Ex Parte Hartung et al

Patent Trial and Appeal Board

Apr 6, 2018

11718585 (P.T.A.B. Apr. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111718,585 07/25/2008
27045 7590
ERICSSON INC.
6300 LEGACY DRIVE
MIS EVR 1-C-11
PLANO, TX 75024
04/10/2018
FIRST NAMED INVENTOR
Frank Hartung
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.
P20059-US1 8026
EXAMINER
REAGAN, JAMES A
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
04/10/2018 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):
michelle.sanderson@ericsson.com
pam.ewing@ericsson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK HARTUNG, UWE HORN, and
MARKUS KAMPMANN
Appeal2016-008639
Application 11/718,585
Technology Center 3600
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
Opinion for the Board filed by BUSCH, Administrative Patent Judge.
Opinion dissenting-in-part filed by WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims 24--46, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
Claims 1-23 were cancelled.
We affirm.
1 Appellants identify the real party in interest as Telefonaktiebolaget LM
Ericsson. App. Br. 1.
Appeal 2016-008639
Application 11/718,585
CLAIMED SUBJECT MATTER
Appellants' claimed invention relates to a method of registering a
device with a rights issuer system. Spec. 1. According to the Specification,
"the invention can be practised (even) when the device is offline, inactive
and/or switched-off." Id. at 4. Claim 24 is representative and reproduced
below:
24. A method of registering a device with a rights issuer
system in a digital rights management context, the method
comprising the steps of:
- generating registration information, comprising
acquiring rights issuer information;
receiving device information, the device being in at
least one of an offline state, an inactive state and a
switched-off state;
generating the registration information from the
rights issuer information and the device information,
wherein the registration information includes information
required to use protected content; and
- transferring the registration information towards the
device while the device is in the at least one of an offline state,
an inactive state and a switched-off state.
REJECTIONS
Claims 24--46 stand rejected under 35 U.S.C. § 101, as being directed
to non-statutory subject matter. See Final Act. 7-10.
Claims 24--35, 39--43, and 46 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Stefik (US 2003/0023561 Al; Jan. 30, 2003) and
Watanabe (US 2001/0042125 Al; Nov. 15, 2001). See Final Act. 12-16.
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Claims 36-38, 44, and 45 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Stefik, Watanabe, and Official Notice. See Final
Act. 17.
THE§ 101 REJECTION
The Examiner concludes the independent claims are directed to an
abstract idea, namely a method of organizing human activity and an idea of
itself. Ans. 6-7. The Examiner adds the remaining elements do not include
significantly more than the abstract idea because the generically-recited
computer elements are well-understood, routine, and conventional, and
therefore do not add a meaningful limitation to the abstract idea. Id. at 8.
Appellants argue the claims are not directed to an abstract idea, but
even assuming they are directed to an abstract idea, the claims recite
significantly more than an abstract idea. App. Br. 6-9; Reply Br. 2--4.
ISSUE
Under § 101, has the Examiner erred in rejecting claim 24 as directed
to ineligible subject matter? This issue turns on whether claim 24 is directed
to an abstract idea under the analysis set forth in Mayo Collaborative
Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012) and Alice
Corp. Party Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014).
ANALYSIS
To be eligible under 35 U.S.C. § 101, the subject matter of an
invention must be a "new and useful process, machine, manufacture, or
composition of matter, or [a] new and useful improvement thereof."
35 U.S.C. § 101. We initially note that claims 24--42 are directed to a
"method," i.e., a process, and claims 43--46 are directed to a "system"
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implemented in a "device" and an "apparatus," i.e., a machine. Thus, each
of the claims is directed to one of the four statutory categories of patentable
subject matter.
The Supreme Court has held there are implicit exceptions to the
categories of patentable subject matter identified in § 101, including laws of
nature, natural phenomena, and abstract ideas. Alice, 134 S. Ct. at 2355.
Further, the Court has "set forth a framework for distinguishing patents that
claim laws of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts." Id. (citing Mayo, 566
U.S. 66). The evaluation follows the two-part analysis set forth in Mayo: 1)
determine whether the claim is directed to an abstract idea; and 2) if the
claim is directed to an abstract idea, determine whether any element, or
combination of elements, in the claim is sufficient to ensure that the claim
amounts to significantly more than the abstract idea itself. See Alice,
134 S. Ct. at 2355.
ALICE STEP ONE
Following the Court's guidance, we tum to the first step of the
Mayol Alice analysis to determine if the claim is directed to one of the
judicial exceptions, i.e., an abstract idea. According to Alice step one, "[ w ]e
must first determine whether the claims at issue are directed to a patent-
ineligible concept," such as an abstract idea. Alice, 134 S. Ct. at 2355
(emphasis added). "[T]he 'directed to' inquiry applies a stage-one filter to
claims, considered in light of the specification, based on whether 'their
character as a whole is directed to excluded subject matter."' Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
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Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015)). We must ask whether the "focus of the claimed advance over the
prior art" is directed to patent-ineligible subject matter. Affinity Labs of
Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016).
The Specification provides evidence as to what the invention is
directed to. In this case, the Specification discloses that a goal of the
claimed invention is to provide "a registration technique that does not
necessarily require an interactive communication in order to provide the
device with registration information required to utilize protected content and
that does not burden the device with excessive [digital rights management
(DRM)] processing operations." Spec. 3. According to the Specification,
Appellants' invention allegedly achieves the goal by allowing a rights issuer
server to generate registration information for a device by receiving device
information from a DRM capability server. Id. at 12. "[T]he registration
information is [then] transferred towards the device while the device is at
least one of offline, inactive and switched-off." Id. at 4.
Appellants argue the claims as a group. See App. Br. 5-9; Reply
Br. 2--4. We, therefore, select independent claim 24 as the representative
claim for this group, and the remaining claims 25--46 stand or fall with claim
24. 37 C.F.R. § 41.37(c)(l)(iv) (2016). Although particular details recited in
claim 24 limit the process to registration with a rights issuer in a DRM
system, claim 24, as a whole, is directed to device registration-an abstract
idea. Here, even claim 24' s preamble, directed to "a method of registering a
device with a rights issuer system in a [DRM] context," further supports that
claim 24 's character as a whole is directed to device registration.
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Device registration is a basic a concept similar to other concepts
found to be abstract ideas. In particular, the Federal Circuit determined that
claims directed to budgeting were abstract. Intellectual Ventures I LLC v.
Capital One Bank, 792 F.3d 1363, 1367 (Fed. Cir. 2015). The claims at
issue in Intellectual Ventures included storing a user "profile keyed to a user
identity" containing categories with limits for tracking transactions and
communicating a transaction summary. Id. The Court determined that the
claims were directed to an abstract idea of tracking financial transactions,
summarized as "budgeting." Id. The Court explained that the claims were
thus similar to other methods of organizing human behavior that the
Supreme Court had previously found to be abstract. Id. at 1367-68.
Appellants' claims are similar in that they recite additional limitations
regarding details of the environment in which the device is registered and
communicating the registration information, which do not meaningfully
differentiate Appellants' claims from other methods of organizing human
activity determined to be abstract.
Furthermore, the concept of device registration merely involves
collecting, storing, and transmitting information related to a particular device
and the service or entity with which the device is being registered. The
Federal Circuit has determined claims directed merely to the manipulating
data (including analysis, organization, and classification of such data) to be
abstract as fundamental concepts and methods of organizing human activity.
See, e.g., In re TL! Commc'ns LLC Patent Litig., 823 F.3d 607, 613 (Fed.
Cir. 2016) (determining claims directed to "classifying and storing digital
images in an organized manner" were directed to an abstract idea); Elec.
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Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1343 (Fed. Cir. 2016)
(holding claims focused on collecting and analyzing information, and
presenting the results thereof to be an abstract idea); Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat 'l Ass 'n, 776
F.3d 1343, 1347 (Fed. Cir. 2014) (determining collecting, recognizing,
and storing data is an abstract idea).
As for the more specific application of the abstract idea discussed
above, contrary to Appellants' argument, App. Br. 6; Reply Br. 2-3, this is
insufficient to change the abstract character of the claimed subject matter as
a whole. Cf CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1371 (Fed. Cir. 2011) ("The Court [in Parker v. Flook, 437 U.S. 584 (1978)]
rejected the notion that the recitation of a practical application for the
calculation could alone make the invention patentable."); see also TL!, 823
F.3d at 613.
For the reasons discussed above, claim 24 is directed to device
registration, which is an abstract idea under the first step of the analysis.
Appellants' contention that, without additional explanation, merely
categorizing the claims as an idea of itself or methods of organization human
activity "is insufficient to satisfy the first enquiry of§ 101 analysis" is
unavailing. Reply Br. 2. The Examiner's rejection provided sufficient detail
to permit Appellants to respond meaningfully. See In re Jung, 637 F.3d
1356, 1362 (Fed. Cir. 2011).
ALICE STEP Two
Turning to the second step of the Alice analysis, because we determine
that claim 24 is directed to an abstract idea, we "consider the elements of
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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." Alice, 134 S. Ct. at 2355 (quoting Mayo, 566
U.S. at 78). The Supreme Court describes the second step of this analysis as
"a 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.
(brackets in original) (internal quotations omitted).
At the outset, we note the "machine-or-transformation" test, although
not the only test, can nevertheless provide a "'useful clue' in the second step
of the Alice framework." Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
716 (Fed. Cir. 2014) (quoting Bilski v. Kappas, 561 U.S. 593, 594 (2010)).
Under the "machine-or-transformation" test, a claimed process is patent-
eligible under § 101 if: ( 1) it is tied to a particular machine or apparatus, or
(2) it transforms a particular article into a different state or thing. In re
Bilski, 545 F.3d 943, 954 (Fed. Cir. 2008), aff'd sub nom. Bilski, 561 U.S. at
593. According to the Federal Circuit in In re Bilski, the transformation
( 1) must involve transforming an underlying article from one state to a
different state or thing, and (2) must be central to the purpose of Appellants'
claimed process. Id. While an underlying article can be intangible, such as
electrical signals, and transformation can include data transformation, data
must represent a physical object or an article. In re Bilski, 545 F.3d at 962-
63 (citing In re Abele, 684 F.2d 902, 908---09 (CCPA 1982)); see Arrhythmia
Research Tech., Inc. v. Corazoxic Corp., 958 F.2d 1053, 1059 (Fed. Cir.
1992). In this case, we find no transformation of "a particular article into a
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different state or thing" occurring in claim 24. See Bilski, 545 F.3d at 959.
That is, the method recited in claim 24 merely transfers generated
registration information towards a device in an offline, inactive, or switched-
off state.
We further find unavailing Appellants' contention that by transferring
registration information towards a device in an offline, inactive, or switched-
off state, claim 24 is directed to a specific application within a DRM context
that improves (1) basic functioning of a rights issuer system, and (2) the
ability to interact with a user. App. Br. 8 (citing Spec. 3); Reply Br. 3. The
fact that the claim's preamble recites that the method of device registration
is "with a rights issuer system in a [DRM] context" merely recites a field-of-
use limitation that does not render the recited abstract idea patent-eligible.
See Bilski, 561 U.S. at 610-11 (noting that Parker v. Flook, 437 U.S. 584
(1978) "stands for the proposition that the prohibition against patenting
abstract ideas cannot be circumvented by attempting to limit the use of the
[idea] to particular technological environment") (internal quotation marks
omitted).
Thus, "the claims at issue amount to 'nothing significantly more' than
an instruction to apply the abstract idea ... using some unspecified, generic
computer." Alice, 134 S. Ct. at 2360 (citing Mayo, 566 U.S. at 71).
Accordingly, we are not persuaded that the Examiner erred in rejecting
claim 24, and claims 25--46, not argued separately with particularity.
THE OBVIOUSNESS REJECTION OVER STEFIK AND WATANABE
The Examiner finds Stefik discloses many recited elements of
independent claim 24 including, among other things, generating registration
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information from acquired rights issuer information and received device
information. Final Act. 12. Although the Examiner acknowledges that
Stefik's registration information is not transferred towards the device while
the device is in at least one of an offline state, an inactive state, and a
switched-off state, the Examiner cites Watanabe as teaching this feature in
concluding that the claim would have been obvious. Id. at 12-13.
Appellants argue that Stefik and Watanabe do not teach or suggest,
among other things, transferring registration information towards a device
while the device is in at least one of an offline state, an inactive state, and a
switched-off state. App. Br. 12-13.
ISSUE
Under§ 103, has the Examiner erred in rejecting claim 24 by finding
that Stefik and Watanabe collectively would have taught or suggested
transferring registration information towards a device while a device is in at
least one of an offline state, an inactive state and a switched-off state?
ANALYSIS
We begin by clarifying the Examiner's mapping. The Examiner
appears to map the recited "device information" to a player ID and a printer
ID included in Stefik's grammar element 1504 of Figure 15. See Final
Act. 4, 12; Ans. 9; Stefik i-fi-f 123-125. We see no error in this finding,
particularly because Stefik provides examples that include identifying a
printer or player using, respectively, a particular player ID or printer ID. See
generally Stefik i-fi-f 191-229. The same grammar element 1504 further
includes the right to play and print the digital work. See id. i-fi-f 123-125;
Fig. 15. Because Stefik's creator of the digital work determines the
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appropriate usage rights for the digital work, id. i-f 46, Stefik at least suggests
grammar element 1504' s right to play and print are "rights issuer
information," as claimed. Nor do we see error in the Examiner's finding that
Figures 4B, 15, and 17 of Stefik disclose generating registration information
from the device information and the rights issuer information, as claimed,
particularly since the usage rights grammar of Figure 15 includes the
grammar element 1504 as discussed above. Final Act. 12.
Claim 24 also recites that the registration information is transferred
towards a device while the device is in at least one of an offline state, an
inactive state, and a switched-off state. The Examiner finds paragraphs 61-
63, 78, 80, and 85 of Watanabe teach or suggest this key aspect. Final
Act. 13; Ans. 10 (merely stating disagreement with Appellants' argument,
and reiterating the rejection from the Final Action).
On this record, the Examiner's finding is problematic. Watanabe is
directed to registering a terminal apparatus's identification information for
receiving service information. Watanabe, Abstract. If Watanabe's terminal
apparatus and information providing server are not online-connected, then a
user registers desired conditions for service information in an integrated
circuit (IC) card using the terminal apparatus. Id. i-fi-161, 80, 89; Figs. 7-8.
Watanabe's offline processing includes the terminal apparatus transmitting
the conditions to the IC card, storing the conditions on the IC card, and
setting an offline processing flag in the IC card. Id. i-fi-185, 90.
We agree with Appellants that Watanabe's offline processing "has not
been shown to disclose or suggest 'transferring the registration information
towards the device while the device is in the at least one of an offline state,
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an inactive state and a switched-off state,' as required by independent claim
24." App. Br. 12-13. Watanabe's conditions for service information are
transferred from a terminal apparatus, such as a personal computer, to an IC
card. But an IC card is not a device capable of being in an offline, inactive,
or switched-off state as required by the claim, let alone a device that meets
the remainder of the limitations as recited in the claims. Although
Watanabe's conditions for service information, in a sense, may be
transferred from a terminal apparatus towards the information-providing
server because the terminal apparatus transfers the information to an IC card,
which then transfers the information to the information providing server
when the terminal apparatus is again online-connected, Watanabe's
information-providing server is not an offline, inactive, or switched-off
device.
Therefore, for the reasons noted above, we are persuaded the
Examiner erred in rejecting (1) independent claim 24; (2) independent claim
43 which recites commensurate limitations; and (3) dependent claims 25-35,
39-42, and 46, which ultimately depend from one of claims 24 and 43.
Because this issue is dispositive regarding our reversing the rejection of
these claims, we need not address Appellants' other arguments.
THE OTHER OBVIOUSNESS REJECTION
We do not sustain the Examiner's obviousness rejection of claims 36-
38, 44, and 45. Final Act. 17. Claims 36-38, 44, and 45 depend, directly or
indirectly, from one of independent claims 24 and 43-the rejection of
which we find problematic, as noted previously. Because the Examiner has
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not shown Official Notice cures those deficiencies, we will not sustain the
Examiner's rejection of claims 36-38, 44, and 45.
CONCLUSION
The Examiner did not err in rejecting claims 24--46 under § 101.
The Examiner erred in rejecting claims 24--46 under § 103.
DECISION
For the above reasons, we affirm the Examiner's decision to reject
claims 24--46.
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.
§ 41.50(±).
AFFIRMED
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK HARTUNG, UWE HORN, and
MARKUS KAMPMANN
Appeal2016-008639
Application 11/718,585
Technology Center 3600
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
WINSOR, Administrative Patent Judge, dissenting-in-part.
I respectfully dissent-in-part from the Majority's opinion. While I
concur with the Majority's reasoning and decision affirming the rejections
under 35 U.S.C. § 103, I would have reversed the rejection under 35 U.S.C.
§ 101. Like the Majority, I discuss the § 101 by reference to claim 24.
I disagree with the Majority's patent eligibility analysis because I
would hold that claim 24, when considered as a whole, in light of
Appellants' Specification, is not directed to an abstract idea, but is directed
to an improvement to a particular branch of computer technology, i.e.,
digital rights management (DRM) technology. Claim 24 recites the
following:
24. A method of registering a device with a rights issuer
system in a digital rights management context, the method
comprising the steps of:
Appeal 2016-008639
Application 11/718,585
- generating registration information, comprising
acquiring rights issuer information;
receiving device information, the device being in at
least one of an offline state, an inactive state and a
switched-off state;
generating the registration information from the
rights issuer information and the device information,
wherein the registration information includes information
required to use protected content; and
- transferring the registration information towards the
device while the device is in the at least one of an offline state,
an inactive state and a switched-off state.
I agree with the Majority that each of the claims at issue is directed to
one of the four statutory categories of patentable subject matter set forth in
35 U.S.C.§ 101. I do not, however, agree that claim 24 falls within the
abstract idea implicit exception to § 101 patentability. Cf Alice Corp. Party
Ltd. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014). More
particularly, I disagree with the Majority's analysis under the first step of the
Alice two-step framework. See id.
In applying the first step of the Alice analysis "[ w ]e must first
determine whether the claims at issue are directed to a patent-ineligible
concept," such as an abstract idea. Alice, 134 S. Ct. at 2355 (emphasis
added). "[T]he 'directed to' inquiry applies a stage-one filter to claims,
considered in light of the specification, based on whether 'their character as
a whole is directed to excluded subject matter."' Enfzsh, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp.
v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)).
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The Specification discloses that a goal of the claimed invention is to
provide "a registration technique that does not necessarily require an
interactive communication in order to provide the device with registration
information required to utilize protected content and that does not burden
the device with excessive [digital rights management (DRM)] processing
operations." Spec. 3 (emphases added). The invention achieves this goal by
allowing a rights issuer server to generate registration information for a
device by receiving device information from a DRM capability server. Id. at
12. "The registration information ... includes information required by the
device to use protected content." Id. at 8 (emphasis added). "[T]he
registration information is [then] transferred towards the device while the
device is at least one of offline, inactive and switched-off." Id. at 4
(emphasis added).
The Enfzsh court explained that "[t]he Supreme Court has suggested
that claims 'purport[ing] to improve the functioning of the computer itself,'
or 'improv[ing] an existing technological process' might not succumb to the
abstract idea exception." Enfzsh, 822 F.3d at 1335 (citing Alice, 134 S.Ct. at
2358-59). Claim 24 is directed to an improved method of allowing a device
to use (i.e., by DRM applications) digital content that achieves benefits
(reduced processing burden) particularly related to computer technology.
Like the claims for a self-referential database table at issue in Enfzsh, claim
24 is directed to "an improvement [in] computer functionality itself, not [to]
an economic or other [process] for which the computer is used in its ordinary
capacity" as a tool. Enfish, 822 F.3d at 1336.
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This is in contrast to the claims at issue in Intellectual Ventures I LLC
v. Capital One Bank, 792 F.3d 1363, 1367 (Fed. Cir. 2015), where the
computer was used as a mere tool for tracking financial transactions.
Furthermore, an improvement in DRM computer technology, allowing a
device to use protected content, is more than the mere manipulation of data
found to be abstract in In re TL! Commcations LLC Patent Litigation, 823
F.3d 607, 613 (Fed. Cir. 2016) (determining claims directed to "classifying
and storing digital images in an organized manner" were directed to an
abstract idea); Electric Power Group, LLC v. Alstom S.A., 830 F .3d
1350, 1343 (Fed. Cir. 2016) (holding claims focused on collecting and
analyzing information, and presenting the results thereof to be an
abstract idea); and Content Extraction and Transmission LLC v. Wells
Fargo Bank, National Association, 776 F.3d 1343, 1347 (Fed. Cir.
2014) (holding that determining collecting, recognizing, and storing
data is an abstract idea). In short, I agree with Appellants that claim
24 is directed to a specific improvement in DRM computer technology
and is, therefore, not directed to an abstract idea. See Reply Br. 2-3.
Because I would hold that claim 24 is not directed to a patent-
ineligible concept under the first step of the Alice analysis, I would not reach
the second step of the Alice analysis. Enfzsh, 822 F .3d at 1339 (citing Alice,
134 S. Ct. at 2355).
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For these reasons I respectfully dissent from the Majority's patent
eligibility analysis.
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