Ex Parte SHENOY et al

Patent Trials and Appeals Board

Feb 13, 2019

14017659 - (D) (P.T.A.B. Feb. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/017,659 09/04/2013
21839 7590 02/15/2019
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
FIRST NAMED INVENTOR
Kiran SHENOY
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.
0076412-000148 1163
EXAMINER
BRIDGES, CHRISTOPHER
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
02/15/2019 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):
ADIPDOC 1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIRAN SHENOY, GOPINATHAN JOSHI,
ANUP AMA ZAGABTHUNI, MANDEEP SANDHU, and
HARITHA NANNAP ANENI
Appeal 2017-011453
Application 14/017,659 1
Technology Center 3600
Before CAROLYN D. THOMAS, PHILLIP J. KAUFFMAN, and
HUNG H. BUI, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 1-7, 9-18, and 20-24, which are all the
claims pending in the application. Claims 8 and 19 are cancelled. App. Br.
2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM. 2
1 According to Appellants, MasterCard International Incorporated is the real
party in interest. App. Br. 2.
2 Our Decision refers to Appellants' Appeal Brief filed April 3, 2017 ("App.
Br."); Reply Brief filed September 12, 2017 ("Reply Br."); Examiner's
Answer mailed July 12, 2017 ("Ans."); Final Office Action mailed
September 14, 2016 ("Final Act."); and original Specification filed
September 4, 2013 ("Spec.").
Appeal 2017-011453
Application 14/017,659
STATEMENT OF THE CASE
Appellants' invention relates to "a method and system for instant
delivery of a virtual gift card on mobile platform." Title; Abstract.
According to Appellants, graphical user interface (GUI) 504, 602 is
provided at mobile device 502 to allow a user to request a virtual gift card
and then to receive and use a gifted virtual gift card, as reproduced below:
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FIG, 5 FIG. 6
Figure 5 shows graphical user interface ( GUI) 504 for requesting a virtual
gift card, while Figure 6 shows GUI 602 and for receiving and using a gifted
virtual gift card. 3
3 Spec. ,r,r 14, 15, 53, 59.
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Application 14/017,659
Claims 1 and 12 are independent. Claim 1 is illustrative of the
claimed subject matter, as reproduced below with disputed limitations in
italics:
1. A computer-implemented method for processmg an
electronic gift card request, comprising:
receiving, by a receiving device of a transaction
processing server, an electronic gift card request for a gift card
from an application program installed on a communication
device or via a webpage, wherein the gift card request includes
at least a merchant identifier of a merchant, a gift amount, a
payment account identifier, and a recipient, wherein said
transaction processing server is a separate and distinct entity
from the merchant and is configured to electronically
communicate between merchants and a payment network for
authorizing or denying payment transactions;
prior to a gift card number being used in an attempted
payment transaction, processing, by a processing device of the
transaction processing server, via a payment network, a payment
transaction for the gift amount included in the electronic gift card
request by funding a merchant payment account associated with
the merchant identifier included in the electronic gift card
request using a payment account associated with the payment
account identifier included in the electronic gift card request;
upon successful completion of the payment transaction,
generating, by the processing device of the transaction
processing server, the gift card number to be associated with the
requested gift card;
electronically storing, in a gift card database device of the
transaction processing server, the gift card number generated by
the processing device with (i) the gift amount included in the gift
card request and (ii) the merchant payment account, to which the
payment transaction for the gift amount was processed;
electronically transmitting, by a transmitting device of the
transaction processing server, the generated gift card number to
a mobile communication device of the recipient, (i) wherein the
generated gift card number is then stored in the mobile
communication device, (ii) wherein said transmission causes
said mobile communication device to electronically display the
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Application 14/017,659
gift card via at least one of an application program installed on
said mobile communication device or a web page on said mobile
communication device, and (iii) wherein said displayed gift card
includes at least the generated gift card number and a machine-
readable code encoded with payment credentials including the
generated gift card number;
receiving, by the receiving device of the transaction
processing server, from a merchant point-of-sale device, an
electronic authorization request for an attempted transaction
involving the generated gift card number; and
processing, by the processing device of the transaction
processing server, the attempted payment transaction involving
the generated gift card number, by funding the attempted
payment transaction using the merchant payment account, to
which the payment transaction for the gift amount was processed,
stored in association with the generated gift card number in the
gift card database of the transaction processing server.
App. Br. 28-29 (Claims App.).
EXAMINER'S REJECTIONS & REFERENCES
(1) Claims 1-7, 9-18, and 20-24 stand rejected under 35 U.S.C.
§ 101 because the claimed invention is directed to an abstract idea without
significantly more. Final Act. 2-13.
(2) Claims 1-7, 9, 10, 12-18, 20, and2I stand rejected underpre-
AIA 35 U.S.C. § I03(a) as being obvious over Brown (US 2010/00106592
Al; published Apr. 29, 2010) and Dessert et al. (US 2011/0166992 Al;
published Jul. 7, 2011; "Dessert"). Final Act. 15-25.
(3) Claims 11 and 22 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being obvious over Brown, Dessert, and Nelsen (US 8,676,672
B2; issued Mar. 18, 2014). Final Act. 25-26.
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Application 14/017,659
(4) Claims 23 and 24 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being obvious over Brown, Dessert, and Veeneman et al. (US
5,652,421; issued Jul. 29, 1997). Final Act. 26-28.
DISCUSSION
Patent-Eligible Subject Matter: Claims 1-7, 9-18, and 20-24
To determine whether claims are patent eligible under§ 101, we apply
the Supreme Court's two-step framework articulated in Alice Corp. Pty. Ltd.
v. CLS Bank Int 'l, 573 U.S. 208 (2014). First, we determine whether the
claims are directed to a patent-ineligible concept: laws of nature, natural
phenomena, and abstract ideas. Id. at 217. If so, we then proceed to the
second step 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."
Id. 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. at 217-218 (alteration in original) (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73
(2012)).
The Federal Circuit has described the Alice step-I inquiry as looking
at the "focus" of the claims, their "character as a whole," and the Alice step-
two inquiry as looking more precisely at what the claim elements add-
whether they identify an "inventive concept" in the application of the
ineligible matter to which the claim is directed. See Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Enfzsh, LLC v.
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Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016); Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015).
Because there is no single definition of an "abstract idea" under Alice
step 1, the Federal Circuit has adopted (1) the common law, analogy-driven
approach (a.k.a. "analogous claim" test) to determine whether a claim is
directed to an abstract idea, and (2) has instructed us "to examine earlier
cases in which a similar or parallel descriptive nature can be seen-what
prior cases were about, and which way they were decided." Amdocs (Israel)
Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) (citing
Elec. Power Grp., 830 F.3d at 1353-54; accordUSPTO Memorandum, July
2015 Update: Subject Matter Eligibility, 3 (July 30, 2015),
https://www.uspto.gov/sites/ default/files/ documents/ieg-july-2015-
update. pdf (instructing examiners that "a claimed concept is not identified as
an abstract idea unless it is similar to at least one concept that the courts
have identified as an abstract idea").
The PTO has acknowledged that the Federal Circuit's common law,
analogy-driven approach (a.k.a. "analogous claim" test) was effective soon
after Alice, but recently concluded that approach has since become
impractical as the growing body of Federal Circuit precedent has become
increasing more difficult for the Office and Examiners to apply in a
predictable manner. As a result, the PTO has issued a new § 101
Memorandum that governs all patent-eligibility analysis under Alice and §
101 effective as of January 7, 2019. In the§ 101 Memorandum, the PTO
has synthesized, for purposes of clarity, predictability, and consistency, key
concepts identified by the courts as abstract ideas to explain that the
"abstract idea" exception includes the following three groupings:
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Application 14/017,659
( 1) Mathematical
mathematical
calculations;
concepts-mathematical
formulas or equations,
relationships,
mathematical
(2) Mental processes- concepts performed in the human mind
(including an observation, evaluation, judgment, opinion);
and
(3) Certain methods of organizing human activity-fundamental
economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions
(including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or
relationships or interactions between people (including social
activities, teaching, and following rules or instructions).
See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
50, 52 (Jan. 7, 2019) ("PTO§ 101 Memorandum"), which is effective on
January 7, 2019. According to the PTO§ 101 Memorandum, "claims that
do not recite [subject] matter that falls within these enumerated groupings of
abstract ideas should not be treated as reciting abstract ideas," except in rare
circumstances. 84 Fed. Reg. at 53. Even if the claims recite any one of
these three groupings of abstract ideas, these claims are still not "directed to"
a judicial exception (abstract idea) and, thus, are "patent-eligible" if "the
claim as a whole integrates the recited judicial exception into a practical
application of that Liudicial] exception." 84 Fed. Reg. at 53. "Integration
into a practical application" requires an additional element or a combination
of additional elements in the claim to apply, rely on, or use the judicial
exception in a manner that imposes a meaningful limit on the judicial
exception, such that the claim is more than a drafting effort designed to
monopolize the exception. 84 Fed. Reg. at 53.
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For example, limitations that are indicative of "integration into a
practical application" include:
1) Improvements to the functioning of a computer, or to any
other technology or technical field - see MPEP
§ 2106.05(a);
2) Applying the judicial exception with, or by use of, a particular
machine - see MPEP § 2106.05(b );
3) Effecting a transformation or reduction of a particular article
to a different state or thing - see MPEP § 2106.05( c ); and
4) Applying or using the judicial exception in some other
meaningful way beyond generally linking the use of the
judicial exception to a particular technological environment,
such that the claim as a whole is more than a drafting effort
designed to monopolize the exception - see MPEP
§ 2106.05(e).
In contrast, limitations that are not indicative of "integration into a
practical application" include:
1) Adding the words "apply it" ( or an equivalent) with the
judicial exception, or mere instructions to implement an
abstract idea on a computer, or merely uses a computer as
a tool to perform an abstract idea - see MPEP
§ 2106.05(±);
2) Adding insignificant extra-solution activity to the judicial
exception-see MPEP § 2106.05(g); and
3) Generally linking the use of the judicial exception to a
particular technological environment or field of use - see
MPEP § 2106.05(h).
See PTO§ 101 Memorandum, 84 Fed. Reg. at 54--55 ("Prong Two").
Examiner's Determination of Patent-Ineligibility
In rejecting claims 1-7, 9-18, and 20-24 under 35 U.S.C. § 101, the
Examiner determines these claims are directed to an abstract idea of
"processing an electronic gift card purchase request and subsequent payment
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transaction involving said purchased gift card," which is a method of
organizing human activity-a fundamental economic practice and include
limitations that are analogous or similar to concepts of (1) "creating a
contractual relationship" as discussed in buySAFE (buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350 (Fed. Cir. 2014)); (2) "collecting and comparing known
information" as discussed in Classen; ( Classen Immunotherapies Inc. v.
Biogen IDEC, 659 F.3d 1057 (Fed. Cir. 2011)); (3) "obtaining and
comparing intangible data" as discussed in CyberSource ( CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011)); (4)
"comparing new and stored information and using rules to identify options"
as discussed in SmartGene (SmartGene, Inc. v. Advanced Biological Labs.,
SA, 852 F. Supp. 2d 42 (D.D.C. 2012), aff'd 555 F. App'x 950 (Fed. Cir.
2014)); and (5) "using categories to organize, store and transmit
information" as discussed in Cyberfone ( Cyberfone Sys., LLC v. CNN
Interactive Grp., Inc., 558 F. App'x 988 (Fed. Cir. 2014)). Final Act. 3--4;
Ans. 3-5.
The Examiner also determines that the claims fail to amount to
"significantly more than the judicial exception" or contain an "inventive
concept" because ( 1) "the steps of the process are performed by a generic
electronic computer system comprising a server (i.e., processor), a database
and a mobile communication device communicating over a generic
network"; and (2) the additional elements, whether taken alone or in
combination, perform generic functions that "are well-understood, routine
and conventional activities previously known to the [pertinent] industry."
Final Act. 8 and 13.
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Appellants' Contentions of Patent-Eligibility & Analysis
At the outset, Appellants contend the Examiner has not established a
prima facie case of patent ineligibility under 35 U.S.C. § 101 because the
Examiner has (1) overlooked the "directed to" inquiry as per Enfzsh, LLC v.
Microsoft Corp., 822 F. 3d 1327 (2016) which requires an analysis of the
claims, considered in light of the specification, based on whether "'their
character as a whole is directed to excluded subject matter,"' and (2) failed
to "explain why" the claims are "directed to" and abstract idea. App. Br. 9--
10; Reply Br. 2.
These arguments are not persuasive because, as recognized by the
Federal Circuit, "the prima facie case is merely a procedural device that
enables an appropriate shift of the burden of production." Hyatt v. Dudas,
492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992)). The court has held that the USPTO carries its
procedural burden of establishing a prima facie case when its rejection
satisfies the requirements of 35 U.S.C. § 132 by notifying the applicant of
the reasons for rejection, "together with such information and references as
may be useful in judging of the propriety of continuing the prosecution of
[the] application." In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). Thus,
all that is required of the Office is that it set forth the statutory basis of the
rejection in a sufficiently articulate and informative manner as to meet the
notice requirement of 35 U.S.C. § 132. Id.; see also Chester v. Miller, 906
F.2d 1574, 1578 (Fed. Cir. 1990) (Section 132 "is violated when a rejection
is so uninformative that it prevents the applicant from recognizing and
seeking to counter the grounds for rejection."). Appellants do not contend
that the Examiner's rejection under 35 U.S.C. § 101 cannot be understood or
that the Examiner's rejection, otherwise, fails to satisfy the notice
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requirements of 35 U.S.C. § 132. Indeed, Appellants' understanding of the
rejection is clearly manifested by their response as set forth in the briefs.
Moreover, the Examiner was required to review all claims at some
level of generalization and determine whether those claims are directed to an
abstract idea under Alice step 1. Because there was no single definition of
an abstract idea at the time, the Examiner was required "to examine earlier
cases in which a similar or parallel descriptive nature can be seen-what
prior cases were about, and which way they were decided." Amdocs, 841
F.3d at 1294 (citing Elec. Power Grp., 830 F.3d at 1353-1354; accord
USPTO Memorandum, JULY 2015 UPDATE: SUBJECT MATTER ELIGIBILITY,
3 (July 30, 2015). In this case, the Examiner did just what he was required
to do under the USPTO Memorandum i.e., analyzed the claims under Alice
step 1 consistent with the guidance set forth in the USPTO's "2014 Interim
Guidance on Patent Subject Matter Eligibility," 79 Fed. Reg. 74618 (Dec.
16, 2014), in effect at the time the rejection was made, i.e., on Mar. 18,
2016.
With respect to Appellants' argument regarding the "directed to"
inquiry under Alice step 1, we address that argument separately in the
context of Alice step 1 inquiry and the newly published PTO § 101
Memorandum, 84 Fed. Reg. at 53, herein below.
Alice/Mayo-Step 1 (Abstract Idea)
Turning to the first step of the Alice inquiry, Appellants argue claims
1-7, 9-18, and 20-24 are not directed to an abstract idea because (1) like the
claims in McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299
(Fed. Cir. 2016), "Appellant's claimed invention improves upon the way
financial transaction systems ( computer implemented systems) operate so
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that gift cards need no longer be provisioned as conventionally done such
that the provision of gift cards are leveraged on a merchant's financial
account"; and (2) "the claims are directed to an improved system and
method that facilitates electronic requests, generation of gift card numbers,
processing of financial transactions, and issuance of gift cards to recipients
such that in the processing of the request and transactions, a financial
account of a merchant is leveraged" and, as such, are not directed to a
"fundamental economic practice." App. Br. 11-12; Reply Br. 4--5.
Appellants' arguments are not persuasive. At the outset, we note the
newly published PTO § 101 Memorandum governs all patent-eligibility
analysis under Alice and§ 101 effective as of January 7, 2019. In particular,
the PTO has synthesized, for purposes of clarity, predictability, and
consistency, the "abstract idea" exception to limit to three categories of
abstract ideas as outlined PTO§ 101 Memorandum, 84 Fed. Reg. at 54--55.
In this case, Appellants' claims and Specification describe
"processing an electronic gift card purchase request and subsequent payment
transaction involving said purchased gift card" in the context of "delivery of
a virtual gift card on mobile platform." Spec. ,r,r 1, 6-7; Abstract.
According to Appellants, the "method for processing a gift card request"
includes:
[ 1] receiving, by a receiving device, a gift card request, wherein
the gift card request includes at least a merchant identifier, a gift
amount, a payment account identifier, and a recipient; [2]
processing, by a processing device, a payment transaction for the
gift amount from a payment account associated with the payment
account identifier to a merchant account associated with the
merchant identifier; [3] identifying, by the processing device, a
gift card number; [ 4] associating, in a database, the identified gift
card number with the merchant identifier and the gift amount
such that payment transactions involving the identified gift card
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number are charged to the merchant account; and [ 5]
transmitting, by a transmitting device, the identified gift card
number to the recipient.
Spec. ,r 7; Abstract.
Figure 3 illustrates Appellants' method for processing a virtual gift
card request, as reproduced below:
; P~~~;t ;:;:~:::--l/' 304 { R:~::·;;;·~:~ .... ,/' 302 ~--- '
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Figure 7 shows a graphical user interface (GUI) to allow a user to purchase
and store an electronic gift card, via a mobile device, while Figures 8A-8C
show an electronic gift card for a particular merchant including: (i) a gift
card number, and (ii) machine-readable code encoded with payment
credentials for storage and display.
Appellants dispute the Examiner's factual findings regarding Brown
and Dessert. In particular, Appellants argue neither Brown nor Dessert
teaches or suggests:
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"upon successful completion of the payment transaction,
generating, by the processing device of the transaction
processing server, the gift card number to be associated with the
requested gift card"
as recited in claims 1 and 12. App. Br. 20-23. According to Appellants,
"the 'account number' in Brown refers to a number associated with the
invitee account, i.e., an account of an entity that makes deposit" and "does
not refer to a 'gift card number' that is to be processed in a subsequent
transaction when a recipient of the gift card wishes to use the gift card."
App. Br. 22 (citing Brown ,r,r 15, 38). As such, Appellants argue Brown
only teaches that "the account number is generated/obtained prior to the
funds are deposited, not subsequent, as in the instant claims" and "[ n Jo where
does it suggests [sic] the funds must be deposited for the generation of the
gift card number." App. Br. 22; Reply. Br. 6. In addition, Appellants argue
neither Brown nor Dessert teaches that "the fund first goes to a 'merchant
payment account' which later funds the subsequent transaction." App. Br.
23 ( citing Brown ,r,r 44--46).
Appellants' arguments are not persuasive. Instead, we find the
Examiner has provided a comprehensive response to Appellants' arguments
supported by a preponderance of the evidence. Ans. 9-10. As such, we
adopt the Examiner's findings and explanations provided therein. Id. For
example, as recognized by the Examiner, Brown teaches:
"funds must be deposited before an account number is activated
(e.g., created) and able to be used. Without the initial deposit of
funds, the account is never activated and therefore never
generated for use."
Ans. 9 (citing Brown ,r 32, Fig. 6). According to Brown, a consumer (user
or even merchant) can purchase a gift card and setup a gift card account
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number by making a payment (i.e., funds) via "a customer interface such as
an online website interface or a kiosk style interface, for example a kiosk
location in any one of the merchant's physical locations" or even "at the
store's customer service department" using a credit or debit card depositing
funds. Brown ,r,r 14--16. "Once an account number is obtained and the
account is activated, other individuals and businesses may deposit
[additional] funds into the account." Brown ,r 18. Based on these
disclosures, we agree with the Examiner that Brown teaches or suggests to
those skilled artisans that the payment for the gift card can be made by
Appellants' claimed "merchant payment account associated with the
merchant identifier" and, "upon successful completion of the payment
transaction," "the gift card number to be associated with the requested gift
card" is generated in the manner recited by Appellants' claims 1 and 12.
Ans. 10.
For these reasons, we are not persuaded of Examiner error.
Accordingly, we sustain the Examiner's obviousness rejection of
independent claims 1 and 12, and dependent claims 2-7, 9, 10, 13-18, 20,
and 21, which Appellants do not argue separately. For the same reasons
discussed, we also sustain the Examiner's obviousness rejection of (1)
claims 11 and 22 under 35 U.S.C. § 103(a) as being obvious over Brown,
Dessert, and Nelsen; and (2) claims 23 and 24 under 35 U.S.C. § 103(a) as
being obvious over Brown, Dessert, and Veeneman.
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 1-7, 9-18, and 20-24
under 35 U.S.C. §§ 101 and 103.
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DECISION
As such, we AFFIRM the Examiner's rejection of claims 1-7, 9-18,
and 20-24 under 35 U.S.C. §§ 101 and 103.
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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