Ex Parte CRANE et al

Patent Trials and Appeals Board

Apr 26, 2019

12884559 - (D) (P.T.A.B. Apr. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/884,559 09/17/2010 ANDREWS. CRANE
45809 7590 04/30/2019
SHOOK, HARDY & BACON L.L.P.
(MICROSOFT TECHNOLOGY LICENSING, LLC)
INTELLECTUAL PROPERTY DEPARTMENT
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
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.
330186-US-NP/MFCP.156626 6959
EXAMINER
ALVAREZ, RAQUEL
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
04/30/2019 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW S. CRANE, ANDRZEJ P ASTUSIAK, and
DMITRY V. ZHIYANOV
Appeal 2018-003315
Application 12/884,559 1
Technology Center 3600
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-11 and 13-21, which are all of the claims pending in the
application. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify MICROSOFT TECHNOLOGY LICENSING, LLC, as
the real party in interest. See App. Br. 3.
2 Claim 12 has been cancelled. See App. Br. 36, Claims Appendix.
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Application 12/884,559
STATEMENT OF THE CASE
According to Appellants, the claims are directed to the selection of an
advertisement responding to a query, based on the location of the query and
the location of the advertisement. Abstract. 3 Claim 1, reproduced below, is
representative of the claimed subject matter:
1. A method for providing advertisements based on
geographic relevance comprising:
associating a query location with a query;
selecting a plurality of advertisements based on the query;
associating an advertisement location with one or more of
the selected advertisements;
calculating a geographic distance between the
advertisement location for the one or more selected
advertisements and the query location;
calculating a confidence level for at least one of the query
location and the advertisement location, the confidence level
being based on a probability that an associated query location or
an associated advertisement location is correct, the calculated
confidence level being associated with a plurality of distance-
based relevance features;
selecting a distance-based relevance feature that
corresponds to the calculated geographic distance, the selected
distance based relevance feature being selected from the plurality
of distance-based relevance features associated with the
confidence level;
determining a relevance for the one or more selected
advertisements, the relevance score being based in part on a
3 This Decision refers to: ( 1) Appellants' Specification filed September 1 7,
2010 ("Spec."); (2) the Final Office Action mailed April 3, 2017 ("Final
Act."); (3) the Appeal Brief filed September 20, 2017 ("App. Br."); (4) the
Examiner's Answer mailed December 7, 2017 ("Ans."); and ( 5) the Reply
Brief filed February 7, 2018 ("Reply Br.").
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relevance value for the selected distance-based relevance feature;
and
transmitting an advertisement from the one or more
selected advertisements based on the determined relevance.
REJECTION
Claims 1-11 and 13-21 stand rejected under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter. Final Act. 2--4.
Our review in this appeal is limited to the above rejection and the
issues raised by Appellants. Arguments not made are waived. See MPEP
§ 1205.02; 37 C.F.R. § 4I.37(c)(l)(iv).
Principles of Law
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 573
U.S. 208,216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
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in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim
at issue recited a mathematical formula, but the Supreme Court held that "[a]
claim drawn to subject matter otherwise statutory does not become
nonstatutory simply because it uses a mathematical formula." Diehr, 450
U.S. at 176; see also id. at 191 ("We view respondents' claims as nothing
more than a process for molding rubber products and not as an attempt to
patent a mathematical formula."). Having said that, the Supreme Court also
has indicated that a claim "seeking patent protection for that formula in the
abstract ... is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment." Id. at 191 (citations
omitted); see also id. at 187 ("It is now commonplace that an application of
a law of nature or mathematical formula to a known structure or process may
well be deserving of patent protection.").
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If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( citations omitted). "A claim
that recites an abstract idea must include 'additional features' to ensure 'that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77). "[M]erely requir[ing]
generic computer implementation[] fail[ s] to transform that abstract idea into
a patent-eligible invention." Id.
USPTOJanuary 7, 2019 Revised Section 101 Memorandum
The USPTO recently published revised guidance on the application of
§ 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019 ("2019 Guidance"). Under the 2019 Guidance,
we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
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(3) adds a specific limitation beyond the judicial exception that is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
ANALYSIS
Appellants argue the claims as a group, specifically addressing the
limitations recited in claim 1. See App. Br. 20-21, 24--26, and 29--30.
Accordingly, we focus our discussion on independent claim 1 as exemplary
of Appellants' arguments for claims 2-11 and 13-21. See 37 C.F.R.
§ 4I.37(c)(1)(iv)(2017). Although not necessary to reach our decision, we
include some analysis pertaining to claims 11 and 16, simply to clarify our
determinations.
The Examiner determines the claims are directed to a "method[] of
organizing human activit[y ]," (Ans. 4) and, thus, recite an abstract idea. The
Examiner also determines the claims "do not have any additional elements
that amount to significantly more" than the abstract idea itself. Final Act. 5;
see Ans. 4.
Appellants present several arguments against the section 101
rejection. We do not find Appellants' arguments persuasive, as discussed in
greater detail below. The Examiner has provided a comprehensive response
to Appellants' argument supported by a preponderance of evidence. See
Ans. 3---6. Thus, we adopt the Examiner's findings and conclusions. See
Final Act. 2-7; see also Ans. 3---6. We analyze the claims under the 2019
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Guidance and adopt the nomenclature for the steps used in the 2019
Guidance.
STEP 1
Section 101 provides that "[ w ]hoever 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." 35 U.S.C. § 101. We note
that independent claims 1 and 11 recite methods and independent claim 16
recites a system. As such, the claims are directed to statutory classes of
invention within 35 U.S.C. § 101, i.e., processes and a machine.
STEP 2A Prong 1
Under Step 2A, Prong 1 of the 2019 Guidance, we must determine
whether the claims, being directed to a statutory classes of invention,
nonetheless fall within a judicial exception.
The Examiner determines the claims are directed to "certain methods
of organizing human activities" (Ans. 4), in particular, "providing
advertisements that are geographically relevant to a user's query" (Final
Act. 2; see Ans. 3). As such, the Examiner determines the claims are
directed to an abstract idea. See Final Act. 2; see also Ans. 3--4.
Appellants argue that the Examiner's "characterization of the claims
ignores specific elements included in the claims." App. Br. 22. In
particular, Appellants list claim elements recited in claim 1 and argue the
claims are not directed to an abstract idea because the "plain claim language
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of claim 1 clearly shows ... much more than 'providing advertisements that
are geographically relevant to a user's query."' Id. at 21-22.
Appellants' arguments do not persuade us of error in the Examiner's
determination that the claims are directed to a method of organizing human
activity, namely, "providing advertisements that are geographically relevant
to a user's query." Final Act. 2; see also Ans. 3. The claims recite a process
that responds to a query; the answer to that query contemplates location-
based considerations such as the location of the query and the location of
possible answers. Providing an answer, such as an answer in the form of an
advertisement, that contemplates location considerations in response to a
query is a process long engaged in by people. For example, drawing from a
query described in the Specification (Spec. ,r 12 ( a "query of 'restaurants in
Bellevue WA."')), a visitor to Bellevue may ask his or her hotel concierge
for restaurant recommendations within walking distance. In response, the
concierge selects restaurants that would satisfy the visitor's inquiry and
provides responsive information to the visitor, e.g., the concierge gives the
visitor advertising flyers or pamphlets for restaurants within walking
distance.
Claim 1, under a broadest reasonable interpretation, reflects such an
interaction between the visitor and concierge. Turning to the claim
language, claim 1 recites: (1) "associating a query location with a query";
(2) "selecting a plurality of advertisements based on the query"; and (3)
"associating an advertisement location with one or more of the selected
advertisements." Claim limitations (1 }-(3) broadly recite a process of
selecting advertisements in response to the location of a query without any
limitation on how the query location is determined or which advertisements
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are selected. Turning back to the exemplary human interaction based on the
Specification (see Spec. ,r 12), the hotel concierge, parsing the visitor's
query for restaurants within walking distance, mentally determines the
location of the query is the location of the hotel, i.e., limitation ( 1 ), and
mentally determines what nearby advertised restaurants could be responsive
to the visitor's query, i.e., limitations (2) and (3).
Claim 1 further recites ( 4) "calculating a geographic distance between
the advertisement location for the one or more selected advertisements and
the query location." Claim limitation ( 4) broadly recites a process for
determining how far away responsive advertisement locations are to a query.
Turning again to the human interaction based on the Specification (see
Spec. ,r 12), the concierge mentally determines how far away advertised
restaurants are to the hotel in order to ultimately suggest advertised
restaurants within walking distance.
Claim 1 additionally recites ( 5) "calculating a confidence level for at
least one of the query location and the advertisement location, the
confidence level being based on a probability that an associated query
location or an associated advertisement location is correct, the calculated
confidence level being associated with a plurality of distance-based
relevance features," (6) "selecting a distance-based relevance feature that
corresponds to the calculated geographic distance, the selected distance
based relevance feature being selected from the plurality of distance-based
relevance features associated with the confidence level," and (7)
"determining a relevance for the one or more selected advertisements, the
relevance score being based in part on a relevance value for the selected
distance-based relevance feature."
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Claim limitations ( 5}-(7), considered together, recite a decision-
making processes that selects advertisements based on a "distance-based
relevance" to the query. But that decision-making process "is untethered to
any specific or concrete way of implementing it." Affinity Labs of Texas,
LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016). For
example, the claim "calculat[ es] a confidence level" that is "based on a
probability that an associated query location or an associated advertisement
location is correct," but the claim merely recites that the resultant confidence
level considers location correctness, rather than limits how location
correctness actually factors into the confidence level calculation. Similarly,
the claim "select[ s] a distance-based relevance feature" and "determin[ es] a
relevance," but again, the claim recites the result and factors considered -
the claim does not recite how those results are reached. Once again,
returning to the human interaction based on the Specification (see Spec.
,r 12), after mentally confirming the location of potential restaurants, i.e.,
claim limitation ( 5), the concierge mentally determines which restaurants are
actually within walking distance to the hotel, i.e., claim limitations ( 6) and
(7).
Claim 1 lastly recites (8) "transmitting an advertisement from the one
or more selected advertisements based on the determined relevance." The
claim is untethered to any specific means to transmit the recommended
advertisement and merely reflects a common interaction between humans.
For example, turning one last time to the human interaction based on the
Specification (see Spec. ,r 12), the concierge handing the visitor
advertisements for restaurants within walking distance discloses claim
limitation (8).
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Accordingly, claim 1 broadly recites a common interaction between
humans, i.e., responding to a query with an advertisement that contemplates
location-based considerations; therefore, we conclude the claim recites a
method of organizing human activity, as identified in the 2019 Guidance.
Furthermore, although not relied upon to make our decision, we note that the
claim could also be characterized as reciting a mental process. Except for
the last limitation, every limitation recited in claim 1 is directed to a process
of observing and evaluating information that can be fully performed within
the mind. In particular, the recited associations, selections, calculations, and
determinations can be performed mentally to consider location when
responding to a query. Because claim 1 may be categorized as reciting a
method of organizing human activity, or a mental process, we determine the
claim is directed to an abstract idea.
STEP 2A Prong 2
Next, we determine whether the claims are directed to the abstract
concept itself or whether they are instead directed to some technological
implementation or application of, or improvement to, this concept, i.e.,
integrated into a practical application. See, e.g., Alice, 573 U.S. at 223,
discussing Diehr, 450 U.S. at 175.
The Examiner determines "the claims do not improve the functioning
of a computer and do[] not address challenges particular to or necessarily
rooted in computer networks." Ans. 4. We agree with the Examiner.
Appellants argue the "claims improve the functioning of a computer
and address challenges particular to or necessarily rooted in the Internet"
(App. Br. 14), namely, "provid[ing] a specific technological improvement on
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a technological process of understanding human input" (App. Br. 15) and
"improv[ing] the efficiency of a user interface" (Reply Br. 3).
Claim 1, however, notably fails to recite any computer, components
specific to a computer, the Internet, user input, or user interfaces. Instead,
claim 1 broadly recites a list of steps, the performance of those steps being
unrestricted to any means, and thus including human performance, as
described above. Because claim 1 is not limited to any computer or Internet
system, claim 1 is not necessarily directed to the improvement of any
computer or Internet system or rooted in those technologies.
Claim 11 recites "a computing device for execution of computer-
useable instructions" and "executing computer-useable instructions" to
perform the abstract idea discussed above. However, those recitations,
which nakedly call for the execution of the abstract idea by a computer, are
tantamount to nothing more than an instruction to apply the abstract idea
using a generic computer, i.e., adds the words "apply it," and, as a result,
does not render the abstract idea eligible. Alice, 573 U.S. at 221. Similarly,
claim 16 recites "a query location component," "an advertiser device," and
"an advertisement engine" which are "configured" to perform the abstract
idea discussed above, but the claim only recites that those components
perform the abstract idea. As such, the claim merely recites that the abstract
idea is performed by broadly recited "components"; however, these do not
serve to transform the abstract idea into patent-eligible subject matter.
Further, contrary to Appellants' assertion that the "claims recite a
particular way to achieve a desired outcome as opposed to merely claiming
the outcome," the claims only recite a result, not the particular manner to
achieve the result, and, even further, do not recite a technology-specific
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manner to achieve the result. Reply Br. 7. For example, claim 1 recites
"calculating a confidence level ... the confidence level being based on a
probability that an associated query location or an associated advertisement
location is correct." The claim requires the calculation of a confidence level
to be based on a location correctness probability, but the claim does not
provide any specific algorithm or detail as to how computing components
would actually calculate the confidence level using the correctness
probability or determine the correctness probability. Here, the claims are
only directed to an abstract idea because the claims are "untethered to any
specific or concrete way of implementing" the invention. Affinity Labs, 83 8
F.3d at 1258.
In addition, claim 1 fails to recite a specific algorithm for "selecting a
distance-based relevance feature" and "determining a relevance" score.
Thus, the broadly recited calculating, selecting, and determining can be
interpreted as being accomplished merely using a subjective judgement by a
person, rather than on specific technological implementation details. These
limitations, therefore, fail to recite technological operations. And because
the claims are "not tied to any particular technology," the claims "can be
implemented in myriad ways," e.g., a "low-tech" manner where a hotel
concierge determines which restaurant advertisements to give to a visitor.
Id. To clarify that distinction, we highlight the difference between the claim
and the Specification. For example, the Specification describes a manner in
which a user's location is associated with a query, e.g., "a user could enter a
default location of 'Redmond, WA' into a profile that is saved. When the
user logs in ... this saved location is associated with the user" query. Spec.
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Accordingly, the claims are not directed to a specific asserted
improvement in computer technological implementation or otherwise
integrated into a practical application and thus are directed to a judicial
exception.
STEP 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 218-219 ( quoting Mayo,
566 U.S. at 72-73).
The Examiner determines "[ a ]ny general purpose computer available
at the time the application was filed would have been able to perform the
functions of the claims" and the "[S]pecification as filed supports that view."
Final Act. 5.
Listing limitations recited in claim 1, Appellants argue the claims "are
not well understood, routine, and conventional" and "the ordered
combination of these elements also provides an inventive concept." App.
Br. 29-30. However, the limitations Appellants rely on, "calculating a
geographic distance ... calculating a confidence level ... selecting a
distance-based relevance feature [and] determining a relevance for the one
or more selected advertisements," are part of the recited abstract idea, as
discussed above. See id. at 29 ( emphasis omitted). Accordingly, those
limitations are not "additional limitations" and so do not transform the
abstract idea into a patent-eligible concept.
Furthermore, as to claim 11, reciting "a computing device for
execution of computer-useable instructions" and "executing computer-
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useable instructions" to perform the abstract idea discussed above, and
claim 16, reciting "a query location component," "an advertiser device," and
"an advertisement engine," which are "configured" to perform the abstract
idea, the Specification makes clear that the processes recited by those claims
are "described in the general context of computer code or machine-useable
instructions" (Spec. ,r,r 39-40 and 41--44). That is, the Specification teaches
that the invention is implemented using known, generic computing
components performing known, generic computing functions in a known,
generic manner. See id. ,r,r 39-44.
Considering the claimed elements separately, and even assuming all
the claims are performed by computing components, each of the recited
processes is a generic, routine, and conventional computer activity that is
performed only for its conventional use, namely processing information.
See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
(The "focus of the asserted claims ... is on collecting information, analyzing
it, and displaying certain results of the collection and analysis."); see also In
re Katz Interactive Call Processing Patent Litigation, 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."). None of
these activities is used in an unconventional manner nor do any produce an
unexpected result.
Further, considered as an ordered combination, even assuming all the
claims are performed by some computing components, the computer
components of Appellants' claims add nothing that is not already present
when the steps are considered separately. Appellants highlight the ordered
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combination of elements. App. Br. 30. But, the sequence of information
analysis and output is generic and conventional or has been 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); and Two-
Way Media Ltd. v. Comcast Cable Communications, 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. We, thus, conclude that the claims do not provide an
inventive concept because the additional elements recited in the claims do
not provide significantly more than the recited judicial exception.
Additionally, Appellants' argument that the "claims pose no risk of
preempting an abstract idea, itself' does not persuade us that the claim is
directed to patent-eligible subject matter. App. Br. 32. Although
preemption is characterized as a driving concern for patent eligibility,
preemption itself is not the test for patent eligibility. Rather, "[ w ]hile
preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Where claims are deemed to recite only patent-ineligible subject matter
under the Alice analysis, as they are here, "preemption concerns are fully
addressed and made moot." Id.
Accordingly, claims 1, 11, and 16 do not recite patent-eligible subject
matter. Appellants have not proffered sufficient evidence or argument to
persuade us that any of the limitations in the remaining dependent claims
provide a meaningful limitation that transforms the claims into a patent-
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eligible application. See App. Br. 14--38. Accordingly, Appellants have not
persuaded us dependent claims 2-10, 13-15, and 17-21 are directed to
patent-eligible subject matter. Therefore, we sustain the rejection of claims
1-11 and 13-21 under 35 U.S.C. § 101 as being directed to patent-ineligible
subject matter.
DECISION
We affirm the Examiner's rejection of claims 1-11 and 13-21 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). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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