Ex Parte Chang et al

Patent Trial and Appeal Board

Dec 17, 2018

14244665 (P.T.A.B. Dec. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/244,665 04/03/2014
108982 7590 12/19/2018
Wolfe-SBMC
116 W. Pacific A venue
Suite 200
Spokane, WA 99201
FIRST NAMED INVENTOR
WalterW. Chang
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.
3922US01 6058
EXAMINER
JACKSON, JAKIEDA R
ART UNIT PAPER NUMBER
2657
NOTIFICATION DATE DELIVERY MODE
12/19/2018 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):
docket@sbmc-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte WALTER W. CHANG, EMRE DEMIRALP,
SHANTANU KUMAR, and SHANSHAN XIA
Appeal 2018-004378
Application 14/244, 665 1
Technology Center 2600
Before TERRENCE W. McMILLIN, KARA L. SZPONDOWSKI, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which constitute all of the claims pending in
this Application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Adobe Systems Incorporated as the real party in
interest. App. Br. 3.
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Application 14/244,665
THE INVENTION
The disclosed and claimed invention is directed to "[ c ]ontextual
sentiment text analysis." Spec. ,r 5. 2
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. In a digital medium environment including at least one
computing device implementing a sentiment analysis
application performing sentiment analysis of a sentence in an
electronic text data format, a method, comprising:
receiving, by a word type tagging module of the
sentiment analysis application, the sentence as the electronic
text data communicated to the at least one computing device,
the sentence including a sentiment about a subject of the
sentence;
executing a run-time ensemble part-of-speech tagging
system comprising multiple part-of-speech taggers each
providing respective part-of-speech tags for the sentence, the
run-time ensemble voting on the respective part-of-speech tags
from the multiple part-of-speech taggers yielding a plurality of
pre-processed part-of-speech tags;
producing, by the word type tagging module, a two-level
tag structure for the sentence;
analyzing, by a sentiment terms tagging module of the
sentiment analysis application, the electronic text data and the
plurality of pre-processed part-of-speech tags to identify the
sentiment about the subject;
determining, by a sentiment topic model module of the
sentiment analysis application, a topic category of the subject of
the sentence, said determining based on text categorization
2 We refer to the Specification filed Apr. 3, 2014 ("Spec."); Final Office
Action mailed June 1, 201 7 ("Final Act."); Appeal Brief filed Dec. 5, 2017
("App. Br."); Examiner's Answer mailed Jan. 22, 2018 ("Ans."); and the
Reply Brief filed Mar. 20, 2018 ("Reply Br.").
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Application 14/244,665
using text classifiers configured to accept the sentence and
output a plurality of topic categories from which the topic
category is selected;
determining, by the sentiment terms tagging module, a
context of the sentiment as the sentiment pertains to the topic
category of the subject in the sentence;
determining, by the sentiment terms tagging module,
whether the sentiment is positive about the subject or negative
about the subject based on the context of the sentiment within
the topic category of the subject;
annotating, by the sentiment terms tagging module, each
sentiment word as positive or negative in the two-level tag
structure of the sentence;
scoring, by a sentence phrase sentiment scoring module
of the sentiment analysis application, the sentiment according to
whether the sentiment is positive about the subject or negative
about the subject, said scoring including normalizing a
sentence-level score of the sentiment based on a total number of
adjectives, adverbs, and nouns in the sentence; and
storing, in memory, the electronic text data of the
sentence on the at least one computing device for access by a
sentiment metadata output module, the electronic text data
stored in a positive list if the sentiment of the sentence is scored
as a highest scoring positive sentiment, or the electronic text
data stored in a negative list if the sentiment of the sentence is
scored as a highest scoring negative sentiment.
REJECTION
Claims 1-20 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to patent-ineligible subject matter. Final Act.
5.
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We are not persuaded by Appellants' arguments regarding the pending
claims.
Section 101 Re} ection
The Alice/Mayo Framework Governing Patent-Eligible Subject Matter
Patent-eligible subject matter is defined in 35 U.S.C. § 101 of the
Patent Act, which recites: "Whoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title."
There are, however, three judicially created exceptions to the broad
categories of patent-eligible subject matter in § 101: laws of nature, natural
phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134
S. Ct. 2347, 2354 (2014); Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70-71 (2012). Although an abstract idea, itself, is patent-
ineligible, an application of the abstract idea may be patent-eligible. Alice,
134 S. Ct. at 2355. Thus, we must 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." Id. (citing Mayo, 566 U.S. at 79). The claim must contain
elements or a combination of elements that are "sufficient to ensure that the
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patent in practice amounts to significantly more than a patent upon the
[abstract idea] itself." Id. (citing Mayo, 566 U.S. at 79).
The Supreme Court set forth a two-part "framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Id. at
2355.
Id.
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. [Mayo, 566 U.S. at 75-
77]. If so, we then ask, "[ w ]hat else is there in the claims
before us?" Id . .... To answer that question, we 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. Id. [ at 79, 77-78]. We have described step two of
this analysis as a search for an "'inventive concept"'-i.e., an
element or combination of elements that is "sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself." Id. [ at 72-73].
"The 'abstract idea' step of the inquiry calls upon us to 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. v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016)); see also Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed.
Cir. 2016). There is no definitive rule to determine what constitutes an
"abstract idea." Rather, the Federal Circuit has explained that "both [it] and
the Supreme Court have found it sufficient to compare claims at issue to
those claims already found to be directed to an abstract idea in previous
cases." Enfzsh, 822 F.3d at 1334; see also Amdocs (Israel) Ltd. v. Openet
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Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) (explaining that, in
determining whether claims are patent eligible under § 101, "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").
Under the second step of the Alice/Mayo framework, we examine the
claim limitations "more microscopically" (Elec. Power, 830 F.3d at 1354),
to determine whether they contain "additional features" sufficient to
"'transform the nature of the claim' into a patent-eligible application."
Alice, 134 S. Ct. at 2355, 2357 (quoting Mayo, 566 U.S. at 78). "[M]ere
recitation of concrete, tangible components is insufficient to confer patent
eligibility to an otherwise abstract idea. Rather, the components must
involve more than performance of 'well-understood, routine, conventional
activit[ies] previously known to the industry."' In re TL! Commc 'ns LLC
Patent Litig., 823 F.3d 607,613 (Fed. Cir. 2016) (citing Alice, 134 S. Ct. at
2359).
Abstract Idea
The Examiner concludes the claims are directed to "the abstract idea
of analyzing contextual sentiment of text." Final Act. 6-7. Specifically, the
Examiner finds the claims are similar to those in Electric Power, focusing on
"collecting information, analyzing it and displaying certain results of the
collection and analysis." Ans. 6 (citing Elec. Power Group, 830 F.3d at
1353). According to the Examiner, the claims "collect information, which
does not change its character as information," analyze data, which "can be
done by steps that goes through one's mind ... which is essentially mental
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processes within the abstract -idea category," and present results as "an
ancillary part of collection and analysis." Id.
Appellants argue "the claims at issue recite features that specify with
particularity the manner in which contextual sentiment of a sentence is
determined." App. Br. 17; see Reply Br. 7. According to Appellants, claim
1 is directed to "a specific process of analyzing contextual sentiment of text
in a sentence, and includes a technological advantage in that run-time
ensemble voting on part-of-speech tags from multiple part-of-speech taggers
can be done when the vocabulary size makes human review impractical"
which "cannot 'be done by a human' and cannot 'be done by a user' as
alleged by the Office." Id. at 20; see Reply Br. 6. Appellants contend the
claimed invention "significantly increases the part-of-speech tag accuracy
resulting in improved accuracy of sentiment analysis results in subsequent
processing stages." Id.; see Reply Br. 6. According to Appellants, "the
improvements of independent claim 1 are analogous to improvements made
in Enfzsh in that sentiment of a sentence is determined from electronic text
data when human review is impractical ( e.g. when the vocabulary size is
large) and with improved accuracy." App. Br. 21.
We are not persuaded by Appellants' arguments. We agree with the
Examiner that the claims are directed to the abstract idea of sentiment
analysis, which involves collecting information, analyzing it, and displaying
certain results of the collection and analysis, citing to Electric Power. See
Ans. 5---6. As identified by the Examiner, claim 1 's steps can be identified as
collecting information (i.e., receiving sentences as electronic text data),
analyzing the collected data (i.e., providing tags for the sentence data and
pre-processed part-of-speech tags, producing a tag structure, analyzing the
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Application 14/244,665
text data and tags to identify sentiment, determining a topic category,
determining context of the sentiment, determining whether the sentiment is
positive or negative, annotating each sentiment word based on the
determination of sentiments being positive or negative, scoring the
sentiment), and displaying certain results (i.e., storing the electronic text data
on a computing device in a positive or negative list). See Ans. 6; see also
Elec. Power Group, 830 F.3d at 1353 ("collecting information, analyzing it,
and displaying certain results of the collection and analysis" are abstract-
idea processes).
Moreover, we disagree with Appellants that claim 1 is analogous to
the claims in Enfzsh. The claims in Enfish were directed to a specific
improvement in the way computers operate, embodied in a self-referential
database table, and recited technical details improving how the computer
was configured. See Enfzsh, 822 F.3d at 1338-1339. By contrast, claim 1
focuses on no such improvement to computer technology, but instead
focuses on an abstract idea-sentiment analysis-that uses generic computing
elements. See Ans. 2-3; Elec. Power Group, 830 F.3d at 1354 (explaining
that claims directed to computerized collecting, analyzing, and displaying
information were different from the claims in Enfzsh: "the focus of the
claims is not on such an improvement in computers as tools, but on certain
independently abstract ideas that use computers as tools."). We agree with
the Examiner that the claimed invention's improvement is "a process of
gathering and analyzing information of a specific content, then displaying
the results, and not any particular inventive technology for performing those
functions." Ans. 6.
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Appellants further argue the claimed limitations are similar to the
patent-eligible claim elements in McRO because "the elements recited by
claim 1 are a combined order of specific rules that identify sentiment about a
subject of a sentence from pre-processed part-of-speech tags that are first
generated by executing a run time ensemble voting on part-of-speech tags
for the sentence" and then scoring the sentiment according to whether it is
positive or negative about a subject, "including normalizing a sentence-level
score of the sentiment based on a total number of adjectives, adverbs, and
nouns in the sentence." App. Br. 24 (citing McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016)).
We are not persuaded by Appellants' argument and agree with the
Examiner's conclusion that the "rules claimed in McRO provide
improvements over the existing process, unlike the present claims." Ans. 4.
In McRO, the patent-eligible claim includes a computer to "perform a
distinct process to automate a task previously performed by humans" that is
"unlike Flook, Bilski, and Alice, where the claimed computer-automated
process and the prior method were carried out in the same way." McRO,
837 F.3d at 1314 (emphasis added).
Paragraph 18 of Appellants' Specification describes that the "human
curation process is feasible when the vocabulary size is consolidated and can
be flagged for output," and the "run-time ensemble can be used when the
vocabulary size makes human review impractical," and that "[i]n both cases,
use of the proper ensemble part-of-speech tagging method significantly
increases the part-of-speech tag accuracy resulting in improved accuracy of
sentiment analysis results in the subsequent processing stages." In other
words, Appellants' Specification describes the human process (i.e., human
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curation process) and machine process (i.e., run-time ensemble) can be the
same process, both benefiting from proper tagging methods. The machine
process is relied on to automate the human process (i.e., to review a greater
vocabulary size).
Here, the machine process (i.e., run-time ensemble process) automates
the process previously performed by humans (i.e., human curation process)
by performing the same analysis while handling a greater vocabulary size.
However, unlike in McRO, the machine process is not distinct from the
process previously performed by humans and instead the machine process
and prior human process are carried out in the same way.
Accordingly, we agree with the Examiner that the claims are directed
to an abstract idea.
Significantly More
The Examiner determines that the claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception because the additional elements are all steps that "can be done by
a human" or "user." Final Act. 6-7. Specifically, the Examiner concludes
the claimed invention does not "provide other benefits to the recited
computing device nor does the [S]pecification serve to add significantly
more because the claims are not directed to a specific improvement to
computer functionality," and instead "appear to enlarge and refine the ability
of a general purpose computer to perform the analysis." Ans. 3. According
to the Examiner, the claims recite generic computer components performing
generic computer functions that are well-understood, routine, and
conventional activities amounting "to no more than implementing the
abstract idea with a computerized system." Ans. 7.
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Appellants argue the claimed invention is a "solution [that] is rooted
in computer technology," analogous to DDR. App. Br. 24--25; see Reply Br.
9. According to Appellants, "claim 1 is directed to addressing a digitally-
rooted challenge that is particular to computer technology, which in this
instance involves executing a run-time ensemble part-of-speech tagging
system voting on perspective part-of-speech tags and yielding a plurality of
pre-processed part-of-speech tags when human review is impractical." App.
Br. 25.
We are not persuaded by Appellants' arguments. Specifically, we
disagree with Appellants that the claims in this case are directed to a
computer-centric problem. Rather, the claims are broadly drafted to claim
the general concept of sentiment analysis through the use of conventional
devices. E.g., FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089,
1098 (Fed. Cir. 2016) ("requiring computer implementation of an otherwise
abstract-idea process" does not make the claim patent eligible); Affinity Labs
of Texas, LLC v. DIRECTTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016)
("DDR Holdings dealt with a patent that required doing something to a web
page, not simply doing something on a web page") ..
Furthermore, we agree with the Examiner's finding that claims recite
generic computer components performing generic computer functions that
are well-understood, routine, and conventional activities amounting "to no
more than implementing the abstract idea with a computerized system."
Ans. 7. Specifically, the Examiner finds "[ n ]othing in the claims,
understood in light of the [S]pecification, requires anything other than off-
the-shelf, conventional computer, network, and display technology for
gathering, sending and presenting the desired information." Id. at 6. This is
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supported by Appellants' Specification, describing the computing device
including "any type of computer, mobile phone, tablet device, and/or other
type of computing device" that "can be implemented with various
components, such as a processing system and memory." Spec. ,r 44.
Accordingly, we sustain the Examiner's rejection of claim 1 as being
directed to patent-ineligible subject matter, as well as commensurate
independent claims 8 and 15, argued for the same reasons, and dependent
claims 2-7, 9-14, and 16-20, not separately argued. See App. Br. 28-54.
DECISION
The Examiner's rejection of claims 1-20 under 35 U.S.C. § 101 is
affirmed.
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. § 41.50(±).
AFFIRMED
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