Ex Parte SRIVASTAVA et al

Patent Trial and Appeal Board

Sep 25, 2018

12851461 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/851,461 08/05/2010 Janmesh Dev SRIVASTAVA
79340 7590 09/27/2018
MANNA VA & KANG, P.C.
3201 Jermantown Road
SUITE 525
FAIRFAX, VA 22030
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.
Dl0-139-02359-PR-US 1751
EXAMINER
GUILIANO, CHARLES A
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
ASHOKM@MANNA V AKANG.COM
docketing@mannavakang.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANMESH DEV SRIVASTAVA, ANDRIS UMBLIJS,
CHAO WANG, STEPHEN DENIS KIRKBY,
PETER CHARLES KELLETT, THOAI DUY KHANG TRAN, and
DHARMENDRA K. DUBEY
Appeal2017-002467
Application 12/851,461 1
Technology Center 3600
Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
SCOTT E. BAIN, Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 2, 4--7, 9, 11, 12, 15-18, and 20-28, which
constitute all of the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Accenture Global Services Limited as the real party in
interest. App. Br. 3.
Appeal2017-002467
Application 12/851,461
STATEMENT OF THE CASE
The Claimed Invention
The claimed invention relates to determining the impact of social
media on sales of a product or service. Spec. ,r 21. Specifically, the
invention utilizes "econometrics" to determine "social media variables,"
relating to particular social media applications such as MySpace, Twitter,
and Facebook, to measure the impact of marketing activities in such
applications. Id. at ,r,r 3--4, 21. Claims 1, 12, and 20 are independent.
Claim 1 is illustrative of the invention and the subject matter of the appeal,
and reads as follows:
1. A social media analytical system for determining an
impact of an Internet-based social media application, the system
compnsmg:
a processor and a storage device, wherein the processor is to:
seed the social media application with information regarding a
product to elicit active social media engagement by users, wherein the
seeded information regarding the product includes at least one of
promotions, product information, and messages in the social media
application;
determine information to collect from the social media
application wherein to determine the information to collect, the
processor is to:
analyze data sets comprising terms and descriptions related to
the product; and
determine categories, subcategories, keywords, and phrases
associated with the product based on the analysis of the data sets,
wherein each of the subcategories includes a plurality of topics;
collect information from the social media application, wherein
the collected information includes the keywords and phrases and
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information related to the keywords and phrases collected from active
social media engagement by the users in the social media application
that is elicited by the seeding of the product information;
determine, for each topic, values for social media variables from
the collected information; associate each of the keywords and phrases
in the collected information with one of a positive variable, a negative
variable, and a neutral variable;
aggregate the social media variables based on the values of the
social media variables to generate values for the positive, negative, and
neutral variables based on the keywords and phrases, wherein to
aggregate the social media variables, the processor is to aggregate the
social media variables across the subcategories and categories in four
stages, comprising:
a first stage to determine the values for the positive,
negative, and neutral variables for each topic;
a second stage to sum the values for the positive, negative,
and neutral variables for each topic;
a third stage to aggregate across the subcategories to
determine an aggregation weight for each subcategory, and apply
the aggregation weight for each subcategory to each subcategory
to determine totals for each category, wherein to determine the
aggregation weight for each subcategory, the processor is to test
different weights on historic sales data to determine an accuracy
of the different weights; and
a fourth stage to generate a model and test the model with
the weighted aggregated social media variables to determine an
accuracy of the model in forecasting an impact of the active
social media engagement; and
estimate, for the product, the impact of the active social media
engagement elicited by the seeding based on the time series values.
App. Br. 25-27 (Claims App.) (emphases added).
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Application 12/851,461
The Rejection on Appeal
Claims 1, 2, 4--7, 9, 11, 12, 15-18, and 20-28 stand rejected under
35 U.S.C. § 101 as directed to ineligible subject matter. Final Act. 6-8.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments presented in this appeal. Arguments which Appellants could
have made but did not make in the Briefs are deemed to be waived. See
37 C.F.R. § 4I.37(c)(l)(iv). On the record before us, we are not persuaded
the Examiner erred. We adopt as our own the findings and reasons set forth
in the rejections from which the appeal is taken and in the Examiner's
Answer, and provide the following discussion for highlighting and emphasis.
Re} ection Under 3 5 US. C. § 101
Appellants argue the Examiner erred in rejecting the claims as
directed to ineligible subject matter, namely, the abstract idea of "organizing
[and categorizing] web data" via a set of rules. 2 App. Br. 11-16; Ans. 4--5.
Appellants contend the claims are not directed to an abstract idea, and
"[ e ]ven if they are, the claims as a whole amount to significantly more than
that abstract idea." App. Br. 11. Specifically, Appellants argue the claims
are dissimilar from those found abstract in Cyberfone and Ultramercial, and
that the claims do not preempt the field of determining social media impact,
or organizing web data. App. Br. 11-20; see also Final Act. 6-7 (citing
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014); Cyberfone
2 Appellants argue all claims on appeal as a group, and we choose claim 1 as
representative of the group. 37 C.F.R. § 4I.37(c)(iv).
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Systems, LLC v. CNN Interactive Group, Inc., 558 Fed. Appx. 988 (Fed. Cir.
2014)). For the following reasons, however, Appellants' arguments do not
persuade us of error.
Section 101 of the Patent Act provides "[ 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 Supreme Court has long held that this
provision contains an implicit exception: "[l]aws of nature, natural
phenomena, and abstract ideas are not patentable." Alice Corp. Pty. Ltd. v.
CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589--590 (2013)). The
Court has set forth a two-part inquiry to determine whether this exception
applies. First, we must "determine whether the claims at issue are directed
to one of those patent-ineligible concepts." Alice, 134 S. Ct. at 2355
( citation omitted). Second, if the claims are directed to one of those patent-
ineligible concepts, we consider "the elements of each claim both
individually and 'as an ordered combination' to determine whether the
additional elements 'transform the nature of the claim' into a patent-eligible
application." Alice, 134 S. Ct. at 2355 (quoting Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 77-78 (2012)). Put differently, we
must search the claims for an "inventive concept," that is, "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
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concept] itself."' Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 72-
73).
We begin with step one of Alice. As the Examiner finds, claim 1 is
directed to a storage device and processor that performs a series of data
gathering and data processing steps - namely, "organizing web [ social
media] data" relating to advertising. Ans. 4--5. Claim 1 recites, for
example, "seed[ing] with information," "determin[ing] information to
collect," "analyzing" information, "determining categories" of information,
"collect[ing] information," "determin[ing] values" of variables,
"aggregat[ing] variables," "sum[ ming]" values, and generating a model from
this data. App. Br. 24--26; Ans. 4--5. It is well established that data
gathering and data manipulation encompass an abstract idea. See, e.g., Elec.
Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)
("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 TL! 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). The fact that claim 1 recites the
information gathering in the context of online advertising makes it no less
abstract. See, e.g., Ultramercial, Inc. v. Hulu, LLC, 772 F.3d at 714--715
( online method of ad serving is abstract); buySAFE, Inc. v. Google, Inc., 7 65
F.3d 1350 (Fed. Cir. 2014) (guaranty service for online transactions is
abstract).
Appellants argue that the Examiner has "oversimplif[ied]" claim 1,
and that is more analogous to the claims found patent eligible in McRO and
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Enfzsh, than to those found ineligible in Ultramercial and Cyberfone. App.
Br. 11-17; Reply Br. 7-9 (citing McRO, Inc. v. Bandai Namco Games
America Inc., 837 F.3d 1299 (Fed. Cir. 2016); Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327 (Fed. Cir. 2016)). The claims in Enfzsh, however,
were directed to a "specific improvement to the way computers operate,"
i.e., an improved database configuration that permitted faster searching for
data. Enfzsh, 822 F.3d at 1330-33, 1336. Appellants' claim 1 is not directed
to any advance in hardware or software that, for example, causes a computer
to operate faster or more efficiently. Similarly, Appellants do not explain
how claim 1 allegedly is analogous to the claims in McRO, which involved a
"technological improvement over the existing, manual 3-D animation
techniques." McRO, 837 F.3d at 1316. In contrast, Appellants' claims are
analogous to those in Ultramercial (processing online advertising
information) and Cyberfone (using categories to organize online
information), both of which were found to be abstract. Ans. 5 (citations
omitted).
Similarly, we are unpersuaded by Appellants' argument that the
claims do not preempt the entire field of "determining social media impact"
or "organizing web data via a set of rules." Reply Br. 9-10. Although
"preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility." FairWarning
IP, 839 F .3d at 1098 ( quoting 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
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optimization or may be limited to price optimization in the e-commerce
setting do not make them any less abstract."). Where, as here, "a patent's
claims are deemed only to disclose patent ineligible subject matter under the
Mayo framework ... preemption concerns are fully addressed and made
moot." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379
(Fed. Cir. 2015).
Accordingly, Appellants have not persuaded us of error in the
Examiner's analysis under Alice step one, and we proceed to step two.
In step two of Alice,
we must examine the elements of the claim to determine whether
it contains an "inventive concept" sufficient to "transform" the
claimed abstract idea into a patent-eligible application. 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 Corp., 134 S. Ct. at 2357 (internal citations omitted). Appellants argue
that such "additional features" include a "very detailed and specific four-
stage process [] to generate values for the [ recited] variables," and that "[ n Jot
just any information is collected [but rather, specific] keywords and phrases
determined from the analysis of data sets." App. Br. 21-22; see also Reply
Br. 12-13.
Appellants, however, do not explain how the foregoing features
constitute anything beyond data gathering and manipulation, as discussed
above in the analysis of Alice step one. The claim recites a "processor and a
storage device," and the Specification indicates these are generic computing
elements. Spec. ,r,r 70-71. The use of such generic computing elements
"do[ es] not alone transform an otherwise abstract idea into patent-eligible
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subject matter." FairWarning, 839 F.3d at 1096 (citing DDR Holdings,
LLC, v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)); Ans. 9-10.
In particular, Appellants' claim 1 lacks any limitations directed to an
improved computer system, processor, memory, network, database, or
Internet. Accordingly, we conclude that none of the claim limitations,
viewed "both individually and as an ordered combination," amount to
significantly more than the judicial exception in order to sufficiently
transform the nature of the claims into patent-eligible subject matter. See
Alice, 134 S. Ct. at 2355 (internal quotations omitted) ( quoting Mayo, 566
U.S. at 79).
Appellants, therefore, do not persuade us the Examiner erred in the
second step of the Alice analysis.
For the foregoing reasons, we sustain the rejection of claims 1, 2, 4--7,
9, 11, 12, 15-18, and 20-28 as directed to ineligible subject matter.
DECISION
We affirm the Examiner's decision rejecting claims 1, 2, 4--7, 9, 11,
12, 15-18, and 20-28.
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). See 37 C.F.R.
§ 4I.50(f).
AFFIRMED
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