Ex Parte Stibel et al

Patent Trial and Appeal Board

Jun 29, 2018

13475377 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/475,377 05/18/2012 Jeffrey M. Stibel
27623 7590 06/29/2018
OHLANDT, GREELEY, RUGGIERO & PERLE, LLP
ONE LANDMARK SQUARE, 10TH FLOOR
STAMFORD, CT 06901
UNITED ST A TES OF AMERICA
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.
384.9559USU 7685
EXAMINER
FU,HAO
ART UNIT PAPER NUMBER
3697
MAIL DATE DELIVERY MODE
06/29/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFERY M. STIBEL, AARON B. STIBEL,
JUDITH GENTILE HACKETT, MOUJAN KAZERANI, and
JEREMY LOEB
Appeal 2016-005011
Application 13/475,377 1
Technology Center 3600
Before NINA L. MEDLOCK, BRADLEY B. BAY AT, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1--4, 6, 9, 10, 13-15, 17, 18, 20, 21, and 23-28,
which are all the pending claims in the application. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants identify "Credibility Corp." as the real party in interest.
Appeal Brief ("App. Br.," filed Sept. 24, 2015) 1.
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Application 13/475,377
STATEMENT OF THE CASE
Claimed Invention
This "invention pertains to a system, methods, and software products
for determining credit availability and creditworthiness." Spec. ,r 2.
Claims 1, 13, and 2 0 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter and recites:
1. A computer-implemented method for facilitating
the acquisition of credit by accurately presenting credit that is
available to a particular credit seeker from a plurality of credit
providers without the particular credit seeker preparing a credit
application for submission to any of the plurality of credit
providers, the computer-implemented method composing:
providing prequalified leads to the plurality of credit
providers in exchange for aggregating a plurality of credit
origination data from the plurality of credit providers, the
plurality of credit origination data comprising amounts and
terms of credit the plurality of credit providers have extended to
a plurality of credit seekers and a credit score of each of the
plurality of credit seekers, wherein the plurality of credit
seekers excludes the particular credit seeker;
receiving identification information for the particular
credit seeker;
matching the identification information to a particular
database record of a plurality of database records, the particular
database record comprising (i) verified information that
matches to the identification information and (ii) verified
information that is not provided as part of the identification
information and is usable to obtain a credit score of the
particular credit seeker;
obtaining a credit score for the particular credit seeker
based on the verified information from the particular database
record;
extracting from the aggregated credit origination data, a
subset of credit origination data involving a subset of the
plurality of credit seekers having credit scores within an upper
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bound and a lower bound of the credit score obtained for the
particular credit seeker;
presenting from the subset of credit origination data,
amounts and terms of credit the particular credit seeker is
prequalified to receive from the subset of credit seekers without
passing any information about the particular credit seeker to the
subset of credit providers, wherein said presenting comprises
presenting in a graphical user interface, (i) a first graphical
element displaying amounts and terms for a first line of credit
the particular credit seeker is prequalified to receive from a first
credit provider of the subset of credit providers and (ii) a
second graphical element displaying amounts and terms for a
second line of credit the particular credit seeker is prequalified
to receive from a second credit provider of the subset of credit
providers.
App. Br. 31-32 (Claims App.).
Prior Art Relied Upon
The Examiner relies on the following prior art as evidence of
unpatentability:
Green US 2003/0009418 Al Jan.9,2003
Turbeville US 2004/0024692 Al Feb. 5,2004
Greenwood US 2004/0267660 Al Dec. 30, 2004
Guy US 2005/0154664 Al July 14, 2005
Graham US 2011/0166986 Al July 7, 2011
Bennett US 8,036,941 B2 Oct. 11, 2011
Hallman US 8,055,578 B 1 Nov. 8, 2011
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Rejections on Appeal
The following rejections are before us for review:
I. Claims 1--4, 6, 9, 10, 13-15, 17, 18, 20, 21, and 23-28 are rejected
under 35 U.S.C. § 101 as being directed to judicially-excepted
subject matter.
II. Claims 1--4, 6, 20, 21, and 28 are rejected under 35 U.S.C.
§ 103 (a) as being unpatentable over Bennett in view of Guy and
Graham.
III. Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett in view of Guy, Graham, and
Turbeville.
IV. Claims 13, 14, and 18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Bennett in view of Greenwood, Hallman,
and Graham.
V. Claim 15 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett in view of Greenwood, Hallman,
Graham, and Green.
VI. Claim 17 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett in view of Greenwood, Hallman,
Graham, and Turbeville.
VII. Claims 23-27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett in view of Guy, Graham, and Hallman.
ANALYSIS
Rejection I-Non-Statutory Subject Matter
Section 35 U.SC. § 101 defines patent-eligible subject matter as "any
new and useful process, machine, manufacture, or composition of matter, or
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any new and useful improvement thereof," subject to the other limitations
of the Patent Act. 35 U.S.C. § 101. Apart from the Patent Act, the Supreme
Court has created exceptions to the literal scope of 35 U.S.C. § 101. "Laws
of nature, natural phenomena, and abstract ideas are not patentable." Alice
Corp. v. CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor
Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116
(2013)).
In Alice, the Court reaffirmed a two-step framework previously
set forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66 (2012), for analyzing whether a claim is patent eligible. Alice,
134 S. Ct. at 2355. The first step in that framework is to "determine whether
the claims at issue are directed to one of those patent-ineligible concepts,"
such as an abstract idea. Id. The "directed to" inquiry applies a stage-one
filter to the claims, considered in light of the Specification, based on whether
"their character as a whole is directed to excluded subject matter." Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015);
see also Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376
(Fed. Cir. 2016); Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335
(Fed. Cir. 2016). If so, the inquiry proceeds to step two to look at the claim
for "something more" by "examin[ing] 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, 134 S. Ct. at 2354, 2357 (quoting Mayo, 566 U.S. at 66, 79). This
inventive concept must do more than simply recite "well-understood,
routine, conventional activity." Mayo, 566 U.S. at 66, 79.
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Alice Step One
"The 'abstract idea' step of the inquiry calls [for] look[ing] at the
'focus of the claimed advance over the prior art' to determine if the claim's
'character as a whole' is directed to excluded subject matter." Affinity Labs
of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016)
(citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353
(Fed. Cir. 2016)); see also Enfish, 822 F.3d at 1335, quoted in Apple, Inc. v.
Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016).
In that regard, Appellants indicate that "there is a need to attribute
some tangible or real-world significance to credit scores so that individuals
and business can easily, readily, and accurately ascertain the credit that is
available to them." Spec. ,r 11. Appellants' invention solves these problems
by "simplify[ing] and streamlin[ing] the process of applying for and
obtaining credit by bridging the divide that exists between credit reporting
agencies, credit seekers, and credit providers ... to present actual amounts of
credit that are available to a credit seeker from various credit providers
without the credit seeker having to apply for credit from any one or more
credit providers." Id. ,r 12. Acting as an intermediary, Appellants' system
identifies credit that is available to a credit seeker based on aggregated credit
origination information obtained from a credit provider in exchange for
referrals, and matches credit seekers with "quasi-preapproved" credit based
on recently extended credit that others with similar qualifications have
obtained from the credit provider. See id. i-fi-fl3-15, Abstract, Fig. 1.
Applying the framework in Alice, and as the first step of that analysis,
the Examiner determines "[ o ]btaining and extracting credit origination data
is a fundamental economic practice and thus, the claims include an abstract
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idea." Final Office Action ("Final Act.," mailed July 20, 2015) 11.
According to the Examiner:
The claimed process of obtaining credit score of a credit seeker,
extracting a portion of aggregated credit origination data,
analyzing the obtained data to determine whether the credit
seeker is prequalified for certain financial products, and
presenting the amounts and terms of the prequalified financial
products can be done by human using a pen and paper, without
using computer. For example, a human loan official can obtain
credit seeker's credit report from credit bureau in paper form,
mentally recognize relevant data and use such data to
underwrite the credit seeker, and present the resulted
prequalified amounts and terms in paper form.
Examiner's Answer ("Ans.," mailed March 11, 2016) 7. The Examiner
further elaborates that "obtaining, verifying, extracting, and presenting credit
origination data had been a longstanding economic practice in the finance
art." Final Act. 12.
Appellants contest Rejection I by arguing independent claims 1, 13,
and 20 as a group. App. Br. 12. We select independent claim 1 as
representative for this group. Therefore, claims 2--4, 6, 9, 10, 13-15, 17, 18,
20, 21, and 23-28 stand of fall with claim 1. See 37 C.F.R. §4I.37(c)(l)(iv).
Alleging error in the Examiner's rejection under Alice step one,
Appellants argue that the claims are not directed to an abstract idea because
"there is nothing fundamental, as an economic practice or otherwise, about
prequalifying a particular credit seeker for different lines of credit using the
particular credit seeker's credit score and without submitting any
information about the particular credit seeker to any credit provider as
provided when considering claims 1, 13, and 20 as a whole." App. Br. 11;
see also Reply Brief ("Reply Br.," filed April 7, 2016) 2.
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Appellants' argument fails to persuade us of error. In fact, Appellants
concede that "the claims recite limitations that include the identified
building block or abstract idea" (App. Br. 8), but argue that "[i]t is simply
impossible for a claim that recites limitations involving a database and
graphical user interfaces (GUis) to be performed entirely by a human or in
the human mind" (Reply Br. 7), and thus, incapable of being performed by a
human using a pen and paper.
We agree with the Examiner that "a human loan official can obtain [a]
credit seeker's credit report from [a] credit bureau in paper form, mentally
recognize relevant data and use such data to underwrite the credit seeker,
and present the resulted prequalified amounts and terms in paper form."
Ans. 7. We also highlight the similarity between claim 1 and the claims
before the Federal Circuit in Mortgage Grader, Inc. v. First Choice Loan
Services Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2015). 2 There, the court
rejected a method of anonymous loan shopping as ineligible subject matter
because the asserted claims all could be performed by humans without a
computer. The court in Mortgage Grader stated:
The series of steps covered by the asserted claims-borrower
applies for a loan, a third party calculates the borrower's credit
grading, lenders provide loan pricing information to the third
party based on the borrower's credit grading, and only
thereafter (at the election of the borrower) the borrower
discloses its identity to a lender----could all be performed by
humans without a computer. Cf CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011)
2 "[T]he decisional mechanism courts now apply is to examine earlier cases
in which a similar or parallel descriptive nature can be seen-what prior
cases were about, and which way they were decided." Amdocs (Israel) Ltd.
v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) (emphasis
added).
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("[C]omputational methods which can be performed entirely in
the human mind are the types of methods that embody the
'basic tools of scientific and technological work' that are free to
all men and reserved exclusively to none.") ( quoting Gottschalk
v. Benson, 409 U.S. 63, 67 (1972)).
811 F .3d at 1324. Similar to claim 1, the claims in Mortgage Grader were
implemented on a computer and recited a database and graphical user
interfaces. As such, we are not persuaded the Examiner erred in determining
that claim 1 is directed to an abstract idea under Alice step one. Therefore,
the inquiry proceeds to step two to look at the claim for "something more"
by "examin[ing] 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, 134 S. Ct. at 2354, 2357 ( quoting
Mayo, 566 U.S. at 72, 80).
Alice Step Two
In step two, we consider the elements of the claim, both individually
and as an ordered combination, to assess whether the additional elements
transform the nature of the claim into a patent-eligible application of the
abstract idea. Content Extraction & Transmission LLC v. Wells Fargo Bank,
Nat'! Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014). This is the search for an
inventive concept, which is something sufficient to ensure that the claim
amounts to significantly more than the abstract idea itself. Id. For example,
merely reciting the use of a generic computer cannot convert a patent-
ineligible abstract idea into a patent-eligible invention. Alice, 134 S. Ct.
at 2358; Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1332
(Fed. Cir. 2015).
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In the second step of the Alice analysis, Examiner determines:
"[i]ndependent claim 1 and 1 [3]3 do not disclose any additional element
other than the abstract concept of gathering and extracting origination data.
Independent claim 20 merely recites a computer readable storage medium
and a microprocessor." Final Act. 12-13. According to the Examiner,
"[ t ]hese generic computer components are claimed to perform their basic
functions of obtaining, verifying, extracting, and presenting data," which
"amounts to mere instructions to implement the abstract idea on a
computer." Id. at 12-13. The Examiner determines that "there is no
inventive concept sufficient to transform the claimed subject matter into a
patent-eligible application. The claims do not amount to significantly more
than the abstract idea itself." Id. at 13.
First, Appellants argue "[a] generic computer performing generic
computer functions is not one that normally performs the claim 1 steps."
App. Br. 12. Appellants further argue "these are specialized steps performed
by customized machines configured, programmed, or otherwise modified
to implement the computer-implemented method of claim 1. App. Br. 13.
According to the Appellants, "the task of determining available credit using
prior art systems and methods is time consuming, tedious, and inefficient."
App. Br. 14.
We agree with the Examiner that the elements of the claim-both
individually and when combined----do not transform the claimed abstract
idea into a patent-eligible application of the abstract idea. The claimed
invention can readily be understood as adding conventional computer
3 We note that the Examiner inadvertently cites canceled claim 12 instead of
claim 13.
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components to well-known business practices. Claim 1 does not recite any
specialized hardware, and Appellants have not apprised us of any. For
instance, claim 1 merely recites a "computer-implemented method" in the
preamble of the claim, "a plurality of database records" and "a graphical
user interface" in the steps of the process. And, the Specification indicates
that the computer-implemented method is performed by generic computing
devices and well-known, routine and conventional activity. See, e.g., Spec
,r 102 ("Examples of computer systems with which some embodiments are
implemented include cellular telephones, smartphones, portable digital
assistance, tablet devices, laptops, and netbooks."), ,r 72 ("For example, the
credit origination data can be filtered by Standard Industrial Classification
(SIC) codes in order to identify credit that is available to businesses
operating in a particular industry."), ,r,r 103-109. The Federal Circuit has
repeatedly determined that such claims do not contain an "inventive
concept" under Alice step two and are invalid under § 101. See Elec. Power
Grp., 830 F.3d at 1353-56; see also Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 717 (Fed. Cir. 2014). And, "relying on a computer to perform
routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible." OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359,
1363 (Fed. Cir. 2015); see also Intellectual Ventures I LLC v. Capital One
Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) ("[O]ur precedent is clear
that merely adding computer functionality to increase the speed or efficiency
of the process does not confer patent eligibility on an otherwise abstract
idea."); CLS Bank Int'! v. Alice Corp., 717 F.3d 1269, 1286 (Fed. Cir. 2013)
( en bane) (Lourie, J., concurring).
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Second, Appellants allege that in contrast to "well-understood,
routine, or conventional activities, claim 1 recites 'presenting from the
subset of credit origination data, amounts and terms of credit the particular
credit seeker is prequalified to receive from the subset of credit seekers
without passing any information about the particular credit seeker to the
subset of credit providers."' App. Br. 14 ( emphasis omitted). But the
Federal Circuit has made clear that the output of data analysis, by "merely
presenting the results of abstract processes of collecting and analyzing
information, without more ( such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and analysis."
Elec. Power Grp., 830 F.3d at 1354 (citing Content Extraction and
Ultramercial).
Third, Appellants contend "the limitations presented in independent
claims 1, 13, and 20 offer similar rationale as the Federal Circuit presented
in finding the claims at issue in DDR Holdings, LLC. Hotels.com, L.P., 773
F.3d 1245 (Fed. Cir. Dec 5, 2014) to be patent eligible." App. Br. 15; see
also Reply Br. 8-9. According to Appellants, "[ t ]he claims at issue in this
appeal are also rooted in computer technology and provide [a] solution to
overcoming different Internet-based problems." Id. at 16.
We disagree that the claims before us are similar to DDR Holdings.
Nothing in the asserted claims "purport[s] to improve the functioning of the
computer itself' or "effect an improvement in any other technology or
technical field." Alice, 134 S. Ct. at 2359. Nor do the claims solve a
problem unique to the Internet. See DDR Holdings, 773 F.3d at 1257. In
DDR Holdings, the Federal Circuit determined that, although the patent
claims at issue involved conventional computers and the Internet, the claims
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addressed the problem of retaining website visitors who, if adhering to the
routine, conventional functioning of Internet hyperlink protocol, would be
transported instantly away from a host's website after "clicking" on an
advertisement and activating a hyperlink. DDR Holdings, 773 F.3d at 1257.
The court, thus, held that the claims were drawn to patent-eligible subject
matter because they claim a solution "necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks." Id. Unlike the situation in DDR Holdings,
Appellants do not identify any problem particular to computer networks that
claim 1, 13, or 20 allegedly overcomes. Instead Appellants' credit feedback
loop system "providing a second interface comprising a plurality of
selectable links" and "presenting credit that is available to a credit seeker
from different credit providers in a single interface without the credit seeker
having to individually engage the credit provider" merely employs a generic
computer elements to perform generic computer functions of organizing and
presenting ( credit origination data, amounts, and terms) via a graphical user
interface.
For the foregoing reasons, we are not persuaded of Examiner error
and sustain the rejection of independent claim 1 under 35 U.S.C. § 101,
including claims 2--4, 6, 9, 10, 13-15, 17, 18, 20, 21, and 23-28, which fall
with claim 1.
Rejections II and IV-Obviousness
Independent claim 1
Independent claim 1 requires, inter alia, "providing prequalified leads
to the plurality of credit providers in exchange for aggregating a plurality of
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credit origination data from the plurality of credit providers." App. Br. 31
(Claims App.).
In rejecting claim 1 as obvious over Bennett, Guy, and Graham, the
Examiner finds this limitation is disclosed by Bennett.
We are persuaded by the Appellants' arguments, and find the
Examiner's reliance on Bennet is unsupported.
Bennett is directed to an online system using credit report
information, loan affordability, screening, credit approval, and management
functionality to facilitate the purchase and finance of products online.
Bennet, Abstract. To evaluate loan acquisition, a processing engine may
retrieve parameters that in some cases uses "origination [ data that] may
depend, at least partially, on whether or not the loan fits within parameters
of loans previously purchased by the lender or some other entity." Bennett,
col. 15:20-39. Additionally, Bennett teaches "[a]t a block 1813,4 the
individual lenders' requirement to execute pre-qualification processing is
determined. If it is determined to be necessary, pre-qualification analysis is
performed at a next block 1815 to determine if the credit request is within
guidelines at a subsequent decision block 1819." Bennett, Col. 25:60-66.
The Examiner finds that "running pre-qualification analysis for a
lender or a plurality of lenders (i.e. credit providers) using the lenders'
requirements, and if a borrower's credit (obtained from credit origination
data) is within the pre-qualification guideline set forth by the lender or
lenders, the prior system sends the credit request to the particular lender or
lenders" corresponds to "providing prequalified leads to the plurality of
credit providers in exchange for aggregating a plurality of credit origination
4 Referencing Bennett, Figure 18.
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data." Ans. 15. A rejection based on 35 U.S.C. § 103 clearly must rest on a
factual basis. Bennett is directed to a loan facilitation system, in which
credit seekers are being evaluated based on lender qualification parameters
and guidelines, but Appellants' invention exchanges leads for aggregated
credit origination data, in which the aggregated origination data consists of
credit scores, amounts, and terms of actual credit obtained by credit seekers
from credit lenders. Executing a pre-qualification type analysis based on
credit provider guidelines is not the same as analysis based on aggregated
credit origination data. Thus, the Examiner's findings as to the above
disputed limitation of claim 1 is unsupported by the record before us.
Therefore, we do not sustain the rejection of independent claim 1,
including dependent claims 2--4, and 6.
Independent claims 13 and 20
Independent claims 13 and 20 recite substantially similar subject
matter as independent claim 1. Specifically, claim 13 recites "providing
prequalified leads to the plurality of credit providers in exchange for
aggregating from the plurality of credit providers, a plurality of credit
origination data comprising amounts and terms of credit a plurality of credit
seekers," and claim 20 recites "aggregating a first set of credit origination
data identifying amounts and terms of credit." App. Br. 33-34, 36-37
(Claims App.).
Therefore, we do not sustain the obviousness rejection of independent
claims 13 and 20 for the same reasons, including claims 14, 18, 21, and 28,
which depend from either claim 13 or 20.
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Rejections III, V, VI, and VII-Obviousness
We also do not sustain the obviousness rejections of claims 9, 10, 15,
17, 23-2 7 for the same reasons, because each of these claims depends from
one of claims 1, 13, and 20, and the Examiner has not relied on the
additional cited references to cure the deficiency in Bennett.
DECISION
The Examiner's rejection under 35 U.S.C. § 101 is AFFIRMED.
The Examiner's rejections under 35 U.S.C. § 103 are REVERSED.
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
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