Ex Parte Kirkby et al

Patent Trial and Appeal Board

Dec 11, 2018

13839378 (P.T.A.B. Dec. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/839,378 03/15/2013 Stephen Denis Kirkby
79340 7590 12/13/2018
MANNA VA & KANG, P.C.
3201 Jermantown Road
SUITE 525
FAIRFAX, VA 22030
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.
D l 2-008-02526-00-US 9879
EXAMINER
JESSEN, DEREK
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
12/13/2018 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):
ASHOKM@MANNA V AKANG.COM
docketing@mannavakang.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte STEPHEN DENIS KIRKBY;
DAVID WALTER SKINNER; ROBERT LAWRENCE; and
WARREN HUTCHINSON
Appeal2017-008517
Application 13/839,378 1
Technology Center 3600
Before JOHN A. JEFFERY, LARRY J. HUME, and JENNIFER L.
McKEOWN, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 3, 4, 7-9, 11-16, and 18-20, which are all claims
pending in the application. Appellants have canceled claims 2, 5, 6, 10,
and 17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Accenture Global
Services Limited. App. Br. 3.
Appeal2017-008517
Application 13/839,378
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed embodiments and claimed invention relate to a
marketing campaign management system. Spec., Title. More specifically,
the disclosed and claimed campaign management system
includes a data collection subsystem to collect and store data
from a plurality of different sources that may be related to a
plurality of different marketing channels. The system also
includes a map generation subsystem to generate a map that
includes a visual representation of performance of the plurality
of marketing channels. A performance metric adjustment factor
may be determined for one or more performance metrics to
determine an actual value performance metric for each metric.
The actual value performance metrics may be aggregated and
compared to benchmarks to generate a visual representation of
the entire campaign performance across the plurality of data
sources.
Spec. ,r 3.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal ( emphases added to contested prior-art limitations):
1. An online campaign management system
compnsmg:
a data collection subsystem to receive data for a plurality
of different online marketing channels for a marketing
campaign from a plurality of data sources and store the data in a
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Nov. 29, 2016); ReplyBrief("ReplyBr.," filed May 19, 2017); Examiner's
Answer ("Ans.," mailed Mar. 20, 2017); Final Office Action ("Final Act.,"
mailed July 1, 2016); and the original Specification ("Spec.," filed
Mar. 15, 2013).
2
Appeal2017-008517
Application 13/839,378
data store, each of the plurality of online marketing channels
being a different medium for distribution of communications,
wherein at least one of the different online marketing channels
comprises an Internet marketing channel; and
a map generation subsystem comprising:
at least one processor;
performance metric determination machine
readable instructions executable by the at least one
processor to determine performance metrics for the
plurality of different online marketing channels
from the data for the plurality of different online
marketing channels and calculate a value for each
of the performance metrics for a marketing
campaign map;
a low-latency data store to store the values
for the performance metrics;
threshold determination machine readable
instructions executable by the at least one
processor to calculate a plurality of thresholds
based on stored historical performance of the
plurality of different online marketing channels,
and compare the values for the performance
metrics to the plurality of thresholds to determine
whether the performance metrics are
underperforming, potentially underperforming, or
are satisfactory and store an indication of whether
each of the performance metrics is
underperforming, potentially underperforming or
satisfactory based on the comparisons; and
map generator machine readable instructions
executable by the at least one processor to generate
the marketing campaign map in a single screen of
a graphical user interface, the marketing map
comprising:
a plurality of nodes connected by links,
the plurality of nodes including endpoint nodes
3
Appeal2017-008517
Application 13/839,378
and a target node representing a goal for the
marketing campaign, each of the endpoint
nodes representing a respective different online
marketing channel of the plurality of different
online marketing channels, including at least
one of a social media marketing channel, a
website marketing channel, a search marketing
channel including paid search, a natural search
marketing channel, and a media asset marketing
channel and providing marketing information
pertaining to the performance metrics for the
respective different online marketing channel;
and
a data flow for each endpoint node,
shown on a link of the plurality of links
connecting the endpoint node to the target
node, wherein each data flow shows a
contribution of the respective marketing
channel for the endpoint node to the goal, and
the contribution is determined from the
performance metric for the respective
marketing channel,
wherein the at least one processor executing the
performance metric determination machine readable
instructions is to [sic] determine metrics associated with the
goal from the performance metrics, and to determine a total
based on the contributions of the data flows, and
wherein the at least one processor executing the map
generator machine readable instructions is to:
display the metrics associated with the goal
and the total with the target node in the marketing
campaign map, and
update the marketing campaign map,
including each data flow, to show the metrics
associated with the goal, and the total, in real time
based on recent values for the performance metrics
retrieved from the low-latency data store.
4
Appeal2017-008517
Application 13/839,378
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Frazer et al. ("Frazer") US 2010/0049538 Al Feb. 25, 2010
Graff US 2012/0005023 Al Jan. 5, 2012
Hsiao et al. ("Hsiao") US 2013/0021345 Al Jan. 24, 2013
Rejections on Appea/3
RI. Claims 1, 3, 4, 7-9, 11-16, and 18-20 stand rejected under 35
U.S.C. § 101 as being directed to patent-ineligible subject matter. Ans. 2.
R2. Claims 1, 3, 4, 7-9, 11, 13-16, 18, and 20 stand rejected under
35 U.S.C. § I03(a) as being unpatentable over the combination of Frazer and
Hsiao. Final Act. 6.
R3. Claims 12 and 19 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over the combination of Frazer, Hsiao, and Graff. Final
Act. 14.
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 30-37; Reply Br. 4--13)
and our discretion under 37 C.F.R. § 4I.37(c)(l)(iv), we decide the appeal of
patent-ineligible subject matter Rejection RI of claims 1, 3, 4, 7-9, 11-16,
and 18-20 on the basis of representative claim 1 ;and we decide the appeal of
obviousness Rejection R2 of claims 1, 3, 4, 7-9, 11, 13-16, 18, and 20 on
3 We note the Examiner replaced the § 101 rejection of claims 1, 3, 4, 7-9,
11-16, and 18-20 imposed in the Final Action (2) with a new ground of
rejection of these claims under§ 101 in the Answer (2).
5
Appeal2017-008517
Application 13/839,378
the basis of representative claim 1. Remaining claims 12 and 19 in
Rejection R3, not argued separately, stand or fall with the respective
independent claim from which they depend.
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. To the extent Appellants have not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 4I.37(c)(l)(iv).
Based upon our review of the record, we find a preponderance of the
evidence supports particular arguments advanced by Appellants with respect
to Rejection R2 of claim 1 for the specific reasons discussed below.
However, disagree with Appellants' arguments with respect to
Rejection RI of claim 1 and, unless otherwise noted, we incorporate by
reference herein and adopt as our own: (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken, and (2) the
reasons and rebuttals set forth in the Examiner's Answer in response to
Appellant's Appellants' arguments. We highlight and address specific
findings and arguments regarding claim 1 for emphasis as follows.
1. § 101 Rejection RI of Claims 1, 3, 4, 7-9, 11-16, and 18-20
Issue 1
Appellants argue (Reply Br. 4--9) the Examiner's rejection of claim 1
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter is
in error. These contentions present us with the following issue:
6
Appeal2017-008517
Application 13/839,378
Under our governing case law concerning 35 U.S.C. § 101, did the
Examiner err in concluding claim 1 is directed to a judicial exception, i.e., an
abstract idea, without significantly more, and thus is patent-ineligible under
§ 101?
Analysis
Alice Framework
Section 101 provides that anyone who "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. 35 U.S.C. § 101.
The Supreme Court has repeatedly emphasized that patent protection should
not extend to claims that monopolize "the basic tools of scientific and
technological work." Gottschalk v. Benson, 409 U.S. 63, 67 (1972); Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012);
Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014).
Accordingly, laws of nature, natural phenomena, and abstract ideas are not
patent-eligible subject matter. Alice Corp., 134 S. Ct. at 2354.
The Supreme Court's two-part Alice framework guides us in
distinguishing between patent claims that impermissibly claim the "building
blocks of human ingenuity" and those that "integrate the building blocks into
something more." Alice Corp., 134 S. Ct. at 2354 (internal quotation marks,
citation, and bracketing omitted). First, we "determine whether the claims at
issue are directed to [a] patent-ineligible concept[]." Id. at 2355. Ifso, we
"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." Id. at 2357 (quoting Mayo, 566 U.S. at 72, 79).
7
Appeal2017-008517
Application 13/839,378
Although the two steps of the Alice framework are related, the "Supreme
Court's formulation makes clear that the first-stage filter is a meaningful one,
sometimes ending the § 101 inquiry." Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). We note the Supreme Court
"has not established a definitive rule to determine what constitutes an
'abstract idea"' for the purposes of step one. Enfzsh, LLC v. Microsoft Corp.,
822 F.3d 1327, 1334 (Fed. Cir. 2016) (citing Alice, 134 S. Ct at 2357).
However, our reviewing court has held claims ineligible as directed to
an abstract idea when they merely collect electronic information, display
information, or embody mental processes that could be performed by
humans. Elec. Power Grp., 830 F.3d at 1353-54 (collecting cases). At the
same time, "all inventions at some level embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas." Mayo, 566 U.S.
at 71. Abstract ideas may include, but are not limited to, fundamental
economic practices, methods of organizing human activities, an idea of
itself, and mathematical formulas or relationships. Alice 134 S. Ct. at 2355-
57. Under this guidance, we must therefore ensure at step one that we
articulate what the claims are directed to with enough specificity to ensure
the step one inquiry is meaningful. Id. at 2354 ("[W]e tread carefully in
construing this exclusionary principle lest it swallow all of patent law.").
Under the "abstract idea" step we must evaluate "the 'focus of the
claimed advance over the prior art' to determine if the claim's 'character as a
whole' is directed to excluded subject matter." Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (internal citation
omitted). If the claims are not directed to a patent-ineligible concept, the
inquiry ends. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253,
8
Appeal2017-008517
Application 13/839,378
1262 (Fed. Cir. 2017). If the concept is directed to a patent-ineligible
concept, we proceed to the "inventive concept" step. For that second step
we must "look with more specificity at what the claim elements add, in order
to determine 'whether they identify an "inventive concept" in the application
of the ineligible subject matter' to which the claim is directed." Affinity
Labs, 838 F.3d at 1258 (quoting Elec. Power Grp., 830 F.3d at 1353).
Alice Step I -Abstract Idea
In the new ground of Rejection RI under§ 101 in the Answer, the
Examiner concludes, "limitations [in the claims on appeal] are considered to
set forth the abstract idea because the claims are directed toward a method of
collecting information, analyzing it, and providing certain results of the
collection analysis which has been found by the courts in Electric Power
Group to be an abstract idea in and of itself." Ans. 3. The Examiner further
concludes the "determining performance metrics," "calculating values for the
performance metrics," "calculating a plurality of thresholds," "determining
metrics associated with the goal," and "determining a total based on the
contributions of the data flows," have "been found by the courts in Abele to
be directed to the abstract idea of a mathematical relationship or formula.
The concepts described in claim 1 are not meaningfully different than those
concepts found by the courts to be abstract ideas." Ans. 3--4. 4 We disagree
with the Examiner's conclusions.
We agree with the Examiner's conclusions that the claims are directed
to an abstract idea for the reasons discussed below.
4 Citing In re Abele, 684 F.2d 902 (CCPA 1982) (abrogated by In re Bilski,
545 F.3d 943 (Fed. Cir. 2008)).
9
Appeal2017-008517
Application 13/839,378
Under the "abstract idea" step we must evaluate "the 'focus of the
claimed advance over the prior art' to determine if the claim's 'character as a
whole' is directed to excluded subject matter." Affinity Labs, 838 F.3d at
1257 ( citation omitted).
Turning to the claimed invention, claim 1 recites, in pertinent part,
"map generator machine readable instructions executable by the at least one
processor to generate the marketing campaign map in a single screen of a
graphical user interface," "wherein the at least one processor executing the
map generator machine readable instructions is to ... update the marketing
campaign map, including each data flow, to show the metrics associated
with the goal, and the total, in real time based on recent values for the
performance metrics retrieved from the low-latency data store." Claim 1.
Appellants contend "[s]imilar to the holding in Trading Technologies,
the instant claims are associated with improvements in existing graphical
user interface devices. Unlike conventional graphical user interfaces for
mixed marketing channels, the claimed graphic user interface displays,
simultaneously, the flow of real-time metrics across multiple marketing
channels (see FIG. 4 of the present application)." Reply Br. 8 (citing non-
published decision Trading Technologies International, Inc. v. CQG, INC.,
675 Fed.Appx. 1001 (Fed. Cir. 2017)).
Appellants generally contend the patentability of the claims on Appeal
is not dictated by Electric Power Group or Abele. Reply Br. 4. More
specifically, Appellants argue, "the claims recite elements that are
sufficiently more than the asserted abstract idea" (id.), and
10
Appeal2017-008517
Application 13/839,378
the claims describe in detail the generating and updating in real
time of a marketing campaign map comprising a plurality of
nodes and a data flow for each endpoint node. Contrary to the
functions described in general terms in Electric Power Group,
the claimed features are described in detail, and are
significantly more that the mere collection, analysis, and
display of available information.
Reply Br. 5---6. 5
In Electric Power Group, the Federal Circuit held "merely selecting
information, by content or source, for collection, analysis, and display does
nothing significant to differentiate a process from ordinary mental processes,
whose implicit exclusion from § 101 undergirds the information-based
category of abstract ideas." Electric Power Group, LLC v. Alstom S.A., 830
F.3d 1350, 1355 (Fed. Cir. 2016). In addition, "merely 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." Id. at 13 54--5 5.
We conclude the claims in Electric Power Group and our reviewing
court's decision rendered therein to be more on point to this Appeal than the
decision in Trading Technologies.
In Electric Power Group, representative claim 12 of U.S. Patent
8,401,710 recited:
12. A method of detecting events on an interconnected
electric power grid in real time over a wide area and
automatically analyzing the events on the interconnected
electric power grid, the method comprising:
5 We note the "significantly more" argument is generally appropriate in a
Step 2 Alice analysis.
11
Appeal2017-008517
Application 13/839,378
receiving a plurality of data streams, each of the data
streams comprising sub-second, time stamped synchronized
phasor measurements wherein the measurements in each stream
are collected in real time at geographically distinct points over
the wide area of the interconnected electric power grid,
the wide area comprising at least two elements from
among control areas, transmission companies, utilities, regional
reliability coordinators, and reliability jurisdictions;
receiving data from other power system data sources, the
other power system data sources comprising at least one of
transmission maps, power plant locations, EMS/SCADA
systems;
receiving data from a plurality of non-grid data sources;
detecting and analyzing events in real-time from the plurality of
data streams from the wide area based on at least one of limits,
sensitivities and rates of change for one or more measurements
from the data streams and dynamic stability metrics derived
from analysis of the measurements from the data streams
including at least one of frequency instability, voltages, power
flows, phase angles, damping, and oscillation modes, derived
from the phasor measurements and the other power system data
sources in which the metrics are indicative of events, grid
stress, and/or grid instability, over the wide area;
displaying the event analysis results and diagnoses of
events and associated ones of the metrics from different
categories of data and the derived metrics in visuals, tables,
charts, or combinations thereof, the data comprising at least one
of monitoring data, tracking data, historical data, prediction
data, and summary data;
displaying concurrent visualization of measurements
from the data streams and the dynamic stability metrics directed
to the wide area of the interconnected electric power grid;
accumulating and updating the measurements from the
data streams and the dynamic stability metrics, grid data, and
non-grid data in real time as to wide area and local area portions
of the interconnected electric power grid; and
12
Appeal2017-008517
Application 13/839,378
deriving a composite indicator of reliability that is an
indicator of power grid vulnerability and is derived from a
combination of one or more real time measurements or
computations of deriving a composite indicator of reliability
that is an indicator of power grid vulnerability and is derived
from a combination of one or more real time measurements or
computations of measurements from the data streams and the
dynamic stability metrics covering the wide area as well as non-
power grid data received from the non-grid data source.
U.S. Patent 8,401,710, claim 12.
We conclude the limitations in this Electric Power Group claim are
analogous to claim 1 on Appeal, although in a different field of use.
Claim 12, above, and claim 1 on Appeal both collect and display real-time
data from disparate sources using plural data streams.
In Trading Technologies, however, the Federal Circuit's holding that
the particular graphical user interface claimed in that case was patent eligible
turned on the District Court's distinction over prior-art graphical user
interfaces:
Neither the claims of the '304 patent nor the claims of the '132
patent are directed to solely "setting, displaying, and selecting"
data or information that is visible on the GUI device. Rather,
the claims are directed to solving a problem that existed with
prior art GUis, namely, that the best bid and best ask prices
would change based on updates received from the market.
There was a risk with the prior art GUis that a trader would
miss her intended price as a result of prices changing from
under her pointer at the time she clicked on the price cell on the
GUI. The patents-in-suit provide a system and method whereby
traders may place orders at a particular, identified price level,
not necessarily the highest bid or the lowest ask price because
the invention keeps the prices static in position, and allows the
quantities at each price to change.
13
Appeal2017-008517
Application 13/839,378
Trading Technologies International, Inc. v. CQG, Inc., 2015 WL 774655 *4
(N.D. Ill. 2015). 6
6 Claim 1 in Trading Technologies reads as follows:
1. A method for displaying market information relating to and
facilitating trading of a commodity being traded in an electronic
exchange having an inside market with a highest bid price and a
lowest ask price on a graphical user interface, the method
compnsmg;
dynamically displaying a first indicator in one of a plurality of
locations in a bid display region, each location in the bid
display region corresponding to a price level along a common
static price axis, the first indicator representing quantity
associated with at least one order to buy the commodity at the
highest bid price currently available in the market;
dynamically displaying a second indicator in one of a plurality
of locations in an ask display region, each location in the ask
display region corresponding to a price level along the common
static price axis, the second indicator representing quantity
associated with at least one order to sell the commodity at the
lowest ask price currently available in the market;
displaying the bid and ask display regions in relation to fixed
price levels positioned along the common static price axis such
that when the inside market changes, the price levels along the
common static price axis do not move and at least one of the
first and second indicators moves in the bid or ask display
regions relative to the common static price axis;
displaying an order entry region comprising a plurality of
locations for receiving commands to send trade orders, each
location corresponding to a price level along the common static
price axis; and
in response to a selection of a particular location of the order
entry region by a single action of a user input device,
setting a plurality of parameters for a trade order relating to
the commodity and sending the trade order to the electronic
exchange.
14
Appeal2017-008517
Application 13/839,378
We do not find such a distinction to be present in claim 1 on Appeal.
Therefore, under step one, we agree with the Examiner that the
inventions claimed in each of independent claims 1, 14, and 20 are merely
directed to the abstract idea of "collecting information, analyzing it, and
providing certain results of the collection analysis." See Ans. 3.
Alice Step 2 -Inventive Concept
If the claims are directed to a patent-ineligible concept, as we
conclude above, we proceed to the "inventive concept" step. For that step
we must "look with more specificity at what the claim elements add, in order
to determine 'whether they identify an "inventive concept" in the application
of the ineligible subject matter' to which the claim is directed." Affinity
Labs, 838 F.3d at 1258 (quoting Elec. Power Grp., 830 F.3d at 1353).
In applying step two of the Alice analysis, our reviewing court guides
we must "determine whether the claims do significantly more than simply
describe [the] abstract method" and thus transform the abstract idea into
patentable subject matter. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715 (Fed. Cir. 2014). We look to see whether there are any "additional
features" in the claims that constitute an "inventive concept," thereby
rendering the claims eligible for patenting even if they are directed to an
abstract idea. Alice, 134 S. Ct. at 2357. Those "additional features" must be
more than "well-understood, routine, conventional activity." Mayo, 566
U.S. at 79.
Limitations referenced in Alice that are not enough to qualify as
"significantly more" when recited in a claim with an abstract idea include, as
U.S. patent 6,772,132, Claim 1 (emphasis added).
15
Appeal2017-008517
Application 13/839,378
non-limiting or non-exclusive examples: adding the words "apply it" (or an
equivalent) with an abstract idea; 7 mere instructions to implement an
abstract idea on a computer; 8 or requiring no more than a generic computer
to perform generic computer functions that are well-understood, routine and
conventional activities previously known to the industry. 9
Evaluating representative claim 1 under step 2 of the Alice analysis,
we agree with the Examiner that it lacks an inventive concept that
transforms the abstract idea of collecting information, analyzing it, and
providing certain results of the collection analysis into a patent-eligible
application of that abstract idea. See Ans. 4---6. 10
7 Alice, 134 S. Ct. at 2357-58.
8 Alice, 134 S. Ct. at 2357, e.g., simply implementing a mathematical
principle on a physical machine, namely a computer (citing Mayo, 566 U.S.
at 84--85).
9 Alice, 134 S. Ct. at 2359, e.g., using a computer to obtain data, adjust
account balances, and issue automated instructions.
10 The Examiner concludes:
The claim recites the additional limitations of a processor for
executing machine readable instructions and a display for the
marketing campaign map. The processor and display are
generic computer components that perform the generic
functions of displaying and executing instructions. The storing
of values for the performance metrics in a data store and storing
an indication of whether each of the performance metrics is
underperforming, potentially underperforming or satisfactory
based on the comparisons are generic and conventional
computer functions. Generic computer components recited as
performing generic computer functions that are well-
understood, routine and conventional activities amount to no
more than implementing the abstract idea with a computerized
system.
Ans. 4.
16
Appeal2017-008517
Application 13/839,378
We note the patent eligibility inquiry may contain underlying issues of
fact. Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314,
1325 (Fed. Cir. 2016). In particular, "[t]he question of whether a claim
element or combination of elements is well-understood, routine and
conventional to a skilled artisan in the relevant field is a question of fact."
Berkheimer, 881 F.3d at 1368.
As evidence of the conventional nature of the claimed network
components and processes, we note Appellant's Specification in
paragraphs 29--33 and 50. For example:
The computer system 200 includes processor(s) 201,
such as a central processing unit, ASIC or other type of
processing circuit, input/output devices 202, such as a display,
mouse keyboard, etc., a network interface 203, such as a Local
Area Network (LAN), a wireless 802.1 lx LAN, a 3G or 4G
mobile WAN or a WiMax WAN, and a computer-readable
medium 204. Each of these components may be operatively
coupled to a bus 208. The computer readable medium 204 may
be any suitable medium which participates in providing
instructions to the processor(s) 201 for execution. For example,
the computer readable medium 204 may be non-transitory or
non-volatile medium, such as a magnetic disk or solid-state
non-volatile memory or volatile medium such as RAM. The
instructions stored on the computer readable medium 204 may
include machine readable instructions executed by the
processor(s) 201 to perform the methods and functions of the
system 100.
Spec. ,r 30.
We agree with the Examiner that the claim limitations may be broadly
but reasonably construed as reciting conventional computer components and
17
Appeal2017-008517
Application 13/839,378
techniques, particularly in light of Appellant's Specification, as quoted
above. 11
With respect to the Step 2 analysis, we agree with the Examiner
because, as in Alice, the recitation of an "online campaign management"
using a "a data collection subsystem" and a "a map generation subsystem"
using "a processor" (claim 1), is simply not enough to transform the patent-
ineligible abstract idea here into a patent-eligible invention. See Alice, 134
S. Ct. at 2357 ("[C]laims, which merely require generic computer
implementation, fail to transform [an] abstract idea into a patent-eligible
invention."). 12
Accordingly, based upon the findings above, on this record, we are
not persuaded of error in the Examiner's conclusion that the appealed claims
are directed to patent-ineligible subject matter. Therefore, we sustain the
Examiner's§ 101 rejection of independent claim 1, and grouped claims 3, 4,
7-9, 11-16, and 18-20, not argued separately, and which fall therewith. See
Claim Grouping, supra.
11 During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using "the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
12 Appellant merely alleges, " [ s ]imilar to the holding in Trading
Technologies, the instant claims are associated with improvements in
existing graphical user interface devices." Reply Br. 8.
18
Appeal2017-008517
Application 13/839,378
2. § 103 Rejection R2 of Claims 1, 3, 4, 7-9, 11, 13-16, 18 and 20
Issue 2
Appellants argue (App. Br. 30-36; Reply Br. 10-13) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Frazer and Hsiao is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests " [ a ]n online campaign management system" that includes, inter
alia, the limitations of "map generator machine readable instructions
executable by the at least one processor to generate the marketing campaign
map in a single screen of a graphical user interface, the marketing map
comprising: a plurality of nodes connected by links," and "a data flow for
each endpoint node, shown on a link of the plurality of links connecting the
endpoint node to the target node," as recited in claim 1? (emphases added).
Analysis
The Examiner cites Hsiao at Figure 10 and paragraph 85 as teaching
or suggesting the contested limitation. Final Act. 7; Ans. 10-12.
In response, Appellants contend:
As reproduced below, FIG. 10 and the cited portion of Hsiao
appears to be directed to an interface to depict a number of
individual, disconnected graphs.
Particularly, Hsiao specifically states, "FIG. 10 illustrates
a sample user interface to display graphs of various channels in
accordance with an illustrative embodiment. The sample user
interface includes a number of graphs 1002, 1004, 1006, 1008,
1010, and 1014 that are generated in accordance with an
illustrative embodiment." Hsiao, para. [0085]. None of the
19
Appeal2017-008517
Application 13/839,378
depicted graphs are depicted as an endpoint node or a target
node. As such, the cited portion does not teach or suggest "a
plurality of nodes connected by links," as recited in independent
claim 1.
Furthermore, because Hsiao, FIG. 10, depicts individual
disconnected graphs, FIG. 10 and paragraph [0085] of Hsiao
does not, and cannot, teach or suggest,
a data flow for each endpoint node, shown
on a link of the plurality of links connecting the
endpoint node to the target node [Emphasis added]
Therefore, the proposed combination of Frazer and Hsiao
therefore fails to render independent claim 1 prima facie
obvious.
Reply Br. 11-13. We agree with Appellants' argument with respect to the
deficiencies of the teachings of Hsiao, and refer to Figure 10 of Hsiao for
emphasis:
---------------------------- ----------------------
~-1018
f'unool contribution per channel f0< 121,604 total cor,ven;ions--°'
Org,1,111,c Se-aret.t tnbe.r~~ Oir-ect f::intracil:ons ?iMtl S~h lnit&'l'~omi, -;1002 ..-::;1004 ~1006
oog,.-,:,)r{l nrn;l n~g1ori1,1g 6..r.t'! - b-~nnii~q ()or,"! ~ •• i016
44.24% ot i~ ~l:WS~ 2$.66%- or toteJ WW.im1.i011a 18.21% .::rf Total Q:.1Na-:stonir·~
S,occia~ Network lnWoction~
.........._ _'.iW14 _.-....,.
t:-c,g1l'rn,1g "'r:d
1:65% otTo~ Canv~iDris
FIG. 10
Figure 10 of Hsiao illustrates a sample user interface to display graphs
of various channels in accordance with an illustrative embodiment.
With respect to Figure 10, Hsiao further teaches:
20
Appeal2017-008517
Application 13/839,378
A graph can be generated for a number of channels. In
one embodiment, a graph is generated for every known channel.
In another embodiment, a selective list of one or more channels
is received, and a graph for each of the received channels is
generated. FIG. 10 illustrates a sample user interface to display
graphs of various channels in accordance with an illustrative
embodiment. The sample user interface includes a number of
graphs 1002, 1004, 1006, 1008, 1010, and 1014 that are
generated in accordance with an illustrative embodiment. As
illustrated, the area under the graph line can be filled in with a
color. In addition to the graphs, the user interface can include
further information 1016 regarding the conversions associated
with a particular channel. For instance, that total number of
conversions and/or the percentage of conversions associated
with each channel can be provided. Other information can also
be provided in addition or in the alternative. For example, the
average position of a user interaction, the average conversion
path length, and/or the value associated with the conversions
can be provided. The user interface can also include
information 1018 regarding all conversions that are illustrated
in the graphs.
Hsiao, ,r 85.
We agree with Appellants' analysis that Hsiao, at least at the portions
cited by the Examiner as quoted above, do not teach or suggest the contested
limitations. In particular, we find, as argued by Appellants, "[n]one of the
depicted graphs are depicted as an endpoint node or a target node ... [ such
that Hsiao] does not teach or suggest 'a plurality of nodes connected by
links,' as recited in independent claim 1." Reply Br. 12.
For essentially the same reasons argued by Appellants (id.), we
reverse the Examiner's rejection of independent claim 1, and also the
rejection of independent claims 14, and 20, which recite the disputed
limitations in commensurate form. For the same reasons, we also reverse
21
Appeal2017-008517
Application 13/839,378
the rejections of all claims 3, 4, 7-9, 11, 13, 15, 16, and 18, rejected under
Rejection R2, and which depend from independent claims 1 and 14.
In light of our reversal of the rejections of independent claims 1
and 14, supra, we also reverse obviousness Rejection R3 under § 103 of
claims 12 and 19, which depend from claims 1 and 14, respectively. On this
record, the Examiner has not shown how the additionally cited Graff
reference overcomes the aforementioned deficiencies with Frazer and Hsiao,
as discussed above regarding claim 1.
CONCLUSIONS
(1) The Examiner did not err with respect to patent-ineligible
subject matter Rejection RI of claims 1, 3, 4, 7-9, 11-16, and 18-20 under
35 U.S.C. § 101, and we sustain the rejection.
(2) The Examiner erred with respect to obviousness Rejections R2
and R3 of claims 1, 3, 4, 7-9, 11-16, and 18-20 under 35 U.S.C. § I03(a)
over the cited prior art combinations of record, and we do not sustain the
rejections.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision. See 37
C.F.R. § 4I.50(a)(l).
DECISION
We affirm the Examiner's decision rejecting claims 1, 3, 4, 7-9, 11-
16, and 18-20.
AFFIRMED
22