Ex Parte Baker et al

Patent Trial and Appeal Board

Sep 26, 2017

14058263 (P.T.A.B. Sep. 26, 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.
81544.000006 5132
EXAMINER
WEINRICH, BRIAN E
ART UNIT PAPER NUMBER
2169
MAIL DATE DELIVERY MODE
14/058,263 10/20/2013 Douglas Dane Baker
21967 7590 09/27/2017
HUNTON & WILLIAMS LLP
INTELLECTUAL PROPERTY DEPARTMENT
2200 Pennsylvania Avenue, N.W.
WASHINGTON, DC 20037
09/27/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS DANE BAKER, BRIAN FERNANDES,
PAULO MALVAR FERNANDEZ, and
MUHAMMAD ABDUL-MAGEED1
Appeal 2017-004789
Application 14/058,263
Technology Center 2100
Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
ADAM J. PYONIN, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 22—34, 36-43, and 45. App. Br. 2.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Crowdchunk LLC and Codeq LLC are identified as the real parties in
interest. App. Br. 1.
Appeal 2017-004789
Application 14/058,263
STATEMENT OF THE CASE
Introduction
Appellants’ disclosure relates to enabling “users to search for and
select products comprising consumer goods and/or services” by using
“opinion / sentiment analysis algorithms and supervised machine learning to
present more informative summaries for each product’s reviews.” Spec.
110. Claims 22, 30, 36, and 41 are independent. Claim 22, 30, and 36 are
reproduced below for reference (emphases added):
22. A computer implemented method comprising:
electronically retrieving product reviews for a plurality of
products from online data sources;
storing the product reviews in an electronic database;
associating, using a computer processor, each product in
the plurality of products with one or more categories;
storing in an electronic database, using a computer
processor, a rating for each product in the plurality of products
based on the product reviews;
receiving electronically from a user an identification of a
product of interest to the user;
generating, using a computer processor, a first list of other
products in the same one or more categories as the product of
interest, wherein the first list comprises a list of products for
which a first reviewer, who gave a high rating to the product of
interest, also gave a high rating',
generating, using a computer processor, a second list of
other products in the same one or more categories as the product
of interest, wherein the second list comprises a list of products
for which a second reviewer, who gave a low rating for the
product of interest, gave a high rating', and
sending the first list and the second list to the user.
2
Appeal 2017-004789
Application 14/058,263
30. A computer-implemented method comprising:
electronically retrieving product reviews for a product
from at least one online data source;
storing the product reviews in an electronic database;
identifying a plurality of product features for the product;
storing the plurality of product features in an electronic
database;
calculating, with a computer processor, a score for each
of the product features based on the product reviews',
transmitting to a user, the scores for each product feature
of the product; and
sending to the user, for the product of interest, a first quote
from a most positive review and a second quote from a most
negative review.
36. A computer implemented method comprising:
electronically retrieving product reviews for a plurality of
products from online data sources;
storing the product reviews in an electronic database;
associating, using a computer processor, at least one
product in the plurality of products with a product category;
calculating mathematically, with a computer processor, a
global centroid of the product reviews for the at least one product
in the plurality of products associated with the product category
using polarity vectors and topic vectors derived from the product
reviews;
identifying, with the computer processor, a canonical
statement from one of the product reviews that is closest to the
global centroid',
identifying, with the computer processor, other product
reviews that include statements similar to the canonical
statement, said similarity determined based on a matching
algorithm generating a score above a predefined threshold; and
3
Appeal 2017-004789
Application 14/058,263
transmitting the canonical statement to a user in
combination with an indication of the number of other product
reviews found to have made similar statements.
The Examiner’s References and Rejections
Claims 22—29 stand rejected under 35 U.S.C. § 101 as being directed
to an abstract idea. Ans. 2—3.
Claims 22—34, 36-43, and 45 stand rejected under 35 U.S.C. § 103(a)
as obvious over Kumar (US 2012/0290910 Al; Nov. 15, 2012), Hazlehurst
(US 5,974,412; Oct. 26, 1999), and Levy (US 2011/0282821 Al;Nov. 17,
2011). Final Act. 3-31.2
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner erred. Except as indicated below with respect
to the obviousness rejections of independent claims 22, 36, and 41, we
disagree with Appellants that the Examiner erred and adopt as our own the
findings and reasons set forth by the Examiner. See Final Act. 12—15; Ans.
2—3, 9-10. We highlight and address specific findings and arguments for
emphasis as follows.
A. 35 U.S.C. § 101 — Claims 22-29
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
2 Although the heading of the rejection does not indicate claim 30 is rejected
(see Final Act. 3), the body of the rejection includes a rejection of claim 30.
See Final Act. 12—15.
4
Appeal 2017-004789
Application 14/058,263
Supreme Court, however, has long interpreted § 101 to include an implicit
exception: “[l]aws of nature, natural phenomena, and abstract ideas” are not
patentable. Alice Corp. Pty. Ltd. v. CLSBankInt’l, 134 S. Ct. 2347, 2354
(2014) (internal citation and quotation marks omitted). The Supreme Court,
in Alice, reiterated the two-step framework previously set forth in Mayo
Collaborative Services v. Prometheus Labs., Inc., 566 U.S. 66, 79 (2012),
“for distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.” Alice, 134 S. Ct. at 2355.
The first step in that analysis is to “determine whether the claims at
issue are directed to one of those patent-ineligible concepts,” e.g., to an
abstract idea. Id. If the claims are directed to a patent-ineligible concept,
the inquiry proceeds to the second step, where the elements of the claims are
considered “individually and ‘as an ordered combination”’ to determine
whether there are additional elements that “‘transform the nature of the
claim’ into a patent-eligible application.” Id. (quoting Mayo, 566 U.S. at 79,
78).
The Court acknowledged in Mayo that “all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas.” Mayo, 566 U.S. at 71. We, therefore, look to whether the
claims focus on a specific means or method that improves the relevant
technology, or instead are directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery. See
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
Appellants argue “the Examiner’s characterization of Appellants’]
claims is fundamentally flawed because it fails to appreciate current law and
5
Appeal 2017-004789
Application 14/058,263
examination guidelines.” Reply Br. 3, citing DDR Holdings, LLC v.
Hotels.com, 773 F.3d 1245 (Fed. Cir. 2014). Particularly, Appellants
contend “the claimed embodiment address[e]s a problem existing in the
digital realm that does not exist outside of the Internet. In other words, this
is not a mental problem that can be solved using pencil and paper.” Reply
Br. 4. Appellants further contend that “for claim 22, the combination of
elements amounts to ‘significantly more’ than an abstract idea — it
specifically performs functions together that are not simply generic
computer functions.” Reply Br. 4, citing Bascom Global Internet Services,
Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016).
We are not persuaded the Examiner errs. In rejecting claim 22 under
35 U.S.C. § 101, the Examiner finds the claimed invention is unpatentable
pursuant to the two-step framework of Alice. See Ans. 2—3. The Examiner
finds the claimed invention is directed to the abstract idea of “creating two
lists of products that are rated highly that are in the same category as a
product of interest, the two lists from a one reviewer that rates the product of
interest highly and another reviewer that gives a low rating to the product of
interest.” Ans. 2. The Examiner further finds “[t]he claim does not include
additional elements that are sufficient to amount to significantly more than
the judicial exception.” Ans. 2.
We agree with the Examiner that claim 22 is abstract. Claim 22
recites generating a first list of products and a second list of products that are
related to “a product of interest to the user.” That is, the claim recites
“familiar classification steps” (Ans. 3), which are essentially mental
processes. “In a similar vein, we have treated analyzing information by
steps people go through in their minds, or by mathematical algorithms,
6
Appeal 2017-004789
Application 14/058,263
without more, as essentially mental processes within the abstract-idea
category.” Electric Power Group, LLC v. Alstom S.A., 830 F.3d at 1350,
1354 (Fed. Cir. 2016)(emphasis added); see also In re TLI Comm ’ns LLC
Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016). That the claim is
implemented by a generic computer is not sufficient to show the claimed
concept is patent-eligible. See FairWarning IP, LLC v. Iatric Sys., Inc., 839
F.3d 1089, 1094 (Fed. Cir. 2016) (merely implementing an old practice in a
new environment is abstract).
The Examiner’s findings are consistent with prior case law, which
found similarly directed claims fall squarely within the realm of abstract
ideas implemented on computers. See CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) (verifying credit card
transactions); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362
(Fed. Cir. 2015) (Methods of offer-based price optimization in an
e-commerce environment); Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (tailoring information
presented to a user based on particular information); and Affinity Labs of
Texas, LLCv. Amazon.com, Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016)
(customizing a user interface to have targeted advertising based on user
information).
We are also not persuaded claim 22 recites elements that transform
the nature of the claim into a patent-eligible application. As correctly noted
by the Examiner, the claimed “electronic database” is “only a generic
electronic database” and the claimed “computer processor” is generic and
“not significantly more than an output.” Ans. 3. That an abstract idea may
be described in greater detail does make the idea any less abstract. The
7
Appeal 2017-004789
Application 14/058,263
limitations comprise, at most, insignificant post-solution activities that do
not support the invention having an inventive concept. See, e.g., Mayo, 566
U.S. at 72-73 (“[T]he prohibition against patenting abstract ideas cannot be
circumvented by . . . adding insignificant post-solution activity”) (internal
citations and quotation marks omitted); see also Intellectual Ventures ILLC
v. Erie Indent. Co., 850 F.3d 1315, 1328-29 (Fed. Cir. 2017) (“[wjhile
limiting the index to XML tags certainly narrows the scope of the claims, in
this instance, it is simply akin to limiting an abstract idea to one field of use
or adding token post solution components that do not convert the otherwise
ineligible concept into an inventive concept”). We are not persuaded that
Appellants’ claimed method “specifically performs functions together that
are not simply generic computer functions” (Reply Br. 4), as Appellants
have not provided persuasive evidence or reasoning to support these
arguments.
Accordingly, we agree with the Examiner that the claims are directed
to an abstract idea, and fail to recite inventive concepts sufficient to
transform the abstract idea into a patent eligible invention. See Ans. 2—3.
B. 35 U.S.C. § 103 —Independent Claims 22 and 41
Claim 22 recites generating a first list and a second list of reviewed
products, in which the first list of products have high ratings, and the
“second list comprises a list of products for which a second reviewer, who
gave a low rating for the product of interest, gave a high rating.” The
Examiner finds this limitation obvious in view of the cited references, and
relies on Hazlehurst for teaching the two lists of reviewed products:
“Hazlehurst has two recommendations lists 340 and 342” (Ans. 5), and these
8
Appeal 2017-004789
Application 14/058,263
lists are based on the “query goodness [which] characterizes the fit of a
document to a collator. The examiner feels that the fit of a document to a
collator discloses a rating of the document by the collator” (Ans. 6). See
Hazlehurts Fig. 17, 13:26-30, 22:8—14.
Appellants argue the Examiner erred in rejecting independent claims
22 and 41, because with respect to Hazlehurst, “the query goodness scores
cited by the Examiner simply relate to the relevance of each search result,
which is then used to order the results in a single merged list. These scores
do not relate to the perceived quality of a product as claimed.” App. Br. 11,
citing Hazlehurst Fig. 17 and 22:8—14.
We are persuaded by Appellants’ arguments. Hazlehurst discloses
listing search results based on similarity of the result to the query itself,
rather than a product review as claimed. See Hazlehurst Abstract;
21:55—22:28. We disagree with the Examiner’s finding that “the fit of a
document to a collator discloses a rating of the document by the collator”
because the collator evaluates a goodness of fit of a document to a search
term that is unrelated to a product rating described by the document. See
Hazlehurst 13:25—35. Thus, Hazlehurst does not teach or suggest generating
the recited first and second list of products based on high and low product
ratings, as claimed.
Accordingly, we are constrained by the record to reverse the
Examiner’s rejection of independent claim 22, independent claim 41 which
includes limitations commensurate in scope (see App. Br. 14), and claims
23—29, 42, 43, and 45 that depend therefrom.
9
Appeal 2017-004789
Application 14/058,263
C. 35 U.S.C. §103 —Independent Claim 30
Appellants argue the Examiner erred in rejecting independent claim
30 because “Kumar does not disclose ‘identifying a plurality of features of
the product” (App. Br. 14) and “the proposed combination does not disclose
that a score for each of the product features is calculated.” App. Br. 15.
Particularly, Appellants contend Kumar does not disclose product features,
but instead discloses “reviewers’ assessments — sentiments — associated
with the product” and that “the Examiner is giving the word ‘score’ an
unreasonably broad interpretation.” App. Br. 15.
We are not persuaded the Examiner errs. The Examiner finds, and we
agree, that Kumar “calls the descriptions features among other things” (Ans.
9, citing Kumar | 54) and that “[Ajppellants do not define what they mean
by product features in claim 30.” Ans. 9. The Examiner additionally finds,
and we agree, that “score is a broader concept than ranking and that ranking
can function as score” and further notes “[Ajppellants have no definition of
score in claim 30.” Ans. 9. Although Appellants offer dictionary definitions
taken from Merriam-Webster, dictionary.com, and Wikipedia, to suggest
“one of skill in the art would not recognize a ‘ranking’ to be a ‘score’” (App.
Br. 15), Appellants do not persuade us the Examiner’s interpretation is
unreasonable, as Kumar itself states that “rank may be a number
representing a weighing of various factors or attributes associated with the
user-generated content” (Kumar 190), which one skilled in the art would
consider as a score.
10
Appeal 2017-004789
Application 14/058,263
Accordingly, we sustain the Examiner’s rejection of claim 30, and the
rejection of dependent claims 31—34 not separately argued. See App. Br. 16.
D. 35 U.S.C. §103 —Independent Claim 36
In rejecting independent claim 36, the Examiner finds the following:
[cjlaim 36 recites that a canonical statement is from the product
reviews, not part of the product reviews. Lines 48—51, column
20 [of Hazlehurst] says that “A user query is based on explicit
(user-provided) and implicit (system-inferred) feedback about
the relevance of documents with which user 86 interacts over
time.[”] Thus the queries are from feedback (i.e., reviews).
Ans. 11-12.
Appellants argue the Examiner erred in rejecting independent claim
36, because in Hazlehurst, “a query is user defined and therefore not
identified from a product review closest to the global centroid” as in the
claim. App. Br. 18; see also Hazlehurst 12:2.
We are persuaded the Examiner erred. The Examiner’s finding that
the canonical statement is “not part of the product reviews” conflicts with
the plain meaning of the word “from.” Further, we agree with Appellants
that Hazlehurst “fails to relate user feedback to [a] product review,” because
Hazlehurst’s feedback relates to the search results, not to product reviews
themselves. Reply Br. 7; see also Hazlehurst 20:48—51. Thus, we are
persuaded the cited references fail to teach or suggest “calculating
mathematically, with a computer processor, a global centroid of the product
reviews for the at least one product in the plurality of products associated
with the product category using polarity vectors and topic vectors derived
from the product reviews” as claimed. See App. Br. 17—18.
11
Appeal 2017-004789
Application 14/058,263
Accordingly, we are constrained by the record to reverse the
Examiner’s rejection of independent claim 36, as well as claims 37-40 that
depend therefrom.
DECISION
We affirm the Examiner’s decision rejecting claims 22—29 under
35 U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 30—34 under
35 U.S.C. § 103.
We reverse the Examiner’s decision rejecting claims 22—29, 36-43,
and 45 under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
12