Ex Parte Farahat et al

Patent Trial and Appeal Board

Jun 25, 2018

13678149 (P.T.A.B. Jun. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/678,149 11115/2012
108982 7590 06/27/2018
Wolfe-SBMC
116 W. Pacific A venue
Suite 200
Spokane, WA 99201
FIRST NAMED INVENTOR
Ayman Omar Farahat
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.
2556US01 1257
EXAMINER
PADOT, TIMOTHY
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
06/27/2018 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 AYMAN OMARFARAHAT and
NESREEN KAMEL ABUSEREE AHMED 1
Appeal2017-002132
Application 13/678, 149
Technology Center 3600
Before BRADLEY W. BAUMEISTER, JASON V. MORGAN, and
NABEEL U. KHAN, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Non-
Final Rejection of claims 1-5, 7-14, 16, 17, and 19-23. Claims 6, 15, and
18 are canceled. Amend. 4, 7, and 9 (Oct. 12, 2015). We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is the applicant, Adobe Systems Incorporated, which the Appeal
Brief identifies as the real party in interest. App. Br. 3.
Appeal2017-002132
Application 13/678, 149
Invention
The inventors disclose a predictive tool that uses correlations with
unmeasured factors influencing marketing activities to predict the
probability of a particular entity result. Abstract.
Representative Claim
1. In a digital marketing environment, a method implemented by a
computing device to improve assessments regarding whether a type of
marketing activity will be successful, the method comprising:
determining, based at least in part on data collected over a time
period, a first set of measurable factors with which decisions to
implement the type of marketing activity are correlated, and a second
set of measurable factors with which a category of entity results is
correlated;
generating, using at least in part the first and second sets of
measurable factors, a model configured to determine decisions to
implement the type of marketing activity, as inputs to the model, are
correlated with the category of entity results, as outputs from the
model, the model including a first error term influencing the category
of entity results and a second error term influencing decisions on
implementing the type of marketing activity, the first and second error
terms corresponding to unmeasured factors that cannot be measured
concretely;
determining a covariance correlation between the first and second
error terms within the model;
responsive to the covariance correlation being statistically significant,
predicting, using the model, a probability of the category of entity
results for the type of marketing activity;
responsive to the covariance correlation being statistically
insignificant, determining that the model is not able to predict the
probability of the category of entity results for the particular entity;
and
outputting the probability when the covariance correlation is
statistically significant to cause implementation of the type of
marketing activity when the probability is above a threshold.
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Application 13/678, 149
Rejection
The Examiner rejects claims 1-5, 7-14, 16, 17, and 19-23 under
35 U.S.C. § 101 as being directed to non-statutory subject matter. Non-Final
Act. 5-7.
FINDINGS AND CONTENTIONS
In rejecting claim 1under35 U.S.C. § 101, the Examiner concludes
the claim is "directed to the abstract [idea] of generating a marketing model
to determine how marketing activity decisions are correlated with results."
Non-Final Act. 5; see also Ans. 3---6. The Examiner further concludes
claim 1 does "not include additional elements or a combination of elements
that amount to significantly more than the" underlying abstract idea. Non-
Final Act. 6; see also Ans. 9.
Appellant contends the Examiner erred because "[ r ]ather than being
generically directed to 'generating a marketing model' in a manner that
would preempt others' use, claim 1 recites features that specify with
particularity the manner in which error terms are employed for analysis of
marketing activities." App. Br. 15. Appellant further argues claim 1
amounts to significantly more than the purported abstract idea because "the
types of unmeasurable factor correlations contemplated by claim 1 are
assessed using computing technology and simply cannot be implemented in
a practical manner otherwise due to the immense amount of data used" and
because "the claimed solution solves a problem related to how to efficiently
and cost effectively deliver digital marketing offers to consumers using
computing technology." Id. at 17-18.
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Application 13/678, 149
ANALYSIS
We agree with and adopt as our own the Examiner's findings of facts
and conclusions as set forth in the Answer and in the Action from which this
appeal was taken. We have considered Appellant's arguments, but do not
find them persuasive of error. We provide the following explanation for
emphasis.
Claim 1 includes recitations directed to using data collected over a
period of time to generate a model configured to determine decisions to
implement a type of marketing activity. The generated model uses:
(1) measurable factor inputs, such as discount or coupon offers, correlated
with decisions to implement a type of marketing activity and (2) measurable
factors, such as growth in entity sales or revenues, correlated with a category
of entity results. See Spec. i-f 11. Unmeasured factors that cannot be
measured concretely are represented as first and second error terms. See id.
If the covariance correlation between the first and second error terms is
statistically significant, then the model is used to predict and output the
probability that the category of entity results for the type of marketing
activity. See id. i-fi-1 13, 35. An example of the model---or more precisely, a
template for the model given that values such as coefficients Bi, B2 have not
been entered or computed-is illustrated by the two equations shown in
Figure 5 of the Specification, which is reproduced below:
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Appeal2017-002132
Application 13/678, 149
[L Bz represent sets of coefficients to
be computed
y·: is a dependent variable ~ x1 represents a set of measurable
representing a decision to independent variables influencing y1
implement a marketing activity /
~ e, is an error term representing
Y2 is a dependent variable y 1 = C1 + p Ix 1 + e 1 .,,,.---- additiona~ (unmeasured) factors
representing 1nfluenc1ng y1
an entity result (e.g.,
entity revenue increase)
---....Y2 = C2 +
~
c:, c2 represent base rate constants
,.----- e" is an error term representing
f32X2 + e2 additional (unmeasured) factors
\ influencing y2
x2 represents a set of measurable
independent variables influencing y2
The Specification's Figure 5 "illustrates an example set of equations
in which entity results and decisions to perform marketing activities are
represented as dependent variables" Y1 and y2. Spec. i-f 8. First and second
measureable factors are represented by independent variables x1 and x2.
Unmeasured factors are represented by error terms e1 and e2.
We agree with the Examiner that claim 1 is "directed to the abstract of
generating a marketing model to determine how marketing activity decisions
are correlated with results." Non-Final Act. 5; see also Ans. 3. Appellant
argues:
the improvements of the "model including a first error term
influencing the category of entity results and a second error term
influencing decisions on implementing the type of marketing
activity," as recited in claim 1, are analogous to improvements
made in Enfzsh via "a data storage and retrieval system for a
computer memory, comprising: means for configuring said
memory according to a logical table."
App. Br. 17. However, we do not agree the recitations of claim 1 are
analogous to the patent-eligible improvements of Enfish, which focused "on
an improvement to computer functionality itself, not on economic or other
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Appeal2017-002132
Application 13/678, 149
tasks for which a computer is used in its ordinary capacity." Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). Here, the advance
purportedly made is merely "a process of gathering and analyzing
information of a specified content, then displaying the results, and not any
particular assertedly inventive technology for performing those functions."
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed.
Cir. 2016).
We also agree with the Examiner that claim 1 does not include
additional elements or a combination of additional elements that amount to
significantly more than the underlying abstract idea. Ans. 6-7. Appellant
argues "the claimed solution is rooted in computer technology to overcome a
problem of assisting users in determining digital marketing activity success
based on factors the users would be unable to calculate manually on their
own." App. Br. 18; see also Reply Br. 12-13. However, the problem
overcome by the claimed invention-making accurate predictions regarding
the impact of marketing decisions-is not one that specifically arises in the
realm of digital marketing. Instead, it is a business problem that predates
digital marketing environments. Cf DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1257-58 (Fed. Cir. 2014) (the problem overcome by
the claimed invention did "not arise in the 'brick and mortar' context," but
was "a problem specifically arising the realm of computer networks").
Moreover, as the Examiner correctly finds, "while ... it would be less
convenient to generate the model and perform the calculations manually if a
large volume of data was utilized (although this is not required by
Appellant's claims), inconvenience of performing many calculations does
not equate to impossibility." Ans. 8. "[T]he fact that the required
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calculations could be performed more efficiently via a computer does not
materially alter the patent eligibility of the claimed subject matter."
Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (US.), 687 F.3d
1266, 1278 (Fed. Cir. 2012).
For these reasons, we agree with the Examiner that claim 1
encompasses non-statutory subject matter. Accordingly, we sustain the
Examiner's 35 U.S.C. § 101 rejection of claim 1, and claims 2-5, 7-14, 16,
1 7, and 19-23, which Appellant argues are patentable for similar reasons.
App. Br. 22-39.
DECISION
We affirm the Examiner's decision rejecting claims 1-5, 7-14, 16, 17,
and 19-23.
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(f).
AFFIRMED
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