Dale Pollak

Patent Trials and Appeals Board

Jul 31, 2019

13444524 - (D) (P.T.A.B. Jul. 31, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/444,524 04/11/2012 Dale Pollak 26454-0043 1057
101373 7590 07/31/2019
Eversheds Sutherland (US) LLP / CEI
999 Peachtree Street
Suite 2300
Atlanta, GA 30309
EXAMINER
NELSON, FREDA ANN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
07/31/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DALE POLLAK
____________

Appeal 2017-0106621
Application 13/444,5242
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, MICHAEL C. ASTORINO, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellant appeals under 35 U.S.C. § 134(a) claims 32–42. We have
jurisdiction under 35 U.S.C. § 6(b). An Oral Hearing was held on July 23,
2019.
We AFFIRM.

1 Our decision references Appellant’s Appeal Brief (“Appeal Br.,” filed
March 2, 2017) and Reply Brief (“Reply Br.,” filed August 14, 2017), and
the Examiner’s Answer (“Ans.,” mailed June 29, 2017) and Final Office
Action (“Final Act.,” mailed December 2, 2016).
2 Appellant identifies “vAuto, Inc.,” as the real party in interest (Appeal
Br. 2).
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CLAIMED INVENTION
Appellant’s claims relate generally to a “competitive pricing,
marketing, reporting and writing system and method directed to assist
retailers in more effectively and efficiently pricing and marketing their
products” (Spec. 1, ll. 8–10).
Claims 32 and 35 are the independent claims on appeal. Claim 32,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
32. A method, comprising:
[a] determining, by a system having one or more
processors coupled to at least one memory, vehicle information
for an electronic vehicle advertisement indicative of a vehicle for
sale from an inventory of a dealer;
[b] parsing, by the system, the vehicle information to
generate parsed vehicle data;
[c] determining a first database of a set of normalized
vehicle descriptors;
[d] automatically mapping, by the system, the parsed
vehicle data to the set of normalized vehicle descriptors in a
second database;
[e] automatically updating, by the system, the vehicle
information with an advertised vehicle price, wherein the
automatic update occurs after a predetermined period of time;
[f] determining, by the system, a number of page views
comprising the number of times the vehicle advertisement is
displayed at a user device on a third party website in response to
a search query;
[g] determining, by the system, a number of detailed page
views comprising the number of times that specific information
contained in the vehicle advertisement is requested after the
vehicle advertisement is displayed on the third party website,
wherein a detailed page view originates from a page view of the
vehicle advertisement by a specific user device, and wherein the
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specific information comprises a picture or description of the
vehicle for sale;
[h] determining, by the system, an advertised vehicle price
history as a function of the number of detailed page views and
based at least in part on the automatically updated vehicle
information;
[i] calculating, by the system and based at least in part on
the advertised vehicle price history, a vehicle sale price that
yields the highest number of detailed page views while
maintaining a predetermined amount of profit in a sale of the
vehicle for sale; and
[j] determining, by the system, the vehicle sale price, the
number of page views, the number of detailed page views, and
the advertised vehicle price history.

REJECTION
Claims 32–42 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
ANALYSIS
Patent-Ineligible Subject Matter
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. However, the Supreme Court has long interpreted 35
U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural
phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS
Bank Int’l, 573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See id. at 219
(“On their face, the claims before us are drawn to the concept of
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intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Gottschalk, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
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to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). Under that guidance, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application, i.e., that “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.” See 2019 Revised Guidance, 84 Fed. Reg. at 53; see
also MPEP § 2106.05(a)–(c), (e)–(h).
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
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.
See 2019 Revised Guidance.
Appellant argues claims 32–42 as a group (Appeal Br. 4–12; Reply
Br. 2–4). We select independent claim 32 as representative, and the
remaining claims stand or fall with independent claim 32. See 37 C.F.R.
§ 41.37(c)(1)(iv).
With regard to the first step of the Mayo/Alice framework, the
Examiner states that independent claim 32 recites “determining a vehicle
price based on historical vehicle prices that yields the highest number of
page views” (Final Act. 8 (emphases omitted)), which the Examiner
considers to be an abstract idea, inasmuch as it may be characterized as
being related to “a method of organizing human activity” (id. at 9; see also
Ans. 3–4).
In response, Appellant first argues “that the pending claims are not
directed to the overly-simplified alleged abstract idea of ‘determining a
vehicle price based on historical vehicle prices that yields the highest
number of page views,’ or to any other patent-ineligible concept, and
therefore, the first prong of the Alice/Mayo test is not satisfied.” (Appeal
Br. 5; see also Reply Br. 2–3). We cannot agree.
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Under the first prong of step 2A of the 2019 Revised Guidance, we
first determine if the claims recite an abstract idea. In this regard, the
Specification is titled “SYSTEM AND METHOD FOR PROVIDING
COMPETITIVE PRICING FOR AUTOMOBILES.” According to the
Specification, “objective assessment of a vehicle purchase or sale is made
difficult and the real value of a transaction is obscured by factors other than
the financial and operating objectives of the dealership” (Spec. 3, ll. 10–13).
The Specification identifies that “[t]here is a demand for a system and
method that provides relevant information in a current time frame, builds
strategy awareness, and provides accountability for a used vehicle
department,” as well as “a need to generate rich, customizable descriptions
of the goods; report comparable offers to customers; properly market the
products for sale; and to some extent monitor the customer’s interest in
purchasing the product” (id. at 4, ll. 6–11).
To address this need, the Specification identifies a “competitive
pricing, marketing, reporting and writing system and method directed to
assist retailers in more effectively and efficiently pricing and marketing their
products” (Spec. 1, ll. 8–10). The Specification describes a “ranking
system” that “recognizes the relationship of certain variables to the price of
the goods thereby simulating the consumer’s mental process of narrowing
and prioritizing a wide range of generally similar products into a manageable
list” (id. at 1, ll. 13–16). The Specification further describes utilizing a
“generator” that “prepares descriptions of the goods” and a “reporting
system” that reports “and monitor[s] the activities of potential customers that
have shown an interest in a particular product, for example, an automobile
for sale” (id. at 1, ll. 16–18). For example, the Specification discloses
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the system of the present invention recognizes a relationship
between a used car’s mileage and the price. The present
invention ranks competitive vehicles based on at least this
relationship, and provides an automobile dealer with information
about the pricing for that particular dealer’s used cars. The
retailer can revise its prices accordingly to decrease the amount
of time to sell the used vehicle, increase the profit from the sale
of the used vehicle, or both. Thus, the system and method assists
the retailer in determining optimal pricing for the sale of a used
car based on the retailer’s objectives.
(Spec. 1, l. 19–2, l. 1).
Consistent with this description, independent claim 32 recites broadly
“[a] method” including steps for “determining . . . vehicle information
for . . . a vehicle for sale from an inventory of a dealer,” “parsing . . . the
vehicle information to generate parsed vehicle data,” “determining a first
database of a set of normalized vehicle descriptors,” “automatically
mapping . . . the parsed vehicle data to the set of normalized vehicle
descriptors in a second database,” “automatically updating . . . the vehicle
information with an advertised vehicle price” after a “period of time,”
“determining . . . a number of page views . . . at a user device on a third
party website in response to a search query,” “determining . . . a number of
detailed page views comprising the number of times that specific
information[i.e., picture or description] contained in the vehicle
advertisement is requested after the vehicle advertisement is displayed [by a
specific user device] on the third party website,” “determining . . . an
advertised vehicle price history as a function of the number of detailed page
views and based at least in part on the automatically updated vehicle
information,” “calculating . . . based at least in part on the advertised vehicle
price history, a vehicle sale price that yields the highest number of detailed
page views while maintaining a predetermined amount of profit in a sale of
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the vehicle for sale,” and “determining . . . the vehicle sale price, the number
of page views, the number of detailed page views, and the advertised vehicle
price history.”
Understood in light of the Specification, we agree with the Examiner
that independent claim 32 broadly “describe[s] the concept of ‘determining a
vehicle price based on historical vehicle prices that yields the highest
number of page views’” (Final Act. 9). To the extent the Examiner’s
articulation of the abstract does not copy the claim language, there is no
requirement that the Examiner must do so. The Examiner’s characterization
here, moreover, is fully consistent with the Specification, as discussed
above. That independent claim 32 includes more words than the phrase the
Examiner used to articulate the abstract idea to which the claim is directed to
is an insufficient basis to persuasively argue that the claim language has
been over generalized or that the Examiner has otherwise failed to consider
all of the limitations of the claim. See Apple, Inc. v. Ameranth, Inc., 842
F.3d 1229, 1240 (Fed. Cir. 2016).
An abstract idea can generally be described at different levels of
abstraction. As the Board has done, the claimed abstract idea
could be described as generating menus on a computer, or
generating a second menu from a first menu and sending the
second menu to another location. It could be described in other
ways, including, as indicated in the specification, taking orders
from restaurant customers on a computer.
Moreover, we agree with the Examiner that exemplary independent claim 32
is at least directed to one of the ineligible “[c]ertain methods of organizing
human activity” that include “fundamental economic principles or practices”
and “commercial . . . interactions (including . . . advertising, marketing or
sales activities)” (see 2019 Revised Guidance, 84 Fed. Reg. at 52; cf. Final
Act. 2).
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Here, independent claim 32 “determin[es]. . . vehicle information,”
“pars[es]. . . the vehicle information to generate parsed vehicle data,”
“determin[es] . . . a set of normalized vehicle descriptors,” “map[s] . . . the
parsed vehicle data to the set of normalized vehicle descriptors,”
“updat[es] . . . the vehicle information with an advertised vehicle price” after
a “period of time,” “determin[es] . . . a number of [discrete] page
views . . . on a third party website in response to a search query,”
“determin[es] . . . a number of [discrete] detailed page views . . . on the third
party website,” “determin[es] . . . an advertised vehicle price history as a
function of the number of detailed page views and based at least in part on
the automatically updated vehicle information,” “calculate[es] . . . based at
least in part on the advertised vehicle price history, a vehicle sale price that
yields the highest number of detailed page views while maintaining a
predetermined amount of profit in a sale of the vehicle for sale,” and
“determin[es] . . . the vehicle sale price, the number of page views, the
number of detailed page views, and the advertised vehicle price history.”
Together these steps simply provide a used-car retailer with “a vehicle price
based on historical vehicle prices that yields the highest number of page
views” (Final Act. 9) in order “to assist retailers in more effectively and
efficiently pricing and marketing their products” (Spec. 1, ll. 9–10), i.e.,
“assist[] the retailer in determining optimal pricing for the sale of a used car
based on the retailer’s objectives” (id. at 1, l. 25–2, 1).
We note the concept of “determining a vehicle price based on
historical vehicle prices that yields the highest number of page views” (Final
Act. 9) recited in exemplary independent claim 32 is similar to the concepts
of customizing information based on known user information in Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369–70 (Fed.
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Cir. 2015), optimizing a product price for sale in OIP Tech., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed. Cir. 2015), and customizing a
user interface based on user selections in Affinity Labs of Texas, LLC v.
Amazon.com Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016). Accordingly, we
conclude that exemplary independent claim 32 recites a commercial
interaction, which is one of the certain methods of organizing human
activities identified in the 2019 Revised Guidance, and thus an abstract idea.
See 84 Fed. Reg. at 52.
Having concluded that exemplary claim 32 recites a judicial
exception, i.e., an abstract idea; we turn to the second prong of step 2A of
the 2019 Revised Guidance and determine whether the claims recite a
practical application of the recited judicial exception. Here we look to see if,
for example, (i) any additional elements of the claims reflects an
improvement in the functioning of a computer or to another technological
field, (ii) an application of the judicial exception with, or by use of, a
particular machine, (iii) a transformation or reduction of a particular article
to a different state or thing, or (iv) a use of the judicial exception in some
other meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment. See 2019 Revised
Guidance, 84 Fed. Reg. at 55; See also MPEP § 2106.05(a)–(c), (e)–(h).
Appellant argues that claim 32 is not directed to an abstract idea
pursuant to the Federal Circuit decisions in Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327 (Fed. Cir. 2016) and McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) (see Appeal Br. 5–8; see also
Reply Br. 3–4). However, there is a fundamental difference between
computer functionality improvements, on the one hand, and uses of existing
computers as tools to perform a particular task, on the other. Indeed, the
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Federal Circuit applied this distinction in Enfish in rejecting a § 101
challenge at the step one stage of the Mayo/Alice analysis because the claims
at issue focused on a specific type of data structure, i.e., a self-referential
table for a computer database, designed to improve the way a computer
carries out its basic functions of storing and retrieving data, and not on
asserted advances in uses to which existing computer capabilities could be
put. Enfish, 822 F.3d at 1335–36.
We find no parallel here between independent claim 32 and the claims
in Enfish nor any comparable aspect in claim 32 that represents “an
improvement to computer functionality.” Appellant asserts that the focus of
the claim is on “normalizing vehicle descriptors so as to determine
comparable vehicles and calculating vehicle sales prices that yield the
highest number of page views by a specific user device” (Appeal Br. 7–8)
and “are bolstered by the benefits achieved by the present claims over
conventional technology – which include the ability to continuously update
digital databases and vehicle sale prices that certainly cannot be achieved
manually” (id. at 8). However, Appellant does not persuade us that
“normalizing vehicle descriptors” or “continuously update digital databases
and vehicle sale price” provides a technological improvement, but rather we
find the focus of claim 32 is on the implementation of the abstract idea, “for
which computers are invoked merely as a tool.” See Enfish, 822 F.3d at
1336.
Here, Appellant argues that “the claimed operation of ‘automatically
mapping, by the system, the parsed vehicle data to the set of normalized
vehicle descriptors in a second database’ allows for identification of similar
or comparable vehicles that may otherwise go unidentified due to a
difference in nomenclature used to identify certain vehicle features” (Appeal
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Br. 6). The difficulty with Appellant’s argument, however, is that the
Specification simply describes “normalizing” as a calculation (see, e.g.,
Spec. 24, ll. 1–22) and any describes “normalizing” as “taking into account”
a factor such as mileage, “condition of the car, standard and non-standard
options, driving history, geographic location of car, whether or not garage
kept” (id. at 24, ll. 1–7). And, with respect to continuously updating
databases, the Specification discloses, “using harvesting technology” (id. at
28, ll. 1–7), which simply “harvest[s] or gathers necessary vehicle data from
various locations on the Internet” (id. at 15, ll. 19–22). Exemplary
independent claim 32, unlike the claims found non-abstract in prior cases,
uses generic computer technology to collect data, analyze the data, update
the data, and then present the data based on the analysis, and does not recite
an improvement to a particular computer technology. See, e.g., McRO, 837
F.3d at 1314–15 (finding claims not abstract because they “focused on a
specific asserted improvement in computer animation”).
Furthermore, we find no indication in the Specification that the
purported improvements to the computer, i.e., “normalizing vehicle
descriptors” and/or continuously updating data, invoke any assertedly
inventive programming, requires any specialized computer hardware or
other inventive computer components (cf. Spec. 28, l. 1 – 29, 3), i.e., a
particular machine, or that the claimed invention is implemented using other
than generic computer components to perform generic computer functions.
See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (“[A]fter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible.”). Instead, we find that the “improvement” to which Appellant
refer is a business improvement rather than an improvement to a
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technological or technical field (see OIP Techs., Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1363 (Fed. Cir. 2015) (“[R]elying on a computer to perform
routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible.”).
We also find no parallel between independent claim 32 and the claims
at issue in McRO (see Appeal Br. 5–7; see also Reply Br. 3–4). Appellant
asserts that like the claims in McRO, the present claims are patent-eligible
because they
are limited to specific implementations with concrete features
that allow for the improvement realized by the invention –
normalizing vehicle descriptors so as to determine comparable
vehicles and calculating vehicle sales prices that yield the highest
number of page views by a specific user device – through a
specific sequence of events that results in increased accuracy
and increased efficiency of computing resources.
(Appeal Br. 5–6).
However, the Federal Circuit premised its determination that the
claims in McRO were patent-eligible, not merely on the specificity of the
claimed animation scheme, but rather on the fact that the claims, when
considered as a whole, were directed to a technological improvement over
the existing, manual 3-D animation techniques and used limited rules in a
process specifically designed to achieve an improved technological result in
conventional industry practice. We are not persuaded that a comparable
situation is presented here.
Instead, in the present invention, the step “normalizing vehicle
descriptors” is simply described as “taking into account” a factor such as
mileage, “condition of the car, standard and non-standard options, driving
history, geographic location of car, whether or not garage kept” (Spec. 24,
ll. 1–7). Here, we agree with the Examiner that “Appellant has not provided
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an improvement in computer-related technology or like McRO, provided a
set of ‘rules’ (basically mathematical relationships) that improve computer-
related technology allowing computer performance of a function not
previously performable by a computer” (Ans. 5). And, as the Examiner
points out, the improvement “Appellant appears to be referencing [is] an
improvement to a business/pricing functionality, not an improvement to the
overall data processing system or another technology” (id.). As our
reviewing court has made clear, “relying on a computer to perform routine
tasks more quickly or more accurately is insufficient to render a claim patent
eligible.” OIP Techs., 788 F.3d at 1363. Accordingly, we are not persuaded
that independent claim 32 provides any improvement in computer
technology and/or functionality to the claimed invention or that otherwise
indicates that the claimed invention “appl[ies], rel[ies] on, or us[es] 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 2019 Revised Guidance, 84 Fed.
Reg. at 55.
Appellant also argues that the present claims are similar to those at
issue in Trading Technologies Int’l, Inc. v. CQG, Inc., 675 F. App’x 1001
(Fed. Cir. 2017) because the present claims “solve a problem specific to
subscription services for which there is no manual analog, and result in
increased accuracy and computing efficiency” (Appeal Br. 8–9). We cannot
agree.
In Trading Technologies, the district court found that the claimed
devices “have no ‘pre-electronic trading analog,’” and “do not simply claim
displaying information on a graphical user interface.” Trading Techs., 675
Fed. App’x at 1004. The court concluded “the claimed subject matter is
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‘directed to a specific improvement to the way computers operate,’ . . . for
the claimed graphical user interface method imparts a specific functionality
to a trading system ‘directed to a specific implementation of a solution to a
problem in the software arts.’” Id. at 1006. We distinguish the claims
before us from those in Trading Technologies, because, unlike in Trading
Technologies, independent claim 32 merely “determin[es] a vehicle price
based on historical vehicle prices that yields the highest number of page
views” (Final Act. 9). Independent claim 32 does not overcome a problem
associated with prior art user interfaces or improve the way computers
operate, but rather, addresses a business problem related to “assist[ing]
retailers in more effectively and efficiently pricing and marketing their
products” (Spec. 1, ll. 8–10).
Turning to Step 2B of the 2019 Revised Guidance, we determine
whether the additional elements (1) add a specific limitation or combination
of limitations that is not well-understood, routine, and conventional activity
in the field, which is indicative that an inventive concept may be present or
(2) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception, which is indicative that an inventive concept may not
be present. See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Here, we agree with the Examiner that exemplary independent claim
32,
do[es] not include additional elements that are sufficient to
amount to significantly more than the judicial exception because
the additional elements when considered both individually and
as an ordered combination do not amount to significantly more
than the abstract idea. Claim 32 and 35 also recite “a system,”
“one or more processors” and “at least one []memory,” [“]an
electronic vehicle advertisement,” “a first database,” [“]a second
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database[.]” Claim 35 additionally recites “instructions.[”] The
computer components as recited in the claim would be routine in
any computer implementation of the abstract idea. Therefore,
taken alone, the additional elements do not amount to
significantly more than the above-identified judicial exception
(the abstract idea). Looking at the limitations as an ordered
combination adds nothing that is not already present when
looking at the elements taken individually.
(Final Act. 9).
In response, Appellant argues that even if the claims are directed to an
abstract idea, the claims are nonetheless patent-eligible because they recite
significantly more than an abstract idea in light of BASCOM Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) and
Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir.
2016) (Appeal Br. 9–12). However, we can find no parallel between the
present claims and those at issue in either BASCOM or Amdocs.
Appellant argues that independent claim 32, like BASCOM, is patent-
eligible because it “recite[s] a specific implementation and processes that
provide benefits over the prior art. For example, the claimed operations
provide a benefit of normalizing vehicle descriptors so as to determine
comparable vehicles and calculating vehicle sales prices that yield the
highest number of page views by a specific user device” (Appeal Br. 11).
We do not agree, however, that BASCOM is sufficiently analogous to control
the outcome here.
In BASCOM, the Federal Circuit held that the second step of the
Mayo/Alice framework was satisfied because the claimed invention
“represents a ‘software-based invention[ ] that improve[s] the performance
of the computer system itself.’” BASCOM, 827 F.3d at 1351 (stating that
like DDR Holdings, where the patent “claimed a technical solution to a
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problem unique to the Internet,” the patent in BASCOM claimed a
“technology-based solution . . . to filter content on the Internet that
overcomes existing problems with other Internet filtering systems . . .
making it more dynamic and efficient”) (citations omitted). Here, Appellant
argues that independent claim 32 is patent-eligible because it “provide[s] a
benefit of normalizing vehicle descriptors so as to determine comparable
vehicles and calculating vehicle sales prices that yield the highest number of
page views by a specific user device” (Appeal Br. 11). The difficulty with
Appellant’s argument is that Appellant does not persuade us that
“normalizing vehicle descriptors” and “calculating vehicle sales prices,” as
claimed, is a technological improvement, as opposed to an improvement in a
business practice for which generic computer components are used in their
ordinary capacity (see Spec. 28, l. 1–29, 3).
We also see no parallel between the present claims and the claims in
Amdocs (see Appeal Br. 10). In Amdocs, the Federal Circuit held the claim
was patent eligible because the claim entails an unconventional
technological solution (enhancing data in a distributed fashion) to a
technological problem (massive record flows which previously required
massive databases). Although the solution required generic components, the
court determined that “the claim’s enhancing limitation necessarily requires
that these generic components operate in an unconventional manner to
achieve an improvement in computer functionality” and that the “enhancing
limitation depends not only upon the invention’s distributed architecture, but
also depends upon the network devices and gatherers –– even though these
may be generic –– working together in a distributed manner.” Amdocs, 841
F.3d at 1300–01.
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Appellant argues that independent claim 32 is patent-eligible in light
of Amdocs because it “provide[s] an unconventional technological solution
(normalizing vehicle descriptors so as to determine comparable vehicles and
calculating vehicle sales prices that yield the highest number of page views
by a specific user device) to a technological problem (continuously
monitoring and updating databases with data and information for similar
vehicles)” (Appeal Br. 10). However, Appellant’s argument is not
persuasive because Appellant does not identify any “distributed
architecture” comparable to that in Amdocs or otherwise establish that the
generic components recited in the pending claims operate in an
unconventional manner.
Appellant’s other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-
related guidance issued prior to the Ninth Edition, R–08.2017, of the MPEP
(published Jan. 2018) should not be relied upon.”))).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 32 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of independent claim 32, and claims 33–42,
which fall with independent claim 32.
DECISION
The Examiner’s rejection of claims 32–42 under 35 U.S.C. § 101 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED