Ex Parte Angell et al

Patent Trial and Appeal Board

Apr 28, 2017

11756198 (P.T.A.B. Apr. 28, 2017)

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.
11/756,198 05/31/2007 Robert Lee Angell END920070156US1 1440
37945 7590 05/02/2017
DTTKFW YFF
EXAMINER
YEE AND ASSOCIATES, P.C. BROWN, ALVIN L
P.O. BOX 802333
DALLAS, TX 75380 ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
05/02/2017 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):
ptonotifs @yeeiplaw.com
mgamez @ yeeiplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT LEE ANGELL, and JAMES R. KRAEMER
Appeal 2015-000418
Application 11/756,1981
Technology Center 3600
Before HUBERT C. LORIN, JOSEPH A. FISCHETTI, and
TARA L. HUTCHINGS, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’
Final Rejection of claims 1-36. We have jurisdiction under 35 U.S.C.
§ 6(b).
SUMMARY OF DECISION
We AFFIRM-IN-PART.
1 Appellants identify International Business Machines Corporation of
Armonk, New York as the real party in interest. App. Br. 2.
Appeal 2015-000418
Application 11/756,198
THE INVENTION
Appellants claim a computer implemented method, apparatus, and
computer usable program code for automatically identifying a customer in a
retail environment and dynamically generating customized marketing
messages for the identified customer.
Claim 1 reproduced below, is representative of the subject matter on
appeal.
1. A computer implemented method for generating
customized marketing messages using automatically generated
customer identification data, the computer implemented method
comprising:
receiving real-time data for a plurality of customers from
a set of cameras associated with a retail facility to form
detection data;
analyzing the detection data to group a set of customers
that arrived in a same vehicle together from the plurality of
customers, wherein the detection data includes video data from
cameras in the set of cameras located externally to the retail
facility;
retrieving data regarding one or more customers
previously recognized to form recognized customer data,
wherein the recognized customer data retrieved is selected from
a group comprising one of an image recognized as a face of a
particular customer and an audio recording recognized as a
voice of a particular customer;
automatically identifying, by a processing unit, a
customer in the set of the customers by comparing the detection
data with the recognized customer data to form customer
identification data, wherein automatically identifying the
customer occurs without a human input; and
generating, in real time, a customized marketing message
for the customer using the customer identification data wherein
the generating comprises a dynamic marketing message
2
Appeal 2015-000418
Application 11/756,198
assembly of one or more modular marketing messages
comprising pre-generated, modular marketing messages and
templates imbedded within the modular marketing messages to
form a personalized marketing message as a one-to-one
customized marketing message specific to the customer based
on output from data models analyzing at least one of internal
data and external data and a set of personalized marketing
message criteria associated with the customer.
THE REJECTIONS
The following rejections are before us for review.
Claims 15—22 are rejected under 35U.S.C. § 101 because the claimed
invention is directed to non-statutory subject matter.
Claims 1—6, 9-19, 21—27, 29-35 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gonzalez (US 2010/0023372 Al; pub. Jan. 28,
2010) in view of Huang et al. (US 2008/0004951 Al; pub. Jan. 3, 2008) and
further in view of Rodgers (US 2008/0033752 Al; pub. Feb. 7, 2008);
Fitzpatrick et al. (US 2006/0218057 Al; pub. Sept. 28, 2006); and Kraft et
al. (US 2002/0091568 Al; pub. July 11, 2002).
Claims 7, 8, 20, 28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gonzalez in view of Huang, Rodgers, Fitzpatrick, Kraft,
and further in view of Huadong Wu, et al., Vehicle Sound Signature
Recognition by Frequency Vector Principal Component Analysis, pp. 429—
434, IEEE Instrumentation and Measurement Technology Conference, May
18-20, 1998. (“Vehicle Sound”).
Claim 36 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Gonzalez, Huang, Rodgers, Fitzpatrick, and Kraft, and further in view
of Luff et al. (US 2008/0270172 Al; pub. Oct. 30, 2008).
3
Appeal 2015-000418
Application 11/756,198
ANALYSIS
35 U.S.C. § 103 REJECTION
Each of independent claims 1, 15, 23, and 29 recites, in pertinent part,
in one form or another:
generating, in real time, a customized marketing message for
the customer using the customer identification data wherein the
generating comprises a dynamic marketing message assembly
of one or more modular marketing messages comprising pre­
generated, modular marketing messages and templates
imbedded within the modular marketing messages to form a
personalized marketing message as a one-to-one customized
marketing message specific to the customer based on output
from data models analyzing at least one of internal data and
external data and a set of personalized marketing message
criteria associated with the customer.
The Examiner found that Kraft discloses this limitation finding:
Examiner notes that Kraft discloses delivering in real­
time customized advertisements based on a customer’s profile
or “identification data.” For example[,] at par [0021] Kraft
discloses:
Global Positioning System (GPS), Personal Data
Assistant (PDA), and wireless communications are combine[d]
in order to create a more personalized advertising experience.
The invention creates and presents advertising content founded
on individual user profiles integrated with the physical
geographic location of a consumer.
Kraft further discloses at par [0194]:
Dynamic seneration of advertising messases with
content customized both to users and their physical location U
Hence, the combination of the references discloses generating,
in real time, a customized marketing message for the customer
4
Appeal 2015-000418
Application 11/756,198
using the customer identification data wherein the generating
comprises a dynamic marketing message[]
(Answer 10).
Appellants, however, argue that
In contrasty the claimed feature specifically recites
generating, in real time, a customized marketing message for
the customer using the customer identification data. The
generating comprises a dynamic marketing message assembly
of one or more modular marketing messages comprising pre­
generated, modular marketing messages and templates
imbedded within the modular marketing messages to form a
personalized marketing message as a one-to-one customized
marketing message. The one-to-one customized marketing
message is specific to the customer based on output from data
models analyzing internal data and/or external data and a set of
personalized marketing message criteria associated with the
customer.
The disclosure of Kraft discloses profile based
advertising and in [0122] discloses “...Next, the merchant client
session manager (234) generates an advertisement (408)
utilizing its ads database (240) and forwards the advertisement
(410) to the GPS client wireless component (218).” Use of the
ads database cannot be reasonably construed by one skilled in
the art to be analogous to the generating as currently claimed[,]
which comprises a dynamic marketing message assembly of
one or more modular marketing messages comprising pre­
generated, modular marketing messages and templates
imbedded within the modular marketing messages to form a
personalized marketing message as a one-to-one customized
marketing message specific to the customer based on output
from data models analyzing internal data and/or external data
and a set of personalized marketing message criteria associated
with the customer. Kraft is silent with regard to a dynamic
marketing message assembly of one or more modular
marketing messages comprising pre-generated, modular
marketing messages and templates imbedded within the
5
Appeal 2015-000418
Application 11/756,198
modular marketing messages to form a personalized marketing
message. Kraft is also silent with regard to [a] one-to-one
customized marketing message specific to the customer based
on output from data models analyzing internal data and/or
external data and a set of personalized marketing message
criteria associated with the customer.
(App. Br. 29-30.)
We agree with Appellants. Our review of Kraft at ^Hf 21 and 194
reveals that Kraft fails to disclose “templates imbedded within the modular
marketing messages to form a personalized marketing message as a one-to-
one customized marketing message specific to the customer based on output
from data models analyzing at least one of internal data and external data
and a set of personalized marketing message criteria associated with the
customer.'” We find that the Specification explicitly defines the term
“customer identification data” stating: “Customer identification data is data
identifying a customer and/or a customer’s vehicle ... [that] is generated
automatically based on an analysis of audio data and/or video data of the
customer and the customer’s data in real time.” Specification 142. Kraft at
21 and 194 discloses the use of GPS technology and user profile data to
effect a custom message. The user profile includes information about
products or services in which a customer is interested, and is obtained from
calendar entries or stored in a profile set up. Id. 122. Thus, Kraft describes
generating a customized marketing message using stored profile data, not the
claimed customer identification data that is generated automatically based on
an analysis of audio data and/or video data of the customer and the
customer’s data in real time.
Therefore, we will not sustain the rejection of independent claims 1,
15, 23 and 29. Since claims 2—6, 9—14, 16—19, 21, 22, 24—27 and 30—35
6
Appeal 2015-000418
Application 11/756,198
depend from one of claims 1, 15, 23 and 29, and since we cannot sustain the
rejection of claims 1, 15, 23, and 29, the rejection of these dependent claims
likewise cannot be sustained. The additionally cited references used by the
Examiner in rejecting claims 7, 8, 20, 28 and 36 under 35 U.S.C. § 103(a)
fails to remedy the above noted shortfalls of Kraft and thus the rejection of
these claims is likewise reversed.
35 U.S.C. § 101 REJECTION
We sustain the rejection of claims 15—22 under 35 U.S.C. § 101.
Independent claim 15 is drawn to a computer program product for
generating customized marketing messages using automatically generated
customer identification. (Claim 15, Appx.)
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[wjhat
else is there in the claims before us?” To answer that question,
. . . consider the elements of each claim both individually and
“as an ordered combination” to determine whether the
additional elements “transform the nature of the claim” into a
patent-eligible application. [The Court] described step two of
this analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp., Pty. Ltd. v CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014)
(citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 132 S. Ct. 1289 (2012)).
7
Appeal 2015-000418
Application 11/756,198
To perform this test, we must first determine whether the claims at issue
are directed to a patent-ineligible concept.
While the Court in Alice made a direct finding as to what the claims were
directed to, we find that this case’s claims themselves, and the Specification,
provide enough information to inform one as to what they are directed to.
Representative claim 15 recites, in pertinent part, “generating
comprises a dynamic marketing message assembly of one or more modular
marketing messages comprising pre-generated, modular marketing
messages and templates imbedded within the modular marketing messages
to form a personalized marketing message as a one-to-one customized
marketing message specific to the customer based on output from data
models analyzing at least one of internal data and external data and a set of
personalized marketing message criteria associated with the customer.'1'’
To effect this messaging, claim 15 further requires: visually analyzing
a group of individuals, retrieving data on a recognized customer from the
visual information, identifying a customer from the group by comparing the
detection data with the recognized customer data, and generating a message
with an imbedded personal message. The Specification does not specifically
define the term “embedded” within the context of computer code. The
Specification only generally describes “embedded” in the context of,
“Although modular marketing messages 624 are pre-generated, modular
marketing messages 624 may also include templates imbedded within
modular marketing messages for adding personalized information, such as a
customer’s name or address, to the customized marketing message.”
Specification 1141. Thus, even a space for writing a person’s name by hand
allotted within a sign having advertising would constitute “embedding.”
8
Appeal 2015-000418
Application 11/756,198
It follows from prior Supreme Court cases, and Gottschalk v. Benson,
409 U.S. 63 (1972) in particular, that the claims at issue here are directed to
an abstract idea. Like the algorithm in Gottschalk, the claimed method
which uses visual recognition of an individual and ties a personalized
message to the recognized individual based on a data model, is an
abstraction. Thus, generating a personalized message to an individual based
on the recognition of the individual and a model2 is a process which occurs
in the human mind almost constantly in society, and hence is an “abstract
idea” beyond the scope of § 101. See Alice Corp. Pty. Ltd. 134 S. Ct. at
2356. Additionally, we find that the claims are drawn to merchant-to-
customer specific advertising (see Specification |4), a fundamental
economic practice, and thus constitutes patent-ineligible subject matter.
Alice Corp. Pty. Ltd., 134 S. Ct. at 2357; Bilski v. Kappos, 561 U.S. 593, 611
(2010).
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the “abstract ideas” category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of performing a mathematical algorithm in Gottschalk
and the concept of responding with a suitable message to visual recognition
of an individual. Both are squarely within the realm of “abstract ideas” as
the Court has used that term. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2357.
2 Specification explicitly defines the term “data model,” stating: “A
data model is a model for structuring, defining, organizing, imposing
limitations or constraints, and/or otherwise manipulating data and metadata
to produce a result.” Specification 149. But, the human mind is at least
capable of structuring information to produce a result, e.g., handwriting.
9
Appeal 2015-000418
Application 11/756,198
The introduction of devices into claim 15 does not alter the analysis at
Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on ... a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the pre-emption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (alterations in original) (citations
omitted).
“[T]he relevant question is whether the claims here do more than simply
instruct the practitioner to implement the abstract idea ... on a generic
computer.” Alice Corp. Pty. Ltd., 134 S. Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to recognize an entity from visual information, identify the entity
from a group by comparing the detection data with the recognized entity
data, and generating a message based on that recognition amounts to
electronic data query, retrieval and computation—one of the most basic
functions of a computer. All of these computer functions are well-
understood, routine, conventional activities previously known to the
10
Appeal 2015-000418
Application 11/756,198
industry. In short, each step does no more than require a generic computer
to perform generic computer functions as encodes on the computer readable
storage medium.
Considered as an ordered combination, the computer components of
Appellants’ method/system add nothing that is not already present when the
steps are considered separately. Viewed as a whole, Appellants’ claim 15
simply recites the concept of generating a personalized message to an
individual based on the recognition of the individual. The claims do not, for
example, purport to improve the functioning of the computer itself. Nor do
they effect an improvement in any other technology or technical field.
Instead, the claims at issue amount to nothing significantly more than an
instruction to generate a personalized message to an individual based on the
recognition of that individual. Under our precedents, that is not enough to
transform an abstract idea into a patent-eligible invention. See Alice Corp.
Pty. Ltd. 134 S. Ct. at 2360.
That claim 15 requires the use of a cameras to gather the visual data on
which recognition is based, is not of consequence because the visual data is
merely intake data, and the nub of the claims is drawn to processing of the
visual data to develop a suitable message.
Thus, the structural claims
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “wam[ed] ... against” interpreting § 101 “in
ways that make patent eligibility ‘depend simply on the
draftsman’s art.’”
Alice Corp. Pty. Ltd. 134 S. Ct._at 2360 (alterations in original).
11
Appeal 2015-000418
Application 11/756,198
DECISION
We reverse the rejection of claims 1-36 under 35 U.S.C. § 103.
We affirm the rejection of claims 15—22 under 35 U.S.C. § 101.
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)(l)(iv).
AFFIRMED-IN-PART
12