Ex Parte Myslinski

Patent Trial and Appeal Board

Oct 24, 2017

14260492 (P.T.A.B. Oct. 24, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/260,492 04/24/2014 Lucas J. Myslinski LJM-00501 2339
28960 7590 10/25/2017
HAVERSTOCK & OWENS LLP
162 N WOLFE ROAD
SUNNYVALE, CA 94086
EXAMINER
JASMIN, LYNDA C
ART UNIT PAPER NUMBER
3629
MAIL DATE DELIVERY MODE
10/25/2017 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 LUCAS J. MYSLINSKI
____________

Appeal 2015-008144
Application 14/260,492
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
TARA L. HUTCHINGS, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1–11 and 14–22. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

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BACKGROUND
Appellant’s invention is directed to automatically verifying the factual
accuracy of information. Spec. 1.
Claim 1 is illustrative:
1. A method programmed in a non-transitory memory of a
device comprising:
a. automatically analyzing social networking information
of a user including:
i. capturing the social networking information
from a social networking system; and
ii. parsing the social networking information into
parsed segments based on punctuation within and at an
end of sentences within the social networking
information;
b. automatically fact checking, using the device, the
social networking information to determine a factual accuracy
of the social networking information by comparing the parsed
segments of the social networking information with source
information, wherein the source information comprises only
approved social networking information, wherein the
approved social networking information includes user-
approved social networking information approved by the user
and contact-approved social networking information approved
by contacts of the user, wherein the approved social
networking information approved by the user or the contacts
of the user comprises visited social networking information
visited by the user or the contacts of the user but not
disapproved by the user or the contacts of the user, wherein
the contacts of the user are the contacts of the user in the
social networking system, wherein fact checking includes
determining a text string of the social networking information
is in the source information, wherein the source information
containing the text string of the social networking information
is an agreeing source, further wherein fact checking includes
determining a number of agreeing highest weighted sources
and multiplying the number of agreeing highest weighted
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sources by a highest weight value, determining the number of
agreeing second highest weighted sources and multiplying the
number of agreeing second highest weighted sources by a
second highest weight value, and continuing through
determining the number of agreeing lowest weighted sources
and multiplying the number of agreeing lowest weighted
sources by a lowest weight value and combining the
multiplying results to determine a total value, and upon
determining the total value is above a fact check threshold, the
automatic fact checking result is true, and upon determining
the total value is not above the fact check threshold, the
automatic fact checking result is false; and
c. automatically presenting a status of the social
networking information in real-time based on the automatic
fact checking result from the comparison of the social
networking information with the source information.

The Examiner relies on the following prior art reference as evidence
of unpatentability:
Terheggen US 2013/0218788 A1 August 22, 2013
Rose US 2013/0091436 A1 April 11, 2013
Myslinski US 8,185,448 B1 May 22, 2012

Appellant appeals the following rejections:
Claims 1–11 and 14–22 under 35 U.S.C. § 101 as directed to non-statutory
subject matter.
Claims 1, 3, 4, 6, 9, 10, 15, 16 and 18 under 35 U.S.C. § 103(a) as
unpatentable over Myslinski and Terheggen;
Claims 2, 11, and 19–22 under 35 U.S.C. § 103(a) as being unpatentable
over Myslinksi, Terheggen, and Rose;
Claims 14 and 17 under 35 U.S.C. § 103(a) as being unpatentable over
Myslinksi, Terheggen, and Official Notice;
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ANALYSIS

Rejection under 35 U.S.C. § 101

An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are
not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
2347, 2354 (2014).
In determining whether a claim falls within the excluded category of
abstract ideas, we are guided in our analysis by the Supreme Court’s two-
step framework, described in Mayo and Alice. Id. at 2355 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97
(2012)). In accordance with that framework, we first determine whether the
claim is “directed to” a patent-ineligible abstract idea. See Alice, 134 S. Ct.
at 2356 (“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.”); Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in
petitioners’ application explain the basic concept of hedging, or protecting
against risk.”); Diamond v. Diehr, 450 U.S. 175, 184 (1981) (“Analyzing
respondents’ claims according to the above statements from our cases, we
think that a physical and chemical process for molding precision synthetic
rubber products falls within the § 101 categories of possibly patentable
subject matter.”); Parker v. Flook, 437 U.S. 584, 594–595 (1978)
(“Respondent’s application simply provides a new and presumably better
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method for calculating alarm limit values.”); Gottschalk v. Benson, 409 U.S.
63, 64 (1972) (“They claimed a method for converting binary-coded decimal
(BCD) numerals into pure binary numerals.”).
The patent-ineligible end of the spectrum includes fundamental
economic practices, Alice, 134 S. Ct. at 2357; Bilski, 561 U.S. at 611;
mathematical formulas, Flook, 437 U.S. at 594–95; and basic tools of
scientific and technological work, Gottschalk, 409 U.S. at 69. On the patent-
eligible side of the spectrum are physical and chemical processes, such as
curing rubber, Diamond, 450 U.S. at 184 n.7, “‘tanning, dyeing, making
waterproof cloth, vulcanizing India rubber, smelting ores,’” Gottschalk, 409
U.S. at 69 (quoting Corning v. Burden, 56 U.S. 252, 267 (1853)), and a
process for manufacturing flour, id. (citing Cochrane v. Deener, 94 U.S. 780
(1876)).
If the claim is “directed to” a patent-ineligible abstract idea, we then
consider the elements of the claim—both individually and as an ordered
combination—to assess whether the additional elements transform the nature
of the claim into a patent-eligible application of the abstract idea. Alice, 134
S. Ct. at 2355. This is a search for an “inventive concept”—an element or
combination of elements sufficient to ensure that the claim amounts to
“significantly more” than the abstract idea itself. Id.
The Examiner held that claim 1 is directed to the abstract idea of fact
checking information against a source, which is a method of organizing
human activities, an idea of itself, or a mathematical relationship or formula.
Supplemental Final Act. 2–3 (hereinafter “Final Act.”). More specifically,
the Examiner determined that the claims were directed to an abstract idea for
two reasons. Ans. 11. The first reason is that the claims are directed to a
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method of organizing human activity. Id. The activity organized is the
organizing and comparing of information to determine truthfulness. Id. The
second reason is that the claims are directed to a set of instructions that
utilize an algorithm that is used to calculate a fact checking score. Id. The
Examiner found that the additional elements or combination of elements in
the claim other than the abstract idea per se amount to no more than mere
instructions to implement the idea on a computer using generic computer
structure. Final Act. 3.
We agree with the Examiner that claim 1 is directed to checking
information against a source and manipulating the data using a mathematical
formula, which is an abstract idea. We additionally note that claims
involving data collection, analysis, and display have been found to be an
abstract idea. See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353
(Fed. Cir. 2016) (holding that “collecting information, analyzing it, and
displaying certain results of the collection and analysis” are “a familiar class
of claims ‘directed to’ a patent ineligible concept”); see also In re TLI
Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir.
2016). Claim 1, like the claims found abstract in prior cases, uses generic
computer technology to perform data collection, analysis, and unlike the
claims found non-abstract in prior cases, does not recite an improvement to a
particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims
not abstract because they “focused on a specific asserted improvement in
computer animation”). As such, claim 1 is directed to the abstract idea of
receiving, analyzing, and displaying data.
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We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claims do not tie up or preempt the entire
concept of checking information against a source. While preemption may
signal patent ineligible subject matter, the absence of complete preemption
does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015), cert.
denied, 136 S. Ct. 701, 193 (2015) (“[T]hat the claims do not preempt all
price optimization or may be limited to price optimization in the e-
commerce setting do not make them any less abstract.”). And, “[w]here a
patent’s claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework, as they are in this case, preemption concerns are
fully addressed and made moot.” Ariosa, 788 F.3d at 1379.
In regard to Appellant’s argument that streamlines eligibility analysis
should be applied to the present claims Appellant mischaracterizes the
purpose of section 1(B)(3) of the 2014 Interim Guidance on Patent Subject
Matter Eligibility guidelines as placing a requirement on the Examiner
(“section 1(B)(3) requires” (App. Br. 17)). Rather, section 1(B)(3) is
available to the Examiner as a discretionary streamlined § 101 Alice/Mayo
analysis favoring Applicant. Section 1(B)(3) is explicit that “if there is doubt
as to whether the applicant is effectively seeking coverage for a judicial
exception itself, the full analysis should be conducted.” Emphasis added.
Contrary to Appellant's argument, the streamlined patent-eligibility
analysis under section 1(B)(3) is not required to be available to Appellants;
rather, it is at the Examiner's discretion. The Examiner choosing to perform
a full § 101 Alice/Mayo analysis is not an error.
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We also find unpersuasive of error on the part of the Examiner
Appellant’s arguments that the claims cover more than organizing human
+activity (see Reply Br. 10), and more than a generic theorem or proof (see
App. Br. 9–10). The Examiner recognized that the claims are not directed to
solely a generic theorem or proof, because in addition to finding that the
claims are directed to an algorithm, the Examiner also determined that the
claims were also directed to a method of organizing human activities. As
such, the Examiner determined that the claims were directed to two abstract
ideas. We note that merely combining abstract ideas does not render the
combination any less abstract. See Elec. Power Grp. v. Alstom S.A., 830
F.3d 1354 (claims focused on a combination of abstract-idea processes are
directed to an abstract idea).
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that claims 2–10 include additional limitations that
further narrow the claimed subject matter, because these additional
limitations are also directed to managing human activity and an algorithm.
For example, claim 2 recites that the method of claim 1 includes additional
steps of determining fact checking scores and comparing those scores with a
threshold and/or each other. These additional steps are also related to
managing human activity and an algorithm.
Turning to the second part of the Alice analysis, we do not agree with
the Appellant that the subject matter of the claims is rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks and is analogous to that in DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). App. Br. 20.
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In DDR, the Court noted that a claim may amount to more than any
abstract idea recited in the claims when it addresses a business challenge,
such as “retaining website visitors,” where that challenge is particular to a
specific technological environment, such as the Internet. In DDR, the court
stated that “the [ ] patent's claims address the problem of retaining website
visitors that, if adhering to the routine, conventional functioning of Internet
hyperlink protocol, would be instantly transported away from a host's
website after ‘clicking’ on an advertisement and activating a hyperlink.”
DDR Holdings, 773 F.3d at 1257. This was done in the claim by serving a
composite page with content based on the link that was activated to serve the
page.
In contrast, claim 1 performs a process that checks information for
accuracy. This problem is not rooted in computer technology. Problems
associated with disseminating inaccurate information through a medium
(social network) is not a technical problem. Human beings have been
checking the accuracy of information that is disseminated for many years.
That the process of checking the accuracy of information can be assisted by
the use of a computer, and that the information is transmitted through a
social network, is not pertinent to determining whether the claim itself
provides a technical solution to a technical problem. In this regard, the
invention does not improve the technical workings of the computer or the
Internet used to transmit the information.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the allowance of certain claims under 35 U.S.C.
§ 103 is evidence that the claims are not directed to insignificant limitations.
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To the extent Appellant maintains that the limitations necessarily amount to
“significantly more” than an abstract idea because the claimed subject matter
is allegedly patentable over the prior art, Appellant misapprehends the
controlling precedent. Although the second step in the Alice/Mayo
framework is termed a search for an “inventive concept,” the analysis is not
an evaluation of novelty or non-obviousness, but rather, a search for “‘an
element or combination of elements that is sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.”’ Alice, 134 S. Ct. at 2355. A novel and
nonobvious claim directed to a purely abstract idea is, nonetheless, patent-
ineligible. See Mayo, 132 S. Ct. at 1304.
We agree with the Examiner’s response to the remaining arguments
found on pages 11–14 of the Answer and adopt same as our own.
In view of the foregoing, we will sustain this rejection.

Rejections under 35 U.S.C. § 103(a)

We will not sustain these rejections because we agree with the
Appellant that the Examiner has not established that the prior art discloses
comparing parsed segments of social networking information with source
information, wherein the social networking information comprises user-
approved source networking information and contact-approved source
networking information, as recited in claim 1 (limitation (b)), and similarly
recited in claims 19 (limitations (c) and (e)) and 20 (limitation (b)(ii)). The
Examiner relies on Myslinski at column 9, lines 25–30 for teaching this
subject matter. Final Act. 4, 9; see also Ans. 4, 8. We find that this portion
of Myslinski discloses that an example of implementation of fact checking
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includes searching, parsing the results or searching through the results of a
search, and comparing the results with source information to retrieve results
based on the comparison. There is no disclosure in this portion of Myslinski
that the source information is user-approved source information or contact
approved source networking information.
In view of the foregoing, we will not sustain the rejections of
independent claims 1, 19, 20 and their dependent claims under 35 U.S.C. §
103(a).

DECISION
We affirm the Examiner’s § 101 rejection.
We do not affirm the Examiner’s § 103 rejections.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1) (2009).

ORDER
AFFIRMED