Leonid FeyderDownload PDFPatent Trials and Appeals BoardJul 19, 201913907451 - (D) (P.T.A.B. Jul. 19, 2019) 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. 13/907,451 05/31/2013 Leonid FEYDER 1548.03NPR 6563 8685 7590 07/19/2019 DERGOSITS & NOAH LLP One Embarcadero Center Suite 350 SAN FRANCISCO, CA 94111 EXAMINER VETTER, DANIEL ART UNIT PAPER NUMBER 3628 MAIL DATE DELIVERY MODE 07/19/2019 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LEONID FEYDER ____________ Appeal 2017-009878 Application 13/907,4511 Technology Center 3600 ____________ Before BRADLEY B. BAYAT, TARA L. HUTCHINGS, and ROBERT J. SILVERMAN, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1–16. An oral hearing was held in this matter on July 12, 2019. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 The Appellant identifies Versonix Corporation as the real party in interest. Appeal Br. 1. Appeal 2017-009878 Application 13/907,451 2 ILLUSTRATIVE CLAIM 1. A method for pricing reservations for an event in a computer-based reservation system, comprising: selecting a projected booking curve for an event, the projected booking curve illustrating an expected booking performance for reservations for the event during a sales period as a percentage of the total inventory of reservations for the event versus a number of days until the event; defining a plurality of time-dependent deviations relative to the projected booking curve, including at least one plus deviation and at least one minus deviation, the plus deviation representing actual booking performance that is at least a first number of days ahead of the projected booking curve at a start of the sales period and at least a second number of days ahead of the projected booking curve at an end of the sales period, the minus deviation representing actual booking performance that is at least a third number of days behind the projected booking curve at the start of the sales period and at least a fourth number of days behind the projected booking curve at the end of the sales period; and assigning a price to a reservation request received on a particular day, the price being equal to a base price if the actual booking performance on the particular day does not exceed any of the deviations, the price being equal to the base price increased by a plus adjustment if actual booking performance on the particular day exceeds the plus deviation, and the price being equal to the base price decreased by a minus adjustment if actual booking performance on the particular day exceeds the minus deviation. REJECTION Claims 1–16 are rejected under 35 U.S.C. § 101 as ineligible subject matter. Appeal 2017-009878 Application 13/907,451 3 FINDINGS OF FACT The findings of fact relied upon, which are supported by a preponderance of the evidence, appear in the following Analysis. ANALYSIS 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) (internal citation omitted). Accordingly, evaluating ineligible subject matter, under these judicial exclusions, involves 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. (internal quotation marks and citation 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 Appeal 2017-009878 Application 13/907,451 4 combination”) amount to “significantly more” than the identified judicially excepted subject matter itself. Id. at 217–18. The USPTO recently published revised guidance on the application of § 101, in accordance with judicial precedent. 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 MANUAL OF PATENT EXAMINING PROCEDURE § 2106.05(a)–(c) and (e)–(h) (“MPEP”) 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 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 Appeal 2017-009878 Application 13/907,451 5 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. The Appellant argues claims 1–16 as a group. Appeal Br. 5–13. Claim 1 is selected for analysis herein. See 37 C.F.R. § 41.37(c)(1)(iv). In the present Appeal, there is no dispute as to whether claim 1 satisfies Step 1 of the 2019 Revised Guidance — i.e., claim 1 is drawn to subject matter within the scope of § 101. In relation to the analysis corresponding to Step 2A, Prong One, of the 2019 Revised Guidance, the Examiner states: The claims are directed to the abstract idea of assigning prices for reservation requests based on factors including projected booking curves (as shown in all of the recited functions of claims 1–16), which is a mathematical relationship/formula involving basic economic practices (e.g., pricing products based on supply/demand). It is similar to other abstract ideas held to be non-statutory by the courts (see Versata Development Group, Inc. v. SAP America, Inc., [793 F.3d 1306 (Fed. Cir. 2015)] — structuring price adjustments for products; OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015)-automated pricing in e-commerce). Non-Final Act. 3. The Examiner’s identified concept of “assigning prices for reservation requests based on factors including projected booking curves” (id.) corresponds to at least the following limitations of claim 1: “selecting a projected booking curve for an event”; “defining a plurality of time-dependent deviations relative to the projected booking curve, including at least one plus deviation and at least one minus deviation”; and “assigning a price to a reservation request received on a particular day.” Appeal 2017-009878 Application 13/907,451 6 These limitations illustrate a “commercial” activity, in the form of “advertising, marketing or sales activities or behaviors” that falls within the of “[c]ertain methods of organizing human activity” judicially excepted “abstract ideas” described in the 2019 Revised Guidance, 84 Fed. Reg. at 52. Further, these limitations of claim 1 correspond to concepts identified as abstract ideas in the court cases that the Examiner cites. See Non-Final Act. 3. For example, the Federal Circuit, in OIP, determined that a claim (calling for “selecting a price at which to sell [a] product based upon” an “estimated outcome” formed by statistical test-market data of “potential customers[’] response[s] to . . . offers . . . made at [a] plurality of prices”) recited “the concept of offer-based price optimization” that is “is similar to other ‘fundamental economic concepts’ found to be abstract ideas by the Supreme Court and this court.” OIP Techs., 788 F.3d at 1361–62 (citations omitted). See also Versata, 793 F.3d at 1333 (determining that the claims at issue “are directed to the abstract idea of determining a price, using organizational and product group hierarchies, in the same way that the claims in Alice were directed to the abstract idea of intermediated settlement, and the claims in Bilski were directed to the abstract idea of risk hedging.”) The Appellant does not dispute the Examiner’s determination that claim 1 recites an abstract idea. Accordingly, we are not persuaded of any error in the analysis corresponding to Step 2A, Prong One. With regard to Step 2A, Prong Two, of the 2019 Revised Guidance, 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 Appeal 2017-009878 Application 13/907,451 7 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. “[W]hether an additional element or combination of elements integrate the exception into a practical application should be evaluated on the claim as a whole.” Id. at 55 n.24. In relation to Step 2A, Prong Two, the Appellant argues that the claimed subject matter “provide[s] a technical improvement over prior art methods of pricing tickets since the claimed methods provide advantages and efficiencies not possible with prior methods for pricing tickets, and thus represents a software-based invention that improves the performance of the computer system itself.” Appeal Br. 10. “Specifically,” according to the Appellant, claim 1 requires “defining a plurality of time-dependent deviations relative to the projected booking curve, including at least one plus deviation and at least one minus deviation” and “assigning a price to a reservation request received on a particular day” that takes into account whether current booking performance deviates from projected booking performance in a pre-defined way, that is, relative to the time-dependent deviations. These claim elements define a technical improvement that dynamically assigns a price at any given time. Id. However, the Appellant does not rely upon any element that may properly be regarded as an “additional element[ ] recited in the claim beyond the judicial exception(s).” 2019 Revised Guidance, 84 Fed. Reg. at 54–55. Appeal 2017-009878 Application 13/907,451 8 Rather, the Appellant points to claim limitations that describe the identified abstract idea recited in claim 1, as discussed above. Accordingly, we are not persuaded of error in the Examiner’s analysis that corresponds to Step 2A, Prong Two, of the 2019 Revised Guidance. As to Step 2B of the 2019 Revised Guidance, 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 are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present.” Id. at 56. The Appellant contends that “the present claims include the step of ‘defining a plurality of time-dependent deviations relative to the projected booking curve’ which describes thresholds above and below the projected booking curve for the possible adjustment of prices.” Appeal Br. 11. According to the Appellant, “[t]his step goes beyond well-understood, routine, conventional data-gathering and processing activities.” Id. The Appellant’s argument is not persuasive, because it does not rely upon any additional elements, as providing significantly more than the identified abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 54–55. Instead, the Appellant refers to a claim limitation that, as discussed above (in regard to Step 2A, Prong One), is part of the abstract idea that the Examiner identifies. See Answer 3 (“[T]his element further describes an aspect of the abstract idea.”) “It has been clear since Alice that a claimed invention’s use of the ineligible concept to which it is directed cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible Appeal 2017-009878 Application 13/907,451 9 concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018). Therefore, we are not persuaded of any error, in regard to the Examiner’s analysis corresponding to Step 2B of the 2019 Revised Guidance. In view of the foregoing, we sustain the rejection of claims 1–16 under 35 U.S.C. § 101. DECISION We AFFIRM the Examiner’s decision rejecting claims 1–16 under 35 U.S.C. § 101. 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)(iv). AFFIRMED Copy with citationCopy as parenthetical citation