Ex Parte Hahn et al

Patent Trial and Appeal Board

Mar 14, 2018

11973053 (P.T.A.B. Mar. 14, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/973,053 10/05/2007 June Irene Hahn 10594ML 9060
27752 7590 03/16/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
OUELLETTE, JONATHAN P
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
03/16/2018 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):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUNE IRENE HAHN and MICHAEL JOHN NORTH
Appeal 2017-0004201
Application 11/973,053
Technology Center 3600
Before: MURRIEL E. CRAWFORD, ANTON W. FETTING, and
NINA L. MEDLOCK, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1—13. We have
jurisdiction to review the case under 35 U.S.C. §§ 134(a) and 6(b).
The invention generally “is directed to agent-based computer models
to simulate a consumer packaged goods market.” Spec. 1 lines 8—9.
1 The Appellants identify “The Proctor & Gamble Company” as the real
party in interest. Br. 1.
Appeal 2017-000420
Application 11/973,053
Claim 1, the only independent claim on appeal, is illustrative:
1. A method of predicting product purchase volume
by consumer agents in an agent-based computer model, as an
indicium of consumer's purchase behavior, comprising the steps
of:
(A) defining, in the agent-based computer model,
consumer agents; manufacturer agents; and retailer agents,
wherein:
(a) the consumer agents comprise purchasing
products during shopper trips at the retailer agents, and
wherein each consumer agent independently comprises:
(i) a generateable in-store product
consideration set;
wherein the in -store product consideration
set is generateable for each shopping trip the
consumer agent takes to the retailer agent;
wherein the in-store product consideration
set optionally comprises one or more products,
wherein each product, if present, comprises a
probability that the consumer agent selects the
product for purchase for the shopping trip;
(ii) an out-of-store product attribute
consideration set, wherein each product attribute, if
present, of the product attribute consideration set,
has a probability of influencing the consumer
agent’s in-store product consideration set;
(b) the manufacturer agents comprise at least a
first manufacturer agent and a second manufacturer
agent, wherein the first and second manufacturer agents
comprise:
(i) manufacturing at least a first product
and second product, respectively;
(ii) distributing the first product and the
second product, respectively, to the retailer agents;
(c) the retailer agents comprise at least a first
retailer agent and a second retailer agent, wherein the
first and second retailer agents comprise:
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Application 11/973,053
(i) selling to consumer agents at least a
first product or second product distributed by said
manufacturer agents;
(B) defining, in the agent-based computer model, a
consumer agent purchasing decision filter;
(C) including, in the agent-based computer model, an
out-of-store influencer, or an in-store influencer, or a
combination thereof;
wherein the out-of-store influencer is capable of
influencing the out-of-store product attribute consideration set,
and the in-store influencer is capable of influencing the in—store
product consideration set;
(D) generating each consumer agent’s in-store product
consideration set for each shopping trip by the consumer agent
by applying the consumer agent purchasing decision filter to
compare the consumer agent’s out-of-store product attribute
consideration set with the products available in the retailer
agent wherein the consumer agent is shopping;
(E) running the agent based model on a computer over
a simulated defined time period to obtain the volume of
products purchased by the consumer agents from the retailer
agents.
Claims 1—13 are rejected under 35 U.S.C. § 101 as directed to
ineligible subject matter in the form of an abstract idea.
We AFFIRM.
ANAFYSIS
Claim 1 is directed to developing and running a computer simulation
model to predict consumer buying behavior. See Spec. 1,11. 8—9 (“The
invention is directed to agent-based computer models to simulate a
consumer packaged goods market.”). None of the steps of the method is
outside the scope of what the claim is directed to. The Examiner finds the
claims “are directed to a series of steps for predicting product purchase
volume . . . and running a model over a simulated defined time period.”
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Application 11/973,053
Final Act. 2—3; see also Ans. 2. The claims, thus, establish and execute a
simulation, which is an abstract concept of creating an imaginary scenario.
We are not persuaded by the Appellants’ argument that the claimed
invention “has no analog” in claims found unpatentable as abstract ideas by
the Federal Circuit and U.S. Supreme Court. Br. 3—5. Instead, the claims
before us are quite similar to several claims found to be abstract ideas.
For example, in a case where claims that use received data to
determine a “performance characteristic” and a “scaling factor,” the
Board??? held that “the method steps that accompany the step of
determining a scaling function in each of the independent claims involve
only receiving, outputting, or otherwise manipulating data, namely, cash
flow data for the financial product and values for the index.” Cambridge
Assocs., LLC v. Capital Dynamics, CBM2014-00079, 2015 WL 5159089,
at *8 (Patent Tr. & App. Bd. Aug. 31, 2015), affd, 668 F. App’x 889 (Mem)
(Fed. Cir. 2016). Here, the claims also merely receive, manipulate, and
output data.
The claims here are also similar to a method that generated and
combined data, where the court held “a process that employs mathematical
algorithms to manipulate existing information to generate additional
information is not patent eligible.” Digitech Image Techs., LLC v. Elecs.for
Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014). As in Digitech, the
claims here merely manipulate information to generate additional
information in the form of a prediction.
The claims before us are further similar to those where the court found
“each of the asserted claims, at its heart, is directed to the use of a simulator
to determine whether a memory test violates a set of rules,” because the
claims here also merely simulate a scenario, even though the outcome of the
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Application 11/973,053
memory test simulation was a decision, and the outcome of the claims here
is a prediction. Papst Licensing GmbH & Co. KGv. Xilinx Inc., 193 F.
Supp. 3d 1069, 1084 (N.D. Cal. 2016), aff’d, 684 F. App’x 971 (Fed. Cir.
2017). The court held that claims that recite the use of a simulator, even
with other features such as error handling and optimizers, were all directed
to abstract ideas. 193 F. Supp. 3d at 1092.
We are further unpersuaded by the Appellants’ assertion that the
Examiner has mischaracterized the claims and neglected to consider several
claim limitations, specifically limitations (A), (B), and (C). Br. 4—5. These
limitations merely define the data used in the simulation, and are within the
scope of developing and running a simulation.
Finally, we are unpersuaded by the Appellants’ argument that the
claims do not “seek to pre-empt the use of an abstract idea.” Br. 6. “While
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);
see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63
(Fed. Cir. 2015). (“[T]hat the claims do not preempt all price optimization
or may be limited to price optimization in the e-commerce setting do not
make them any less abstract.”). And, “[wjhere a patent’s claims are deemed
only to disclose patent ineligible subject matter under the Mayo framework,
as they are in this case, preemption concerns are fully addressed and made
moot.” Ariosa, 788 F.3d at 1379.
For these reasons, the Appellants have not demonstrated error in the
Examiner’s rejection of claims 1—13 as being directed to unpatentable
abstract ideas. Therefore, we sustain the rejection of claims 1—13 under
35U.S.C. § 101.
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Application 11/973,053
DECISION
We affirm the rejection of claims 1—13 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)(l)(iv).
AFFIRMED
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