Ex Parte van Zwol et al

Patent Trial and Appeal Board

Nov 6, 2018

12898661 (P.T.A.B. Nov. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/898,661 10/05/2010
149987 7590 11/06/2018
Berkeley Law & Technology Group LLP
17933 NW Evergreen Place
Suite 250
Beaverton, OR 97006
FIRST NAMED INVENTOR
Roelof van Zwol
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.
303.Pl24/Y06472USOO 4223
EXAMINER
SCHMUCKER, MICHAEL W
ART UNIT PAPER NUMBER
3681
MAIL DATE DELIVERY MODE
11/06/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROELOF VAN ZWOL and VANESSA MURDOCK
Appeal2017-004360
Application 12/898,661
Technology Center 3600
Before ERIC S. FRAHM, JOHN P. PINKERTON, and
NORMAN H. BEAMER, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-18, which are all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Excalibur IP, LLC as the real party in interest. App.
Br. 5.
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Application 12/898,661
STATEMENT OF THE CASE
Introduction
Appellants generally describe the disclosed and claimed invention as
"[a] method or system for employing user credibility in electronic media
advertising." Abstract; Spec. ,r 2. 2
Claims 1, 7, 12, 15, and 18 are independent claims. Claim 1 is
representative and reproduced below:
1. A method, comprising:
processing, by a server comprising one or more
processors, one or more binary digital signals received via a
node of a network, the one or more binary digital signals
comprising a description of media content by a particular user
for an item of content;
determining, by the server, one or more binary digital
signals comprising user credibility signal sample values for the
particular user and indicating a difference between:
one or more first signal sample values, determined
for the particular user based at least partially on the one or more
binary digital signals comprising the description of media
content, and
a target value based, at least in part, on additional
signal sample values provided by one or more other users,
wherein at least one of the user credibility signal
sample values is determined based at least in part on one or
more characteristics independent of a social influence of the
particular user, and at least one of the characteristics comprises
2 Our Decision refers to the Final Office Action mailed Nov. 19, 2015
("Final Act."); Appellants' Appeal Brief filed June 24, 2016 ("App. Br.")
and Reply Brief filed Jan. 17, 2017 ("Reply Br."); the Examiner's Answer
mailed Nov. 15, 2016 ("Ans."); and the original Specification filed Oct. 5,
2010 ("Spec.").
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a description of media content by the particular user for a
particular media or content item;
generating one or more binary digital signals comprising
an association for the particular user between characteristics of
one or more electronic media advertisements and cost, by the
one or more processors based, at least in part, on the user
credibility signal sample values; and
storing one or more binary digital signals comprising the
association in a memory.
App. Br. 65---66 (Claims App'x). 3
Rejections on Appeal
Claims 1-18 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to patent-ineligible subject matter.
Claims 1-18 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Ghosh et al. (US 2010/0145777 Al; published June 10,
2010) ("Ghosh") and Tishkevich (US 2012/0179552 Al; published July 12,
2012).
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments in the Briefs. For the reasons discussed infra, we are not
persuaded by Appellants' arguments that the Examiner erred in rejecting
claims 1-18 under 35 U.S.C. § 101, but we are persuaded the Examiner
erred in rejecting claims 1-18 under 35 U.S.C. § I03(a).
3 We note that Appellants failed to number the pages of the Appeal Brief.
For purposes of this decision, we treat the cover page of the Appeal Brief as
page number 1 and the remaining pages as being numbered consecutively
thereafter.
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Re} ection Under § 101
Applicable 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."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "Laws of nature, natural phenomena, and
abstract ideas" are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CLS
Bank Int'!, 134 S. Ct. 2347, 2354 (2014).
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.'" Enfzsh,
LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). 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
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machinery." McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1314 (Fed. Cir. 2016).
If, at the first stage of the Alice analysis, we conclude that the claim is
not directed to a patent-ineligible concept, it is considered patent eligible
under § 101 and the inquiry ends. Rapid Litig. Mgmt. Ltd. v. CellzDirect,
Inc., 827 F.3d 1042, 1047 (Fed. Cir. 2016).
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. (alteration 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 postsolution activity."'
Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (citation omitted).
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Appellants' Arguments 4
Appellants contend the Examiner failed to make a prima facie case of
unpatentability under 35 U.S.C. § 101. 5 App. Br. 17. In particular,
Appellants argue that the claims, viewed as a whole, are not directed to an
abstract idea and meet the requirements of step 2A of the subject matter
eligibility test. Id. at 28--40; Reply Br. 12-23. Appellants assert that Enfzsh
clarified that "software is patent-eligible, such as a claim directed to a
solution to a problem in the software arts," and that five cases decided after
Alice have held claims directed to technology implemented via software to
be patent-eligible: DDR, 6 Enfzsh, BASCOM, 7 McRO, andAmdocs. 8 App.
Br. 30 (emphasis omitted); Reply Br. 12. Appellants state '[t]he Examiner,
however, appears to disagree." Reply Br. 12 (emphasis omitted). Appellants
argue that, contrary to guidance in Enfzsh, the Examiner described claim 1 in
the Answer "at a high level of abstraction, namely, as 'providing
content/advertising to a user,"' and "the Examiner has provided no reasoning
to support the proposition that the subject matter claimed qualifies as a
judicial exception." Reply Br. 13-14. According to Appellants, claim 1
4 Appellants argue claims 1-18 as a group. See App. Br. 15--44; Reply Br.
4--28. We consider method claim 1 to be representative of the claimed
subject matter on appeal and, therefore, we decide the§ 101 rejection of
claims 1-18 on the basis of representative claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
5 Appellants argue, and we agree, that each of the claims recites "a statutory
category of invention" under 35 U.S.C. § 101. App. Br. 16-17, 27-28.
6 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)
7 BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016)
8 Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir.
2016).
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provides an improvement over existing technology because user credibility
sample values are determined largely independent of social influence of the
particular user. App. Br. 34, 36-40; Reply Br. 15-18. Appellants also argue
that there is no concern here with respect to pre-emption because
"Appellant[ s] claim[] a particular application for obtaining user credibility
signal sample values for a particular user, based, at least in part, on one or
more characteristics independent of a social influence of the particular user."
Reply Br. 21-22; see also App. Br. 32 ("here, claim 1 does not ... seek to
pre-empt use of decision rules"). According to Appellants, claim 1 here is
like the claim in Diehr, 9 which was held to be directed to patent-eligible
subject matter. App. Br. 34. Appellants further argue that, viewed as a
who le, the claims (a) incorporate features of rules and (b) represent an
improvement over existing technology. Reply Br. 23.
Appellants also contend that the claims recite additional elements that
amount to significantly more than the judicial exception and, therefore, the
claims meet the requirements of step 2B of the subject matter eligibility test.
App. Br. 40-42; Reply Br. 23-27. According to Appellants, the Examiner
does not appear to consider step 2B. Reply Br. 23. Appellants argue that, as
explained previously, "the claims represent improvements over existing
technology and, thus, the claims are not merely well known, routine or
conventional." App. Br. 40 (emphasis omitted); Reply Br. 24. In that
regard, Appellants argue the claims here as similar to those in BASCOM in
that they represent improvements over existing technology instead of
"merely reciting well-known, routine, or conventional aspects." Reply Br.
9 Diamond v. Diehr, 450 U.S. 175 (1981).
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25-26. Appellants further argue that, as in Amdocs, the claims here recite an
inventive concept and are not so broad to cause pre-emption concerns. Id. at
26-27. Appellants also argue that "the calculations, here, could notfeasibly
be performed in the human mind" as there are "too many possibilities and
calculations for a human to consider at one time." App. Br. 41--42; Reply
Br. 27.
Prima Facie Case
Before substantively analyzing claim 1 under the two-step Alice test,
we address Appellants' contention that the Examiner failed to establish a
prima facie case of subject matter ineligibility under 35 U.S.C. § 101. See
App. Br. 17. The Examiner is required to provide Appellants reasonable
notice as to the basis of the§ 101 rejection. The notice requirement is set
forth by 35 U.S.C. § 132:
[T]he PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
"notify[ing] the applicant ... [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application." 35
U.S.C. § 132. That section "is violated when a rejection is so
uninformative that it prevents the applicant from recognizing and
seeking to counter the grounds for rejection." Chester v. Miller,
906 F.2d 1574, 1578 (Fed. Cir. 190).
See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
Here, the Examiner stated the claims are rejected under 35
U.S.C. § 101 because the claimed invention is directed to non-
statutory subject matter. Final Act. 2. The Examiner also applied the
two-part Alice test. Id. at 2--4. Regarding step-one of Alice, the
Examiner finds that, based on "all of the relevant factors with respect
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to the claim as a whole," claims 1-18 are directed to "the abstract idea
of targeted advertising on websites." Id. at 3. The rationale for this
determination was explained by the Examiner as follows:
"[a]dvertising and targeted advertising on websites, auctioning of
these ads, and providing feedback to make the ads better are
fundamental economic practices and thus, the claims include an
abstract idea." Id. Similarly, in the Answer, the Examiner finds that
"[c]laims 1-18 are directed to sending and receiving data to select and
send targeted advertising" and "claims 1-18 as a whole are directed to
providing content/advertising to a user." Ans. 5-6.
Regarding step-two of Alice, the Examiner made the following
findings:
The Examiner has considered the individual elements of the
claim and the claim as a whole, and notes that the claims do not
include additional elements that are sufficient to amount to
significantly more than the judicial exception because the claims
do not include an improvement to another technology or
technical field, an improvement to the functioning of the
computer itself, or meaningful limitations beyond generally
linking the use of an abstract idea to a particular technological
environment. Note that the limitations in the instant claims are
done by the generically recited server and computing platform,
that is essentially any computing system as seen in the
applicant's specification in at least paragraphs 0018 and 0025-
0028. The limitations are merely instructions to implement the
abstract idea on a computer and require no more than a generic
computer to perform generic computer functions that are well-
understood, routine and conventional activities previously
known to the industry.
Id. at 3--4; see also Ans. 6-8.
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Based on the above reasons and findings of the Examiner, we
determine the Examiner provides a reasonable explanation of why the claims
are directed to an abstract idea and do not include additional elements to
amount to significantly more than the abstract idea. Thus, the Examiner
satisfied the notice requirement of 35 U.S.C. § 132. Furthermore, based on
the Examiner's above rationale and findings, we are not persuaded by
Appellants' arguments that the Examiner provided "no reasoning" for
finding that the subject matter claimed is directed to an abstract idea (see
Reply Br. 13-14) and "does not appear to consider step 2B" (see Reply Br.
23).
Step One of Alice
Considering the focus of claim 1 as a whole, in view of Appellants'
Specification, we agree with the Examiner that claim 1 is directed to an
abstract idea-targeted advertising on websites. Final Act. 3; Ans. 6. In
particular, claim 1 recites: (1) processing digital signals "comprising a
description of media content by a particular user;" (2) determining user
credibility signal sample values for the particular user based on
"characteristics independent of a social influence of the particular user, and
at least one of the characteristics comprises a description of media content
by the particular user;" (3) determining a difference between (a) signal
sample values for the particular user based on signals comprising the
description of media content and (b) a target value based on signal sample
values provided by one or more other users; ( 4) "generating ... signals
comprising an association for the particular user between characteristics of
one or more electronic media advertisements and cost ... based, at least in
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part, on the user credibility signal sample value;" and (5) storing signals
comprising the association. App. Br. 65 (Claims App'x).
Appellants' Specification explains that the claimed electronic media
or content item "may comprise a media advertisement," which may be
associated with field of use signal information, which "may comprise cost
information." Spec. ,r,r 37, 39. The Specification also explains that
"[a]dvertisers may direct particular electronic media advertisements to
particular categories of users defined, at least in part, by associated field of
use signal information." Id. ,r 37. The Specification further explains that
"electronic media advertisements may be associated with cost based at least
in part on user credibility signal sample values" and that media
advertisements characteristics "may be filtered ... based at least in part on
... cost or said associated characteristics." Id. ,r 54.
Courts have determined that similar concepts to claim 1 were directed
to abstract ideas. See Morsa v. Facebook, Inc., 77 F. Supp. 3d 1007, 1013
(C.D. Cal. 2014), affd, 622 F. App'x 915 (Fed. Cir. 2015) (concluding that
claims directed to "targeting advertisements to certain consumers" were no
more than an abstract idea). As noted by the court in Morsa, "targeted
advertising is [a well-known] concept, insofar as matching consumers with a
given product or service 'has been practiced as long as markets have been in
operation."' Morsa, 77 F. Supp. 3d at 1014 (quoting Tuxis Techs., LLC v.
Amazon.com, Inc., 2014 WL 4382446, at *5 (D. Del. 2014)). In other
words, "[t]he concept of gathering information about one's intended market
and attempting to customize the information then provided is as old as the
saying, 'know your audience."' Id. at 1013 (quoting OpenTV, Inc. v. Netflix
Inc., 76 F. Supp. 3d 886, 893 (N.D. Cal. 2014)).
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In addition, the Federal Circuit has concluded that similar concepts
were directed to abstract ideas. See Affinity Labs of Tex., LLC v.
Amazon.com Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016) ("tailoring of
content based on information about the user--such as where the user lives or
what time of day the user views the content--is an abstract idea that is as old
as providing different newspaper inserts for different neighborhoods.")
(citing Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d
1363, 1369 (Fed. Cir. 2015)); see also Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 712, 714-15 (Fed. Cir. 2014) (concluding claims reciting steps
receiving media content, associating the content with an advertisement,
providing the content for sale on the Internet while restricting public access
to the content, providing the content to a consumer without charge in
exchange for viewing an advertisement, and allowing access to the content
after viewing or interacting with the advertisement were directed to the
abstract idea of "showing an advertisement before delivering free content").
We are not persuaded by Appellants' argument that, although 5 cases
decided after Alice held claims directed to technology implemented via
software to be patent-eligible, the Examiner "appears to disagree" that
software is patent-eligible. Reply Br. 12. In that regard, the Examiner
specifically states that "[t]he Examiner agrees that Software may be patent
eligible subject matter, but respectfully disagrees that the instant invention is
patent eligible subject matter" based on the analysis in the Answer and
previously in the Final Office Action. Ans. 9. We also are not persuaded by
Appellants' argument that the Examiner described claim 1 at a high level of
abstraction because the Examiner notes that "[t]he current and previous
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analyses examined 'the claims as a whole', so all the limitations and claims
were taken into consideration individually and in combination." Id.
Although Appellants argue that claim 1 provides an improvement
over existing technology because user credibility sample values are
determined largely independent of social influence of the particular user (see
App. Br. 34, 36-40; Reply Br. 15-18, 23), this argument is not convincing
because it is conclusory and unsupported by the claim language. See
Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336,
1345 (Fed. Cir. 2013) (admonishing that "the important inquiry for a§ 101
analysis is to look to the claim"; "the complexity of the implementing
software or the level of detail in the specification does not transform a claim
reciting only an abstract concept into a patent-eligible system or method").
Nor have Appellants identified any portion of the Specification, or provided
any evidence or technical reasoning, demonstrating that claim 1 achieves a
technical advance or improvement to computer functionality. Rather than a
technological advance, we determine claim 1 is directed to a business
solution to improve the abstract idea of targeted advertising. In addition,
Appellants' citation to McRO and argument that the claims are not abstract
because they "incorporate features of rules" (see Reply Br. 22-23) is not
persuasive. In McRO, the court held the claims were patent-eligible because
the claims recited specific computer-implemented rules that allowed a
computer to produce accurate and realistic lip synchronization and facial
expressions in animated characters that previously could only be produced
by human animators. See McRO, 837 F.3d at 1313. Here, claim 1 fails to
recite technical details or rules that describe how the claimed method
realizes an operational improvement via the claimed functionality.
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Contrary to Appellants' arguments that the claims are similar to those
in Enfish (see Reply Br. 20) and Amdocs (see id. at 26), Appellants have not
demonstrated that the claims "improve the way a computer stores and
retrieves data in memory," as the claims in Enfish did via a "self-referential
table for a computer database." See Enjish, 822 F.3d at 1336, 1339.
Appellants have also not demonstrated that the claims provide an
"unconventional technological solution ... to a technological problem" that
"improve[s] the performance of the system itself," as explained in Amdocs,
841 F.3d at 1300, 1302.
We also are not persuaded by Appellants' arguments that there is no
concern here with respect to pre-emption. App. Br. 32; Reply Br. 19, 21-22,
26-27. "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) ("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").
Appellants' argument that claim 1 is like the claim in Diehr, which
was "otherwise statutory," is also not persuasive. App. Br. 34. In Diehr, the
court determined the claims-at-issue were not directed to an abstract idea
(i.e., a mathematical formula), but instead were directed to a physical
process of curing synthetic rubber that employed a mathematical formula.
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See Diehr, 450 U.S. at 187. In contrast, there is no physical process recited
in claim 1.
Step Two of Alice
Regarding step two of the Alice analysis, the Examiner finds that the
elements of the claims, considered individually and as an ordered
combination, do not provide "significantly more" than the abstract idea. See
Final Act. 3--4; see also Ans. 6-8. In particular, the Examiner finds that the
claims do not include additional elements that are sufficient to
amount to significantly more than the judicial exception
because the claims do not include an improvement to another
technology or technical field, an improvement to the
functioning of the computer itself, or meaningful
limitations beyond generally linking the use of an abstract idea
to a particular technological environment.
Final Act. 3. The Examiner also finds that the claim limitations are
performed by "the generically recited server and computing platform, which
is essentially any computing system," and "are merely instructions to
implement the abstract idea on a computer and require no more than a
generic computer to perform generic computer functions that are well-
understood, routine and conventional activities previously known to the
industry." Id. at 3--4 (citing Spec. ,r,r 18, 25); see also Ans. 7 (finding that
paragraphs 20, 27-33, and 90 of the Specification "detail any combination of
a generic computer system program to perform the method"). For the
reasons stated by the Examiner, we agree with the Examiner's findings and
conclusions.
We are not persuaded by Appellants' arguments that the Examiner
erred. First, we are not persuaded by Appellants' argument that the claims
amount to significantly more than the judicial exception because the claims
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represent "improvements over existing technology" and, thus, are not merely
well-known, routine or conventional. App. Br. 40-42; Reply Br. 23-27.
Appellants have failed to identify any portion of the Specification, or
provided any evidence or technical reasoning, persuasively demonstrating
that claim 1 achieves a technical advance or improvement to computer
functionality. Further, as discussed supra, the argued improvement of
determining user credibility signal values based on characteristics
"independent of a social influence of the particular user" is merely an
improvement of the underlying abstract idea of targeted advertising and does
not constitute an improvement to the functionality of the underlying
computer system or computer technology. In that regard, claim 1 does not
"focus on a specific means or method that improves the relevant
technology," but is "directed to a result or effect that itself is the abstract
idea and merely invoke[s] generic processes and machinery." McRO, 837
F.3d at 1314. This is not enough to transform an abstract idea into patent-
eligible subject matter. See, e.g., Alice, 134 S. Ct. at 2360 (explaining that
claims that "amount to 'nothing significantly more' than an instruction to
apply the abstract idea ... using some unspecified, generic computer" "is
not 'enough' to transform an abstract idea into a patent-eligible invention"
(quoting Mayo, 566 U.S. at 77, 79)); Intellectual Ventures, 850 F.3d at 1342
("[T]he claim language here provides only a result-oriented solution, with
insufficient detail for how a computer accomplishes it. Our law demands
more.").
Second, Appellants' argument that the claims here are similar to those
in BASCOM in that they represent improvements over existing technology
instead of reciting well-known, routine, or conventional aspects is also not
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persuasive. See Reply Br. 25-26. The court in BASCOM noted that an
inventive concept can be found in a non-conventional and non-generic
arrangement of known, conventional pieces. See BASCOM, 827 F.3d at
1350. However, the claims here are distinguishable from those in Bascom.
In Bascom, the system claims were directed to a "content filtering system for
filtering content retrieved from an Internet computer network," which the
court held were directed to an abstract idea. Id. at 1348--49. The court
further held the claims included an inventive concept in the ordered
combination of system components, including a local client computer and a
remote ISP server connected to the client computer and Internet computer
network providing for "the installation of a filtering tool at a specific
location, remote from the end-users, with customizable filtering features
specific to each end user." Id. at 1350. Appellants have failed to establish
that claim 1 includes a similar or analogous arrangement or "ordered
combination" of components and instead make only the conclusory
statement that the claims at issue here "represent improvements over
existing technology." Id. at 26.
Thus, we see nothing in the limitations of claim 1, considered both
"individually and 'as an ordered combination,"' that transforms the claimed
abstract idea into patent-eligible subject matter.
Accordingly, we sustain the Examiner's rejection of claim 1 under
§ 101. For the same reasons, we sustain the rejection of independent claims
7, 12, 15, and 18, and dependent claims 2-6, 8-11, 13, 14, 16, and 17, which
are not separately argued, under § 101.
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Rejection Under§ 103(a)
The Examiner finds that Ghosh teaches the claim 1 limitation of "at
least one of the user credibility signal sample values is determined based at
least in part on one or more characteristics independent of a social influence
of the particular user." Ans. 17-18 (citing Ghosh ,r,r 45, 47-49, 52, 55- 57);
Final Act. 8-9. In particular, the Examiner quotes, and relies on, the
following portion of paragraph 48 of Ghosh:
In some embodiments, in an illustrative operation, each of the
reputation targets of reputation attribution environment 400 can
be attributed one or more reputation scores ( e.g., reputation score
for business data, reputation score for family data, etc.). In the
illustrative operation, the reputation score for each reputation
target for each category ( e.g., business, family, social, religious,
etc.) can be calculated according to the degree of relationship
with other reputation targets and/ or the number of connections
with other relationship targets.
Ans. 17-18.
Appellants disagree with the Examiner's interpretation of paragraph
48 and argue that, contrary to the Examiner's finding, "paragraph 48 appears
to explicitly state that reputation score for a reputation target is based on a
social influence of a user." App. Br. 57-58; Reply Br. 31. In particular,
Appellants argue the last sentence of paragraph 48 teaches that reputation
score is calculated according to "social influence" because it states that the
reputation score for each representation target "can be calculated according
to the degree of relationship with other reputation targets and/or the number
of connections with other relationship targets." Reply Br. 31. Thus,
Appellants argue that the method recited in Ghosh is "dependent upon social
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influence," whereas the method of claim 1 is "independent of social
influence." Id. at 32 (emphasis omitted).
For the reasons argued by Appellants, we agree with Appellants
that Ghosh does not teach or suggest the disputed limitation of claim
1. We also agree with Appellants that Tishkevich does not cure the
deficiencies of Ghosh because, as Appellants argue, "Tishkevich fails
to show that any user credibility signal sample values are determined
or otherwise processed for any reason whatsoever." Id.
Accordingly, we do not sustain the Examiner's rejection of claim 1
under§ 103(a). For the same reasons, we also do not sustain the Examiner's
rejection of independent claims 7, 12, 15, and 18, each of which recites a
commensurate limitation to the disputed limitation of claim 1, as well as
dependent claims 2---6, 8-11, 13, 14, 16, and 17, under§ 103(a).
DECISION
We affirm the Examiner's decision rejecting claims 1-18 under 35
U.S.C. § 101.
We reverse the Examiner's decision rejecting claims 1-18 under 3 5
U.S.C. § 103(a).
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See 37
C.F.R. § 4I.50(a)(l).
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.
§ 1.136(a)(l)(iv)(2016).
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AFFIRMED
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