Ex Parte Zamani et al

Patent Trial and Appeal Board

Aug 29, 2018

12061618 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/061,618 04/02/2008
26379 7590 09/05/2018
DLA PIPER LLP (US )
2000 UNIVERSITY A VENUE
EAST PALO ALTO, CA 94303-2248
FIRST NAMED INVENTOR
Pa yam Zamani
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.
353952-991003 8829
EXAMINER
VIZV ARY, GERALD C
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
09/05/2018 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):
PatentDocketing US-PaloAlto@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAY AM ZAMAN! and SEAN FOX
Appeal2017-004433
Application 12/061,618
Technology Center 3600
Before ALLEN R. MACDONALD, BRADLEY W. BAUMEISTER, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-16. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appeal2017-004433
Application 12/061, 618
STATEMENT OF THE CASE
Appellants' invention is directed to a lead marketplace system and
method with ratings system. Spec. Title. Claims 1 and 11, reproduced
below with the disputed limitations in italics, are representative of the
claimed subject matter:
1. A lead marketplace system, comprising:
a storage system that stores a plurality of leads wherein each
lead is an electronic contact and transactional information that
provides an opportunity to sell a good or service to a prospective
customer;
a Lead Seller database, coupled to the storage system, that
stores one or more selling campaigns for one or more Lead Sellers,
each selling campaign containing one or more leads to be sold in the
lead marketplace system;
a Lead Buyer database, coupled to the storage system, that
stores one or more buying campaigns for one or more Lead Buyers,
each buying campaign including one or more parameters specifying
the characteristics of leads to be bought by the Lead Buyer associated
with the buying campaign; and
a rating server, coupled to the storage system, that provides a
quality rating for each lead stored in the storage system, wherein the
quality rating for the lead reflects a quality of the lead and is based on
a historical performance of the selling campaign with which the lead
is associated and a set of information about the lead.
11. A method for rating a lead in a lead marketplace system based
on a plurality of quality factors associated with the lead, the method
compnsmg:
determining, by a rating unit of the lead marketplace system,
for each quality factor of the plurality of quality factors associated
with the lead, if each quality factor for the lead has been triggered;
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Application 12/061, 618
determining, by a rating unit of the lead marketplace system, a
weight for each quality factor that has been triggered for the lead;
calculating, by a rating unit of the lead marketplace system, a
quality factor score for each triggered quality factor based on the
weight for each triggered quality factor;
combining, by a rating unit of the lead marketplace system, the
quality factor scores for all of the triggered quality factors; and
generating, by a rating unit of the lead marketplace system, a
rating for the lead based on the combined quality factor scores.
App. Br. 14, 15-16 (Claims Appendix).
REJECTIONS
Claims 1-16 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter.
Claims 1-16 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over the combination of Diana et al. (US 2006/0041500
Al; published Feb. 23, 2006) ("Diana") and Mitchell (US 2007 /0282904
Al; published Dec. 6, 2007).
ANALYSIS
35 USC§ 101 Rejections
To determine whether a claim is eligible under § 101, "[ w ]e must first
determine whether the claims at issue are directed to a patent-ineligible
concept." Alice Corp. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2355 (2014).
"[I]n applying the § 101 exception, we must distinguish between patents that
claim the 'buildin[g] block[ s]' of human ingenuity and those that integrate
the building blocks into something more." 134 S. Ct. at 2354--55. One must
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keep in mind that "all inventions at some level embody, use, reflect, rest
upon, or apply laws of nature, natural phenomena, or abstract ideas," Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012), and
"describing the claims at ... a high level of abstraction and untethered from
the language of the claims all but ensures that the exceptions to § 101
swallow the rule." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337
(Fed. Cir. 2016). Instead, "the claims are considered in their entirety to
ascertain whether their character as a whole is directed to excluded subject
matter." Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343,
1346 (Fed. Cir. 2015). "If the claims are not directed to an abstract idea [ or
other patent-ineligible concept], the inquiry ends. If the claims are 'directed
to' an abstract idea, then the inquiry proceeds to the second step of the Alice
framework." McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1312 (Fed. Cir. 2016).
Turning to the present appeal, the Examiner determines the claims are
directed to "a storage system that stores a plurality of leads wherein each
lead is a contact and transactional information that provides an opportunity
to sell a good or service to a prospective customer," which the Examiner
determines is an abstract idea. Final Act. 6. The Examiner further
determines the claims are not directed to an improvement to computer
technology, but rather to a business solution that uses computers. Ans. 2.
Appellants argue the claims are similar to those in Enfzsh and are
"directed to an improvement in computer technology in that the claims are
directed to a lead marketplace that has the technology improvement of a
ratings system that rates the leads." App. Br. 8. Appellants argue "the
claims are directed to a technology improvement in the area of lead
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generation and selling and improves the known systems" and "[ s Jpecifically,
the claims recite the rating server." App. Br. 9. Appellants further argue
"the claims are directed to improving an existing technological process (lead
marketplace with ratings)." Reply Br. 2-3. Appellants further "disagree[]
that a storage system (which is a physical element) can be an abstract idea."
Id. In addition, Appellants argue "the examiner has described the claim at a
high level of abstraction untethered from the language of the claim" because
"the examiner's characterization of the claims ignored the rating server
element." App. Br. 9.
We are not persuaded by Appellants' arguments and agree with the
Examiner's findings and conclusions. See Final Act. 3--4, 6-7, Ans. 2---6.
Although the claims require concrete components such as a database, storage
system, and rating server, the Specification indicates that these recited
physical components merely provide a generic environment in which to
carry out the abstract idea of storing leads and providing a quality rating for
each stored lead. The courts have determined such uses of storage to
constitute an abstract idea. See, e.g., In re TL! Communications LLC Patent
Litigation, 823 F .3 d 607, 613 (Fed. Cir. 2016) ( classifying and storing
digital images in an organized manner is an abstract idea).
For example, the Specification states "[ t ]he LMP [lead market place]
system 20 may further include one or more storage units, such as database
tables in one implementation of the system that store data and are accessed
by the various units" and "[t]he LMP system 20 may further comprise a
consumer rating unit 40, such as one or more server computers that execute
computer code in one implementation, that provide a rating process."
Spec. 5; see also Spec. Fig. 1.
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We disagree the claims are similar to those in Enfzsh. See Ans. 3.
The claims do not recite any improvement to computer functionality or to
the storage system, in contrast to the technological improvement of the self-
referential database table claimed in Enfzsh. Rather, the present claims
generically recite a storage system and database for storing data and a server
that provides a quality rating by using conventional or generic technology.
See Spec. 3, 5, Fig. 1.
The problem faced by Appellants relates to "efficiently pric[ing] and
distribut[ing] Leads." Spec. 1; see also Spec. 3 ("[t]he lead marketplace
system brings Lead Buyers ... and Lead Sellers ... together in a way that
efficiently prices Leads so that they sell at the market-efficient price while
minimizing the Lead Seller's operating costs."). The Specification does not
describe a new type of storage system, database, or server. Rather, as
described above, the storage system, database, and server are described as
performing generic computer functions of storing data and executing
computer code. E.g. Spec. 3, 5, Fig. 1. Therefore, the claims are directed to
an abstract idea ( storing leads and providing a quality rating for each stored
lead) "for which computers are invoked merely as a tool." Enfzsh, 822 F.3d
at 1336. As such, we agree with the Examiner the claims are directed to
solving a business problem, rather than a technological problem. See Ans. 2,
4---6.
In the second step of the Alice framework, we then "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." Id. (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78-79 (2012)). The Supreme
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Court describes this 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." Id. ( quotation omitted).
Appellants argue "the claims recite the storage system, the Lead
Buyer Unit and Lead Seller Unit and ratings server (the machine), but that
machine performs functions that are not generic unlike the TL!
Communications case." App. Br. 9; see also Reply Br. 4. Specifically,
Appellants argue "the ratings server that provides a quality rating for each
lead stored in the storage system, wherein the quality rating for the lead
reflects a quality of the lead and is based on a historical performance of the
selling campaign with which the lead is associated and a set of information
about the lead ... is not a generic computer function." App. Br. 9; see also
Reply Br. 4. Appellants further argue the claims are similar to those in
BASCOM Global Internet Services, Inc. v. AT & T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016) because they
are a particular arrangement of elements (the storage system,
the Lead Seller database, the Lead Buyer database and the
rating server that provides a quality rating for each lead stored
in the storage system, wherein the quality rating for the lead
reflects a quality of the lead and is based on a historical
performance of the selling campaign with which the lead is
associated and a set of information about the lead) that are a
technical improvement (providing the quality ratings of each
lead based historical performance of the selling campaign with
which the lead is associated and a set of information about the
lead) over the prior art ways of lead generation and selling.
App. Br. 10; see also Reply Br. 5.
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We are not persuaded by Appellants' arguments and agree with the
Examiner's findings and conclusions. See Final Act. 6-7, Ans. 2---6.
Appellants have not persuasively explained why the recited functionalities
are more than generic computer functions. Although Appellants point to
"the ratings server that provides a quality rating for each lead stored in the
storage system ... " and assert the functionality is not a generic computer
function, Appellants do not explain why it does not perform generic
computer functions. As discussed above, the server is generically described
in Appellants' Specification as "executing computer code" and claim 1
recites ''provid[ing] a quality rating ... " E.g., buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2015) ("That a computer receives and
sends information over a network-with no further specification-is not
even arguably inventive."); In re TL! Communications, 823 F.3d at 614
(Fed. Cir. 2016) (server that receives data, extracts classification information
from the received data, and stores the digital images insufficient to add an
inventive concept). Moreover, the computers in Alice were receiving,
storing, and sending information over networks connecting the intermediary
to the other institutions involved, and the Court found the claimed role of the
computers insufficient. 134 S. Ct. at 2359-2360
Further, we are not persuaded the claims are similar to those in
BASCOM. App. Br. 10-11. In BASCOM, the claims were generally
directed to filtering content. 827 F.3d at 1348. Although the Court
determined the claims recited generic computer, network, and Internet
components that were not inventive by themselves, the Court found the
ordered combination of the limitations provided the requisite inventive
concept. Id. at 1349-1350 ("[A]n inventive concept can be found in the
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non-conventional and non-generic arrangement of known, conventional
pieces"). There, the patent extensively claimed and explained how a
particular arrangement of elements was "a technical improvement over prior
art ways of filtering such content." Id. at 1350 (E.g., "According to
BASCOM, the inventive concept harnesses this technical feature of network
technology in a filtering system by associating individual accounts with their
own filtering scheme and elements while locating the filtering system on an
ISP server."). In BASCOM, there existed substantial argument and support
from the Specification concerning the "inventive concept." Here, other than
providing general conclusory statements, Appellants do not persuasively
explain how the claims are similar to those in BASCOM.
Accordingly, we are not persuaded the Examiner erred in rejecting
claimsl-16 under 35 U.S.C. § 101.
35 US.C. § 103 Rejections
Issue 1: Did the Examiner err in finding the combination of Mitchell
and Diana teaches or suggests
a rating server, coupled to the storage system, that provides a
quality rating for each lead stored in the storage system,
wherein the quality rating for the lead reflects a quality of the
lead and is based on a historical performance of the selling
campaign with which the lead is associated and a set of
information about the lead,
as recited in independent claim 1?
The Examiner relies on the combination of Diana and Mitchell to
teach or suggest the disputed limitation. Final Act. 4--5, 8-9; Ans. 6-8.
Appellants argue "Mitchell discloses an online professional referral system
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that has a ratings/feedback module" that "solicits, tracks and tabulates
feedback rating provided by the various members for other members relative
to concluded referral auctions" and therefore "discloses that the rating
occurs after the referral auction has been concluded" so does not teach or
suggest "a rating server, coupled to the storage system, that provides a
quality rating for each lead stored in the storage system." App. Br. 12;
see also Reply Br. 7. Appellants further argue Mitchell does not teach or
suggest "the claimed quality rating in which the quality rating for the lead
reflects a quality of the lead and is based on a historical performance of the
selling campaign with which the lead is associated and a set of information
about the lead." Id.
Appellants' arguments are unpersuasive. Diana describes that "[a]
quality rating database rates the quality of leads provided by different
sellers." Diana Abstract. In particular, Diana describes using "automated
validation/rating algorithms" to rate leads as good, bad, or maybe, "tak[ing]
into account various factors such as the seller's quality history (as stored in a
database, i.e. 457), the consumer's purchase history (as stored in a database)
and other information such as address, phone, email and their associated
probabilities of validity." Diana ,r 87. Diana also provides means for
"allowing buyers ( successful bidders) to rate the quality of leads they
purchased from various sellers." Diana ,r 17; see also Diana Figs. 4A, 5, 6,
,r 80. Diana provides a quality rating database that "has access to the linkage
between seller identifications and lead identifications ... as well as to the
feedback information provided by the buyers." Diana ,r 81, Fig. 4A.
Mitchell describes a referral service, including "a ratings system
wherein a winner of a referral has the opportunity to rank the referring
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professional based on the quality of the referral." Mitchell ,r 18. Mitchell's
ratings module "can be provided by the various members for other members
relative to concluded referral auctions." Mitchell ,r 48; see also Mitchell
Fig. 2. "Upon receiving the feedback, the module updates the user
information database as necessary." Id.
Appellants' arguments that Mitchell does not teach the disputed claim
language because Mitchell "discloses that the rating occurs after the referral
auction has been concluded" is not commensurate with the scope of the
claim language, which does not specify when the rating occurs. Rather, the
claim simply recites "a rating server ... that provides a quality rating for
each lead stored in the storage system ... "
We are persuaded the combination of Diana and Mitchell teaches or
suggests the claimed limitation. For example, Diana teaches providing a
quality rating for each lead stored in the storage system ( e.g., good, bad, or
maybe), wherein the quality rating for the lead reflects a quality of the lead
( e.g., good, bad, or maybe), and is based on a historical performance of the
selling campaign with which the lead is associated and a set of information
about the lead (e.g., seller's quality history, the consumer's purchase history,
and other information such as address, phone, email, and information from
the buyer).
Diana does not explicitly teach or suggest a rating server. See Final
Act. 8. However, Mitchell teaches or suggests a rating server, coupled to the
storage system (e.g., ratings module, see Mitchell Fig. 2), that provides a
quality rating for each lead stored in the storage system ( e.g., feedback
ratings), wherein the quality rating for the lead reflects a quality of the lead
(e.g., ranking the referring professional based on the quality of the referral)
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and is based on a historical performance of the selling campaign with which
the lead is associated and also based on a set of information about the lead
(e.g., feedback ratings are relative to concluded referral auctions).
Accordingly, we are not persuaded the Examiner erred. Therefore, we
sustain the Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1,
as well as dependent claims 2-10, which were not separately argued. See
App. Br. 12.
Issue 2: Did the Examiner err in finding the combination of Mitchell
and Diana teaches or suggests "determining, by a rating unit of the lead
marketplace system, for each quality factor of the plurality of quality factors
associated with the lead, if each quality factor for the lead has been
triggered," as recited in independent claim 11?
The Examiner relies on Diana to teach or suggest the disputed
limitation. Final Act. 12, Ans. 8-9. Appellants argue Diana teaches "a lead
system that has a quality feedback means to rate leads" and that "an
acceptability rating algorithm may have one or more factors." App. Br. 12.
Appellants further argue Diana fails to teach "'determining, by a rating unit
of the lead marketplace system, for each quality factor of the plurality of
quality factors associated with the lead, if each quality factor for the lead
has been triggered' [because] Diana merely discloses that various factor[ s]
may be used in the acceptability rating algorithm." App. Br. 12; see also
Reply Br. 7. Appellants, therefore, argue "Diana fails to disclose or suggest
this claim element." Id.
We disagree. As discussed above, Diana ratings are based upon
various factors, including seller's quality history, the consumer's purchase
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history, and other information such as address, phone, email, and
information from the buyer. Diana ,r,r 17, 87. Diana provides an example of
a rating algorithm considering such factors. Diana ,r 88. Appellants do not
provide a construction for the term "triggered," as used in the claim. Nor do
Appellants direct our attention to disclosure in the Specification for the term
"triggered." One relevant plain meaning of "trigger" is "to initiate or
precipitate (a reaction, process, or chain of events)." Webster's Universal
College Dictionary 841 ( 1997). As Diana indicates the use of certain factors
to calculate the acceptability rating if they are present ( e.g., ,r,r 87, 88), we
agree with the Examiner that Diana teaches, or at least suggests, that "each
quality factor for the lead has been triggered."
Accordingly, we are not persuaded the Examiner erred. Therefore, we
sustain the Examiner's 35 U.S.C. § 103(a) rejection of independent claim 11,
as well as dependent claims 12-16, which were not separately argued. See
App. Br. 13.
DECISION
The Examiner's 35 U.S.C. § 101 rejection of claims 1-16 is affirmed.
The Examiner's 35 U.S.C. § 103(a) rejection of claims 1-16 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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