
Appellants argue the Examiner erred in finding Repas teaches the
additional limitation in claims 6 and 12. Br. 18—19. Specifically, Appellants
argue that the event patterns of Repas “include information regarding
subscription information associated with the plurality of mobile devices,
device characteristics for the plurality of mobile devices, and network
characteristics of a network accessed by the plurality of mobile devices, as
would be required of REPAS based on claim 6.” Br. 19.
In response to the arguments in the Appeal Brief, the Examiner finds
that Repas paragraph 21 teaches that the “target information [that allows] for
selection of an ad can include advertisement content, sale information
associated with the plurality of mobile devices, device characteristics for the
plurality of mobile devices, network characteristics of a network accessed by
the plurality of mobile devices, and demographic information for the users.”
Ans. 28. The Examiner further concluded that the broadest reasonable
interpretation of sale information in claim 6 encompasses “subscription or
service plan information, or services associated with the mobile device
purchased by a user.” Id. at 28—29.
Because Appellants did not file a Reply Brief addressing the
Examiner’s finding in the Answer, the finding is unrebutted. “If an
appellant fails to present arguments on a particular issue — or, more
broadly, on a particular rejection — the Board will not, as a general matter,
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unilaterally review those uncontested aspects of the rejection.” Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Accordingly, we
sustain the Examiner’s rejection of claims 6 and 12.
Section 103 Rejection — Claim 21
Appellants argue the Examiner erred in finding it would have been
obvious to a person of ordinary skill in the art to modify Repas to modify a
bid in the event of a conflict:
That is, providing advertisers with an option to commit to
pay to place their ads in different categories based on the tradeoff
between cost and placement of the ad cannot be reasonably
construed to correspond to identifying a conflict between the
associated user settings of at least one of the plurality of mobile
devices and the specified advertisement criteria, let alone
disclose or suggest obtaining a modification to the received bid
request or the purchase request to accommodate the identified
conflict, as would be required of REPAS based on the stated
interpretation. SCHULTZ also fails to disclose or suggest these
features.
Br. 20.
The Examiner notes that Repas does not teach the additional
limitation recited in claim 21. Final Act. 13. However, the Examiner finds
that a person of ordinary skill in the art would have modified Repas in order
to “modify a bid in the event of a conflict between a user setting and
advertisement criteria such as whether a user accepts banner ads on their
mobile device.” Final Act. 14. The Examiner further finds that a person of
ordinary skill in the art would have made such a modification because “the
advertiser does not want pay as much for an ad which will not be placed
according to preferred advertising parameters as taught by Repas.” Id.
(citing Repas 143); see also Ans. 29.
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Rejections based on obviousness must be supported by “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). In this case, the Examiner’s reasoning is conclusory and we are not
persuaded that the Examiner has set forth an adequate “explanation as to
how or why the references would be combined to produce the claimed
invention.” Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1066 (Fed. Cir.
2016) (emphasis added). Therefore, based on the current record, Appellants
have persuaded us that the Examiner erred.
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection of claim 21 as unpatentable as obvious.
Section 103 Rejection —Claim 4
With respect to dependent claim 24, Appellants merely contend that
because the additional reference used in the rejection of that claim (Schaar)
does not cure the shortcomings of the other references applied against claim
1, the Examiner failed to make a prima facie case of obviousness for these
claims. Br. 21. Because we determine that the rejection of claim 1 is not
erroneous for the reasons discussed above, we sustain the rejection of claim
4.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—15 and 17—21 as unpatentable under 35 U.S.C. § 101.
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For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—15 and 17—20 as unpatentable under pre-AIA 35 U.S.C. § 103(a).
For the above reasons, we reverse the Examiner’s decision rejecting
claim 21 as unpatentable under pre-AIA 35 U.S.C. § 103(a).
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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