Ex Parte Barillec et al

Patent Trial and Appeal Board

Jun 29, 2018

12661527 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/661,527 03/18/2010 Vincent Barillec
132326 7590 07/03/2018
Thompson Hine LLP
10050 Innovation Drive
Suite 400
Dayton, OH 45342-4934
UNITED ST A TES OF AMERICA
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.
PT1145USOO 2936
EXAMINER
JOSEPH, TONY A S
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT BARILLEC and ANTHONY DEBARGE
Appeal2017-003531
Application 12/661,527 1
Technology Center 3600
Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and
BART A. GERSTENBLITH, 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's
final rejection of claims 1-8, 13-20, 22-25, 27, and 28. We have
jurisdiction under 35 U.S.C. § 6(b ).
SUMMARY OF DECISION
We AFFIRM.
1 Appellants identify Amadeus S.A.S. as the real party in interest. Appeal
Br. 3.
Appeal2017-003531
Application 12/661,527
THE INVENTION
Appellants claim a customer seating system for allocating seats to a
group of customers using a computer system (Spec. 1: 1-2).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. An automated customer seating system for allocating seats
to a group of customers, the customer seating system comprising:
a memory storing a database, said database comprising a
plurality of sets of predetermined geometric shapes, wherein
each of the sets of predetermined geometric shapes corresponds
to a different number of customers, and each of the
predetermined geometric shapes corresponds to a different
arrangement of seats;
a processor; and
a computer program stored in a non-transitory computer-
readable medium, wherein execution of the computer program
by the processor causes the system to:
for each available seat of a plurality of availability seats:
calculate a plurality of customer satisfaction values
for the respective available seat, each of the customer satisfaction
values calculated for the respective available seat being for a
different customer of a first group of customers, and
compute a global satisfaction value for the
respective available seat, said global satisfaction value for the
respective available seat being the sum of the customer
satisfaction values calculated for the respective available seat,
select a particular geometric shape from the set of
predetermined geometric shapes that is stored in the database and
that corresponds to the number of customers in the first group of
customers based at least in part on the number of customers in
the first group of customers,
identify one or more groups of seats that are included in
the available seats and that match the arrangement of seats
corresponding to the particular geometric shape,
for each of the one or more identified groups of seats,
compute an average global satisfaction value based on the global
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satisfaction value computed for each of the seats of the respective
identified group of seats,
select the group of seats of the one or more identified
groups of seats that corresponds to a maximum average global
satisfaction value, and
assign the seats of the selected group of seats to the first
group of customers.
THE REJECTION
The following rejection is before us for review.
Claims 1-8, 13-20, 22-25, 27, and 28 are rejected under 35 U.S.C.
§ 101 because the claimed invention is directed to non-statutory subject
matter because the claimed invention is directed to a judicial exception (i.e.,
a law of nature, a natural phenomenon, or an abstract idea) without
significantly more.
ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 1-8, 13-20, 22-25, 27, and 28
under 35 U.S.C. § 101.
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, "[ w ]hat 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
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that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself."
Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73
(2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept.
Although the Court in Alice made a direct finding as to what the
claims were directed to, we determine that this case's claims themselves and
the Specification provide enough information to inform one as to what they
are directed to.
The steps in claim 1 result in:
for each of the one or more identified groups of seats,
compute an average global satisfaction value based on the global
satisfaction value computed for each of the seats of the respective
identified group of seats,
select the group of seats of the one or more identified
groups of seats that corresponds to a maximum average global
satisfaction value, and
assign the seats of the selected group of seats to the first
group of customers.
The Examiner found that the claims are directed to an abstract idea of
assigning seats to customers. (Final Act. 2). The Examiner further found
that assigning seats falls into the categories of "(ii) a method of organizing
human activities, [and] (iii) an idea of itself." Id. The Specification states:
There is therefore a need to provide an automated
computerized system that is configured to allocate seats for
groups of costumers, while taking their preferences as
individuals and as a group into account, and further while
respecting the requirements such as weight distribution of the
specific aircraft.
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Spec. 2:6-9. The Specification describes:
For each rule to be respected, a value is determined as a
function of the correspondence to the placement criteria for a
given passenger in each seat. Each seat will then have a
passenger satisfaction value for each rule. These values are added
together for each seat and a global mark representing available
seats with all rules taken into account is provided. The highest
value is translated to the best seat to assign to that given
passenger.
Spec. 6:21-27. Thus, all this evidence shows that claim 1 is directed to
calculating a maximum average global satisfaction value used to assign the
seats of allocated seats to a group of customers. 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.
Calculating a maximum average global satisfaction value used to assign the
seats of allocated seats to a group of customers is a method of organizing
human behavior, because it controls where a person sits him or herself in a
given seating arrangement. The patent-ineligible end of the 35 U.S.C. § 101
spectrum includes methods of organizing human activities. See Alice Corp.
Pty. Ltd., 134 S. Ct. at 2355-56.
Also, we find the steps of:
1. "calculat[ing] a plurality of customer satisfaction values for the
respective available seat, each of the customer satisfaction
values calculated for the respective available seat being for a
different customer of a first group of customers,"
11. "comput[ing] a global satisfaction value for the respective
available seat, said global satisfaction value for the respective
available seat being the sum of the customer satisfaction values
calculated for the respective available seat," and
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111. "select[ing] a particular geometric shape from the set of
predetermined geometric shapes that is stored in the database
and that corresponds to the number of customers in the first
group of customers based at least in part on the number of
customers in the first group of customers",
constitute "analyzing information by steps people go through in their minds,
or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category." Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016); see also buySAFE, Inc.
v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (claims directed to
certain arrangements involving contractual relations are directed to abstract
ideas). Thus, calculating a maximum average global satisfaction value used
to assign the seats of allocated seats to a group of customers is an "abstract
idea" beyond the scope of § 101.
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 an intermediated settlement in Alice and the concept
of calculating a maximum average global satisfaction value used to assign
the seats of allocated seats to a group of customers, at issue here. Both are
squarely within the realm of "abstract ideas" as the Court has used that term.
That the claims do not preempt all forms of the abstraction or may be limited
to airline seating, does not make them any less abstract. See OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1360-61 (Fed. Cir. 2015).
Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, transmission, and
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linkage and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims not abstract because
they "focused on a specific asserted improvement in computer animation").
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
[T]he 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 "implemen[ t ]" an abstract idea
"on . . . a computer," that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly generic computer implementation is not
generally the sort of "additional featur[ 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) (internal
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." Id. 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 retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval---one of
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the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
industry. See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1354; see also In re
Katz Interactive Call Processing Patent Litig, 639 F.3d 1303, 1316 (Fed.
Cir. 2011) ("Absent a possible narrower construction of the terms
'processing,' 'receiving,' and 'storing,' ... those functions can be achieved
by any general purpose computer without special programming"). In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, "even if a process of
collecting and analyzing information is 'limited to particular content' or a
particular 'source,' that limitation does not make the collection and analysis
other than abstract." SAP Am. Inc. v. InvestPic, LLC, 890 F.3d 1016, 1022
(Fed. Cir. 2018) (internal citation omitted).
Considered as an ordered combination, the computer components of
Appellants' method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
access/ display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (sequence of receiving, selecting, offering for exchange, display,
allowing access, and receiving payment recited an abstraction), Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (sequence of data retrieval, analysis, modification, generation, display,
and transmission), Two-Way Media Ltd. v. Comcast Cable Commc 'ns, LLC,
874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is, therefore,
ordinary and conventional.
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The method 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. The Specification spells out
different generic equipment and parameters that might be applied using this
concept and the particular steps such conventional processing would entail
based on the concept of information access under different scenarios. See,
e.g., Spec. 5: 10-16. The Specification does not describe any particular
improvement in the manner a computer functions, at least with respect to the
claims in the instant application. Instead, the claims at issue amount to
nothing significantly more than instructions to apply the abstract idea of
information access using some unspecified, generic computer. 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.
As to the system claims, they
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 "warn[ ed] ... against" interpreting § 101 "in ways that
make patent eligibility 'depend simply on the draftsman's art."'
Id. (alterations in original).
We have reviewed all the arguments (Appeal Br. 7-22) Appellants
have submitted concerning the patent eligibility of the claims before us that
stand rejected under 35 U.S.C. § 101. We find that our analysis above
substantially covers the substance of all the arguments, which have been
made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
Appellants argue:
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In this case, the Examiner initially asserted that the
pending claims were directed to the abstract idea of "assigning
seats to customers and a method of organizing human activities"
in the Office Action dated September 12, 2014. See Office
Action dated 9-12-2014, pg. 3. This assertion was entirely
conclusory, as the Examiner failed to provide any explanation for
the assertion.
Appeal Br. 9.
We disagree with Appellants. In rejecting the pending claims under
§ 101, the Examiner analyzed the claims using the Mayo/Alice two-step
framework, consistent with the guidance set forth in the USPTO' s 2014
INTERIM GUIDANCE ON p ATENT SUBJECT MATTER ELIGIBILITY. See Final
Act. 4--5. Specifically, the Examiner notified Appellants that the claims are
broadly directed to "assigning seats to customers." Id. at 4. The Examiner
determined that the concept is "(ii) a method of organizing human activities,
[and] (iii) an idea of itself." Id. Turning to step two, the Examiner
determined "[ t ]he additional elements or combination of elements in the
claims other than the abstract idea per se amounts to no more than the
recitation of generic computer structure that serves to perform generic
computer functions that are well-understood." Id. at 5.
Appellants further argue,
Such a vague definition of the alleged abstract idea fails to
give Appellant sufficient notice of the reasons of
ineligibility so as to enable Appellant to respond, resulting
in a burden of proving that the present claims are not
directed to any abstract idea being unduly placed on
Appellant. See In re Oetiker, 977 F.2d 1433, 1445 (Fed.
Cir. 1992) ("If examination at the initial stage does not
produce a prima facie case of unpatentability, then without
more the applicant is entitled to grant of the patent"); see
also MPEP 707.07(d) ("The burden is on the Office to
establish any prima facie case of unpatentability ... , thus
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the reasoning behind any rejection must be clearly
articulated").
Appeal Br. 10.
We disagree with Appellants. All that is required of the Office to
meet its prima facie burden of production is that the Examiner set forth the
statutory basis of the rejection and the reference or references relied upon in
a sufficiently articulate and informative manner as to meet the notice
requirement of 35 U.S.C. § 132. As the statute itself instructs, the examiner
must "notify the applicant," "stating the reasons for such rejection,"
"together with such information and references as may be useful in judging
the propriety of continuing prosecution of his application." 35 U.S.C. § 132;
see In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). Here, as we found
above, the Examiner has made these findings as required by the statute. See
Final Act. 4-5.
Appellants argue, "if an abstract idea to which claims are directed
includes not just the abstract idea in general but also 'the specific type of
way [the abstract idea is claimed] in each claim', then practically every
claim directed to an abstract idea would not include 'significantly more."'
(Appeal Br. 10).
We disagree with Appellants. The specific way an abstract idea is
claimed does not make abstraction any less abstract because a claim for a
new abstract idea is still an abstract idea. See Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (citing Mayo, 566
U.S. at 90).
Appellants argue, "[i]f, as the Examiner suggests, an identified
abstract idea includes the specific way in which the abstract idea is
performed in the claim in addition to the abstract idea in general, then the
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claim in Bascom could not have been found to be 'significantly more' than
the alleged abstract idea." (Appeal Br. 10-11).
We disagree with Appellants. In Bascom the Court found that:
the claims of the '606 patent are directed to the abstract idea of
filtering content, BASCOM has adequately alleged that the
claims pass step two of Alice's two-part framework. BASCOM
has alleged that an inventive concept can be found in the ordered
combination of claim limitations that transform the abstract idea
of filtering content into a particular, practical application of that
abstract idea.
Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,
1352 (Fed. Cir. 2016). To the contrary) as we found supra, nothing in the
claims before us passes step two of the Alice two-part test; namely, we found
that when considered as an ordered combination, the computer components
of Appellants' claims add nothing that is not already present when the steps
are considered separately.
Appellants argue, "Similar to the claims in Enfish) the Examiner's
asse1iion that the present claims are merely directed to 'assigning seats to
customers' amounts to a description that is untethered form the language of
the claims.'' (Appeal Br. 12).
We disagree with Appellants. The court in Enfish framed the question
as "whether the focus of the claims is on [a] specific asserted improvement
in computer capabilities ... or, instead, on a process that qualifies as an
'abstract idea' for which computers are invoked merely as a tool." Enfzsh,
LLC v. Microsoft Corp., 822 F.3d 1327, 1335-1336 (Fed. Cir. 2016). Here,
as found supra, we find nothing in the claims that is directed to an
improvement in computer capabilities.
Appellants further argue,
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As an initial manner, the present claims are completely unrelated
to the conscious thoughts of a physician, and for this reason alone
should not be found to be directed to an abstract idea based on
SmartGene. Furthermore, the specific computer implementation
for assigning groups of passengers to seats while taking their
preferences as individuals and as a group into account that is
provided by the present claims also cannot be said as a matter of
fact to be a familiar part of the conscious process that travel
agents can and do perform in their heads.
(Appeal Br. 13).
We disagree with Appellants. First, automation to reduce the burden
on the user of what once could have been done with pen and paper, does not
qualify a mental process for patent eligibility. See CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011). Second, the
subject matter of mental thought cannot distinguish one mental process from
another because an abstraction does not change its essence because of its
subject matter, and a claim for a new abstract idea is still an abstract idea.
See Synopsys, Inc., 839 F.3d at 1151. Also, "[a]n abstract idea can generally
be described at different levels of abstraction." Apple, Inc. v. Ameranth,
Inc., 842 F.3d 1229, 1240-1241 (Fed. Cir. 2016). Limiting a process to
particular content does not make the collection and analysis other than
abstract. See SAP Am. Inc., 890 F.3d at 1022.
Appellants argue,
[T]the Examiner has failed to sufficiently show that ' [ t ]he
additional elements or combination of elements in the claims
other than the abstract idea per se amounts to no more than the
recitation of generic computer functions that are well-
understood, routine, and conventional activities previously
known to the pertinent industry'.
(Appeal Br. 15).
We disagree with Appellants. The Examiner found, "the recited
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memory, processor, medium, and database are merely generic devices used
to implement an abstract idea on a computer." (Answer 4). We agree with
the Examiner here because claim 1, for example, only generically requires "a
processor," "a memory," and "a computer program stored in a non-transitory
computer-readable medium, wherein execution of the computer program by
the processor causes the system to [perform certain steps]." Thus, the claim
speaks for itself. See Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d
1575, 1578 (Fed. Cir. 1996).
Furthermore, the Examiner cited to prior court decisions in support of
his findings. Answer 2-3. In so doing, the Examiner found, "[t]he claims
are similar to concepts found ineligible in: SmartGene v. Advanced
Biological Labs. No. 2013-1186 (Fed. Cir. Jan. 24, 2014). buySAFE, Inc. v.
Google, Inc., 765 F.3d 1350, 112 U.S.P.Q. 2d 1093 (Fed. Cir. 2014)." Id. at
2. These prior court decisions adequately support this finding to satisfy the
requirement to set forth a prima facie case of unpatentability under 3 5
U.S.C. § 101. Thus, we find the Examiner's findings of generic nature of
the component parts recited in the claims provides sufficient evidence of a
generic computer system used to implement the abstraction. See Credit
Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1057 (Fed. Cir. 2017)
("Significantly, the claims do not provide details as to any non-conventional
software for enhancing the financing process"). See Intellectual Ventures I
LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017)
(explaining that "[ o ]ur law demands more" than claim language that
"provides only a result-oriented solution, with insufficient detail for how a
computer accomplishes it").
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Appellants argue, "the present claims set forth a specific combination
of computer features and functions that improves upon the conventional
activity previously engaged by those in the field, namely, the practice of
manually assigning seats to passengers or programming computers to merely
select and assign the next available seat." (Appeal Br. 20).
We disagree with Appellants. As found supra, considered as an
ordered combination, the computer components of Appellants' method add
nothing that is not already present when the steps are considered separately.
Also, the question here is whether the claims as a whole "focus on a specific
means or method that improves the relevant technology" or are "directed to
a result or effect that itself is the abstract idea and merely invoke generic
processes and machinery." McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314 (Fed. Cir. 2016). In this case, the claims as a whole are
focused on satisfying certain contingencies for "assign[ing] the seats of the
selected group of seats to the first group of customers," which is a result or
effect, and not an improvement in the technology of how a processor,
memory, and program works.
CONCLUSION OF LAW
We conclude the Examiner did not err in rejecting claims 1-8, 13-20,
22-25, 27, and 28 under 35 U.S.C. § 101.
DECISION
The decision of the Examiner to reject claims 1-8, 13-20, 22-25, 27,
and 28 is affirmed.
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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
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