FAIR ISAAC CORPORATION

Patent Trials and Appeals Board

May 7, 2021

2020006770 (P.T.A.B. May. 7, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/102,374 12/10/2013 Shafi Ur Rahman 35006-733F01US 5319
76615 7590 05/07/2021
Mintz Levin/Fair Isaac
Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
EXAMINER
WAESCO, JOSEPH M
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
05/07/2021 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):
IPDocketingBOS@mintz.com
IPFileroombos@mintz.com
mintzdocketing@cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SHAFI UR RAHMAN, RAKHI AGRAWAL,
AMIT KIRAN SOWANI, MANMEET KAUR, and ARJUN BAJAJ
____________

Appeal 2020-006770
Application 14/102,374
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–27. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed June 18, 2020) and Reply Brief (“Reply Br.,” filed September 28,
2020), and the Examiner’s Answer (“Ans.,” mailed July 27, 2020) and Final
Office Action (“Final Act.,” mailed January 21, 2020). Appellant identifies
Fair Isaac Corporation as the real party in interest (Appeal Br. 3).
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CLAIMED INVENTION
The Specification states, “[t]he subject matter described herein relates
to generating a customer profile using temporal behavior maps in order to
determine a decision for the customer” (Spec. ¶ 1).
Claims 1, 23, and 26 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A method comprising:
[(a)] receiving, by one or more back-end server
computers, data of a plurality of actions performed by an
individual of a plurality of individuals, the data being received
from an in-memory database, each back-end server computer of
the one or more back-end server computers comprising memory
and at least one data processor, the received data being sorted
according to each individual of the plurality of individuals and
each time period of a plurality of time periods during which the
plurality of actions occur, the sorted received data comprising an
identifier for each individual of the plurality of individuals;
[(b)] generating, by the one or more back-end server
computers and based on the sorted data, a plurality of temporal
behavior maps mapping behavior of the individual to
corresponding time periods of the plurality of time periods, at
least one set of data within at least one temporal behavior map of
the plurality of temporal behavior maps being removed at regular
intervals of time, the at least one set of data that is removed being
associated with time periods prior to a threshold number of most
recent time periods of the plurality of time periods, wherein the
generating comprises randomly accessing, by the one or more
back-end server computers and in response to receiving the
identifier of the individual, data from the in-memory database for
a temporal behavior map of the plurality of temporal behavior
maps;
[(c)] receiving, by the one or more back-end server
computers, new data regarding a current transaction by the
individual;
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[(d)] generating, by the one or more back-end server
computers, a profile of the individual based on the plurality of
updated temporal behavior maps, only a portion of the updated
temporal behavior maps being recomputed for the generating of
the profile of the individual when an error occurs during an
action of the plurality of actions,
[(e)] generating, by a decision engine and based on the
profile, a score for the individual in real time, the score for the
individual being generated separately from scores for other
individuals of the plurality of individuals, the decision engine
comprising at least one data processor connected to the one or
more back-end server computers; and
[(f)] determining, based on the score, fraud associated
with an action of the individual.
REJECTION
Claims 1–27 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
ANALYSIS
Appellant argues independent claims 1, 23, and 26 as a group (Appeal
Br. 10–23). We select independent claim 1 as representative. Claims 23 and
26 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Under 35 U.S.C. § 101, “[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.” 35 U.S.C.
§ 101. The Supreme Court, however, has long interpreted § 101 to include
an implicit exception: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216
(2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
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Laboratories, Inc., 566 U.S. 66 (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 Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “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.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “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. at 217–18 (alteration in original).
The U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance on January 7, 2019, for use by USPTO personnel in
evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED
PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7,
2019) (the “2019 Revised Guidance”).2 That guidance revised the USPTO’s
examination procedure with respect to the first step of the Mayo/Alice
framework by (1) “[p]roviding groupings of subject matter that [are]
considered an abstract idea”; and (2) clarifying that a claim is not “directed

2 The MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) incorporates
the revised guidance and subsequent updates at Section 2106 (9th ed.
Rev. 10.2019, rev. June 2020).
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to” a judicial exception if the judicial exception is integrated into a practical
application of that exception. Id. at 50.
The first step, as set forth in the 2019 Revised Guidance (i.e.,
Step 2A), is, thus, a two-prong test. In Step 2A, Prong One, we look to
whether the claim recites a judicial exception, e.g., one of the following
three groupings of abstract ideas: (1) mathematical concepts; (2) certain
methods of organizing human activity, e.g., fundamental economic
principles or practices, commercial or legal interactions; and (3) mental
processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next
determine, in Step 2A, Prong Two, whether the claim as a whole integrates
the recited judicial exception into a practical application, i.e., whether the
additional elements recited in the claim beyond the judicial exception, apply,
rely on, or use the judicial exception in a manner that imposes a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the judicial exception. Id. at 54–55. Only if
the claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea. Id.
If the claim is determined to be directed to a judicial exception under
revised Step 2A, we next evaluate the additional elements, individually and
in combination, in Step 2B, to determine whether they provide an inventive
concept, i.e., whether the additional elements or combination of elements
amounts to significantly more than the judicial exception itself; only then, is
the claim patent eligible. 2019 Revised Guidance, 84 Fed. Reg. at 56.
Here, in rejecting the pending claims under 35 U.S.C. § 101, the
Examiner determined that claim 1 recites a plurality of mental processes
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and, therefore, an abstract idea (Final Act. 6–8), and that the recited abstract
idea is not integrated into a practical application (id. at 8). The Examiner
also determined that claim 1 does not include additional elements sufficient
to amount to significantly more than the abstract idea itself (id. at 8–9), and
that the remaining claims are patent ineligible for substantially similar
reasons (id. at 9–10).3
Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A)
We are not persuaded by Appellant’s argument that the Examiner
erred in determining that claim 1 is directed to an abstract idea (Appeal
Br. 12–20). The Federal Circuit has explained that “the ‘directed to’ inquiry
applies a stage-one filter to claims, considered in light of the specification,
based on whether ‘their character as a whole is directed to excluded subject
matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir.
2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d
1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a
specific improvement in relevant technology or on a process that itself
qualifies as an “abstract idea” for which computers are invoked merely as a
tool. See id. at 1335–36. Here, it is clear from the Specification (including
the claim language) that claim 1 focuses on an abstract idea, and not on an
improvement to technology and/or a technical field.
The Specification is titled “Generating Customer Profiles Using
Temporal Behavior Maps,” and describes, in the Background section, that

3 The Examiner also determined that the claims recite “determination of
fraud[,] which is . . . a fundamental economic practice, as well as a
commercial interaction,” i.e., a method of organizing human activity and,
therefore, an abstract idea (Final Act. 2).
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financial institutions use customer scores in making lending decisions, and
that retailers may also use customer scores to decide what offers or discounts
to extend to their customers (Spec. ¶ 2). The Specification describes that
these scores usually are generated based on customer profiles, and explains
that “[a] profile for a customer can include various behavioral characteristics
derived based on past transactions performed by the customer” (id.).
“Traditionally, customer profiles have been generated by . . . recursive
and iterative approaches” (Spec. ¶ 2). However, according to the
Specification, these traditional approaches suffer from various drawbacks
(id.). For example, some conventional methods generate approximate values
associated with customer profiles, rather than accurate values (id.). The
coding required to generate a customer profile also is conventionally
unintuitive and complex; and if an error occurs while generating a customer
profile, the entire profile must be “recomputed from scratch” (id.).
“Additionally, [the] generation of customer profiles is associated with
significant latency issues while using traditional methodologies that rely on
an iterative approach”; and some conventional methods require intensive
computational resources, e.g., a large number of processors and significant
memory space (id.).
The claimed invention ostensibly is intended to address these
shortcomings by providing a method and system for generating a customer
profile based on temporal behavior maps formed or updated using one or
more of the customer’s transactions (Spec. ¶ 3). Thus, according to one
aspect of the claimed invention, one or more back-end server computers
receive transaction data of one or more transactions performed by a
customer and, based on the transaction data, generate a plurality of temporal
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behavior maps that characterize the purchase behavior of the customer (id.
¶ 4).4 The back-end server computers generate a customer profile based on
the plurality of temporal behavior maps; and the customer profile is used by
a decision engine to generate a decision, e.g., a score, for the customer (id.
¶¶ 4, 36). The Specification describes that an entity, e.g., a retailer or a
financial institution, can use the score to make one or more offers to the
customer, e.g., an increase in a credit line, discounts on one or more
products; the entity also can use the score to detect fraud, e.g., credit card or
debit card fraud (id. ¶ 36).
Consistent with this disclosure, claim 1 recites a method comprising:
(1) receiving, by one or more back-end server computers, data of a plurality
of transactions performed by an individual, i.e.,
receiving, by one or more back-end server computers, data
of a plurality of actions performed by an individual of a plurality
of individuals, the data being received from an in-memory
database, each back-end server computer of the one or more
back-end server computers comprising memory and at least one
data processor, the received data being sorted according to each
individual of the plurality of individuals and each time period of

4 The temporal behavior maps include, for example, a frequency base map
(characterizing the frequency of purchase of various products during
corresponding time periods), a recency base map (characterizing the time
period of the most recent purchase of each product), a price base map
(characterizing the total money spent by the customer during each time
period), a total products base map (characterizing the number of products
purchased by the customer during each time period), a unique products base
map (characterizing the number of unique products purchased during each
time period), a visits base map (characterizing the number of times the
customer visits a retailer selling relevant products during each time period),
a stock keeping unit (SKU) base map (characterizing the particular products
purchased during each time period), and a last date base map (characterizing
the date of the most recent purchase during each time period) (id. ¶¶ 25–26).
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a plurality of time periods during which the plurality of actions
occur, the sorted received data comprising an identifier for each
individual of the plurality of individuals
(step (a)); (2) generating, by the one or more back-end server computers,
based on the transaction data, a plurality of temporal behavior maps
mapping the individual’s behavior to corresponding time periods, i.e.,
generating, by the one or more back-end server computers
and based on the sorted data, a plurality of temporal behavior
maps mapping behavior of the individual to corresponding time
periods of the plurality of time periods, at least one set of data
within at least one temporal behavior map of the plurality of
temporal behavior maps being removed at regular intervals of
time, the at least one set of data that is removed being associated
with time periods prior to a threshold number of most recent time
periods of the plurality of time periods, wherein the generating
comprises randomly accessing, by the one or more back-end
server computers and in response to receiving the identifier of
the individual, data from the in-memory database for a temporal
behavior map of the plurality of temporal behavior maps
(step (b)); (3) receiving, by the one or more back-end server computers, new
data regarding a current transaction by the individual, and generating a
profile of the individual based on updated temporal behavior maps, i.e.,
receiving, by the one or more back-end server computers,
new data regarding a current transaction by the individual; [and]
generating, by the one or more back-end server computers,
a profile of the individual based on the plurality of updated
temporal behavior maps, only a portion of the updated temporal
behavior maps being recomputed for the generating of the profile
of the individual when an error occurs during an action of the
plurality of actions
(steps (c) and (d)); (4) generating a score for the individual, in real time,
based on the profile, i.e.,
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generating, by a decision engine and based on the profile,
a score for the individual in real time, the score for the individual
being generated separately from scores for other individuals of
the plurality of individuals, the decision engine comprising at
least one data processor connected to the one or more back-end
server computers
(step (e)); and (5) “determining, based on the score, fraud associated with an
action of the individual” (step (f)).
Claim 1 recites that the method steps are performed by “one or more
back-end server computers” and a “decision engine comprising at least one
data processor connected to the one or more back-end server computers”;
yet, the underlying processes recited in the claim are all acts that, as the
Examiner observed, could be performed by a human mentally or manually,
using pen and paper, without the use of a computer or any other machine
(see, e.g., Final Act. 6–7; see also id. at 2 (observing that “determining,
based on the score, fraud associated with an action of the individual, . . .
would be akin to a person, such as a bank manager, detecting fraud on a
customer, based on the numbers they know about a customer, which is a
mental process”)). We agree with the Examiner that the claim limitations,
when given their broadest reasonable interpretation, recite a mental process,
i.e., a concept performed in the human mind, including an evaluation or
judgment, and, therefore, an abstract idea. See 2019 Revised Guidance,
84 Fed. Reg. at 52; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1373 (Fed. Cir. 2011) (holding that method steps that can be
performed in the human mind, or by a human using a pen and paper, are
unpatentable mental processes). See also 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
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underlying, patent-ineligible invention could be performed via pen and paper
or in a person’s mind.”).
Appellant maintains that claim 1 is not within the mental process
category and does not recite an abstract idea, at least because the claim
includes limitations that cannot practically be performed in the human mind
(Appeal Br. 13–15). Appellant asserts that claim 1 recites “several specific
steps with a high level of sophistication,” such as “generating . . . a plurality
of temporal behavior maps mapping behavior to corresponding time
periods” (i.e., step (b), as recited in claim 1) and “generating . . . a profile of
the individual based on the plurality of updated temporal behavior maps,
only a portion of the updated temporal behavior maps being recomputed for
the generating of the profile of the individual when an error occurs during an
action” (i.e., step (d), as recited in claim 1) (id. at 15). And Appellant argues
that claim 1 cannot be a cognitive action because no cognitive action can
“generate a profile of the individual based on the plurality of updated
temporal behavior maps, only a portion of the updated temporal behavior
maps being recomputed for the generating of the profile of the individual
when an error occurs during an action of the plurality of actions” (id.; see
also id. at 13 (“[T]he human mind is not equipped to generate a profile based
on updated temporal maps stored in a database as recited in claim 1, which
requires recomputing only a portion of the updated temporal behavior maps
when an error occurs during an action.”); Reply Br. 8).
Appellant also maintains that generating a temporal behavior map by
“randomly accessing . . . data from [an] in-memory database” (i.e., as recited
in step (b) of claim 1) can “only be performed with a computer irrespective
of any human” (Appeal Br. 15). Yet, as the Examiner observed, “a human
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can update a profile, or only a portion of a profile in [his or her] mind or on
paper, based on new information, such as updating an address or phone
number, which would not change the rest of the profile” (Final Act. 4). And
a human could read the information for generating a temporal behavior map
from an existing database and/or from paper documents or files
(cf. CyberSource, 654 F.3d at 1372 (noting that a limitation reciting
obtaining information about transactions that have used an Internet address
identified with a credit card transaction can be performed by a human who
simply reads records of Internet credit card transactions from a pre-existing
database)).
Appellant further argues that, even assuming claim 1 recites an
abstract idea, claim 1 is not directed to an abstract idea because any alleged
abstract idea is integrated into a practical application (Appeal Br. 17–20; see
also Reply Br. 12 (“Here, claim 1 is clearly integrated into a practical
application because claim 1 is directed to a technical improvement (e.g.,
increased processing and memory efficiency for detecting fraudulent
transactions in real time.”)). That argument also is unavailing.
The 2019 Revised Guidance references MPEP, Ninth Edition
(rev. Jan 2018) (available at https://www.uspto.gov/web/offices/
pac/mpep/old/mpep_E9R08-2017.htm) § 2106.05(a)–(c) and (e) in
non-exhaustively listing considerations indicative that an additional element
or combination of elements may have integrated a recited judicial exception
into a practical application. 2019 Revised Guidance, 84 Fed. Reg. at 55.
In particular, the Guidance describes that an additional element may have
integrated the judicial exception into a practical application if, inter alia, the
additional element reflects an improvement in the functioning of a computer
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or an improvement to other technology or technical field. Id. At the same
time, the Guidance makes clear that merely including instructions to
implement an abstract idea on a computer, or merely using a computer as a
tool to perform an abstract idea; adding insignificant extra-solution activity
to the judicial exception; or only generally linking the use of the judicial
exception to a particular technological environment or field are not sufficient
to integrate the judicial exception into a practical application. Id.
Appellant asserts here that “[c]laim 1 embodies a practical application
by improving the computer technology needed to detect fraudulent
transactions in real time” (Appeal Br. 17). Appellant notes, “[t]he
Specification states that ‘generation of customer profiles [for detecting
fraudulent transactions in real time] is associated with significant latency
issues,’” and also describes that “conventional methods for detecting and
preventing fraud during a current transaction require intensive computation
resources, such as a large number of data processors and a significant
memory space” (id. (second alteration in original) (citing Spec. ¶ 2)). And
Appellant argues that “[t]he steps of claim 1 solve[] the technical problem of
overloaded computer resources (e.g., data processors and memory) while
detecting fraudulent transactions in real time using temporal behavior maps”
(id.).
Appellant maintains that “computing resource efficiency (e.g.,
processing power and memory storage)” is improved in comparison to
conventional methods by “precomputing the temporal behavior maps prior
to receiving current transaction data regarding a current transaction” (i.e.,
that “significantly fewer computational iterations are required in comparison
to conventional methods and each iteration is faster”) (Appeal Br. 17 (citing
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Spec. ¶ 39); see also Reply Br. 6, 12), and that claim 1 further improves
database processing “by overcoming the problem of exorbitant processing
power and memory consumption for detecting fraudulent transactions in real
time when an error occurs during an action of the plurality of actions”
(Reply Br. 6 (noting that only a portion of the temporal behavior maps is
recomputed if an error occurs, in comparison to conventional methods where
recomputation of a customer profile from scratch had traditionally been
required)). Yet, we find nothing of record, aside from attorney argument, to
indicate that computing resource efficiency is improved in comparison to
conventional methods by “precomputing the temporal behavior maps prior
to receiving current transaction data regarding a current transaction.” We
also are not persuaded that merely requiring fewer computer resources to
perform a particular function (in this case, detecting fraudulent transactions
in real time) amounts to an improvement in computer functionality and/or
database processing as opposed to an improvement in the abstract idea of
detecting fraudulent activities in real time, which is not enough for patent
eligibility. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1170 (Fed.
Cir. 2018) (“[P]atent law does not protect such claims[, i.e., claims to an
asserted advance in the realm of abstract ideas], without more, no matter
how groundbreaking the advance.”).
Appellant attempts to draw an analogy between claim 1 and the
claims at issue in SRI Int’l, Inc. v. Cisco Sys., Inc., 930 F.3d 1295 (Fed. Cir.
2019) (Appeal Br. 17–18; see also Reply Br. 9–10). But, we can find no
parallel between claim 1 and the claims held patent eligible in SRI.
There, the claims are drawn to a method of hierarchical computer
network monitoring, and recite a series of steps, including “deploying”
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network monitors, which detect “suspicious network activity based on
analysis of network traffic data,” and generate and integrate “reports of . . .
suspicious activity.” SRI, 930 F.3d at 1301. The Federal Circuit held that
the claims are not directed to an abstract idea, and are patent eligible,
because they are “necessarily rooted in computer technology in order to
solve a specific problem in the realm of computer networks,” i.e., identifying
hackers or potential intruders into the network. Id. at 1303. The court
noted, “the claims actually prevent the normal, expected operation of a
conventional computer network” and that “[l]ike the claims in [DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)], the
claimed technology ‘overrides the routine and conventional sequence of
events’ by detecting suspicious network activity, generating reports of
suspicious activity, and receiving and integrating the reports using one or
more hierarchical monitors.” Id. at 1304. The court, thus, recognized that
the claims are not using a computer as a tool but, instead, improve “the
technical functioning of the computer and computer networks by reciting a
specific technique for improving computer network security.” Id.
Appellant argues here that “[s]imilar to the claim in SRI, claim 1 . . .
recites network monitors (e.g., back-end server computers, databases,
decision engines) to analyze specific network traffic data (e.g., current
transaction data) to identify hackers and intruders (e.g., fraudulent
transaction data) that constitutes an improvement to computer network
technology (e.g., increased processing and memory efficiency)” (Appeal
Br. 18). Appellant, thus, maintains that “just as the network monitors
analyze specific network traffic data and generate reports to improve
computer network technology in SRI, the back-end server computers of
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claim 1 analyze specific transaction data and generate temporal behavior
maps to improve computing efficiency for detecting fraudulent transactions”
(id.).
The difficulty with Appellant’s argument is that, unlike the situation
in SRI, there is no indication here that the back-end server computers,
databases, and decision engines are used other than tools operating in their
normal and ordinary capabilities. For example, we find no indication in the
Specification, nor does Appellant direct us to any indication, that the
operations recited in claim 1 require any specialized computer hardware or
other inventive computer components, invoke any allegedly inventive
programming, or that the claimed invention is implemented using other than
generic computer components as tools operating in their ordinary capacity.
“And after Alice, there can remain no doubt: recitation of generic computer
limitations does not make an otherwise ineligible claim patent-eligible.”
DDR Holdings, 773 F.3d at 1256.
We also are not persuaded of Examiner error to the extent Appellant
maintains that claim 1 is patent eligible because the claim presents no risk of
preemption (Appeal Br. 18–19; see also Reply Br. 14–15 (arguing that
claim 1 “recites a specific and intricate solution for solving a technical,
computer-centric problem of improving computer resource utilization for
detecting fraudulent transactions in real time” and is more than a drafting
effort designed to monopolize the judicial exception)). Although the
Supreme Court has described “the concern that drives [the exclusion of
abstract ideas from patent-eligible subject matter] as one of pre-emption,”
Alice Corp., 573 U.S. at 216, characterizing preemption as a driving concern
for patent eligibility is not the same as characterizing preemption as the sole
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test for patent eligibility. “The Supreme Court has made clear that the
principle of preemption is the basis for the judicial exceptions to
patentability” and “[f]or this reason, questions on preemption are inherent in
and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice Corp., 573 U.S.
at 216). “[P]reemption may signal patent ineligible subject matter, [but] the
absence of complete preemption does not demonstrate patent eligibility.” Id.
We also do not agree with Appellant that any parallel exists between
claim 1 and the patent-eligible claims in Ancora Technologies, Inc. v. HTC
America, Inc., 908 F.3d 1343 (Fed. Cir. 2018) (Appeal Br. 19; see also
Reply Br. 15).
U.S. Patent No. 6,411,941 (“the ‘941 patent”), at issue in Ancora
Technologies, is titled “Method of Restricting Software Operation Within a
License Limitation,” and describes and claims “methods of limiting a
computer’s running of software not authorized for that computer to run.”
Ancora, 908 F.3d at 1344. The ‘941 patent specification states that
software-based methods exist that require writing a license signature on the
computer’s hard drive (i.e., for comparing with a program license to verify
authorization to run that program), but describes that a flaw in these methods
is that the signature can be changed by hackers without damaging other
aspects of computer functionality. Id. Ancora’s asserted innovation
involves using BIOS memory, rather than other computer memory, to store
the license record because “successfully hacking BIOS memory (i.e.,
altering it without rendering the computer inoperable) is much harder than
hacking the memory used by the prior art to store license-verification
information.” Id. at 1345.
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Focusing specifically on claim 1 of the ‘941 patent, the Federal
Circuit determined that the claim is not directed to an abstract idea because
the claimed method specifically identifies how an improvement in computer
functionality is “effectuated in an assertedly unexpected way,” i.e., “a
structure containing a license record is stored in a particular, modifiable,
non-volatile portion of the computer’s BIOS” and “the structure in that
memory location is used for verification by interacting with the distinct
computer memory that contains the program to be verified.” Id. at 1348–49.
The court, thus, concluded, “[i]n this way, the claim addresses a
technological problem with computers: vulnerability of license-authorization
software to hacking,” i.e., “by relying on specific and unique characteristics
of certain aspects of the BIOS . . ., the result is a beneficial reduction of the
risk of hacking.” Id. at 1349.
Appellant notes that the court, in Ancora Technologies, stated
“improving security . . . can be a non-abstract computer-functionality
improvement if done by a specific technique that departs from earlier
approaches to solve a specific computer problem” (Appeal Br. 19). And
Appellant argues that “[s]imilar to claim 1 of Ancora Technologies, claim 1
in the present application addresses a technological problem of excessive
processing power and memory allocation needed to detect fraud in a current
transaction in real time” and that “[t]he disclosed technique of precomputing
temporal behavior maps departs from earlier technical approaches (e.g.,
generating profiles without precomputation) to achieve increased processing
and memory efficiency” (Appeal Br. 19).
In Ancora Technologies, the court determined that, by moving the
software-verification structure, including the license record (i.e., the
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information used to indicate whether a specified program is licensed to run
on the computer), to a BIOS location less susceptible to hacking, the
verification structure was protected against alteration — a circumstance that,
in turn, yields a tangible technological benefit by making the computer itself
less susceptible to hacking. See Ancora, 908 F.3d at 1350. In other words,
the court determined in Ancora that the claims are patent eligible because
the claimed method provides advantages with respect to computer
functionality.
We are not persuaded that a comparable situation is presented here.
Precomputing temporal behavior maps may well reduce the processing
power and memory allocation needed to detect fraud in a current transaction
in real time, i.e., because fewer computer resources are required. But we are
not persuaded that it affects, let alone, improves the security of the computer
itself. Unlike the software-verification structure in Ancora Technologies,
there is no indication here that the temporal behavior maps perform any
computer security related function or that precomputing the temporal
behavior maps otherwise provides any advantages with respect to computer
functionality.
That claim 1 may require a physical device, e.g., a computer, also is
an insufficient basis to persuasively argue that claim 1 is not directed to an
abstract idea (see Appeal Br. 20 (arguing that “claim 1 requires a physical
device, such as a device capable of updating a database storing the plurality
of temporal behavior maps while receiving current transaction data”)).
Indeed, a substantially similar argument was expressly rejected by the Court
in Alice. Thus, although the claimed invention in Alice involved a computer
system acting as a third-party intermediary between two parties, Alice Corp.,
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573 U.S. at 224, the Court held that “the claims at issue amount to ‘nothing
significantly more’ than an instruction to apply the abstract idea of
intermediated settlement using some unspecified, generic computer.” Id.
at 225–26. See also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d
1089, 1098 (Fed. Cir. 2016) (“[T]he inability for the human mind to perform
each claim step does not alone confer patentability. As we have explained,
‘the fact that the required calculations could be performed more efficiently
via a computer does not materially alter the patent eligibility of the claimed
subject matter.’” (citation omitted)); In re TLI Commc’ns LLC Patent Litig.,
823 F.3d 607, 611 (Fed. Cir. 2016) (“[N]ot every claim that recites concrete,
tangible components escapes the reach of the abstract-idea inquiry.”).
We conclude, for the reasons outlined above, that claim 1 recites a
mental process, i.e., an abstract idea, and that the additional elements recited
in the claim beyond the abstract idea, i.e., “one or more back-end server
computers”; “an in-memory database”; and a “decision engine comprising at
least one data processor,” are no more than generic computer components
used as tools to perform the recited abstract idea. As such, they do not
integrate the abstract idea into a practical application. See Alice Corp.,
573 U.S. at 223–24 (“[W]holly generic computer implementation is not
generally the sort of ‘additional featur[e]’ that provides any ‘practical
assurance that the process is more than a drafting effort designed to
monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77)).
Accordingly, we agree with the Examiner that claim 1 is directed to an
abstract idea.
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Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 1 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether an additional element or
combination of elements adds specific limitations beyond the judicial
exception that are not “well-understood, routine, conventional activity” in
the field (which is indicative that an inventive concept is present) or simply
appends well-understood, routine, conventional activities previously known
to the industry to the judicial exception. 2019 Revised Guidance,
84 Fed. Reg. at 56.
Citing BASCOM Global Internet Services, Inc. v. AT&T Mobility
LLC, 827 F.3d 1341 (Fed. Cir. 2016), Appellant notes that the Federal
Circuit has held that an inventive concept can be found in the non-
conventional and non-generic arrangement of known, conventional pieces
(Appeal Br. 21). And Appellant argues that similar to claim 1 at issue in
BASCOM, “claim 1 of the current Application . . . includes an inventive
concept that can be found in the non-conventional and non-generic
arrangement of known, conventional pieces” (id. at 22).
Appellant asserts that “[a]t least one inventive concept . . . includes
precomputing temporal behavior maps in order to overcome the problem of
exorbitant processing power and memory consumption for detecting
fraudulent transactions in real time when an error occurs during an action of
the plurality of actions” and explains that claim 1 captures this inventive
concept by reciting “generating, by the one or more back-end server
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computers, a profile of the individual based on the plurality of updated
temporal behavior maps, only a portion of the updated temporal behavior
maps being recomputed for the generating of the profile of the individual
when an error occurs during an action of the plurality of actions” (Appeal
Br. 22; see also Reply Br. 18–19).
Appellant concludes, “[t]hus, claim 1 of the current Application
includes an inventive concept that can be found at least in the non-
conventional and non-generic arrangement of known, conventional pieces”
(Appeal Br. 22). But, Appellant does not identify the non-conventional,
non-generic arrangement of elements in which the inventive concept
allegedly can be found. Nor does Appellant otherwise adequately explain
how the holding in BASCOM impacts the patent eligibility of claim 1.
Appellant argues that precomputing temporal behavior maps, i.e.,
limitation (d), as recited in claim 1, provides an inventive concept (Appeal
Br. 12), and that an inventive concept also can be found in the handling of
errors during transactions, i.e., the recitation in limitation (d) that “only a
portion of the updated temporal behavior maps [is] recomputed for the
generating of the profile of the individual when an error occurs during an
action of the plurality of actions” (Reply Br. 6). But, that argument is not
persuasive at least because limitation (d) is part of the abstract idea itself; it
is not an additional element to be considered in determining whether claim 1
includes additional elements or a combination of elements sufficient to
amount to significantly more than the judicial exception.
It could not be clearer from Alice, that under step two of the
Mayo/Alice framework, the elements of each claim are considered both
individually and “as an ordered combination” to determine whether the
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additional elements, i.e., the elements other than the abstract idea itself,
“transform the nature of the claim” into a patent-eligible application. Alice
Corp., 573 U.S. at 217 (citation omitted); see Mayo, 566 U.S. at 72–73
(requiring that “a process that focuses upon the use of a natural law also
contain other elements or a combination of elements, sometimes referred to
as an ‘inventive concept,’ sufficient to ensure that the patent in practice
amounts to significantly more than a patent upon the natural law itself”
(emphasis added) (citation omitted)). In other words, the inventive concept
under step two of the Mayo/Alice test cannot be the abstract idea itself:
It is clear from Mayo that the “inventive concept” cannot be the
abstract idea itself, and Berkheimer . . . leave[s] untouched the
numerous cases from this court which have held claims ineligible
because the only alleged “inventive concept” is the abstract idea.
Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed
invention’s use of the ineligible concept to which it is directed cannot supply
the inventive concept that renders the invention ‘significantly more’ than
that ineligible concept.”).
Here, the Examiner determined and we agree, that the only additional
elements recited in claim 1 beyond the abstract idea are “one or more back-
end server computers”; “an in-memory database”; and a “decision engine
comprising at least one data processor,” i.e., generic computer components
(Final Act. 2–4, 8–9) — a determination amply supported by and fully
consistent with the Specification (see, e.g., Spec. ¶¶ 22–24). Appellant
cannot reasonably maintain that there is insufficient factual support for the
Examiner’s determination that the operation of these components is well-
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understood, routine, or conventional, where, as here, there is nothing in the
Specification to indicate that the operations recited in claim 1 require any
specialized hardware or inventive computer components or that the claimed
invention is implemented using other than generic computer components to
perform generic computer functions, e.g., receiving and processing
information. Indeed, the Federal Circuit, in accordance with Alice, has
“repeatedly recognized the absence of a genuine dispute as to eligibility”
where claims have been defended as involving an inventive concept based
“merely on the idea of using existing computers or the Internet to carry out
conventional processes, with no alteration of computer functionality.”
Berkheimer, 890 F.3d at 1373 (Moore, J., concurring) (internal citations
omitted); see also BSG Tech LLC, 899 F.3d at 1291 (“BSG Tech does not
argue that other, non-abstract features of the claimed inventions, alone or in
combination, are not well-understood, routine and conventional database
structures and activities. Accordingly, the district court did not err in
determining that the asserted claims lack an inventive concept.”).
Appellant’s reliance on Amdocs (Israel) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288, 1302 (Fed. Cir. 2016), is similarly misplaced (Appeal Br. 15;
see also Reply Br. 19). There, the Federal Circuit held the claim was patent
eligible because the claim entails an unconventional technological solution
(enhancing data in a distributed fashion) to a technological problem
(massive record flows which previously required massive databases).
Although the solution requires generic components, the court determined
that “the claim’s enhancing limitation necessarily requires that these generic
components operate in an unconventional manner to achieve an
improvement in computer functionality” and that the “enhancing limitation
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depends not only upon the invention’s distributed architecture, but also
depends upon the network devices and gatherers –– even though these may
be generic –– working together in a distributed manner.” Amdocs, 841 F.3d
at 1300–01.
Appellant argues that, similar to the claims in Amdocs, “[c]laim 1
describes the unconventional solution (e.g., precomputing temporal behavior
maps) of using the claimed technique to solve a technical problem of
detecting fraudulent transactions in real time when an error occurs during a
transaction” (Appeal Br. 22). But, Appellant does not identify any
“distributed architecture” comparable to that in Amdocs or otherwise
establish that the generic components recited in claim 1 operate in an
unconventional manner.
Appellant also misapprehends the controlling precedent to the extent
Appellant maintains that claim 1 is patent eligible, i.e., that the claim
includes a “inventive concept,” because it allegedly is novel and non-
obvious in view of the cited prior art (Appeal Br. 22–23 (“Here, the claimed
elements are [sic], either individually or in an ordered combination, are not
found in the prior art and hence, for at least this reason, claim 1 cannot be
said to contain only elements that are well-understood, routine, and
conventional.”)). Neither a finding of novelty nor a non-obviousness
determination automatically leads to 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
an evaluation of novelty or non-obviousness, but rather, 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
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[ineligible concept] itself.’” Alice Corp., 573 U.S. at 217–18 (citation
omitted). “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.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of claim 1, and claims 23 and 26, which fall
with claim 1. We also sustain the Examiner’s rejection of dependent
claims 2–22, 24, 25, and 27, which are not argued separately except based
on their dependence from independent claims 1, 23, and 26 (Appeal Br. 23).
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–27 101 Eligibility 1–27
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED