Marcia Keld

Patent Trials and Appeals Board

Feb 24, 2020

13955019 - (D) (P.T.A.B. Feb. 24, 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.
13/955,019 07/31/2013 Marcia Keld P56157 9978
157693 7590 02/24/2020
JPMorgan Chase / Greenblum & Bernstein
1950 Roland Clarke Place
Reston, VA 20191
EXAMINER
CAMPEN, KELLY SCAGGS
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
02/24/2020 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):
gbpatent@gbpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARCIA KELD
____________

Appeal 2018-003364
Application 13/955,0190F1
Technology Center 3600
____________

Before JAMES R. HUGHES, CATHERINE SHIANG, and
NORMAN H. BEAMER, Administrative Patent Judges.

BEAMER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 33–52. We have jurisdiction over the pending
rejected claims 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 JPMorgan Chase Bank, N.A. as the real
party in interest. (Appeal Br. 2.)
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THE INVENTION
Appellant’s disclosed and claimed invention is directed to enhancing
payment flexibility for customers. (Abstract.)
Independent claim 33, reproduced below, is illustrative of the subject
matter on appeal:
33. A flexible payment processing computing system for
determining and utilizing a flex accrual allowing customers to
make payments on a flexible schedule, the system comprising:
a payment information interface for receiving
information over a network from a payment processing system
upon receipt of a customer credit payment pertaining to a
customer payment amount, a customer payment date, and a
corresponding due date;
an interactive display device connected with a customer
computing device communicating over the Internet with a
flexible payment system, the interactive display device for
displaying payment information to customers;
a computer storage medium storing instructions and
customer identity information; and
at least one computer processor utilized by the flexible
payment system, the computer processor accessing the stored
instructions to perform steps including,
determining eligibility for flex accrual, the
determination based on the customer identity, the
payment date, and the corresponding due date;
calculating the flex accrual upon receipt of the
payment from the customer using a flex accrual
calculator when the customer is eligible for flexible
payment status, the flex accrual based on the payment
amount, the payment date, and the payment due date,
wherein the flex accrual occurs only when the payment
date is prior to the payment due date;
providing a planning interface and displaying the
planning interface on the interactive display device
connected with the customer computing device, the
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planning interface for utilizing the accumulated flex
accrual allowing the customer to schedule late payments
in advance based the accumulated flex accrual, the
planning interface including a section allowing customer
input of an amount to be paid late, the planning interface
displaying in response to the input amount, a calculated
number of allowed days late, wherein the planning
interface is transmitted to a mobile device via text
message;
providing flex status communications utilizing a
flex communication status engine, the flex status
communication engine including a mobile application
and providing communications pertaining to flex accrual
and flex redemption; and
facilitating transfer of the late payments entered
into the planning interface on the interactive display
device and transmitted over the Internet to the flexible
payment system when information related to the late
payments is transmitted through the payment interface by
a date corresponding to the calculated number of allowed
days late without penalty.
REJECTION
The Examiner rejected claims 33–52 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. (Final Act. 2–14.)
ISSUE ON APPEAL
Appellant’s arguments in the Appeal and Reply Briefs present the
following issue:1F2
Whether the Examiner erred in concluding claims 33–52 are directed
to non-statutory subject matter. (Appeal Br. 14–29.)

2 Rather than reiterate the arguments of Appellant and the positions of the
Examiner, we refer to the Appeal Brief (filed Aug. 29, 2017; suppl. Sept. 29,
2017); the Reply Brief (filed Feb. 12, 2018); the Final Office Action (mailed
Apr. 5, 2017); and the Examiner’s Answer (mailed Dec. 27, 2017) for the
respective details.
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ANALYSIS
The Examiner concludes claims 33–52 are patent-ineligible under 35
U.S.C. § 101 because the claims are directed to the abstract idea of “creating
a contract for a flexible payment system,” and in particular, the abstract idea
of:
receiving information . . . upon receipt of a customer credit
payment pertaining to a customer payment amount, a customer
payment date, and a corresponding due date; storing
instructions and customer identity information . . . ; determining
. . . eligibility for flex accrual, the determination based on the
customer identity, the payment date, and the corresponding due
date; calculating . . . the flex accrual upon receipt of the
payment from the customer using a flex accrual calculator when
the customer is eligible for flexible payment status, the flex
accrual based on the payment amount, the payment date, and
the payment due date, wherein the flex accrual occurs only
when the payment date is prior to the payment due date; . . .
displaying the planning . . . , the planning . . . allowing the
customer to schedule late payments in advance based the
accumulated flex accrual, the planning . . . including a section
allowing customer input of an amount to be paid late and
displaying in response to the input amount, a calculated number
of allowed days late . . . ; . . . providing communications
pertaining to flex accrual and flex redemption; and facilitating
. . . transfer of the late payments without penalty. . . .
(Final Act. 2, 4.) The Examiner further concludes that there is nothing in the
claims that is significantly more than this abstract idea because, “additional
elements or combination of elements in the claims other than the abstract
idea per se amount to no more than mere instructions to implement the idea
on a computer,” and that “the additional elements are simply a generic
recitation of a computer and a computer network performing their generic
computer functions.” (Final Act. 2, 6.)
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Appellant argues the Examiner has “oversimplif[ied] the claimed
subject matter,” “ignored the clear benefits of the invention, as explained in
the Specification,” and failed to analyze the claims as a whole, citing Enfish,
LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). (Appeal Br. 12–
14.) Appellant further argues the claims “pose no risk of preemption for the
field of ‘creating a payment contract,’ or any other field of human
endeavor,” and that “[t]he claimed invention provides a comprehensive
system and method that address a unique algorithm to solve a problem in
conventional industry practice. . . .” (Id. at 16–17.) Relying on Diamond v.
Diehr, 450 U.S. 175, 179 n.5, 192–93 (1981) and DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), Appellant asserts
the claimed subject matter improved a technological process and is rooted in
computer technology, and is thus patent eligible. (Id. at 19–21.)
In addition, Appellant argues the claims have not been rejected under
35 U.S.C. §§ 102 or 103, and therefore contain multiple steps that are not
routine or conventional in the field, provide meaningful limitations beyond
generally linking the use of an allegedly abstract idea to a particular
technological environment, and are “implemented by a particular machine in
the form of connected computing devices operating based on a particular
programming.” (Appeal Br. 22–23.)
As set forth below, we are not persuaded the Examiner erred. An
invention is patent-eligible if it claims a “new and useful process, machine,
manufacture, or composition of matter.” 35 U.S. C. § 101. Here,
independent claim 33 and its dependent claims relate to a system, and
independent claim 43 and its dependent claims relate to a method — each a
machine or process. However, the Supreme Court has long held that “[l]aws
of nature, natural phenomena, and abstract ideas are not patentable.” Alice
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Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Assoc.
for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 598–99
(2013)). The “abstract ideas” category embodies the longstanding rule that
an idea, by itself, is not patentable. Alice, 573 U.S. at 216–217.
In Alice, the Supreme Court sets forth an analytical “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 217. The first step in the analysis is to “determine whether
the claims at issue are directed to one of those patent-ineligible concepts,”
such as an abstract idea. Id. 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 v.
Kappos, 561 U.S. 593, 611 (2010); mathematical concepts (Parker v. Flook,
437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson,
409 U.S. 63, 69 (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 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))).
If the claims are directed to a patent-ineligible concept, the second
step in the Alice/Mayo analysis is to consider the elements of the claims
“individually and ‘as an ordered combination”’ to determine whether there
are additional elements that “‘transform the nature of the claim’ into a
patent-eligible application.” 573 U.S. at 217 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). In other
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words, the second step is to “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.’” 573 U.S. at 217–218 (quoting Mayo, 566 U.S.
at 72–73.) 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. 573 U.S. at 221. A transformation into a
patent-eligible application requires more than simply stating the abstract idea
while adding the words “apply it.” Id.
Further to the Alice/Mayo analytical framework, after the mailing of
the Answer and the filing of the Briefs in this case, the USPTO published
revised guidance on the application of Section 101. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(hereinafter “Revised Guidance”). Under the Revised Guidance, we first
look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity 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)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then look to whether
the claim:
(3) adds a specific limitation beyond the judicial exception that
are not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Revised Guidance.
In evaluating the claims at issue, we consider claim 33 as
representative, consistent with how Appellant and the Examiner analyze the
claims. See 37 C.F.R. § 41.37(c)(1)(iv)(2016). As stated in the preamble,
claim 33 is focused on “[a] flexible payment processing computing system
for determining and utilizing a flex accrual allowing customers to make
payments on a flexible schedule.” Omitting the portions of the claim
invoking use of generic technology (which are discussed separately below),
the remaining limitations of claim 33 elaborate on facilitating a transaction
to arrange a flexible payment schedule: (i) “receiving information . . . upon
receipt of a customer credit payment pertaining to a customer payment
amount, a customer payment date, and a corresponding due date”; (ii)
“displaying [e.g., presenting] payment information to customers”; (iii)
“storing instructions and customer identity information”; (iv) “determining
eligibility for flex accrual, the determination based on the customer identity,
the payment date, and the corresponding due date”; (v) “calculating the flex
accrual upon receipt of the payment from the customer . . . when the
customer is eligible for flexible payment status, the flex accrual based on the
payment amount, the payment date, and the payment due date, wherein the
flex accrual occurs only when the payment date is prior to the payment due
date”; (vi) “. . . . utilizing the accumulated flex accrual allowing the
customer to schedule late payments in advance based the accumulated flex
accrual, . . . including . . . allowing customer input of an amount to be paid
late, . . . displaying in response to the input amount, a calculated number of
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allowed days late, . . . .”; (vii) “providing flex status communications . . . and
providing communications pertaining to flex accrual and flex redemption”;
and (viii) “facilitating transfer of the late payments . . . when information
related to the late payments is [provided] by a date corresponding to the
calculated number of allowed days late without penalty.” (Appeal Br. A1–
A3.)
Apart from the use of generic technology (discussed further below),
each of these limitations describes activities that would normally be
performed by a creditor and a customer in facilitating a flexible payment
arrangement: limitations (i)–(iii) are directed to exchanging information
related to the arrangement, and storing it; limitations (iv)–(v) involve
determining the arrangement; and limitations (vi)–(viii) involve effecting the
arrangement.
As stated in the Revised Guidance, commercial or legal interactions
(including agreements in the form of contracts) are examples of organizing
human activity, and in particular a fundamental economic practice. (Revised
Guidance, 84 Fed. Reg. at 52). The interaction between a customer and their
creditor to facilitate flexible payment arrangements falls under this
description. Analogous authority includes, e.g., Credit Acceptance v.
Westlake Services, 859 F.3d 1044, 1054 (Fed. Cir. 2015) (processing an
application for financing a purchase); Inventor Holdings, LLC v. Bed Bath &
Beyond, Inc., 876 F.3d 1372, 1378–79 (Fed. Cir. 2017) (local processing of
payments for remotely purchased goods); buySAFE, Inc. v. Google, Inc., 765
F.3d. 1350, 1355 (Fed. Cir. 2014) (creating a contractual relationship — a
“transaction performance guaranty”); CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011) (verifying the validity of a
credit card transaction.)
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Appellant cites Trading Technologies International Inc., v. CQG, Inc.,
675 Fed.Appx. 1001 (Fed. Cir. 2017), involving electronic trading of stocks,
bonds, futures, options, and similar products. (Appeal Br. 21.) In that case,
the Federal Circuit held the claims statutory because the patents “solve
problems of prior graphical user interface devices . . . in the context of
computerized trading[] relating to speed, accuracy, and usability.” Id.
at 1004. However, here, no such technological improvement is presented.
In sum, the subject matter of claim 33 is a fundamental economic
practice, which is one of the certain methods of organizing human activity
identified in the Revised Guidance. Therefore, we agree with the Examiner
that the subject matter of claim 33 recites an abstract idea, as do the
remaining claims.
Further pursuant to the Revised Guidance, we consider whether there
are additional elements set forth in claim 33 that integrate the judicial
exception into a practical application. Revised Guidance, 84 Fed. Reg. at
54–55. As indicated above, the abstract idea of claim 33 is carried out using
various generic technological components to automate the preparation and
provision of flexible payment arrangements for a customer: a processing
computing system that includes an interface for receiving information over a
network, an interactive display device, a computer storage medium, a “flex
accrual” calculator (which is simply a properly programmed computer or
processor, Spec. ¶ 42), and a mobile device. (Appeal Br. A1–A3.)
None of these additional elements, whether taken alone or in the
context of the claims as a whole, integrate the judicial exception into a
practical application. In particular, these limitations may improve the
fundamental economic practice of interactions between a customer and their
creditor to facilitate flexible payment options, but are not an improvement in
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the functioning of a computer, or an improvement to other technology or
technical field. Revised Guidance, 84 Fed. Reg. at 55.
Appellant’s reliance on McRO, Inc. v. Bandai Namco Games
America, Inc., 837 F.3d 1299 (Fed. Cir. 2016) is not persuasive. (Reply Br.
5–6.) There, the claimed process used a combined order of specific rules
that rendered information in a specific format that was applied to create a
sequence of synchronized, animated characters. McRO, 837 F.3d at 1315.
Notably, the recited process automatically animated characters using
particular information and techniques — an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
Unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses generic computing components to display
information. This generic computer implementation does not improve a
display mechanism as was the case in McRO. See SAP Am. v. InvestPic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishing McRO).
Nor do we agree with Appellant that this a case involving eligible
subject matter as in DDR Holdings, LLC v. Hotels.Com, L.P., 773 F.3d 1245
(Fed. Cir. 2014). (Appeal Br. 20.) There, instead of a computer network
operating in its normal, expected manner by sending a website visitor to a
third-party website apparently connected with a clicked advertisement, the
claimed invention in DDR generated and directed the visitor to a hybrid page
that presented: (1) product information from the third party, and (2) the
visual “look and feel” elements from the host website. DDR, 773 F.3d at
1258–59. Given this particular Internet-based solution, the court held that
the claimed invention did not merely use the Internet to perform a business
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practice known from the pre-Internet world, but rather was necessarily
rooted in computer technology to overcome a problem specifically arising in
computer networks. Id. at 1257.
That is not the case here. As noted previously, Appellants’ claimed
invention relates to facilitating flexible payment arrangements. (Final
Act. 2.) Appellant uses generic computer-based components to achieve that
end. Here, the claimed invention is not necessarily rooted in computer
technology in the sense contemplated by DDR, in which the claimed
invention solved a challenge particular to the Internet. Although Appellant’s
invention uses various computer-based components as noted above, the
claimed invention does not solve a challenge particular to the computing
components used to implement this functionality.
Even if the use of computer technology facilitates providing flexible
payment options, “merely adding computer functionality to increase the
speed or efficiency of the process does not confer patent eligibility on an
otherwise abstract idea.” Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015); see also Credit Acceptance
Corp. v. Westlake Services, 859 F.3d 1044, 1057 (Fed. Cir. 1057).
Otherwise, Appellant provides only conclusory, unpersuasive assertions that
the subject matter provides any improvements to technology. (Appeal Br.
19–21.) Appellant relies on the fact that the claims have not been rejected
under 35 U.S.C. §§ 102 or 103, but an “abstract idea itself cannot supply the
inventive concept, ‘no matter how groundbreaking the advance.’” Trading
Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed. Cir. 2019) (quoting
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1170 (Fed. Cir. 2018)).
Nor does the subject matter of claim 1 contain additional elements
that implement the judicial exception with a “particular machine,” because
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the claims do not specify any particular technology. See MPEP
§ 2106.05(b). Further, the method does not transform matter; at best it
transforms information. See MPEP § 2106.05(c). Nor does claim 1 have
any other meaningful limitations (MPEP § 2106.05(e)), or any of the other
considerations set forth in the Revised Guidance regarding a determination
of whether additional elements integrate the judicial exception into a
practical application. See Revised Guidance, 84 Fed. Reg. at 55. Rather, the
claim “merely includes instructions to implement an abstract idea on a
computer, or merely uses a computer as a tool to perform an abstract idea.”
Id.
Accordingly, we conclude that the subject matter of claim 1 (and the
remaining pending claims), considered as a whole, is directed to an abstract
idea, and any additional elements recited therein do not integrate the abstract
idea into a practical application.
Turning to the second step of the Alice inquiry, we do not agree with
Appellant that additional elements of claim 33 add “significantly more” to
the basic abstract idea encompassed by the claim sufficient to transform the
claimed abstract idea into a patent-eligible application. 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.”). Appellant cites
the fact that “[t]he system, through its interactive planning interface
delivered via text message to a mobile device and flex status communication
engine including a mobile application promotes flexibility for eligible
customers by adjusting payment dates to allow late payments without
penalty when certain predetermined conditions are met.” (Appeal Br. 23.)
However, other than using generic technology, these improvements are
elaborations on the basic abstract idea itself. “It is clear from Mayo that the
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‘inventive concept’ cannot be the abstract idea itself.” Aatrix Software, Inc.
v. Green Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018).
The record supports the Examiner’s finding that the additional
elements — a network communication interface, a computer memory, at
least one computer processor, and a display device with interactive pop-up
windows and the ability to link to web pages — are well-understood,
routine, and conventional, specified at a high level of generality. (Ans. 8,
citing Spec. ¶ 35.) See Revised Guidance, 84 Fed. Reg. at 56.
Appellant contends the Examiner erred in rejecting the claims under
35 U.S.C. § 101 because the claims “pose no risk of preemption for the field
of ‘creating a payment contract.’” Appeal Br. 16. However, although
preemption is characterized as a driving concern for patent eligibility,
preemption itself is not the test for patent eligibility.
Where a patent’s claims are deemed only to disclose patent
ineligible subject matter under the Mayo framework, as they are
in this case, preemption concerns are fully addressed and made
moot. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015). While preemption may signal
patent ineligible subject matter, the absence of complete
preemption does not demonstrate patent eligibility.
Id.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 101 rejection of
claim 33. Appellant provides no arguments that would differentiate the
remaining claims. Thus, the foregoing analysis of claim 33 is exemplary of
that for claims 34–52. See 37 C.F.R. § 41.37(c)(1)(iv)(2016). Therefore, we
also sustain the Examiner’s 35 U.S.C. § 101 rejection of those claims.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
33–52 101 Eligibility 33–52

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)(1)(iv).

AFFIRMED