Ex Parte Faith et al

Patent Trial and Appeal Board

Dec 21, 2018

12581753 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/581,753 10/19/2009 Patrick Faith
66945 7590 12/26/2018
KILPATRICK TOWNSEND & STOCKTONLLP/VISA
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
79900-768598(042910US) 3234
EXAMINER
CHAKRA V ART!, ARUNA VA
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
12/26/2018 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):
ipefiling@kilpatricktownsend.com
KTSDocketing2@kilpatrick.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PA TRICK FAITH, A YMAN HAMMAD, and
JACK COYNE
Appeal2017-001155
Application 12/581,753
Technology Center 3600
Before ROBERT E. NAPPI, JOYCE CRAIG, and PHILLIP A. BENNETT,
Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 27-31, 33--48, and 51-54. Claims 1-26, 32, 49, and
50 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Visa International
Service Association. App. Br. 2.
Appeal2017-001155
Application 12/581,753
INVENTION
Appellants' invention relates to processing enrollment requests.
Abstract. Claim 27 is illustrative and reads as follows:
27. A computer implemented enrollment method comprising:
receiving an enrollment request from a user access device,
by an enrollment server computer, the enrollment request
requesting enrollment in a notification service, and including
information identifying a requestor, wherein the information
identifying the requestor comprises a name of the requestor, a
transaction account identifier, and a cellular telephone number of
the requestor;
sending, by the enrollment server computer, at least a first
portion of the identifying information to a first verifying entity
computer, wherein the first verifying entity computer is an
account issuer computer, and wherein the first portion of the
identifying information comprises the transaction account
identifier;
sending, by the enrollment server computer, at least a
second portion of the identifying information to a second
verifying entity computer, wherein the second verifying entity
computer is a telecommunications carrier computer, and wherein
the second portion of the identifying information comprises the
name of the requestor and the cellular telephone number of the
requestor;
receiving, by the enrollment server computer, from the
first verifying entity computer a first indication of the first
portion of identifying information matching identifying
information stored by the first verifying entity computer;
receiving, by the enrollment server computer, from the
second verifying entity computer a second indication of the
second portion of identifying information matching identifying
information stored by the second verifying entity computer;
comparing, by the enrollment server computer, the
enrollment request with a requestor's transaction history;
determining, by the enrollment server computer, based on
comparing the enrollment request with the requestor's transaction
history, that the enrollment request fits within a profile of the
requestor based on the requestor's transaction history; and
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after comparing, allowing, by the enrollment server
computer, the enrollment request based on the first indication,
the second indication, and the comparison of the requestor's
transaction history, wherein, after allowing, a notification is
sent to a cellular telephone associated with the cellular
telephone number after a transaction.
REJECTIONS
Claims 27-31, 33--48, and 51-54 stand rejected under 35 U.S.C. § 101
because the claimed invention is directed to a judicial exception, without
significantly more. Final Act. 2-3.
Claims 27, 29-31, 33, 34, 38, 39, 44, 45, 48, and 51-54 stand rejected
under 35 U.S.C. § I03(a) as unpatentable over the combination of Zarin et
al. (US 2002/0138418 Al; published Sept. 26, 2002) ("Zarin") and Clower
et al. (US 7,529,710 Bl; issued May 5, 2009) ("Clower"). Final Act. 4--11.
Claims 28 and 40 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over the combination of Zarin, Clower, and Kala et al. (US
8,688,503 B2; issued Apr. 1, 2014) ("Kala"). Final Act. 12-13.
Claims 35-37, 46, and 47 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over the combination of Zarin, Clower, and Skowronek (US
2010/0114773 Al; published May 6, 2010). Final Act. 13-15.
Claims 41--43 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over the combination of Zarin, Clower, and Golan (US 2005/0097320 Al;
published May 5, 2005). Final Act. 16-17.
ANALYSIS
Rejection of Claims 27-31, 33-48, and 51-54 under 35 USC§ 101
We have reviewed the rejections of claims 27-31, 33--48, and 51-54
in light of Appellants' arguments that the Examiner erred. We have
considered in this decision only those arguments Appellants actually raised
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in the Briefs. Any other arguments Appellants could have made, but chose
not to make, in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv).
Appellants' arguments are not persuasive of error. We agree with and
adopt as our own the Examiner's findings of facts and conclusions as set
forth in the Answer (Ans. 2-10) and in the Action from which this appeal
was taken (Final Act. 2-3). We provide the following explanation for
emphasis.
As an initial matter, we note that Appellants refer to the identified
abstract idea as "verifying enrollment process." See id. ( citing Final Act. 3).
Nowhere, however, does the Examiner identify the abstract idea as
"verifying enrollment process." See Final Act. 3. In the Reply Brief,
Appellants acknowledge that "[ fJor brevity, the Appellant summarized the
alleged abstract idea as a 'verifying enrollment process."' Reply Br. 2.
Thus, throughout the appeal brief, Appellants refer to an abstract idea of
their own making, not to the abstract idea identified by the Examiner.
Appellants contend the Examiner did not make a prima facie case of
patent ineligibility because the Examiner failed to provide "evidence to
establish that a 'verifying enrollment process' is a 'certain method of
organizing human activity,' and/or an 'abstract idea."' App. Br. 12.
We disagree. Patent eligibility under 35 U.S.C. § 101 is a question of
law that is reviewable de novo. See Dealertrack, Inc. v. Huber, 674 F.3d
1315, 1333 (Fed. Cir. 2012). We are aware of no controlling authority that
requires the Office to provide factual evidence under step one of the Alice
framework to support a determination that a claim is directed to an abstract
idea. Instead, the Federal Circuit has repeatedly noted that "the prima facie
case is merely a procedural device that enables an appropriate shift of the
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burden of production." Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir.
2007) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)).
The Examiner satisfies the burden of establishing a prima facie case
under 35 U.S.C. § 132 by setting forth a rejection in a sufficiently articulate
and informative manner. In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011).
If the Examiner "adequately explain[ s] the shortcomings ... the burden
shifts to the applicant to rebut the prima facie case with evidence and/or
argument." Hyatt, 492 F.3d at 1370. The Final Office Action adequately
explains the§ 101 rejection. See Final Act. 2-3. The Examiner's statements
satisfy§ 132(a) because they apply the Alice analytical framework and
apprise Appellants of the reasons for the§ 101 rejection under that
framework. Appellants have not responded by alleging a failure to
understand the rejection. To the contrary, Appellants clearly identify the
abstract idea identified by the Examiner. See Reply Br. 2.
For these reasons, we are not persuaded that the Examiner failed to
make a prima facie case of patent invalidity under § 101.
Alice Step One: Abstract Idea
Appellants contend the claims are not directed to an abstract idea
because "the claimed solution is necessarily rooted in computer technology
in order to overcome a problem specifically arising in the realm of online
computing." App. Br. 10 (citing DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1259 (Fed. Cir. 2014)). Appellants argue claim 27 provides
"an enrollment server computer that can identify and separate different sets
of consumer information and communicate with different verifying entity
computers to validate that the different sets of consumer information are
valid." Id. Appellants further argue "there is no 'pre-computer' business
practice directly analogous to the steps in independent claim 27." Id. at 11.
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Appellants also argue the claims "do not preempt every application of some
abstract idea." Id.
We are not persuaded that the Examiner erred. In DDR Holdings, the
Federal Circuit determined that certain claims satisfied Alice step two
because "the claimed solution amount[ ed] to an inventive concept for
resolving [a] particular Internet-centric problem," i.e., a challenge unique to
the Internet. DDR Holdings, 773 F.3d at 1257-59; see Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (noting that
"[i]n DDR Holdings, we held that claims 'directed to systems and methods
of generating a composite web page that combines certain visual elements of
a 'host' website with content of a third-party merchant' contained the
requisite inventive concept"). The Federal Circuit explained that the patent-
eligible claims specified "how interactions with the Internet are manipulated
to yield a desired result ... that overrides the routine and conventional
sequence of events ordinarily triggered by the click of a hyperlink." DDR
Holdings, 773 F.3d at 1258. The court reasoned that those claims recited a
technological solution "necessarily rooted in computer technology" that
addressed a "problem specifically arising in the realm of computer
networks." Id. at 1257.
The claims here do not address a similar problem and do not contain a
similar inventive concept as the patent-eligible claims in DDR Holdings.
Instead, as the Examiner points out, the claims are directed to the abstract
concept of verifying the identity of a requestor by comparing identification
with a third party database and comparing the requested action with past
actions of facilitating a purchase. Ans. 4. That the claim uses two
computers, rather than one, to accomplish this is not sufficient to persuade
us that the claims are "necessarily rooted in computer technology."
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Moreover, Appellants have not persuaded us of error in the
Examiner's reliance on cases finding similar concepts abstract. See Ans. 4;
Reply Br. 4. Abstract ideas include the concepts of collecting data,
recognizing certain data within the collected data set, and storing the data in
memory. Content Extraction & Transmission LLC v. Wells Fargo Bank,
N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Additionally, the collection of
information and analysis of information ( e.g., recognizing certain data
within the dataset) are also abstract ideas. Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016). Similarly, "collecting,
displaying, and manipulating data" is an abstract idea. Intellectual Ventures
I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017).
Further, a process that employs mathematical algorithms to manipulate
existing information to generate additional information is abstract. Digitech
Image Techs., LLC v. Elec. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir.
2014). Also, more recently, our reviewing court has also concluded that acts
of parsing, comparing, storing, and editing data are abstract ideas.
Berkeimer v. HP Inc., No. 2017-1437, 2018 WL 774096, at *5 (Fed. Cir.
2018). Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., 855 F.3d
1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea (math) to another
abstract idea ... does not render the claim non-abstract."); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016) ( determining the pending claims were directed to a combination of
abstract ideas).
Appellants' argument that the abstract idea underlying the claims
cannot be performed in the human mind or with a pen and paper is not
persuasive of error. As the Examiner stated, the claims verify whether
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persons enrolling in an existing notification service are authorized by
sending two portions of the identifying information of the requesting user to
two verifying entities to determine if they match the identifying information
stored in each of them. Ans. 3--4 (citing Spec. ,r,r 8-10). The claims also
compare the enrollment request with the requestor's transaction history, the
comparison indicating a degree to which the enrollment request matches the
requestor's transaction history profile. Id. Based on the above verification
steps, the claims either allow or deny the enrollment request based on the
first indication, the second indication, and the comparison of the requestor' s
transaction history. Appellants have not persuaded us that a computer is
needed to perform the above steps. Indeed, the steps could have been
performed with pen and paper before the advent of computers. See Ans. 7-
8.
Moreover, Appellants' argument that the claims do not preempt
"every application of some abstract idea" is also not persuasive. See App.
Br. 11. Preemption is not the sole test for patent eligibility, and any
questions on preemption in the instant case have been resolved by the
Examiner's Alice analysis. As our reviewing court has explained: "questions
on preemption are inherent in and resolved by the § 101 analysis," and,
although "preemption may signal patent ineligible subject matter, the
absence of complete preemption does not demonstrate patent eligibility."
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015); cf OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63
(Fed. Cir. 2015) ("[T]hat the claims do not preempt all price optimization or
may be limited to price optimization in the e-commerce setting do not make
them any less abstract.").
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For these reasons, we are not persuaded the Examiner erred in
concluding the claims are directed to the abstract idea of "verifying the
identify of a requestor by comparing identification with a third party
database and comparing the requested action with past actions." Ans. 4.
Because we determine the claims are directed to an abstract idea, we analyze
the claims under step two of Alice to determine if there are additional
limitations that individually, or as an ordered combination, ensure the claims
amount to "significantly more" than the abstract idea. Alice, 134 S. Ct. at
2355. The implementation of the abstract idea involved must be "more than
[the] performance of 'well-understood, routine, [and] conventional activities
previously known to the industry."' Content Extraction, 776 F.3d at 1347-
48 (quoting Alice, 134 S. Ct. at 2359) (alteration in original).
Alice Step Two: Significantly More
Turning to Alice step two, Appellants argue the Examiner erred
because the recited claim elements apply the abstract idea with, or by use of,
a particular machine, as the claims recite the use of an enrollment server
computer, as well as additional computer terminals (a first verifying entity
computer, a second verifying entity computer, a user access device, and a
cellular telephone). App. Br. 16. Appellants also argue in a conclusory
manner that "the recited claim elements clearly 'add[] a specific limitation
other than what is well-understood, routine and conventional in the field' or
'add[] unconventional steps that confine the claim to a particular useful
application."' Id. Appellants further argue that, because not all limitations
in the claims are in the prior art, the invention cannot simply relate to
conventional practices. Id.
We disagree with Appellants. Considering the recited elements of the
claims in light of Appellants' Specification, we agree with the Examiner's
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findings that the additional elements are generic computer components
recited as performing generic computer functions that are well-understood,
routine and conventional activities, and amount to no more than
implementing the abstract idea with a computerized system. See Ans. 5-8.
The Examiner determined the elements of claim 27, when considered
individually or in combination, do not recite substantially more than the
abstract idea. See Final Act. 3; see also Ans. 5-8. The Examiner further
found claim 27 recites additional elements that amount to no more than: (i)
mere instructions to implement the idea on a computer; and (ii) a recitation
of generic computer structure that serves to perform generic computer
functions that are well-understood, routine, and conventional activities
previously known to the pertinent industry. See Final Act. 3. We agree with
the Examiner that the additional claim elements do not provide meaningful
limitations to transform the abstract idea into a patent eligible application of
the abstract idea because the claim does not effect an improvement to
another technology or technical field, the claim does not amount to an
improvement to the functioning of a computer itself, and the claim does not
move beyond a general link of the use of an abstract idea to a particular
technological environment. See Ans. 5-8. For the reasons stated by the
Examiner, we agree with the Examiner's findings and conclusions.
We are not persuaded by Appellants' argument that claim 27 is
similar to the claims in DDR Holdings. See App. Br. 17-19. In DDR
Holdings, the disputed claims solved an Internet-specific problem with an
Internet-based solution that was "necessarily rooted in computer technology
in order to overcome a problem specifically arising in the realm of computer
networks." DDR Holdings, 773 F.3d at 1257-58. That is not the case here.
Instead, consistent with the Examiner's findings, the problem of validating
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different sets of consumer information provided for enrolling in a
notification service is not a problem specifically arising in the realm of
computer networks, and users previously had, and currently can, provide
such information for validation and authorization without the use of a
computer. See Ans. 4, 7-8.
Appellants' argument that claim 27 does not recite functionality that is
well-understood, routine, and conventional is also not persuasive. See App.
Br. 13. Appellants' Specification provides evidence that the claimed
"computer" is a general-purpose computer processor that performs functions
that are routine, conventional, and well-understood to one of ordinary skill in
the relevant art. See, e.g., Spec. ,r 74. The Specification also describes the
recited "cellular telephone" (see Spec. ,r 7 6-80) and "database" (see Spec. ,r
21) in a generic manner. Courts have recognized receiving or transmitting
data over a network as well-understood, routine, and conventional functions
when they are claimed in a merely generic manner or as insignificant extra-
solution activity. Intellectual Ventures I LLC v. Symantec, 838 F.3d 1307
(Fed. Cir. 2016) (utilizing an intermediary computer to forward
information); TL! Communications LLC v. AV Auto. LLC, 823 F .3d 607, 610
(Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs.,
Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (sending
messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350,
1355 (Fed. Cir. 2014) (computer receives and sends information over a
network). MPEP 2106.05(d). Courts have also found storing and retrieving
information in memory well-understood, routine, and conventional. Versata
Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015);
OIP Techs., 788 F.3d at 1363.
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We also are not persuaded by Appellants' argument that claim 27
improves the functionality of a general-purpose computer. See App. Br. 14.
Appellants have not identified any portion of the Specification, nor provided
any evidence or technical reasoning, persuasively demonstrating claim 27 is
directed to a technical advance or improvement to computer functionality.
In view of Appellants' Specification, and consistent with the
Examiner's determinations, we determine the claims do not recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a different
state or thing;
( v) other meaningful limitations beyond generally linking the use
of the abstract idea to a particular technological environment; or
(vi) a specific limitation other than what is well-understood, routine,
conventional activity in the field or unconventional steps that confine
the claim to a particular useful application.
See Manual of Patent Examining Procedure ("MPEP") § 2106.05. Thus, the
claims are not directed to something significantly more than the abstract
idea.
Moreover, an abstract idea is not transformed into an inventive
concept just because the Examiner has not found prior art that discloses or
suggests it, as Appellants argue here. "Groundbreaking, innovative, or even
brilliant discovery does not by itself satisfy the § 101 inquiry." Ass 'n for
Molecular Pathologyv. Myriad Genetics, Inc., 133 S. Ct. 2107, 2117 (2013).
Indeed, "[t]he 'novelty' of any element or steps in a process, or even of the
process itself, is of no relevance in determining whether the subject matter of
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a claim falls within the § 101 categories of possibly patentable subject
matter." Diamondv. Diehr, 450 U.S. 175, 188-89 (1981).
For these reasons, we are not persuaded of error in the Examiner's
conclusion that the claims are not directed to patentable subject matter.
Accordingly, we sustain the Examiner's rejection of independent claim 27.
For similar reasons, we also sustain the Examiner's rejection of independent
claims 39 and 52, which recite similar limitations and were not argued
separately. See App. Br. 20. Additionally, we sustain the Examiner's
rejection of claims 28-31, 33-38, 40-48, 51, 53, and 54, which depend
therefrom and were not argued separately. See App. Br. 20; 37 C.F.R.
§ 4I.37(c)(1)(iv)(2015).
Rejection of Claims 27-31, 33-48, and 51-54 under 35 US.C. § 103(a)
Appellants contend the Examiner erred because the combination of
Zarin and Clower fails to teach the two "sending" steps of claim 27. App.
Br. 24. In particular, Appellants argue that Clower does not teach sending a
"first portion" of identifying information to a "first verifying entity
computer" and a "second portion" of identifying information to a "second
verifying entity computer." Id. Appellants argue that communication with
only one third party identity verification data store is used to verify all of the
identity data is mentioned in Clower. Id. Appellants further argue that
Clower does not teach or suggest verifying identifying information at an
"account issuer computer" or a "telecommunications carrier computer," as
claim 27 requires. Id. at 25.
We agree with Appellants that the Examiner erred. The Examiner
concluded, without documentary support, that it would have been obvious to
select as a verification service, a provider that services and possesses data
about the customer (e.g., bank, card issuer, phone/internet/television
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provider, utility company, etc.) and use customer information stored in the
database (e.g., name, account number or phone number) to verify the
identity of the customer. Final Act. 8-9. The Examiner also concluded,
again without documentary support, that it would have been obvious to use
two or more external verification entities that could independently perform
user authentication. Ans. 14.
We are persuaded that the Examiner erred. The Federal Circuit has
repeatedly warned that references to "common sense"-whether to supply a
motivation to combine or a missing limitation----cannot be used as a
wholesale substitute for reasoned analysis and evidentiary support,
especially when dealing with limitations missing from the cited prior art, as
is the case here. See Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1362
(Fed. Cir. 2016). To the extent the Examiner intended to take "official
notice" of the facts underlying the above conclusions, official notice
unsupported by documentary evidence should only be taken where the facts
asserted to be well-known, or to be common knowledge in the art are
capable of instant and unquestionable demonstration as being well-known.
In reAhlert, 424 F.2d 1088, 1091 (CCPA 1970); see MPEP § 2144.03. This
is not the case here, as the Examiner did not officially notice a fact, let alone
a fact capable of instant and unquestionable demonstration, but instead
officially noticed a legal conclusion of obviousness. Moreover, we find the
underlying facts are not "capable of such instant and unquestionable
demonstration as to defy dispute." See In re Ahlert, 424 F.2d at 1091.
Because we agree with at least one of the dispositive arguments
advanced by Appellants, we need not reach the merits of Appellants' other
arguments. Accordingly, on the record before us, we do not sustain the
Examiner's§ 103(a) rejection of independent claim 27, as well as the
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Examiner's§ 103(a) rejection of independent claims 39 and 52, which
contain similar limitations and which Appellants argue are patentable for
similar reasons. App. Br. 31. We also reverse the Examiner's rejection of
dependent claims 28, 35-37, 40-43, 46, and 47, which stand with the
independent claims from which they depend.
DECISION
We affirm the Examiner's decision rejecting claims 27-31, 33--48,
and 51-54 under 35 U.S.C. § 101.
We reverse the Examiner's decision rejecting claims 27-31, 33--48,
and 51-54 under 35 U.S.C. § 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner's decision rejecting claims 27-31, 33-
48, and 51-54 is affirmed. See 37 C.F.R. § 4I.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See
37 C.F.R. § 41.50(±).
AFFIRMED
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