Ex Parte YamamotoDownload PDFPatent Trial and Appeal BoardDec 19, 201614129831 (P.T.A.B. Dec. 19, 2016) Copy Citation 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. 14/129,831 12/27/2013 Tadahiro Yamamoto Q208598 9784 23373 7590 12/21/2016 SUGHRUE MION, PLLC 2100 PENNSYLVANIA AVENUE, N.W. SUITE 800 WASHINGTON, DC 20037 EXAMINER WEISENFELD, ARYAN E ART UNIT PAPER NUMBER 3689 NOTIFICATION DATE DELIVERY MODE 12/21/2016 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): PPROCESSING@SUGHRUE.COM sughrue@sughrue.com USPTO@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TADAHIRO YAMAMOTO Appeal 2016-005659 Application 14/129,8311 Technology Center 3600 Before HUBERT C. LORIN, ANTON W. FETTING, and BIBHU R. MOHANTY, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Tadahiro Yamamoto (Appellant) seeks our review under 35 U.S.C. § 134 of the final rejection of claims 20—32. We have jurisdiction under 35 U.S.C. § 6(b) (2002). An oral hearing was held on December 2, 2016. SUMMARY OF DECISION We AFFIRM. 1 The Appellant identifies Rakuten, Inc. as the real party in interest. App. Br. 2. Appeal 2016-005659 Application 14/129,831 THE INVENTION Claim 20, reproduced below, is illustrative of the subject matter on appeal. 20. A review posting control device comprising: at least one non-transitory memory operable to store program code; at least one processor operable to read said program code and operate as instructed by said program code, said program code causing the processor to perform: selecting a reviewer having posted a review having received a specified level or higher of negative evaluations based on evaluation information including evaluation content, evaluation time, a review evaluator, and containing positive or negative evaluations by the review evaluator on the review posted by the reviewer for a review target; and setting a restrictive time period during which the reviewer having posted the review cannot post a review starting from a time of next review posting following the review posting based on a level of negative evaluations received by the review to review posting by the reviewer, wherein the review is received from a terminal via a network and comprises information about the review target, wherein the restrictive time period is a time period in which reviews posted by the reviewer from the terminal will not be posted by the review posting control device, and wherein the review target comprises at least one from among an item of electronic commerce and content. 2 Appeal 2016-005659 Application 14/129,831 THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Shilman US 2009/0319342 A1 Dec. 24,2009 Dai US 2011/0231282 A1 Sept. 22,2011 Becoming a Top-Rated Seller, http://pages.ebay.com/help/seUltopmrated.html, Wayback Machine (last visited Dec. 12, 2009) (hereinafter “eBay”). Explaining Facebook's Spam Prevention Systems, https://www.facebook.com/notes/facebook/explaining-facebooks- spam-prevention-systems/403200567130/ (last visited June 29, 2010) (hereinafter “Facebook”) The following rejections are before us for review: 1. Claims 20—32 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. 2. Claims 20-24, 31, and 32 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, and Facebook. 3. Claims 25—30 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, Facebook, and Dai. ISSUES Did the Examiner err in rejecting claims 20—32 under 35 U.S.C. § 101 as being directed to non-statutory subject matter? Did the Examiner err in rejecting claims 20—24, 31, and 32 under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, and Facebook 3 Appeal 2016-005659 Application 14/129,831 and claims 25—30 under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, Facebook, and Dai? ANALYSIS The rejection of claims 20—32 under 35 U.S.C. § 101 as being directed to non-statutory subject matter. The Appellant argued these claims as a group. See App. Br. 7—12. We select claim 20 as the representative claim for this group, and the remaining claims 21—32 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014) identifies a two-step framework for determining whether claimed subject matter is judicially-excepted from patent eligibility under § 101. According to Alice step one, “[w]e must first determine whether the claims at issue are directed to a patent-ineligible concept,” such as an abstract idea. Alice, 134 S. Ct. at 2355. In that regard, the Examiner found, inter alia, that “[c]laim(s) 20-32 are directed to the abstract idea of review posting.” Non-Final Act. 3. For its part, “Applicant respectfully submit[s] that review posting control is not an abstract idea.” App. Br. 8. But the Appellant says nothing more about it. We do not see that the Appellant has disputed that claims 20—32 are directed to review posting. Given this and nothing more than a statement that “review posting control is not an abstract idea,” the Appellant does not persuade us that the Examiner erred in finding (a) claims 20—32 are directed to review posting and (b) review posting control is not an abstract idea. Thus, we are further unpersuaded that the 4 Appeal 2016-005659 Application 14/129,831 Examiner erred in finding that “[c]laim(s) 20-32 are directed to the abstract idea of review posting.” Non-Final Act. 3. Step two is “a search for an ‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 134 S. Ct. at 2355 (alteration in original) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1294 (2012)). In this regard, the Appellant first argues that “the elements [of claim 1] are linked to particular technological environment, that is a computerized system that restricts review postings by reviewers that have received negative evaluations of their reviews.” App. Br. 8 (emphasis omitted). However, the evidence supports the opposite conclusion. Claim 20 recites the following elements: “at least one non-transitory memory operable to store program code;” “at least one processor operable to read said program code and operate as instructed by said program code;” and “a terminal via a network.” These are common elements of a conventional, generic computer system. The Specification supports that view. See, e.g., Spec., paras. 43, 45. The evidence does not support that a particular technological environment is involved. Nevertheless, even if, for argument’s sake, said common elements provide a particular environment for the practicing the review posting as claimed, that alone does not make the abstract idea of review posting patent-eligible. Cf. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011) (“The Court [Parker v. Flook, 437 U.S. 584 (1978)] rejected the notion that the recitation 5 Appeal 2016-005659 Application 14/129,831 of a practical application for the calculation could alone make the invention patentable.”). The Appellant next argues that claim 20 “clearly recites more than simple data analysis by a generic computer.” App. Br. 9. The Appellant points out, “the basic function of a computer does not include review posting restrictions and a generic computer does not contain software that evaluates review posting and restricts review posting to achieve the useful result of moderating publicly sourced reviews.” Id. However, a basic function of a computer system is to process information. That basic function of a computer remains unchanged when performing a review posting as claimed. The review posting as claimed is distinguished by the type of information being processed, not the computer system processing it. The Appellant points to no evidence showing that anything more than the basic functions of a conventional computer system is involved — and the evidence that is on record, namely the Specification, supports the opposite conclusion. The Appellant then variously argues — in the same vein as the first two arguments — that the claimed invention is “rooted in computer technology.” Id. at 10. According to the Appellant, the reviews posted on websites through the Internet and viewed through the Internet are rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks, that is the problem that exists when internet reviewers posting reviews that are accessible in real time are allowed to run unchecked. Id. at 11. According to the Appellant, “[controlling review posting of Internet based reviews . . . was not possible prior to the Internet. Such reviews were not available prior to the Internet.” Id. at 10. The argument is 6 Appeal 2016-005659 Application 14/129,831 carried over to the Reply Brief where the Appellant further cites DDR Holdings, LLCv. Hotels.com, LP, 773 F.3d 1245 (Fed. Cir. 2014). As we have stated, the evidence on record supports the view that a generic computer system is employed. Claim 20 broadly and generically uses common elements of a conventional computer system to perform an abstract business practice (review posting). Claim 20 is not like the claims in DDR. “[T]he claims at issue here specify how interactions with the Internet are manipulated to yield a desired result—a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.” DDR, 773 F.3d at 1258. Rather, claim 20 is like the claims in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014). Albeit claim 20 involves the use of “a terminal via a network” (among other common computer elements), this does not necessarily root the invention in computer technology. We caution, however, that not all claims purporting to address Internet-centric challenges are eligible for patent. For example, in our recently-decided Ultramercial 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 [sic]. 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 [sic]. DDR, 773 F.3d at 1258. For the foregoing reasons, we are unpersuaded that claim 20 includes elements or combination of elements sufficient to ensure that the claimed 7 Appeal 2016-005659 Application 14/129,831 subject matter in practice amounts to significantly more than being upon the abtsract idea of review posting itself. The evidence supports viewing those elements as common elements of a conventional generic computer system. In that regard, “the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea ‘while adding the words “apply it” is not enough for patent eligibility.’” Alice, 134 S. Ct. at 2358. The rejection is sustained. The rejection of claims 20—24, 31, and 32 under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, and Facebook. The rejection of claims 25—30 under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, Facebook, and Dai. Independent claim 20 requires “setting a restrictive time period during which the reviewer having posted the review cannot post a review starting from a time of next review posting following the review posting based on a level of negative evaluations received by the review to review posting by the Reviewer.” The other independent claim (claim 32) includes the same requirement. According to the Examiner, said claim limitation is disclosed in Facebook. See Non-Final Act. 8 (“Page 1, paragraphs [0003] and [0004], as well as Page 2, paragraph [0001] teaches that when users misuse the commenting system of Facebook, for example by sending spam messages, Facebook will disable the account for a period of time and thus not be able to comment.”) 8 Appeal 2016-005659 Application 14/129,831 We have reviewed Facebook but do not find there any mention of setting a restrictive time period as claimed. The rejections are not sustained. CONCLUSIONS The rejection of claims 20—32 under 35U.S.C. § 101 as being directed to non-statutory subject matter is affirmed. The rejection of claims 20-24, 31, and 32 under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, and Facebook is reversed. The rejection of claims 25—30 under 35 U.S.C. § 103(a) as being unpatentable over Shilman, eBay, Facebook, and Dai is reversed. DECISION The decision of the Examiner to reject claims 20—32 is affirmed. 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 9 Copy with citationCopy as parenthetical citation