Joseph L. Spears

Patent Trials and Appeals Board

Sep 24, 2019

12697004 - (D) (P.T.A.B. Sep. 24, 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.
12/697,004 01/29/2010 Joseph L. Spears 012810-0003-999 1115
20583 7590 09/24/2019
Jones Day
250 Vesey Street
New York, NY 10281-1047
EXAMINER
TENG, LOUIS C
ART UNIT PAPER NUMBER
2492
MAIL DATE DELIVERY MODE
09/24/2019 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 JOSEPH L. SPEARS
____________________

Appeal 2018-006683
Application 12/697,004
Technology Center 2400
____________________

Before JENNIFER S. BISK, ALEX S. YAP, and JASON M. REPKO
Administrative Patent Judges.

BISK, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a) Appellant1 appeals from the
Examiner’s decision to reject claims 31–33, which are all claims pending in
the application. See Advisory Action 7/10/2017 (entering, for purposes of

1 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as IPAR,
LLC. Appeal Br. 3.
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this appeal, Appellant’s amendment canceling all pending claims other than
31–33). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
BACKGROUND2
Appellant’s disclosed embodiments and claimed invention relate to
“empowering content creators to market and distribute their own content
without entering into onerous one-sided agreements with content providers,
such as distributors, subdistributors, assignees, or licensees.” Spec. 3.
Claim 33, the only independent claim, reproduced below, is illustrative of
the subject matter on appeal:
33. A processor-implemented method of providing a multi-
content-provider platform for automating detection of user
access permissions for content via customized access
permission options defined for a plurality of regions, a
customized option being provided to a user based on a region in
the plurality of regions that is associated with the user, the
method comprising:
[(1)] receiving at a platform for distributing
content provided by a plurality of unrelated content
providers, using one or more processors, an upload of a
particular piece of content from a content provider for
distribution and metadata describing the particular
content, the received particular content and metadata
being stored in a computer-readable memory;
[(2)] providing an item user interface for defining a
purchase option for an individual content item that

2 Throughout this Decision we have considered the Specification filed
January 29, 2010 (“Spec.”), the Final Rejection mailed January 10, 2017
(“Final Act.”), the Appeal Brief filed January 4, 2018 (“Appeal Br.”), and
the Examiner’s Answer mailed April 16, 2018 (“Ans.”). Appellant did not
file a Reply Brief.
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includes controls for selection, on an item by item basis:
individual content items, one of a plurality of regions, an
option type, and a price for defining selectable purchase
options for the particular content and other content items;
wherein for each of a plurality of content items for
each of a plurality of regions, a price and an option type
are specifically selected using the item user interface;
[(3)] receiving at the platform a first selectable
purchase option definition from the content provider via
the item user interface defining first criteria for accessing
the particular content in a first region in the plurality of
regions, the first criteria including an option type, a first
price, and a first region where the first option definition
is valid;
[(4)] receiving at the platform a second selectable
purchase option definition from the content provider via
the item user interface defining second criteria for
accessing the particular content in a second region in the
plurality of regions, the second criteria including an
option type, a second price that differs from the first
price, and a second region where the second option
definition is valid;
wherein the first and second selectable purchase
options are provided on a per item basis by a plurality of
different content providers associated with different
pieces of content;
[(5)] automatically detecting the region associated
with the user based on interaction of the user with a
network, wherein automatically detecting comprises
detecting a physical location of the network based on an
IP address of the user;
[(6)] providing, via a graphical user interface menu
via the network, a first subset of one or more options for
the particular content from the platform to a remote user
based on the region associated with the user, wherein a
second user in a different region is provided a differing
second subset of one or more options;
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receiving at the platform via the network an
identification of an option in the one or more options
from the remote user; and
[(7)] providing access to the particular content
from the platform to the remote user via the network
according to a criterion of the option that the remote user
has identified, wherein the particular content is
transmitted from the platform to the physical location of
the network for display on a graphical user interface of
the user;
wherein different content is uploaded to the
platform by a second content provider who assigns
region-specific purchase options for that different content
to provide mechanisms for access of the second content
by remote users residing in different regions.
Appeal Br. 15–17 (Claims App.) (bracketed limitation numbering added).
REJECTIONS3
Claims 31–33 stand rejected under 35 U.S.C. § 101 as being directed
to patent-ineligible subject matter. Final Act. 5–9.
Claim 33 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over (1) Amazon VOD (Setting up and watching Amazon
Video On Demand on your TV), Amazon.co.uk (2009) (“Amazon”),
(2) Video Download Checklist (2008) and Video Download Overview
(2008) (“CreateSpace”), and (3) R. K. Chellappa et al., Economic

3 The Final Office Action rejects claims 1–23 and 25–33. Final Act. 5, 10.
After this action was issued, however, the Examiner entered amendments
canceling claims 1–30, leaving only claims 31–33 for this appeal. See
Amendment After Final filed July 7, 2017; Advisory Action entered July 19,
2017.
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Implications of Variable Technology Standards for Movie Piracy in a Global
Context (2003) (“Chellappa”). Final Act. 9–16, 20–22.
Claims 31 and 32 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Amazon, CreateSpace, Chellapa, and Beyabani, (US
Patent No. 8,387,081 B2, issued Feb. 26, 2013) (“Beyabani”). Final Act.
20–21.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv).
We have considered all of Appellant’s arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection of Claims 31–33 Under 35 U.S.C. § 103
Appellant argues that the Examiner has failed to show the references
teach “criteria for accessing the particular content in the first/second
regions.” Appeal Br. 12–13.
The Examiner disagrees with Appellant’s contention. Ans. 8–9.
According to the Examiner, this limitation is “suggested by the combination
of Amazon, CreateSpace, and Chellappa.” Ans. 8. The Examiner explains
“[o]ne of ordinary skill in the art at the time of the invention would have
both staggered the release dates of content and vertically segmented the
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quality of the releases in different territories” based on “the varying regions
‘willingness-to pay’ (Chellappa p. 6) and the existence of piracy (Chellappa
pp. 12–13)” and “in order to maximize profit.” Id. According to the
Examiner, “[a]s Amazon and CreateSpace (para. Spanning p. 12–13 of the
Office Action) teach that options can be selected on an item by item basis,
one of ordinary skill would be motivated to provide or use a user interface
that allows price and option type to be specifically selected for each region
based on the teachings of Chellappa.” Id. at 8–9.
We agree with Appellant. Like Appellant, we are not persuaded that
Amazon shows a restriction on access that is applied on an item by item
basis based on the user’s region. See Appeal Br. 12–13. In fact, the only
language in Amazon that the Examiner points to as teaching or suggesting
this feature is the statement that “[d]ue to licensing restrictions, the Service
is only available to customers located in the United States.” Final Act. 10
(quoting Amazon VOD 3). We agree with Appellant that this disclosure is
not a restriction on access applied on an item by item basis, but instead
discloses that the service is not available at all outside of the United States.
See Appeal Br. 13. Moreover, we do not see any other disclosure in the
references relied upon by the Examiner that discloses a restriction on access
to content that is applied on an item by item basis based on the user’s region.
Because this determination resolves the § 103 rejection for all pending
claims, we need not address Appellant’s other arguments regarding
Examiner error. See, e.g., Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423
(Fed. Cir. 1984) (explaining that an administrative agency may render a
decision based on “a single dispositive issue”).
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Accordingly, we cannot sustain the Examiner’s finding that claim 31
would have been obvious over a combination of Amazon, CreateSpace,
Chellappa. The same is true for claims 31 and 32, which depend from claim
33.
Rejection of Claims 31–33 Under 35 U.S.C. § 101
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the
Supreme Court has long recognized an implicit exception to this section:
“‘Laws of nature, natural phenomena, and abstract ideas are not
patentable.’” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)). To determine whether a claim falls within one of these
excluded categories, the Court has set out a two-part framework. The
framework requires us first to consider whether the claim is “directed to one
of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then
examine “the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Alice, 573 U.S.
at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 78, 79 (2012)). That is, we examine the claims for an “inventive
concept,” “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.’” Alice, 573 U.S. at 217–18 (alteration
in original) (quoting Mayo, 566 U.S. at 72–73).
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The Patent Office recently issued guidance regarding this framework.
See USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Under the Revised
Guidance, to decide whether a claim is “directed to” an abstract idea, we
evaluate whether the claim (1) recites subject matter falling within an
abstract idea grouping listed in the Revised Guidance and (2) fails to
integrate the recited abstract idea into a practical application. See Revised
Guidance, 84 Fed. Reg. at 51. If the claim is “directed to” an abstract idea,
as noted above, we then determine whether the claim recites an inventive
concept. The Revised Guidance explains that when making this
determination, we should consider whether the additional claim elements
add “a specific limitation or combination of limitations that are not well-
understood, routine, conventional activity in the field” or “simply append[]
well-understood, routine, conventional activities previously known to the
industry.” Revised Guidance, 84 Fed. Reg. at 56.
With these principles in mind, we turn to the Examiner’s § 101
rejection.
The Judicial Exception—Abstract Idea
The Examiner determines claim 33 “is directed to the abstract idea of
multiple content providers marketing content based on geographic area.”
Final Act. 7. According to the Examiner, the limitations of claim 33
constitute “an idea of itself” and is “conceptually no different from a list of
steps written down with pencil and paper for execution by a human being.”
Id. at 8. For the reasons explained below, we agree that claim 33 recites an
abstract idea.
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Limitations (1)–(7) of claim 33, quoted above, under their broadest
reasonable interpretation, recite a method for allowing content providers
who wish to sell their works to set different prices and other terms for those
works based on the geographical location of the customer. 4 See, e.g., Spec.
3 (“Thus, what is needed in the art are systems and methods for empowering
content creators to market and distribute their own content without entering
into onerous one-sided agreements with content providers, such as
distributors, subdistributors, assignees, or licensees.”). Specifically,
limitations (1), (3), and (4) involve receiving the content to be offered for
sale (limitation (1)) and two different sets of prices and terms for the sale
that content to customers in two different regions (limitations (3) and (4)).
Limitations (2) and (6) involve providing the content provider a way to
select the prices and terms for the offered content based on region (limitation
(2)) and for a user to select content to purchase with available price and
terms based on the region of the customer (limitation (6)). Limitation
(5) involves detecting the region of the customer in order to determine which
prices and terms to offer that customer. Limitation (7) involves actually
providing the content to the user according to the identified criteria.

4 Our reviewing court recognizes that “[a]n abstract idea can generally be
described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc.,
842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does
not, “impact the patentability analysis.” Id. at 1241. Moreover, merely
combining several abstract ideas does not render the combination any less
abstract. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed.
Cir. 2017) (“Adding one abstract idea (math) to another abstract idea . . .
does not render the claim non-abstract.”); see also FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (determining the
pending claims were directed to a combination of abstract ideas).
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All of these limitations are part of a method for allowing content
providers to sell their works using different prices and other terms for those
works based on the geographical location of the customer. This method can
be categorized as a “commercial interaction,” similar to claims the Federal
Circuit has found to be unpatentable abstract ideas. See, e.g., buySAFE, Inc.
v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (holding unpatentable
claims “squarely about creating a contractual relationship—a ‘transaction
performance guaranty’—that is beyond question of ancient lineage”);
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 712 (Fed. Cir. 2014)
(holding unpatentable claims “directed to a method for distributing
copyrighted media products over the Internet where the consumer receives a
copyrighted media product at no cost, and the advertiser pays for the
copyrighted content”); OIP Techs, Inc. v. Amazon.com, Inc., 788 F.3d
1359,1362 (Fed. Cir. 2015) (holding unpatentable claims directed to “offer-
based price optimization”).
Accordingly, we conclude claim 33 recites a certain method of
organizing human activity (commercial interaction) and, thus, an abstract
idea. Revised Guidance, 84 Fed. Reg. at 52, 53 (listing “[c]ertain methods
of organizing human activity . . . —“commercial or legal interactions” as
one of the “enumerated groupings of abstract ideas”).
Integration of the Judicial Exception into a Practical Application
If a claim recites a judicial exception, we determine whether the
recited judicial exception is integrated into a practical application of that
exception by: (a) identifying whether there are any additional elements
recited in the claim beyond the judicial exception(s); and (b) evaluating
those additional elements individually and in combination to determine
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whether they integrate the exception into a practical application. If the
recited judicial exception is integrated into a practical application, the claim
is not directed to the judicial exception.
Here, claim 33 recites the additional elements of “one or more
processors,” “computer-readable memory,” “item user interface,” and “a
network.” Appeal Br. 16 (Claims App’x). Considering claim 33 as a whole,
the additional elements do not apply or use the abstract idea in a meaningful
way such that the claim as a whole is more than a drafting effort designed to
monopolize the exception. The Supreme Court guides that the “prohibition
against patenting abstract ideas ‘cannot be circumvented by attempting to
limit the use of the formula to a particular technological environment’ or
[by] adding ‘insignificant postsolution activity.’” Bilski v. Kappos, 561 U.S.
593, 610–11 (2010) (quoting Diamond v. Diehr, 450 U.S. 175, 191–92
(1981)).
The Specification describes each of these computer device elements
as generic components. For example, the Specification states
The processes and logic flows described in this specification can
be performed by one or more programmable processors
executing one or more computer programs to perform functions
by operating on input data and generating output. The processes
and logic flows can also be performed by, and apparatus can also
be implemented as, special purpose logic circuitry, e.g., an FPGA
(field programmable gate array) or an ASIC (application specific
integrated circuit). Processors suitable for the execution of a
computer program include, by way of example, both general and
special purpose microprocessors, and any one or more processors
of any kind of digital computer. Generally, a processor will
receive instructions and data from a read only memory or a
random access memory or both.
Spec. 24.
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Appellant’s arguments have not persuaded us claim 1 is “directed to”
a patent-eligible concept. For example, Appellant argues that, like McRO,
the claims “recite specific rules and features that practically limit the scope
of the claims, such that they do not preempt the entire alleged abstract idea
of distributing content based on a geographic area.” Appeal Br. 8 (citing
McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir.
2016).
We do not agree with Appellant’s analogy to McRO. The claims in
McRO “focused on a specific asserted improvement in computer animation,
i.e., the automatic use of rules of a particular type.” McRO, 837 F.3d at
1314. The rules were “limited” and had “specific characteristics,” and the
claims incorporated “the specific features of the rules as claim limitations.”
McRO, 837 F.3d at 1313, 1316. In contrast, claim 33 recites a series of
broadly worded results without meaningfully describing how the results are
achieved. For example, claim 33 recites “wherein for each of a plurality of
content items for each of a plurality of regions, a price and an option type
are specifically selected using the item user interface” and “providing access
to the particular content from the platform to the remote user via the network
according to a criterion of the option that the remote user has identified.”
Appeal Br. 16–17 (Claims App.). These limitations recite what is selected
by and provided to the remote user, but say little about how these functions
are performed. Cf. SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167
(Fed. Cir. 2018) (explaining that the claims in McRO “avoided being
‘abstract’ in another sense reflected repeatedly in our cases” because “they
had the specificity required to transform a claim from one claiming only a
result to one claiming a way of achieving it”). And claim 33 generally
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concerns “empowering content creators to market and distribute their own
content without entering into onerous one-sided agreements with content
providers, such as distributors, subdistributors, assignees, or licensees”
(Spec. 3) not improving a technological process such as computer animation
like the claims in McRO. Claim 33 is thus distinguishable from the patent-
eligible claims in McRO.
Moreover, even if the claims do not “preempt the entire alleged
abstract idea of distributing content based on a geographic area,” (Appeal
Br. 8) this fact alone would not alter our § 101 analysis. Rather than
preemption, the Federal Circuit instructs that the Alice two-step analysis is
the test for whether claims are statutory. “While preemption may signal
patent ineligible subject matter, the absence of complete preemption does
not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). “Where a patent’s claims are
deemed only to disclose patent ineligible subject matter under the Mayo
framework, as they are in this case, preemption concerns are fully addressed
and made moot.” Id.
Accordingly, even in combination with all the other recited elements,
the addition of “one or more processors,” “computer-readable memory,”
“item user interface,” and “a network” does not integrate the abstract idea
into a practical application because it does not impose any meaningful limits
on practicing the abstract idea. For these reasons, we determine that claim
33 does not integrate the recited abstract idea into a practical application.
Inventive Concept
Because we agree with the Examiner that claim 33 is “directed to” an
abstract idea, we consider whether an additional element (or combination of
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elements) adds a limitation that is not well-understood, routine, conventional
(“WURC”) activity in the field or whether the additional elements simply
append WURC activities previously known to the industry, specified at a
high level of generality, to the judicial exception. Revised Guidance, 84
Fed. Reg. at 23. The Examiner’s finding that an additional element (or
combination of elements) is WURC activity must be supported with a
factual determination. Id. (citing MPEP § 2106.05(d), as modified by the
Berkheimer Memorandum5).
Whether the additional elements (“one or more processors,”
“computer-readable memory,” “item user interface,” and “a network”) are
WURC activity is a question of fact. See Berkheimer v. HP Inc., 881 F.3d
1360, 1369 (Fed. Cir. 2018) (“Whether something is well-understood,
routine, and conventional to a skilled artisan . . . is a factual
determination.”).
On the record before us, Appellant has not shown that the claims on
appeal add a specific limitation beyond the judicial exception that is not
“well-understood, routine, and conventional” in the field (see MPEP
§ 2106.05(d)). Other than asserting that the entirety of the claimed subject
matter is unconventional, Appellant does not point to any particular claimed
element that does not qualify as WURC. Appeal Br. 7 (“The independent
claims recite a number of rules and limitations that limit the claims to a very
specific and limited manner for distributing content, including providing
real-time distribution data and distribution adjustment.”).

5 R. W. Bahr, Changes in Examination Procedure Pertaining to Subject
Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v.
HP, Inc.) (2018) (hereinafter “Berkheimer Memorandum”).
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In fact, Appellant’s Specification demonstrates the WURC nature of
“one or more processors,” “computer-readable memory,” “item user
interface,” and “a network” because it indicates they may be implemented
with generic devices. Spec. 23–26. In addition, courts have recognized that
receiving or transmitting data over a network, in a manner similar to that
recited in the claims, is WURC. OIP Techs., Inc. v. Amazon.com, Inc., 788
F.3d 1359, 1363 (Fed. Cir. 2015) (sending messages over a network);
buySAFE, 765 F.3d at 1355 (computer receives and sends information over a
network).
For these reasons, we conclude that claim 33, considered as a whole,
does not include an inventive concept.
Claims 31 and 32
Appellant argues that “Claims 31 and 32 provide additional
automation features that further solidify the case for patent eligibility.”
Appeal Br. 8 (providing no further analysis of how these features contribute
to patent eligibility and quoting the limitations recited by claims 31 and 32).
According to Appellant, “the Office has failed to proper case for patent
ineligibility of claims 31 and 32, and because those claims recite patent
eligible subject matter, it is respectfully submitted that those § 101 rejections
should be overturned.” Id.
There is no dispute that the Office directs examiners to examine each
claim individually. But the Examiner has considered each claim
individually even though there is not a separate written analysis for each
individual claim in some sections of the office action. We decline to find
error here in the Examiner’s decision to not address the patent-eligibility of
claims 31 and 32, individually, on pages 5 through 9 of the office action
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because the claims all recite similar steps as part of the same abstract idea.
See Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat.
Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014) (explaining that when all claims
are directed to the same abstract idea, “addressing each claim of the asserted
patents [is] unnecessary”). We also note that, in the “Response to
Arguments” section of the office action, the Examiner determines that
claims 31 and 32 “simply recite the result of adjusting purchase options
based on realtime data without human intervention, as opposed to reciting a
technological improvement.” Final Act. 4. Yet Appellant does not squarely
rebut this reasoning. See App. Br. 8.
DECISION
We affirm the Examiner’s rejection of claims 31–33 under 35 U.S.C.
§ 101.
We reverse the Examiner’s rejection of claims 31–33 under 35 U.S.C.
§ 103.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner’s rejection of claims 31–33.
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DECISION SUMMARY
Claims
Rejected
Basis Affirmed Reversed
31–33 § 101 31–33
31–33 § 103 31–33
Overall
Outcome
31–33
FINALITY AND 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED