Cozad, Thomas Michael.

Patent Trials and Appeals Board

Jan 2, 2020

14321498 - (R) (P.T.A.B. Jan. 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.
14/321,498 07/01/2014 Thomas Michael Cozad PINC-1-2406 6325
25315 7590 01/02/2020
LOWE GRAHAM JONES, PLLC
701 FIFTH AVENUE
SUITE 4800
SEATTLE, WA 98104
EXAMINER
RAMPHAL, LATASHA DEVI
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
01/02/2020 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):
docketing-patent@lowegrahamjones.com
patentdocketing@lowegrahamjones.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte THOMAS MICHAEL COZAD
____________________

Appeal 2018-008163
Application 14/321,498
Technology Center 3600
____________________

Before THU A. DANG, ELENI MANTIS MERCADER, and
JASON J. CHUNG, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
Appellants request rehearing under 37 C.F.R. § 41.52 of our Decision,
mailed on October 10, 2019 (“Decision”), in which we affirmed the
Examiner’s rejection under 35 U.S.C. § 101 of claims 1–12, 14–19, 21, and
22. Appellants timely filed a Request for Rehearing (“Req. Reh’g”) on
December 2, 2019.
Appellants argue that we did not further label the particular subgroup
of organizing human activity and request that we reopen prosecution. Req.
Reh’g 3–4. In particular Appellants argue that the 2019 Guidance lists three
subgroups under the category of certain methods of organizing human
activities: (1) fundamental economic principles, (2) commercial or legal
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interactions, and (3) managing personal behavior or relationships. Id. at 4
(citing to 2019 Guidance at 52). Appellants assert that the Decision failed to
identify a specific subgroup or provide any real analysis of how the specific
limitations can be considered a method of organizing human activity. Id.
As we stated in our Decision the particular limitations of claim 1 we
identified, under broadest reasonable interpretation, provide a process that
allows a user to collect and generate store location information, which is a
method of organizing human activity. Dec. 9. We further stated that the
method determines the total number of shelves for each distinct section in an
aisle, generates a data structure that represents the aisles of the store with
placeholders for product location information and generates a map from the
data structure by populating the placeholders with the product location
information. Dec. 9 (citing Ans. 4). Accordingly, we explained with
specificity which claim limitations constituted an abstract idea under the
group of organizing human activity. Id. While we did not explicitly state
the subgroup of commercial interactions such as sales activities or
interactions, since we identified the method of organizing human activity of
product location information this is tantamount to the subgroup of
commercial interactions which is the only subgroup label that can be
attached to the method of identifying product location information in a store.
The Federal Circuit has repeatedly noted that “the prima facie case is
merely a procedural device that enables an appropriate shift of the burden of
production.” Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The Examiner
satisfies the burden of establishing a prima facie case under 35 U.S.C. § 132
by setting forth a rejection in a sufficiently articulate and informative
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manner. In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). If the Examiner
“adequately explain[s] the shortcomings . . . the burden shifts to the
applicant to rebut the prima facie case with evidence and/or argument.”
Hyatt, 492 F.3d at 1370.
The Answer adequately explains the § 101 rejection by concluding the
present claims recite certain methods of organizing human activity. Ans. 4.
The Examiner’s statements satisfy § 132(a) because they apply the Alice
analytical framework and apprise Appellants of the reasons for the § 101
rejection under that framework categorizing the abstract idea as a process
that allows a user to collect and generate store location information, which is
a method of organizing human activity, and in particular a method that
determines the total number of shelves for each distinct section in an aisle,
generates a data structure that represents the aisles of the store with
placeholders for product location information and generates a map from the
data structure by populating the placeholders with the product location
information. See Dec. 9 (citing Ans. 4). While the guidelines provide
examples of subgroups to guide us identify the category of the abstract idea,
the guidelines do not require a subgroup identification but rather the
subgroupings provide guidance as to what types of activities can be
categorized under the groupings of mathematical concepts, certain methods
of organizing human activity, and mental processes. The guidelines require
categorization under the “enumerated groupings” of abstract ideas (see 2019
Guidance at 53), there is no requirement of subgroupings identification.
Appellants further disagree that the recited automatically updateable
user interface and automatically map generation are generic computer
functions. Req. Reh’g 5. Appellants assert that the elements identified in
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our Decision, and others in the claim, improve the functioning of the
computing device used to collect store information. Id. These elements also
define and require a particular machine that is integral to the claim. Id.
Appellants further argue that the fact that a particular machine is defined and
required by the claims is even more clear with respect to dependent claims
21 and 22, which respectively lay out a specific application of machine
learning and additional highly specific aspects of the user interface. Id.
We do not agree with Appellants’ argument. As we stated in our
analysis under Step 2A, prong 2-i.e., we determine whether the method of
organizing human activity is integrated into a practical application. Dec. 9.
As we stated in our Decision, the mere nominal recitation of a generic “in a
mobile computing device,” “a user interface,” and “a bar code scanner” at a
high level of generality does not take the claim out of the method of
organizing human activity pertaining to generating a map of store location
information. Id. The mere nominal recitation of a generic mobile
computing device and the use of a GUI to enter the items into a computer
listing does not take the claim limitation out of the organizing human
activity grouping. Id. Similar to OIP Technologies, Inc. v. Amazon.com,
Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015), “relying on a computer to
perform routine tasks more quickly or more accurately is insufficient to
render a claim patent eligible.” See also Alice, 573 U.S. at 224 (“use of a
computer to create electronic records, track multiple transactions, and issue
simultaneous instructions" is not an inventive concept). Simply adding a
'computer aided' limitation to a claim covering an abstract concept, without
more, is insufficient to render the claim patent eligible.” Dealertrack, Inc. v.
Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). Id. at 9–10.
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As we previously stated, “automatically updatable” user interface may
more efficiently collect and generate store location information than can be
accomplished manually, the additional elements continue to operate in their
ordinary capacity by performing generic computer functions. Id at 10.
Additionally, merely automatically generating a map based on a data
structure that represents the aisles of the store based on the shelf counts
received for sections of each of the aisles of the store comes from the
capabilities of the generic computer components, and not the recited process
itself. See FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095
(Fed. Cir. 2016) (citing Bancorp Servs., LLC v. Sun Life Assurance Co., 687
F .3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required calculations
could be performed more efficiently via a computer does not materially alter
the patent eligibility of the claimed subject matter.”)); see also Intellectual
Ventures I LLC v. Erie Indemnity Co., 711 F. App’x 1012, 1017 (Fed. Cir.
2017) (unpublished) (“Though the claims purport to accelerate the process
of finding errant files and to reduce error, we have held that speed and
accuracy increases stemming from the ordinary capabilities of a general-
purpose computer ‘do[] not materially alter the patent eligibility of the
claimed subject matter.’”). Id. 10–11. Simply implementing the abstract
idea on a generic computer is not a practical application of the abstract idea
under Step 2A, prong 2. Id. at 11.
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the Board.”
37 C.F.R. § 41.52(a)(1); see Ex parte Quist, 95 USPQ2d 1140, 1141 (BPAI
2010) (precedential). A request for rehearing is not an opportunity to
express disagreement with a Board decision or rehash arguments previously
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presented. See 37 C.F.R. § 41.52(a)(1). Here, Appellants’ Request does not
persuade us of any points we misapprehended or overlooked in the Decision,
or that we misapplied the relevant law.
In summary, we grant the Request to the extent that we have
reconsidered the record, however, we decline to modify our prior Decision
in any respect. Accordingly, the Request for Rehearing is denied.

Outcome of Decision on Rehearing:
Claims 35 U.S.C. § Reference(s)/Basis Denied Granted
1–12, 14–
19, 21, and
22
101 1–12, 14–
19, 21, and
22

Overall
Outcome
1–12, 14–
19, 21, and
22

Final Outcome of Appeal after Rehearing:
Claims 35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–12, 14–
19, 21, and
22
101 1–12, 14–
19, 21, and
22

Overall
Outcome
1–12, 14–
19, 21, and
22

REHEARING DENIED