Ex Parte ZHU et al

Patent Trials and Appeals Board

Apr 24, 2019

12748145 - (D) (P.T.A.B. Apr. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/748,145 03/26/2010 Xiao Ming ZHU
91230 7590 04/26/2019
Baker Botts L.L.P./Facebook Inc.
2001 ROSS A VENUE
SUITE 900
Dallas, TX 75201
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.
079894.0154 4581
EXAMINER
CRANFORD, MICHAEL D
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
04/26/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ptomaill@bakerbotts.com
ptomail2@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XIAO MING ZHU and CHRISTOPHER LUNT 1
Appeal 2017-011756
Application 12/748,145
Technology Center 3600
Before CAROLYN D. THOMAS, HUNG H. BUI, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-12, 15, 17, 18, and 20, all the
pending claims in the present application. Claims 13, 14, 16, and 19 are
canceled (see Claims Appendix). We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
The present invention relates generally to computing a compatibility
score of individuals in a social network based on interests expressed by these
individuals (see Abstract).
1 Appellants name Facebook, Inc. as the real party in interest (App. Br. 3).
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Application 12/748,145
Claim 1 is illustrative:
1. A method comprising, by one or more computing devices
associated with an online social network:
receiving, at an application server from a client device of
a first user of the online social network, a first set of expressed
interests of the first user;
receiving, at the application server from the client device
of the first user, a request to search for compatible users on the online
social network, wherein the request specifies a predetermined degree
of separation;
sending, by the application server, a query to a social
graph server of the online social network for information indicating a
degree of separation between the first and one or more other users of
the online social network, wherein a relationship database of the
social graph server stores a social graph structure comprising a
plurality of nodes corresponding to a plurality of users of the online
social network and a plurality of edges connecting the nodes, each
edge establishing a degree of separation between two nodes;
receiving, by the application server from the social graph
server responsive to the query, an identifier of a second user of the
online social network, wherein the degree of separation between
nodes corresponding to the first and second users is within a
predetermined degree of separation;
accessing, from a member database of the online social
network, a second set of expressed interests of the second user;
normalizing, by the application server, the first set of
expressed interests received from the client device of the first user to
obtain a first set of normalized interests of the first user;
normalizing, by the application server, the second set of
expressed interests accessed from the member database to obtain a
second set of normalized interests of the second user;
determining, by the application server, for each of one or
more combinations of a normalized interest in the first set of
normalized interests of the first user and a normalized interest in the
second set of normalized interests of the second user, a probability
that a user of the online social network will identify both the
normalized interest in the first set of normalized interests and the
normalized interest in the second set of normalized interests as
interests of the user;
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calculating, by the application server, an interest
compatibility score between the first and second users based at least in
part on the probabilities determined for the combinations of
normalized interests; and
sending, to the client system2 of the first user responsive
to the request to search for compatible users on the online social
network, information associated with the second user for display to
the first user if the calculated interest compatibility score between the
first and second users is higher than a pre-determined score.
Appellants appeal the following rejections:
RI. Claims 1-12, 15, 17, 18, and 20 are rejected under 35 U.S.C.
§ 112(b) or (pre-AIA), second paragraph, as being indefinite (Final Act. 3-
4);
R2. Claims 1-12, 15, 17, 18, and 20 are rejected under 35 U.S.C.
§ 101 because the claimed invention is directed to patent-ineligible subject
matter (Final Act. 4--8); and
R3. Claims 1-12, 15, 17, 18, and 20 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over King (US 2002/0160339 Al, Oct. 31,
2002) and Buyukkokten (US 2005/0159998 Al, July 21, 2005).
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
2 In the Advisory Action dated August 29, 2017, the Examiner indicated that
"[a]mended claims will not be entered. The amendment changes the scope
of the claims." (see Continuation Sheet (PTOL-304) 2.)
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ANALYSIS
Rejection under§ 112
The Examiner finds that in claim 1 "the limitation 'the client system'
... [has] insufficient antecedent basis" (Final Act. 4; see also Ans. 3--4).
Appellants "submitted amendments to Claim 1, 7, and 11 pursuant to
37 C.F.R. 4I.33(a) on August 1, 2017" (App. Br. 6). However, the
Examiner did not enter the aforementioned amendments per the Advisory
Action dated August 29, 2017, and maintained the rejection in the Answer
(see Ans. 3--4).
Notwithstanding Appellants' contention that the amendments were
due to "typographical errors" and alleging that the Examiner's refusal to
enter the amendments are "clearly erroneous" (see Reply Br. 2), the rejection
has not been withdrawn.
Accordingly, the rejection under§ 112 is summarily sustained.
Rejection under§ 1 OJ
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int'!, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with the framework,
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we first determine what concept the claim is "directed to." See Alice, 573
U.S. at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk."). For example, concepts determined to be abstract ideas, and
thus patent ineligible, include certain methods of organizing human activity,
such as fundamental economic practices (Alice, 573 U.S. at 219-20; Bilski,
561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584,
594--95 (1978)); and mental processes (Gottschalkv. Benson, 409 U.S. 63,
69 (1972)).
Recently, the USPTO published revised guidance on the application
of§ 101. USPTO's 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("Memorandum"). Under the
Memorandum "Step 2A," the office first looks to whether the claim recites:
( 1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)-(c), (e)-(h)). 84 Fed. Reg. at
51-52, 55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, does the Office then
(pursuant to the Guidance "Step 2B") look to whether the claim:
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(3) adds a specific limitation beyond the judicial exception that are not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
( 4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. 84 Fed. Reg. at 56.
Alice/May~tep 1 (Abstract Idea)
Step 2A-Prongs 1 and 2 identified in the Memorandum
Step 2A-Prong 1 (Does the Claim Recite a Judicial Exception?)
Turning to the first step of the Alice inquiry, the Examiner determines
that the claims the claims are directed to "activities which can be performed
mentally by a human using a pencil and paper" (Final Act. 6), more
specifically, the claims are directed to "matching users based on
compatibility score." Final Act. 3; see also Ans. 26. The Examiner also
determines that the claims are analogous to "collecting information,
analyzing it, and displaying certain results of the collection and analysis"
(Final Act. 6 (citing Electric Power Grp. LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016)).
A claim recites a mental process when the claim encompasses acts
people can perform using their minds or pen and paper. See, e.g.,
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed.
Cir. 2011) ( determining that a claim whose "steps can be performed in the
human mind, or by a human using a pen and paper" is directed to an
unpatentable mental process); Synopsys, Inc. v. Mentor Graphics Corp., 839
F.3d 1138, 1146 (Fed. Cir. 2016) ("[W]e continue to 'treat[] analyzing
information by steps people go through in their minds, or by mathematical
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algorithms, without more, as essentially mental processes within the
abstract-idea category."') (citation omitted). This is true even if the claim
recites that a generic computer component performs the acts. See, e.g.,
Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir.
2015) ("Courts have examined claims that required the use of a computer
and still found that the underlying, patent-ineligible invention could be
performed via pen and paper or in a person's mind."); see also
Memorandum, 84 Fed. Reg. at 52 n.14 ("If a claim, under its broadest
reasonable interpretation, covers performance in the mind but for the
recitation of generic computer components, then it is still in the mental
processes category unless the claim cannot practically be performed in the
mind.").
In Cyberfone, the Court held that "using categories to organize, store,
and transmit information is well-established," and "the well-known concept
of categorical data storage, i.e., the idea of collecting information in
classified form, then separating and transmitting that information according
to its classification, is an abstract idea that is not patent-eligible." Cyberfone
Sys., LLC v. CNN Interactive Grp., Inc., 558 Fed. App'x. 988, 992 (Fed. Cir.
2014).
Here, claim 1 recites at least the following limitations:
(1) "receiving ... a first set of expressed interest of the first user,"
(2) "receiving a request to search for compatible users," (3) "sending a query
... for information indicating a degree of separation," ( 4) "receiving ... an
identifier of a second user," (5) "accessing ... a second set of expressed
interests of the second user," ( 6) "normalizing ... first/second set of
interests," (8) "determining ... a probability," (9) "calculating ... an
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interest compatibility score ... based ... on the probability," and (10)
"sending ... information associated with the second user." These
limitations, under their broadest reasonable interpretation, encompass at
least acts people can perform using their minds or pen and paper because
people can perform the "receiving" and "accessing" steps by simply looking
at the recited content and recognizing a similarity between interests. People
can also perform the "normalizing," "determining," and "calculating" steps
by looking at the results from the query and using pen and paper to
normalize the results, determine a probability, and calculate a score. Finally,
people can send information by merely passing a piece of paper to one
another.
For at least the aforementioned reasons, we find unavailing
Appellants' contention that the Examiner's characterization of the claims as
being mental processes "is clearly nonsensical and bears no relation to the
limitations of the claims" (App. Br. 12) given the resemblance outlined
supra of exemplary mental processes, albeit not similar to "implementing a
loan lifecycle" as erroneously proffered by the Examiner (see Final Act. 6).
Regarding Appellants' contention that "the Examiner has failed to
provide evidence on the record to establish that the claimed invention is an
abstract idea" (App. Br. 20), we note that Appellants have not directed our
attention to any precedent that stand for the proposition that Examiner's
must provide evidentiary support in every case before a conclusion can be
made that a claim is directed to an abstract idea. There is no such
requirement. See, e.g., para. IV "July 2015 Update: Subject Matter
Eligibility" to 2014 Interim Guidance on Subject Matter Eligibility (2014
IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014)
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(The courts consider the determination of whether a claim is
eligible ( which involves identifying whether an exception such
as an abstract idea is being claimed) to be a question of law.
Accordingly, courts do not rely on evidence that a claimed
concept is a judicial exception, and in most cases resolve the
ultimate legal conclusion on eligibility without making any
factual findings
( emphasis added)). Evidence may be helpful in certain situations where, for
instance, facts are in dispute. But it is not always necessary.
Therefore, we agree with the Examiner that representative claim 1
recites a mental process, which is an abstract idea.
Step 2A-Prong 2 (Integration into Practical Application)2
Under Step 2A, Prong 2 of the Memorandum, we must also determine
if additional elements in the claims integrate the judicial exception into a
practical application (see MPEP § 2106.05(a}-(c), (e}-(h)). However, we
discern no additional element ( or combination of elements) recited in
Appellants' representative claim 1 that integrates the judicial exception into
a practical application. See Memorandum, 84 Fed. Reg. at 54--55 ("Prong
Two"). For example, Appellants' claimed additional elements (e.g.,
"application server," "social graph server," "relational database," "member
database," "online social network," and "client device") do not: (1) improve
the functioning of a computer or other technology; (2) are not applied with
3 We acknowledge that some of the considerations at Step 2A, Prong Two,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
guidance). For purposes of maintaining consistent treatment within the
Office, we evaluate them under Step 1 of Alice (Step 2A of the Office
guidance). See Memorandum, 84 Fed. Reg. at 55 n.25, 27-32.
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any particular machine (except for a generic computer); (3) do not effect a
transformation of a particular article to a different state; and ( 4) are not
applied in any meaningful way beyond generally linking the use of the
judicial exception to a particular technological environment, such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP §§ 2106.05(a}-(c), (e}-(h).
Appellants contend that "'the claimed solution is necessarily rooted in
computer technology,' as in DDR Holdings" (App. Br. 11 ), and "as in
Enfish, the claimed invention is overcoming a problem specifically arising in
the context of an online social network" (id. at 12), because "[t]he claims
clearly require that a machine play 'a significant part' in the method
performed" (id. at 13).
In DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1259
(Fed. Cir. 2014), the Federal Circuit found DDR's claims were patent-
eligible under § 101 because DDR 's claims: (1) do not merely recite "the
performance of some business practice known from the pre-Internet world"
previously disclosed in Bilski and Alice; but instead (2) provide a technical
solution to a technical problem unique to the Internet, i.e., a "solution ...
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks." DDR, 773 F.3d at
1257. Specifically, the invention in DDR Holdings allowed a host merchant
website to maintain the look and feel of the host website when hyperlinking
to outside merchants' product pages, i.e., "specify how interactions with the
Internet are manipulated to yield a desired result." DDR Holdings, 773 F.3d
at 1257-58.
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In contrast, we find Appellants' method performed by a computing
device, i.e., application server, ( claim 1) does not provide a solution
"necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks." DDR Holdings, 773
F.3d at 1257. Because we find all claims on appeal merely use a generic
computer or processor (see Spec. ,r 23) as a tool which is used in the way a
computer normally functions, we conclude that the claims fail to impart any
discernible improvement upon the computer or processor; nor do Appellants
claims solve "a challenge particular to the Internet" as considered by the
court in DDR, 773 F.3d at 1256-57.
Appellants are reminded that "relying on a computer to perform
routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible." OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359,
1363 (Fed. Cir. 2015) (citing Alice, 573 U.S. at 216 ("use of a computer to
create electronic records, track multiple transactions, and issue simultaneous
instn1ctions" is not an inventive concept)). Thus, we find unavailing
Appellants' arguments that the claims are similar to DDR Holdings, given
that no convincing "inventive concept" for resolving a "particular Internet-
centric problem" is identified by Appellants.
Additionally, Appellants have not demonstrated that claim 1 recites a
specific improvement to the way computers operate or to the way computers
store and retrieve data in memory. See Enfzsh, LLC v. Microsoft Corp., 822
F.3d 1327, 1336, 1339 (Fed. Cir. 2016). For example, the claims in Enfzsh
were directed to a specific type of data structure, i.e., a self-referential table
for a computer database, designed to improve the way a computer carries out
its basic functions of storing and retrieving data. Enfish, 822 F.3d at 1335-
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36. There, in rejecting a§ 101 challenge, the court held that "the plain focus
of the claims is on an improvement to computer functionality itself, not on
economic or other tasks for which a computer is used in its ordinary
capacity." Id. at 1336.
Here, Appellants have not adequately explained how the court's
holding in Enfish impacts the present analysis under the Mayo/Alice
framework. For example, the Appellants do not point to anything in the
claim that resembles the inventive self-referential data structure at issue in
Enfish. Appellants also do not direct our attention to anything persuasive in
the Specification to indicate that the invention provides an improvement in
the computer's technical functionality. Instead, the Specification merely
indicates that "[b ]y providing compatibility scores and linking it to interest
profiles, the invention encourages people to enter interests so that the site
can find other people who share the same or compatible interests" (i19).
Furthermore, the claimed "application server," "client device,"
"online social network," "social graph server," "relational database," and
"member database," are merely described at a high level in Appellants'
Specification (see Spec. ,r 23) without any meaningful detail about their
structure or configuration. As such, we do not find that these computer-
related limitations are sufficient to integrate the judicial exception into a
practical application.
Appellants also contend that the claimed features are "patentably
distinct from the cited references" (App. Br. 15). However, a finding of
novelty or non-obviousness does not require the conclusion that the claimed
subject matter is patent-eligible. Although the second step in the Mayo/Alice
framework is termed a search for an "inventive concept," the analysis is not
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an evaluation of novelty or nonobviousness, but, rather, is a search for "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 Corp., 573 U.S. at 216. "Groundbreaking,
innovative, or even brilliant discovery does not by itself satisfy the § 101
inquiry." Ass 'n.for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 591 (2013). A novel and non-obvious claim directed to a purely
abstract idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S. at 90.
See also Diamond v. Diehr, 450 U.S. 175, 188-89 (1981) ( "The 'novelty' of
any element or steps in a process, or even of the process itself, is of no
relevance in determining whether the subject matter of a claim falls within
the§ 101 categories of possibly patentable subject matter.").
Appellants further contend that the claims "clearly pose no risk of
preemption" (App. Br. 18). Although pre-emption "might tend to impede
innovation more than it would tend to promote it, 'thereby thwarting the
primary object of the patent laws"' (Alice, 573 U.S. at 216 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S.Ct. 1289, 1293
(2012))), "the absence of complete preemption does not demonstrate patent
eligibility" (Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379
(Fed. Cir. 2015)). Moreover, because we find the claimed subject matter
covers patent-ineligible subject matter, the pre-emption concern is
necessarily addressed.
For at least the reason noted supra, we determine that claim 1
(1) recites a judicial exception and (2) does not integrate that exception into
a practical application.
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Alice/May~tep 2 (Inventive Concept)
Step 2B identified in the Memorandum
Turning to the second step of the Alice inquiry, we now look to
whether claim 1 contains any "inventive concept" or adds anything
"significantly more" to transform the abstract concept into a patent-eligible
application. Alice, 573 U.S. at 216. As recognized by the Memorandum, an
"inventive concept" under Alice step 2 can be evaluated based on whether an
additional element or combination of elements:
(1) "adds a specific limitation or combination of limitations that are
not well-understood, routine, conventional activity in the field,
which is indicative that an inventive concept may be present;"
or
(2) "simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception, which is indicative
that an inventive concept may not be present."
See Memorandum, 84 Fed. Reg. at 56; see MPEP § 2106.05(d).
However, we find no element or combination of elements recited in
Appellants' claim 1 that contains any "inventive concept" or adds anything
"significantly more" to transform the abstract concept into a patent-eligible
application. Appellants have not adequately explained how claim 1 is
performed such that it is not a routine and conventional function of a generic
computer. Because Appellants' independent claim 1 is directed to a patent-
ineligible abstract concept, does not include additional elements that
integrate the judicial exception into a practical application, and does not add
a specific limitation beyond the judicial exception that is not "well-
understood, routine, and conventional."
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For these reasons, we sustain the Examiner's rejection of claims 1-12,
15, 17, 18, and 20 under 35 U.S.C. § 101 as being directed to non-statutory
subject matter in light of Alice, its progeny, and the Revised 101 Guidance
(Memorandum).
Rejection under§ 103(a)
Appellants contend that "[a]lthough Buyukkokten discusses
calculating an 'overall rating' of a user by 'averaging the ratings' of the user,
this average rating is not based on any determined probabilities, and
certainly not based on probabilities determined for combinations of
normalized interests" (App. Br. 27) ( emphasis added). We agree with
Appellants.
Although the Examiner finds that "Buyukkokten teaches ...
calculating the overall rating can comprises normalizing rating for the
member" (Ans. 31 (citing Buyukkokten ,r 44)), the Examiner's findings fail
to show that Buyukkokten teaches calculating such an overall rating based on
probabilities determined for the combinations of normalized interests, as
required by claim 1. In fact, the Examiner's response to arguments "cuts
out" the "probabilities" portion of the claim from the analysis (see id.), and
as a result offers no rebuttal to Appellants' specific argument regarding
"probabilities."
We note that the Examiner relies upon King to teach "determining ...
a probability" (see Final Act. 9). However, even if we assume arguendo
(without deciding) that King teaches determining probabilities, as proffered
by the Examiner, we do not find, and the Examiner has not established, that
the cited combination of references illustrate a nexus between King's
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probabilities and Buyukkokten 's calculation of an overall rating, i.e., no
causal link between the two features. As such, we are also troubled by the
chain of causation that is split between the two references in the Examiner's
proffered combination.
Thus, we disagree with the Examiner's finding that Buyukkokten
( either alone or in combination with King) teaches calculating ... based at
least in part on the probabilities, as recited in each of the independent claims.
Since we agree with at least one of the arguments advanced by Appellants,
we need not reach the merits of Appellants' other arguments.
Accordingly, we do not sustain the Examiner's obviousness rejection
of claims 1-12, 15, 17, 18, and 20.
DECISION
We affirm the Examiner's§ 112 rejection.
We affirm the Examiner's § 101 rejection.
We reverse the Examiner's§ 103(a) rejection.
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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