Michael Chiovari et al.

Patent Trials and Appeals Board

Aug 14, 2019

11332935 - (D) (P.T.A.B. Aug. 14, 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.
11/332,935 01/17/2006 Michael Chiovari 26454-0021 4925
101373 7590 08/14/2019
Eversheds Sutherland (US) LLP / CEI
999 Peachtree Street
Suite 2300
Atlanta, GA 30309
EXAMINER
TROTTER, SCOTT S
ART UNIT PAPER NUMBER
3696
NOTIFICATION DATE DELIVERY MODE
08/14/2019 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL CHIOVARI and DALE POLLAK
____________

Appeal 2018-001648
Application 11/332,9351
Technology Center 3600
____________

Before ANTON W. FETTING, NINA L. MEDLOCK, and
TARA L. HUTCHINGS, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

1 According to Appellants, the real party in interest is vAuto, Inc. (Appeal
Br. 1).

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STATEMENT OF THE CASE2
Michael Chiovari and Dale Pollak (Appellants) seek review under
35 U.S.C. § 134 of a final rejection of claims 1, 3, 4, 6, 8–11, 15–18, 31, 34,
and 35, the only claims pending in the application on appeal. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
The Appellants invented a way of managing a business. Spec. 1:7–8.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method of evaluating an acquisition of at least one used
vehicle for subsequent sale by a dealer, comprising:
[1] receiving a first login request from a first user device by the
application server system,
wherein the first login request is associate[d] with a user
account;
[2] validating the first login request;
[3] receiving a second login request from a second user device
by the application server system,
wherein the second login request is associate[d] with the
user account;
[4] determining, by the application server system comprising at
least one computing device, an initial water value of an
inventory of the dealer

2 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed May 30, 2017) and Reply Brief (“Reply Br.,” filed December 4,
2017), and the Examiner’s Answer (“Ans.,” mailed October 5, 2017), and
Final Action (“Final Act.,” mailed January 9, 2017).
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by calculating a difference between a cost of each vehicle
in the inventory and a wholesale value of each vehicle in
the inventory;
[5] determining, by the application server system, an initial
average gross profit of the inventory of the dealer
by calculating an average difference between a sales
amount of each vehicle in the inventory and the cost of
each vehicle of the inventory sold over a period of time;
[6] calculating, by the application server system, an initial
metric of the inventory,
said initial metric of the inventory based at least in part
on a relationship between said initial average gross profit
of the inventory and said initial water value of the
inventory by dividing said initial average gross profit of
the inventory by said initial water value of the inventory;
[7] receiving, by the application server system, an appraisal
value for the acquisition of said at least one used vehicle;
[8] determining, by the application server system, a revised
water value of a revised inventory of the dealer,
comprising the inventory and the at least one used
vehicle,
by calculating a difference between a cost of each vehicle
in the revised inventory and a wholesale value of each
vehicle in the revised inventory, the calculation including
information from the at least one used vehicle;
[9] calculating, by the application server system, a proposed
metric
by dividing said average gross profit of the inventory by
said revised water value of the revised inventory;
[10] comparing, by the application server system, said initial
metric to said proposed metric to evaluate the acquisition of
said at least one used vehicle;
and
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[11] providing, by the application server system to the dealer,
information associated with the comparing.
Claims 1, 3, 4, 6, 8–11, 15–18, 31, 34, and 35 stand rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
ANALYSIS
STEP 13
Claim 1, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[w]hat
else is there in the claims before us? To answer that question,
. . . consider 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. [The Court] described step two of
this analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure

3 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp., Pty. Ltd. v CLS Bank Int’l, 573 U.S. 208, 217–18 (2014)
(citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66 (2012)). To perform this test, we must first determine
what the claims are directed to. This begins by determining whether the
claims recite one of the judicial exceptions (a law of nature, a natural
phenomenon, or an abstract idea). Then, if the claims recite a judicial
exception, determining whether the claims at issue are directed to the recited
judicial exception, or whether the recited judicial exception is integrated into
a practical application of that exception, i.e., that the claims “apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception.” Revised Guidance, 84 Fed.
Reg. at 54. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 1 recites receiving and validating login data, calculating differences
and metrics, receiving appraisal value data, calculating differences and
quotients, comparing data, and providing the comparison data. Validating
data is rudimentary analysis. Calculating differences, quotients, and metrics
are forms of mathematical calculation and thus analysis. Comparing data is
rudimentary analysis. Providing data is data transmission. Thus, claim 1
recites receiving, analyzing, calculating, and transmitting data. None of the
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limitations recites technological implementation details for any of these
steps, but instead recite only results desired by any and all possible means.
From this we see that claim 1 does not recite the judicial exceptions of
either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts,4 (2) certain methods of organizing
human activity,5 and (3) mental processes.6 Among those certain methods
of organizing human activity listed in the Revised Guidance are fundamental
economic practices and commercial or legal interactions. Like those
concepts, claim 1 recites the concept of financial analysis. Specifically,
claim 1 recites operations that would ordinarily take place in advising one to
provide information about a comparison between metrics mathematically
calculated from wholesale values, profits, and costs of one vehicle and those
of an inventory of vehicles. The advice to provide information about a
comparison between metrics mathematically calculated from wholesale
values, profits, and costs of one vehicle and those of an inventory of vehicles

4 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219–20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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involves analyzing an inventory of vehicles, which is an economic act, and
comparing costs and profits, which is an act ordinarily performed in the
stream of commerce. For example, claim 1 recites “calculating a difference
between a cost of each vehicle in the inventory and a wholesale value of
each vehicle in the inventory,” which is an activity that would take place
whenever one is performing the cost or market calculation required by
standard accounting principles in commerce. Similarly, claim 1 recites
“evaluate the acquisition of said at least one used vehicle,” which is also
characteristic of commercial vehicle transactions.
The Examiner determines the claims to be directed to
the concept of calculating value metrics of a vehicle inventory -
an abstract idea which would fall within the universe of
ineligible subject matter envisioned by courts as being an
exception to patentability, e.g., a fundamental economic activity
(abstract idea) simply being carried out via an electronic device,
a general purpose computer and/or a computer system.
Final Act. 4.
The preamble to claim 1 recites that it is a method of evaluating an
acquisition of at least one used vehicle for subsequent sale by a dealer. The
steps in claim 1 result in providing metrics information to evaluate the
acquisition of a used vehicle absent any technological mechanism other than
a conventional computer for doing so.
As to the specific limitations, limitations 1, 3, and 7 recite data retrieval.
Limitation 11 is insignificant data transmission. Limitation 2 is generic data
validation, conventionally performed to some degree (e.g. validating proper
data types for data fields) in all computer processes, and for login requests in
particular in many multi-user systems such as UNIX. Limitations 4–9 recite
mathematical calculations of data. Mathematical calculations are one of the
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broad categories of abstract ideas recognized in Supreme Court decisions.
See also Revised Guidance, 84 Fed. Reg. at 52. The limitations thus recite
advice for providing information about a comparison between metrics
mathematically calculated from wholesale values, profits, and costs of one
vehicle and those of an inventory of vehicles. To advocate providing
information about a comparison between metrics mathematically calculated
from wholesale values, profits, and costs of one vehicle and those of an
inventory of vehicles is conceptual advice for results desired and not
technological operations.
The Specification at 1:7–8 describes the invention as relating to
managing a business. Thus, all this intrinsic evidence shows that claim 1 is
directed to computing vehicle value, profit and cost statistics, i.e. financial
analysis. This is consistent with the Examiner’s determination.
This in turn is an example of fundamental economic practices and
commercial or legal interactions as a certain method of organizing human
activity, because maintaining an inventory of vehicles for sale is both a
fundamental economic practice and a precursor to the recited acquisition and
sale as commercial transactions. The concept of financial analysis by
providing information about a comparison between metrics mathematically
calculated from wholesale values, profits, and costs of one vehicle and those
of an inventory of vehicles is one idea for evaluating particular transactions.
The steps recited in claim 1 are part of how this might conceptually be
premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Intellectual Ventures I LLC v.
Capital One Bank (USA), 792 F.3d 1363, 1367 (2015) (tracking financial
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transactions); Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044,
1054 (2017) (processing for financing a purchase).
Alternately, this is an example of concepts performed in the human mind
as mental processes because the steps of receiving, analyzing, calculating,
and transmitting data mimic human thought processes of observation,
evaluation, judgment, and opinion, perhaps with paper and pencil, where the
data interpretation is perceptible only in the human mind. See In re TLI
Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, analysis,
calculation, and transmission and does not recite an improvement to a
particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims
not abstract because they “focused on a specific asserted improvement in
computer animation”). As such, claim 1 is directed to receiving, analyzing,
calculating, and transmitting data, and not a technological implementation or
application of that idea.
Alternately, this is an example of a mathematical concept because the
steps of computing statistics from wholesale values, profits, and costs
perform a mathematical algorithm. The remaining steps are mere data
gathering and incidental post processing steps.
From this we conclude that at least to this degree, claim 1 is directed
to financial analysis by providing information about a comparison between
metrics mathematically calculated from wholesale values, profits, and costs
of one vehicle and those of an inventory of vehicles, which is a commercial
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and legal interaction, one of certain methods of organizing human activity
identified in the Revised Guidance, and, thus, an abstract idea.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more
precisely directed to this concept itself, or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept, i.e., integrated into a practical application.7
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, “all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.”
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. “[A]pplication[s]” of
such concepts “ ‘to a new and useful end,’ ” we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Steps 1 and 3 are pure data gathering
steps. Limitations describing the nature of the data do not alter this. Step 10
is insignificant post solution activity, such as transmitting or displaying the
results. Steps 2 and 4–9 recite generic computer processing expressed in
terms of results desired by any and all possible means and so present no
more than conceptual advice. All purported inventive aspects reside in how
the data are interpreted and the results desired, and not in how the process

7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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physically enforces such a data interpretation or in how the processing
technologically achieves those results.
Viewed as a whole, Appellants’ claim 1 simply recites the concept of
financial analysis by providing information about a comparison between
metrics mathematically calculated from wholesale values, profits, and costs
of one vehicle and those of an inventory of vehicles as performed by a
generic computer. This is no more than conceptual advice on the parameters
for this concept and the generic computer processes necessary to process
those parameters, and do not recite any particular implementation.
Claim 1 does not, for example, purport to improve the functioning of the
computer itself. Nor does it effect an improvement in any other technology
or technical field. The Specification spells out different generic equipment8
and parameters that might be applied using this concept and the particular
steps such conventional processing would entail based on the concept of
financial analysis by providing information about a comparison between
metrics mathematically calculated from wholesale values, profits, and costs
of one vehicle and those of an inventory of vehicles under different
scenarios. It does not describe any particular improvement in the manner a
computer functions. Instead, claim 1 at issue amounts to nothing
significantly more than an instruction to apply financial analysis by
providing information about a comparison between metrics mathematically
calculated from wholesale values, profits, and costs of one vehicle and those
of an inventory of vehicles using some unspecified, generic computer.
Under our precedents, that is not enough to transform an abstract idea into a
patent-eligible invention. See Alice, 573 U.S. at 225–26.

8 The Specification describes a desktop computer or server. Spec. 5:1–3.
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None of the limitations reflects an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for
a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or applies or uses the judicial
exception in some other meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception.
We conclude that claim 1 is directed to achieving the result of financial
analysis by advising one to provide information about a comparison between
metrics mathematically calculated from wholesale values, profits, and costs
of one vehicle and those of an inventory of vehicles, as distinguished from a
technological improvement for achieving or applying that result. This
amounts to commercial or legal interactions, which fall within certain
methods of organizing human activity that constitute abstract ideas. The
claim does not integrate the judicial exception into a practical application.
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STEP 2B
The next issue is whether claim 1 provides an inventive concept because
the additional elements recited in the claim provide significantly more than
the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than simply
instruct the practitioner to implement the abstract idea [] on a generic
computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, analyzing, calculating, and transmitting data
amounts to electronic data query and retrieval—one of the most basic
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functions of a computer. All of these computer functions are generic,
routine, conventional computer activities that are performed only for their
conventional uses. See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016). See also In re Katz Interactive Call Processing
Patent Litigation, 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible
narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . .
. those functions can be achieved by any general purpose computer without
special programming”). None of these activities is used in some
unconventional manner nor do any produce some unexpected result.
Appellants do not contend they invented any of these activities. In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, “even if a process of
collecting and analyzing information is ‘limited to particular content’ or a
particular ‘source,’ that limitation does not make the collection and analysis
other than abstract.” SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161,
1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellants’ claim 1 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
calculation-transmission is equally generic and conventional. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Communications,
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LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
We conclude that claim 1 does not provide an inventive concept because
the additional elements recited in the claim do not provide significantly more
than the recited judicial exception.
REMAINING CLAIMS
Claim 1 is representative. The other independent method claims 15, 31,
and 34 are substantially similar at least as regards this analysis. The
remaining method claims merely describe process parameters. We conclude
that the method claims at issue are directed to a patent-ineligible concept
itself, and not to the practical application of that concept. There are no
structural claims. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by the commercial and
legal interaction of financial analysis by advising one to providing
information about a comparison between metrics mathematically calculated
from wholesale values, profits, and costs of one vehicle and those of an
inventory of vehicles, without significantly more.
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APPELLANTS’ ARGUMENTS
As to Appellants’ Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Final Action 3–7 and Answer 6–8 and
reach similar legal conclusions. We now turn to the Reply Brief.
Appellants attempt to analogize the claims to those involved in
Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259–60 (Fed. Cir.
2017). Reply Br. 2. In Visual Memory, the court held that the claims were
directed to “‘an improved memory system having one or more
programmable operational characteristics, said characteristics being defined
through configuration by said computer based on the type of said processor,’
and ‘determin[ing] a type of data stored by said cache.’” Visual Memory,
867 F.3d at 1259. Claim 1 does not alter the way the computer operates as
in Visual Memory. Instead, claim 1 recites conventional mathematical
operations to provide financial analysis.
Here, the focus of the claims is not any improved computer or
network, but the improved mathematical analysis; and indeed,
the specification makes clear that off-the-shelf computer
technology is usable to carry out the analysis
SAP America, 890 F.3d at 1022 (distinguishing Visual Memory).
We are not persuaded by Appellants’ argument that the “number and
speed of iterations performed on the computer is simply not possible
manually.” Reply Br. 2. Using a computer for speed is insufficient.
At best, the claims describe the automation of the
fundamental economic concept of offer-based price
optimization through the use of generic-computer functions.
Both the prosecution history and the specification emphasize
that the key distinguishing feature of the claims is the ability
to automate or otherwise make more efficient traditional
price-optimization methods. . . . But relying on a computer
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to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible.
OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (2015).
CONCLUSIONS OF LAW
The rejection of claims 1, 3, 4, 6, 8–11, 15–18, 31, 34, and 35 under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more is proper.
DECISION
The rejection of claims 1, 3, 4, 6, 8–11, 15–18, 31, 34, and 35 is
affirmed.
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) (2011).

AFFIRMED