John C. Mcdonough et al.

Patent Trials and Appeals Board

Sep 19, 2019

12508509 - (D) (P.T.A.B. Sep. 19, 2019)

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.
12/508,509 07/23/2009 John C. McDonough FID-039A 8154
42532 7590 09/19/2019
PROSKAUER ROSE LLP
ONE INTERNATIONAL PLACE
BOSTON, MA 02110
EXAMINER
VYAS, ABHISHEK
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
09/19/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
DocketingPatentBoston@proskauer.com
oandrews@proskauer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte JOHN C. McDONOUGH and
HADLEY RUPERT STERN1
________________

Appeal 2018-002280
Application 12/508,509
Technology Center 3600
________________

Before ALLEN R. MacDONALD, CARL W. WHITEHEAD JR., and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–3, 5, 9, 10, 12–23, and 25, which constitute all
of the pending claims. Appeal Br. 11.2 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. Appellant identifies the real party in interest as FMR
LLC. Appeal Brief filed December 8, 2015 (“Appeal Br.”) at 2.
2 On the cover sheet of the Final Office Action mailed April 10, 2015 (“Final
Act.”), the Examiner erroneously lists claims 1–25 as pending and rejected.
However, Appellant indicates that claims 4, 6–8, 11, and 24 have been
canceled. Appeal Br. 29–34.
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STATEMENT OF THE CASE
Appellant describes the present invention as follows:
Described are methods and apparatuses, including
computer program products, for tracking patterns associated with
mobile devices. The system includes a server computing device
configured to receive location information from a mobile device
associated with a user. The location information includes
location information based on [global positioning system (GPS)]
information sent from the mobile device. One or more activity
patterns associated with the user of the mobile device are
generated by the server computing device. The generating
includes tracking the location information over a period of time
and determining one or more categories of repeated activity
based on the tracking.
Abstract.
Claims 1–3, 5, 9, 10, 12–23 and 25 stand rejected under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Act. 4–8.
Claims 1–3, 5, 9, 10, 12–23, and 25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over various combinations of references, as
explained in more detail below. Final Act. 9–22.
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

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THE § 101 REJECTION
The Claimed Subject Matter
In relation to the patent-eligibility rejection, independent claim 1 is
representative of the appealed claims.3 It is reproduced below with
formatting modified for clarity and with emphasis added to the language that
recites an abstract idea:
1. A computerized method for generating and tracking
activity patterns associated with mobile devices, the method
comprising:
[i] automatically capturing, by an application executing on a
mobile device, a plurality of location information entries
associated with a first user, each of the location information
entries annotated to include GPS information and timestamp
information recorded by a GPS receiver embedded within the
mobile device;
[ii] receiving, by a mobile communication module of a server
computing device, the plurality of location information entries
from the mobile device via a mobile communications network;
[iii] tracking, by a mobile data aggregation module of the
server computing device, the location information entries over a
period of time;
[iv] grouping, by the mobile data aggregation module, the
tracked location information entries to determine an occurrence
of repeated activity of the first user, the grouping based on GPS
information and timestamp information common to two or more
of the tracked location information entries;
[v] generating, by the mobile data aggregation module, one or
more activity patterns of the first user, wherein the one or more
activity patterns are based on the occurrence of repeated
activity;

3 Appellant argues all of the claims together as a group. See Appeal Br. 11–
20. Accordingly, we select independent claim 1 as representative.
37 C.F.R. § 41.37(c)(1)(iv).
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[vi] generating, by the mobile data aggregation module,
augmented activity patterns of the first user using transaction
data associated with the first user that corresponds to one or
more of the activity patterns of the first user, the transaction data
being assigned to the activity pattern based upon a similarity
between the GPS information and timestamp information for one
or more tracked location information entries of the
corresponding activity pattern and a location and timestamp
associated with one or more transactions in the transaction data;
[vii] comparing, by the mobile data aggregation module, the
one or more activity patterns of the first user with activity
patterns of each of one or more other users in proximity to the
first user to determine a match between the first user’s activity
patterns and the activity patterns of each of the other users,
wherein the match is based on a degree of similarity between the
first user’s activity patterns and the activity patterns of each of
the other users and is weighted to emphasize characteristics
selected by the first user, wherein the match includes other users
that have characteristics that are in conflict with characteristics
of the first user;
[viii] generating, by the mobile data aggregation module, a
graphical representation of the location of the other users in
relation to the location of the mobile device, a textual indication
of a characteristic common to the matched activity patterns, and
a textual indication of a characteristic that is in conflict with a
characteristic of the first user;
[ix] sending, by the mobile data aggregation module, a
message to the mobile device upon determining the match, the
message including the graphical representation of the location of
the other users in relation to the location of the mobile device,
the textual indication of a characteristic common to the matched
activity patterns, and the textual indication of the characteristic
that is in conflict with the characteristic of the first user; and
[x] presenting, by the mobile device, the graphical
representation and the textual indication on a display of the
mobile device.

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Principles of Law
A. SECTION 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 U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-step framework, described in Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012), and
Alice. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–77). In
accordance with that framework, we first determine what concept the claim
is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims
before us are drawn to the concept of intermediated settlement, i.e., the use
of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561
U.S. 593, 611 (2010) (“Claims 1 and 4 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 (Gottschalk v. 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, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
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rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, . . . and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citing Benson and
Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a
law of nature or mathematical formula to a known structure or process may
well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation 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.
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B. USPTO SECTION 101 GUIDANCE
In January 2019, the United States Patent and Trademark Office
(“USPTO”) published revised guidance on the application of 35 U.S.C.
§ 101. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Guidance”). Under the 2019
Guidance, we first look to whether the claim recites the following:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)).
2019 Guidance, 84 Fed. Reg. 52–55.
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.
2019 Guidance, 84 Fed. Reg. 56.

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Analysis
STEP 2A, PRONG 1:
Under step 2A, prong 1, of the 2019 Guidance, we first look to
whether the claim recites any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic practice, or
mental processes). 84 Fed. Reg. 52–55.
Limitation [iii] recites “tracking, by a mobile data aggregation module
of the server computing device, the location information entries over a
period of time.” Tracking information reasonably can be characterized as a
mental process that can be performed in the human mind—specifically
mental processes of observation or evaluation. The 2019 Guidance
expressly recognizes the mental processes of observation and evaluation as
constituting patent-ineligible abstract ideas. Id. at 52.
Limitation [iv] recites “grouping, by the mobile data aggregation
module, the tracked location information entries to determine an occurrence
of repeated activity of the first user, the grouping based on GPS information
and timestamp information common to two or more of the tracked location
information entries.” Grouping information to reach determinations
reasonably can be characterized as a mental evaluation, judgment, or
opinion. The 2019 Guidance also recognizes mental judgments and
opinions, as well as observations and evaluations, as constituting patent-
ineligible abstract ideas. Id.
Limitation [v] recites “generating, by the mobile data aggregation
module, one or more activity patterns of the first user, wherein the one or
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more activity patterns are based on the occurrence of repeated activity.”
Limitation [vi] reads as follows:
[vi] generating, by the mobile data aggregation module,
augmented activity patterns of the first user using transaction
data associated with the first user that corresponds to one or
more of the activity patterns of the first user, the transaction data
being assigned to the activity pattern based upon a similarity
between the GPS information and timestamp information for one
or more tracked location information entries of the
corresponding activity pattern and a location and timestamp
associated with one or more transactions in the transaction data.
Generating activity patterns reasonably can be characterized as a
mental evaluation, judgment, or opinion.
Limitation [vii] recites the following language:
[vii] comparing, by the mobile data aggregation module, the
one or more activity patterns of the first user with activity
patterns of each of one or more other users in proximity to the
first user to determine a match between the first user's activity
patterns and the activity patterns of each of the other users,
wherein the match is based on a degree of similarity between the
first user's activity patterns and the activity patterns of each of
the other users and is weighted to emphasize characteristics
selected by the first user, wherein the match includes other users
that have characteristics that are in conflict with characteristics
of the first user.
Comparing activity patterns reasonably can be characterized as a
mental evaluation or judgment.
Limitation [viii] recites the following language:
[viii] generating, by the mobile data aggregation module, a
graphical representation of the location of the other users in
relation to the location of the mobile device, a textual indication
of a characteristic common to the matched activity patterns, and
a textual indication of a characteristic that is in conflict with a
characteristic of the first user.
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Generating a representation of information reasonably can be
characterized as a mental process of expressing a judgment or an opinion.
For these reasons, each of limitations [iii]–[viii] reasonably can be
characterized as reciting patent-ineligible subject matter.
STEP 2A, PRONG 2:
Under step 2A, prong 2, of the 2019 Guidance, we next analyze
whether claim 1 recites additional elements that integrate the judicial
exception into a practical application. 84 Fed. Reg. 52–55.
Appellant argues that “[t]he claims are not directed to an idea or
algorithm of itself” (Appeal Br. 13) (emphasis omitted), to a mathematical
formula (id. at 14), or to a fundamental economic practice (id. at 15–17).
Because we noted in the preceding section of the analysis that claim 1 recites
various abstract ideas, we need not address Appellant’s arguments regarding
algorithms, mathematical formulas, or economic practices. We instead limit
our focus to Appellant’s arguments regarding abstract ideas.
Appellant’s argument that “[t]he claims are not directed to an idea or
algorithm of itself” is not persuasive. In support of this general proposition,
Appellant more specifically only argues why claim 1 is not directed to a law
of nature or an algorithm. Id. at 13. But Appellant does not present any
persuasive arguments for why claim 1 is not directed to an abstract idea. Id.
To be sure, claim 1 recites additional limitations that contain elements
which arguably are beyond the above-noted mental processes. More
specifically, limitation [i] of claim 1 recites automatically capturing location
information entries associated with a user, and limitation [ii] recites that this
captured location information is received by a mobile communication
module of a server computing device. But these two limitations do not add
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any meaningful limitations to the recited abstract ideas because these
limitations reasonably can be characterized as merely constituting
insignificant pre-solution activity:
An example of pre-solution activity is a step of gathering data for
use in a claimed process, e.g., a step of obtaining information
about credit card transactions, which is recited as part of a
claimed process of analyzing and manipulating the gathered
information by a series of steps in order to detect whether the
transactions were fraudulent.
MPEP § 2106.05(g).
Similarly, claim 1’s final two steps of (1) sending a message to the
mobile device (limitation [ix]) and (2) presenting, by the mobile device, the
graphical representation and the textual indication on a display
(limitation [x]) do not add any meaningful limitations to the recited abstract
ideas because they reasonably may be characterized as merely being directed
to the insignificant post-solution activities of transmitting and displaying
data. See, e.g., Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241–42 (Fed.
Cir. 2016) (holding that printing or downloading generated menus
constituted insignificant extra-solution activity).
Appellant argues in the next section of their Appeal Brief that even if
the claims are determined to be directed to an abstract idea, the claims
contain an inventive concept that renders them patent eligible. Appeal Br.
17. In support of this general argument, Appellant more specifically
contends (1) “[t]he claims at issue do not merely state an abstract idea and
add the words ‘apply it’” (id. at 18) (emphasis omitted) and (2) “[t]he claims
. . . contain ‘meaningful limitations beyond generally linking the use of an
abstract idea to a particular technological environment’” (id. at 19)
(emphasis omitted). The 2019 Guidance instructs us to consider these
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inquiries under step 2A, prong 2. 84 Fed. Reg. 52–55; see also MPEP §§
2106.05(e), (f).
In support of the argument that the claims add meaningful limitations
beyond generally linking the user of an abstract idea to a particular
technological environment, Appellant merely restates a substantial portion of
the language of claim 1. See id. at 19–20 (reproducing limitations [i], [iv],
and [vi]–[x]). This argument is unpersuasive because merely reciting the
claim language does not constitute an argument as to why the recited
language adds a meaningful limitation. See In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (explaining that the applicable rules “require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art”).
In support of their contention that “[t]he claims at issue do not merely
state an abstract idea and add the words ‘apply it,’” Appellant argues the
following:
Applicant’s independent claims each recite more than a generic
computer. In fact, the claims recite multiple hardware
components including a “mobile device” including an
“embedded GPS receiver” and a “display” and executing “an
application,” and “a mobile communication module” and “a
mobile data aggregation module” of a “server computing device”
which are not only specially-configured to perform particular
operations, but also to work together to achieve the operations
defined by the method.
Appeal Br. 18.
This argument likewise is unpersuasive because Appellant’s
assertions that the recited computer components are “specially-configured to
perform particular operations” and that the components “work together to
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achieve the operations defined by the method” are conclusory. Appellant
does not provide reasoning or evidence for why these components are
specially configured or work together in some manner beyond performing
conventional computer functions. Id.
More generally, then, Appellant does not persuade us that claim 1 is
directed to an improvement in the function of a computer or to any other
technology or technical field. MPEP § 2106.05(a). Nor has Appellant
persuasively demonstrated that claim 1 directed to a particular machine or
transformation. MPEP § 2106.05(b), (c). Nor has Appellant persuasively
demonstrated that claim 1 adds any other meaningful limitations. MPEP
§ 2106.05(e). Accordingly, Appellant has not persuaded us that claim 1
integrates the recited abstract ideas into a practical application within the
meaning of the 2019 Guidance. 84 Fed. Reg. 52–55.
STEP 2B:
Under step 2B of the 2019 Guidance, we next analyze whether
claim 1 adds any specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field. 84 Fed. Reg. 56;
MPEP § 2106.05(d).
We return to Appellant’s argument that
the claims recite multiple hardware components including a
“mobile device” including an “embedded GPS receiver” and a
“display” and executing “an application,” and “a mobile
communication module” and “a mobile data aggregation
module” of a “server computing device” which are not only
specially-configured to perform particular operations, but also to
work together to achieve the operations defined by the method.
Appeal Br. 18.
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The Examiner disagrees, finding that “[t]he structural components are
recited at a high level of generality and are recited as performing generic
computer functions routinely used in computer applications.” Ans. 4.
Appellant’s Specification supports the Examiner’s findings. For
example, Appellant states that “[m]obile devices . . . with global positioning
system (GPS) features are becoming more commonplace.” Spec. ¶ 2.
Furthermore, claim terms like “a mobile communication module,” “a mobile
data aggregation module,” and “server computing device” merely recite the
ultimate function that the components perform without reciting any specifics
of the devices that perform these functions. And Appellant’s Specification
indicates that the claimed components can take various forms. See, e.g.,
Spec. ¶ 81 (indicating that the display device can be a cathode ray tube or a
liquid crystal display); id. ¶ 82 (providing multiple examples of how the
client device and mobile computing device can be realized); id. ¶ 83
(providing examples of various types of web servers that can be used for the
server computing device); id. ¶ 84 (describing conventional examples of
hardware for implementing the client device, the data server, and the
transmitting device).
For these reasons, we determine that claim 1 does not recite additional
elements that amount to significantly more than the judicial exception within
the meaning of the 2019 Guidance. 84 Fed. Reg. 52–55; MPEP
§ 2106.05(d).
Accordingly, we sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter. We,
likewise, sustain the section 101 rejection of claims 2, 3, 5, 9, 10, 12–23,
and 25, which Appellant does not argue separately. Appeal Br. 11–12.
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THE § 103 REJECTIONS
The Rejections
Claims 1–3, 5, 9, 10, 17, and 21–25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over DeWolf (US 2002/0111172 A1;
published Aug. 15, 2002), Rosen (US 8,019,692 B2; issued Sept. 13, 2011),
and Altman (US 8,099,109 B2; issued Jan. 17, 2012). Final Act. 9–17.
Claims 12–16 and 18–20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over DeWolf, Rosen, and Altman, in various
combinations with other references. Final Act. 18–22. Appellant does not
present separate arguments for claims 12–16 and 18–20. Thus, the
rejections of these claims turn on our decision as to claim 1. Except for our
ultimate decision, we do not address the § 103 rejections of claims 12–16
and 18–20 further herein.
Contentions and Analysis
In arguing against the obviousness rejections, Appellant first sets forth
large passages of independent claims 1, 23, and 25. See Appeal Br. 21–22
(reproducing limitations [vi]–[ix] of claim 1); id. at 22–23 (reproducing
similar limitations of independent claims 23 and 25). Appellant next
summarizes what the cited references purportedly teach or suggest. Id. at
23–24. Appellant then contends that “the combination of DeWolf, Rosen,
and Altman simply fails to teach, suggest, or render obvious at least [steps
[vi]–[ix] of claim 1] . . . .” Id. at 24–25.
That is, Appellant again merely recites the entire language of four
lengthy claim steps. But Appellant does not provide any substantive
arguments for what particular steps, elements, or portions of the claim
limitations the cited art allegedly fails to teach or suggest. Furthermore,
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Appellant presents no arguments in the Reply Brief regarding the
obviousness rejections. Reply Br. 1–6.
As such, Appellant’s contention that the cited art fails to teach or
suggest the claims does not constitute an argument on the merits, because
“[a] statement [that] . . . 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); see also Lovin, 652 F.3d at 1357 (explaining that the
applicable rules “require more substantive arguments in an appeal brief than
a mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art”).
For these reasons, we summarily sustain the Examiner’s obviousness
rejection of claims 1–3, 5, 9, 10, 17, 21–23, and 25. We, likewise sustain the
obviousness rejections of claims 12–16 and 18–20, which Appellant does
not argue separately. Appeal Br. 24–25. 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
In summary:
Claims
Rejected
Basis  Affirmed Reversed
1–3, 5, 9, 10, 12–
23, 25
§ 103
DeWolf, Rosen,
Altman 
1–3, 5, 9, 10,
12–23, 25

1–3, 5, 9, 10, 12–
23, 25
§ 101  1–3, 5, 9, 10,
12–23, 25

Overall Outcome 1–3, 5, 9, 10,
12–23, 25

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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)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED