Ex Parte BARFIELD et al

Patent Trial and Appeal Board

Jul 23, 2018

14164862 (P.T.A.B. Jul. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/164,862 01/27/2014
25537 7590 07/25/2018
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
James Ronald BARFIELD JR.
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
20131180 6322
EXAMINER
KLOBERG, PAUL R
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
07/25/2018 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@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES RONALD BARFIELD JR. and
STEPHEN CHRISTOPHER WELCH
Appeal2017-003028
Application 14/164, 862 1
Technology Center 3600
Before MAHSHID D. SAADAT, ERIC S. FRAHM, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 2, and 4--21. Appellants have canceled claim 3. App. Br. 20. We
have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Verizon Communications Inc. and its subsidiary
companies as the real parties in interest. App. Br. 3.
Appeal2017-003028
Application 14/164,862
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention generally relates to
creating a driver behavior prediction model based on driving and non-
driving information. Spec. ,r 23, Abstract. The information may be obtained
from various sources, including sensors, devices, and databases. Spec. ,r 23.
In a disclosed embodiment, sensor information collected from a user device
and a vehicle device may be analyzed to determine whether the user device
was powered off while the vehicle was in operation. Spec. ,r,r 62-73, Fig. 5.
This behavior, referred to in the Specification as "suspicious behavior," may
be used when creating a driver behavior prediction model. Spec. ,r 73.
Claim 1 is representative of the subject matter on appeal and is
reproduced below:
1. A system, comprising:
one or more devices configured to:
determine driving information associated with a
group of users,
the driving information being based on
sensor information collected by at least two of a
group of user devices, a first group of vehicle
devices used in association with a corresponding
group of vehicles associated with the group of users,
or a group of second vehicle devices installed in the
corresponding group of vehicles,
when determining the driving information,
the one or more devices are configured to:
determine, based on the sensor
information, that a user device, of the group
of user devices and associated with a user of
the group of users, has been powered off for
a threshold amount of time;
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Application 14/164,862
determine that a vehicle, of the
corresponding group of vehicles and
associated with the user, has been driven
while the user device was powered off; and
determine, based on the user device
having been powered off for the threshold
amount of time, an activity of the vehicle
while the user device was powered off based
on the sensor information collected from at
least one of the user device while the user
device is powered on, a first vehicle device
associated with the vehicle and included in
the first group of vehicle devices, or a second
vehicle device installed in the vehicle and
included in the second group of vehicle
devices,
where the driving information
indicates the activity of the vehicle while the
user device was powered off;
determine non-driving information associated with
the group of users;
create a driver behavior prediction model based on
the driving information and the non-driving information,
the driver behavior prediction model being
based on the user device having been powered off
for the threshold amount of time and the activity of
the vehicle while the user device was powered off,
the driver behavior prediction model being a
learning model type;
store the driver behavior prediction model,
the driver behavior prediction model
permitting a driver prediction to be made regarding
a particular user;
determine updated driver information associated
with the group of users based on updated sensor
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Application 14/164,862
information collected after collecting the sensor
information;
automatically update the driver behavior prediction
model based on the updated driving information and the
learning model type;
determine a type of information, based on the driver
behavior prediction model, required to generate the driver
prediction for the particular user using the driver behavior
prediction model;
cause at least one of a user device or a vehicle
device associated with the particular user to provide the
type of information; and
generate the driver prediction using the driver
behavior prediction model based on the type of
information being collected.
The Examiner's Rejection2
Claims 1, 2, and 4--21 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. Final Act. 3-5.
ANALYSIS 3
Appellants dispute the Examiner's conclusion that the pending claims
are directed to patent-ineligible subject matter under 35 U.S.C. § 101. App.
Br. 9-16; Reply Br. 2-10. In particular, Appellants argue the Examiner
2 The Examiner has withdrawn the rejection of claims 1, 2, and 4--21 under
35 U.S.C. § 103. Adv. Act. 2 (mailed February 2, 2016).
3 Throughout this Decision, we have considered the Appeal Brief, filed
April 18, 2016 ("App. Br."); the Reply Brief, filed December 21, 2016
("Reply Br."); the Examiner's Answer, mailed November 2, 2016 ("Ans.");
and the Final Office Action, mailed November 6, 2015 ("Final Act."), from
which this Appeal is taken.
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Application 14/164,862
overgeneralizes the claims in concluding they are directed to an abstract
idea. App. Br. 10-11; Reply Br. 5-7. Appellants contend the claims
address a challenge particular to the realm of computer networks-
"determining when a user device, responsible for gathering sensor data
indicative of driving information, is powered off when a vehicle is driven,
and determining an activity of the vehicle while the user device was
powered off." App. Br. 10-11; Reply Br. 4. Appellants assert, therefore,
the claims address a problem rooted in computer technology. Reply Br. 4.
Additionally, Appellants assert that the claims recite significantly more than
the Examiner's purported abstract idea by improving "the technical field of
remotely monitoring activities of a vehicle" and/or improving the technical
field of computer networks. App. Br. 12-13; Reply Br. 8-10.
The Supreme Court's two-step framework guides our analysis. Alice
Corp. Pty. Ltd. v. CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014). If a claim
falls within one of the statutory categories of patent eligibility (i.e., a
process, machine, manufacture or composition of matter) then the first
inquiry is whether the claim is directed to one of the judicially recognized
exceptions (i.e., a law of nature, a natural phenomenon, or an abstract idea).
Alice, 134 S. Ct. at 2355. If so, the second step is to determine whether any
element, or combination of elements, amounts to significantly more than the
judicial exception. Alice, 134 S. Ct. at 2355.
Although the independent claims each broadly fall within the statutory
categories of patentability, the Examiner concludes the claims are directed to
a judicially recognized exception-i.e., an abstract idea. Final Act. 3-5. In
particular, the Examiner concludes the claims are "directed to the abstract
idea of applying a usage based insurance (UBI) technique to create a driver
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behavior prediction model." Final Act. 3. Further, the Examiner finds the
claims recite generic computer elements ( or instructions) to perform generic
computer functions that are well-understood, routine, and conventional
activities and, accordingly, concludes the claims do not recite significantly
more to transform the abstract idea into a patent-eligible application. Final
Act. 4--5.
Instead of using a definition of an abstract idea, "the decisional
mechanism courts now apply is to examine earlier cases in which a similar
or parallel descriptive nature can be seen-what prior cases were about, and
which way they were decided." Amdocs (Isr.) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288, 1294 (Fed. Cir. 2016) (citing Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)); accord United
States Patent and Trademark Office, July 2015 Update: Subject Matter
Eligibility 3 (July 30, 2015), https://www.uspto.gov/sites/default/files/
documents/ieg-july-2015-update.pdf (instructing Examiners that "a claimed
concept is not identified as an abstract idea unless it is similar to at least one
concept that the courts have identified as an abstract idea."). As part of this
inquiry, we must "look at the 'focus of the claimed advance over the prior
art' to determine if the claim's 'character as a whole' is directed to excluded
subject matter." Affinity Labs of Tex., LLC v. DirecTV, LLC, 838 F.3d 1253,
1257 (Fed. Cir. 2016).
Our reviewing court has concluded that abstract ideas include the
concepts of collecting data, recognizing certain data within the collected data
set, and storing the data in memory. Content Extraction & Transmission
LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014); see
also Smart Sys. Innovations, LLC v. Chicago Transit Authority, 873 F .3d
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1364, 1372 (Fed. Cir. 2017) (concluding "claims directed to the collection,
storage, and recognition of data are directed to an abstract idea").
Additionally, the collection of information and analysis of information (e.g.,
recognizing certain data within the dataset) are also abstract ideas. Elec.
Power, 830 F.3d at 1353. Similarly, simply "collecting, displaying, and
manipulating data" is an abstract idea. Intellectual Ventures I LLC v.
Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017). Also, more
recently, our reviewing court has also concluded that acts of parsing,
comparing, storing, and editing data are abstract ideas. Berkheimer v. HP
Inc., 881 F.3d 1360, 1366 (Fed. Cir. 2018).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., 855 F .3d
1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea (math) to another
abstract idea ... does not render the claim non-abstract."); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016) ( determining the pending claims were directed to a combination of
abstract ideas).
Here, Appellants' claims are directed to the creation of a driver
behavior prediction model based on driving and non-driving information.
The driving information is determined by collecting and analyzing data
collected from a plurality of sensors (i.e., at least two of a group of user
devices, a first group of vehicle devices associated with the group of users,
or a second group of vehicle devices). As part of the data analysis, a
determination may be made that the driving information indicates the
activity of the vehicle while the user device was powered off. Further, the
driver behavior prediction model may be updated (i.e., a learning model)
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Application 14/164,862
based on subsequently collected sensor information. The claims also recite
the driver behavior prediction model may be used to generate a driver
prediction for a particular user based on determined information. Our
understanding and characterization of the claims, similar to the Examiner's,
is also consistent with Appellants' description. See Spec. ,r,r 16-17, 162,
Abstract.
Contrary to Appellants' assertions (see, e.g., App. Br. 10-13; Reply
Br. 2--4 ), the claims are not directed to addressing a challenge that is
particular to the realm of computer networks. Rather, the determination that
a user device was powered off while a vehicle was driven is similar to the
collection, analysis, and recognition of certain data (i.e., that a device was
powered off while other data indicates the vehicle had been driven) that the
courts have held to be abstract. See Elec. Power, 830 F.3d at 1353; see also
Content Extraction, 776 F.3d at 1347; Smart Sys., 873 F.3d at 1372.
Additionally, using the collected data (both driving and non-driving
information) to generate a model to predict driver behavior is similar to the
abstract ideas of collecting and manipulating data to customize the
information and present it based on particular characteristics. See
Intellectual Ventures, 850 F.3d at 1340; Berkheimer, 881 F.3d at 1366.
Further, we note, analyzing information either by steps that one may perform
in their mind or by mathematical algorithm has also been determined to be
abstract. Elec. Power, 830 F.3d at 1354; see also Digitech Image Techs.,
LLC v. Elec.for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014)
( concluding "a process of organizing information through mathematical
correlations and is not tied to a specific structure or machine" to be abstract);
Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F .3d 1314,
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Application 14/164,862
1324 (Fed. Cir. 2016) (holding that claims are abstract where they "recite
nothing more than the collection of information to generate a 'credit
grading' and to facilitate anonymous loan shopping"). Thus, we agree with
the Examiner that the claims, as a whole, are directed to a combination of
abstract concepts.
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to "significantly more" than
the abstract idea. Alice, 134 S. Ct. at 2355 (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71-72, 77-80 (2012)). The
implementation of the abstract idea involved must be "more than [the]
performance of 'well-understood, routine, [and] conventional activities
previously known to the industry."' Content Extraction, 776 F.3d at 1347-
48 (quoting Alice, 134 S. Ct. at 2359) (alteration in original). "Whether
something is well-understood, routine, and conventional to a skilled artisan
at the time of the patent is a factual determination." Berkheimer, 8 81 F. 3 d at
1369.
We agree with the Examiner that the additional limitations, separately,
or as an ordered combination, do not provide meaningful limitations (i.e., do
not add significantly more) sufficient to transform the abstract idea into a
patent-eligible application. Final Act. 4--5; Ans. 8-9.
Appellants assert, without supporting evidence, "using sensor
information to determine an activity of the vehicle while the user device was
powered off is not well-understood, routine, and conventional in the field of
UBI techniques." App. Br. 13-14. As an initial matter, it is well settled that
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mere attorney arguments and conclusory statements, which are unsupported
by factual evidence, are entitled to little probative value. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399,
1405 ( CCP A 197 4) ( attorney argument is not evidence). The Specification
describes the user devices, vehicle devices, and associated sensors
generically. For example, the user devices may include a smart phone, tablet
computer, or a wearable computing device. Spec. ,r 25. Sensors associated
with a user device ( or vehicle device) may include an accelerometer,
location sensor ( e.g., a GPS sensor), a camera, or an audio sensor. Spec.
,r,r 26, 27. The devices/sensors provide their output to a controller (i.e., "a
microcontroller, a processor, or another processing device") for processing.
Spec. ,r,r 33--44, Figs. 3A, 3B. We agree with the Examiner (see Ans. 8) that
filtering the data collected by the sensors, as discussed above, does not
amount to significantly more than the abstract idea itself.
Appellants' reliance on DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245 (Fed. Cir. 2014) is also unavailing. See App. Br. 11; Reply
Br. 2-3. In DDR, the court concluded the claims were patent eligible under
step two of the Alice because "the claimed solution amount[ ed] to an
inventive concept for resolving [a] particular Internet-centric problem," i.e.,
a challenge unique to the Internet. DDR Holdings, 773 F.3d at 1257-59.
However, according to the Federal Circuit, "DDR Holdings does not apply
when ... the asserted claims do not 'attempt to solve a challenge particular
to the Internet."' Smart Sys. Innovations, 873 F.3d at 1375 (quoting In re
TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016).
Contrary to Appellants' assertions, the claims here do not address a similar
problem and do not contain a similar inventive concept. Nor do we find
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persuasive Appellants' contentions that the claims improve a technical field
(i.e., remotely monitoring activities of a vehicle) or the technical field of
computer networks. App. Br. 12-13; Reply Br. 8-9. Rather, we agree with
the Examiner that the claims "provide a generically computer-implemented
solution to a business-related or economic problem," i.e., predicting driver
behavior for usage-based insurance applications. Ans. 6.
Additionally, to the extent Appellants argue the claims recite features
that confine the claims to a particular application (see App. Br. 14), we agree
with the Examiner that the additional limitations "do not add significantly
more because they are simply an attempt to limit the abstract idea to a
particular technological environment." Ans. 9; see also Intellectual
Ventures, 850 F.3d at 1340 (limiting an invention to a technological
environment for which to apply the underlying abstract concept does not
make an abstract concept any less abstract).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection under 35 U.S.C.
§ 101 of independent claim 1. For similar reasons, we also sustain the
Examiner's rejection of independent claims 8 and 15, which recite similar
limitations and were not argued separately. See App. Br. 9-16; see also
37 C.F.R. § 4I.37(c)(l)(iv) (2015). Additionally, we sustain the Examiner's
rejection of claims 2, 4--7, 9-14, and 16-21, which depend directly or
indirectly therefrom and were not argued separately. See App. Br. 9-16; see
also 37 C.F.R. § 4I.37(c)(l)(iv).
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DECISION
We affirm the Examiner's decision rejecting claims 1, 2, and 4--21
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)(l )(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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