Ex Parte Majumder

Patent Trial and Appeal Board

Feb 28, 2019

15212621 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/212,621 07/18/2016
33438 7590 03/04/2019
TERRILE, CANNATTI & CHAMBERS, LLP
P.O. BOX 203518
AUSTIN, TX 78720
FIRST NAMED INVENTOR
Prabir Majumder
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.
DC-107154.01 3466
EXAMINER
BAKER, MATTHEW H
ART UNIT PAPER NUMBER
2659
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
heather@tcciplaw.com
tmunoz@tcciplaw.com
USPTO@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PRABIR MAJUMDER
Appeal2018-004581
Application 15/212,621 1
Technology Center 2600
Before MAHSHID D. SAADAT, JASON J. CHUNG, and
MATTHEW J. McNEILL, Administrative Patent Judges.
CHUNG, 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, 5-9, 11-15, and 17-20. 2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
INVENTION
The invention is directed to providing a text affinity analyzer for
performing communication analytics. Spec. ,r 1. Claim 1 is illustrative of
the invention and is reproduced below:
1. A computer-implementable method for analyzing
text affinity among a plurality of social media communications
1 According to Appellant, Dell Products L.P. is the real party in interest.
App. Br. 1.
2 Claims 4, 10, and 16 are cancelled. App. Br. 7, 8, and 10.
Appeal2018-004581
Application 15/212,621
within a social media environment, the social media environment
comprising a social media system executing on hardware
processor of a social media server, a text affinity analysis system
executing on hardware processor of a text analysis server and an
administrator information handling system, the method
compnsmg:
dividing a first social media communication into first
plurality of social media communication threads received from
the social media system;
dividing a second social media communication into a
second plurality of social media communication threads received
from the social media system;
performing a text affinity analysis operation between
respective threads of the first plurality of social media
communication threads and the second plurality of social media
communication threads; and,
determining a level of intervention to perform based upon
the text affinity analysis operation; and wherein
the dividing the first social media communication, the
dividing the second social media communication and the
performing a text affinity analysis operation are performed by the
text affinity analysis system;
the determining the level of intervention is performed via
the administrator information handling system; and,
the text affinity analysis score is based upon a
Mahalanobis Distance (MD) between respective threads of the
first plurality of social media communication threads and the
second plurality of social media communication threads.
REJECTION AT ISSUE
Claims 1-3, 5-9, 11-15, and 17-20 stand rejected under 35 U.S.C.
§ 101 as being directed to patent ineligible subject matter. Final Act. 3--4.
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ANALYSIS
I. Claims 1-3, 5-9, 11-15, and 17-20Rejected Under35 USC§ 101
A. The Examiners Conclusions and Appellants 'Arguments
The Examiner concludes the present claims are directed to an abstract
idea of mathematical concepts. Ans. 2. And the Examiner determines the
present claims do not amount to significantly more than an abstract idea
because the Examiner finds the abstract idea is implemented on a computer
using generic computers that are well-understood, routine, and conventional
activities previously known to the industry. Final Act. 3.
Appellant argues the present claims are not abstract because they are
directed to an improvement that is a distributed architecture and the claims
do not preempt any abstract idea. App. Br. 4; Reply Br. 1-3. Appellant
argues the present claims are directed to analyzing text affinity among a
plurality of social media communication threads that provide an
improvement over the art in the field. App. Br. 4; Reply Br. 2-3. We
disagree with Appellant.
B. Legal Principles
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Banklnt'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
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Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk.").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 192 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
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of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must 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." Alice, 573 U.S. at 221 (quotation marks omitted). "A
claim that recites an abstract idea must include 'additional features' to
ensure 'that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea]."' Id. (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("Memorandum"). Under that
guidance, we first look to whether the claim recites:
( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human interactions such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)).
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Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.0S(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
C. The Examiners Conclusions and Appellants 'Arguments
1. Step 2A, Prong 1 (Alice Step 1)
As an initial matter, we discern no error in the Examiner's conclusion
that the present claims are directed to an abstract idea of mathematical
concepts. Ans. 2. We consider claim 1 (with emphasis), reproduced below.
1. A computer-implementable method for analyzing
text affinity among a plurality of social media communications
within a social media environment, the social media environment
comprising a social media system executing on hardware
processor of a social media server, a text affinity analysis system
executing on hardware processor of a text analysis server and an
administrator information handling system, the method
compnsmg:
dividing a first social media communication into first
plurality of social media communication threads received from
the social media system;
dividing a second social media communication into a
second plurality of social media communication threads received
from the social media system;
performing a text affinity analysis operation between
respective threads of the first plurality of social media
communication threads and the second plurality of social media
communication threads; and,
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Application 15/212,621
determining a level of intervention to peiform based upon
the text affinity analysis operation; and wherein
the dividing the first social media communication, the
dividing the second social media communication and the
performing a text affinity analysis operation are performed by
the text affinity analysis system;
the determining the level of intervention is performed via
the administrator information handling system; and,
the text affinity analysis score is based upon a
Mahalanobis Distance (MD) between respective threads of the
first plurality of social media communication threads and the
second plurality of social media communication threads.
Additionally, we note that paragraph 34 of Appellant's Specification
states the formula for Mahalanobis Distance is:
MD
In light of the formula from paragraph 34 of Appellant's Specification
illustrated above, we conclude the emphasized portions of claim 1 recite the
abstract idea of a mathematical concepts. Spec. ,r 34.
We, therefore, disagree with Appellant's argument (App. Br. 4; Reply
Br. 1-3) the present claims are not abstract because they are directed to an
improvement that is a distributed architecture. Additionally, we disagree
with Appellant's argument that the present claims are patent eligible because
they do not preempt any abstract idea (App. Br. 4; Reply Br. 1-3); while
preemption may denote patent ineligibility, its absence does not demonstrate
patent eligibility. See FairWarning, IP, LLC v. Iatric Sys., Inc., 839 F.3d
1089, 1098 (Fed. Cir. 2016). For claims covering a patent-ineligible
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concept, preemption concerns "are fully addressed and made moot" by an
analysis under the Mayo/Alice framework. Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Because the present claims recite a mathematical concept, we proceed
to prong 2.
2. Step 2A, Prong 2 (Alice Step 2)
From reproduced claim 1, shown above in the discussion pertaining to
Alice step 1, prong 1, claim 1 does not integrate the abstract idea into a
practical application because it does not impose any meaningful limits on
practicing the abstract idea. In particular, the present claims do not recite
improvements to the functioning of a computer or to any other technology or
technical field; instead, the present claims merely recite a mathematical
concept in a social media environment. Nor do the present claims recite
other meaningful limitations that describes a process or product that applies
the exception in a meaningful way; rather, the present claims recite a
mathematical concept in a social media environment. Because the present
claims are directed to an abstract idea, we proceed to Step 2B.
3. Step 2B, Prong 2 (Alice Step 2)
We discern no error in the Examiner's determination that the
independent claims do not amount to significantly more than an abstract idea
because the Examiner finds the abstract idea is implemented on a computer
using generic computer functions that are well-understood, routine, and
conventional activities previously known to the industry. Final Act. 3. In
addition, we note Appellant's Specification states "a processor (e.g., central
processor unit or 'CPU') 102, input/output (I/0) devices 104, such as a
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display, a keyboard, a mouse, and associated controllers, a hard drive or disk
storage 106, and various other subsystems 108" (emphases added), which
denotes the generic nature of components in information handling system
100. Spec. ,r 16.
We, thus, disagree with Appellant's argument (App. Br. 4; Reply Br.
2-3) that the present claims are directed to analyzing text affinity among a
plurality of social media communication threads that provide an
improvement over the art in the field because this is conclusory. Moreover,
Appellant's argument (App. Br. 4; Reply Br. 2-3) that there is an
improvement over the art in the field better pertains to the abstract idea
prong of the analysis; nonetheless, we determine Appellant fails to explain
how this provides an improvement over the prior art.
Appellant does not argue separately claims 1-3, 5-9, 11-15, and 17-
20 with particularity, but assert the rejections of those claims should be
withdrawn for at least the same reasons. App. Br. 4--5. Accordingly, we
sustain the Examiner's rejection of claims 1-3, 5-9, 11-15, and 17-20 under
35 U.S.C. § 101.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
We affirm the Examiner's decision rejecting claims 1-3, 5-9, 11-15,
and 17-20 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).
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AFFIRMED
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