Chrissey Hunt

Patent Trials and Appeals Board

Oct 13, 2020

15199383 - (D) (P.T.A.B. Oct. 13, 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.
15/199,383 06/30/2016 Chrissey Hunt CHHP.P0001US-11607711 1641
26271 7590 10/13/2020
NORTON ROSE FULBRIGHT US LLP
1301 MCKINNEY
SUITE 5100
HOUSTON, TX 77010-3095
EXAMINER
GIBSON-WYNN, KENNEDY ANNA
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
10/13/2020 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):
hoipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHRISSEY HUNT
__________________

Appeal 2020-002418
Application 15/199,383
Technology Center 3600
____________________

Before JOSEPH A. FISCHETTI, JAMES P. CALVE, and
NINA L. MEDLOCK, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1–7 and 9–20, which are all the pending
claims.2 Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Chrissey Hunt as the real party in interest. Appeal Br. 2.
2 Claim 8 is canceled. Final Act. 2; Appeal Br. 2; see Appeal Br. 20 (Claims
App.).
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CLAIMED SUBJECT MATTER
Claims 1, 10, and 16 are independent. Claim 1 is reproduced below.
1. A method, comprising:
receiving, at a server computer, an indication
generated by a client computer of a request
from a user to obtain a product based, at least
in part, on an image comprising a plurality of
potential products and one or more
specifications, wherein the indication
comprises at least the image, an indication of
a portion of the image including the requested
product, and one or more specifications;
searching, by the server computer, a database of
products for matches to the requested product
based, at least in part, on the received image,
the received indication of the portion of the
image, and the received one or more
specifications; and
sending, by the server computer to the client
computer, information regarding the matches
to the product, wherein the information
includes at least one identification of an offer
to sell the matched product.
Appeal Br. 18 (Claims App.).
REJECTIONS
Claims 1, 2, 4–7, 9–11, 13–17, 19, and 20 are rejected under
35 U.S.C. § 112(a) for lack of an adequate written description.3
Claims 1, 2, 4–7, 9–11, 13–17, 19, and 20 are rejected under
35 U.S.C. § 112(b) for indefiniteness.4

3 The Examiner withdrew the rejection of claims 3, 12, and 18. Ans. 3, 4.
4 The Examiner withdrew the rejection of claims 3, 12, and 18. Ans. 4.
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Claims 1–4, 6, 7, 9–13, and 15–19 are rejected under 35 U.S.C. § 101
as being directed to a judicial exception without significantly more.5
Claims 1, 2, 4, 6, 9–11, 13, 16, 17, and 19 are rejected under
35 U.S.C. § 102(a)(1) as anticipated by Kannan (US 2011/0082735 A1, pub.
Apr. 7, 2011).
Claims 3, 7, 12, 15, and 18 are rejected under 35 U.S.C. § 103 as
unpatentable over Kannan and Weingarten (US 2016/0085865 A1, pub.
Mar. 24, 2016).
Claims 5, 14, and 20 are rejected under 35 U.S.C. § 103 as
unpatentable over Kannan, Weingarten, and Yan (US 2009/0319388 A1,
pub. Dec. 24, 2009).
ANALYSIS
Claims 1, 2, 4–7, 9–11, 13–17, 19, and 20
for Lack of Written Description
The Examiner determines that “searching, by the server computer, a
database of products for matches to the requested product based, at least in
part, on the received image and on the received one or more specifications”
is not described. Final Act. 3. The Examiner determines the Specification
describes searching that is performed by an algorithm such as a bot or an
image processing algorithm, but the Specification does not adequately
describe how the search is performed using the algorithm. Ans. 4–5. The
Examiner also acknowledges Appellant’s assertion that searching and image
comparison algorithms are known in the art, but the Examiner determines
that this knowledge is not the test for possession because the inventor must
explain how the claimed function is achieved. Id. at 5.

5 The Examiner withdrew the rejection of claims 5, 14, and 20. Ans. 3.
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Appellant argues that a skilled artisan would recognize that Appellant
possessed the claimed subject matter at the time of filing based on disclosure
in the Specification and knowledge possessed by a skilled artisan. Appeal
Br. 8. Appellant quotes paragraph 24, which discloses that “[t]he search
may be performed nearly instantaneously by an algorithm, such as a bot.”
Id. Appellant also quotes paragraph 27, which discloses that “[t]he server
may search a database by using image processing algorithms that examine
features within the received image of the requested product and compare
those features with features in images of products in the database of
products” so “[s]imilar or exact matching products may be identified from
the database using the image comparison.” Id. at 8–9. Appellant asserts that
paragraph 31 also describes how to search a database of products by “using
an algorithm to compare features in the image of the requested product with
images in the database of products,” and paragraph 32 describes “receiving
an identification of the requested product from the community, information
regarding the matching product, and/or information regarding how to
purchase the matched product.” Id. at 9. Appellant contends that a skilled
artisan would have understood from these disclosures that Appellant was in
possession of the claimed invention at the time of filing. Id.
In response to the Examiner’s determination that the Specification
does not provide a specific algorithm for searching so searching can be done
by an infinite number of algorithms rendering different outcomes, Appellant
contends that “the written description requirement does not require every
detail of an algorithm to be included” and “[s]earching algorithms and image
comparison algorithms are well known to those of skill in the art.” Id.
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Section 112(a) of the Patent Laws states that “[t]he specification shall
contain a written description of the invention.” 35 U.S.C. § 112(a). “[T]he
hallmark of written description is disclosure.” Ariad Pharm., Inc. v. Eli Lilly
& Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). The specification
adequately describes an invention if it “reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.” Id. at 1351. The test requires objective inquiry into the four
corners of the specification from the perspective of a person of ordinary skill
in the art. Id. The written description requirement does not require claimed
subject matter to be described identically (id. at 1352); however, “[t]he
appearance of mere indistinct words in a specification or a claim, even an
original claim, does not necessarily satisfy” section 112, paragraph one, if it
does not put others on notice of the scope of the claimed invention and
demonstrate possession of that invention (Enzo Biochem, Inc. v. Gen-Probe
Inc., 323 F.3d 956, 968 (Fed. Cir. 2002)).
“A ‘mere wish or plan’ for obtaining the claimed invention is not
adequate written description.” Centocor Ortho Biotech, Inc. v. Abbott Labs.,
636 F.3d 1341, 1348 (Fed. Cir. 2011). However, it is well-established that a
patent specification need not re-describe known prior art concepts. Immunex
Corp. v. Sandoz Inc., 964 F.3d 1049, 1064 (Fed. Cir. 2020); see also Zoltek
Corp. v. United States, 815 F.3d 1302, 1308 (Fed. Cir. 2016) (“The written
description ‘need not include information that is already known and
available to the experienced public.’”); Capon v. Eshhar, 418 F.3d 1349,
1358 (Fed. Cir. 2005) (“The ‘written description’ requirement must be
applied in the context of the particular invention and the state of the
knowledge.”).
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Independent claims 1, 10, and 16 recite “searching, by the server
computer, a database of products for matches to the requested product based,
at least in part, on the received image, the received indication of the portion
of the image, and the received one or more specifications.” Appeal Br. 18,
20, 23 (Claims App.). The Specification indicates that image processing
algorithms are used to compare features in a received image of the requested
product with features in images of products in the database of products to
identify similar or exact matching products. Spec. ¶ 27. Also, one or more
product “specifications” may be used with search algorithms as follows:
For example, image analysis may select twenty similar products
from the database of products, and the one or more specifica-
tions applied to further reduce the matching products to four
products. Additional details regarding searching using image
analysis is described below with reference to FIGURE 6A.
Id. ¶ 27. The description of Figure 6A describes “one manner of searching a
database of products may include image processing or other algorithms for
matching features in images.” Id. ¶ 31. “[A] same or similar product as the
requested product may be identified from a database of products using an
algorithm to compare features in the image of the requested product with
images in the database of products.” Id. (describing Fig. 6A, block 604).
The Specification makes clear that image search algorithms match
features in an image of a request product to features in images of products in
a database. Product specifications are used to refine the search results. The
Examiner does not dispute that image search algorithms are known. Ans. 5.
Thus, a skilled artisan would understand from this description that
Appellant was in possession of this claimed subject matter. Accordingly, we
do not sustain the rejection of the claims for lack of written description.
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Claims 1, 2, 4–7, 9–11, 13–17, 19, and 20
for Indefiniteness
The Examiner determines the metes and bounds of claims 1, 10, and
16 are unclear because a skilled artisan is not apprised of what is meant by
“searching, by the server computer, a database of products for matches to the
requested product based, at least in part, on the received image and on the
received one or more specifications.” Final Act. 5. The Examiner finds that
the Specification does not disclose any meaningful structure/algorithm to
explain how one would generate searching, thereby leaving it unclear how
the claimed searching is accomplished. Id.; Ans. 6. The Examiner finds that
the Specification describes one manner of searching a database of products
may include image processing or other algorithms for matching features in
images, but the Examiner determines that there are a multitude of different
image processing algorithms and a skilled artisan would not know how to
search using an unidentified algorithm based on the claim language in light
of the Specification. Ans. 6. The Examiner also finds that image analysis
algorithms come in various forms, e.g., those that consider certain types of
image features (color, brightness, pixel patterns, metadata) and others that
consider degrees of importance (thresholds, weights), but the Specification
do not describe clearly how image analysis algorithms search for matches
based on a received image and a portion of the image. Id.
The Examiner determines claims 2, 11, and 17 are indefinite because
“identifying . . . a same or similar image in the database . . .” and “retrieving
. . . the identified same or similar image” use “similar” as a relative term,
and it is unclear what thresholds, percentages, or weights of features are to
be considered to be a “similar” image. See Final Act. 5–6, 21–22; Ans. 6–7.
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Appellant argues that “searching” in claim 1 is not indefinite because
the scope of the claim term is clear and a skilled artisan would understand
what is claimed when “searching” is read in light of the Specification.
Appeal Br. 10. Appellant asserts that a skilled artisan would understand the
meaning of searching based on paragraph 27’s description of image feature
comparison in light of the knowledge of one of ordinary skill in the art. Id.
Appellant contends that breadth is not indefiniteness. Id.
Regarding claims 2, 11, and 17, Appellant asserts that a skilled artisan
would understand what is meant by a “similar image” because similarity is a
concept well understood in the art. Id. at 11. Appellant argues that using
relative terminology does not automatically render a claim indefinite, and a
person of ordinary skill would understand the meaning of similarity based on
his or her own knowledge and the Specification, which states “[s]imilar or
exact matching products may be identified from the database using the
image comparison.” Id. (quoting Spec. ¶ 27). Appellant also asserts,
“[s]imilarity is a concept well understood in the art, and a person skilled in
the art would understand what is claimed when the term, and claims 2, 11,
and 17 overall, are read in light of the specification.” Id.
“The specification shall conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the inventor or
a joint inventor regards as the invention.” 35 U.S.C. § 112(b). The language
of “particularly” and “distinctly” requires claim terms to be clear rather than
ambiguous, vague, or indefinite. In re Packard, 751 F.3d 1307, 1313 (Fed.
Cir. 2014). Thus, “[a] claim is indefinite when it contains words or phrases
whose meaning is unclear.” Id. at 1309–10 (quoting MPEP § 2173.05(e));
id. at 1314 (affirming finding of indefiniteness under the MPEP standard).
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The USPTO rejects claims based on the perspective of a person of
ordinary skill in view of the written description and prosecution history. Id.
at 1312. This determination is a question of law. Id. at 1311. “Breadth is
not indefiniteness.” In re Gardner, 427 F.2d 786, 788 (CCPA 1970).
We agree with Appellant that a skilled artisan would understand the
scope of the term “searching” based on the written description of that term
discussed above in the written description rejection and the knowledge of a
person of ordinary skill in the art, which the Examiner acknowledges would
understand searching and image comparison algorithms. See Ans. 5; Appeal
Br. 10. The Examiner’s primary concern appears to be that searching is not
limited to a particular image processing algorithm. Ans. 6. In response,
Appellant asserts that the scope of “searching” is merely broad rather than
indefinite and a skilled artisan would understand the meaning in light of the
term itself and the Specification. Appeal Br. 10. We agree.
The claim language indicates “searching” is performed by matching
the requested product to a database of products based on the received image
and the “received indication of the portion of the image.” Appeal Br. 18, 20,
23. As indicated above, the Specification discloses that the portion of the
image includes features within the image that are compared to features of the
products in the database. See Spec. ¶¶ 27, 31. Thus, the claimed searching
involves an image processing algorithm or other algorithms that match the
features in an image to features in images of products in a database.
Accordingly, we determine that a skilled artisan would understand the
scope of the term “searching” in independent claims 1, 10, and 16. Thus, we
do not sustain the rejection of claims 1, 2, 4–7, 9–11, 13–17, 19, and 20 as
being indefinite for their use of the term “searching.”
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Claims 2, 11, and 17
We determine “similar” is a “term of degree” that renders the claims
indefinite because its interpretation depends on the subjective opinion of a
person where no guidance is provided in the claim or written description.
See Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371–73 (Fed. Cir.
2014) (holding “unobtrusive manner” is a purely subjective term of degree
that renders the claims indefinite where the claim language and the written
description provided “no objective indication of the manner in which content
images are to be displayed to the user” besides a single example that was not
tied to a particular temporal or spatial display); Datamize, LLC v. Plumtree
Software, Inc., 417 F.3d 1342, 1352 (Fed. Cir. 2005) (holding “aesthetically
pleasing” look and feel for interface screens made claim indefinite where the
written description provided no guidance as to which elements and results
provide an aesthetically pleasing look and feel to an interface screen); MPEP
§ 2173.05(b)III.C.; cf. Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370,
1379 (Fed. Cir. 2017) (holding “visually negligible” did not render the claim
indefinite when the written description provided a general exemplary design,
requirements, and two specific examples of a visually-negligible indicator).
Appellant has not identified claim language or written description that
provides examples, standards, requirements, or guidance for a skilled artisan
to understand when a product image in a database is similar to an image of a
requested product. Appeal Br. 11; Ans. 7. Appellant’s attorney argument is
not evidence of what a skilled artisan would understand. See Sonix Tech,
844 F.3d at 1380–81 (citing expert testimony that term was understandable).
Accordingly, we sustain the rejection of claims 2, 11, and 17 as being
indefinite for their use of the term “similar” in “similar image” in the claims.
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Patent Eligibility of the Claims
Appellant argues the claims as a group. Appeal Br. 11–13. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Examiner’s Determination
The Examiner determines that claim 1 as a whole recites certain
methods of organizing human activity as sales activity by steps of product
identification based on an image. Final Act. 7; Ans. 7–8. The Examiner
determines that steps of receiving an indication of a request from a user to
obtain a product based on an image comprising a plurality of potential
products and one or more specifications, searching a database of products
for matches to the requested product, and sending information regarding
matches to the product including an offer to sell the matched product recite
this abstract idea. Final Act. 7. The Examiner finds that additional elements
of a server computer and client computer are recited at a high level to apply
the abstract idea to a technological environment or field of use without any
meaningful limitation on the abstract idea. Final Act. 7–8; Ans. 8.
The Examiner determines that the claim does not recite any specific
improvement, and the Specification is silent about how any improvement is
made beyond a conclusory statement that a more accurate match is identified
without any details necessary to describe the improvement. Ans. 8–9. The
Examiner determines that steps performed by a generic server computer are
recited at a high level of generality indicating the server computer is used as
a tool to perform the abstract idea. Final Act. 22–23; Ans. 9. The Examiner
also determines that any alleged improvement in identifying products based
on an image does not improve computer capabilities or technology but uses
computers in their ordinary capacity. Ans. 9.
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Principles of Law
Section 101 of the Patent Act states:
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. This provision contains an implicit exception: “Laws of
nature, natural phenomena, and abstract ideas are not patentable.” Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the elements of each claim, individually and
“as an ordered combination,” to determine if additional elements “‘transform
the nature of the claim’ into a patent-eligible application” as an “inventive
concept” sufficient to ensure the claims in practice amount to significantly
more than a patent on the ineligible concept itself. See id. at 217–18.
The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). To determine if a claim is “directed to” an abstract
idea, we consider whether the claim recites: (1) any judicial exceptions,
including certain groupings of abstract ideas listed in the Revised Guidance
(i.e., mathematical concepts, certain methods of organizing human activities
such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a practical
application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 10.2019 June
2020) (“MPEP”)). Revised Guidance, 84 Fed. Reg. at 52–55.
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Only if a claim (1) recites a judicial exception and also (2) does not
integrate that exception into a practical application, do we then consider
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. Id. at 56.
Step 1: Is Claim 1 Within a Statutory Category?
Claim 1 recites a “method” which is a statutory category of 35 U.S.C.
§ 101, namely, a process. Therefore, we next consider whether claim 1 as a
whole recites a judicial exception.
Step 2A, Prong One: Does Claim 1 Recite a Judicial Exception?
We agree with the Examiner that claim 1 recites an abstract idea. The
Revised Guidance enumerates the abstract idea as (1) certain methods of
organizing human activity of commercial interactions and sales activities
and (2) mental processes. See Revised Guidance, 84 Fed. Reg. at 52.
The Specification describes the claims as relating to using computers
for image identification. Spec. ¶ 1. The background describes consumers
searching online for items they wish to purchase. Id. ¶ 2. The Specification
describes how the growth of the Internet resulted in hundreds of thousands
of images being displayed resulting in hours of searching and frustration. Id.
¶ 3. Websites may include thousands or millions of possible matches to
common keyword searches and tens or hundreds of such websites exist to be
searched. Id. ¶ 4. The claimed method allows users to identify products
they want to purchase through images. A bot may receive the image and use
image processing algorithms to identify matching products. Id. ¶ 5.
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The first step of the method involves “receiving, at a server computer,
an indication generated by a client computer of a request from a user to
obtain a product based, at least in part, on an image comprising a plurality of
potential products and one or more specifications, wherein the indication
comprises at least the image, an indication of a portion of the image
including the requested product, and one or more specifications.” Appeal
Br. 18 (Claims App.).
This step is a precursor to the searching step that follows it. It recites
a step of data gathering by the server computer. An image may be a picture
taken by a user and uploaded to the server, taken from other sources such as
catalogs or other printed material, or already stored at the server. Spec. ¶ 21.
The “one or more specifications” describe attributes of the requested product
such as its color, style, size, brand, and/or price. Id. ¶ 24, Fig. 3 (312A–E).
The “indication of the portion” may involve a user moving a cursor 210 over
a portion of a display to highlight a particular region of the image where the
potential products have been identified. Id. ¶ 22. However, claim 1 does not
recite details of the indication step or how it identifies portions of an image.
The next step uses that data for “searching, by the server computer, a
database of products for matches to the requested product based, at least in
part, on the received image, the received indication of the portion of the
image, and the received one or more specifications.” Appeal Br. 18 (Claims
App.). The Specification indicates that the search may be performed by a
bot algorithm or image processing algorithm that examines features in the
received image and compares the features to features in images of products
in the database of products to identify similar or exact matching products.
Spec. ¶¶ 24, 27, 31. Notably, claim 1 does not recite the use of algorithms.
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When recited at a high level of generality, the receiving and searching
steps collect data and organize activity of a user searching for a product to
buy by collecting an image and specifications and then analyzing that data
compared to images in a database of products by steps that can be performed
as a mental process. Such steps recite the abstract idea identified above. See
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
(“In a similar vein, we have treated analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, as
essentially mental processes within the abstract-idea category.”); id. at 1355
(“But merely selecting information, by content or source, for collection,
analysis, and display does nothing significant to differentiate a process from
ordinary mental processes, whose implicit exclusion from § 101 undergirds
the information-based category of abstract ideas.”).
The fact that the data to be analyzed and matched is an “image” does
not take claim 1 out of the abstract realm. As the court held in TLI:
[T]he claims, as noted, are simply directed to the abstract idea
of classifying and storing digital images in an organized manner.
Consistent with the Supreme Court’s rejection of “categorical
rules” to decide subject matter eligibility, . . . we have applied
the “abstract idea” exception to encompass inventions pertaining
to methods of organizing human activity. . . . Here, we find that,
like the claims at issue in Content Extraction which were
directed to “collecting data,” “recognizing certain data within
the collected data set,” and “storing the recognized data in
memory,” 776 F.3d at 1347, attaching classification data, such
as dates and times, to images for the purpose of storing those
images in an organized manner is a well-established “basic
concept” sufficient to fall under Alice step 1.
In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016).
(emphasis added).
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Similarly, receiving digital images and searching for data in portions
of the images involves mental steps. Content Extraction and Transmission
LLC v. Wells Fargo Bank Nat’l Ass’n, 776 F.3d 1343, 1347(Fed. Cir. 2014)
(“The concept of data collection, recognition, and storage is undisputedly
well-known. Indeed, humans have always performed these functions.”).
The claimed method received digital images of documents, extracted data
from the images using an automated digitizing unit such as a scanner, and
recognized specific information from the data extracted from portions of the
document in a first data field. Id. at 1345. Here, claim 1 receives an image
with a plurality of products, recognizes an indicated portion of the image
that is the requested product, and searches a database to match that portion
of the image, which essentially is extracted from the image for matching.
In CyberSource, steps of obtaining information about Internet credit
card transactions by entering a keyboard query or clicking a mouse, making
a map of credit card numbers by writing down a list of transactions made at
a particular IP address, and using the map to compare which transactions
used different credit cards, user names, and billing addresses that originated
from the same IP address were mental steps performable entirely in the
human mind. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1372–73 (Fed. Cir. 2011). The court explained that:
Methods which can be performed entirely in the human mind
are unpatentable not because there is anything wrong with
claiming mental method steps as part of a process containing
non-mental steps, but rather because computational methods
which can be performed entirely in the human mind are the
types of methods that embody the “basic tools of scientific and
technological work” that are free to all men and reserved
exclusively to none.
CyberSource, 654 F.3d at 1373.
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Here, claim 1 recites receiving an indication of a request to obtain a
product based on an image. The Specification describes an indication as
moving a cursor over an image to highlight potential products. Spec. ¶ 22.
This step is similar to using a mouse to select a credit card transaction in
CyberSource. CyberSource, 654 F.3d at 1372. It can be done as a mental
process. Claim 1 searches a database of products for matches to a requested
product, which the Specification describes as matching features of product
images in the database to features of the requested product image. See Spec.
¶ 27. This step is similar to recognizing (matching) and extracting certain
data from digital images of documents in Content Extraction and also can be
done as a mental process. See Content Extraction, 776 F.3d at 1347.
As claimed, using “an indication of a portion of the image including
the requested product” is similar to using tags to identify, organize, and
locate a desired reference in a database, which recites mental processes that
classifiers perform. See Intellectual Ventures I LLC v. Erie Indemnity Co.,
850 F.3d 1315, 1326–27 (Fed. Cir. 2017) (organizing and accessing records
in a database using an index of category and domain tags with metafiles to
refine the search is longstanding conduct used by libraries and classifiers to
organize and cross-reference information by certain identifiable tags). Here,
claim 1 recites an “indication” at a higher level of generality than XML tags
used to recognize and organize data in Intellectual Ventures. Id. at 1326–28.
The claimed “specifications” define matching products by color, style,
brand, size, or price. Spec. ¶ 24. In Intellectual Ventures, tag data such as
brand was used to refine search results similar to longstanding practices of
organizing records. See Intellectual Ventures, 850 F.3d at 1326–27. Persons
can receive product specifications in this way as a mental process.
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In Intellectual Ventures, the court held the use of an index of tags and
metafiles to locate desired information in a database is abstract similar to the
concepts claimed in TLI, Content Extraction, and Bascom Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). Id. at
1327–28. As discussed above, TLI and Content Extraction treated similar
practices as mental processes and methods of organizing human activity,
which are abstract ideas. See Revised Guidance, 84 Fed. Reg. at 52.
Here, claim 1 uses an image, an indication of a portion of the image,
and one or more specifications to search a database of products for matches.
See Appeal Br. 18 (Claims App.). These elements are used like tags and
metafiles to search a database for products that match those features. See
Intellectual Ventures, 850 F.3d at 1327; Bascom, 827 F.3d at 1348–49 (“We
agree with the district court that filtering content is an abstract idea because
it is a longstanding, well-known method of organizing human behavior,
similar to concepts previously found to be abstract.”). In TLI, the patent
allowed telephone systems to make graphical annotations on pictures to
identify and organize images similar to the claimed indication. See TLI,
823 F.3d at 612. Classification data was added to images to classify them in
an organized way similar to the claimed specifications. See id. at 612–13.
The final step of “sending . . . information regarding the matches to
the product . . . includ[ing] at least one identification of an offer to sell the
matched product” recites extra-solution activity of the concept. See Elec.
Power, 830 F.3d at 1354 (“And we have recognized that merely presenting
the results of abstract processes of collecting and analyzing information,
without more (such as identifying a particular tool for presentation), is
abstract as an ancillary part of such collection and analysis.”).
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Recited at such a high level of generality, searching for and sending
matches of a requested product based on user-provided information (image,
indication, specification) merely delivers information customized to the user.
Organizing human activity and data in this way is not patent eligible. See
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369–70 (Fed. Cir. 2015) (customizing information provided to a user based
on information known about the user (location, time of day, navigation data)
is a fundamental practice long prevalent in our system); Bridge & Post, Inc.
v. Verizon Commc’ns, Inc., 778 F. App’x 882, 887 (Fed. Cir. 2019) (targeted
marketing is a form of tailoring information based on provided data from a
user and a fundamental practice).
So too, the claimed matching of a requested product image portion to
products in a database without any specificity as to how that is accomplished
involves mental processes that people can perform in comparing images and
data to relevant characteristics. See Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1313–14 (Fed. Cir. 2016). In Symantec, claims that
filtered emails by comparing and matching portions of emails to a list of
relevant characteristics to identify unwanted content recited a fundamental
practice and a mental process. Id. The court explained:
Here, it was long-prevalent practice for people receiving paper
mail to look at an envelope and discard certain letters, without
opening them, from sources from which they did not wish to
receive mail based on characteristics of the mail. The list of
relevant characteristics could be kept in a person’s head.
Characterizing e-mail based on a known list of identifiers is no
less abstract.
Id. at 1314. Here, claim 1 searches for matches to indicated portions of
images, which is a mental process involving observation and evaluation.
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As claimed, a server computer searches a database of products for
“matches” to a requested product based, in part, on a received image, an
indication of a portion of the image, and one or more specifications. Appeal
Br. 18 (Claims App.). According to the Specification, the server may search
a database using image processing algorithms to examine the features in a
received image of a requested product and compare the features to features
in images of products in the database of products to identify similar or exact
matching products using image comparison. Spec. ¶ 27. The Specification
indicates additional details of searching are described in Figure 6A. Id.
Figure 6A is a flow chart. Block 602 receives an indication of a user
request to obtain a product based on an image and specifications. Id. ¶ 31.
Block 604 states “[i]dentify a same or similar product to the requested
product in a database of products using an algorithm to compare features in
the image with images in the database of products.” Id. Block 606 retrieves
information regarding the identified same or similar products.” Id. Even if
we read such details into claim 1, people can perform these steps as a mental
process by searching catalogs or Internet websites for products as described
in the Specification. See id. ¶ 3. Indeed, a community of members may
search databases to identify products matching a requested product. Id. ¶ 27.
This unclaimed feature indicates that the claimed matching largely replicates
mental process steps that users perform when searching for products to buy.
Accordingly, we determine that claim 1 recites the abstract idea
identified above, namely, certain methods of organizing human activity of
commercial interactions and sales activities and mental processes that people
perform in their minds including through observation, evaluation, judgment,
and opinion. See Revised Guidance, 84 Fed. Reg. at 52.
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Step 2A, Prong Two: Integration into a Practical Application
We next consider whether claim 1 recites any additional elements that
integrate the abstract idea into a practical application. Revised Guidance,
84 Fed. Reg. at 54 (Revised Step 2A, Prong Two). We determine claim 1
lacks additional elements that improve a computer or other technology. The
additional elements do not implement the abstract idea in conjunction with a
particular machine or manufacture that is integral to the claim. They do not
transform or reduce a particular article to a different state or thing. They do
not apply the abstract idea in a meaningful way beyond merely linking it to a
particular technological environment. See Revised Guidance, 84 Fed. Reg.
at 55 and MPEP sections cited therein.
Appellant argues claim 1 does not monopolize the judicial exception.
Claim 1, as amended, does not monopolize the concept of
“filtering content,” but instead meaningfully limits such a
concept to the specific practical application of using a received
image, indication of a portion of the image, and one or more
specifications to search for matches to a requested product. In
addition to searching, the claims also recite sending information
regarding the matches to a client computer. The claims do not
encompass the alleged abstract idea of “filtering content” as a
whole, but instead recite specific improvements to the field of
ecommerce that impose meaningful limits on the alleged
abstract idea.
Appeal Br. 12. Appellant also contends that “[t]he claims recite specific
improvements to the e-commerce field that allow for more accurate product
searching and matching” by receiving specific information of an image and
an indication of a portion of an image of a product with a specification(s)
and using this information to search a database for matches to send to a
client computer. Id.
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The features cited by Appellant to integrate the abstract idea into a
practical application are features of the abstract idea identified above and
therefore cannot serve as “additional elements” that amount to significantly
more than the abstract idea or integrate the abstract idea into a practical
application under Prong Two. “It has been clear since Alice that a claimed
invention’s use of the ineligible concept to which it is directed cannot supply
the inventive concept that renders the invention ‘significantly more’ than
that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290 (Fed. Cir. 2018); id. at 1291 (“As a matter of law, narrowing or
reformulating an abstract idea does not add ‘significantly more’ to it.”);
RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017)
(“Adding one abstract idea (math) to another abstract idea (encoding and
decoding) does not render the claim non-abstract.”); Synopsys, 839 F.3d
at 1151 (“But, a claim for a new abstract idea is still an abstract idea.”);
Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir.
2015) (holding claims that improved an abstract idea but did not recite the
supposed computer improvements were not patent eligible); Revised
Guidance, 84 Fed. Reg. at 55 n.24 (additional elements refer to claim
features, limitations, and/or steps that are recited in a claim beyond the
identified judicial exception).
Furthermore, Appellant’s reliance on “specific information” that is
collected, analyzed, and sent to a client computer does not transform the
abstract idea or tie the abstract idea to a particular machine that is integral to
the claim. See Elec. Power, 830 F.3d at 1353 (“Information as such is an
intangible.”). Furthermore, the court in Electric Power addressed similar
arguments for patentability and held:
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More particularly, a large portion of the lengthy claims is
devoted to enumerating types of information and information
sources available within the power-grid environment. But
merely selecting information, by content or source, for
collection, analysis, and display does nothing significant to
differentiate a process from ordinary mental processes, whose
implicit exclusion from § 101 undergirds the information-based
category of abstract ideas.
Id. at 1355. Here, the claimed image, indication of a portion of the image,
and specification(s) are recited at a high level of generality as information
without reciting a new technique for analyzing it. See id.
Images may be a picture obtained from a user or taken with a camera.
Spec. ¶ 21. Images may be taken from a catalog or printed material showing
a desired product. Id. They may be stored on the server so users can search
for products. Id. An indication highlights a part of an image that contains a
product, e.g., a box in Appellant’s Figure 2. Id. ¶ 22. A specification may
be a color, style, size, brand, or price of a requested product. Id. ¶ 24. No
technical improvements are claimed or even described for these features.
See ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 769–70 (Fed.
Cir. 2019) (“Even if ChargePoint’s specification had provided, for example,
a technical explanation of how to enable communication over a network for
device interaction (which, as discussed above, it did not), the claim language
here would not require those details. Instead, the broad claim language
would cover any mechanism for implementing network communication on a
charging station.”); Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd.,
955 F.3d 1317, 1325 (Fed. Cir. 2020) (“[T]he specification may be ‘helpful
in illuminating what a claim is directed to [but it] must always yield to the
claim language’ when identifying the ‘true focus of a claim.’”).
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As recited in claim 1, the image, indication, and specification are part
of the abstract idea identified above rather than a technical improvement to
computers or other technology. So too, the server computer, database, and
client computer are recited as generic components used to perform generic
functions. They are used as tools to implement the abstract idea.
The Specification indicates “[a] server may perform functions that
facilitate the receiving and transmission of data to support user interfaces
described below.” Spec. ¶ 26. Appellant’s Figure 5 illustrates an example
operation of a server. Id. The steps involve receiving an indication of a
request from a user to obtain a product based on an image and specifications.
Id. (block 502). The server searches a database of products for matches to
the product based on the received image and specifications. Id. (block 504).
Finally, the server sends information regarding matches and an offer to sell a
matched product. Id. (block 506). The server may communicate with client
computers over a network and may include software, firmware, or hardware
configured to execute operations described in Figures 5, 6A, and 6B, which
are high level flowcharts. Id. ¶ 33. The client computers may include user
interfaces. Id. The server and client computer perform generic functions of
receiving, processing, and sending data. They are not integral to claim 1.
Nor is there any indication that these generic elements provide more
accurate product matching. See Appeal Br. 12. A database of products is
created by shoppers, merchandisers, community members and/or a crawler.
Spec. ¶¶ 6, 7. Thus, the server computer can match an image of a requested
product only to products in the database, which is not a comprehensive set of
all products. Nor is any feature claimed to improve matching beyond the
abstract idea of using an indication, specification, and image portion.
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Appellant does not contend to have invented image search algorithms
or used them to match images of products with product images in a database
more accurately or effectively. As claimed, a server computer searches a
database of products for matches based on a received image, indication of a
portion of the image, and one or more specifications without any details of
how that process occurs to provide better or more accurate matching results.
The Specification indicates a server may publish a requested product
image to community members who try to match the requested product to a
product in the database. Id. ¶ 27. This feature is not claimed but indicates
that the image search, by itself, may not yield an exact match or even better
matches than people searching manually. Id. Image searching may select
twenty similar products from the database and use specifications to reduce
the matching products to a lesser number. Id. Thus, image searching is to
be supplemented by specifications to match products in a database.
Reciting results or functions without specifying a technical means to
achieve the result does not make a claim patent eligible as in Ericsson.
[T]he claims here do not “ha[ve] the specificity required to
transform a claim from one claiming only a result to one
claiming a way of achieving it.” . . . Ericsson does not deny
that its claims are drafted functionally, but argues that the
process of requesting and controlling access as recited in the
claim is a specific technique for improving computer
performance. . . . As discussed above, we disagree. The claims
are silent as to how access is controlled. They merely make
generic functional recitations that requests are made and then
granted. Merely claiming “those functions in general terms,
without limiting them to technical means for performing the
functions that are arguably an advance,” does not make a claim
eligible at step one.
See Ericsson, 955 F.3d at 1325.
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“[N]ot every claim that recites concrete, tangible components escapes
the reach of the abstract-idea inquiry.” TLI Commc’ns, 823 F.3d at 611; see
also Alice, 573 U.S. at 225–26 (applying an abstract idea on an unspecified
generic computer does not transform the abstract idea into a patent eligible
invention); Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d
1314, 1318, 1324–25 (Fed. Cir. 2016) (claims reciting an “interface,”
“network,” and a “database” are nonetheless directed to an abstract idea).
We recognize that “[s]oftware can make non-abstract improvements
to computer technology just as hardware improvements can, and sometimes
the improvements can be accomplished through either route.” Enfish, LLC
v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). However, “to be
directed to a patent-eligible improvement to computer functionality, the
claims must be directed to an improvement to the functionality of the
computer or network platform itself.” Customedia Techs., LLC v. Dish
Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020). As discussed above,
claim 1 recites no improvements to computers, servers, networks, databases,
or image searching. Instead, it recites generic computer components that
perform generic functions of receiving information (images, specifications),
searching a database, and sending results of the search to a generic client
computer. The server computer simply searches a database for products for
matches using a received image, indication of a portion of the image, and
one or more specifications without any indication that an exact or similar
matching product is found by this process more accurately or efficiently. No
technological improvement is claimed beyond the abstract idea.
Accordingly, we determine that claim 1 lacks any additional elements
that are sufficient to integrate the abstract idea into a practical application.
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Step 2B: Does Claim 1 Include an Inventive Concept?
We next consider if claim 1 recites additional elements, individually,
or as an ordered combination, that provide an inventive concept. Alice,
573 U.S. at 217–18. The second step of the Alice test is satisfied when the
claim limitations involve more than the performance of well-understood,
routine, and conventional activities previously known to the industry.
Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018); see Revised
Guidance, 84 Fed. Reg. at 56 (explaining that the second step of the Alice
analysis considers whether a claim adds a limitation beyond a judicial
exception that is not “well-understood, routine, conventional” in the field).
Appellant argues that “the claims do not merely recite routine and
conventional transmission of data over a network, and do not merely recite
‘product identification based on an image,’ which . . . is not a judicially
recognized abstract idea, but instead recite use of specific information in a
specific way that integrates product identification based on an image in a
practical application.” Appeal Br. 12–13.
As discussed under Prong Two, the recitation of such information per
se does not integrate the abstract idea into a practical application. Nor does
it provide an inventive step. As the court emphasized in Electric Power:
Nothing in the claims, understood in light of the specification,
requires anything other than off-the-shelf, conventional
computer, network, and display technology for gathering,
sending, and presenting desired information. . . . We have
repeatedly held such invocations of computers and networks
that are not even arguably inventive are “insufficient to pass the
test of an inventive concept in the application” of an abstract
idea.
See Elec. Power, 830 F.3d at 1355.
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Individually, the additional elements recited in claim 1, namely, the
server computer, database, and client computer, are generic components that
perform generic functions of receiving and analyzing data at a high level of
generality as discussed under Prong Two. Therefore, they do not provide an
inventive concept. See buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355
(Fed. Cir. 2014) (“That a computer receives and sends the information over
a network—with no further specification—is not even arguably inventive.”).
As an ordered combination, these elements provide no more than
when they are considered individually. Alice, 573 U.S. at 225. They are
used as tools to implement the judicial exception. See SAP Am., Inc. v.
InvestPic, LLC, 898 F.3d 1161, 1169–70 (Fed. Cir. 2018) (claimed databases
and processors did not improve computers but used available computers and
functions as tools to execute the claimed process); Inventor Holdings, LLC v.
Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (considering
the steps of representative claims as an “ordered combination” reveals they
“amount to ‘nothing significantly more’ than an instruction to apply [an]
abstract idea” using generic computer technology).
There is no evidence the method yields better search results or uses
technology unconventionally. The method allows a customer to identify
items using product images “which improves the likelihood of the customer
finding the desired product or a similar product.” Spec. ¶ 36. It replicates
mental processes and can be supplemented by community member searches.
Accordingly, we determine that claim 1 lacks an inventive concept
sufficient to transform the abstract idea into patent-eligible subject matter.
Thus, we sustain the rejection of claims 1–4, 6, 7, 9–13, and 15–19 as
directed to a judicial exception under 35 U.S.C. § 101.
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Claims 1, 2, 4, 6, 9–11, 13, 16, 17, and 19
Anticipated by Kannan
Appellant argues the claims as a group. See Appeal Br. 13–15. We
select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Regarding claim 1, the Examiner finds that Kannan discloses the
claimed method by receiving at transaction server 112 an image of products
with an indication of a portion of the image of the product and one or more
specifications, using these elements to search a database of products for
matches, and sending information regarding matches to the client computer
as claimed. Final Act. 9–10.
Appellant contends that Kannan’s product query and annotation
information do not include an image comprising a plurality of potential
products, and Kannan does not receive an indication comprising such an
image. Appeal Br. 13–14. Appellant also argues that Kannan does not
disclose receiving an indication comprising an image comprising a plurality
of potential products as claimed. Id. at 15.
We agree with the Examiner that Kannan teaches the claimed method.
Kannan teaches methods that “enable users of still images or video content
to select products appearing within the images displayed on a computing
device and request information regarding such products.” Kannan ¶ 2.
Information regarding the selected parts of a still or video
image in the form of selected portions of the video image or
image coordinates within the image sufficient to enable a server
to obtain the selected portion of the image may be included in a
product query message that the user’s computing device
transmits to a processing server (referred to herein as a
“Transaction Server”).
Id. Appellant admits that Kannan allows a user to indicate a product in a
portion of an image sent to a Transaction Server. See Appeal Br. 14.
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Appellant contends that Kannan does not disclose an indication on an
image comprising a plurality of potential products. Id. We disagree.
Paragraph 31 indicates that a Product Query message conveys Image
Selection Information along with Annotation Information to the Transaction
Server. To the extent that it is not implicit that such an image would include
more than one potential product thereby necessitating the need to annotate
on the image the particular product that is desired from among the plurality
of products present in an image, Kannan provides an example addressing the
precise concerns that Appellant raises in this regard.
If a user watching the movie Terminator desires to buy the black
leather jacket worn by Arnold Schwarzenegger, “the user may highlight the
portion of a video image containing the jacket, such as by circling the image
portion with a finger on a touchscreen display” of a mobile device. Kannan
¶ 53 (emphasis added). The mobile device “processes that user input to
generate a Product Query message which is transmitted to a Transaction
Server within the mobile TV broadcast network (or elsewhere).” Id.
“[T]he Recommendation Engine may also consider comments or
additional information provided by the user as Annotation Information in the
Product Query, such as jacket size, color preference, or other expressions of
interest.” Id. “The Recommendation Engine may also recommend other
merchandise, such as dark sunglasses similar to the model of [sic] worn by
Arnold Schwarzenegger in the movie.” Id. Images contain several products.
Appellant’s Specification similarly describes how a user may indicate
a portion of an image on a display by moving a finger over that portion of
the image displayed on a touchscreen display. Spec. ¶ 22. The claimed
“specification” includes product color, style, size, brand, and price. Id. ¶ 24.
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Therefore, Kannan teaches to highlight or indicate on a portion of an
image that includes a plurality of products, e.g., leather jacket, sunglasses, a
portion of the image with the desired product, i.e., leather jacket, and send a
message to a server computer (Transaction Server) requesting a match to
that product using the portion of the image indicated by the user and one or
more specifications (Additional Information) describing the product.
Thus, we sustain the rejection of claim 1 and claims 2, 4, 6, 9–11, 13,
16, 17, and 19, which fall with claim 1.
Claims 3, 7, 12, 15, and 18
Unpatentable over Kannan and Weingarten
Appellant argues claims 3, 7, 12, 15, and 18 are patentable because
they depend from independent claims 1, 10, and 16, and Weingarten does
not cure Kannan’s deficiencies as to the independent claims. Appeal Br. 15–
16. Because Kannan anticipates the independent claims as discussed above,
there are no defects for Weingarten to cure. Accordingly, we sustain the
rejection of claims 3, 7, 12, 15, and 18.
Claims 5, 14, and 20
Unpatentable over Kannan, Weingarten, and Yan
Appellant argues claims 5, 14, and 20 are patentable because they
depend from independent claims 1, 10, and 16, and Yuan does not cure the
deficiencies in Kannan as to the independent claims. Appeal Br. 16.
Because Kannan anticipates the independent claims as discussed above,
there are no defects for Yan to cure. Accordingly, we sustain the rejection
of claims 5, 14, and 20.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§  
Reference(s)/
Basis
Affirmed Reversed
1, 2, 4–7, 9–
11, 13–17,
19, 20
112(a) Written
Description
1, 2, 4–7, 9–
11, 13–17,
19, 20
1, 2, 4–7, 9–
11, 13–17,
19, 20
112(b) Indefiniteness 1, 2, 4–7, 9–
11, 13–17,
19, 20
2, 11, 17 112(b) Indefiniteness
“similar”
2, 11, 17
1–4, 6, 7, 9–
13, 15–19
101 Eligibility 1–4, 6, 7, 9–
13, 15–19

1, 2, 4, 6, 9–
11, 13, 16,
17, 19
102(a)(1) Kannan 1, 2, 4, 6, 9–
11, 13, 16,
17, 19

3, 7, 12, 15,
18
103 Kannan,
Weingarten
3, 7, 12, 15,
18

5, 14, 20 103 Kannan,
Weingarten,
Yuan
5, 14, 20
Overall
Outcome
1–7, 9–20
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