Jay DeWitt et al.

Patent Trials and Appeals Board

Sep 28, 2020

13219341 - (D) (P.T.A.B. Sep. 28, 2020)

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.
13/219,341 08/26/2011 Jay Allen DeWitt 8223-1706929 9651
144885 7590 09/28/2020
The Webb Law Firm / Visa International
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
MPAMUGO, CHINYERE
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
09/28/2020 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@webblaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAY ALLEN DEWITT and DENNIS NORMAN MOSER

Appeal 2019-006696
Application 13/219,341
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1, 4, 7–11, 13–19, and 22–27. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Visa
U.S.A. Inc. Appeal Br. 3.
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ILLUSTRATIVE CLAIM
1. A method, comprising:
sending, by a second computing device, to a first
computing device of a consumer, at least one first transmission
to cause presentation in a user interface on a display of the first
computing device, the at least one first transmission comprising
data associated with links to webpages corresponding to
inventory;
receiving, by the second computing device via a
communication network, from the first computing device of the
consumer based on activation of a first link of the links
corresponding to inventory, the first link associated with a
requested inventory, at least one second transmission
comprising a consumer request from the consumer that requests
an offer for sale of the requested inventory to the consumer by a
merchant, the at least one second transmission further
comprising a return address of the first computing device of the
consumer and an account number of an account associated with
the consumer in a payment processing system;
matching, by the second computing device, by accessing
a database storing inventory data for a plurality of merchants,
the consumer request to a set of merchants having the requested
inventory;
determining, by the second computing device, a first
merchant from the set of merchants willing to make a first
merchant offer to the consumer that includes an inducement for
the consumer to purchase the requested inventory;
determining, by the second computing device, a real time
distance of the first computing device of the consumer from a
location of the first merchant based on a real time location of
the first computing device of the consumer;
determining, by the second computing device, that the
real time distance of the first computing device of the consumer
from the location of the first merchant is within a first
predetermined threshold value of distance;
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determining, by the second computing device, that a first
duration of time, in which the real time distance of the first
computing device of the consumer from the location of the first
merchant is within the first predetermined threshold value of
distance, has elapsed based on determining that the real time
distance of the first computing device of the consumer from the
location of the first merchant is within the first predetermined
threshold value of distance;
in response to receiving the consumer request,
transmitting, by the second computing device via the
communication network after the first duration of time has
elapsed, using the return address of the first computing device
of the consumer, the first merchant offer to the first computing
device of the consumer, the first merchant offer including the
inducement and a confirmation code, wherein transmitting the
first merchant offer comprises:
transmitting the first merchant offer to the first
computing device of the consumer prior to receiving, by
the second computing device from a terminal of the first
merchant, an authorization request for a purchase of the
requested inventory by the consumer;
transmitting, by the second computing device via the
communication network, a second merchant offer for the sale of
the requested inventory to the consumer when the consumer is
within a second predetermined threshold value of distance from
the location of the first merchant, based on determining that a
payment transaction between the first merchant and the
consumer for the purchase of the requested inventory did not
occur within a second duration of time after transmitting the
first merchant offer to the first computing device of the
consumer, the second merchant offer including the inducement
and the confirmation code;
transmitting, by the second computing device, the
confirmation code to the terminal;
receiving, by the second computing device, the
authorization request from the terminal, the authorization
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request including the account number of the account associated
with the consumer in the payment processing system;
in response to receiving the authorization request,
transmitting, by the second computing device to the terminal, a
request for a validation of the confirmation code, the request to
cause the terminal to validate the confirmation code by
accessing the database;
receiving, by the second computing device, a
confirmation transmission from the terminal confirming that a
confirmation code received from the consumer at the terminal
matches the confirmation code transmitted to the terminal;
processing the purchase of the requested inventory using
the account number; and
in response to the receiving the confirmation
transmission, applying the inducement toward the purchase.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Hudda et al.
(“Hudda” herein)
US 2001/0049636 A1 Dec. 6, 2001
Callegari US 2003/0004743 A1 Jan. 2, 2003
Mikurak US 2004/0064351 A1 Apr. 1, 2004
Szabo et al.
(“Szabo” herein)
US 6,963,851 B1 Nov. 8, 2005
Vaughn et al.
(“Vaughn” herein)
US 2006/0095327 A1 May 4, 2006

REJECTIONS
I. Claims 1, 4, 7–11, 13–19, and 22–27 are rejected under
35 U.S.C. § 101 as ineligible subject matter.
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II. Claims 1, 4, 7–11, 13–19, 23, 25, and 27 are rejected under 35
U.S.C. § 103(a) as unpatentable over Hudda, Mikurak, and Callegari.2
III. Claims 22, 24, and 26 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hudda, Mikurak, Callegari, Szabo, and Vaughn.
FINDINGS OF FACT
The findings of fact relied upon, which are supported by a
preponderance of the evidence, appear in the following Analysis.
ANALYSIS
Subject-Matter Eligibility
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. Yet, subject matter belonging to any of the statutory
categories may, nevertheless, be ineligible for patenting. The Supreme
Court has interpreted § 101 to exclude laws of nature, natural phenomena,
and abstract ideas, because they are regarded as the basic tools of scientific
and technological work, such that including them within the domain of
patent protection would risk inhibiting future innovation premised upon
them. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013).
Of course, “[a]t some level, ‘all inventions . . . embody, use, reflect,
rest upon, or apply’” these basic tools of scientific and technological work.
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014). Accordingly,
evaluating ineligible subject matter, under these judicial exclusions, involves

2 Claim 4 is not included in the description of the rejection (on page 8 of the
Final Office Action), but claim 4 is addressed in the analysis thereafter.
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a two-step framework for “distinguish[ing] between patents that claim the
buildin[g] block[s] of human ingenuity and those that integrate the building
blocks into something more, thereby transform[ing] them into a patent-
eligible invention.” Id. (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 88–89 (2012) (internal quotation marks omitted)).
The first step determines whether the claim is directed to judicially excluded
subject matter (such as a so-called “abstract idea”); the second step
determines whether there are any “additional elements” recited in the claim
that (either individually or as an “ordered combination”) amount to
“significantly more” than the identified judicially excepted subject matter
itself. Id. at 217–18.
In 2019, the USPTO published revised guidance on the application of
§ 101, in accordance with judicial precedent. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 52 (Jan. 7, 2019)
(“2019 Revised Guidance”). Under the 2019 Revised Guidance, a claim is
“directed to” an abstract idea, only if the claim recites any of (1)
mathematical concepts, (2) certain methods of organizing human activity,
and (3) mental processes — without integrating such abstract idea into a
“practical application,” i.e., without “apply[ing], rely[ing] on, or us[ing] 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.” Id. at 52–55. The considerations
articulated in MPEP § 2106.05(a)–(c) and (e)–(h) bear upon whether a claim
element (or combination of elements) integrates an abstract idea into a
practical application. Id. at 55. A claim that is “directed to” an abstract idea
constitutes ineligible subject matter, unless the claim recites an additional
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element (or combination of elements) amounting to significantly more than
the abstract idea. Id. at 56.
Although created “[i]n accordance with judicial precedent” (id. at 52),
the 2019 Revised Guidance enumerates the analytical steps differently than
the Supreme Court’s Alice opinion. Step 1 of the 2019 Revised Guidance
addresses whether the claimed subject matter falls within any of the statutory
categories of § 101. Id. at 53–54. Step 2A, Prong One, concerns whether
the claim at issue recites ineligible subject matter and, if an abstract idea is
recited; Step 2A, Prong Two, addresses whether the recited abstract idea is
integrated into a practical application. Id. at 54–55. Unless such integration
exists, the analysis proceeds to Step 2B, in order to determine whether any
additional element (or combination of elements) amounts to significantly
more than the identified abstract idea. Id. at 56.
In the present Appeal, the Appellant does not analyze independent
claims 13 and 19 separately from independent claim 1. See Appeal Br. 15–
20. Accordingly, we treat the independent claims as a group, selecting claim
1 for analysis herein. See 37 C.F.R. § 41.37(c)(1)(iv).
As to Step 1 of the 2019 Revised Guidance, the Examiner states that
the claims in the Appeal are within the statutory categories identified in
§ 101. Answer 3.
With regard to the inquiries corresponding to Step 2A, Prong One, the
Examiner identifies the following limitations of claim 1:
matching, by the second computing device, by accessing
a database storing inventory data for a plurality of merchants,
the consumer request to a set of merchants having the requested
inventory;
determining, by the second computing device, a first
merchant from the set of merchants willing to make a first
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merchant offer to the consumer that includes an inducement for
the consumer to purchase the requested inventory;
determining, by the second computing device, a real time
distance of the first computing device of the consumer from a
location of the first merchant based on a real time location of
the first computing device of the consumer;
determining, by the second computing device, that the
real time distance of the first computing device of the consumer
from the location of the first merchant is within a first
predetermined threshold value of distance;
determining, by the second computing device, that a first
duration of time, in which the real time distance of the first
computing device of the consumer from the location of the first
merchant is within the first predetermined threshold value of
distance, has elapsed based on determining that the real time
distance of the first computing device of the consumer from the
location of the first merchant is within the first predetermined
threshold value of distance; [and]
. . .
. . . applying the inducement toward the purchase.
Answer 4–5. According to the Examiner:
The identified limitations recite a method and system that
matches a consumer request for inventory with a group of
merchants having the inventory and provides an offer based
[on] the duration of time at a predetermined distance the
consumer is from the merchant, which is a method of
commercial interactions including advertising, marketing, or
sales activities or behaviors, and business relations. The claim
limitations fall within the Certain Methods of Organizing
Human Activities groupings of abstract ideas. The performance
of the claim limitations using generic computing components
(i.e., computing device) does not preclude the claim limitations
from being in the certain methods of organizing human activity
grouping. Thus, the claimed invention is directed to a judicial
exception.
Id. at 5.
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The Examiner’s identification of techniques for initiating commercial
transactions (e.g., providing the claimed “inducement”), based upon
geographic and temporal constraints, is similar to concepts that courts have
identified as abstract ideas (as among certain methods of organizing human
activity). For example, the Final Office Action (pages 4, 6) cites Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir.
2015), which states that tailoring website content, based upon a user’s
geographic location, is a fundamental practice and, therefore, an abstract
idea.
As discussed, below (in regard to the obviousness rejection), the
temporal constraint, expressed in the Examiner’s description of the abstract
idea, is described by additional claim language (not identified by the
Examiner) that could be regarded as reciting part of the abstract idea:
transmitting, by the second computing device via the
communication network, a second merchant offer for the sale of
the requested inventory to the consumer when the consumer is
within a second predetermined threshold value of distance from
the location of the first merchant, based on determining that a
payment transaction between the first merchant and the
consumer for the purchase of the requested inventory did not
occur within a second duration of time after transmitting the
first merchant offer to the first computing device of the
consumer, the second merchant offer including the inducement.
(Emphasis added).
Although the Appellant identifies a specific portion of the Reply Brief
as addressing the Step 2A, Prong One, inquiries (see Reply Br. 2–6), some
of the Appellant’s remarks concern other steps of the analysis described in
the 2019 Revised Guidance. The Appellant also contends that the
Examiner’s description of “[p]roviding ‘an offer based on the duration of
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time at a predetermined distance the consumer is from the merchant’ is
not ‘a fundamental economic practice long prevalent in our system of
commerce’ but instead overgeneralizes the limitations of the claim as an
abstract idea.” Id. at 6.
As an initial matter, “[a]n abstract idea can generally be described at
different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842, F.3d
1229, 1240 (Fed. Cir. 2016). We disagree with the Appellant’s position that
the Examiner’s particular characterization of the abstract idea
“overgeneralizes” the identified claim limitations. Furthermore, the
Examiner’s characterization is consonant with similar ideas that courts have
identified as beyond the reach of patent-eligible subject matter. See
Intellectual Ventures I, 792 F.3d at 1369.
Therefore, we are not persuaded of error in the Examiner’s analysis of
Step 2A, Prong One, of the 2019 Revised Guidance.
Turning to Step 2A, Prong Two, unless a claim that recites a judicial
exception (such as an abstract idea) “integrates the recited judicial exception
into a practical application of that exception,” the claim is “directed to” the
judicial exception. 2019 Revised Guidance, 84 Fed. Reg. at 53. The
analysis of such an “integration into a practical application” involves
“[i]dentifying . . . any additional elements recited in the claim beyond the
judicial exception(s)” and “evaluating those additional elements individually
and in combination to determine whether they integrate the exception into a
practical application.” Id. at 54–55. Among the considerations “indicative
that an additional element (or combination of elements) may have integrated
the exception into a practical application” is whether “[a]n additional
element reflects an improvement in the functioning of a computer, or an
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improvement to other technology or technical field.” Id. at 55 (footnote
omitted). “[W]hether an additional element or combination of elements
integrate[s] the exception into a practical application should be evaluated on
the claim as a whole.” Id. at 55 n.24.
The Appellant contends that a portion of claim 1 that provides “a
meaningful limitation on, and thus, a practical application of” the abstract
idea the Examiner identifies. Reply Br. 11. Yet, the Appellant cites a
portion of claim 1 that is among the claim limitations that the Examiner
relies upon to describe the abstract idea:
determining, by the second computing device, that a first
duration of time, in which the real time distance of the first
computing device of the consumer from the location of the
first merchant is within the first predetermined threshold
value of distance, has elapsed based on determining that the
real time distance of the first computing device of the consumer
from the location of the first merchant is within the first
predetermined threshold value of distance.
Id. at 10 (quoting claim 1). Because the Examiner relies on the foregoing
claim features in the description of the abstract idea, this language cannot be
part of an “additional element” in the eligibility analysis.
Further, the Appellant argues that the following limitations of claim 1
“also provide meaningful limitations”:
in response to receiving the consumer request, transmitting, by
the second computing device via the communication
network after the first duration of time has elapsed, using
the return address of the first computing device of the
consumer, the first merchant offer to the first computing
device of the consumer, the first merchant offer including
the inducement and a confirmation code, wherein
transmitting the first merchant offer comprises:
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transmitting the first merchant offer to the first
computing device of the consumer prior to receiving,
by the second computing device from a terminal of
the first merchant, an authorization request for a
purchase of the requested inventory by the consumer.
Reply Br. 11.
The Appellant does not explain why these limitations might integrate
the abstract idea into a practical application. “A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.” 37 C.F.R. § 41.37(c)(1)(iv). Further,
the feature “after the first duration of time has elapsed” does no more than
repeat the proximity requirement, which is part of the abstract idea. Indeed,
according to claim 1, the “elaps[ing]” of the “first duration of time” is
“based on determining that the real time distance of the first computing
device of the consumer from the location of the first merchant is within the
first predetermined threshold value of distance.” (Emphasis added).
The Appellant also argues that the claimed “confirmation code”
provides a “practical application,” in view of its “technical benefit.” Reply
Br. 11 (citing Spec. ¶¶ 76, 87). Yet, the Appellant does not indicate the
nature of any “technical benefit” or “practical application,” or how such
might be manifest in the claim language.
In addition, in the portion of the Reply Brief that the Appellant
identifies as corresponding to Step 2A, Prong One, of the 2019 Revised
Guidance, the Appellant argues that “the claims do provide a technical
solution to a problem” — in particular, “an improved method for providing
an offer from a merchant to a consumer.” Reply Br. 3.
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Yet, the remarks thereafter (id. at 3–6), the Appellant cites paragraphs
42, 76, and 87 of the Specification — but no language of any claim that
might purportedly embody any improvement.
The Appellant also argues that the Examiner does not explain “how
the limitations above pre-empt all ways of providing an offer based on a
duration of time at a predetermined distance a consumer is from a
merchant.” Reply Br. 7.
Yet, “[w]hile preemption may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate patent eligibility.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015).
Therefore, we are not persuaded of error in the rejection, with regard
to analyses of Step 2A, Prong Two.
Proceeding to Step 2B of the 2019 Revised Guidance (84 Fed. Reg. at
56), a claim that recites a judicial exception (such as an abstract idea) might,
nevertheless, be patent-eligible, if the claim contains “additional elements
amount[ing] to significantly more than the exception itself” — i.e., “a
specific limitation or combination of limitations that [is] not well-
understood, routine, conventional activity in the field, which is indicative
that an inventive concept may be present.” See Alice, 573 U.S. at 223
(“[T]he mere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention.”)
The Examiner regards the limitations of claim 1 — aside from those
comprising the identified abstract idea — as conventional computer
equipment performing generic functions: “Specifically, receiving, storing,
and updating data and performing mathematical functions are well-
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understood, routine, and conventional activities previously known in the
industry.” Answer 7.
The Appellant argues that the Examiner’s determination lacks the
factual support required under Berkheimer v. HP Inc., 881 F.3d 1360, 1368
(Fed. Cir. 2018). Reply Br. 12.
Yet, as the Examiner points out, courts have recognized the well-
understood nature of basic computer-network features, such as those in
claim 1. Answer 7–8. See also Final 7. For example, in addressing similar
computer operations, the Federal Circuit stated: “Absent a possible
narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’
. . . those functions can be achieved by any general purpose computer
without special programming.” In re Katz Interactive Call Processing
Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011).
Further, the Appellant states that “at least the following claim
limitations of independent claim 1 are not well-known, routine, or
conventional and no support has been provided to assert that the limitations
are well-known, routine, or conventional.” Reply Br. 13. Immediately
thereafter, the Appellant repeats nearly the entirety of claim 1 (omitting only
the preamble and the final two paragraphs), with no accompanying argument
or explanation. Id. at 13–15.
Leaving aside the Appellant’s identification of claim limitations that
the Examiner relies upon to describe the abstract idea (i.e., claim language
that cannot constitute any “additional elements”), merely stating claim
language does not amount to an argument for error. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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The Appellant briefly asserts that the Examiner’s analysis of
dependent claims 4, 7–11, 14–18, and 22–27 “provides no substantive
analysis.” Reply Br. 15.
But the Examiner maintains that no dependent claim contains any
additional limitation sufficient to give rise to patent-eligibility, in view of the
recitation of an abstract idea by the corresponding independent claims.
Final 6. See also Answer 8. The Appellant has not provided analysis to
point out error in the rejection of the dependent claims.
In view of the foregoing, we are not persuaded of error in in the
Examiner’s analysis of Step 2B of the 2019 Revised Guidance.
Accordingly we sustain the rejection of independent claims 1, 13, and
19, along with dependent claims 4, 7–11, 14–18, and 22–27 under 35 U.S.C.
§ 101.
Obviousness
The Appellant argues that the cited Hudda reference fails to teach
claim 1’s “first duration of time” that is determined to be “elapsed,” “based
on determining that the real time distance” of the consumer device from the
merchant “is within the first predetermined threshold value of distance.” See
Appeal Br. 30.
Yet, understood in the context of claim 1, the “first duration of time”
and its “elaps[ing]” merely signify geographical proximity. The only
indication that the “first duration of time” is “elapsed” is that “the real time
distance of the first computing device of the consumer from the location of
the first merchant is within the first predetermined threshold value of
distance.”
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Such a distance-based feature is precisely what the identified portion
(see Final 9) of Hudda teaches:
[T]he server of the present invention 22 searches its own
database 24 for the location of the merchant carrying a
particular product who is within the pre-specified radius
distance over which a consumer would be willing to travel to
obtain the desired product. Once this is determined, a signal is
sent back to the consumer over the Internet 20 and the wireless
network 18 notifying the consumer of where the desired
products may exist[ ].
Hudda ¶ 70 (emphasis added).
Although the Appellant correctly states that “Hudda makes no
mention of a duration of time” (Appeal Br. 30), Hudda teaches or suggests
the use of a minimum distance as a trigger for other activity, which is what
the identified limitation of claim 1 recites (albeit, expressed in terms of the
lapse of a “first duration of time”).
The Appellant relies upon the same argument for independent claims
13 and 19; no dependent claim is argued separately. Appeal Br. 31.
Accordingly, we sustain the rejections of independent claims 1, 13, and 19,
along with dependent claims 4, 7–11, 14–18, and 22–27, under 35 U.S.C.
§ 103(a).
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 7–11,
13–19, 22–
27
101 Eligibility 1, 4, 7–11,
13–19, 22–
27

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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 7–11,
13–19, 23,
25, 27
103(a) Hudda, Mikurak,
Callegari
1, 4, 7–11,
13–19, 23,
25, 27

22, 24, 26 103(a) Hudda, Mikurak,
Callegari, Szabo,
Vaughn
22, 24, 26
Overall
Outcome
1, 4, 7–11,
13–19, 22–
27

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED