Ex Parte Milton et al

Patent Trial and Appeal Board

Jun 29, 2018

13769736 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131769,736 02/18/2013
909 7590 07/03/2018
Pillsbury Winthrop Shaw Pittman, LLP
PO Box 10500
McLean, VA 22102
FIRST NAMED INVENTOR
Stephen Milton
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.
034470-0437390 9610
EXAMINER
ROTARU, OCTAVIAN
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN MILTON and DUNCAN MCCALL
Appeal2017-005942
Application 13/769,736 1
Technology Center 3600
Before MURRIEL E. CRAWFORD, AMEE A. SHAH, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 15, 24, and 25. We have jurisdiction under
35 U.S.C. § 6(b ).
We AFFIRM.
1 The Appellants identify PlaceIQ, Inc. as the real party in interest.
Appeal Br. 2.
Appeal2017-005942
Application 13/769,736
ILLUSTRATIVE CLAIM
1. A computer-implemented method comprising:
obtaining a user location dataset indicative of a location
visited by a user, the user location dataset being based at least
in part on a location signal received from a mobile computing
device associated with the user;
determining that the location visited corresponds to a
geographic location of a place of interest;
determining, by a computer, a visit count corresponding
to the location dataset, wherein determining the visit count
corresponding to the location dataset comprises:
identifying a user profile of the user, the user
profile including a characteristic of the user;
obtaining a ratio of members of a group having the
characteristic that also employ a mobile device that can
be detected while in the place of interest, wherein:
the ratio of members of the group having the
characteristic is used to reduce an undercounting
of members of the group having the characteristic
who visit the place of interest and do not employ a
mobile device that can be detected while in the
place of interest, and
the ratio is a function of both an amount of
members of the group having the characteristic and
a portion of the amount of members of the group
having the characteristic who employ a mobile
device that can be detected while in the place of
interest;
reducing the undercounting by increasing the visit
count corresponding to the location dataset based on the
ratio;
adjusting a visit count for the place of interest to include
the visit count corresponding to the location dataset; and
storing the adjusted visit count for the place of interest in
a visitation rate datastore.
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Appeal2017-005942
Application 13/769,736
REJECTIONS
I. Claims 1, 15, 24, and 25 are rejected under 35 U.S.C. § 101 as
ineligible subject matter.
II. Claims 1, 15, 24, and 25 are rejected under 35 U.S.C. § 102(b)
as anticipated by Kramer et al. (US 2011/0093340 Al, pub. Apr. 21, 2011)
(hereinafter, "Kramer").
FINDINGS OF FACT
The findings of fact relied upon, which are supported by a
preponderance of the evidence, appear in the following Analysis.
ANALYSIS
Subject-Matter Eligibility
Issues of subject-matter eligibility are analyzed according to the
framework delineated by the Supreme Court in Alice Corp. Pty. Ltd. v. CLS
Bank International, 134 S. Ct. 2347, 2355 (2014)- first, determining
whether the claim is directed to judicially excepted subject matter (such as a
so-called "abstract idea") and, if so, second, determining whether there are
any "additional elements" recited in the claim that (either individually or as
an "ordered combination") amount to "significantly more" than the
identified judicially excepted subject matter.
As to the first Alice step, the rejection maintains that the claims in the
Appeal are directed to an ineligible abstract idea, characterized as "market
segmentation," which the Examiner regards as a fundamental economic
practice. Final Action 21. Under the second Alice step, the Examiner
determines that the claims lack any additional elements that would be
sufficient to amount to significantly more than the identified abstract idea
itself. Id. at 23-26.
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Application 13/769,736
Although disputing the rejection, the Appellants mistake the
Examiner's recounting of the claimed subject matter (id. at 20) for the
Examiner's identification of the abstract idea to which the claims are
directed (id. at 21). See Appeal Br. 5. Accordingly, none of the Appellants'
arguments (see id. at 6-11 ), although intended to address the sufficiency of
the first Alice step in the rejection, identifies any potential error in the
Examiner's identification of the identified abstract idea of market
segmentation, to which the claims may be directed.
Nor do the Appellants expose any reversible error in the Examiner's
determination, under the second step of the Alice framework, that no claim
element (or combination of elements) amounts to significantly more than the
identified abstract idea. The Appellants contend that "the presently recited
ordered combination of claim elements is clearly nonconventional and non-
routine," specifically:
the ordered combination of operations by which undercounting
is reduced by 1) identifying a user profile of the user with a
characteristic of the user, 2) obtaining a ratio of members of a
group having the characteristic that also employ a mobile
device that can be detected while in the place of interest, 3) and
using the ratio to reduce an undercounting of members of the
group having the characteristic who visit the place of interest.
Appeal Br. 12-13. Yet, this encapsulation of the claim language essentially
applies the identified abstract idea to a particular technological context -
i.e., that of analyzing the attributes of visitors (who have associated mobile
devices) to a place of interest - and refers to data-gathering features of the
claims, such as the use of "mobile device[ s ]" and the focus on a "place of
interest." However, the Appellants do not explain how these elements might
be distinguished from the abstract idea in a way that results in anything that
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Appeal2017-005942
Application 13/769,736
could be regarded as "significantly more." See OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1364 (Fed. Cir. 2015) ("These processes
are well-understood, routine, conventional data-gathering activities that do
not make the claims patent eligible.")
Accordingly, we are not persuaded of reversible error, such that we
sustain the rejection of claims 1, 15, 24, and 25 under 35 U.S.C. § 101.
Anticipation
The Appellants argue that independent claim 1 was rejected
erroneously, because Kramer fails to teach the claimed "ratio of members of
a group having the characteristic that also employ a mobile device that can
be detected while in the place of interest," as recited below in the context of
related claim language (emphasis added):
identifying a user profile of the user, the user
profile including a characteristic of the user;
obtaining a ratio of members of a group having
the characteristic that also employ a mobile device that
can be detected while in the place of interest, wherein:
the ratio of members of the group having the
characteristic is used to reduce an undercounting
of members of the group having the characteristic
who visit the place of interest and do not employ a
mobile device that can be detected while in the
place of interest; and
the ratio is a function of both an amount of
members of the group having the characteristic and
a portion of the amount of members of the group
having the characteristic who employ a mobile
device that can be detected while in the place of
interest.
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Appeal2017-005942
Application 13/769,736
The feature of claim 1, identified by the Appellants, relates to a
technique for estimating the undercount of a group, based upon the fraction
of the group that has "a mobile device that can be detected while in the place
of interest." Kramer involves determining ratios of observed groups, such as
the fraction of certain nightclub attendees, for example, who are men or
women. See Kramer i-fi-1 61---62. However, Kramer does not disclose a
comparison, as recited in the claim, expressing the "ratio of members of a
group" having a certain "characteristic," who "also employ a mobile device
that can be detected while in the place of interest" (emphasis added).
Kramer employs an estimation technique - but it provides only a
"characteristic" -neutral (or, as the Appellants say, "characteristic-agnostic")
ratio of members to total attendees. See Appeal Br. 15-16. See also, Reply
Br. 6-7. Yet, Kramer's technique is not refined (per claim 1 ), so as to
account for members having both detectable mobile devices and a particular
"characteristic." See Appeal Br. 15-16 (citing Kramer ,-r 62).
Accordingly, we are persuaded of error in the rejection of independent
claim 1 and, for similar reasons, independent claims 15, 24, and 25.
Therefore, we do not sustain the rejection of claims 1, 15, 24, and 25 under
35 U.S.C. § 102.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1, 15, 24, and
25 under 35 U.S.C. § 101.
We REVERSE the Examiner's decision rejecting claims 1, 15, 24,
and 25 under 35 U.S.C. § 102(b).
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Appeal2017-005942
Application 13/769,736
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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