eTorch Inc.

Patent Trials and Appeals Board

Jun 26, 2020

15872078 - (D) (P.T.A.B. Jun. 26, 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.
15/872,078 01/16/2018 Paul Everton 1014USN1 7545
138283 7590 06/26/2020
ETorch, Inc.
225 West Washington, Suite 1150
Chicago, IL 60606
EXAMINER
HUSSAIN, TAUQIR
ART UNIT PAPER NUMBER
2446
NOTIFICATION DATE DELIVERY MODE
06/26/2020 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):
patents@redatatech.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL EVERTON
Appeal 2019-005699
Application 15/872,078
Technology Center 2400
Before JAMES R. HUGHES, JOYCE CRAIG, and
MATTHEW J. McNEILL, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–14. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Etorch, Inc. Appeal
Br. 1.
Appeal 2019-005699
Application 15/872,078

2
CLAIMED SUBJECT MATTER
The invention relates to a system for email fraud prevention. Spec.
¶ 3. Specifically, the system includes a brand recognizer that may analyze
email content with “machine vision” techniques. Id. ¶ 14. If the brand
recognizer detects that an image in an email is associated with a particular
brand, but determines that the email sender is not authorized to send emails
on behalf of that brand, the email may be routed to a quarantine. Id. ¶ 17. A
network administrator may then inspect the email to either confirm it was a
phishing email or mark it as a false positive. Id. ¶ 18. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A system comprising:
processing circuitry, storage circuitry, and networking
circuitry of a mail transfer agent, wherein:
the storage circuitry holds a database;
the networking circuitry is operable to receive, via
a network connection, an email message;
the processing circuitry is operable to analyze the
email message to detect an image present in the email
message; and
the processing circuitry is operable to:
determine, based on one or more records of
the database, that the detected image is associated
with a particular brand; and
process the email message based on whether
one or more characteristics of the email message
are associated with the particular brand in the
database.
Appeal 2019-005699
Application 15/872,078

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REJECTIONS2
Claims 1–4 stand rejected under 35 U.S.C. § 102(a)(2) as anticipated
by Gammage et al. (US 2008/0091765 A1; published Apr. 17, 2008)
(“Gammage”). Final Act. 15–16.
Claims 5, 6, 8, and 10–14 stand rejected under 35 U.S.C. § 103 as
unpatentable over Gammage and Dinkin (US 2005/0050150 A1; published
Mar. 3, 2005). Final Act. 17–19.
Claim 7 stands rejected under 35 U.S.C. § 103 as unpatentable over
Gammage and Maylor et al. (US 2017/0078321 A1; published Mar. 16,
2017) (“Maylor”). Final Act. 19–20.
Claim 9 stands rejected under 35 U.S.C. § 103 as unpatentable over
Gammage and Buss et al. (US 2016/0180468 A1; published Jun. 23, 2016)
(“Buss”). Final Act. 20–21.
ANALYSIS
Rejection of Claims 1–4 Under 35 U.S.C. § 102(a)(2)
Appellant contends that Gammage does not disclose the claim 1
limitation
determine, based on one or more records of the database, that
the detected image is associated with a particular brand; and
process the email message based on whether one or more
characteristics of the email message are associated with the
particular brand in the database.

2 The Examiner withdrew the rejection of claims 1–14 under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter. Ans. 3. In the event of
further prosecution, the Examiner may wish to reconsider, under the
USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”), whether the claims are
directed to an abstract idea, without significantly more.
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Application 15/872,078

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Appeal Br. 6.
The Examiner found that Gammage discloses the disputed limitation.
See Final Act. 15–16 (citing Gammage, Fig. 1, ¶ 30). The Examiner
clarified, in an Advisory Action dated January 7, 2019, that the claim term
“brand” can be defined as a “kind, grade, or make, as indicated by a stamp,
trademark, or the like.” Advisory Act. 3. In the Answer, the Examiner
asserted that a “particular brand can be interpreted as a parameter/indicator.”
Ans. 5.
We agree with Appellant that the Examiner erred. We begin by
concluding that the Examiner’s interpretation of “brand” as “a kind, grade,
or make, as indicated by a stamp, trademark, or the like” (Advisory Act. 3)
is reasonably broad, as compared to “parameter/indicator,” the interpretation
in the Answer, which we conclude is unreasonably broad. See Ans. 5.
Appellant’s Specification supports the former interpretation by describing a
brand content database that “comprise[s] known-good . . . and/or known-bad
. . . content associated with various brands (e.g., banks, shippers, retailers,
and/or any other brand which may be used as part of a phishing scam)” and
“stores logos and/or other images or design marks associated with particular
brands.” Spec. ¶ 14. In other words, a “particular brand,” as recited in the
claims, is the identity of a business or other entity identifiable by an image,
logo, or other mark.
Gammage discloses “an ‘undesired email’ detection, or anti-spam,
process 44” that “comprises a statistical token analysis (STA) system, which
is a form of a Bayesian filtering system.” Gammage ¶ 29. Gammage further
discloses that “STA systems arrange emails into tokens, which are the
smallest units for which a statistic is collected” and that “[t]okens can be
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Application 15/872,078

5
words, letters, punctuation marks or any other email component.” Id. ¶ 31.
But, “in addition to the known tokenization techniques for the text of emails,
anti-spam process 44 performs a tokenization and analysis of images in
emails in an attempt to recognize undesired emails with image-based
messages.” Id. ¶ 33. Gammage’s image tokens include “characteristics,
features and parameters of the image,” such as “Image dimension tokens”
and “Image file size tokens.” Id. ¶¶ 36, 43, 44.
Gammage’s STA system thus considers features of images for their
statistical relevance as indications of spam email. See id. ¶¶ 34–61. But the
Examiner has not shown, and we have not found, any disclosure in
Gammage that describes determining an association between image features
and a particular brand. In other words, Gammage identifies spam email
based in part on image features known, with some likelihood, to be
associated with spam email in general, not because of any association with
an entity that could be identified by the image features—i.e., a particular
brand.
For these reasons, we are persuaded that the Examiner erred in finding
that Gammage discloses the disputed limitation of claim 1.
Accordingly, we reverse the Examiner’s § 102 rejection of
independent claim 1 and dependent claims 2–4, which stand with claim 1.
Because it is dispositive that the Examiner has not shown by a
preponderance of evidence that Gammage discloses the disputed limitations,
we do not address other issues raised by Appellant’s arguments related to
claims 1–4. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir.
1984) (finding an administrative agency is at liberty to reach a decision
based on “a single dispositive issue”).
Appeal 2019-005699
Application 15/872,078

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Rejection of Claims 5–14 Under 35 U.S.C. § 103
We review appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Appellant does not reference the § 103 rejections in either the Appeal Brief
or the Reply Brief. See Appeal Br. 1–11; Reply Br. 1–5. Arguments not
made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
In the absence of any specific arguments directed to the § 103
rejections, we pro forma sustain the § 103 rejections of claims 5–14.
DECISION
We reverse the decision of the Examiner rejecting claims 1–4, but
affirm the decision of the Examiner rejecting claims 5–14.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4 102 Gammage 1–4
5, 6, 8, 10–14 103 Gammage, Dinkin 5, 6, 8, 10–14
7 103 Gammage, Maylor 7
9 103 Gammage, Buss 9
Overall
Outcome:
5–14 1–4
TIME PERIOD FOR RESPONSE
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-IN-PART