Ex Parte Paulsen et al

Patent Trial and Appeal Board

Dec 20, 2018

13736710 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/736,710 01/08/2013
108982 7590 12/25/2018
Wolfe-SBMC
116 W. Pacific A venue
Suite 200
Spokane, WA 99201
FIRST NAMED INVENTOR
Trevor H. Paulsen
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.
2332US01 6727
EXAMINER
SCHEUNEMANN, RICHARD N
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
12/25/2018 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@sbmc-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TREVOR H. PAULSEN, JESSICA L. LANGFORD,
and JARED A. LEES
Appeal2017-008130
Application 13/73 6,710
Technology Center 3600
Before MAHSHID D. SAADAT, JAMES W. DEJMEK, and
JOHN D. HAMANN, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-10, 12, and 29-37, which are all the claims pending in this
application. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Adobe Systems, Inc.
App. Br. 2.
2 Claims 11 and 13-28 have been canceled.
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Application 13/736,710
STATEMENT OF THE CASE
Introduction
Appellants' disclosure describes "a media mix modeling tool that is
configured to enable a marketing budget to be analyzed for purposes of
allocation across different marketing channels and campaigns." Spec. ,r 3.
Exemplary claim 1 under appeal reads as follows:
1. A method implemented by a computing device to
compute a distribution for marketing budget allocation using
fitted curves that are based on web analytics data, revenue, and
cost data, the method comprising:
receiving packaged information from a user device, the
packaged information comprising information pertaining to a
user's interaction on the user device with portions of a webpage
associated with campaigns of online or Internet-based
marketing channels, the information pertaining to the user's
interaction with the portions of the webpage gathered and
packaged by code executed on the user device;
processing the packaged information to generate web
analytics data associated with an entity that utilizes the online
or Internet-based marketing channels, the web analytics data
including information relating to multiple individual marketing
channels utilized by the entity including the online or Internet-
based marketing channels, the entity being different than the
computing device;
attributing revenue to each of the multiple individual
marketing channels by utilizing a statistical attribution model
that utilizes the web analytics data to provide an estimated
revenue from each of one or more campaigns within each of the
multiple individual marketing channels;
receiving cost data associated with the individual
marketing channels;
creating, by the computing device, scatter plots of the one
or more campaigns within each of the multiple individual
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marketing channels based on the web analytics data, the
revenue, and the cost data;
fitting a curve to data in each scatterplot for each channel
using curve-fitting methodology by the computing device;
using fitted curves, by the computing device, to compute
a distribution for marketing budget allocation for the one or
more campaigns within each of the multiple individual
marketing channels; and
causing display of the distribution for marketing budget
allocation within a user interface on the user device.
App. Br. 26-27 (Claims App.).
The References and Re} ections
Claims 1-10, 12, and 29-37 stand rejected under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter. Final Act. 9-10.
Claims 1, 4, 29, and 37 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Clayton (US 2008/0140688 Al, pub. June 12, 2008) and
Aizen (US 2010/0005001 Al, pub. Jan. 7, 2010). Final Act. 12-21.
Claim 2 stands rejected under 35 U.S.C. § I03(a) as unpatentable over
Clayton, Aizen, and Lang (US 2011/0055005 Al; pub. Mar. 3, 2011). Final
Act. 21-22.
Claims 3, 5-8, and 30-34 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Clayton, Aizen, and Lakshminarayan (US 2010/0114 794
Al; pub. May 6, 2010). Final Act. 22-31.
Claims 9, 10, 35, and 36 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Clayton, Aizen, and O'Brien (US 2012/0143641 Al; pub.
June 7, 2012). Final Act. 31-34.
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Claim 12 stands rejected under 35 U.S.C. § I03(a) as unpatentable
over Clayton, Aizen, and Williams (US 2010/0211455 Al; pub. Aug. 19,
2010). Final Act. 34--35. 3
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments in the Briefs. For the reasons discussed below, we are not
persuaded by Appellants' arguments that the Examiner erred in rejecting
claims 1-10, 12, and 29-37 under 35 U.S.C. § 101 and 35 U.S.C. § I03(a).
Unless otherwise indicated, we incorporate by reference herein, and adopt as
our own, the findings and reasons set forth by the Examiner in the Office
Action from which this appeal is taken and in the Examiner's Answer in
response to Appellants' Appeal Brief. See Final Act. 9-35, Ans. 3-10. We
also concur with the conclusions reached by the Examiner. For emphasis,
we consider and highlight specific arguments as presented in the Briefs.
REJECTION UNDER§ 101
Principles of Law
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."
The Supreme Court, however, has long interpreted § 101 to include an
implicit exception: "[l]aws of nature, natural phenomena, and abstract ideas
3 The Examiner has withdrawn the rejection of claims 1, 29, and 3 7 under
35 U.S.C. § 112(a) or pre-AIA 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement. See Ans. 3, Final Act. 10-
11.
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are not patentable." See, e.g., Alice Corp. Pty Ltd. v. CLS Bankint'l, 134 S.
Ct. 2347, 2354 (2014) (internal quotation marks and citation omitted).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 75-77 (2012), "for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts." Alice, 134 S. Ct.
at 2355. The first step in the analysis is to "determine whether the claims at
issue are directed to one of those patent-ineligible concepts." Id. For
example, abstract ideas include, but are not limited to, fundamental
economic practices, methods of organizing human activities, an idea of
itself, and mathematical formulas or relationships. Id. at 2355-57. The
"directed to" inquiry asks not whether "the claims involve a patent-ineligible
concept," but instead whether, "considered in light of the specification, ...
'their character as a whole is directed to excluded subject matter."' Enfish,
LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (internal
citations omitted). In that regard, we determine whether the claims "focus
on a specific means or method that improves the relevant technology" or are
"directed to a result or effect that itself is the abstract idea and merely invoke
generic processes and machinery." McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016).
If, in applying the first step of the Alice analysis, we conclude that the
claims are not directed to a patent-ineligible concept, they are considered
patent eligible under § 101 and the inquiry ends. Rapid Litig. Mgmt. Ltd. v.
CellzDirect, Inc., 827 F.3d 1042, 1047 (Fed. Cir. 2016).
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If the claims are directed to a patent-ineligible concept, the second
step in the analysis is to consider the elements of the claims "individually
and 'as an ordered combination"' to determine whether there are additional
elements that "'transform the nature of the claim' into a patent-eligible
application." Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 79, 78).
In other words, the second step is to "search for an "'inventive concept"'-
i.e., 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."' Id. (brackets in original) (quoting Mayo, 566
U.S. at 72-73). The prohibition against patenting an abstract idea "'cannot
be circumvented by attempting to limit the use of the formula to a particular
technological environment' or adding 'insignificant post solution activity."'
Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (internal citation omitted).
Mayo/Alice Step One
The Examiner concludes the following:
Claims(s) 1-10, 12, and 29-37 are directed to a method
for data acquisition (ref. claim 1; "receiving packaged
information" and "receiving cost data") and data manipulation
(ref claim 1; "attributing revenue," "creating ... scatter plots,"
and "fitting a curve") to determine budget allocations (ref claim
1; "compute a distribution for marketing budget allocation"), an
abstract idea. As indicated in the Interim Guidance on Subject
Matter Eligibility, mathematical relationships and formulas are
abstract ideas.
Final Act. 9.
Appellants contend the Examiner's assessment that the claims are
directed to an abstract idea is in error. App. Br. 8. 4 Appellants argue:
4 Independent claim 1 recites a method, independent claims 29 recites a
computer program product, and independent claim 37 recites a system.
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The subject matter of the claims pertains to gathering, with
code executed on a user device, information pertaining to user
interaction with a webpage, generating web analytics data based
on the gathered information, and transforming the web analytics
data into a format easily digestible when displayed on a user
device. This subject matter is not, and does not pertain to a
long-prevalent and fundamental practice in comparison to the
abstract ideas of risk-hedging and intermediated settlement
relied upon by the Alice Court, which have been in widespread
use for many centuries throughout the world.
App. Br. 8-9. Appellants further argue "the claims, when taken as a whole,
are more than merely 'determining budget allocations,"' whereas "[ t ]he
Office fails to analyze the entire claim and instead simply attempts to
summarize the claimed subject matter as only 'determining budget
allocations."' App. Br. 10. Additionally, Appellants assert their claims,
similar to those in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014), "are directed to solving a technological problem that
specifically arises in the realm of computers" and is "rooted in computer
technology." App. Br. 13-14; Reply Br. 8-9.
Appellants' arguments do not persuade us of Examiner error.
Contrary to Appellants' assertion that their claims are rooted in computer
technology (see Reply Br. 8-9), the claims are not directed to improvements
to computer-related technology, as in DDR Holdings. Rather, the claims are
directed to collecting, filtering, and sorting information based on a user's
interaction with portions of a webpage. Appellants fail to point to any
language in the claims directed to improving the technology of, for example,
Appellants argues claims 1-10, 12, and 29-37 as a group. App. Br. 8-15.
We select independent claim 1 as representative. The remaining claims
stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
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the packaged information pertaining to a user interaction. We agree with the
Examiner's analysis on pages 4--5 of the Answer that the claims are not
directed to a specific asserted improvement in computer capabilities and that
the claims are directed to using a computer merely as a tool such that the
recited steps could be also executed using pen and paper. Implementing an
abstract idea using a "physical machine" does not impart patent eligibility.
See Mayo, 566 U.S. at 84; see also Ans. 2-3. "[N]ot every claim that recites
concrete, tangible components escapes the reach of the abstract-idea
inquiry." In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611
(Fed. Cir. 2016). The inability of a human to accomplish each step "does
not alone confer patentability." See FairWarning, IP, LLC v. Iatric Sys.,
Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). In Alice, for example, "[a]ll of
the claims [we]re implemented using a computer." 134 S. Ct. at 2353, 2360.
Additionally, Appellants' argument that the Examiner did not analyze
the entire claim (App. Br. 10) is not persuasive because the Examiner has
considered all the recited steps of claim 1 in concluding that processing the
"receiving packaged information" to generate "web analytics data" and a
"statistical attribution model" to "compute a distribution for marketing
budget allocation" are directed to an abstract idea for which computers are
invoked merely as a tool. See Final Act. 9, Ans. 4--5. Therefore, we agree
with the Examiner that claim 1 is directed to the abstract idea of "[g]athering
data, generating more data based on the gathered data, and presenting the
result on a display.
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Mayo/Alice Step Two
The Examiner determines:
The claims require no more than a generic computer ( as
evidenced by claim 1; a "method implemented by a computing
device") to perform generic computer functions that are well-
understood, routine and conventional activities previously
known to the industry. The steps recited in the claims are
recited at a high level of generality that is insufficient for
patentability. It is unclear how to "attribut[ e] revenue to
individual marketing channels" how to "creat[ e] scatter plots,"
and how to "fit[] a curve."
Final Act. 10; see also Ans. 6. The Examiner further determines that "these
steps cannot add significantly more than the abstract idea of receiving data
and manipulating data to determine a budget allocation." Final Act. 10.
According to the Examiner, the claimed process merely requires routine
process of analyzing and displaying the results based on gathered and
filtered information, which constitute "well-understood, long prevalent, and
fundamental concept." Ans. 7.
Appellants contend that "[ e ]ven if the claims are determined to be
accurately directed to this purported abstract idea, the claims nevertheless
amount to significantly more than this purported abstract idea." App.
Br. 10-11. Appellants argue "the rejection lacks any explanation of whether
any element or combination of elements is sufficient to ensure that the
claims amount to significantly more than the alleged abstract idea itself."
App. Br. 11. Appellants assert:
The present claims do not comprise mental steps and cannot be
done by humans without technology. Rather, the claims rely on
technology, and recite more than merely "determine a budget
allocation" as alleged by the Office. For example, "receiving
packaged information from a user device, the packaged
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information comprising information pertaining to a user's
interaction on the user device with portions of a webpage
associated with campaigns of online or Internet-based
marketing channels, the information pertaining to the user's
interaction with the portions of the webpage gathered and
packaged by code executed on the user device" as recited by
claim 1 requires that code executed on a user device gather and
package information pertaining to user interaction with portions
of a webpage that are associated with campaigns of online or
Internet-based marketing channels; such an action could not be
performed mentally or without technology. Accordingly, the
claims are not directed to abstract ideas and are thus patent
eligible.
App. Br. 11-12. Appellants further argue "[t]he claims address problems
relating to user interaction with portions of a webpage associated with
campaigns of online or Internet-based marketing channels, which is clearly a
problem that specifically arises in the realm of computer networks, does not
arise in the brick and mortar context, and is difficult to address due to the
near ephemeral nature of the webpage" and "is not feasible without relying
on a technical solution necessarily rooted in computer technology."
App. Br. 14.
Appellants' assertions do not persuade us of Examiner error. As the
Examiner explains, the claims are directed to determining budget
allocations, which include using a generic computer system for performing
the recited steps including gathering, analyzing, and reporting data. See
Ans. 6. We also are not persuaded by Appellants' argument that claim 1
improves the functionality of a general-purpose computer. See App. Br. 14,
Reply Br. 8. Appellants have not identified any portion of the Specification,
nor provided any evidence or technical reasoning, persuasively
demonstrating claim 1 is directed to a technical advance or improvement to
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computer functionality. However, the Examiner correctly explains that
"using a computer to gather data is well-understood. The claims do not
provide a technical solution to a technical problem. Allocating budgets
based on revenue is a well-understood, long prevalent, and fundamental
concept." Ans. 7. Additionally, the claims' invocation of computers
does not transform the claimed subject 1natter into patent-eligible
applications. Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1355
(Fed. Cir. 2016). As in Electric Power Group, the claims at issue do not
require any nonconventional computer, network, or smart meters, or even a
"non-conventional and non-generic arrangement of known, conventional
pieces," but merely call for performance of the claimed exception processing
functions "on a set of generic computer components." Id. at 1355.
In view of Appellants' Specification, and consistent with the
Examiner's determinations, the claims do not recite: (i) an improvement to
the functioning of a computer; (ii) an improvement to another technology or
technical field; (iii) an application of the abstract idea with, or by use of, a
particular machine; (iv) a transformation or reduction of a particular article
to a different state or thing; (v) a specific limitation other than what is well-
understood, routine, conventional activity in the field or unconventional
steps that confine the claim to a particular useful application; or ( vi) other
meaningful limitations beyond generally linking the use of the abstract idea
to a particular technological environment. See Manual of Patent Examining
Procedure ("MPEP") § 2106.05 (9th ed. Rev. 08.2017, Jan. 2018). Thus, the
claims are not directed to something significantly more than the abstract
idea.
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Preemption
Appellants argue, similar to the claims at issue in McRO, Inc. v.
Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016), claim
1 does not preempt a patent ineligible concept. See App. Br. 14. We are not
persuaded by Appellants' arguments. "While preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility .... Where 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 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) (finding "that 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").
Summary
For the reasons discussed above, Appellants' arguments have not
persuaded us of any error in the Examiner's findings or conclusions under
Mayo/Alice step one or step two. Hence, we sustain the§ 101 rejection of
claims 1-10, 12, and 29-37.
REJECTIONS UNDER 35 US.C. § 103(a)
Independent Claim 1
In rejecting claim 1, the Examiner relies on Clayton as disclosing the
recited method steps, and specifically on paragraphs 5 6 and 64 of Clayton as
disclosing receiving information pertaining to the user activity and the
browsing history using media channels. Final Act. 12-13. Additionally, the
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Examiner relies on Aizen as disclosing the steps of receiving and processing
packaged information from a user device. See Final Act. 13. The Examiner
finds Aizen discloses "a method for advertising that uses targeted
advertising based on browsing history to balance budgets and get a great
ROI." See Final Act. 13 (citing Aizen ,r 4). Additionally, the Examiner
finds Clayton discloses the recited "web analytics data" and "attribution
model" as the marketing and budget allocation models disclosed in
paragraphs 64, 377-378, and 29-31. See Final Act. 13-14.
Appellants contend the proposed combination is improper because the
relied on portions in Aizen disclose analyzing the received simple feed or
webpage to extract words for categorization rather than "receiving packaged
information ... pertaining to a user's interaction on the user device." App.
Br. 20. Appellants argue:
Further, as noted in the passages cited by the Office,
Aizen describes a "behavioral advertising takes into account
other aspects of the user ( e.g. browsing history, location, time-
of-day) and attempts to serve ads that take into account all those
factors when selecting an appropriate ad to serve to a particular
user, on a particular site at a particular time." The concept that
advertisements may be served based on browsing history,
location, or time-of-day simply does not suggest receiving
information pertaining to a user's interaction with portions of a
webpage that are associated with campaigns of online or
Internet-based marketing channels.
Id., see also Reply Br. 10-11. Additionally, Appellants contend Clayton's
discussion of revenue analysis in paragraph 3 77 "does no more than mention
the word 'revenue' and fails to describe an estimated revenue or revenues
specific to campaigns within marketing channels" which "may in some
unspecified way relate to 'revenue, cost, margin, profit,' etc." App. Br. 22-
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23, see also Reply Br. 11-12. Appellants assert such disclosure "does not
suggest 'attributing revenue to each of the multiple individual marketing
channels ... to provide an estimated revenue from each of one or more
campaigns within each of the multiple individual marketing channels' as
claimed." App. Br. 23.
In response, the Examiner finds the cited portions of Aizen teach the
recited "packaged information" by disclosing targeted advertising based on
the content of the viewed pages and other information such as the browsing
history, location, or time-of-day. Ans. 8-9 ( citing Aizen ,r 9). The
Examiner further explains
The data from Aizen is associated with a marketing campaign
because it is gathered as a result of a user's interaction with an
advertisement. The presence of an advertisement implies the
presence of a marketing campaign. Thus, the data is implicitly
and inherently associated with a marketing campaign. Clearly,
Aizen and Clayton describe methods that use software which is
"packaged code" on a "user device." (emphasis added).
Ans. 9. The Examiner also finds Clayton discloses using marketing
attributes and channels to determine decision variables such as revenue,
which are based on regression models. Id. (citing Clayton ,r,r 377-378, 29-
31,100).
We are unpersuaded by Appellants' contentions and agree with the
Examiner that Clayton relates to a system using an intelligent decision
engine for aggregating decision objects and using historical data and other
statistical models to make decisions in areas such as business advertising.
See Clayton ,r,r 29-31. As the Examiner finds (see above), Clayton teaches
receiving information regarding marketing attributes and channels related to
advertising business and making revenue analysis using statistical models.
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See id. ,r,r 377-378, 464. We further agree with the Examiner that, to the
extent the claims recite the terms "statistical attribution model" in a broad
and generic way, Clayton's discussion of regression models for revenue
based on marketing attributes and channels meet the recited subject matter.
See Ans. 9-10. That is, Appellants' contention that "a generic description of
'mathematics ... or any other tools or models useful in analyzing decisions'
simply does not describe a statistical attribution model," as claimed (see
App. Br. 23-24), is focused on features that are not recited or disclosed in
the other applied prior art.
We also disagree with Appellants' contention that "a generic
description of 'mathematics ... or any other tools or models useful in
analyzing decisions' simply does not describe a statistical attribution
model," as claimed (see App. Br. 23-24). This argument is focused on
features that are not recited in the claims or are disclosed in the other applied
prior art. The test for obviousness is whether the combination of references,
taken as a whole, would have suggested the patentee's invention to a person
having ordinary skill in the art. In re Keller, 642 F.2d 413,425 (CCPA
1981 ). The Examiner relied on Clayton's decision engine for making
decisions on business advertising based on statistical models, whereas Aizen
was relied on for its disclosure of using data sets from the user interaction
with advertisers' web pages. See Final Act. 12-21, see also Ans. 8-10.
In view of our discussion above, we are unpersuaded of Examiner
error in rejecting claim 1 and other independent claims 29 and 37 and
dependent claim 4, which are argued together with claim 1. See App. Br. 24.
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Remaining Claims
Appellants argue the patentability of claims 2, 3, 5-10, 12, and 30-36
based on the same reasoning presented for claim 1. App. Br. 24. In view of
our discussion above, we are unpersuaded of Examiner error in rejecting
claims 2, 3, 5-10, 12, and 30-36.
CONCLUSION
As discussed herein, Appellants' arguments have not persuaded us the
Examiner erred in finding the claims are directed to patent-ineligible subject
matter. Accordingly, we sustain the Examiner's rejection of claims 1-10,
12, and 29-37 under 35 U.S.C. § 101.
Similarly, Appellants' arguments have not persuaded us that the
Examiner erred in finding the combination of Clayton with Aizen, alone or
in combination with other cited prior art, teaches or suggests the disputed
limitations of claims 1-10, 12, and 29-37. Accordingly, we sustain the
35 U.S.C. § 103(a) rejections of claims 1-10, 12, and 29-37.
DECISION
The decision of the Examiner rejecting claims 1-10, 12, and 29-37 is
affirmed.
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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