Ex Parte Sorenson et al

Patent Trial and Appeal Board

Dec 7, 2018

13540359 (P.T.A.B. Dec. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/540,359 07/02/2012 Peter Floyd Sorenson
24126 7590 12/11/2018
ST. ONGE STEW ARD JOHNSTON & REENS, LLC
986 BEDFORD STREET
STAMFORD, CT 06905-5619
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.
05662-P0003B 7503
EXAMINER
HUMPHREY, MICHAEL C
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/11/2018 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):
patentpto@ssjr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER FLOYD SORENSON and DAVID MICHAEL KAPLAN
Appeal2017-003294
Application 13/540,359
Technology Center 3700
Before WILLIAM A. CAPP, BRANDON J. WARNER, and
ERIC C. JESCHKE, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the non-final
rejection of claims 1, 5-7, 10-26, 28, and 29 under 35 U.S.C. § 112, second
paragraph, as indefinite, and claims 1, 5-7, 10-26, 28-34, 37--41, and 43--45
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. 1
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellants' invention is a system that monitors learner interaction
with online training courses. Spec. ,r 2. Claim 1, reproduced below, is
illustrative of the subject matter on appeal.
1 This matter came before the Board for Oral Hearing on Nov. 29, 2018.
Appeal2017-003294
Application 13/540,359
1. A system for evaluating user behavior relating to a
course of study comprising:
a server computer;
a network;
a user computer in communication with the server computer
over the network;
software executing on the server computer transmitting a
course of study to said user computer over the network;
software executing on said user computer receiving a course
of study from said server computer which includes a plurality
of user tasks;
software executing on said user computer presenting the
course of study to a user of said user computer;
a pointing device in communication with the user computer;
a keyboard in communication with the user computer;
wherein the pointing device and keyboard are used to
interact with the course of study to generate at least one of user
pointing-device events, scrolling events, and keyboard events;
software executing on said user computer capturing
interaction data indicative of an interaction of the user with the
course of study, said interaction data being indicative of more
than a selection of an answer or choice made by the user when
completing each of the plurality of user tasks, and including the
identification and timing of the user pointing-device events,
scrolling events, and keyboard events;
an analysis module receiving the interaction data and
generating a behavioral observation based on the interaction
data by identifying sequential behaviors in the interaction data
which lead up to the selection of an answer or choice made by
the user when completing each of the plurality of user tasks,
including comparing a reading time in the interaction data with
reading time baseline data, and comparing a response latency in
the interaction data with response latency baseline data, the
behavioral observation including a determination of the user's
interest or confidence in the course of study;
wherein the behavioral observation is used to modify the
course of study in real time while the course of study is in
progress.
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OPINION
35 US.C. § 112, Second Paragraph, Indefiniteness
The Examiner rejects claim 1 as containing newly amended claim
language that conflicts with terms recited later in the claims. Non-Final
Action 3. Appellants state that "this rejection is not being appealed."
Appeal Br. 12. We deem this ground of rejection to be unopposed and,
therefore, we summarily sustain the Examiner's section 112 rejection of
claim 1 as well as the rejection of claims 5-7, 10-26, 28, and 29 that depend
therefrom. See Hyattv. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008).
Patent Eligibility under 35 US.C. § 101
The controlling statute provides that "[ w ]hoever invents or discovers
any new and useful process, machine, manufacture, or composition of
matter, or any new and useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of this title." 35 U.S.C.
§ 101. The Courts recognize certain judicial exceptions to Section 101,
namely: (1) laws of nature, (2) natural phenomena, and (3) abstract ideas.
See Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66, 70-71
(2012).
The Supreme Court has set forth "a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Alice
Corp. Pty. Ltd. v. CLS Bankint'l, 134 S.Ct. 2347, 2355 (2014) (citing Mayo,
566 U.S. at 72-73). According to the Supreme Court's framework, we must
first determine whether the claims at issue are directed to one of those
concepts. Id. If so, we must secondly "consider the elements of each claim
both individually and 'as an ordered combination' to determine whether the
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additional elements 'transform the nature of the claim' into a patent-eligible
application." Id.
Courts treat collecting information, as well as analyzing information
by steps people go through in their minds, as essentially mental processes
within the abstract-idea category. Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1353 (Fed. Cir. 2016). In situations where an abstract idea is
implemented on a computer, the first step in the Alice/Mayo analysis asks
whether the focus of the claims is on a specific improvement in computer
capabilities or, instead, on a process that qualifies as an "abstract idea" for
which computers are invoked merely as a tool. Enfzsh, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016).
The Supreme Court characterizes the second step of the analysis as "a
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."' Alice,
134 S.Ct. at 2355 (brackets in original) (quoting Mayo, 566 U.S. at 72-73).
Where the claim is directed to an abstract idea that is implemented on a
computer, merely stating the abstract idea while adding the words "apply it"
is not enough to establish such an inventive concept. See Alice, 134 S.Ct.
at 2358.
[I]f that were the end of the § 101 inquiry, an applicant could
claim any principle of the physical or social sciences by reciting
a computer system configured to implement the relevant
concept.
Id. at 2359.
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With respect to the first step, the Examiner determines that the claims
are directed to an abstract idea. Non-Final Action 4. According to the
Examiner:
The claim limitation(s), "software executing on said user
computer capturing interaction data indicative of an interaction
of the user with the course of study ... " and "generating a
behavioral observation based on the interaction data by
identifying sequential behaviors in the interaction data which
lead up to the selection of an answer or choice made by the user
when completing each of the plurality of user tasks" is/are
directed to an idea itself. Comparing information regarding a
sample of test subject to a control or target data, comparing new
and stored information and using rules to identify options, and
collecting and comparing known information are examples
from the July 2015 update that are appear similar to claimed
subject matter.
Id., citing Content Extraction and Transmission LLC v. Wells Fargo Bank,
Nat 'l Ass 'n., 776 F.3d 1343 (Fed. Cir. 2014).
With respect to the second step of the Alice/Mayo analysis, the
Examiner finds:
The elements of the claims ... either further define this abstract
idea, recited generic well-known computer processes, or detail
insignificant post-solution activity. For example, recitation of
"a server computer", "user computer", and "a network" is mere
generic computer hardware embodiments. "computer in
communication with the server computer over the network",
and "software executing on the server/users computer" are long
established functions of computer systems ... that is not
fundamental to the problem nor fundamental altered by the
solution and therefore constitutes mere extra solution activity.
Recitation of "transmitting a course of study to said user
computer over the network" and "receiving a course of study
from said server computer which includes a plurality of user
tasks" is mere routine function of a computer network; these
limitations do not further create a specific machine but rather
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further detail the processes of routine functions which does not
add significantly more. The same [applies] to "presenting the
course of study to a user of said user computer", which merely
further defines the embodiment the display of information will
take while not altering or specifically defining generic computer
process.
12. The limitation, "said interaction data including the
identification and timing of user mouse events, scrolling events,
and keyboard events" merely defines the structure of the
collected data. Defining the data does not alter the specific
structure of the invention or function. Especially in light of the
fact that no patentable weight or explicit detailing of means for
generating the data is recited in the claim. Mouse events,
scrolling events, and keyboard events are routinely captured by
generic computer hardware and used to convey instructions to
the computer; they do not alter the specific structure of the
invention or function. Same applies to the limitation "said
interaction data being indicative of more than a selection of an
answer or choice made by the user when completing each of the
plurality of user tasks".
13. The limitation "comparing response latency in the
interaction data with response latency baseline data, the
behavioral observation including a determination of the user's
interest or confidence in the course of study" merely further
defines the number of times the abstract idea is performed and
does not alter the basic premise of the abstract idea. The
limitation mere states that the analysis will be conducted by
compare sets of data (reading time baseline data vs reading time
in the interaction or comparing response latency in same
manner) and effecting a choice based on the result. This is still
in the realm of abstract ideas such as collecting data,
recognizing certain collected data within the data set and
storing recognized data in memory and using categories to
transmit information. Further defining the abstract idea does
not alter the abstract nature of the idea and therefore does not
provide significantly more.
Id. at 5---6 ( citation omitted).
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Appellants argue that claim 1 is not "directed to" an abstract idea, but
merely "rests upon" or "reflects" the abstract ideas identified by the
Examiner. Appeal Br. 15. Appellants argue that the claim is "directed to" a
system for "evaluating a user's interactions with a course of study offered
over a computer network." Id. Appellants argue that the system looks for
specific types of user hardware interaction, uses data collected from such
interaction, and then modifies the course in real time accordingly. Id.
Appellants deny that the claimed invention is "mere automation" using
"generic computer systems." Id. Appellants argue that their invention
addresses the challenge of assessing learner engagement in an online
environment, which they characterize as a challenge that is particular to
computer networks. Id. at 15-16, citing DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245 (Fed. Cir. 2014). Appellants similarly attempt to
distinguish Alice by analogizing the instant case to that of Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). Appeal Br. 16-19.
"Information as such is an intangible," hence abstract, and "collecting
information, including when limited to particular content (which does not
change its character as information), [i]s within the realm of abstract ideas."
Elec. Power Grp., 830 F.3d at 1353. So, too, is "analyzing information ...
by mathematical algorithms, without more." Id. at 1354. Furthermore,
"merely presenting the results of abstract processes of collecting and
analyzing information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and analysis."
Id. Consequently, claims focused on "collecting information, analyzing it,
and displaying certain results of the collection and analysis" are directed to
an abstract idea. Id. at 1353.
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Organizing human activity is recognized by the courts as an abstract
idea. See In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 613 (Fed.
Cir. 2016) ( classifying and storing digital images is an abstract idea as a
method of organizing human activity); see also BASCOM Glob. Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016)
(filtering internet content is an abstract idea as a method of organizing
human behavior); Intellectual Ventures I LLC v. Capital One Bank (USA),
792 F.3d 1363, 1367 (Fed. Cir. 2015) (tracking financial transactions to
determine whether they exceed a pre-set spending limit is an abstract idea as
a method of organizing human activity); Content Extraction, 776 F.3d at
1351 (humans have always performed the functions of data collection,
recognition, and storage); Digitech Image Techs., LLC v. Elecs. for Imaging,
Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (organizing information through
mathematical correlations is an abstract idea); Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (screening messages
is an abstract idea as a method of organizing human activity). The claims
here are directed to abstract ideas under the principles espoused in Electric
Power Grp, 830 F.3d at 1353-54.
We are not persuaded by Appellants' effort to characterize
"evaluating a user's interactions with a course of study offered over a
computer network" and modifying the online course "based on . .. hardware
interaction" as anything other than an abstract idea. Appeal Br. 15. In
human, face-to-face learning environments, human instructors routinely
observe their students and adapt their teaching in response to feedback
derived from such observations. It is an exercise that takes place entirely
within the human mind and, as such, it is properly characterized as an
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abstract idea. Elec. Power Grp., 830 F.3d at 1353 (explaining that collecting
and analyzing information by steps people go through in their minds are
essentially mental processes within the abstract-idea category). Appellants
essentially admit as much in their Specification.
In face-to-face training environments, educators intuitively
evaluate learners or lessons by observing learner activity and
reactions ... motivated educators can make use of such
observations to adjust their teaching techniques and approach in
order to better engage the quiet or struggling student, as well as
to acknowledge and further challenge the interested.
Spec. ,r 56.
Paige Turner® construct 1420" monitors and analyzes learner
behaviors in real time, providing a path and process to modify
these behaviors - much like a teacher observing a student and
correcting his actions.
Spec. ,r 150.
Here, Appellants are attempting to simulate the mental process of
obtaining student feedback using computer automation techniques. Claim 1
comprises generic computer equipment such as: (1) a server; (2) a network;
(3) a user computer; (4) a pointing device; and (5) a keyboard. Claims App.
The system comprises software to (1) capture and (2) analyze data to
generate a "behavioral observation." Id. The behavioral observation is
used to modify the course of study that is in progress. Id. In short, the
system collects data from a user, processes it, and presents information to
the same user based on the outcome of processing such data. Such is
properly characterized as either simulating mental activity or organizing
human activity, which are abstract ideas.
Appellants' effort to analogize the instant case to that of DDR
Holdings is not persuasive. Appeal Br. 16. DDR Holdings acknowledged
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that identifying the precise nature of an abstract idea is not always
straightforward. Id. at 1257.
[T]hese claims stand apart because they 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. Instead, the claimed solution is necessarily rooted in
computer technology in order to overcome a problem
specifically arising in the realm of computer networks.
Id. In particular, the patent at issue in DDR Holdings addressed a problem
of retaining website visitors who would otherwise be transported away from
a website by clicking on an advertisement hyperlink. Id.
[U]pon the click of an advertisement for a third-party product
displayed on a host's website, the visitor is no longer
transported to the third party's website. Instead, the patent
claims call for an "outsource provider" having a web server
which directs the visitor to an automatically-generated hybrid
web page that combines visual "look and feel" elements from
the host website and product information from the third-party
merchant's website related to the clicked advertisement. In this
way, rather than instantly losing visitors to the third-party's
website, the host website can instead send its visitors to a web
page on the outsource provider's server that 1) incorporates
"look and feel" elements from the host website, and 2) provides
visitors with the opportunity to purchase products from the
third-party merchant without actually entering that merchant's
website.
Id. at 1257-58 (footnote omitted). DDR Holdings, however, cautions that
not all claims purporting to address Internet-centric challenges are eligible
for patent. Id. at 1258, discussing Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
709, 714 (Fed. Cir. 2014). "Unlike the claims in Ultramercial, the claims at
issue here specify how interactions with the Internet are manipulated to yield
a desired result - a result that overrides the routine and conventional
sequence of events ordinarily triggered by the click of a hyperlink." Id. In
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contrast to DDR Holdings, the instant invention merely customizes the
presentation of learning content to a user based on collecting and analyzing
data obtained and derived from the user.
The prospect that Appellants' method uses a computerized "tool" does
not render the claims less abstract. An abstract idea does not become non-
abstract by limiting the invention to a particular technological environment.
Intellectual Ventures I, 792 F.3d at 1367; see also Affinity Labs of Texas,
LLC v. DirecTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016) (Merely
limiting the field of use of the abstract idea to a particular existing
technological environment does not render the claims any less abstract); see
also Alice, 134 S.Ct. at 2358 (the fact that a computer exists in the physical
realm is beside the point). Unlike Enfzsh, the focus of the instant claims is
not on improving a computer, but rather on a process for which computers
are invoked merely as a tool. See Enfzsh, 822 F.3d at 1335-36. The
Examiner is correct that the claims fall into a familiar class of claims
directed to a patent-ineligible concept, namely, an abstract idea. Non-Final
Action 4.
Turning to step two of the Alice/Mayo analysis, we look more
precisely at what the claim elements add in terms of whether they identify an
"inventive concept" in the application of the ineligible matter to which the
claim is directed to. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
1167 (Fed. Cir. 2018). "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]."' Alice, 134 S.Ct. at 2357
(quoting Mayo, 566 U.S. at 77-78). Those "additional features" must be
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more than well-understood, routine, conventional activity. Mayo, 566 U.S.
at 79.
Appellants argue that the claimed invention amounts to "significantly
more" than merely claiming an abstract idea. Appeal Br. 19--20.
In order to highlight this, Appellant previously amended its
claims to include limitations requiring specific computer
structure used to perform specific functions necessary to
implement and use the technology. These limitations included
the addition of a pointing device and/ or a keyboard and the
user's interactions with the claimed system through specific
actions using that computer structure.
Id. at 20. Appellants argue that, although a computer mouse and keyboard
may be, in some respects, considered conventional, they are nevertheless
employed in an unconventional manner in the instant invention. Id. at 21.
Appellants argue that generating "behavioral observations" to "modify the
course of study in real time" is patentable subject matter. Id. at 22.
The system can then modify the course of study or learning
environment itself to increase the intensity of the challenge or
encourage the user to make adjustments to his or her behavior
to increase the likelihood of a more effective outcome. In these
ways, the claimed system uses the data it collects from
hardware interactions to modify or "transform" the system into
a more effective instructional environment. This collection of
data concerning hardware interactions and real-time
transformation process provides "significantly more" than the
mere implementation of an abstract idea on a generic computer,
thereby satisfying the test articulated in Alice.
Id. at 23.
In response, the Examiner points out that Appellants' mouse and
keyboard are not used in an unobvious or new manner. Ans. 8. The
Examiner notes that key loggers and recording software utilized to collect
computer input data have long existed in computer technology. Id. The
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Examiner explains that the fact that Appellants' software retains the
information collected by, for example, a mouse, while other programs ignore
or do not save such data, is neither new nor novel. Id.
With respect to Appellants' argument regarding real-time
modification of training material, the Examiner takes the position that such
amounts to nothing more than merely changing the graphical data displayed
in the graphical user interface. Id. at 11.
The input is routine and does not confer any unique properties
or function to collected data. The physical embodiment of the
display is not change the structure of the system remains
unchanged and the program components function the same. All
that is changed is what is output or displayed to a user at
present.
Id. The Examiner emphasizes that the claims do not require a change in the
nature of the substrate of the underlying, generic computer system. Id.
"Altering a stored test or lesson does not amount to altering the system
itself." Id. The Examiner construes "modify the course of study" and "in
real time while the course of study is in progress" broadly but reasonably.
Id. According to the Examiner, "real-time" could be during any pause in the
course of study. Id. Furthermore, a modification in the course of study
could be something as simple as taking a break and then resuming the
training at a later time. Id.
In reply, Appellants point to a number of paragraphs in the
Specification as shedding light on the meaning of "real-time." Reply Br. 12
(citing Spec. ,r,r 52, 71, 73, 74, 98, 101, 132, 150). Appellants argue that, by
accessing captured student behavioral data, the manner in which content is
presented may be adjusted. Reply Br. 10. As an example, Appellants direct
our attention to paragraphs 148-151 of the Specification, where Appellants
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teach that an "Assistive Character" is displayed to relate "auxiliary
information" to the student. Id.
However, what Appellants point to as the "something significantly
more" is just implementation of the abstract idea itself using routine,
conventional, computer technology. It does not matter how innovative
Appellants' abstract idea is. A claim for a new abstract idea is still an
abstract idea. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1151 (Fed. Cir. 2016). We may assume that the techniques claimed are
"[g]roundbreaking, innovative, or even brilliant," but that is not enough for
eligibility. SAP Am., 898 F.3d at 1163 (quoting Ass 'nfor Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013)).
Appellants' limitations directed to software that: ( 1) transmits a
course of study; (2) receives a course of study; (3) presents a course of
study; ( 4) captures and analyzes data relating to interaction between a user
and a course of study; and ( 5) modifies the course of study, merely tell a
computer to "apply" the abstract idea of step 1. The Federal Circuit recently
explained that:
Our recent abstract idea exception decisions likewise have
stressed that a claimed invention must embody a concrete
solution to a problem having "the specificity required to
transform a claim from one claiming only a result to one
claiming a way of achieving it."
Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1343 (Fed. Cir. 2018)
( citation omitted). Programming a computer to generate a "behavioral
observation" and then "modify" a course of study based on the behavioral
observation amounts to adding the words "apply it" to the abstract idea. See
Alice, 134 S.Ct. at 2358. In that regard, we note that Appellants' description
of how to modify a course of study is vague, generalized and non-specific.
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See generally Spec. In short, Appellants claim a result, not an innovative
way to achieve it. Interval Licensing, at 1343.
The implementation of Appellants' abstract idea is a software
program that runs on generic computer equipment. Spec. ,r,r 38--40. For
example, the Specification discloses "a computer." Id. ,r 109. It uses
"computer communications networks as is known in the art." Id. ,r 94. It
uses a "mouse" for recording mouse clicks and hovering. Id. ,r 117. It uses
a computer "keyboard." Id. ,r 152. The computing device has "input
elements" such as a keyboard and mouse, and "output elements" such as a
display screen. ,r 153. There is nothing in the description of the computer
equipment and user interface components that purports to be a breakthrough
or advancement in computer technology. Alice, 134 S.Ct. at 2359.
Furthermore, we are not persuaded that modifying the course of study
based on a behavioral observation introduces an inventive concept.
Although Appellants' invention outputs more than just a report of the
behavioral observation itself, we are mindful that computers are interactive
in nature and routinely call up stored data, such as lesson plan materials, in
response to user input. Thus, we conclude that using software to modify a
course of study in the manner described and claimed by Appellants entails
nothing more than well-understood, routine, conventional activity. Mayo,
566 U.S. at 79.
Essentially, all Appellants have done here is use generic computer
data gathering, processing, and display technology to make on-line learning
more interactive. As in Alice, "each step does no more than require a
generic computer to perform generic computer functions." Alice, 134 S.Ct.
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at 2359. Accordingly, we sustain the Examiner's Section 101 rejection of
claims 1, 5-7, 10-26, 28-34, 37--41 and 43--45.
DECISION
The decision of the Examiner to reject claims 1, 5-7, 10-26, 28
and 29 under section 112 as indefinite is affirmed.
The decision of the Examiner to reject claims 1, 5-7, 10-26, 28-34,
37--41 and 43--45 as being directed to patent-ineligible subject matter under
section 101 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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