Ex Parte Fang et al

Patent Trial and Appeal Board

Sep 27, 2017

13565628 (P.T.A.B. Sep. 27, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/565,628 08/02/2012 Jing Fang 060406-8044.US01 3456
107616 7590 09/29/2017
PERKINS COIE LLP - Facebook
P.O. BOX 1247
SEATTLE, WA 98111 -1247
EXAMINER
WHITAKER, ANDREW B
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
09/29/2017 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):
patentprocurement @perkinscoie. com
rsarathy@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JING FANG, CHRISTOPHER STEIN, and WANHONG XU
Appeal 2015-008157
Application 13/565,628
Technology Center 3600
Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’
final decision rejecting claims 1—5, 12, and 18—20. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-008157
Application 13/565,628
BACKGROUND
According to Appellants, the claimed method relates to “detection of
fake accounts in a social networking system.” Spec. 1
Claim 1 is illustrative:
1. A computer implemented method comprising:
determining, by a computer system, whether a cluster of
accounts of a social networking system are fake by:
aggregating, as the cluster of accounts, multiple accounts
associated with a resource;
quantifying features for each of the multiple accounts as
numeric values across multiple dimensions of a space, wherein
each of the features is associated with one of the dimensions in
the space;
mapping the multiple accounts as points in the space
based on the features associated with each of the accounts;
computing a centroid of the points;
computing a distance from the centroid to a farthest one
of the points;
and
determining, by the computer system, that the accounts
are fake when the computed distance is less than a threshold
value.
The Examiner relies on the following prior art reference as evidence
of unpatentability:
Koister et al.
Rosenthal et al.
De Souza et al.
US 2009/0210244 Al Aug. 20, 2009
US 2010/0010826 Al Jan. 14, 2010
US 2011/0218948 Al Sept. 8, 2011
Appellants appeal the following rejections:
Claims 1—5, 12, and 18—20 are rejected under 35 U.S.C. § 112(a) or
35 U.S.C. § 112 (pre-AIA), first paragraph, “as failing to comply with the
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written description requirement.”1 Non-Final Rej. 5.
Claim 4 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. § 112 (pre-
AIA), second paragraph, “as being indefinite for failing to particularly point
out and distinctly claim the subject matter which the inventor or a joint
inventor, or for pre-A IA the applicant regards as the invention.” Id. at 7.
Claims 1—5, 12, and 18—20 are rejected under 35 U.S.C. § 101
“because the claim(s) as a whole, considering all claim elements both
individually and in combination, do not amount to significantly more than an
abstract idea.”2 Id.
Claims 1—5, 12, and 18—20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over De Souza et al. further in view of Rosenthal et al.
and Roister et al. Id. at 8.
ISSUES
Did the Examiner err in rejecting the appealed claims under 35 U.S.C.
§101 because the claims do not describe a mathematical relationship or
formula, and because the claims recite an improvement to the technological
field of social networking?
Did the Examiner err in rejecting claim 4 under 35 U.S.C. § 112, first
paragraph because the Specification describes the step of calculating a
distance from a centroid of the points?
1 The Examiner’s omission of claim 18 appears to be a typographical error,
and, thus, we treat the Examiner’s rejection as also applying to this claim.
2 The Examiner’s omission of claim 18 appears to be a typographical error,
and, thus, we treat the Examiner’s rejection as also applying to this claim.
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Did the Examiner err in rejecting the appealed claims under
35 U.S.C.§ 112, second paragraph because the recitation in claim 1 of
aggregating, as the cluster of accounts, the multiple accounts includes
aggregating as a cluster of the accounts to the multiple accounts associated
with multiple resources is clear from a reading of the Specification and the
claims?
Did the Examiner err in rejecting the appealed claims under 35 U.S.C.
§103 because De Souza does not disclose calculating a centroid of the
points in space?
ANALYSIS
Rejection under 35 U.S.C. §101
We initially note that 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 implicit exceptions: “[ljaws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLSBank
Int’l, 134 S.Ct. 2347, 2354 (2014).
In determining whether a claim falls within the excluded category of
abstract ideas, we are guided in our analysis by the Supreme Court’s two-
step framework, described in Mayo and Alice. Id. at 2355 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296—97
(2012)). In accordance with that framework, we first determine whether the
claim is “directed to” a patent-ineligible abstract idea. See Alice, 134 S. Ct.
at 2356 (“On their face, the claims before us are drawn to the concept of
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intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in
petitioners’ application explain the basic concept of hedging, or protecting
against risk.”); Diamond v. Diehr, 450 U.S. 175, 184 (1981) (“Analyzing
respondents’ claims according to the above statements from our cases, we
think that a physical and chemical process for molding precision synthetic
rubber products falls within the § 101 categories of possibly patentable
subject matter.”); Parker v. Flook, 437 U.S. 584, 594—595 (1978)
(“Respondent’s application simply provides a new and presumably better
method for calculating alarm limit values.”); Gottschalk v. Benson, 409 U.S.
63, 64 (1972) (“They claimed a method for converting binary-coded decimal
(BCD) numerals into pure binary numerals.”).
The patent-ineligible end of the spectrum includes fundamental
economic practices, Alice, 134 S. Ct. at 2357; Bilski, 561 U.S. at 611;
mathematical formulas, Flook, 437 U.S. at 594—95; and basic tools of
scientific and technological work, Benson, 409 U.S. at 69. On the patent-
eligible side of the spectrum are physical and chemical processes, such as
curing rubber, Diamond, 450 U.S. at 184 n.7, “tanning, dyeing, making
waterproof cloth, vulcanizing India rubber, smelting ores,” and a process for
manufacturing flour, Gottschalk, 409 U.S. at 69.
If the claim is “directed to” a patent-ineligible abstract idea, we then
consider the elements of the claim—both individually and as an ordered
combination—to assess whether the additional elements transform the nature
of the claim into a patent-eligible application of the abstract idea. Alice, 134
S. Ct. at 2355. This is a search for an “inventive concept”—an element or
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combination of elements sufficient to ensure that the claim amounts to
“significantly more” than the abstract idea itself. Id.
Here the Examiner determined that the claims are directed to a
mathematical relationship or formula. Fin. Act. 7.
Claim 1 recites the steps of aggregating multiple account data,
processing this data (to quantify features for each account as numeric values
across multiple dimensions of a space and map the accounts in the space
based on the features) and performing a series of computations on the data.
As such, claim 1 is directed to the abstract idea of manipulating data and the
abstract idea of performing computations in accordance with a mathematical
formula on that data. We agree with the Examiner that the claims are
directed, at least in part, to processing data i.e. organizing, transmitting, and
comparing information.
In our view, claim 1 is directed to the abstract idea of data processing
and using a mathematical formula to process data. In this respect, in our
view the claims are directed to two abstract ideas. However, merely
combining abstract ideas does not render the combination any less abstract.
Cf. Shortridge v. Found. Constr. Payroll Serv., LLC, No. 14-CV-04850-JCS,
2015 WL 1739256 (N.D. Cal. Apr. 14, 2015), affd, No. 2015-1898, 2016
WL 3742816 (Fed. Cir. July 13, 2016). Therefore, we agree with the
Examiner that the claims are directed to an abstract idea.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the claims are directed to an improvement in the
technological field of social networking using computing devices.
Appellants specifically argue that the claims recite a technological solution
to the technological problem of overloaded computer servers, computer
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security and bandwidth congestion (Appeal Brief 9). Appellants’ argument
is not persuasive because Appellants have not provided evidence that the
system of independent claim 1 results in an improvement to computer
servers, computer security and bandwidth congestion. Here, the
Specification discloses that the management of fake accounts which is
recited in claim 1 reduces spamming of members or otherwise inappropriate
communications, improves the integrity and usefulness of the social
networking website and preserves the full potential of the social network as
a powerful medium for the active exchange of invited relevant content.
Spec. 2—3. In our view, the improvements discussed in the Specification
relate to an improvement in the integrity of information on the social
network as opposed to an improvement to the social media computer itself
or an improvement to other technological or technical fields.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that the claims are directed to a departure from the
routine and conventional way of detecting fake accounts. Appellants point
out that in the past, fake accounts were detected individually. This argument
appears to relate to whether the pending claims recite “significantly more”
than the abstract idea because the claimed invention is “novel” and “non-
obvious.” Although the second step in the Alice!Mayo 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, 134 S. Ct. at 2355. A novel and nonobvious claim directed to
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a purely abstract idea is, nonetheless, patent-ineligible. See Mayo, 132 S. Ct.
at 1304.
We find Appellants’ arguments in the Reply Brief, including the
argument that the Examiner has not met his burden to establish that the
claims are directed to patent ineligible subject matter, and that the claims do
not pose a risk of preemption untimely (Reply Br. 7—8). We note that these
new arguments were raised by Appellants for the first time in the Reply
Brief, and they are not in response to a new issue brought up by the
Examiner in the Answer.
Giving cognizance to belated arguments in a reply would vitiate the
force of the requirement in Board Rule 37(c)(l)(vii) that “[a]ny arguments or
authorities not included in the brief. . . will be refused consideration by the
Board, unless good cause is shown.” The reference in that section to the
“reply brief filed pursuant to § 41.41” does not create a right for the
Appellants to raise an argument in the reply brief that could have been raised
in the principal brief but was not. Rather, that reference merely puts
Appellants on notice that arguments could be made in the reply brief, but are
not, are waived. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010).
We therefore consider Appellants’ argument raised in the Reply Brief to be
waived.
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 1 as being directed to patent ineligible subject matter. We will also
sustain this rejection as it is directed to the remaining claims because the
Appellants have not argued the separate patent eligibility of these claims.
Rejection under 35 U.S.C. § 112, first paragraph
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We will not sustain this rejection because we agree with the
Appellants that calculating a distance from a centroid of the points is
supported in Appellants’ Specification at paragraph 57. We note that the
Examiner’s argument that the Specification does not disclose how the
distance is calculated does not appear to be directed to the written
description requirement in the first paragraph of 35 U.S.C. § 112, but rather
to the enablement requirement in that paragraph.
Rejection under 35 U.S.C. § 112, second paragraph
We will not sustain this rejection because we agree with the
Appellants that when the recitation in claim 4 “wherein aggregating, as the
cluster of the accounts, the multiple accounts includes aggregating, as the
cluster of the accounts, the multiple accounts associated with multiple
resources” is read along with claim 1, from which claim 4 depends, the
meaning is clear. The Examiner held that the claim is confusing as to
whether it is the cluster of accounts or the multiple accounts that are being
aggregated, and whether the multiple accounts associated with a resource are
to be aggregated with multiple accounts with multiple resources. We agree
with the Appellants that claim 4 further limits the step of aggregating, as the
cluster accounts, the multiple accounts recited in claim 1, to include
aggregating the cluster of accounts, the multiple accounts associated with
multiple resources. Therefore, claim 1 recites that the multiple accounts are
associated with a resource, and claim 4 recites that the multiple accounts are
associated with multiple resources.
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Rejection under 35 U.S.C. §103
We will not sustain this rejection because we agree with the
Appellants that the relied on prior art does not disclose computing a centroid
of points in the space. The Examiner relies on paragraph 28 of De Souza for
teaching this subject matter. Non-Final Rej. 8. The Examiner reasons that
De Souza discloses that betweenness is a measure of the node’s centrality in
the graph, and that each node is the central point of the node’s graph. The
other nodes surrounding that node have betweenness; i.e. measurement of
how close the specific node is to the center or specific relative node. The
Examiner interprets the centroid of the points as the single node chosen to
calculate the betweenness of the node relative to other nodes that surround
it; i.e. the node’s centrality.
We agree with the Appellants that there is no disclosure in
paragraph 28 of De Souza of calculating a centroid of points that exists in a
space. Rather, we find that paragraph 28 of De Souza discloses that
betweenness is determined, and that this betweenness is a measure of one
node’s centrality. This relates to the centrality of one node, but not a
centroid of many points in space.
In view of the foregoing, we will not sustain this rejection as it is
directed to claim 1 and claims 2—5, 9, 12 and 18 dependent therefrom. We
will also not sustain this rejection as it is directed to remaining independent
claims 19 and 20, because each of these claims recites similar subject matter.
DECISION
We affirm the Examiner’s § 101 rejection of claims 1—5, 12, and 18—
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20.
We do not affirm the Examiner’s § 112, first paragraph, § 112, second
paragraph and § 103 rejections.
TIME PERIOD
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)(1) (2009).
ORDER
AFFIRMED
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