Ex Parte Camp et al

Patent Trials and Appeals Board

Feb 15, 2019

12928253 - (D) (P.T.A.B. Feb. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/928,253 12/06/2010 Garrett Camp
110654 7590 02/20/2019
Mahamedi IP Law LLP (Uber)
910 Campisi Way, Suite IE
Campbell, CA 95008
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.
UP-002 7165
EXAMINER
JOSEPH, TONY A S
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
02/20/2019 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):
uspto@m-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARRETT CAMP, OSCAR SALAZAR,
and TRAVIS KALANICK
Appeal2017-010473 1
Application 12/928,253 2
Technology Center 3600
Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1, 3, 6, 7, 13, 19, 21, 23, 35, and 36. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
January 30, 2017) and Reply Brief ("Reply Br.," filed August 4, 2017), and
the Examiner's Answer ("Ans.," mailed June 7, 2017) and Final Office
Action ("Final Act.," mailed July 28, 2016).
2 Appellants identify Uber Technologies, Inc. as the real party in interest.
App. Br. 3.
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Application 12/928,253
CLAIMED INVENTION
Appellants' claimed invention "pertain[ s] generally to a system and
method for operating a service to arrange transport between a customer and
a transport party" (Spec. ,r 2).
Claim 1, reproduced below with bracketed notations added, is the sole
independent claim and representative of the claimed subject matter:
1. A computer-implemented method for operating one
or more servers to provide a service to arrange transport, the
method:
(a) communicating with a plurality of mobile
computing devices in a designated region, wherein each mobile
computing device in a first set of the plurality of mobile
computing devices is operated by a corresponding driver for the
service, and wherein each mobile computing device in a second
set of the plurality of mobile computing devices is operated by a
corresponding customer for the service;
(b) determining, from communicating with the
plurality of mobile computing devices, one or more market
conditions at a given duration of time for the designated region
based at least in part on a determined demand for drivers of the
service operating the first set of mobile computing devices, by
customers of the service operating the second set of mobile
computing devices;
( c) arranging transport for individual customers for the
service, including:
[ ( c 1)] detecting a request for transport from a
customer operating a customer mobile computing device
of the second set, the transport request being generated
through execution of a service application on the customer
mobile computing device and including position
information corresponding to a pickup location
determined from a Global Positioning System ("GPS")
resource of the customer mobile computing device;
[(c2)] selecting a driver for the transport, the driver
being associated with a driver account and a driver mobile
computing device of the first set on which a driver service
application is executing;
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[(c3)] when the transport is taking place, receiving
position information from the service application of the
driver mobile computing device, the service application of
the driver mobile computing device using a GPS resource
to determine the position information;
[ ( c4)] detecting when the transport is over from
either the customer or driver mobile computing device;
[ ( c5)] upon detecting the transport is over,
determining a dropoff location of the customer from
position information communicated by the customer or the
driver mobile computing device;
[ ( c6)] automatically determining a set of payment
parameters for the transport based on position information
communicated from the customer or driver mobile
computing device, the set of payment parameters
including (i) a distance traveled during the transport as
between the pickup location and the drop-off location, (ii)
a time of travel for the transport, and (iii) presence of any
tolls during the transport;
[ ( c7)] calculating a fare for the transport using a
methodology that is used to calculate fares for transport
provided by any of the drivers operating mobile
computing devices of the first set, to individual customers
of the service operating mobile computing devices of the
second set, the methodology determining the fare based on
the payment parameters and the market condition;
[ ( c8)] providing information of the fare to the
customer mobile computing device and the driver mobile
computing device;
[ ( c9)] accessing an account of the customer in order
to transfer funds corresponding to the fare to an account of
the service; and
[ ( c 10)] transferring funds corresponding to a
portion of the funds received from the customer to an
account associated with the driver.
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REJECTIONS
Claims 1, 3, 6, 7, 13, 19, 21, 23, 35, and 36 are rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
Claims 1, 3, 6, 7, 13, 19, and 23 are rejected under 35 U.S.C. § I03(a)
as unpatentable over Felt et al. (US 2011/0099040 Al, pub. Apr. 28, 2011)
("Felt"), Jun (US 2004/0112959 Al, pub. June 17, 2004), Salemme et al.
(US 2009/0099971 Al, pub. Apr. 16, 2009) ("Salemme"), Dinkin et al.
(US 6,591,253 B 1, iss. July 8, 2003) ("Dinkin"), Sugahara et al.
(US 2004/0254717 Al, pub. Dec. 16, 2004), Golla (US 2010/0243724 Al,
pub. Sept. 30, 2010), and Spaur et al. (US 2004/0185842 Al, pub. Sept. 23,
2004) ("Spaur").
Claims 21 and 36 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Felt, Jun, Salemme, Dinkin, Sugahara, Golla, Spaur, and
Official Notice.
ANALYSIS
Patent-Ineligible Subject Matter
Appellants argue the pending claims as a group (App. Br. 6-16). We
select independent claim 1 as representative. The remaining claims stand or
fall with claim 1. See 37 C.F.R. §4I.37(c)(l)(iv).
Under 35 U.S.C. § 101, 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 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. v. CLS Bank Int 'l, 573 U.S.
208,216 (2014).
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The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (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 Corp., 573 U.S. at 217.
The first step in that analysis is to "determine whether the claims at issue are
directed to one of those patent-ineligible concepts." Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, 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. Therefore, the Federal Circuit has
instructed that claims are to be considered in their entirety to determine
"whether their character as a whole is directed to excluded subject matter."
McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299, 1312
(Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015)).
We are not persuaded, as an initial matter, by Appellants' arguments
the Examiner erred in determining that claim 1 is directed to an abstract idea
(App. Br. 7-13). The Federal Circuit has explained that "the 'directed to'
inquiry applies a stage-one filter to claims, considered in light of the
[S]pecification, based on whether 'their character as a whole is directed to
excluded subject matter."' Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
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1335 (Fed. Cir. 2016) (quoting Internet Patents Corp., 790 F.3d at 1346). It
asks whether the focus of the claims is on a specific improvement in relevant
technology or on a process that itself qualifies as an "abstract idea" for
which computers are invoked merely as a tool. See id. at 1335-36.
The Specification here is entitled "SYSTEM AND METHOD FOR
OPERATING A SERVICE TO ARRANGE TRANSPORT BETWEEN A
CUSTOMER AND A TRANSPORT PARTY." The Background section of
the Specification discloses that current fleet management systems employed
for taxi and limousine fleet typically use onboard metering devices, radios,
and cell phones to dispatch drivers and monitor fares, and that these systems
typically are not communicative to customers who are waiting for pickup
(Spec. ,r 3). The Specification also describes that little information is
tracked about individual fares, and that these conventional approaches also
rely on customers making payment directly to the driver, by credit card or
cash (id.).
The claimed invention is ostensibly intended to improve upon these
systems by enabling a customer to transmit a request for transport using a
mobile device and, after the request has been accepted by a vehicle driver, to
automatically receive updates regarding the driver's location and other
relevant information (id. ,r,r 12, 15). Once the transport is completed, a fare
is calculated and funds corresponding to the fare are transferred, from the
customer account associated with the mobile device, to an account of the
transport service; a portion of the funds are then transferred to an account
associated with the driver (id. ,r,r 18, 34). Understood in light of the
Specification, we agree with the Examiner that claim 1 is directed to
booking a taxi - to a commercial interaction, which is a method of
organizing human activities and, therefore, an abstract idea (Final Act. 2).
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We find no indication in the Specification, nor do Appellants direct us
to any indication, that the operations recited in claim 1 invoke any assertedly
inventive programming, require any specialized computer hardware or other
inventive computer components, or that the claimed invention is
implemented using other than generic computer components to perform
generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256 (Fed. Cir. 2014) ("[A]fter Alice, there can remain no
doubt: recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible."). We also find no indication in the
Specification that the claimed invention effects a transformation or reduction
of a particular article to a different state or thing. Nor do we find anything
of record, short of attorney argument, that attributes any improvement in
technology and/or a technical field to the claimed invention or that otherwise
indicates that the claimed invention integrates the abstract idea into a
"practical application," as that phrase is used in the USPTO's "2019 Revised
Patent Subject Matter Eligibility Guidance," 84 Fed. Reg. 50, 55 (January 7,
2019). 3
3 In accordance with the USP TO' s revised guidance, a claim will be
considered "directed to" an abstract idea if ( 1) the claim recites subject
matter falling within one of the following groupings of abstract ideas: (a)
mathematical concepts; (b) certain methods of organizing human
interactions, e.g., fundamental economic principles or practices, commercial
or legal interactions; and ( c) mental processes, and (2) the claim does not
integrate the abstract idea into a practical application. See Revised
Guidance, 84 Fed. Reg. at 54--55. "A claim that integrates a judicial
exception into a practical application will apply, rely on, or use the judicial
exception in a manner that imposes a meaningful limitation on the judicial
exception, such that the claim is more than a drafting effort designed to
monopolize the judicial exception." Id. at 54.
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Appellants argue that the Examiner has overgeneralized the claims
and that the Examiner's characterization of the claimed invention as directed
to the abstract idea of booking a taxi is "untethered from the claim language
and ignores the requirements of the individual limitations/steps" (App.
Br. 8). Appellants' argument is not persuasive at least because there is no
requirement that the Examiner's formulation of the abstract idea copy the
claim language. The Examiner's characterization here, moreover, is fully
consistent with the Specification. That claim 1 includes more words than the
phrase the Examiner used to articulate the abstract idea to which the claim is
directed is an insufficient basis to persuasively argue that the claim language
has been mischaracterized or that the Examiner has otherwise failed to
consider all of the limitations of the claim. See Apple, Inc. v. Ameranth,
Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016) ("An abstract idea can generally
be described at different levels of abstraction. As the Board has done, the
claimed abstract idea could be described as generating menus on a computer,
or generating a second menu from a first menu and sending the second menu
to another location. It could be described in other ways, including, as
indicated in the specification, taking orders from restaurant customers on a
computer.").
Appellants further assert that "even at the initial step of the Alice
analysis, it is relevant to ask whether the invention is 'directed to an
improvement to computer functionality versus being directed to an abstract
idea"' (App. Br. 8). And Appellants argue that the§ 101 rejection should be
reversed because the Examiner "performed no such inquiry" (id.). Yet,
Appellants do not identify any improvement in computer functionality that
purportedly can be attributed to the claimed invention.
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We also are not persuaded of Examiner error by Appellants' argument
that claim 1 is not directed to an abstract idea because the claim raises no
preemption issues (id. at 9). There is no dispute that the Supreme Court has
described "the concern that drives [the exclusion of abstract ideas from
patent eligible subject matter] as one of pre-emption." Alice Corp., 573 U.S.
at 216. But characterizing preemption as a driving concern for patent
eligibility is not the same as characterizing preemption as the sole test for
patent eligibility. "The Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to patentability" and "[fJor
this reason, questions on preemption are inherent in and resolved by the
§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice Corp., 134 S. Ct. at 2354).
"[P]reemption may signal patent ineligible subject matter, [but] the absence
of complete preemption does not demonstrate patent eligibility." Id.
Contrary to Appellants' assertion, we also find no parallel between
claim 1 and the claims at issue in DDR Holdings. In DDR Holdings, the
claims were directed to retaining website visitors, and in particular to a
system that modified the conventional web browsing experience by directing
a user of a host website who clicks an advertisement to a "store within a
store" on the host website, rather directing the user to the advertiser's third-
party website. DDR Holdings, 773 F.3d at 1257-1258. The court
determined "the claims address a business challenge (retaining website
visitors) [that] is a challenge particular to the Internet." Id. at 1257. The
court also determined that the invention was "necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks," and that the claimed invention did not simply use
computers to serve a conventional business purpose. Id. Rather, there was a
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change to the routine, conventional functioning of Internet hyperlink
protocol. Id.
Appellants argue that, like the claims in DDR Holdings, claim 1 "does
not 'broadly and generically claim 'use of the Internet' to perform [an]
abstract business practice"'; instead, according to Appellants, "claim 1
recites specific technological steps taken to yield a desired result that
'overrides the routine and convention[al] sequence of events"' (App. Br. 10).
Appellants, thus, maintain that claim 1 recites specific steps rooted in
technology, i.e., steps (cl), (c3), (c4), and (c5) and steps (b), (c6), and (c7)
(which Appellants characterize as unique and non-routine steps for
determining a fare for the transport service), that are neither applicable nor
feasible in a "conventional taxi-booking service" (id. at 10-11 ).
Although Appellants appear to be arguing otherwise, the court did not
conclude in DDR Holdings that the claims were patent-eligible merely
because the claims did not recite the performance of a business practice
known from the pre-Internet world along with the requirement to perform it
on the Internet. The claims also were not held patent-eligible merely
because they required computing devices or because the claims themselves
were detailed or involved the use of technology. Instead, the Federal Circuit
held that the claims were directed to patent-eligible subject matter because
they claimed a solution "necessarily rooted in computer technology in order
to overcome a problem specifically arising in the realm of computer
networks," i.e., retaining website visitors who, if adhering to the routine,
conventional functioning of Internet hyperlink protocol, would be
transported instantly away from a host's website after "clicking" on an
advertisement and activating a hyperlink. DDR Holdings, 773 F.3d at 1257.
The court, thus, expressly cautioned that "not all claims purporting to
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address Internet-centric challenges are eligible for patent." Id. at 1258. And
the court contrasted the claims to those at issue in Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709 (Fed. Cir. 2014), in that, in DDR Holdings, the computer
network was not operating in its "normal, expected manner" and the claims
did not "recite an invention that is ... merely the routine or conventional use
of the Internet." Id. at 1258-59.
Here, we do not find, and Appellants do not identify, any analogous
modification to the routine and conventional functioning of computer
network technology. At best, the claimed invention appears to use generic
computer components ( e.g., one or more servers and mobile computing
devices ( claim 1 )) to perform an abstract business practice (i.e., booking a
transport, e.g., taxi service).
Appellants assert the claimed invention, as recited in claim 1, is
rooted in technology, and represents a technological improvement over
conventional systems/approaches (App. Br. 10-13). Appellants, thus, point,
for example, to steps ( c 1 ), ( c3), and ( c5), as recited in claim 1, and argue that
these steps "result in tangible improvements over conventional taxi booking
services" (id. 10-11 ( citing Spec. ,r 16 ("Among other benefits,
embodiments recognize that transport services often have vehicles that have
down-time because they are between fares .... When the
drivers/respondents are free (e.g., between fares), they can operate the
program on their devices to field transport requests."))). But, we are not
persuaded that these alleged improvements are technological improvements,
as opposed to improvements in a business practice, i.e., booking a taxi.
Turning to step two of the Mayo/Alice framework, Appellants argue
that even if claim 1 is directed to an abstract idea, the claim is nonetheless
patent-eligible because claim 1 amounts to significantly more than the
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alleged abstract idea of "booking a taxi"; Appellants maintain that this is so
at least because claim 1 is "tied to a specific and unique structure" (App.
Br. 14). More particularly, Appellants assert that claim 1 recites "a specific
network architecture including one or more servers, customer mobile
computing devices, and driver mobile computing devices communicating
with one another to enable and facilitate a transport service," and that the
benefits of claim 1 over conventional approaches are possible because of the
specific network architecture recited in claim 1 (id. at 14--15). Appellants,
thus, maintain that "the solution recited in claim 1 is 'narrowly
circumscribed to the particular' network architecture described in claim 1
and serves to improve the performance of the system itself' (id. at 15).
Appellants ostensibly rely on Amdocs (Israel) Ltd. v. Openet Telecom,
Inc., 841 F.3d 1288 (Fed. Cir. 2016) for support. But we can find no parallel
between claim 1 and the claim at issue in Amdocs. In Amdocs, the Federal
Circuit held the claim was patent eligible because the claim entails an
unconventional technological solution ( enhancing data in a distributed
fashion) to a technological problem (massive record flows which previously
required massive databases). Although the solution requires generic
components, the court determined that "the claim's enhancing limitation
necessarily requires that these generic components operate in an
unconventional manner to achieve an improvement in computer
functionality" and that the "enhancing limitation depends not only upon the
invention's distributed architecture, but also depends upon the network
devices and gatherers - even though these may be generic - working
together in a distributed manner." Amdocs, 841 F.3d at 1300--01.
Appellants have not identified any similar "distributed architecture" nor
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otherwise established that the generic components recited in claim 1 operate
in an unconventional manner.
Finally, to the extent Appellants maintain that the claimed invention is
patent-eligible, i.e., that claim 1 amounts to "significantly more" than an
abstract idea, because the claim is allegedly novel and/or non-obvious in
view of the prior art (App. Br. 18-19), Appellants misapprehend the
controlling precedent.
Neither a finding of novelty nor a non-obviousness determination
automatically leads to the conclusion that the claimed subject matter is
patent-eligible. Although the second step in the Mayo/Alice framework is
termed a search for an "inventive concept," the analysis is not an evaluation
of novelty or non-obviousness, but rather, a search for "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., 573 U.S. at 217-18 ( citation omitted).
"Groundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry." Ass 'n for Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and non-obvious claim
directed to a purely abstract idea is, nonetheless, patent-ineligible. See
Mayo, 566 U.S. at 90; see also Diamond v. Diehr, 450 U.S. 175, 188-89
( 1981) ("The 'novelty' of any element or steps in a process, or even of the
process itself, is of no relevance in determining whether the subject matter of
a claim falls within the§ 101 categories of possibly patentable subject
matter.").
We are not persuaded, on the present record, that the Examiner erred
in rejecting claim 1 under 35 U.S.C. § 101. Therefore, we sustain the
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Examiner's rejection of claim 1, and claims 3, 6, 7, 13, 19, 21, 23, 35, and
36, which fall with claim 1.
Obviousness
Independent Claim 1 and Dependent Claims 3, 6, 7, 13, 19, and 23
We are persuaded by Appellants' argument that the Examiner erred in
rejecting claim 1 under 35 U.S.C. § 103(a) at least because Dinkin, on which
the Examiner relies, fails to disclose or suggest
determining, from communicating with the plurality of mobile
computing devices, one or more market conditions at a given
duration of time for the designated region based at least in part
on a determined demand for drivers of the service operating the
first set of mobile computing devices, by customers of the service
operating the second set of mobile computing devices[,]
as recited in claim 1 (App. Br. 24--25; see also Reply Br. 8-9).
Dinkin is directed to a "method and system for controlling the
purchase of fine-grained resource purchases, such as utility resources or
access to limited highway lanes" (Dinkin, Abstract), and discloses a
highway system, with reference to Figure 3, including southbound lanes 60,
northbound lanes 62, and high occupancy vehicle ("HOV") lanes 64 (id.
at col. 5, 11. 31-33). Dinkin discloses, at column 5, lines 34--40 and 44--50,
cited by the Examiner, that the amount of traffic within HOV lanes 64 is
periodically and dynamically determined using traffic sensors 66 and 68,
which detect the number of vehicles passing over a roadway surface during a
specific period of time, and when HOV lanes 64 are underutilized, the lanes
may be opened to nonqualified vehicles.
Dinkin further discloses that "it is important that the utilization of
these lanes be priced dynamically based upon the amount of additional
traffic desired for these lanes" and that an access charge is calculated based
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on various traffic models and the traffic load present within HOV lanes 64
(id. at col. 5, 11. 51-60). But, we find nothing in the cited portions of Dinkin
that discloses or suggests determining, from communicating with a plurality
of mobile computing devices, market conditions at a given duration of time
for a designated region based on a determined demand for drivers operating
a first set of mobile computing devices, by customers operating a second set
of mobile computing devices, as called for in claim 1.
Therefore, we do not sustain the Examiner's rejection of claim 1
under 35 U.S.C. § 103(a). For the same reasons, we also do not sustain the
rejection of dependent claims 3, 6. 7, 13, 19, and 23. Cf In re Fritch,
972 F.2d 1260, 1266 (Fed. Cir. 1992) ("dependent claims are nonobvious if
the independent claims from which they depend are nonobvious").
Dependent Claims 21 and 3 6
The Examiner's rejection of dependent claims 21 and 3 6 does not cure
the deficiency in the Examiner's rejection of independent claim 1.
Therefore, we do not sustain the Examiner's rejection under 35 U.S.C.
§ 103 (a) of claims 21 and 3 6 for the same reasons set forth above with
respect to claim 1.
DECISION
The Examiner's rejection of claims 1, 3, 6, 7, 13, 19, 21, 23, 35, and
36 under 35 U.S.C. § 101 is affirmed.
The Examiner's rejections of claims 1, 3, 6, 7, 13, 19, 21, 23, and 36
under 35 U.S.C. § 101 are reversed.
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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)(l )(iv).
AFFIRMED
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