Geng Zhu et al.

Patent Trials and Appeals Board

Apr 23, 2020

14586475 - (D) (P.T.A.B. Apr. 23, 2020)

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.
14/586,475 12/30/2014 Geng Zhu 2043.H14US1 1599
49845 7590 04/23/2020
SCHWEGMAN LUNDBERG & WOESSNER/EBAY
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
MILLER, BRITTNEY N
ART UNIT PAPER NUMBER
3684
NOTIFICATION DATE DELIVERY MODE
04/23/2020 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):
SLW@blackhillsip.com
USPTO@SLWIP.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GENG ZHU, ZHEN GE, VINCENT MULIAHY-FLORES,
and LIN CHEN
____________

Appeal 2019-006989
Application 14/586,475
Technology Center 3600
____________

Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
GARTH D. BAER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–6, 8–13, 15–19, and 21, which are all the pending
claims. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
Appellant’s claimed invention is directed to “encouraging
environmental-friendliness among users of a network-based publication
system” (Abstract).
Independent claim 1, reproduced below with emphases added, is
representative of the subject matter on appeal:
1. A method comprising:

incorporating one or more green-scoring application
modules into one or more computer memories of a network-
based publication system, the one or more green-scoring
application modules configuring one or more computer
processors of the network-based publication system to perform
operations for generating a user interface for presentation on a
client device for allowing other users of the network-based
publication system to access sub-scores corresponding to a
user green score of a user of the network-based publication
system, the operations comprising:

detecting that the user of the network-based
publication system has engaged in a transaction involving an
exchange of an item featured in a listing posted on the network-
based publication system;

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies eBay, Inc. as the real party in interest
(Appeal Br. 2).
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calculating a transaction green score for the
transaction, the transaction green score reflecting an
environmental impact of the engagement by the user in the
transaction, the transaction green score representing a
combination of item green scores corresponding to the item, the
item green scores including an item properties green score
reflecting an organic nature of the item;

calculating a user green score for the user, the
calculating of the user green score including combining the
transaction green score with previous transaction green scores
calculated for previous engagements by the user in previous
transactions;

causing the user green score to be presented in the
user interface, the user interface including a ranking of the user
in comparison to the other users based on the user green score,
the user interface including selectable user interface elements
for accessing the sub-scores corresponding to the user green
score of the user.

(Claims Appendix (Appeal Br. 30)).

REJECTION
The Examiner made the following rejection:
Claims 1–6, 8–13, 15–19, and 21 stand rejected under 35 U.S.C. § 101
because the claimed invention is directed to a judicial exception (i.e., a law
of nature, a natural phenomenon, or an abstract idea) without significantly
more. Final Act. 2.
ISSUE
The pivotal issue is whether the Examiner erred in finding that claims
1–6, 8–13, 15–19, and 21 are directed to non-statutory subject matter.
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ANALYSIS
We adopt the Examiner’s findings in the Answer and Final Office
Action and we add the following primarily for emphasis. We note that if
Appellant failed to present arguments on a particular rejection, we will not
unilaterally review those uncontested aspects of the rejection. See Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential); Hyatt v. Dudas,
551 F.3d 1307, 1313–14 (Fed. Cir. 2008) (the Board may treat arguments
Appellant failed to make for a given ground of rejection as waived).
The Examiner determines claim 1 is patent ineligible under 35 U.S.C.
§ 101, because the claims are “directed to the abstract idea of calculating
green scores for transactions and users” and “[t]he limitations above
describe certain methods of organizing human activity inasmuch as they
describe a concept relating to tracking/organizing information (i.e.,
calculating green scores for transactions and users)” (Final Act. 3, citing
MPEP § 2106.04(a)(2) Part (II), Electric Power Group, LLC v. Alstom S.A.,
830 F.3d 1350 (Fed. Cir. 2016)). The Examiner further finds that “[e]ven
when considered as an ordered combination, the additional limitations of
claim 1 do not add anything that is not already present when they are
considered individually” (Final Act. 5; see also Alice Corp. v. CLS Bank
Int’l, 573 U.S. 208, 217 (2014) (describing the two-step framework “for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts”)).
Prior to the filing of the Appeal Brief, the USPTO published revised
guidance on the application of § 101 (“Guidance”). See USPTO’s 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
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2019) (“Memorandum”); USPTO October 2019 Update: Subject Matter
Eligibility (Oct. 17, 2019) (“Update”), noticed at 84 Fed. Reg. 55942 (Oct.
18, 2019). Pursuant to the Guidance “Step 2A,” the Office first looks to
whether the claim recites:
(1) Prong One: any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic practice,
or mental processes); and
(2) Prong Two: additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
Ed., Rev. 08.2017 (Jan. 2018))).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then (pursuant to the
Guidance “Step 2B”) look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum, 84 Fed. Reg. at 54–56.
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Appellant does not separately argue the claims with particularity. See
Appeal Br. 11–28.2 We select claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Pursuant to Step 2A, Prong One of the Guidance, the Office first looks
to “evaluate whether the claim recites a judicial exception, i.e., an abstract
idea” (Memorandum, 84 Fed. Reg. at 54). Here, claim 1 recites “calculating
a transaction green score for the transaction,” “calculating a user green score
for the user,” and
causing the user green score to be presented in the user
interface, the user interface including a ranking of the user in
comparison to the other users based on the user green score, the
user interface including selectable user interface elements for
accessing the sub-scores corresponding to the user green score
of the user.

Specifically, claim 1 recites the limitations italicized supra. The italicized
portions of claim 1 recite (1) calculation of scoring histories used to rank
users engaged in commercial transactions, and (2) a user interface that
provides ranking and accessing sub-scores that correspond to a user score.
Portion (1) recites the collection and manipulation of information (which
here “reflect[s] an environmental impact of the engagement by the user in
the transaction”) and involve the performance of mathematical calculations
to arrive at a transaction green score and a user green score.
In addition to the abstract informational concepts of Portion (1),
Portion (2) also recites commercial or legal interactions such as marketing or

2 While Appellant cites some individual claim limitations appearing in some
dependent claims (see Appeal Br. 26–27), Appellant offers no additional
arguments regarding the patentability of these claims.
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sales activities, as the information provided by the user interface relates
information associated with a user’s commercial behavior ranked for public
comparison with the information associated with the commercial behavior
of others. See, for example, Spec. ¶ 83, Fig. 10. Such information could be
used to foster additional commercial purchases, as a user desiring a score
indicative of a higher environmental consciousness appears to only be able
to improve the user’s score through consummating a new transaction.
The Guidance provides that the limitations corresponding to Portion
(1), therefore, recite the abstract idea of “mathematical concepts.” Update at
4; Memorandum, 84 Fed. Reg. at 52; see also SAP Am., Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (“[S]electing certain
information, analyzing it using mathematical techniques, and reporting or
displaying the results of the analysis . . . is all abstract”); Electric Power
Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
(“analyzing information . . . by mathematical algorithms, without more” is
abstract) (case citations omitted).
The Guidance further provides that the limitations corresponding to
Portion (2) recite the abstract idea of “certain methods of organizing
activity,” through the commercial behavior driven by the transactions seen
through the marketing lens of “encourage[ing] users of the system to choose
actions with respect to the system that will result in a more positive (or a less
negative) impact on the environment than other actions” (Spec. ¶ 2) and
ranked for public comparison.
Appellant’s argument that
the claims at issue are similar to the claims of Example 38 and
Example 39 of the [Examples published concurrently and
separately from the Memorandum (the “Examples”)] in that
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they do not recite a mathematical relationship, formula, or
calculation, they do not recite a mental process, and they do not
recite one of the certain methods of organizing human activity
that have been deemed patent-ineligible by the courts, such as a
fundamental economic practice

(Appeal Br. 11), is conclusory and not persuasive, as Appellant’s citation to
these examples offers no evidence regarding making a determination under
Step 2A, Prong One.
Accordingly, claim 1 “recites a judicial exception . . . [and] requires
further analysis in Prong Two” of the Guidance. See Memorandum, 84 Fed.
Reg. at 54.
Pursuant to Step 2A, Prong Two, we are not persuaded the Examiner
has erred in finding that claim 1 is directed to an abstract idea. That is, we
determine claim 1 does not integrate the recited judicial exception into a
practical application. See Memorandum, 84 Fed. Reg. at 54.
Appellant argues “[t]he claims at issue do not fall into any of the
enumerated groupings of abstract ideas set forth in the [Examples]” (Reply
Br. 1; see also Appeal Br. 11–13). Particularly, Appellant contends
there is no difference from a patent-eligibility standpoint
between claim 2 of Example 37 (“rearranging icons on a
graphical user interface”) and the arranging of user interface
elements recited in each of the independent claims at issue,
including “generating a user interface for presentation on a
client device for allowing other users of the network-based
publication system to access (via selectable user interface
elements) sub-scores corresponding to a user green score of a
user of the network-based publication system”

(Reply Br. 1, citing Core Wireless Licensing S.A.R.L. v. LG Electronics,
Inc., 880 F.3d 1356 (Fed. Cir. 2018) and Trading Technologies
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International, Inc. v. CQG, INC., 675 Fed.Appx. 1001 (Fed. Cir. 2017)).
Appellant contends the claimed “user interface not only saves the user time
(e.g., in deciding how to make environmentally-friendly decisions with
respect to the system) . . . but also includes a specific implementation that is
not merely a generic computer implementation” (Reply Br. 7, citing Core
Wireless and Trading Technologies).
We are not persuaded by Appellant’s arguments. With respect to
claim 2 of Example 37 of the Examples, this sample claim includes the
limitation of “determining the amount of use of each icon using a processor
that tracks how much memory has been allocated to each application
associated with each icon over a predetermined period of time.” Examples
at 3. In contradistinction, the user green score is calculated with respect to
purchases made by the user and whose score value is unrelated to the
computer technology used to generate the score. Further, while the claimed
user interface that ranks and displays the user green scores may “save the
user time,” this limitation fails to integrate the recited judicial exceptions
into a practical application, as the limitations do not reflect an improvement
in the function of a computer or an improvement to other technology or
technical field. See, e.g., Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“[M]erely adding computer
functionality to increase the speed or efficiency of the process does not
confer patent eligibility on an otherwise abstract idea.”); Trading Techs.
Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1090 (Fed. Cir. 2019) (“This
invention makes the trader faster and more efficient, not the computer. This
is not a technical solution to a technical problem.”)
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Nor do we see any claim steps that comprise an improvement of a
technological process, as Appellant’s method does not go “beyond merely
‘organizing [existing] information into a new form’” (McRO, 837 F.3d at
1315 (citation omitted)), as the disclosure explicitly identifies the sub-scores
as corresponding to the item’s “shipping green score,” the “item condition
green score,” or the “item properties green score” (Spec. ¶ 83). Thus the
process takes the existing sub-scores generated during a transaction and
organizes this information for viewing.
Moreover, Appellant’s purportedly improved abstract concept is still
an abstract concept under the Guidance. See Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new
abstract idea is still an abstract idea”) (emphasis omitted). That is, the
highlighted limitations, which form steps to calculate and display the user
green scores, are part of the recited abstract idea as discussed above. As the
argued elements are part of the abstract idea, they are not additional
elements that integrate the identified abstract idea into a practical
application. See Memorandum, 84 Fed. Reg. 54–55 (“[E]valuate integration
into a practical application by: (a) Identifying whether there are any
additional elements recited in the claim beyond the judicial exception(s)”).
Accordingly, we determine the claim does not integrate the judicial
exception into a practical application. See Memorandum, 84 Fed. Reg. at
54. We determine the “claim recites a judicial exception and fails to
integrate the exception into a practical application,” therefore we proceed
with “further analysis pursuant to the second step of the Alice/Mayo test
(USPTO Step 2B).” Memorandum, 84 Fed. Reg. at 51.
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We agree with the Examiner that the claimed elements and
combination of elements do not amount to significantly more than the
judicial exception itself. See Ans. 12–13; see also Memorandum, 84 Fed.
Reg. at 56. Independent claim 1 additionally recites “one or more green-
scoring application modules,” “one or more computer memories,” a
“network-based publication system,” and a “client device.” We agree with
the Examiner that
[t]he claims at issue here do not rise to overriding the routine
and conventional sequence of events ordinarily performed by
the computer, nor do they set forth with any specificity the
interactions of the machine itself. Conversely, the claims are
only specific in how the computer is used to facilitate the
commercial interaction itself, and are silent as to any detail or
property that would transform the otherwise generic computer
into a specialized or special purpose machine. Not unlike the
analysis in Content Extraction v. Wells Fargo [776 F.3d 1343
(Fed. Cir. 2014)], there is no inventive concept in the use of the
generic computer. The inventive concept within the claims at
issue resides solely in the manner in which the commercial
interaction is performed.

(Ans. 12, emphasis added).
Appellant argues that even if implementation details “are performed
by a conventional computer” (Reply Br. 5, citing Berkheimer v. HP Inc., 881
F.3d 1360 (Fed. Cir. 2018), DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245 (Fed. Cir. 2014), Amdocs (Israel) Limited v. Openet Telecom,
Inc., 841 F.3d 1288 (2016)), “the claims at issue recite a combination of
operations that, either individually or in combination, comprise significantly
more than the Examiner’s alleged abstract concept” (Reply Br. 5), because
the claims recite elements “which include functions for how the alleged
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abstract idea is accomplished [and] how the alleged abstract idea is applied”
(Reply Br. 6, emphasis in original).
We are not persuaded because, as explained above, claim 1’s
hardware elements are “specific in how the computer is used to facilitate the
commercial interaction itself” (Ans. 12) and the disclosure offers a variety of
system architectures and software applications that can be used as
embodiments (see Spec. ¶ 25; see also Alice, 573 U.S. at 226 (“But what
petitioner characterizes as specific hardware . . . is purely functional and
generic. Nearly every computer will include a ‘communications controller’
and ‘data storage unit’ capable of performing the basic calculation, storage,
and transmission functions required by the method claims.”); OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (Claims
reciting, inter alia, sending messages over a network, gathering statistics,
using a computerized system to automatically determine an estimated
outcome, and presenting offers to potential customers found to merely recite
“well-understood, routine conventional activit[ies].”). Claim 1’s abstract
ideas are accomplished through conventional functions implemented using
generic computer components.
Accordingly, we affirm the Examiner’s rejection of independent claim
1, and independent claims 6 and 10, as well as dependent claims 3–5, 7–9,
and 11–16 not separately argued with particularity. See Appeal Br. 17–18.

CONCLUSION
The Examiner did not err in finding that claims 1–6, 8–13, 15–19, and
21 are directed to non-statutory subject matter.

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DECISION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–16 101 Eligibility 1–6, 8–13,
15–19, 21

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED