Max Yankelevich et al.

Patent Trials and Appeals Board

Oct 8, 2019

13360940 - (D) (P.T.A.B. Oct. 8, 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.
13/360,940 01/30/2012 Max YANKELEVICH 083862.0101 5897
161098 7590 10/08/2019
Baker Botts L.L.P.
1001 Page Mill Road
Building One, Suite 200
Palo Alto, CA 94304-1007
EXAMINER
KONERU, SUJAY
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
10/08/2019 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):
Cal-PTOMail@bakerbotts.com
hogene.choi@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MAX YANKELEVICH and ANDRII VOLKOV1
__________

Appeal 2018-009082
Application 13/360,940
Technology Center 3600
__________

Before DONALD E. ADAMS, ERIC B. GRIMES, and DAVID COTTA,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134(a) involving claims related to
managing crowdsourcing, which have been rejected as directed to patent-
ineligible subject matter. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies the Real Party in Interest as Crowd Computing
Systems, Inc. Appeal Br. 3. We use the word Appellant to refer to
“applicant” as defined in 37 C.F.R. § 1.42(a).
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STATEMENT OF THE CASE
Claims 1–14, 16, and 21–53 are on appeal. Claim 1 is representative
and reads as follows:
1. A method comprising:
receiving, by a processor of an information processing system and
from a computing device corresponding to at least one customer associated
with a task, an information set associated with the task, wherein the
information set comprises at least:
a description of the task;
a reward to be provided for completion of the task; and
at least one adjudication rule for accepting a task result received
from at least one worker system participating in the task;
transmitting, from the information processing system, a first
notification regarding the task and availability of the reward for
transmission, by a network, to a set of one or more worker systems;
until the at least one adjudication rule is satisfied, performing:
receiving, by the information processing system and by the
network, at least one task result associated with the task from at least one of
the worker systems in the set; and
comparing, by the processor of the information processing
system, the task result against the adjudication rule to determine whether the
task result conforms to an acceptable degree of accuracy, and if the
adjudication rule is not satisfied then:
increasing a size of the set of the one or [sic] worker
systems and
transmitting, by the network, a second notification
regarding the task and availability of the reward to the increased set of
worker systems; and
displaying task result information based on the task result received
from the at least one worker system participating in the task.

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DISCUSSION
The Examiner has rejected claims 1–14, 16, and 21–53 under 35
U.S.C. § 101 on the basis that they are directed to an abstract idea “because
the claims are strongly related to organizing human activities because the
tasks are done by users and thus are equivalent to human activities and this
type of crowdsourcing is a type of management or organization to complete
those tasks.” Final Action2 4. The Examiner reasons that the instant claims
are similar to those found patent-ineligible in buySAFE, Inc. v. Google, Inc.,
765 F.3d 1350 (Fed. Cir. 2014). Id.
The Examiner also finds that
[t]he claims do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the additional elements individually or in
combination . . . do not recite anything that is beyond
conventional and routine use of computers and the additional
limitations are for mere data gathering, data transformation and
extra solution activity.
Id. at 4–5.
Appellant argues that “[w]ithout any explanation to support the
conclusion, the Examiner has failed to present a prima facie case of
unpatentability. . . . The Appellant respectfully submits that the Examiner
failed to clarify and identify the abstract idea as it is recited in the claim.”
Appeal Br. 6. Appellant also argues that the claimed method “overcomes a
problem specifically created by networked computers without task
management or oversight” and is rooted in computer technology to
overcome a problem specifically arising in the realm of computers. Id. at 7.

2 Final Action mailed June 19, 2017.
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We agree with the Examiner that the Appellant’s claims are not
eligible for patenting. 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 Supreme Court has concluded that “[l]aws of nature,
natural phenomena, and abstract ideas” are not patentable under 35 U.S.C.
§ 101. See, e.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To determine if a claim falls into an excluded category, we apply a
two-step framework, described in Mayo and Alice. Id. at 217–18 (citing
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77
(2012)). We first determine what 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.”).
Patent-ineligible abstract ideas 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, 69 (1972)). In contrast, patent-eligible inventions include
physical and chemical processes, such as “molding rubber products”
(Diamond v. Diehr, 450 U.S. 175, 192 (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 (1854))); and
manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94
U.S. 780, 785 (1876))).
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In Diehr, the claimed method employed a mathematical formula, but
the Supreme 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 176; see also id. at 192 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). The
Supreme Court noted, however, 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, and “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 (quotation marks 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.
(quoting Mayo, 566 U.S. at 77 (alterations in original)). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
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Reg. 50 (January 7, 2019) (“Revised Guidance”). Under that guidance, we
first determine 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)).
See 84 Fed. Reg. at 54–55. Only if a claim (1) recites a judicial exception and
(2) does not integrate that exception into a practical application, do we then
determine whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
a “well-understood, routine, conventional activity” 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.
See 84 Fed. Reg. at 56.
Revised Guidance Step 2(A), Prong 1
Following the Revised Guidance, we first consider whether the claims
recite a judicial exception. Claim 1 recites a method of receiving task
information (description, reward, acceptance criteria); transmitting the task
and reward to a set of workers; receiving results; comparing the results to the
acceptance criteria; iteratively increasing the size of the set of workers
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notified of the task, until acceptable results are received; then displaying the
acceptable result.
We agree with the Examiner that the concept recited in claim 1 is
similar to the methods of organizing human activities— specifically,
commercial or legal interactions—that have been found to be abstract ideas
by the courts. Final Action 4 (citing buySAFE, Inc. v. Google, Inc., 765 F.3d
1350 (Fed. Cir. 2014)). Claim 1 in buySAFE was directed to
a method in which (1) a computer operated by the provider of a
safe transaction service receives a request for a performance
guarantee for an “online commercial transaction”; (2) the
computer processes the request by underwriting the requesting
party in order to provide the transaction guarantee service; and
(3) the computer offers, via a “computer network,” a transaction
guaranty that binds to the transaction upon the closing of the
transaction.
buySAFE, 765 F.3d at 1351.
The court concluded that, as to the question of what subject matter
falls within the “abstract ideas” category, “[t]he relevant Supreme Court
cases are those which find an abstract idea in certain arrangements involving
contractual relations, which are intangible entities.” Id. at 1353 (citing Bilski
v. Kappos, 561 U.S. 593 (2010) and Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
573 U.S. 208 (2014)). The buySAFE court held that the claims at issue were
“squarely about creating a contractual relationship—a ‘transaction
performance guaranty’—that is beyond question of ancient lineage. . . . The
claims thus are directed to an abstract idea.” Id. at 1355.
Like claim 1 in buySAFE, claim 1 on appeal recites a contractual or
business relationship; specifically, providing a group of workers with a
description of a task and corresponding reward; accepting responses and
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determining whether they meet certain criteria; and iteratively increasing the
number of workers notified of the task and reward until a satisfactory
response is received.
The Specification makes clear that crowdsourcing was an established
practice prior to Appellant’s invention: “Crowdsourcing has recently gained
increased popularity within various industries. Crowdsourcing refers to the
act of delegating (sourcing) tasks by an entity (crowdsourcer) to a group of
people or community (crowd) through an open call.” Spec. ¶ 2. The
Specification also confirms that crowdsourcing is a business or contractual
relationship: “Individuals (workers) within the crowd are usually rewarded
for completing a task.” Id.
Thus, we agree with the Examiner that claim 1 recites an abstract idea
because the recited crowdsourcing process is among the “methods of
organizing human activity”—specifically, commercial interactions such as
contracts and business relations—that have been recognized as abstract
ideas. See 84 Fed. Reg. at 52.
Revised Guidance Step 2(A), Prong 2
Although claim 1 recites an abstract idea, it would still be patent-
eligible if “the claim as a whole integrates the recited judicial exception into
a practical application of the exception”; i.e., if the claim “appl[ies], rel[ies]
on, or use[s] the judicial exception in a manner that imposes a meaningful
limit on the judicial exception.” 84 Fed. Reg. at 54. This analysis includes
“[i]dentifying whether there are 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
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exception into a practical application.” Id. at 54–55. One of the “examples in
which a judicial exception has not been integrated into a practical
application” is when “[a]n additional element . . . 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. at 55.
Here, claim 1 recites two elements beyond the abstract idea of
crowdsourcing: (1) iteratively expanding the crowd of workers notified of a
task and reward until the task is satisfactorily completed, and (2) using a
computer network to perform the process.
Regarding the first element, each step of notifying a (progressively
larger) group of workers of a task and reward, and analyzing responses
according to a set of criteria, is an exercise of crowdsourcing; i.e., the
abstract idea recited in claim 1. Thus, the claim as a whole does not amount
to a practical implementation of the recited abstract idea. Rather, it amounts
to repeating the same abstract idea.
Regarding the second element, we agree with the Examiner that claim
1 “do[es] not recite anything that is beyond conventional and routine use of
computers.” Final Action 5. Claim 1 itself requires only a generic
“processor,” “information processing system,” “computing device,” and
“network” to carry out the recited functions; it does not recite any specific
hardware or software configuration.
Consistent with claim 1, the Specification does not describe the
claimed method as requiring any unconventional computer functionality. For
example, the Specification states that the recited network “can include wide
area networks, local area networks, wireless networks, and/or the like.”
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Spec. ¶ 28. Likewise, the recited information processing system “can be a
personal computer system, a server computer system, a thin client, a thick
client, a hand-held or laptop device, a tablet computing device,” etc. Id. ¶ 78.
The information processing system can include “one or more processors or
processing units,” which are not further described. Id. ¶ 79. The
Specification also refers to “customer systems” and “worker systems” (see,
e.g., id. ¶ 28) but does not describe such computer systems as requiring
anything other than conventional computer technology.
Thus, the claimed method does not use the recited abstract idea in
conjunction with a particular machine or manufacture, but instead simply
“includes instructions to implement an abstract idea on a computer, or
merely uses a computer as a tool to perform an abstract idea.” 84 Fed. Reg.
at 55. Because claim 1 recites an abstract idea and does not integrate the
abstract idea into a practical application, it is directed to an abstract idea.
Revised Guidance Step 2(B)
Finally, the Revised Guidance directs us to consider whether claim 1
includes “additional elements . . . [that] provide[] ‘significantly more’ than
the recited judicial exception.” 84 Fed. Reg. at 56. The Revised Guidance
states that an additional element that “simply appends well-understood,
routine, conventional activities previously known in the industry, specified
at a high level of generality, to the judicial exception, . . . is indicative that
an inventive concept may not be present.” Id.
Here, claim 1 is directed to the abstract idea of crowdsourcing a task,
and recites certain computer functions to implement that idea. Claim 1
recites “receiving” an information set by a processor from a customer’s
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computing device; “transmitting” notifications from an information
processing system to worker systems; “receiving” results from the worker
systems; “comparing” results to an adjudication rule; and “displaying task
result information.”
Receiving and transmitting information are routine and conventional
uses of a computer network. See buySAFE, 765 F.3d at 1355 (“That a
computer receives and sends the information over a network—with no
further specification— is not even arguably inventive.”). And, like the
claimed method in Electric Power Group, LLC v. Alstom S.A., 830 F.3d
1350 (Fed. Cir. 2016), claim 1 does not require any “new techniques for
analyzing” information or “an arguably inventive device or technique for
displaying information.” Id. at 1355.
Rather, claim 1 requires only routine and conventional computer
functions, recited at a high level of generality. And, as discussed above,
claim 1 does not recite, and the Specification does not describe, any
unconventional computer hardware or software as being necessary for the
claimed method.
Therefore, claim 1 requires using only a generic computer system, and
“the mere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention.” Alice, 573 U.S. at
223. The combination of elements recited in the method of claim 1 does not
amount to significantly more than the judicial exception itself, and under 35
U.S.C. § 101 the claimed method is ineligible for patenting.
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Appellant’s Arguments
Appellant argues that, “[w]ithout any explanation to support the
conclusion, the Examiner has failed to present a prima facie case of
unpatentability.” Appeal Br. 6.
This argument is unpersuasive.
[T]he PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
‘notify[ing] the applicant . . . [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application.’ 35
U.S.C. § 132.
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (alterations in original).
Here, the Examiner explained the basis for concluding that the claims were
directed to an abstract idea and did not include additional elements that
amounted to significantly more than the judicial exception to patent
eligibility. See Final Action 3–6. Thus, the Examiner adequately explained
the prima facie case for finding the claims patent-ineligible.
Appellant also argues that the claims include a “non-conventional
combination of claim features,” as evidenced by the Examiner’s withdrawal
of rejections based on prior art. Appeal Br. 7. Similarly, Appellant argues
that “Claim 1 includes a combination of elements that is applied to a new
and useful end, which is patent eligible.” Id.
These arguments are also unpersuasive. By statute, “[w]hoever
invents or discovers any new and useful process . . . may obtain a patent
therefor.” 35 U.S.C. § 101. The Supreme Court, however, has “long held
that this provision contains an important exception. ‘[L]aws of nature,
natural phenomena, and abstract ideas’ are not patentable.” Mayo, 566 U.S.
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at 70. Thus, the judicial exceptions to patentability apply even if the subject
matter is new, and indeed even if it is both new and useful.
Appellant also argues that, like the invention in DDR Holdings, LLC
v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), the invention here is
rooted in computer technology, to overcome a problem specifically arising
in the realm of computers. Appeal Br. 7. Appellant argues that the claimed
invention “overcomes a problem specifically created by networked
computers without task management or oversight.” Id.
We do not agree that the facts of this case are similar to those of DDR
Holdings. The problem addressed in that case was that “visitors would be
taken to [a] third-party merchant’s website when they clicked on the
merchant’s advertisement on the host site.” 773 F.3d at 1248. The solution in
DDR Holdings was “a composite web page that displays product
information from the third-party merchant, but retains the host website’s
‘look and feel.’” Id. at 1248–49.
The DDR Holdings court concluded that the claims addressed “a
problem specifically arising in the realm of computer networks,” by ensuring
that “upon the click of an advertisement for a third-party product displayed
on a host’s website, the visitor is no longer transported to the third party’s
website.” Id. at 1257. The court considered the somewhat analogous concept
of a “warehouse store that contains a kiosk for selling a third-party partner’s
cruise vacation packages.” Id. at 1258. The court considered that pre-Internet
analog to be inapplicable, however, because
[t]here is . . . no possibility that by walking up to this kiosk, the
customer will be suddenly and completely transported outside
the warehouse store and relocated to a separate physical venue
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associated with the third-party —the analog of what ordinarily
occurs in “cyberspace” after the simple click of a hyperlink.
Id.
Here, by contrast, the problem solved by the claims on appeal is not
one that is unique to computer networks. The background discussion in
Appellant’s Specification states that “[c]onventional crowdsourcing systems
generally require a large amount of manual intervention by the entity that is
sourcing the tasks. For example, the entity is generally required to manually
manage workers and their output, the rewarding of workers, etc. This
manual intervention can be very time consuming and costly to the entity.”
Spec. ¶ 2 (emphasis added). In the claimed invention, by contrast,
[t]he crowdsourcing server automatically generates a task from
[the customer’s] information and manages the data required by
the task, worker selection, worker task results, and worker
rewards. Therefore, customers are no longer required to
manually manage all of this information. This increases quality
via an iterative approach as embodiments of the present
invention manage the process until a desired accuracy is
achieved within allowed budgetary constraints.
Id. ¶ 73 (emphasis added).
Thus, Appellant’s Specification describes the problem solved by the
invention as being the time and cost required to manually manage a
crowdsourcing system. This is not a problem arising in the realm of
computer networks. We therefore agree with the Examiner that the “claims
arise in the realm of crowdsourcing and task delegation, which are more
business problems, and th[e] claims are not rooted in technology but
mere[ly] use technology for implementation.” Ans. 4.
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We affirm the rejection of claim 1 under 35 U.S.C. § 101. Claims 2–
14, 16, and 21–53 were not argued separately and therefore fall with claim 1.
37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–14, 16,
21–53
101 Eligibility 1–14, 16,
21–53

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).

AFFIRMED