Hadden, Erik G. et al.

Patent Trials and Appeals Board

Dec 27, 2019

13975047 - (D) (P.T.A.B. Dec. 27, 2019)

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.
13/975,047 08/23/2013 Erik G. Hadden 90911-
P11465USX2-874961
7942
65656 7590 12/27/2019
KILPATRICK TOWNSEND & STOCKTON LLP/Apple
Mailstop: IP Docketing - 22
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
EXAMINER
SEIBERT, CHRISTOPHER B
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte ERIK G. HADDEN, JASON B. RASKIN,
JONATHAN M. VAN KEULEN, KUOCHUN CHIN, and
STEPHEN M. LOTTERMOSER
________________

Appeal 2019-000304
Application 13/975,047
Technology Center 3600
________________

Before JASON V. MORGAN, SHARON FENICK, and
RUSSELL E. CASS, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 5, 6, 8, 9, and 17–32. Claims 1–4, 7,
and 10–16 are canceled. Appeal Br. 13–15. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party-in-interest as Apple Inc.
Appeal Br. 3.
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Summary of the disclosure
Appellant’s claimed subject matter relates to
generating interactive floor maps for displaying the layout of a
retail store are provided. The interactive floor map can display
the layout of a store based on events occurring in the future. If
an event results in a change in the layout of the store, an
employee of the store can preview the changes to the store as of
the event date, prior to the occurrence of the event.
Abstract.
Representative claim (key limitations emphasized)
5. A method for managing a plurality of retail stores, the
method comprising:
for each physical retail store of a plurality of physical retail
stores:
generating, at a central server, first interactive floor map
data that identifies a first arrangement of a plurality of
products, the first arrangement indicating, for each
product of the plurality of products, a first physical
location at which the product is to be displayed in the
physical retail store; and
wirelessly transmitting, by the central server, the first
interactive floor map data to a [] destination associated
with the physical retail store, the destination including an
in-store server or an in-store device physically located in
the physical retail store;
wirelessly receiving, by the central server, event data that
includes:
information about an event; and
an effective date and time at which the event is to occur;
and
for each physical retail store of the plurality of physical retail
stores:
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identifying spatial information for the physical retail
store that is indicative of an area, dimension or shape of
the physical retail store;
generating, after the event data is received and by the
central server, based on the information about the event
and based on the spatial information, second interactive
floor map data for the physical retail store that identifies
a second arrangement of the plurality of products, the
second arrangement indicating, for each product of the
plurality of products, a second physical location at which
the product is to be displayed in the physical retail store
as of the effective date and time, wherein the first
physical location is different than the second physical
location for at least one product of the plurality of
products, wherein the second interactive floor map data
for a first physical retail store of the plurality of stores is
different than the second interactive floor map data for a
second physical retail store of the plurality of stores,
wherein the second interactive floor map data includes at
least part of the information about the event, and wherein
the second interactive floor map data is configured to be
presented in an interface that responds to an input
corresponding to a selection of the event from amongst
multiple events by presenting at least part of the second
interactive floor map data;
determining a transmission time for the physical retail
store based on the effective date and time and a time zone
associated with a physical store location of the physical
retail store, the transmission time being before the
effective date and time; and
wirelessly transmitting, by the central server and at the
transmission time for the physical retail store, at least
part of the second interactive floor map data to the
destination associated with the physical retail store in
advance of the effective date and time.
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The Examiner’s rejections and cited references
The Examiner rejects claims 5, 6, 8, 9, and 17–32 under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Act. 2–5.
The Examiner rejects claims 5, 6, 8, 9, and 17–32 under 35 U.S.C.
§ 103 as being unpatentable over Siotia et al. (US 2010/0070365 A1;
published Mar. 18, 2010) (“Siotia”), Soon-Shiong (US 2014/129393 A1;
published May 8, 2014), and Riley et al. (US 2009/0043676 A1; published
Feb. 12, 2009) (“Riley”). Final Act. 5–10.
PRINCIPLES OF LAW
To constitute patent-eligible subject matter, 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. There are
implicit exceptions to the categories of patentable subject matter identified
in 35 U.S.C. § 101, including: (1) laws of nature; (2) natural phenomena;
and (3) abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014). The U.S. Supreme Court has set forth a framework for
distinguishing patents with claims directed to these implicit exceptions
“from those that claim patent-eligible applications of those concepts.” Id. at
217 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
66 (2012)). The evaluation follows a two-part analysis: (1) determine
whether the claim is directed to a patent-ineligible concept, e.g., an abstract
idea; and (2) if so, then determine whether any element, or combination of
elements, in the claim is sufficient to ensure that the claim amounts to
significantly more than the patent-ineligible concept itself. See id. at 217–18.
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“[A]ll inventions at some level embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.” Mayo, 566 U.S.
at 71. We “‘must be careful to avoid oversimplifying the claims’ by looking
at them generally and failing to account for the specific requirements of the
claims.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1313
(Fed. Cir. 2016) (quoting In re TLI Commc’ns LLC Patent Litigation, 823
F.3d 607, 611 (Fed. Cir. 2016)).
Earlier this year, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of the two-part analysis for
patent subject matter eligibility. USPTO, 2019 Revised Patent Subject
Matter Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019) (“Revised
Guidance”); see also USPTO, October 2019 Update: Subject Matter
Eligibility, available at https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf (Oct. 17, 2019). Under that guidance, we first
look to whether the claim recites:
(1) 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) (see id. at 54 (step 2A, prong
one)); and
(2) additional elements that integrate the judicial
exception into a practical application (see id. at 54–55 (step 2A,
prong two); MPEP §§ 2106.05(a)–(c), (e)–(h)).
See Revised Guidance, 84 Fed. Reg. 52–55.
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial
exception that is 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 Revised Guidance, 84 Fed. Reg. 56.
ANALYSIS
Revised Guidance step 2A, prong one
In rejecting claim 5 as being directed to patent-ineligible subject
matter, the Examiner determines that claim 5 is “directed to retail scheduling
which is considered to be an abstract idea inasmuch as such activity is
considered . . . a method of organizing human activity.” Final Act. 3. That is,
the Examiner determines that claim 5 recites certain methods of organizing
human activity in the form of commercial activity (i.e., a marketing or sales
activity). See Revised Guidance, 84 Fed. Reg. 52.
Appellant argues the Examiner erred because the claimed method
“facilitates tracking and anticipating shifts to the floor plan data as well as
selectively assessing changes associated with particular events and/or
products.” Appeal Br. 7 (citing Spec. ¶¶ 33–34, Figs. 3A–B, 4). Appellant
further argues that “by determining floor map data and transmission times
for individual stores, the system can benefit from various efficiencies of
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using of a centralized system (e.g., data consistency and reduced total
processing), while customizing transmissions to account for variations
across a distributed network.” Id. at 7–8 (citing Spec. ¶ 20). Thus, Appellant
contends, the Examiner’s determinations do not “precisely identify[] an
abstract idea.” Reply Br. 3.
Appellant’s arguments are unpersuasive because the Examiner’s
determination is supported by the recitations of claim 5, which include:
(1) “generating . . . first . . . floor map data” describing a first planned
arrangement for a plurality of products in each of a plurality of retail stores;
(2) transmitting first floor map data to each respective store; (3) responding
to received event data by “generating . . . second . . . floor map data”
describing a second, different planned arrangement for the plurality of
products; and (4) transmitting, in advance of the event, second floor map
data to each respective store. That is, claim 5 recites steps for centralized
planning of how to arrange (i.e., how to market) goods in a plurality of
stores.
Developing marketing plans centrally (rather than, e.g., at individual
stores) represents an abstract idea in the form of certain methods of
organizing human activity (i.e., commercial marketing or sales activity). See
Revised Guidance, 84 Fed. Reg. 52 (“certain methods of organizing human
activity” have been identified as abstract ideas include “commercial or legal
interactions,” such as “advertising, marketing or sales activities”). Cf. In re
Ferguson, 558 F.3d 1359, 1364 (Fed. Cir. 2009) (claimed method of
“organizing business or legal relationships in the structuring of a sales force
(or marketing company)” not patent-eligible); Inventor Holdings, LLC v.
Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (receiving
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payment locally for items ordered remotely not patent-eligible); Interval
Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344 (Fed. Cir. 2018)
(“providing someone an additional set of information without disrupting the
ongoing provision of an initial set of information is an abstract idea”).
Revised Guidance step 2A, prong two
Appellant contends the Examiner erred because:
As in Core Wireless[2], the independent claims in the present
application include limitations that indicate a particular manner
of generating a limited set of information. For example, the
second interactive floor map data identifies physical locations
for products to be displayed (identified based on spatial
information of a particular physical retail store) and information
about an event. Further as in Core Wireless, this information
facilitates improved interfaces that allow a user to more quickly
access desired data.
Appeal Br. 8. That is, “each ‘interactive floor map provides the ability to
track and visualize the store layouts associated with multiple events.’” Id. at
9 (quoting Spec. ¶ 33); see also id. at 7–8 (further citing Spec. ¶¶ 20, 34,
Figs. 3A–B, 4). Thus, Appellant argues, claim 5 includes additional
recitations “that extend significantly beyond ‘retail scheduling’. Specifically,
the independent claims relate to (1) responding to event data; (2) generating
interactive floor map data for individual floors; and (3) identifying
transmission times for individual stores.” Reply Br. 3.
Appellant’s arguments are pertinent to the question of whether claim 5
includes additional recitations that integrate the underlying certain methods
of organizing human activity into a patent-eligible practical application. See

2 Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1359
(Fed. Cir. 2018).
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Revised Guidance, 84 Fed. Reg. 54–55. We agree, however, with the
Examiner that in this case, unlike the patent-eligible improved user interface
of Core Wireless, the claimed “details related to what the data comprises are
abstract and do not improve the functioning of an interface or a computer.”
Ans. 5.
The patent-eligible user interface in Core Wireless represented “a
specific manner of displaying a limited set of information to the user, rather
than using conventional user interface methods.” 880 F.3d at 1363. The
claimed improvement addressed “deficits relating to the efficient functioning
of the computer, requiring a user ‘to scroll around and switch views many
times to find the right data/functionality.’” Id. (quoting Martyn (US
8,434,202 B2; issued May 7, 2013), col. 1, ll. 47–49). That is, the patent-
eligible claim in Core Wireless included “[a]n additional element reflect[ing]
an improvement in the functioning of a computer.” Revised Guidance, 84
Fed. Reg. 55; see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335–36 (Fed. Cir. 2016) (differentiating between claims focused on an
improvement in computer capabilities and claims that merely invoke
computers as tools).
Here, no comparable improvements in the functioning of a computer
are evident. The Specification discloses that an “interactive floor map
provides the ability to track and visualize the store layouts associated with
multiple events” such that an employee can “interact with the floor plan as
part of planning for the layout change that may be needed.” Spec. ¶ 33. The
information used to generate the interactive floor maps can “be centrally
tracked and managed to generate a ‘global’ view of the events for each store
thereby giving the employees of the store a preview to the changes that may
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be needed for the store.” Id. ¶ 34. Such features merely use computers as a
tool and do not improve the functioning of the computer itself. A broad but
reasonable interpretation of the claimed features, even when read in light of
the Specification, shows that they are functionally equivalent to non-
technological solutions such as keeping a binder of floor maps that are
indexed by date and sub-indexed by floor (or indexed by floor and sub-
indexed by date). The existence of such non-technological analogs shows
that claim 5 merely recites elements that “generally link the use of a judicial
exception to a particular technological environment or field of use.” Revised
Guidance, 84 Fed. Reg. 55; cf. DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245, 1257 (Fed. Cir. 2014) (a claimed solution “necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks” was directed to patent-eligible subject
matter). Therefore, claim 5 does not have additional elements that integrate
the underlying certain methods of organizing human activity into a patent-
eligible practical application.
Revised Guidance step 2B
The Examiner determines that claim 5 does not have additional
recitations that add significantly more to the underlying patent-ineligible
abstract idea so as to transform claim 5 into a patent-eligible claim. See Final
Act. 4–5. In particular, the Examiner determines that the additional
recitations represent “generic computer [technologies] with functionalities
which are well-understood, routine, and conventional activities.” Id. at 4; see
also Ans. 4 (“the claims amount to an equivalent of mere instructions to
apply the abstract idea on a generic computer”).
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Appellant contends the Examiner erroneously “failed to provide any
. . . factual determination” to support the determination that claim 5 recites
elements that are well-understood, routine, and conventional. Reply Br. 3
(citing USPTO Memorandum of April 19, 2018, “Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.),” available at https://www.
uspto.gov/sites/default/files/documents/memo-berkheimer-20180419.PDF).
The Specification, however, provides broad, generic disclosures of the
computer technologies and network environments that could be used in
carrying out the claimed method, referring to several of them by the names
of known standards. See, e.g., Spec. Figs. 1, 8, 9, ¶¶ 45, 48, 52, 53, 55.
Moreover, we are unable to ascertain any inventive concept that arises
out of the recitations of claim 5, when read as an ordered combination, that
transforms the underlying abstract idea into a patent-eligible invention. See
BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,
1349 (Fed. Cir. 2016). Thus, the evidence of record supports, and we agree
with, the Examiner’s determination that claim 5 does not have additional
recitations that add significantly more to the underlying certain methods of
organizing human activity.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 101 rejection of
claim 5, and of claims 6, 8, 9, 17–32, which Appellant does not argue
separately.
35 U.S.C. § 103
In rejecting claim 5 as obvious, the Examiner finds that Soon-
Shiang’s dynamic planograms teach or suggest:
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generating . . . based on the information about the event and
based on the spatial information [indicative of an area,
dimension or shape of a physical store], second interactive floor
map data for the physical retail store that identifies a second
arrangement of the plurality of products, the second
arrangement indicating, for each product of the plurality of
products, a second physical location at which the product is to
be displayed in the physical retail store as of the effective date
and time
Final Act. 6–7 (citing Soon-Shiong ¶¶ 71–72); Ans. 5–6 (further citing
Soon-Shiong ¶¶ 15–16, 65–66, 74, Fig. 9A).
Appellant contends that the Examiner erred because, rather than
teaching or suggesting the claimed use of spatial information about a
physical retail store and identification of an arrangement of products to be
displayed as of an effective date and time, Soon-Shiong merely discloses a
planogram that “is generated based on ‘rules governing absolute or relative
placement of products in slots, rules governing planogram behavior based on
triggering criteria . . . , condition rules . . . , or other rules’” and “is generated
for a ‘virtual marketplace.’” Appeal Br. 10 (citing Soon-Shiong ¶¶ 10, 42,
75). Appellant also argues Soon-Shiong’s “arrangement of product
representations on the virtual shelves can be based on ‘a time, a location, a
news event, a temperature, a fee, a trend, a weather condition, a prior
purchase, a user preference, a category, or any other event or condition,’”
but that “an ‘association between the planogram and a future event is not
disclosed.’” Id. at 11 (citing Soon-Shiong ¶ 76).
Appellant’s arguments are unpersuasive because Soon-Shiong teaches
dynamic planograms for use in physical stores. See Soon-Shiong Fig. 9A
(illustrating a planogram on the interface of device 915 reflecting the content
of real-world shelf 923); see also id. Fig. 9B (illustrating device 915
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displaying virtual shelf 921 depicted as being placed in an otherwise
unusable aisle next to real-world shelf 923). Soon-Shiong’s rules governing
planogram behavior (e.g., the arrangement of products to display) include
the use of location (e.g., where the planogram is being displayed) as
triggering criteria. Soon-Shiong ¶ 75. That is, Soon-Shiong’s dynamic
planogram rules specify products to display—even if only on a device—at
particular locations of a physical store. Moreover, as Appellant
acknowledges, these rules also include the use of time and events as
triggering criteria. Appeal Br. 11 (citing Soon-Shiong ¶ 76); see also, e.g.,
Soon-Shiong ¶ 15 (“dynamic planograms can be configured to . . . modify
. . . representations upon triggering of an event”).
The Examiner also finds that Soon-Shiong’s dynamic planograms
teach or suggest:
wherein the second interactive floor map data includes at least
part of the information about the event, and wherein the second
interactive floor map data is configured to be presented in an
interface that responds to an input corresponding to a selection
of the event from amongst multiple events by presenting at least
part of the second interactive floor map data
Final Act. 7 (citing Soon-Shiong ¶¶ 36, 75–76).
Appellant contends the Examiner erred because Soon-Shiong fails to
teach or suggest:
- the second interactive floor map data includes at least part
of the information about the event [that is to occur];
- the second interactive floor map data is configured to be
presented in an interface that responds to an input
corresponding to a selection of the event [that is to occur];
or
- the second interactive floor map data is configured to be
presented in an interface that responds to an input
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corresponding to a selection of the event from amongst
multiple events by representing at least part of the second
interactive floor map data
Appeal Br. 11 (emphasis, italicization, and bracketing in original).
Appellant’s arguments are unpersuasive because, as the Examiner
correctly notes, the language “that is to occur” is not recited. Ans. 6.
Moreover, the Examiner correctly notes that Soon-Shiong’s “planogram is
capable of changing based on time or triggering conditions.” Id.; see also
Soon-Shiong ¶ 72 (“a dynamic planogram is considered to be a planogram
capable of changing with time or changing based on triggering conditions”).
Thus, Appellant’s arguments fail: (1) to distinguish the claimed “information
about the event” from a dynamic planogram rule that includes an event as
triggering criteria and (2) to distinguish “an input corresponding to a
selection of the event” from execution of a rule when the event occurs.
For these reasons, Appellant’s arguments do not persuasively
distinguish the disputed recitations from the teachings and suggestions of
Soon-Shiong. Accordingly, we sustain the Examiner’s 35 U.S.C. § 103
rejection of claim 5, and of claims 6, 8, 9, 17–32, which Appellant does not
argue separately.
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CONCLUSION
Claims
Rejected 35 U.S.C. § References/Basis Affirmed Reversed
5, 6, 8, 9,
17–32
101 Eligibility 5, 6, 8, 9,
17–32

5, 6, 8, 9,
17–32
103 Siotia, Soon-Shiong,
Riley
5, 6, 8, 9,
17–32

Overall Outcome 5, 6, 8, 9,
17–32

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.
§ 1.136(a)(1)(iv).
AFFIRMED