Reinhard KLEMM

Patent Trials and Appeals Board

Dec 21, 2020

2020003501 (P.T.A.B. Dec. 21, 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.
13/173,983 06/30/2011 Reinhard KLEMM 4366-847 1093
48500 7590 12/21/2020
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
MCCORMICK, GABRIELLE A
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
12/21/2020 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte REINHARD KLEMM
____________________

Appeal 2020-003501
Application 13/173,983
Technology Center 3600
____________________

Before ROBERT E. NAPPI, BETH Z. SHAW, and
JASON M. REPKO, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1 through 5 and 7 through 20. 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(a). According to Appellant, Avaya Inc. is the real party in interest.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a device and method to provide a user with
online reviews of an item being displayed on a user interface. See Spec. ¶¶
7–9. Claim 1 is reproduced below.
1. A method comprising:
crawling, via a processor, one or more internet sources to
detect online user activity of a user viewing an item being
displayed on a graphical user interface;
inferring, by the processor, a characteristic of the user
based on the online user activity;
identifying, by the processor, a plurality of feedbacks for
the item provided by a plurality of users;
determining, by the processor, respective user
characteristics of each of the plurality of users associated with
the plurality of feedbacks for the item by analyzing at least one
of online user activity associated with the plurality of users or
online content associated with the plurality of users;
receiving, via an input on the graphical user interface, a
desired ratio defining a number of expert feedbacks to non-
expert feedbacks, wherein the desired ratio comprises a
combination of expert feedbacks and non- expert feedbacks;
determining, by the processor, a respective degree of
similarity between the user and each of the plurality of users by
analyzing the characteristic of the user with the respective user
characteristics of the plurality of users;
identifying, by the processor, relevant feedbacks for the
item from the plurality of feedbacks based on the respective
degree of similarity between the user and the plurality of users,
wherein the relevant feedbacks are associated with a portion of
the plurality of users each having a degree of similarity to the
user above a similarity threshold, and wherein the relevant
feedbacks have the desired ratio of expert and non-expert
feedbacks; and
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automatically displaying, by the processor, the relevant
feedbacks on the graphical user interface, wherein an indication
of whether a respective user associated with one of the relevant
feedbacks received compensation is displayed with the one of
the relevant feedbacks.

REJECTIONS2
The Examiner rejected claims 1 through 5 and 7 through 20 under 35
U.S.C. § 101 for being directed to patent-ineligible subject matter. Final Act
2–7.
The Examiner rejected claims 1, 2, 8, 9, 10, 11, 13, 14, 15, 17 through
20 under 35 U.S.C. § 103 as unpatentable over Trajkovic (US 2007/0028266
A1), Durand (US 6,272,467 B1), Norton (US 2007/0011161 A1),
Ramakrishnan (US 2010/013443 A1), and Gibson (US 8,086,484 B1). Final
Act 8–11, 13–17.
The Examiner rejected claim 3 and 12 under 35 U.S.C. § 103 as
unpatentable over Trajkovic, Durand, Norton, Ramakrishnan, Gibson and
Padgette (US 2004/0172357 A1). Final Act 11, 16.
The Examiner rejected claim 4 and 5 under 35 U.S.C. § 103 as
unpatentable over Trajkovic, Durand, Norton, Ramakrishnan, Gibson and
Golan (US 2008/0235005 A1). Final Act 11–12.
The Examiner rejected claims 7 and 16 under 35 U.S.C. § 103 as
unpatentable over Trajkovic, Durand, Norton, Ramakrishnan, Gibson and
Richman (US 2011/0145073 A1). Final Act 12–13, 17.

2 Throughout this Decision we refer to the Appeal Brief filed November 25,
2019 (“Appeal Br.”); Reply Brief filed April 6, 2020 (“Reply Br.”); Final
Office Action mailed July 22, 2019 (“Final Act.”); and the Examiner’s
Answer mailed February 7, 2020 (“Ans.”).
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Patent Eligibility Rejection
PRINCIPLES OF LAW
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101.3 The USPTO
current eligibility guidance is found in the Ninth Edition, Revision 10.2019
(revised June 2020) of the Manual of Patent Examination Procedure
(MPEP), and particularly within Sections 2103 through 2106.07(c).
“Because the MPEP now incorporates the 2019 Revised Patent Subject
Matter Eligibility Guidance (2019 PEG), October 2019 Patent Eligibility
Guidance Update (October 2019 Update), and the Berkheimer Memo,4 all
references to those materials should now be directed to the MPEP.” See
https://www.uspto.gov/patent/laws-and-regulations/examination-
policy/subject-matter-eligibility
(emphasis added).

3 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Revised Guidance”). In response to received public
comments, the Office issued further guidance on October 17, 2019,
clarifying the 2019 Revised Guidance. USPTO, October 2019 Update:
Subject Matter Eligibility (the “October 2019 Update”). “All USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance.” 84 Fed. Reg. at 51; see also October 2019 Update at
1.
4 Referring to Berkheimer v. HP, Inc., 881 F.3d. 1360, 1369 (Fed. Cir.
2018).

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All references to the MPEP throughout this Decision are to the Ninth
Edition, Revision 10.2019 (Last Revised June 2020), unless otherwise
indicated.

Under MPEP § 2106, 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) (“Step 2A, Prong One”); and

(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).5

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 are 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.
See MPEP § 2106.05(d)).

5 “Examiners evaluate integration into a practical application by (a)
identifying whether there are any additional elements recited in the claim
beyond the judicial exception, and (b) evaluating those additional elements
individually and in combination to determine whether the claim as a whole
integrates the exception into a practical application.” MPEP § 2106.04(d)II.
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ANALYSIS
The Examiner rejects independent claims 1, 10, and 19 as reciting
concepts involving a mental process of collecting data analyzing data and
similar to those found abstract by the courts. Final Act. 2–4 (citing Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, (Fed. Cir. 2016)).
Further, the Examiner finds that the abstract idea is not integrated into
a practical application as the recitation of a processor and display, amount to
no more than instructions to apply the abstract idea using a generic
computer. Final Act. 4, (citing Specification ¶¶20 and 49), 6, 7.
Additionally, the Examiner finds that the “limitations of ‘crawling, via a
processor, one or more internet sources ...’ is merely the gathering of data
via an existing and well-known processor capability and is not considered
significantly more. These are well-known, routine and conventional
practices that require no more than a generic computer to perform generic
computer functions. (Please refer to July 2015 Update: Subject Matter
Eligibility; page 7 for a listing of computer functions found by the courts to
be well-understood, routine and conventional.)” Final Act. 5.
Appellant argues that the Examiner erred in finding the claims recite
an abstract concept. Reply Br. 7–8. Appellant asserts:
[T]he claims do not recite any steps which can be performed in
a human mind. Each feature of each claim is necessarily tied to
a computer element. For example, the feature of “crawling, via
a processor, one or more internet sources to detect online user
activity of a user viewing an item being displayed on a
graphical user interface” recites the “processor” element as a
necessary feature of the claim. If the claims were interpreted to
include using a human mind to “crawl ... one or more internet
sources to detect online user activity of a user viewing an item
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being displayed on a graphical user interface,” it would totally
defeat the purpose of the claimed subject matter.

Appeal Br. 8. Appellant argues that the features of crawling the internet and
displaying feedback are more than just instructions to apply the abstract idea
using a computer. Reply Br. 13. Further, Appellant argues that the claims
recite a practical application of the abstract idea. Id at 8–12. Appellant
argues that the claims do not monopolize all implementations of providing
feedback and “provides improvements to the usability of internet feedback
systems which serves as evidence that the claims are directed to patent
eligible subject matter.” Appeal Br. 9–10 (citing Specification ¶10). Finally,
Appellant argues that the claims are similarly to claim 1 in Example 37 of
the 2019 Guidance. Appeal Br. 11–12.
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of representative claim 1 under 35 U.S.C. § 101.
The Judicial Exception
We concur with the Examiner that the claims recite a concept of
gathering data and analyzing the data, which is similar to the idea held to be
abstract in Electric Power Group. The claims at issue in Electric Power
Group recited several steps of receiving data from various sources, detecting
and analyzing the data, and displaying certain data. Elec. Power Grp., 830
F.3d at 1351–52.
In this case, representative claim 1 recites crawling internet sources to
detect online user activity of a user viewing an item (a step of collecting
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data)6; inferring a characteristic of the user (a step of analyzing the collected
data); identifying a plurality of feedbacks for the item (a step of collecting
data); determining respective user characteristics of each of the plurality of
users by analyzing (a step of analyzing the data); receiving a desired ratio (a
step of gathering data); determining a degree of similarity and identifying
relevant feedback (are steps of analyzing the data) and displaying the
relevant feedback (a step of presenting the data).
These steps can be performed in the human mind or with pen and
paper, as they are merely gathering data, analyzing the data, and displaying
the results of the data. That some of the data is gathered from internet
sources does not make the method any less abstract. Our reviewing court
has said “we have treated collecting information, including when limited to
particular content (which does not change its character as information), as
within the realm of abstract ideas.” Elec. Power Grp., 830 F.3d at. at 1353.
Thus, we do not consider the Examiner to have erred in determining
that claims recite an abstract concept and we agree with the Examiner that
the claims recite an abstract concept (a mental process) similar to that at
issue in Electric Power Group. See also Classen Immunotherapies, Inc. v.
Biogen IDEC, 659 F.3d 1057, 1067 (Fed. Cir. 2011) (finding claims to
collecting and comparing known information determined to be steps that can
be practically performed in the human mind); In re TLI Communications 823
F.3d 607, 613 (Fed Cir 2016) (finding the claims to classifying and storing
digital images as reciting an abstract idea); Content Extraction &

6 Note in our prior decision in this case we similarly identified this as a data
gathering activity. See In Re Klemm, Appeal 2017-007450 at page 7 (PTAB,
Oct. 19, 2018).
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Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1347
(Fed. Cir. 2014) (“The concept of data collection, recognition, and storage is
undisputedly well-known. Indeed, humans have always performed these
functions.”). Thus, are not persuaded the Examiner erred in finding the
claims to recite an abstract idea.
Integration of the Judicial Exception into a Practical Application
Appellant’s arguments that the claimed “improvements to the
usability of internet feedback systems which serves as evidence that the
claims are directed to patent eligible subject matter” have not persuaded us
the Examiner erred in determining the claims do not recite a practical
application of the claim. Appeal Br. 8–10.
As discussed above, representative claim 1 recites an abstract idea.
The Examiner finds, and we concur, that the claimed use of a processor and
display amount to no more than instructions to apply the exception using
generic computer components. Final Act. 4.
Appellant’s Specification does not identify that the abstract concept
improves the operation of a machine. We are not persuaded by Appellant’s
argument that the “improvement is to internet feedback systems” is an
improvement to a technology. Appellant’s Specification identifies the
invention as a “better way to curate information for their customers” and
results in “higher relevancy, greater efficiency and an overall better user
experience.” Specification ¶ 6. Thus, Appellant’s Specification identifies
that the improvement is to curate (select/organize/and present) information,
and demonstrates that the improvement is to the abstract idea of gathering,
analyzing, and displaying information, and not an improvement in
technology. Accordingly, we are not persuaded the Examiner erred in
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concluding the claims do not recite a practical application of the claimed
invention.
Significantly More than the Abstract Idea
If a claim: (1) recites a judicial exception, and (2) does not integrate
that exception into a practical application, we then look to whether the claim
adds a specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or,
simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception.
The Examiner has found the additional element of crawling the
internet is merely a well-known manner of gathering data. Final Act. 5-6
(citing MPEP 2106.05(d)). Further, the Examiner has found the recitation of
a processor and display device are disclosed as generic devices performing
their known function. Final Act. 4 (citing Specification ¶¶ 20, 49).
Appellant’s Specification describes the additional limitations of a
processor or display device as generic devices. Appellant’s Specification
does not discuss “crawling the internet,” but does discuss using various well
known search engines to gather information from the internet. Specification
¶ 6. Further, the use of a graphical user interface to received input and
display data are also known functions of graphical user interfaces. Our
reviewing court has often considered a user interface to be a generic
computer element. See Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (discussing the claimed
interactive interface as a generic computer element); Mortgage Grader, Inc.
v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016)
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(noting that components such an “interface,” “network,” and “database” are
generic computer components that do not satisfy the inventive concept
requirement) and FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d
1089, 1096 (Fed. Cir. 2016) (“As we have explained, the use of generic
computer elements like a microprocessor or user interface do not alone
transform an otherwise abstract idea into patent-eligible subject matter.”)
(citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed.
Cir. 2014). Further, Appellant’s Specification does not identify any
particular functionality of the GUI as inventive, other than the input and
display of information. Thus, Appellant’s Specification does not
demonstrate that the use of a GUI is for anything other than its conventional
use of displaying information. As such, the representative claim does not
recite significantly more than the abstract idea.
Appellant’s preemption argument, that the claim does not “does not
attempt to monopolize all implementations of providing feedback to a user,”
is not persuasive. Appeal Br. 9. Our reviewing court has said “[w]here a
patent’s claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework, . . . , preemption concerns are fully addressed
and made moot.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015).
In summary, Appellant’s arguments have not persuaded us of error in
the Examiner’s determination that representative claim 1 recites an abstract
idea in the form of a mental process. Further, Appellant’s arguments have
not persuaded us that the Examiner erred in finding that the claim is not
directed to an improvement in the functioning of the computer or to other
technology or other technical field; directed to a particular machine; directed
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to performing or affecting a transformation of an article to a different state or
thing; or directed to using a judicial exception in some meaningful way
beyond linking the exception to a particular technological environment, such
that the claim as a whole is more than a drafting effort to monopolize the
judicial exception.
For these reasons, we are unpersuaded that the claims recite additional
elements that integrate the judicial exception into a practical application, nor
do the claims add a specific limitation beyond the judicial exception that is
not “well-understood, routine, conventional.” See 2019 Revised Guidance,
84 Fed. Reg. at 54. Accordingly, we sustain the Examiner’s rejection of
representative claim 1, and claims 2 through 5, and 7 through 20 grouped
with claim 1, under 35 U.S.C. § 101 as being directed to a patent-ineligible
abstract idea, that is not integrated into a practical application, and does not
include an inventive concept.

Obviousness Rejection.
Appellant presents several arguments directed to the Examiner’s
obviousness rejection of independent claims 1 and 19 on pages 13 through
16 of the Appeal Brief. The dispositive issue presented by these arguments
is: did the Examiner err in finding that the combination of the references
teaches receiving an input of a desired ratio defining a number of expert
feedbacks to non-expert feedbacks, where the ratio comprises a combination
of expert and non-expert feedbacks as claimed in independent claims 1 and
19. Appeal Br. 14–15. Appellant argues that the ratio in Gibson, the
reference the Examiner relies upon to teach the claimed ratio, is not a ratio
defining the number of expert feedbacks to non-expert feedbacks, as
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claimed. Appeal Br. 14.
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection of independent claims 1 and 19. In response to the Appellant’s
arguments, the Examiner states:
12. As affirmed by the Board in the decision of October
19, 2018, Ramakrishnan discloses a desired ratio at P[0041-
0044] where the desired ratio can be 1.0/0.0 expert/non-expert
or vice versa. The Examiner asserts that this can be broadly
read to disclose the claim language of the desired ratio
comprises a combination of expert feedbacks and non-expert
feedbacks (i.e., the desired combination is all expert/no non-
expert or vice versa). However, Ramakrishnan does not
explicitly disclose a ratio other than an all or none combination.
13. Gibson, however, discloses blending creator (i.e.,
non-expert) and expert reviews. (C6; L31-32).
14. Though Appellant argues that Gibson doesn't
elaborate on what is meant by blending creator and exert
reviews. The Examiner understands the term, blend, to indicate
combining. Thus, the Examiner asserts that Gibson discloses
creating a combination.

Answer 7. We disagree with the Examiner’s rationale. Initially, we note
that the claim limitation directed to the ratio has been amended from the
prior decision. In the prior decision, we explained that the claim was broad
enough to encompass the ratio being 1/0 expert to non-expert. See In Re
Klemm, at page 9 (“Representative claim 1 does not recite a limitation that
precludes ratios from being all experts (or no experts)).” In contrast, the
independent claims currently before us identify that “the desired ratio
comprises a combination of expert feedbacks and non-expert feedbacks,”
and thus, the ratio includes feedback from both experts and non-experts, i.e.
the claims now preclude the ratio from being all experts (or no experts).
We disagree with the Examiner that Ramakrishnan teaches inputting a
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desired ratio of experts and non-experts. Ramakrishnan discusses inputting
a different weighting for the feedbacks from experts and non-experts, which
is different from adjusting the ratio of one to the other. See Ramakrishnan ¶
43, also discussed in In Re Klemm, at page 9.
Further, we disagree with the Examiner that Gibson teaches this
feature. The cited teaching in Gibson states: “In another mode, the QRE
blends creator reviews and expert reviews, to achieve a desired ratio of
accuracy and cost.” Col. 6, ll. 30-32. This teaching neither teaches an input
of the ratio, nor teaches that the ratio is between expert reviews and non-
expert reviews, rather the ratio is between accuracy and cost. See also
column 2 lines 3–21 (discussing the tensions between accuracy and cost in
performing reviews.) Thus, we do not find that the Examiner has
demonstrated the combination of the references teach all of the limitations of
independent claims 1 and 19 and we do not sustain eh Examiner’s rejection
of this claim.
Appellant’s arguments similarly assert that the Examiner’s rejection
of independent claim 10 suffers from the same error. Independent claim 10
also recites a limitation that the “ ratio comprises a combination of expert
feedbacks and non-expert feedbacks.” The Examiner in rejecting claim 10
relies upon the same findings discussed above with respect to claims 1 and
19. Final Act. 13–14. Thus, we similarly do not sustain the Examiner’s
rejection of claim 10 for the same reasons as claims 1 and 19.
The Examiner has not shown that the additional teachings relied upon
to reject dependent claims 2 through 4, 6 through 9, 11 through 18 and 20
make up for the deficiencies discussed above with respect to the rejection of
the independent claims. Accordingly, we similarly do not sustain the
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Examiner’s rejection of the dependent claims.

CONCLUSION
In summary:
Claim
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7–20 101 Eligibility 1–5, 7–20
1, 2, 8, 9, 10,
11, 13, 14,
15, 17–20
103 Trajkovic, Durand,
Norton,
Ramakrishnan,
Gibson
1, 2, 8, 9,
10, 11, 13,
14, 15, 17–
20
3, 12 103 Trajkovic, Durand,
Norton,
Ramakrishnan,
Gibson, Padgette
3, 12
4, 5 103 Trajkovic, Durand,
Norton,
Ramakrishnan,
Gibson, Golan
4, 5
7, 16 103 Trajkovic, Durand,
Norton,
Ramakrishnan,
Gibson, Richmond
7, 16
Overall
Outcome
1–5, 7–20
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2018).
AFFIRMED