Ex Parte Fox

Patent Trial and Appeal Board

Dec 12, 2017

14482106 (P.T.A.B. Dec. 12, 2017)

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.
14/482,106 09/10/2014 Billy Shane Fox 333-LAN-05-2005 8558
86548 7590
Garlick & Markison (IH)
106 E. 6th Street, Suite 900
Austin, TX 78701
EXAMINER
REFAI, RAMSEY
ART UNIT PAPER NUMBER
3627
NOTIFICATION DATE DELIVERY MODE
12/14/2017 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):
MMurdock@ TEX ASPATENTS .COM
bpierotti @ texaspatents .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BILLY SHANE FOX
Appeal 2016-005982
Application 14/482,106
Technology Center 3600
Before JEAN R. HOMERE, JOSEPH P. LENTIVECH, and
DAVID CUTITTA, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—20, which constitute all claims pending in this application.1
Claims App’x. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies the real party in interest as iHeartMedia Management
Services. App. Br. 2.
Appeal 2016-005982
Application 14/482,106
Introduction
According to Appellant, the claimed subject matter relates to an
inventory management system (54) for a commercial enterprise including a
number of member media properties at different geographic locations (51),
each having a market area, associated advertising inventory for sale along
with advertising time and future time periods. Spec. 1—2, 20-21, Fig. 6. In
particular, the inventory management system (54) includes an inventory
management software for providing local stations (51) with remote access to
the inventory data in a master database (53) via a wide area network (52).
Id. at 20—21. More particularly, the inventory management software
executes a price forecasting module on the inventory data obtained from the
database to display advertising time segments; it executes a yield
management module to determine inventory pricing; and executes a traffic
billing module to maintain advertising inventory order information. Id. at
18-19, Fig. 5.
Representative Claim
Independent claim 1 is representative, and reads as follows:
1 .A computer implemented inventory management system for
an enterprise that includes a number of member media properties at
different geographic locations each having a market area, and having
associated advertising inventory for sale, wherein the inventory
comprises advertising time associated with future time periods,
comprising:
a master database of advertising inventory data for the
number of member media properties;
inventory management software that uses inventory data
from the master database, which inventory management
software, when executed by the computer implemented
inventory management system, includes:
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Application 14/482,106
a price forecasting system that generates, responsive to
criteria of a customer request, a display of advertising time
segments by accessing inventory information of multiples of
the number of member media properties;
a yield management system that generates and maintains
advertising inventory pricing information for use by the price
forecasting system in accordance with a pricing strategy, in
which the pricing strategy includes demand curves applicable to
sales of advertising time associated with future time periods for
the number of media properties,
wherein:
the yield management system recalculates the advertising
inventory pricing information, based on the pricing strategy, in
response to order confirmations;
a traffic billing system that maintains advertising
inventory order information; and
a wide area network coupled to the computer
implemented inventory management system permitting remote
access to the master database for each of the number of member
media properties.
Rejection on Appeal
Claims 1—20 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. Final Act. 4—5.
ANALYSIS
We consider Appellant’s arguments seriatim, as they are presented in
the Appeal Brief, pages 9-21, and the Reply Brief, pages 1—5.2 We are
2 Rather than reiterate all the arguments of Appellant and all the Examiner’s
findings, we refer to the Appeal Brief (filed October 23, 2016), the Reply
Brief (filed May 20, 2016), and the Answer (mailed March 21, 2016)
(“Ans.”) for the respective details. We have considered in this Decision
only those arguments Appellant actually raised in the Briefs. Any other
arguments Appellant could have made but chose not to make in the Briefs
are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 14/482,106
unpersuaded by Appellant’s contentions. Except as otherwise indicated
hereinafter, we adopt as our own the findings and reasons set forth in the
Final Action, and the Examiner’s Answer in response to Appellant’s Appeal
Brief. Final Act. 2—5, Ans. 2-4. However, we highlight and address
specific arguments and findings for emphasis as follows.
Appellant argues the Examiner erred in concluding that claims 1—20
are directed to an abstract idea without considering whether the claims as a
whole amount to significantly more than the alleged judicial exception.
App. Br. 9. In particular, Appellant argues the following:
Appellant respectfully submits that the steps taken alone or as
an ordered combination do amount to claims as a whole that are
significantly more than the judicial exception, because the
combination amounts inventory management in view of advertisement
requirements by purchasers and on confirmed orders for advertising
time for a collection of member stations, and further, pricing data
recalculated based on the confirmed orders. (See July 2015 Update
Appendix 1:Examples at p. 12 (referring to example 24)).
Also, without documentary evidence to support the conclusions,
the Final Office Action seems to infer "official notice" in the abstract
to the rejection under Section 101, by submitting that the "claims'
[generic] use of a 'master database', a 'computer', and a 'wide area
network' add no inventive concept." (Final Office Action at p. 2).
That is, the Final Office Action relates the claims to base limitations
without consideration of the claims as a whole.
App. Br. 11.
According to Appellant, the claimed subject matter is patent eligible
under the rationale of DDR Holdings, LLC v. Hotels.com, LP. (Fed. Cir.
2014)). In particular, Appellant argues the following:
Similar to DDR Holdings, the Appellant's claims are directed,
inter alia, to inventory management of advertising inventory data for
member media properties at different geographic locations and market
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Application 14/482,106
areas and associated advertising for sale. (See, e.g., Claims 1 and 8).
The apparatus is directed towards inventory management in view of
requirements and on confirmed orders for advertising time. (Id.; see
also, Claim 14). In this respect, the solution-advertisement
valuation/purchase for disparate geographic regions of member
stations is necessarily rooted in computer technology to overcome the
problem of nonsensical pricing variations, or advertisement inventory
that may occur.
Id. at 11—12.
Appellant respectfully submits that "the claim is eligible
because it recites additional limitations that when considered as an
ordered combination demonstrates a technologically rooted solution to
an Internet-centric problem and thus amounts to significantly more
than comparing and organizing information for transmission." (See
July 2015 Update Appendix 1 .'Examples at p. 1 (referring to example
21 based on Google, Inc. v. Simpleair, Inc., Covered Business Method
Case No. CBM 2014-00170 (Jan. 22, 2015))).
Appellant respectfully submits that the positive recitation of
elements, and coordinated functionality and/or synergy provided by
the combination of the elements, bring "enough extra" to overcome
the rejection under Section 101, particularly in view of the lack of
evidentiary support in the rejection.
Id. at 13.
With the claim elements recited, with the flow of information
to, from, and between the database, the inventory management
software with price forecasting program logic, yield management
program logic to generate advertising sales for future time periods of
radio stations along with traffic billing program logic provides a
synergistic combination that provides a vast improvement in handling
last minute ad placement changes over geographic areas accessing
such capabilities remotely.
The claims, therefore, are respectfully submitted as amounting
to significantly more than the underlying minimized characterization
by the Final Office Action. The Appellant respectfully submits that
the claims contain subject matter eligible for patent protection. (See
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Application 14/482,106
July 2015 Update: Subject Matter Eligibility at pp. 4—5).
Id. at 14.
These arguments are not persuasive. The U.S. Supreme Court
provides a two-step test for determining whether a claim is directed to
patent-eligible subject matter under 35 U.S.C. § 101.3 In the first step, we
determine whether the claims are directed to one or more judicial exceptions
(i.e., law of nature, natural phenomenon, and abstract ideas) to the four
statutory categories of invention (i.e., process, machine, manufacture, and
composition of matter). Id. (citations omitted) (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296—97 (2012))
(“Mayo”). In the second step, we “consider the elements of each claim both
individually and ‘as an ordered combination’ to determine whether the
additional elements ‘transform the nature of the claim’ into a patent-eligible
application.” Id. (citing Mayo, 132 S. Ct. at 1297—98). In other words, the
second step is to “search for an ‘inventive concept’—i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Id. (citingMayo, 132 S. Ct. at 1294).
At the outset, we note Appellant does not dispute the Examiner’s
conclusion that the claimed subject matter pertains to the abstract idea of
“managing commercial inventory”, including the notions of “handling
intermittent placement of orders and reservations for media commercial time
by advertisers, agencies, and customers using price forecasting and traffic
3 Alice Corp. Pty. Ltd. v. CLSBankInt’l, 124 S. Ct. 2347, 2354 (2014).
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billing.” Ans. 2, Final Act. 2, 4. As correctly noted by the Examiner, the
cited steps are conventionally carried out by humans mentally or using pen
and paper in the course of managing commercial inventory and optimizing
prices in the business environment. Ans. 2, see, e.g., Elec. Power Grp. v.
Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (claims directed to
collection, manipulation, and display of data); Intellectual Ventures ILLC v.
Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015)
(customizing information and presenting it to users based on particular
characteristics); Content Extraction and Transmission LLC v. Wells Fargo
Bank, National Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (“collecting
data,. . . recognizing certain data within the collected data set, and . . .
storing that recognized data in a memory”). That these claims are directed
to an abstract idea is confirmed by the fact that the claimed inventory
management system performs actions of the type that could be performed
manually. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1373 (Fed. Cir. 2011) (“[A] method that can be performed by human
thought alone is merely an abstract idea and is not patent-eligible under
§ 101.”)-
We likewise find unpersuasive Appellant’s argument that, similarly to
DDR Holdings, the claimed “inventory management of advertising inventory
data for member media properties at different geographic locations and
market areas and associated advertising for sale... is necessarily rooted in
computer technology to overcome the problem of nonsensical pricing
variations or advertisement inventory that may occur.” App. Br. 11—12.
Prior to the Internet, such activities were widely practiced, and became
computerized in database systems with the assistance of human
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administrators to facilitate inventory management process and optimization
of prices. See OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359,
1362 (Fed. Cir. 2015), cert, denied, 136 S.Ct. 701 (2015) (“method of
pricing a product for sale” and “apparatus for use in electronic commerce”
relates to the concept of “offer based pricing” similar to other fundamental
economic concepts found to be abstract ideas.). As correctly noted by the
Examiner, although the claimed subject matter evokes the use of a computer,
a master data base and a wide area network (WAN) to facilitate inventory
management and pricing optimization, the recited functions of those
elements are conventional, well-understood, and do not go beyond those of a
general purpose computer for merely accessing, manipulating, and
displaying data in a distributed environment. Ans. 2-4. Therefore, we agree
with the Examiner that the DDR Holdings precedent is not applicable here
because the claimed subject matter merely recites the performance of a
business practice known from the pre-Internet era, and it is not necessarily
rooted in computer technology. Id. Thus, we agree with the Examiner that
the elements of claim 1, considered as a whole, do not amount to
“significantly more” than the abstract idea of using conventional elements
(e.g., general purpose computer, database, and WAN) to facilitate inventory
management and price optimization. Therefore, they do not add any
meaningful limitations beyond generally linking the abstract idea to the
particular technological environment. Id A Accordingly, we are not
4 Considerations for determining whether a claim with additional elements
amounts to “significantly more” than the judicial exception itself include
improvements to another technology or technical field (Alice Corp., 134 S.
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persuaded of error in the Examiner’s conclusion that claims 1—20 are
directed to non-statutory subject matter.
DECISION
For the above reasons, we affirm the Examiner’s nonstatutory subject
matter rejection of claims 1—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)(l)(iv).
AFFIRMED
Ct. at 2359 (citing Diamond v. Diehr, 450 U.S. 175, 177—78 (1981)));
adding a specific limitation other than what is well-understood, routine
and conventional in the field, or adding unconventional steps that confine
the claim to a particular useful application (Mayo, 132 S. Ct. at 1299, 1302);
or other meaningful limitations beyond generally linking the use of the
judicial exception to a particular technological environment (Alice Corp.,
134 S. Ct. at 2360). See, e.g., Intellectual Ventures ILLC v. Capital One
Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“[Mjerely adding
computer functionality to increase the speed or efficiency of the process
does not confer patent eligibility on an otherwise abstract idea.”).
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