Capital One Services, LLC

Patent Trials and Appeals Board

Sep 2, 2020

16119046 - (D) (P.T.A.B. Sep. 2, 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.
16/119,046 08/31/2018 Jeffrey WOLFE 0104-0177 1058
122571 7590 09/02/2020
Harrity & Harrity, LLP
11350 Random Hills Road Suite 600
Fairfax, VA 22030
EXAMINER
SHAIKH, MOHAMMAD Z
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
09/02/2020 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):
docket@harrityllp.com
mpick@harrityllp.com
ptomail@harrityllp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY WOLFE, SUSHANT LIKHATE,
JONATHAN LIPKIN, and MEGAN EDDS

________

Appeal 2020-002252
Application 16/119,046
Technology Center 3600

____________

Before JOSEPH A. FISCHETTI, BRUCE T. WIEDER, and
AMEE A. SHAH, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks review under 35 U.S.C. § 134 from the Examiner’s
final rejection of claims 1–20. 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 Capital
One Services, LLC (Appeal Br. 3.)
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CLAIMED SUBJECT MATTER
Appellant’s invention relates to debt resolution planning including an
accelerated charge off plan. (Spec. ¶ 2.)
Claims 1, 9, and 16 are the independent claims on appeal. Claim 1 is
illustrative. It recites:
1. A method, comprising:
receiving, by a device, a request for information regarding
a debt resolution plan available for a delinquent account,
wherein the request includes:
a first input indicating a payment amount,
a second input indicating a payment
frequency, and
a third input indicating a payment start date;
obtaining, by the device, account data associated with the
delinquent account;
determining, by the device and using a machine learning
model, a score for the delinquent account based on the first input,
the second input, the third input, and the account data,
the machine learning model being trained to receive
the first input the second input, the third input, and the
account data and produce, as output, the score, and
wherein the score predicts a likelihood that a
creditor associated with the delinquent account will charge
off the delinquent account within a predetermined time
period;
determining, by the device, a plurality of plan parameters
for an accelerated charge off plan when the score satisfies a
threshold,
the accelerated charge off plan specifying a charge off
time, prior to an end of the predetermined time period, at which
the delinquent account will be proactively charged off, and
wherein the plurality of plan parameters include:
a first parameter indicating a repayment
amount,
a second parameter indicating a repayment
frequency, and
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a third parameter indicating a repayment start
date;
transmitting, by the device, the plurality of plan
parameters associated with the accelerated charge off plan;
receiving, by the device, an enrollment request based on
transmitting the plurality of plan parameters;
enrolling, by the device, the delinquent account in the
accelerated charge off plan based on receiving the enrollment
request; and
performing, by the device, one or more actions based on
enrolling the delinquent account in the accelerated charge off
plan.

REJECTION
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
ANALYSIS
Appellant does not separately argue the claims. We select claim 1 as
representative. Claims 2–20 will stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. Section 101, however,
“contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. 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)).
Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), “for distinguishing patents that claim laws of nature, natural
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phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 573 U.S. at 217.
Under the two-step framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the
claims are determined to be directed to a patent-ineligible concept, e.g., an
abstract idea, then the second step of the framework is applied to determine
if “the elements of the claim . . . contain[] an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Id. at 221 (internal quotation marks omitted) (citing Mayo, 566 U.S. at 72–
73, 79).
With regard to step one of the Alice framework, we apply a “directed
to” two-prong test to: 1) evaluate whether the claim recites a judicial
exception, and 2) if the claim recites a judicial exception, evaluate whether
the claim “appl[ies], rel[ies] on, or use[s] 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.” See USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019 Guidance”).
Here, the Examiner determines that claim 1 “recites a fundamental
economic practice [(]of []mitigating transaction risk), specifically providing
a debt resolution plan to a user who has a delinquent account.” (Final
Action 13.) Thus, the Examiner determines that claim 1 recites an abstract
idea in the “category of ‘Certain methods of Organizing Human Activity.’”
(Id. at 3.)
Appellant argues that “representative claim 1 recites a variety of non-
fundamental features designed to apply machine learning model [sic] to
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determine plan parameters for an accelerated charge off plan.” (Appeal
Br. 11.) In particular, Appellant argues that “claim 1 specifically recites
features indicating the manner in which a particular machine learning model
is used to enable representative claim 1 to perform a variety of actions,
including enrolling in an accelerated charge off plan.” (Id. at 14.)
Under step one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
The “directed to” inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural phenomenon
. . . . Rather, the “directed to” inquiry applies a stage-one filter
to claims, considered in light of the specification, based on
whether “their character as a whole is directed to excluded
subject matter.” Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015).

Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In
other words, the first step of the Alice framework “asks whether the focus of
the claims is on the specific asserted improvement in [the relevant
technology] or, instead, on a process that qualifies as an ‘abstract idea’ for
which computers are invoked merely as a tool.” Id. at 1335–36; see also
2019 Guidance at 54–55.
The Specification provides evidence as to what the claimed invention
is directed. In this case, the Specification discloses that the invention relates
to debt resolution planning including an accelerated charge off plan. (Spec.
¶ 2.) Claim 1 provides further evidence. Claim 1 recites “receiving . . . a
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request for information regarding a debt resolution plan available for a
delinquent account,” “obtaining . . . account data,” “determining . . . using a
machine learning model, a score for the delinquent account,” “determining
. . . a plurality of plan parameters for an accelerated charge off plan when the
score satisfies a threshold,” “transmitting . . . the plurality of plan
parameters,” “receiving . . . an enrollment request,” “enrolling . . . the
delinquent account,” “and performing . . . one or more actions based on
enrolling the delinquent account.”
In short, the intrinsic evidence shows that claim 1 recites receiving
data, obtaining data, analyzing data (determining an account score using a
machine learning model), transmitting data, receiving data (the enrollment
request), and processing data (enrolling the account and performing
unspecified one or more actions). Receiving data, analyzing data,
transmitting data, and processing data have been determined to be directed
to an abstract idea. See, e.g., Content Extraction and Transmission LLC v.
Well Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014)
(treating as an abstract idea “1) collecting data, 2) recognizing certain data
within the collected data set, and 3) storing that recognized data”). Claim 1
does not recite how the device receives data, how the device obtains data,
how the device transmits data, or how the device processes data. For each of
these steps, claim 1 merely recites functional results to be achieved by any
means.
With regard to the determining step, i.e., “determining, by the device
and using a machine learning model, a score for the delinquent account
based on the first input, the second input, the third input, and the account
data,” Appellant argues that “claim 1 specifically recites features indicating
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the manner in which a particular machine learning model is used to enable
representative claim 1 to perform a variety of actions, including enrolling in
an accelerated charge off plan.” (Appeal Br. 14.) We disagree.
Claim 1 recites the use of “a machine learning model” at only a high
level of generality. The claim does not recite how the machine learning
model achieves the goal of determining the score. The claim merely recites
the idea of using a machine learning model to determine a score while
providing no detail, beyond a list of input data to be considered in some
unspecified way. The claim does not recite how the learning model achieves
the stated result, or even what type of learning model is used.
In other words, the steps of claim 1 do not recite technological
implementation details for any of the steps. Nor does claim 1 recite “a
particular way of programming or designing the software . . . , but instead
merely claim[s] the resulting system.” Apple, Inc. v. Ameranth, Inc., 842
F.3d 1229, 1241 (Fed. Cir. 2016).
In cases involving software innovations, such as we have here, the
inquiry as to whether the claims are directed to an abstract idea “often turns
on whether the claims focus on ‘the specific asserted improvement in
computer capabilities ... or, instead, on a process that qualifies as an
“abstract idea” for which computers are invoked merely as a tool.’” Finjan,
Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018) (quoting
Enfish, 822 F.3d at 1335–36). Here, the device and learning machine model
are invoked merely as tools. The asserted improvement is to the data
provided, i.e., the score and the plan parameters for the accelerated charge
off plan.
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In view of the above, we determine that claim 1 sets forth a method
for debt resolution by determining plan parameters for an accelerated charge
off plan. Such debt resolution includes forms of mitigating risk and
commercial or legal interaction. Under the 2019 Guidance, “fundamental
economic principles or practices (including hedging, insurance, mitigating
risk)” and “commercial or legal interactions (including agreements in the
form of contracts; legal obligations . . . )” are identified as certain methods
of organizing human activity, and thus, an abstract idea. (2019 Guidance
at 52.) This is in accord with the Examiner’s determination.2 (See Final
Action 12.)
Nonetheless, Appellant argues that claim 1 does not recite the abstract
idea of a fundamental economic practice “at least because representative
claim 1 recites a variety of non-fundamental features designed to apply
machine learning model [sic] to determine plan parameters for an
accelerated charge off plan.” (Appeal Br. 11.) Specifically, Appellant
points to the claim steps of determining a score, determining plan
parameters, transmitting the parameters, receiving an enrollment request,
enrolling the account, and performing one or more unspecified actions. (Id.
at 11–12.) We do not find this argument persuasive.
As discussed above, determining values, transmitting data, receiving
data, and performing actions based on data, have all been determined to be

2 Although we and the Examiner describe, at different levels of abstraction,
to what the claims are directed, it is recognized that “[a]n abstract idea can
generally be described at different levels of abstraction.” Apple, Inc., 842
F.3d at 1240. That need not and, in this case does not, “impact the
patentability analysis.” Id. at 1241.

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directed to an abstract idea. To the extent Appellant is arguing that the claim
does not recite a fundamental economic practice because there is an
improvement to the information itself, we do not find the argument
persuasive. See, e.g., BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1288 (Fed. Cir. 2018) (“[A[n] improvement to the information stored by a
database is not equivalent to an improvement in the database’s
functionality.”). And “[a]s many cases make clear, 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 Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168
(Fed. Cir. 2018). The “character of [the] information simply invokes a
separate category of abstract ideas.” Id. In other words, Appellant’s
asserted improvement “lies entirely in the realm of abstract ideas, with no
plausibly alleged innovation in the non-abstract application realm.” Id.
at 1163.
Moreover, we do not see how the recitation of a generic “device” and
generic “machine learning model,” even in conjunction with the recited
functions, “ensure[s] ‘that the [claim] is more than a drafting effort designed
to monopolize the [abstract idea].’” See Alice, 573 U.S. at 221 (second and
third brackets in original) (quoting Mayo, 566 U.S. at 77.)
Nor do we find any indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record that attributes an
improvement in computer technology or functionality to the claimed
invention or that otherwise indicates that the claimed invention “appl[ies],
rel[ies] on, or use[s] the judicial exception in a manner that imposes a
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meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” (See 2019
Guidance at 54–55.)
Regardless, Appellant argues “that the claims reflect an improvement
in the functioning of a computer, or an improvement to other technology or
technical field.” (Appeal Br. 18.) Specifically, Appellant argues that the
claims provide such an improvement because
automating the process for implementing intelligent debt
resolution planning conserves computing resources (e.g.,
processor resources, memory resources, and/or the like) that
would otherwise be wasted in attempting to negotiate and enroll
a user in a debt management plan that may ultimately fail, due to
a lack of intelligence, insight, and/or the like.

(Id. (quoting Spec. ¶ 15) (emphasis omitted).) We do not find this argument
persuasive.
As we understand Appellant’s argument, the asserted savings in
computer resources is the result of providing a plan for dealing with a
delinquent account by applying particular rules, and, e.g., not providing for
negotiation. Appellant does not persuasively argue why the method of
claim 1 saves computer resources over, e.g., dealing with a delinquent
account by presenting a plan, following particular rules, and not providing
for negotiation.
Thus, under prong one of the two prong test in the 2019 Guidance,
claim 1 recites an abstract idea; and, under prong two, additional elements in
claim 1 do not “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.”
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(See 2019 Guidance at 54.) As such, under step one of the Alice framework,
the claim is directed to an abstract idea, and we move to step two.
Step two of the Alice framework has been described “as a search for
an ‘ “inventive concept” ’ –i.e., 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 (brackets in original) (quoting Mayo, 566 U.S. at 72–73). Under
step two, we examine, inter alia, whether a claim element or combination of
elements “[a]dds a specific limitation or combination of limitations that are
not well-understood, routine, conventional activity in the field, which is
indicative that an inventive concept may be present.” (2019 Guidance
at 56.)
In our analysis under step two of the Alice framework, here we
examine “[t]he question of whether a claim element or combination of
elements is well-understood, routine and conventional to a skilled artisan in
the relevant field [which] is a question of fact.” Berkheimer v. HP Inc., 881
F.3d 1360, 1368 (Fed. Cir. 2018).
Appellant argues that “[n]o evidence is presented, nor is it even
alleged, that the claims recite features that are well-understood, routine, and
conventional in the field.” (Appeal Br. 21.)
The Examiner finds that “[t]he computer hardware is recited at a high-
level of generality . . . such that it amounts no more than mere instructions to
apply the exception using a generic computer component.” (Final
Action 13.)
Taking the claim elements separately, the functions performed in
claim 1 by the generic device are purely routine and conventional. (See,
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e.g., Spec. ¶ 68.) Receiving data, analyzing data, transmitting data, and
processing data are routine and conventional computer functions and were
previously known to the industry. See Elec. Power Grp., 830 F.3d at 1356
(The claims “do not include any requirement for performing the claimed
functions of gathering, analyzing, and displaying in real time by use of
anything but entirely conventional, generic technology. The claims
therefore do not state an arguably inventive concept.”); see also In re Katz
Interactive Call Processing Patent Litig., 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.”). That the device
is recited as “using a machine learning model” does not change our analysis.
As discussed above, claim 1 does not recite how the learning model operates
to achieve the stated result or even the type of learning model used.
Considered as an ordered combination, the generic device of
Appellant’s claimed invention adds nothing that is not already present when
the limitations are considered separately. For example, claim 1 does not, as
discussed above, purport to improve the functioning of the device itself. Nor
does it effect an improvement in any other technology or technical field.
Instead, claim 1 amounts to nothing significantly more than an instruction to
apply the abstract idea using a generic device performing routine computer
functions. That is not enough to transform an abstract idea into a patent-
eligible invention. See Alice, 573 U.S. at 225–26.
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CONCLUSION
The Examiner’s rejection of claims 1–20 under 35 U.S.C. § 101 is
affirmed.
Specifically:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
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