Anahita Hassanzadeh et al.Download PDFPatent Trials and Appeals BoardJul 30, 201913741817 - (D) (P.T.A.B. Jul. 30, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/741,817 01/15/2013 Anahita HASSANZADEH 2011-0094US01 1886 74739 7590 07/30/2019 Potomac Law Group, PLLC (Oracle International) 8229 Boone Boulevard Suite 430 Vienna, VA 22182 EXAMINER SWARTZ, STEPHEN S ART UNIT PAPER NUMBER 3623 NOTIFICATION DATE DELIVERY MODE 07/30/2019 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): bgoldsmith@potomaclaw.com eofficeaction@appcoll.com patents@potomaclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANAHITA HASSANZADEH, ANDREW VAKHUTINSKY, and KIRAN PANCHAMGAM1 ____________ Appeal 2017-010683 Application 13/741,817 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, AMEE A. SHAH, and MATTHEW S. MEYERS, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134(a) of the final rejection of claims 1, 3–7, 9–13, 15–18, and 22–24, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM. 1 The real party in interest is Oracle International Corporation. (App. Br. 2). Appeal 2017-010683 Application 13/741,817 2 THE INVENTION The Appellants’ claimed invention is directed to a system that optimizes product pricing (Spec., para. 1). Claim 7, reproduced below with the italics added, is representative of the subject matter on appeal. 7. A computer implemented method for determining markdown product pricing for a plurality of items over a plurality of time periods, the method comprising: receiving a non-linear time-dependent problem, wherein the non-linear time-dependent problem comprises a demand model that expresses a demand for an item as a non-linear function of item prices; determining approximate inventory levels for each item in each time period; for a plurality of pairs of items having a common product category, for each of the pairs of items, determining coefficients for a change in demand of a first product at each of the plurality of time periods when a price of a second product is changed from a base price level to other price levels on a price ladder using initial prices and initial approximate inventory levels, wherein the determining coefficients comprises generating an approximate Mixed Integer Linear Programming (MILP) problem comprising a change of demand based on a sum of the determined coefficients for the plurality of pair of items, and further comprising generating binary decision variables that indicate whether price variables were assigned to a price on a corresponding price ladder; solving the MILP problem to generate revised prices and revised inventory levels, the solving comprising setting a solved price of each item to a non-zero binary variable of the generated binary decision variables; when the generated revised prices and revised inventory levels do not satisfy a convergence criteria after the solving, repeating the Appeal 2017-010683 Application 13/741,817 3 determining coefficients, the generating the approximate MILP problem and the solving the MILP problem using the revised prices and the revised inventory levels as the initial prices and initial approximate inventory levels until the convergence criteria is satisfied; when the convergence criteria is satisfied, assigning the revised prices as the markdown product pricing. THE REJECTION The following rejection is before us for review: Claims 1, 3–7, 9–13, 15–18, and 22–24 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.2 ANALYSIS Rejection under 35 U.S.C. § 101 The Appellants argue that the rejection of claim 7 is improper because the claim is not directed to an abstract idea (App. Br. 4–8). The Appellants argue further that the claim is “significantly more” than the alleged abstract idea (App. Br. 4–10; Reply Br. 2, 3). The Appellants also argue the claims do not preempt the abstract idea (App. Br. 10, 11). In contrast, the Examiner has determined that the rejection of record is proper (Final Action 7–15; Ans. 3–19). 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2017-010683 Application 13/741,817 4 We agree with the Examiner. 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 long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court’s 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)). In accordance with that framework, we first determine what concept 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, or protecting against risk . . . .”). 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, 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)). 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. Appeal 2017-010683 Application 13/741,817 5 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited 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 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated 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. (internal citation omitted) (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.”). The PTO recently published revised guidance on the application of § 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the 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, do we then look to whether the claim: Appeal 2017-010683 Application 13/741,817 6 (3) adds a specific limitation beyond the judicial exception that is 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 Guidance. If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must 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 (citation 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. (alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. Here, the Examiner has determined that the claim directed to the concept of determining a markdown in product pricing for multiple items over a period of time and is directed to an abstract idea (Final Act. 7). We substantially agree with the Examiner in this regard as claim 7 is directed to the steps in italics in the claim above. These steps are directed to the concept of determining markdown product pricing for a plurality of items using linear programming which is fundamental economic practice and drawn to an abstract idea. In Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1333 (Fed. Cir. 2015), it was held that determining a price, using organizational and product group hierarchies was held to be an abstract idea. Appeal 2017-010683 Application 13/741,817 7 In OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, (Fed. Cir. 2015) at 1363, it was held that offer-based price optimization was directed to an abstract idea. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) (collecting information, analyzing it, and displaying results from certain results of the collection and analysis was held to be an abstract idea). Thus, we consider the claim to recite an abstract idea as identified above Turning to the second step of the Alice and Mayo framework, we determine that the claim does not contain an inventive concept sufficient to “transform” the abstract nature of the claim into a patent-eligible application. The claims do not improve computer functionality, improve another field or technology, utilize a particular machine, or effect a physical transformation. Rather, we determine that nothing in the claims imposes a meaningful limit on the judicial exception, such that the claims are more than a drafting effort to monopolize the judicial exception. For example, in claim 7 the steps of [1] “receiving a non-linear time- dependent problem”; [2] “determining approximate inventory levels for each item in each time period”; [3] “generating an approximate Mixed Integer Linear Programming (MILP) problem comprising a change of demand”; [4] “solving the MILP problem to generate revised prices and revised inventory levels”; and [5] “assigning the revised prices as the markdown product pricing” are merely conventional steps performed by a generic computer that do not improve computer functionality. That is, these recited steps [1]–[5] “do not purport to improve the functioning of the computer itself” but are merely generic functions performed by a conventional processor. Likewise, Appeal 2017-010683 Application 13/741,817 8 these same steps [1]–[5] listed above do not improve the technology of the technical field and merely use generic computer components and functions to perform the steps. Also, the recited method steps [1]–[5] above do not require a “particular machine” and can be utilized with a general purpose computer, and the steps performed are purely conventional. In this case the general purpose computer is merely an object on which the method operates in a conventional manner and does not provide “significantly more” to the claim beyond a nominal or insignificant execution of the method. Further, the claim as a whole fails to effect any particular transformation of an article to a different state in a manner that would render the claim “significantly more” than the abstract idea. The recited steps [1]–[5] fail to provide meaningful limitations to limit the judicial exception and rather are mere instructions to apply the method to a generic computer. Considering the elements of the claim both individually and as “an ordered combination” the functions performed by the computer system at each step of the process are purely conventional. Each step of the claimed method does no more than require a generic computer to perform a generic computer function. Further, the claim fails to add a specific limitation beyond the judicial exception that is not well-understood, routine, and conventional in the field. Rather, the claim uses well-understood, routine, and conventional activities previously known in the art at a high level of generality to the judicial exception. The Specification at paragraphs 22–25 for example, describes using conventional computer components such as a processor, memory, and a network in a conventional manner. The functions of a computer to implement the method are well-understood, routine, and conventional functions in the field of computers. The Appellants have not shown these Appeal 2017-010683 Application 13/741,817 9 claimed generic computer components, which are used to implement the claimed method, are not well understood, routine, or conventional in the field. The Appellants have not demonstrated that the computer components described in the Specification at paragraphs 22–25 for instance are not general purpose computer components beyond those known to be routine and conventional to perform similar functions in a well-understood manner. The Appellants in the Appeal Brief at page 8 have also cited to McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016), but the claims in that case are distinguished from this case in being directed to rules for lip sync and facial expression animation. For these above reasons, the rejection of claim 7 is sustained. The Appellants have presented the same arguments for the remaining claims which are drawn to similar subject matter and the rejection of these claims is sustained for the same reasons given above. CONCLUSIONS OF LAW We conclude that Appellants have not shown that the Examiner erred in rejecting claims 1, 3–7, 9–13, 15–18, and 22–24 under 35 U.S.C. § 101. Appeal 2017-010683 Application 13/741,817 10 DECISION The Examiner’s rejection of claims 1, 3–7, 9–13, 15–18, and 22–24 is sustained. 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). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation