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Patent Trials and Appeals Board

Oct 14, 2021

2020002386 (P.T.A.B. Oct. 14, 2021)

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.
13/967,301 08/14/2013 Wenhui Liao 516059.000093 5491
25764 7590 10/14/2021
FAEGRE DRINKER BIDDLE & REATH LLP
PATENT DOCKETING - INTELLECTUAL PROPERTY
2200 WELLS FARGO CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MN 55402-3901
EXAMINER
FIGUEROA, KEVIN W
ART UNIT PAPER NUMBER
2124
NOTIFICATION DATE DELIVERY MODE
10/14/2021 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):
PatentDocketing@FaegreDrinker.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WENHUI LIAO, MASOUD MAKREHCHI, and
SAMEENA SHAH
Appeal 2020-002386
Application 13/967,301
Technology Center 2100
Before MIRIAM L. QUINN, GREGG I. ANDERSON, and
ADAM J. PYONIN, Administrative Patent Judges.
QUINN, Administrative Patent Judge.
DECISION ON REQUEST FOR RECONSIDERATION

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Appellant requests rehearing under 37 C.F.R. § 41.52 of our Decision
on Appeal mailed June 15, 2021 (“Decision” or “Dec.”) where we affirmed
the Examiner’s final rejection of claims 1, 5−7, 9, 12−16, 21−28 under 35
U.S.C. § 101 by applying the Offices 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”).
The Request for Rehearing is denied.
ANALYSIS
A request for rehearing must state with particularity the points
believed to have been misapprehended or overlooked. Arguments not raised
in the briefs before the Board and evidence not previously relied upon in the
briefs are not permitted in the request for rehearing. 37 C.F.R. § 41.52(a)(1).
A request for rehearing is not an opportunity to express disagreement with a
decision. The proper course for an applicant dissatisfied with a Board
decision is to appeal, not to file a request for rehearing to re-argue issues that
have already been decided. See 35 U.S.C. §§ 141, 145. Because the
arguments presented are directed to certain claim limitations and based on
our determination under the Guidance, we include for reference below an
annotated version of claim 1, which is illustrative of the claimed subject
matter and showing italicized portions denoting the limitations the Examiner
has found are abstract ideas:
[A] building a dynamic dictionary by:
[1] accessing, using a computing device having a
processor and a memory, event information from an event
information source,
[2] identifying, using the processor and the event
information, a first event, wherein the first event
comprises either a gain event associated with a stock
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price of a stock or a loss event associated with the stock
price, wherein the first event is a gain event when the
event information indicates a relative increase of the
stock price that exceeds a predetermined return
associated with a market index, and wherein the first
event is a loss event when the event information indicates
a relative decrease of the stock price that exceeds a
predetermined loss associated with the market index,
[3] accessing, using the computing device, a first
set of messages from a message source, wherein the first
set of messages is generated by a plurality of messaging
users before the first event occurred,
[4] associating, using the processor, the first set of
messages with the first event,
[5] determining, using the processor and based on
whether the first event is a gain event or loss event, that a
text feature of each message associated with the first
event includes a positive or negative sentiment,
respectively, and
[6] storing the sentiment-associated text features in
the dynamic dictionary in the memory;
[B] accessing, using the computing device, a second set
of messages associated with a second event from the message
source;
[C] computing, using the processor and dynamic
dictionary of sentiment-associated text, an aggregate sentiment
score for the second set of messages;
[D] predicting, using the processor and aggregate
sentiment score, a positive or negative event;
[E] taking a long position with respect to the stock if the
second event comprises a gain event; and
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[F] taking a short position with respect to the stock if the
second event comprises a loss event.
See Dec. 7−8. Appellant presents various arguments that we group
according to topic.
Claim Not Directed to Organizing Human Activity
Appellant argues that it made arguments in the Reply refuting the
Examiner’s findings that the claim was directed to an abstract idea of
organizing human activity, and that we failed to consider those arguments.
Req. Reh’g 1−2. In particular, Appellant argues that the claim is not
directed to such an abstract idea because the claim is directed to
“automatically associating text features with positive or negative sentiment
based on a particular set of criteria (i.e., gain events or loss events) without
necessarily comparing the text features to or looking up the text features.”
Id. at 3. Appellant argues that neither the Examiner nor our Decision
explains “how Appellant’s claimed specific approach for building a dynamic
dictionary can be fairly characterized as organizing human activity or
fundamental economic principles or practices.” Id.; see also id. at 3 (arguing
for claim 25 that “the Examiner provides no explanation as to why these
features are being ignored for determining what the claim is directed to.”).
Appellant states: “What does building a dynamic dictionary – regardless of
how the dictionary is used – have to do with organizing human activity or
fundamental economic principles or practices?” Id. According to
Appellant, our Decision focuses on the use of the dynamic dictionary, rather
than the more appropriate focus of “building the dynamic dictionary.” Id.
Appellant’s argument is not persuasive. First, just because the Reply
was not cited does not mean it was overlooked; it was not. Rather, the
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Decision addressed the Appeal Brief, which made the argument Appellant
says was included in the Reply and not considered. The Appeal Brief states
that “the Examiner provides no explanation as to why the majority of claim
1’s features are being ignored for determining what the claim is directed to.”
Appeal Br. 6. The Appeal Brief also argued that “the above-noted features
of building a dictionary show that the claim is not directed to ‘organizing
human activity.’” Id. The Appeal Brief continues, “Instead, the claim is
directed to a particular approach for building a dynamic dictionary and a
particular approach for applying the dynamic dictionary that cannot be fairly
characterized as automating what a person performs in their mind.” Id. at
6−7. Thus, Appellant’s Appeal Brief did make the argument that the
Examiner did not explain its finding that certain claim limitations are
directed to an abstract idea of organizing human activity. And our Decision
considered that argument fully. Dec. 8−10.
For instance, we determined that limitations A(3)−A(5) recite the
concept of searching for text in messages . . . to determine words that
indicate the sentiment about the event, whether positive or negative. Id. at 9.
These particular limitations are specific to building a dynamic dictionary.
The Decision also explains that other claim limitations, limitations C−F, are
more specifically directed to the application of the gathered sentiment-
associated words in order to analyze the stock price. Id. The analyzed
limitations, we stated, “set forth a process of analyzing a stock price
fluctuation in relation to how the public feels about events surrounding the
timing of the fluctuation.” Id. at 9−10. “This process is a fundamental
economic practice of stock price analysis and prediction.” Id. at 10 (citing
Bilski v. Kappos, 561 U.S. 593, 609, 611−612).
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Thus, our Decision addresses with specificity the combination of
claimed limitations, building a dictionary and the alleged “application” of
that dictionary to stock price analysis and prediction as a fundamental
economic practice. Accordingly, we are not persuaded we misapprehended
or overlooked Appellant’s argument presented in the Appeal Brief and in the
Reply concerning the scope of “building” of the dynamic dictionary.
As for Appellant’s argument about what the claim is really directed to,
that argument was considered and found unpersuasive. Dec. 11. To the
extent Appellant’s Reply re-characterizes the claimed “building a dynamic
dictionary,” that argument was not materially different than the one
presented in the Appeal Brief. In its Reply, Appellant states that the claim is
directed to “automatically associating text features with positive or negative
sentiment based on a particular set of criteria (i.e., gain events or loss events)
without necessarily comparing the text features to or looking up the text
features.” Id. at 2. Here, Appellant highlights the automatic association of
text features with sentiments, and goes on to add something the claim does
not require: “without comparing the text features to or looking up the text
features.” The “determining” limitation does not place limits on the
technique to be used in determining that a text feature includes a positive or
negative sentiment. Therefore arguing that “building a dynamic dictionary”
is an automatic association without performing any lookups or comparisons
is not commensurate with the scope of the claim.
Claim Not Directed to Mental Processes
Appellant argues that the “the claim features recited for building a
dictionary—individually or as combined—show that the claim is not
directed . . . to ‘mental processes.’” Req. Reh’g 2. According to Appellant,
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our Decision focuses on the application of the dynamic dictionary, rather
than the building of it, leading us to the “incorrect conclusion that the claims
are directed towards ‘mental processes.’” Id. We are not persuaded by this
argument. We addressed the limitations recited in the claims alone and as a
combination in determining that certain limitations of the claim are directed
to mental processes. Dec. 7−8, 10−11. Our Decision specifically addressed
limitations A(1)—A(5) as “compiling the words used to describe the stock,
Apple, or its products to determine if the words used in those posts are
positive or negative.” Id. at 10. This particular part of the analysis focused
on the building of the dynamic dictionary, as opposed to other limitations of
the claim that address the application of the dynamic dictionary for stock
prediction. Id. at 10 (analyzing limitations B−F). Accordingly, we are not
persuaded we misapprehended or overlooked Appellant’s argument in the
Appeal Brief, and repeated in the Reply, that Appellant’s argument was
directed to “building” of the dynamic dictionary, rather than its “use.”
To the extent Appellant argues that the claims are directed to a more
specific way of “automatically associating text features with positive or
negative sentiment based on a particular set of criteria (i.e., gain events or
loss events),” that argument was found not persuasive. Dec. 11 (stating that
Appellant’s argument that the claim is directed to a particular approach for
building a dynamic dictionary was not persuasive). Also, it is not persuasive
to argue that the claims perform the association “without necessarily
comparing the text features to or looking up the text features.” Again, the
claim language does not support that argument as stated above.
Furthermore, Appellant takes issue with our summary of the claim
language in describing how the claim is directed to mental processes. For
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instance, Appellant argues that the Board mischaracterized the claim feature
because the claim does not recite that “if the words are used in those posts
are positive or negative” or that posts are scanned for those “concerning a
rise in a stock of interest.” Req. Reh’g 2−3. Pointing out these alleged
inaccuracies, Appellant argues that the claimed approach does not involve
“comparing words to a sentiment dictionary or determining whether the
words themselves in a post suggest a rise or fall in a stock of interest.” Id.
Patent Owner’s argument is not persuasive.
Our Decision referred to the Specification in showing that the
description of the invention supports a broad reading of the claimed
functions being performable as a mental process. The claim requires that the
messages are associated with an event, and an event relates to an increase or
decrease in the price of a company stock. Spec. ¶ 14 (describing the
objective of analyzing, to form predictions, messages generated by user’s
who “often make references associated with such events” and describing
events as stock price changes). Thus, a mental process performed by a
human of associating the messages with the event and determining the text
feature of each message including positive or negative sentiment would
encompass the concept of “reading through past social media postings . . .
for posts concerning a rise in a stock of interest” “and compiling the words
used to describe the stock, Apple, or its products to determine if the words in
those posts are positive or negative.” Dec. 10 (citing Spec. ¶¶ 21, 23−24).
This comports with the claim language which states “determining . . . that a
text feature of each message associated with the first event includes a
positive or negative sentiment, respectively.” The claim does not require
any particular method of determining that the text feature includes a positive
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or negative sentiment. Accordingly, we are not persuaded that we erred in
determining that the claim is directed to a mental process as stated in our
Decision.
Claim 25 and Its Dependents
Appellant argues that the Examiner and the Board ignored certain
claimed features in concluding what the claim is directed to. Req Reh’g 3.
We are not persuaded by Appellant’s argument. The arguments were
included in the Appeal Brief and the Reply, and considered together with
those of claim 1 because the substance was identical: the claim is not
directed to “organizing human activity” but rather to a “particular approach
for building a dynamic dictionary.” Appeal Br. 8; Reply 3. We addressed
the substantively identical limitations of claims 1 and 25 together. See Dec.
11 (noting also that the arguments presented for why the claims were not
directed to “organizing human activity” were bare assertions).
To the extent Appellant’s argument attempts to focus more
specifically on whether additional features of claim 25 should have been
addressed in more detail, we note that the Examiner analyzed claim 1 as
representative of the subject matter claimed in the independent claims, and
they all claim in substantively similar language the “determining” limitation
and its surrounding “accessing” and “predicting” steps. Final Act. 4.
Nevertheless, the Examiner made a specific finding concerning the
limitation of claim 25 that Appellant contends was ignored in the portion of
the Answer that analyzes the claim as recited mental processes and methods
of organizing human activity. Ans. 3−4 (listing for instance “computing a
score based on previous text”). Thus, the Examiner finds, and we agree, that
the limitation is directed to a mental process, as it merely requires computing
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an aggregate score for a set of messages by scoring text features within those
messages as being positive or negative. The Reply did not address the
Examiner’s finding that computing an aggregate score was a mental process.
Nor did Appellant address with any specificity the Examiner’s finding that
“using the processor and aggregate sentiment score” were generic computer
functions. Ans. 5. Rather, the Reply raised a bare assertion, without
foundation, that the Examiner ignored claim limitations. Accordingly, we
find unpersuasive the argument that we misapprehended or erred in not
noticing Appellant’s erroneous argument that the Examiner ignored claim
language recited in claim 25.
Inconsistency Argument
Appellant argues that the Examiner is inconsistent in rejecting the
claims under § 103 and § 101. According to Appellant, giving a variety of
reasons a person of ordinary skill in the art would have arrived at the
claimed invention, the Examiner contradicts the findings that the claims fail
to recite a practical application. Req. Reh’g 4−5. According to Appellant,
the “benefits” found by the Examiner in combining the references “are not
asserted as being beneficial for improving ‘mental processes’ or ‘organizing
human activity.’” Id. at 5. Appellant faults the Board for not addressing
these alleged inconsistencies.
We are not persuaded by Appellant’s argument. We did not address
the inconsistency because it has no legal merit. First, the Examiner’s § 103
has been reversed, so whatever finding made for that rejection that could
arguably be germane to the § 101 analysis has been vacated. Second, it is
not inconsistent for the Office to assert that under the § 101 analysis the
claims fail to recite a practical application and then under the § 103 analysis
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make findings of recognizable benefits in combining prior art teachings.
The combination of teachings analysis is distinct and separate from the
analysis of whether a claim, under § 101 law, is directed to an abstract idea.
Here, for example, while the claims are performed as a mental process, there
is no inconsistency in determine that one reference may recognize the
benefit of, for example, improving stock prediction events and reaction
analysis. The Examiner is not required to reconcile an “inconsistency” that
does not exist: between the recognition of a “benefit” in predicting stocks
with whether the mental process would also “benefit” from that recognition
such that it transforms the mental process into a non-abstract idea.
Regardless of how “beneficial” the use of the mental process may be, it is
still a mental process. And Appellant presents no legal authority for the
proposition presented.
Provisional Application
Appellant argues that the provisional application incorporated by
reference provides examples of how the “claimed approaches improve upon
prior art approaches and therefore provide a technical improvement.” Req.
Reh’g 5. Appellant further argues that the Decision includes an
impermissible finding that warrants designating the Decision as a New
Grounds of Rejection. Id. at 5−6. In particular, Appellant states that the
“Board asserted that ‘the claims are directed to automating that which was
manually performed previously.’” Id. at 6. According to Appellant, the
Examiner never made the assertion that automating a manual task does not
transform the abstract idea into a practical application, and Appellant should
have an opportunity to respond.
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We do not agree. Appellant argued the content of the provisional
application as support for its argument that the claimed approach provided a
technical improvement. Appeal Br. 9−10. For instance, stating that the
claim does not attempt to monopolize “organizing human activity” or
“fundamental economic principles or practices,” Appellant focused on the
automatic generation of a dynamic dictionary as follows,
the provisional application incorporated by reference in the
pending application provides several examples of how the
claimed approaches improve upon prior approaches and
therefore provide a technical improvement. For example, the
provisional application describes that prior approaches did not
automatically generate a dynamic dictionary in the manner
claimed.
Id. at 9 (emphasis added).
The Examiner responded to Appellant’s argument that the claim is
directed to “automating a process.” Ans. 9 (addressing specifically that “it is
also stated that the prior approaches did not automatically generate a
dynamic dictionary.”) Our Decision analyzed the provisional application
argument in light of the Examiner’s finding that there was no technological
improvement. Thus, we do not agree that our Decision contains a “new”
ground of rejection, but, rather, provides an explanation of how we view the
argument presented and the Examiner’s finding in turn.
Applying Berkheimer
Appellant argues that the Examiner failed to account for a number of
claim features under Prong One of the Guidance and that the “facts indicate
that the claims are not well-understood, routine, and conventional.” Req.
Reh’g 5. This argument included in the Reply merely repeats argument
made in the Appeal Brief. Appeal Br. 10−11. We did not misapprehend or
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overlook it. Rather, we analyzed in detail whether any additional element,
alone or as a combination with all other elements of the claim, adds a
limitation that is not well-understood, routine, or conventional. Dec. 18−21.
CONCLUSION
The Request for Rehearing has been considered and denied.
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).

REHEARING DENIED

Outcome of Decision on Rehearing

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Granted Denied
1, 5–7, 9,
12–16, 21–
28
101 Eligibility 1, 5–7, 9,
12–16, 21–
28
Overall
Outcome
1, 5–7, 9,
12–16, 21–
28

Final Outcome of Appeal After Rehearing

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5–7, 9,
12–16, 21–
28
101 Eligibility 1, 5–7, 9,
12–16, 21–
28

Overall
Outcome
1, 5–7, 9,
12–16, 21–
28