Ex Parte Gupta et al

Patent Trial and Appeal Board

Dec 21, 2018

13074096 (P.T.A.B. Dec. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/074,096
149109 7590
EGL/Excalibur
P.O. Box 10395
Chicago, IL 60610
FILING DATE FIRST NAMED INVENTOR
03/29/2011 Abhay Gupta
12/25/2018
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.
12729-876 (Y07216USOO) 9099
EXAMINER
NGUYEN, THUY N
ART UNIT PAPER NUMBER
3681
MAIL DATE DELIVERY MODE
12/25/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABHA Y GUPTA, RAMANA YEMENI,
SENTHIL SUBRAMANIAN, and TSUNG-JEN CHOU
Appeal 2017-011211
Application 13/074,096
Technology Center 3600
Before ELENI MANTIS MERCADER, BETH Z. SHAW, and
NORMAN H. BEAMER, Administrative Patent Judges.
MANTIS MERCADER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-
20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2017-011211
Application 13/074,096
CLAIMED SUBJECT MATTER
The claims are directed to scalable inventory protection and
optimization in display advertising. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A computer implemented method for determining
the eligibility of online advertisements resources, comprising:
with a computer system comprising (1) a non-transitory
computer-readable medium storing logic and (2) one or more
processors in communication with the computer readable
medium and configured to execute the logic:
receiving, by the one or more processors of the
computer system, a query from a user that specifies one
or more constraints on one or more attributes associated
with the online advertisements resources;
determining, through execution of the logic by the
one or more processors of the computer system, and by
comparing the query with one or more defined inventory
protection rules, that the query targets a protected
inventory;
automatically rewriting, through execution of the
logic by the one or more processors of the computer
system, and in response to the determination that the
query targets the protected inventory, the received query
into a modified query comprising the specified one or
more constraints and an inventory protection constraint
of the protected inventory, the inventory protection
constraint configured to prevent one or more designated
eligible online advertisements resources in the protected
inventory from matching the modified query;
determining, through execution of the logic by the
one or more processors of the computer system, a
number of eligible online advertisements resources for
the modified query by processing a first number of online
advertisements resources that satisfy the modified query,
wherein the first number of online advertisements
resources determined to satisfy the modified query is less
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than a second number of online advertisements resources
associated with the received query; and
providing, through execution of the logic by the
one or more processors of the computer system, and to
the user, at least one of the number of eligible online
advertisements resources for the modified query.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bandy
Benedikt
Ozer
Wang
Schultz
us 6,002,344
US 6,202,063 B 1
US 2003/0101454 Al
US 2010/0042496 Al
US 2013/0212618 Al
REJECTIONS
Dec. 14, 1999
Mar. 13, 2001
May 29, 2003
Feb. 18,2010
Aug. 15, 2013
Claims 1-20 stand rejected under 35 U.S.C § 101 as being directed to
a judicial exception without significantly more.
Claims 1-5 and 7-9 stand rejected under 35 U.S.C § I03(a) as being
unpatentable over Schultz in view of Benedikt and further in view of Wang.
Claims 10-14 and 16-20 stand rejected under 35 U.S.C § I03(a) as
being unpatentable over Schultz in view of Benedikt and further in view of
Wang and further in view of Bandy.
Claim 6 stands rejected under 35 U.S.C § I03(a) as being
unpatentable over Schultz in view of Benedikt and further in view of Wang
and further in view of Ozer.
Claim 15 stands rejected under 35 U.S.C § I03(a) as being
unpatentable over of Benedikt and further in view of Wang in view of Bandy
and further in view of Ozer.
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OPINION
We adopt the Examiner's findings in the Answer and Final Office
Action and we add the following primarily for emphasis. We note that if
Appellants failed to present arguments on a particular rejection, we will not
unilaterally review those uncontested aspects of the rejection. See Ex parte
Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential); see also Hyatt v.
Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) ("[T]he Board may treat
... argument[ s ]" Appellants failed to make for a given ground of rejection
as waived).
Claims 1-20 stand rejected under 35 US.C § 101
Appellants argue that the current invention protects online advertising
inventory from being accessed by an unauthorized online advertising
campaign. App. Br. 8 citing para. 64. The technology can be scaled to use
in realistic online advertising serving systems while maintaining low latency
for critical operations such as booking advertising campaigns. Id.
Appellants argue that claim 1 includes an ordered set of specific operations
that allow a computer to provide this function, which was not available
before in any conventional computer system. Id. In particular Appellants
argue that independent claim 1 is not directed to an abstract idea because it
focuses on improving a computer-related technology----online advertisement
serving systems. App. Br. 6-8. Appellants explain that a modified query
effectively targets the non-protected inventory while avoiding the protected
inventory the original query would otherwise target. App. Br. 11 citing
Spec. at paras. 70-71, 75-79. Moreover, according to Appellants, rewriting
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the query into the modified query in the claimed manner is more efficient
than the conventional method of checking to see whether each impression is
included in a protected inventory package. App. Br. 11 citing Spec. at paras.
62, 65----67, 72, 75-79, and 81. According to Appellants this is reflected in
the claim by the first number of online advertisements resources determined
to satisfy the modified query being less than a second number of online
advertisements resources associated with the received original query. App.
Br. 11.
Appellants further argue that the elements of claim 1 do not merely
automate a previously employed method. App. Br. 14. In particular,
Appellants argue that if automation of a previously employed method of
providing an improvement would not fall within the scope of a claim, that
claim does not merely automate a previously employed method of providing
the improvement. App. Br. 14 citing McRO, 837 F.3d at 1314
( distinguishing from Flook, Bilski, and Alice).
Appellants further argue that claim 1 is directed to significantly more
than an abstract idea. App. Br. 15. Claim 1 does not merely recite
"determining the eligibility of online advertisements resources," or
protecting online advertising inventory with low latency for critical system
operations, along with the requirement to do so on the Internet or on a set of
generic computer components. App. Br. 16. Appellants further assert that
the claim does not preempt all ways of implementing either of those results.
Id. Instead, Appellants argue, it includes a specific and unconventional
computer element, i.e., the claimed inventory protection constraint
describing a particular method of allowing a computer to protect online
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advertising inventory from access by an unauthorized advertising campaign
while also having low latency for critical system operations. Id.
We are not persuaded by Appellants' argument. The Supreme Court's
two-step framework guides our analysis. See Alice Corp. Pty. Ltd. v. CLS
Bankint'l, 134 S. Ct. 2347, 2355 (2014). According to step one, "[w]e must
first determine whether the claims at issue are directed to a patent-ineligible
concept," such as an abstract idea. Id.
Our reviewing court has concluded that abstract ideas include the
concepts such as the collection and analysis of information. Elec. Power,
830 F.3d at 1353. Additionally, the collecting of data, recognizing certain
data within the collected data set, and storing the data in memory are also
abstract ideas. Content Extraction & Transmission LLC v. Wells Fargo
Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Similarly, "collecting,
displaying, and manipulating data" is an abstract idea. Intellectual Ventures
I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017); see
also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018)
("merely presenting the results of abstract processes of collecting and
analyzing information ... is abstract as an ancillary part of such collection
and analysis" ( citation omitted)). Moreover, "a process of organizing
information through mathematical correlations and is not tied to a specific
structure or machine" is abstract. Digitech Image Techs., LLC v. Elec. for
Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., 855 F .3d
1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea (math) to another
abstract idea ... does not render the claim non-abstract."); see also
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FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed.
Cir. 2016) ( determining the pending claims were directed to a combination
of abstract ideas).
In the instant case, Appellants' claims are generally directed to the
collection, organization, and manipulating advertisement availability using
logic. We agree with the Examiner's finding that advertising constitutes
organizing human activity. Ans. 20. We further agree that the method steps
are directed to an abstract idea of "comparing new and stored information
and using rules to identify options" because they simply describe the
concept of comparing received query information such as
constraints/attributes regarding advertisement inventory (i.e., new
information) against one or more stored inventory protection rules (i.e.,
stored information) to determine if the received query information/attributes
regard the advertisement inventory as a protected inventory. Id. If it is
protected inventory then rewriting the received query into a modified query
to incorporate an inventory protection constraint to prevent designated
eligible online advertisement resources in the protected inventory from
matching the modified query (i.e., using rules to identify options) in order to
obtain the number of eligible online advertisements only based on the
modified query. Id.
Furthermore, merely "analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, as
essentially mental processes within the abstract-idea category" and
"presenting the results of abstract processes of collecting and analyzing
information, without more ( such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and analysis."
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Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir.
2016).
We agree with the Examiner that protection of online advertising
inventory from being accessed by an unauthorized online advertising
campaign is an abstract idea which can be done by a human using pen and
paper. Ans. 5---6. The Examiner explains, and we agree, that receiving a
query, determining if the query targets a protect inventory, rewriting the
received query into a modified query to prevent one or more designated
eligible online advertisement resources; and determining a number of
eligible advertisements resources for the modified query, can be done by a
human using a pen and paper. Ans. 6. For example, in the "rewriting" step,
one example may merely be adding the word "NOT" next the resource to
protect the inventory resource as indicated in Appellants' Specification in
paragraphs 93-94. Id.
Additionally, we agree with the Examiner that the argued "response
time and latency" is not recited in the claimed invention of claim 1. Ans. 5.
Thus, we agree with the Examiner that the claims are directed to an
abstract idea. Because the claims are "directed to an abstract idea," we
consider the claim limitations "both individually and 'as an ordered
combination' to determine whether the additional elements 'transform the
nature of the claim' into a patent-eligible application." Alice, 134 S. Ct. at
2355 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 78-79 (2012)). The Supreme Court has described this analysis "as
a search for an 'inventive concept."' Alice, 134 S.Ct. at 2355. Put
differently, we must search the claims for an "inventive concept," that is, "an
element or combination of elements that is 'sufficient to ensure that the
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patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself."' Alice, 134 S.Ct. at 2355 (quoting Mayo, 132
S. Ct. at 1294).
Here, we agree with the Examiner that that the computer
"automaticallv rewriting" "one or more processors in communication with
the computer readable medium and configured to execute the logic" is
merely used as a tool to implement the identified abstract idea. Ans. 6. As
explained in OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359,
13 63 (Fed. Cir. 2015), "relying on a computer to perform routine tasks more
quickly or more accurately is insufficient to render a claim patent eligible."
See also Alice, 573 U.S. at 224 ("use of a computer to create electronic
records, track multiple transactions, and issue simultaneous instructions" is
not an inventive concept); Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of
Can. (US.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (a computer "employed
only for its most basic function ... does not impose meaningful limits on the
scope of those claims").
For the reasons discussed supra, we are unpersuaded that the
Examiner erred in rejecting under 35 U.S.C. § 101 claim 1 as being directed
to patent-ineligible subject matter. Accordingly, we sustain the Examiner's
rejection of claim 1. Additionally, we sustain the Examiner's rejection of
independent claims 2-20, which recite similar limitations and were not
argued separately. See 37 C.F.R. § 4I.37(c)(l)(iv).
Claims 1-5 and 7-9 stand rejected under 35 USC §103(a)
Appellants argue that the combination of Schultz, Benedikt, and
Wang, either considered individually or in the proposed combination do not
teach or suggest the limitations of:
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automatically rewriting ... in response to the determination
that the query targets the protected inventory, the received
query into a modified query comprising the specified one or
more constraints and an inventory protection constraint of the
protected inventory, the inventory protection constraint
configured to prevent one or more designated eligible online
advertisements resources in the protected inventory from
matching the modified query; [ and]
determining ... a number of eligible online advertisements
resources for the modified query by processing a first number
of on line advertisements resources that satisfy the modified
query.
App. Br. 22. In particular, Appellants argue that the cited
portions of Schultz are silent regarding rewriting the received query
into a modified query. App. Br. 23. In Schultz, the search parameters
of a search are not modified when they are received. Id. A parent's
changing of user-related criteria for the network, such as what
channels a given user can view, is not a modification to the search
parameters or to the associated search. Id. Merely filtering the results
of a search so the network will only display results authorized for a
given user is not the same as rewriting the received query into a
modified query. Schultz only changes which results of the search will
be displayed, rather than rewriting an originally received search into a
modified search. Id.
Appellants further argue that the cited portions of Benedikt are silent
regarding automatically rewriting a received query into a modified query in
response to a determination that the query targets protected inventory, the
modified query including an inventory protection constraint configured to
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prevent one or more designated eligible online advertisements resources in
the protected inventory from matching the modified query. App. Br. 24.
Appellants also argue that Wang's allocating impressions among two
contracts so as to fulfill both contracts while taking into account the relative
priorities of the contracts is not the same as automatically rewriting a
received query into a modified query in response to a determination that the
query targets protected inventory. App. Br. 26-27. The cited portions of
Wang do not even disclose rewriting a received query into a modified query.
Id.
Appellants further argue that the modification of the teachings of the
references would change the principle of operation of the primary reference
Shultz. App. Br. 22-30.
We are not persuaded by Appellants' argument. The Examiner relies
on Schultz for the teaching of performing filtering based on both the query
that targets protected inventory and the user profiles but not merely based on
the user submitted the query as argued by Appellants because in Schulz, the
output is changed based on both the query received and the user profiles.
Ans. 36. Benedikt teaches the general concept of automatically rewriting by
the computer system, the received query into a modified query by adding
restrictions/constraints into the original query /received query /same query.
Ans. 37 citing Fig. 2, col. 15, 11. 1---60 especially 11. 12--45. Thus, it is the
combination of Schultz and Benedikt, but not Schultz alone, cited to teach
"rewriting the received query into a modified query in response to a
determination that the query targets the protected inventory." Ans. 36-37.
Furthermore, the Examiner relied on Wang to teach ( the underlined features)
of receiving a query from a user that specifies one or more constraints on
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one or more attributes associated with the online advertisements resources
(Fig. 7, paras. 29, 65---66). Ans. 42--43.
Accordingly, we sustain the Examiner's rejections of claims 1-5 and
7-9.
Claims 10, 6, and 15 stand rejected under 35 USC §103(a)
Appellants make additional arguments with respect to claims 10, 6,
and 15. App. Br. 30-34. We adopt the Examiner's Answer and Final
Rejection findings with respect to these arguments without having to repeat
them herein. See Ans. 5 3-5 8.
We emphasize that we agree with the Examiner's finding with respect
to Appellants' arguments made regarding Bandy. In particular, we agree
that "analogous art" does not have to be in the same field as the claimed
invention. Ans. 56. A reference is qualified as "analogous art" as long as it
is reasonably pertinent to the problem to be solved. Id. In Bandy, certain
data is tagged for the purpose of identifying certain data for processing. Id.
Thus, we agree with the Examiner that this is reasonably pertinent to the
problem of protecting inventory in the combination of Schultz, Benedikt,
Wang, and Bandy. Id.
We also agree with the Examiner's finding that Ozer teaches
resources that have already been allocated to other consumer by
indicating the overbooking of advertising inventory for a particular target
(Paras. 99, Fig. 2) teaches reservation module 32 delivers a notice to the
individual scheduling advertising impression goals indicating that particular
times are "overbooked" (i.e., two or more different campaigns are scheduled
for the same time with impression targets that exceed available inventory).
Ans. 56. Ozer also teaches not allowing a user to access already booked
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advertising inventory (paras. 99--100). Thus, Ozer is introduced to teach
"resources that have already been allocated to other consumer by indicating
the overbooking of advertising inventory for a particular target." Id.
Accordingly, we sustain the Examiner's rejections of claims 6, 10,
and 15. We also sustain dependent claims 11-14, 16, and 17-20 not argued
separately.
DECISION
The Examiner's rejection of claims 1-20 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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