Ex Parte Meyer et al

Patent Trials and Appeals Board

Jul 1, 2019

14460786 - (D) (P.T.A.B. Jul. 1, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/460,786 08/15/2014
94104 7590 07/01/2019
Taylor English Duma LLP
1600 Parkwood Circle, Suite 200
Atlanta, GA 30339
FIRST NAMED INVENTOR
Karl Meyer
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.
190330-1050 5792
EXAMINER
JOSEPH, TONY A S
ART UNIT PAPER NUMBER
3628
MAIL DATE DELIVERY MODE
07/01/2019 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 KARL MEYER and JONATHAN TURNER
Appeal2018-005294 1
Application 14/460,7862
Technology Center 3600
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
BRADLEY B. BAY AT, Administrative Patent Judges.
BAY AT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants Karl Meyer and Jonathan Turner seek our review under 3 5
U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 4--9, 12-
16, 19-24, and 27-34, which are all the claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision references Appellants' Appeal Brief ("Appeal Br.," filed
Aug. 29, 2017), Reply Brief ("Reply Br.," filed Apr. 23, 2018), the
Examiner's Answer ("Ans.," mailed Feb. 27, 2018), and the Final Office
Action ("Final Act.," mailed May 1, 2017).
2 Appellants identify "XPO Last Mile, Inc." as the real party in interest.
Appeal Br. 2.
Appeal2018-005294
Application 14/460,786
STATEMENT OF THE CASE
Claimed Invention
Appellants' invention is generally related to a notification
management system "for notifying customers of ET As [ estimated time of
arrival] associated with service orders." Spec. ,r 3.
System claims 1, 24, and 31, method claim 9, and computer-readable
medium claim 16 are the independent claims on appeal, and recite
substantially similar subject matter. See Appeal Br., Claims Appendix.
Claim 9, reproduced below, is illustrative of the subject matter on appeal.
9. A computer implemented method comprising:
automatically receiving, by a service application, an initial
estimated time of arrival (ETA) from a service order
management system;
automatically displaying an en route notification interface
on at least one servicer device when it is determined
that the initial ETA is within an ET A notification
window, the en route notification interface enabling
a servicer to enter a modified ETA;
upon displaying the en route notification interface on the
at least one servicer device, receiving from the at
least one servicer device, via the en route
notification interface, the modified ETA and a
selection to initiate a notification to a customer; and
responsive to receiving the selection to initiate a
notification to the customer, transmitting a signal to
the service order management system to notify the
customer of the modified ET A, wherein enabling
the servicer to enter the modified ET A enables the
service order management system to notify the
customer of the modified ET A which is more
accurate than the initial ETA.
Appeal Br. 27, Claims Appendix.
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Rejections
The following rejections are before us for review.
I. Claims 1, 4--9, 12-16, 19-24, and 27-34 are rejected under
35 U.S.C. § 101 as directed to ineligible subject matter in the
form of abstract ideas.
II. Claims 1, 4, 5, 7-9, 12, 13, 15, 16, 19, 20, 22-24, 27, 28, and
30-33 are rejected under 35 U.S.C. § 103 as unpatentable over
Meyer et al. (US 2011/0137698 Al, pub. June 9, 2011)
("Meyer").
III. Claims 6, 14, 21, 29, and 34 are rejected under 35 U.S.C. § 103
as unpatentable over Meyer and Nettles et al. (US
2008/0275582 Al, pub. Nov. 6, 2008) ("Nettles").
ANALYSIS
Rejection I
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 Bank Int '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
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
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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, 191
(1981 )); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 182 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 191 ("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
of our patent laws, ... and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
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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. 2019 REVISED PA TENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84
Fed. Reg. 50 (Jan. 7, 2019) ("Guidance"). Under the 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 activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see Manual of Patent Examining
Procedure ("MPEP") § 2106.05(a}-(c), (e}-(h)).
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:
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(3) adds a specific limitation beyond the judicial exception that
is not "well-understood, routine, conventional" in the field (see
MPEP § 2106.05(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 Guidance 84 Fed. Reg. 51-56.
Appellants argue all pending claims together as a group. Appeal Br.
8-15. We select independent claim 9 as representative for the group. Thus,
claims 1, 4--8, 12-16, 19-24, and 27-34 stand or fall with claim 9. See 37
C.F.R. § 4I.37(c)(l)(iv).
The Examiner determined the claims "are directed to the abstract idea
of initiating a notification to a customer which falls into the categories of [] a
method of organizing human activities." Final Act. 3.
The Specification provides that "a business often may strive to
provide reliable, hindrance-free services in order to foster quality customer
service." Spec. ,r 2. In support of this goal, the Specification describes a
"notification management system" that performs the actions recited in claim
9, as follows. Id. ,r 3. Claim 9 first recites "receiving" data ("an initial
estimated time of arrival (ETA)"). Next, claim 9 recites that when the initial
ETA is determined to be "within an ETA notification window," providing
data to, and receiving data, from a "servicer," where the data is "a modified
ET A" and "a selection to initiate a notification to a customer." The claim
further recites, upon receiving the modified ET A and selection, "transmitting
a signal to the service order management system." The signal is intended to
cause the system "to notify the customer of the modified ET A." The
notification management system provides "more accurate" ETA information
than the initial ET A, and permits the ETA data to be updated, and provided
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to a customer via a telephone call. Spec. ,r,r 53, 56, 57, 74 (cited at Appeal
Br. 5).
Under the broadest reasonable interpretation, the recited steps
( displaying ET A information, receiving updated ET A information, and
signaling to notify a customer of the updated ETA information) of claim 9
reflect a method of organizing human activity. The method involves
updating and communicating data so that the customer is aware of the same
arrival time information as the servicer who is going to the customer's
location, to coordinate the actions of the servicer and customer. This
updating and communicating of arrival time information no doubt has been
performed manually by humans since before the advent of networked
computer communications by word of mouth, and afterwards by using radios
to communicate with servicers and other remote delivery drivers, and
communicating the updated information to customers via telephone.
Under Prong One of Revised Step 2A of the Guidance, we agree with
the Examiner that claim 9 is directed to the abstract idea of notifying
customers of ET As associated with service orders, which is one of certain
methods of organizing human activity (i.e., managing relationships between
people), and thus, an abstract idea. See Guidance 84 Fed. Reg. at 52 see also
MPEP § 2106.04(a)(2)(II)(A).
Independent claims 1, 24, and 31 each recite a "server." Independent
claim 16 recites a "medium" embodying executable instructions. In every
case, the claim is written as a server or medium with structure that executes
steps that are substantially identical to the steps recited in independent
method claim 9. "[ A ]fter Alice, there can remain no doubt: recitation of
generic computer limitations does not make an otherwise ineligible claim
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patent-eligible. The bare fact that a computer exists in the physical rather
than purely conceptual realm is beside the point." DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (internal citations
and quotation marks omitted). Here, independent claims 1, 16, 24, and 31
mimic claim 9, and also are directed to the same abstract idea, because they
merely implement the abstract idea on a particular tangible device or
medium.
Dependent claims 12 and 13 refine the value of time in the "ET A
notification window." Dependent claim 14 recites that an update to an ETA
affects "subsequent stops of the servicer." Dependent claim 15 indicates
that the method "executes on a mobile device of the servicer." These claims,
and similar claims that depend on the independent system and medium
claims, do not alter the abstract idea analysis above, because they are each
encompassed by the same abstract idea the claims are directed to.
Under Prong Two of Revised Step 2A of the Guidance, we evaluate
whether the aforementioned abstract idea is integrated into a practical
application. 84 Fed. Reg. at 54--55. Here, the claims merely receive,
present, update, and communicate data and initiate a notification, using a
"servicer device" and "service order management system" in addition to the
recited abstract method. The servicer device is not limited to any particular
type of computer. Spec. ,r 37 ("[S]ervicer devices 33 may be a device used
by a servicer and may be a mobile phone, other handheld device, laptop
computer, or other types of device."). Likewise, the service order
management system is a general purpose computer server, which "may
include one or more processors and one or more memory" and may execute
a "web-based application or[] webpage." Spec. ,r 35. The service order
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management system "may include multiple components on multiple
computer systems of a network. For example, the managed services 22 of
the service group may comprise computer servers, such as application
servers, file servers, database servers, web servers, etc." Spec. ,r 36.
Because the claims merely implement the claimed methods on general
purpose computers, performing normal data update and communication
functions, the claimed systems, method, and medium do not reflect "an
improvement in the functioning of a computer." Guidance 84 Fed. Reg. at
55. The claims are directed to "notifying customers ofETAs associated with
service orders" (Spec. ,r 3), and thus do not reflect "an improvement to other
technology or technical field." Id. at 55. The claims do not require a
particular machine or manufacture, and do not transform an article to a
different state. Id. Further, the claims merely link the recited abstract idea
generally to a networked computer environment, and thus do no more than
represent a drafting effort to monopolize the abstract idea in a computer
implementation. Id. As such, the abstract idea is not integrated into a
practical application.
Under Step 2B of the Guidance, we evaluate whether the claims
provide an "inventive concept." Id. at 56. The claims, however, do not
recite any limitation or combination of limitations that are more than well-
understood, routine, and conventional activity in the field. The claims
update and communicate arrival time information, which is conventional
activity, because commercial entities that provide service or product
deliveries often keep their customers informed of estimated arrival times.
The use of computers to handle data and communication notifications also is
well-understood and routine use of computers and computer networks.
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Indeed, the operations of storing, analyzing, receiving, and writing data are
primitive computer operations found in any computer system. See In re Katz
Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir.
2011 ). The claims thus do not recite an inventive concept.
We are not persuaded by Appellants' argument, which draws a
parallel with Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
1294 (Fed. Cir. 2016), that the claims "amount to significantly more than a
patent upon the ineligible concept itself," because, allegedly, the presence of
all of the specific claim limitations recited by the independent claims.
Appeal Br. 13-14.
In Amdocs, the court held that "[claim 1] is eligible under step two
because it contains a sufficient 'inventive concept."' Amdocs, 841 F.3d at
1300. The claim at issue recited "computer code for using the accounting
information with which the first network accounting record is correlated to
enhance the first network accounting record." Id. The court explained that
the "claim entails an unconventional technological solution ( enhancing data
in a distributed fashion) to a technological problem (massive record flows
[that] previously required massive databases)." Id. The court noted that,
although the solution requires generic computer components, "the claim's
enhancing limitation necessarily requires that these generic components
operate in an unconventional manner to achieve an improvement in
computer functionality." Id. at 1300--01. When determining that the claim
was patent eligible, the Federal Circuit explained that the "enhancing
limitation necessarily involves the arguably generic gatherers, network
devices, and other components working in an unconventional distributed
fashion to solve a particular technological problem." Id. at 1301. The court
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distinguished the claim from the claims held unpatentable on the grounds
that the "enhancing limitation ... necessarily incorporates the invention's
distributed architecture-an architecture providing a technological solution
to a technological problem." Amdocs, 841 F.3d at 1301 (citations omitted).
But unlike the generic components at issue in Amdocs, the generic
components recited in claim 9 here do not operate in an unconventional
manner to achieve an improvement in computer functionality. Rather, they
merely receive and display data, permit updating of the data and selection of
an option, and send notifications, which are basic computer functions. See
Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378
(Fed. Cir. 2017) (citation omitted) (holding that considering claims reciting
data retrieval, analysis, modification, generation, display, and transmission
as an "ordered combination" reveals that they "'amount to 'nothing
significantly more' than an instruction to apply [an] abstract idea' using
generic computer technology").
We are not persuaded by Appellants' argument that, by only initiating
the notification interface "at appropriate times," the claim invention
"provides an efficient use of processing power and saves performance
bandwidth throughout the notification system," and "therefore provides a
more efficient use of communication technology used within the servicer
device." Appeal Br. 14. "[T]he fact that the required calculations could be
performed more efficiently via a computer does not materially alter the
patent eligibility of the claimed subject matter." Bancorp Servs. v. Sun Life
Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012). Thus,
merely using the devices and communications channels less, because of
logic that limits when the notification interface is displayed, merely may
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alter the amount of work the computers are asked to perform, which does not
improve the computers themselves. Cf MPEP § 2106.06(b ).
We disagree with Appellants' comparison to DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), that the claims "do not
merely recite the performance of some business practice known from the
pre-internet world along with the requirement to perform it on the internet,"
and "they solve an Internet-centric problem with a solution that is
necessarily rooted in communication technology." Appeal Br. 14.
Appellants' reliance on DDR Holdings is unavailing, because the
claims at issue do not address a problem unique to the Internet. See
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1371 (Fed. Cir. 2015) ("The patent at issue in DDR provided an Internet-
based solution to solve a problem unique to the Internet that (1) did not
foreclose other ways of solving the problem, and (2) recited a specific series
of steps that resulted in a departure from the routine and conventional
sequence of events after the click of a hyperlink advertisement. The patent
claims here do not address problems unique to the Internet, so DDR has no
applicability." (Citation omitted)).
The focus here is not on improving any technology, but on using
generic computer operations, in which a computer is used in its ordinary
capacity, for handling data using a generic graphic user interface of a
computer system. Indeed, notifying customers via telephone of updated
arrival time information has been done for years, and did not require the
Internet. The claims thus do not solve an Internet-centric problem, because
notifying customers of ET As associated with service orders (see Spec. ,r 3)
existed before, and was addressed without, the Internet.
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Appellants argue that the claims include an "inventive concept" in that
Appellants assert the claims are not anticipated or rendered obvious by the
cited prior art references, and thus, according to Appellants, the claims are
"non-conventional and non-generic," citing BASCOM Global Internet Servs.
Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016). Appeal
Br. 15 (referring to id. at 16-24).
Contrary to Appellants' argument, we disagree that the claims are
patent-eligible in view of BASCOM. In BASCOM, the Federal Circuit held
that "[t]he inventive concept described and claimed in the '606 patent is the
installation of a filtering tool at a specific location, remote from the end-
users, with customizable filtering features specific to each end user."
Bascom, 827 F.3d at 1350. The court explained that the remote location of a
filtering tool having customizable user-specific filtering features provides
the filtering tool both the benefits of a filter on a local computer and the
benefits of a filter on the ISP server, which is a technical improvement over
prior art ways of filtering content. Id. at 1350-51. Here, Appellants have
not demonstrated any particular arrangement in the claim as providing an
inventive concept parallel to Bascom in claiming a technology-based
solution. Instead, the claims recite well-known methods, implemented on
general-purpose computers and networks, utilizing telephone
communications, not a "technology-based solution."
Appellants argue the claims do not implement an old practice in a new
environment, because the Office does not demonstrate that automatically
displaying a notification interface, when it is determined that an initial
estimated time of arrival is within an ETA notification window, is an old
practice. Reply Br. 8. As we noted above, we have no doubt updating and
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informing customers of arrival time information has been performed
manually by humans for some time. The manual equivalent of the example
"pop-up" (Reply Br. 9) step, for automatically displaying information after
determining an ETA is within a window of time, is a calendar of that day's
service calls or deliveries, that prompts the office agent to contact servicers
to inquire about that day's scheduled stops, and informs the customers of
any changes. We thus discern no new practices claimed, other than
implementing a manual process on a computer. See Credit Acceptance, 859
F.3d 1044, 1055 (Fed. Cir. 2017) ("Our prior cases have made clear that
mere automation of manual processes using generic computers does not
constitute a patentable improvement in computer technology.").
For these reasons, we sustain the rejection of claims 1, 4--9, 12-16,
19-24, and 27-34 under 35 U.S.C. § 101 as directed to ineligible subject
matter.
Rejection II
We are persuaded by Appellants' arguments that Meyer, on which the
Examiner relies, does not disclose automatically displaying an "en route
notification interface," as recited in independent claims 1, 9, 16, 24, and 31.
Appeal Br. 16-22. In support of this limitation, Appellants note that Meyer
discloses a user interface that permits a servicer to enter updated ETA
information, but does not disclose at the cited paragraphs and figures that
Meyer automatically displays the interface based on determining that the
ETA is within a pre-determined window of time. Appeal Br. 18.
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The Examiner finds Meyer disclosed the automatic display as claimed
at paragraphs 94 and 95, and Figures 12D and 13B-D. Final Act. 5; see also
Answer 5---6.
Meyer describes a user interface that a servicer uses to display and
enter information, but Meyer discloses that the servicer first must "select a
first service destination" before screens are displayed to permit entry of
updated ETA information. Meyer ,r 91. For example, in cited Figure 12D,
"[a]fter the servicer has entered or accepted the first destination as described
with respect to FIG. 12A and entered any extra time period needed to reach
that destination, the servicer device 82 may provide a summary of the
location and expected arrival time." Id. ,r 94. Though Meyer discloses "the
servicer device 82 may indicate when a deadline is near, the time remaining
before the scheduled arrival, when the servicer is on schedule, when the
servicer is behind schedule, or other alerts," using "any visual and/or
auditory signals to inform the servicer of the travel progress" (id. ,r 95), this
does not disclose automatically displaying a user interface where an ET A
may be updated, as claimed. Rather than being displayed after a servicer
makes a selection, the claimed invention may be implemented, for example,
with a "pop-up on the service application 35 when the scheduled ETA for
the servicer is within a certain period of time." Spec. ,r 73 (cited at Appeal
Br. 4).
Meyer's user interface thus is not initiated based on "when it is
determined that the initial ETA is within an ETA notification window," as
claimed.
Therefore, we do not sustain the rejection of claims 1, 4, 5, 7-9, 12,
13, 15, 16, 19, 20, 22-24, 27, 28, and 30-33 under 35 U.S.C. § 103 as
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obvious over Meyer, because Meyer does not disclose the automatic display
of a user interface based on the determination that an initial ET A is within a
window of time.
Rejection III
We are persuaded by Appellants' argument that, as to claims 6, 14,
21, 29, and 34, rejected as obvious over Meyer and Nettles, "Nettles does
not cure the deficiencies of Meyer, nor was it cited for such a purpose."
Appeal Br. 24. The Examiner has not established on the record that Nettles
discloses automatically displaying a notification interface based on when an
initial ET A is within an ETA notification window. Therefore, we do not
sustain the rejection of claims 6, 14, 21, 29, and 34, which depends from
claims rejected over Meyer.
DECISION
Rejection I of claims 1, 4--9, 12-16, 19-24, and 27-34 under 35
U.S.C. § 101 is affirmed.
Rejection II under 35 U.S.C. § 103 of claims 1, 4, 5, 7-9, 12, 13, 15,
16, 19, 20, 22-24, 27, 28, and 30-33 is reversed.
Rejection III under 35 U.S.C. § 103 of claims 6, 14, 21, 29 and 34 is
reversed.
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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