Ford Global Technologies, LLC

Patent Trials and Appeals Board

Dec 28, 2020

2019002539 (P.T.A.B. Dec. 28, 2020)

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.
14/031,391 09/19/2013 Stefan Bankowski 83374605 5822
28395 7590 12/28/2020
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
WILLOUGHBY, ALICIA M
ART UNIT PAPER NUMBER
2167
NOTIFICATION DATE DELIVERY MODE
12/28/2020 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEFAN BANKOWSKI
Appeal 2019-002539
Application 14/031,391
Technology Center 2100

Before JOSEPH L. DIXON, ELENI MANTIS MERCADER, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 9–12, and 17–21. See Final Act. 1.
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. Appellant identifies the real party in interest as Ford Global
Technologies, LLC. Appeal Br. 2.
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Application 14/031,391
2
CLAIMED SUBJECT MATTER
The claims are directed to a method and apparatus for receiving and
processing media recommendations. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A system comprising:
a processor configured to:
receive a request to assemble a playlist;
access a user-specified social media site;
obtain a posted new song recommendation from the social
media site, responsive to determining that the social media site
includes the new song recommendation that was not previously
posted by a recommender;
assemble the new song recommendation into a playlist
associated with the recommender, the playlist including previous
recommendations posted by the recommender;
access a song-providing service;
request music on the play list from the song providing
service; and
play the requested music.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Armstrong US 2007/0162432 A1 July 12, 2007
Svendsen US 2008/0250067 A1 Oct. 9, 2008
Kuper US 2013/0073584 A1 Mar. 21, 2013
Nakamura US 2013/0332469 A1 Dec. 12, 2013
Reznor US 2014/0115463 A1 Apr. 24, 2014
REJECTIONS
Claims 1–5, 9–12, and 17–21 are rejected under 35 U.S.C. § 101
because the claimed invention is directed to a judicial exception (i.e., a law
of nature, a natural phenomenon, or an abstract idea) without significantly
more. Final Act. 2.
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Claims 1–3, 5, and 17–19 are rejected under 35 U.S.C. § 103 as being
unpatentable over Reznor in view of Armstrong. Final Act. 6.
Claims 4 and 20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Reznor in view of Armstrong and further in view of
Kuper. Final Act. 10.
Claim 1 is rejected under 35 U.S.C. § 103 as being unpatentable over
Reznor in view of Svendsen. Final Act. 12.
Claims 9–11 and 21 are rejected under 35 U.S.C. § 103 as being
unpatentable over Armstrong in view of Nakamura. Final Act. 14.
Claim 12 is rejected under 35 U.S.C. § 103 as being unpatentable over
Armstrong in view of Nakamura as applied to claim 9 above, and further in
view of Kuper. Final Act. 16.
OPINION
To the extent consistent with our analysis below, we adopt the
Examiner’s findings and conclusions in the Final Action and the Answer.

Claims 1–5, 9–12, and 17–21 rejected under 35 U.S.C. § 101
Patent Subject Matter Eligibility
“Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n, 601
F.3d 1319, 1331 (Fed. Cir. 2010). Arguments Appellant could have made,
but chose not to make, are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2018).
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 U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
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include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part 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 that framework, 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. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
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 (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854)); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “[a] claim drawn to subject matter otherwise statutory does
not become nonstatutory simply because it uses a mathematical formula.”
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Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, . . . and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim recites an abstract idea, we turn to the second step of the
Alice and Mayo framework, where “we must examine the elements of the
claim to determine whether it contains an ‘inventive concept’ sufficient to
‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an
abstract idea must include ‘additional features’ to ensure ‘that the [claim] is
more than a drafting effort designed to monopolize the [abstract idea].’” Id.
(alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
Subsequent to the filing of the Appeal Brief, the USPTO published
updated guidance on the application of § 101 (“Guidance”). See USPTO’s
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Memorandum”); USPTO’s October 2019 Update: Subject
Matter Eligibility (Oct. 17, 2019) (“Update”), noticed at 84 Fed. Reg. 55,942
(Oct. 18, 2019).
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Pursuant to the Guidance “Step 2A,” the Office first looks to whether
the claim recites:
(1) Prong One: 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) Prong Two: additional elements that integrate the judicial
exception into a practical application (see MPEP
§ 2106.05(a)–(c), (e)–(h) (9th Ed., Rev. 10.2019 (June
2020))).

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:
(3) adds a specific limitation beyond the judicial exception that
is 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.

See Memorandum, 84 Fed. Reg. at 54–56.

Memorandum Step 2A, Prong One
Under Step 2A of the Guidance, the Office first looks to “evaluate
whether the claim recites a judicial exception, i.e., an abstract idea.”
Memorandum, 84 Fed. Reg. at 54.
The Examiner finds that claim 1 is directed to an abstract idea of
obtaining song recommendations and delivering the songs to a user device
for playback (i.e., the claimed steps of receiving a request, accessing social
media sites, obtaining a posted song recommendation, assembling the
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recommendation into a playlist, accessing song providing service, requesting
music on playlist, and playing the requested music), which is similar to
concepts that have been identified as abstract idea by the courts, such as
delivering selectable media content and subsequently playing the selected
content on a portable device. Final Act. 2–3 (citing “Affinity v Amazon”
referring to Affinity Labs of Tex., LLC v. Amazon.com Inc., 838 F.3d 1266
(2016)).
We agree with the Examiner that the limitations of
receive a request to assemble a playlist;
access a user-specified social media site;
obtain a posted new song recommendation from the social
media site, responsive to determining that the social media site
includes the new song recommendation that was not previously
posted by a recommender;
assemble the new song recommendation into a playlist
associated with the recommender, the playlist including previous
recommendations posted by the recommender;
access a song-providing service;
request music on the play list from the song providing
service; and
play the requested music
recite the mental steps that a human being can do mentally of receiving a
request, accessing a social media site, obtaining a newly posted song
recommendation, assembling the recommendation into a playlist, accessing
a song providing service, requesting music on playlist, and playing the
requested music. 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 performed in
the mind. See Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d
1307, 1318 (Fed. Cir. 2016). Nothing in claim 1 forecloses it from being
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performed by a human, mentally or with pen and paper. See Mortg. Grader,
Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016)
Also the limitations reciting “a user-specified social media
site,” “a posted new song recommendation from the social media
site,” “responsive to determining that the social media site includes
the new song recommendation that was not previously posted by a
recommender” and “assemble the new song recommendation into a
playlist associated with the recommender, the playlist including
previous recommendations posted by the recommender” are
limitations pertaining to managing personal behavior or relationships
or interactions between people. In particular the social media site
allows for interactions between the recommender and the user who
obtains a newly recommended song to be added to the user’s playlist.
Thus, these limitations also recite managing personal behavior, or
relationships or interactions between people via a social media site to
obtain a new song, and thus constitutes as abstract idea. See
Memorandum, 84 Fed. Reg. at 52 (n.13 citing Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014) (holding that claim
“describ[ing] only the abstract idea of showing an advertisement
before delivering free content” is patent ineligible)).
Because claim 1 recites mental processes (i.e., abstract idea)
and certain methods of organizing human activity of managing
personal behavior or relationships or interactions between people (i.e.,
abstract idea) we proceed to prong 2.

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Memorandum Step 2A, Prong 2
Under Step 2A, Prong 2 of the Memorandum, we next determine
whether the claims recite additional elements that integrate the judicial
exception into a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)).
The “additional elements” recited in claim 1 include the claimed
“processor.” See claim 1.
To integrate the exception into a practical application, the additional
claimed elements must, for example, improve the functioning of a computer
or any other technology or technical field (see MPEP § 2106.05(a)), apply
the judicial exception with a particular machine (see MPEP § 2106.05(b)),
affect a transformation or reduction of a particular article to a different state
or thing (see MPEP § 2106.05(c)), or apply or use the judicial exception in
some other meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment (see MPEP
§ 2106.05(e)). See Memorandum.
The Examiner finds that claim 1 recites the additional element of a
processor. Final Act. 3. The Examiner finds that the recitation of the
computer limitation amounts to mere instructions to implement the abstract
idea on a computer, such as using a computer program to enable receiving,
accessing, obtaining, assembling, requesting, and playing. Id. The Examiner
explains that the computer component at each step of the process performs
purely generic computer functions that do not amount to significantly more
than the abstract idea. Id.
In reviewing Appellant’s Specification, the processor is described at a
high level of generality as being provided with an operating system to allow
it to communicate with modern application software (see, i.e., para. 24) and
as a vehicle-based computer system (“VCS”) such as the SYNC system
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manufactured by THE FORD MOTOR COMPANY (see, i.e., para.16). See
Spec. paras. 24, 16.
Thus, the vehicle-based computer system or the processor as recited in
claim 1 is described at a high level of generality. The generic computer is
used as a tool to implement the recited abstract ideas. Using generic
computer components to implement an abstract idea does not integrate the
abstract idea into a practical application. See, e.g., Alice, 573 U.S. at 223–
24; see also Memorandum, 84 Fed. Reg. at 55 (explaining that courts have
identified merely using a computer as a tool to perform an abstract idea as an
example of when a judicial exception has not been integrated into a practical
application). As the generic computer is part of the abstract idea, it does not
constitute an additional element that integrates the identified abstract idea
into a practical application. See Guidance, 84 Fed. Reg. at 54–55
(“[E]valuate integration into a practical application by: (a) Identifying
whether there are any additional elements recited in the claim beyond the
judicial exception(s)”).
Accordingly, we agree with the Examiner’s conclusion that the
present claims fail to integrate the exception into a practical application, and
we proceed to Step 2B.

Memorandum Step 2B: Inventive concept
Under Step 2B of the Guidance we analyze the claims to determine
whether they provide an inventive concept (i.e., whether the additional
elements amount to significantly more than the exception itself).
Considerations that are evaluated with respect to Step 2B include
determining whether the claims as a whole add a specific limitation or
combination of limitations that are not well-understood, routine,
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conventional activity in the field. Memorandum, 84 Fed. Reg. at 56.
Simply appending well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception indicates that an inventive concept may not be present.
Id.
Appellant argues that it is a requirement that the Examiner shows how
the elements of the claim, alone and in combination (e.g., BASCOM, Dec.
2016 guidance), represent “routine” activity. Appeal Br. 6. Appellant
argues that this is more than a mere allegation because cases such as
Berkheimer and Aatrix have made it clear that this is a finding of fact that
must be proven with clear and convincing evidence. Id.
Appellant argues that the process of obtaining posted song
recommendations (claims 1 and 17) from social media sites, responsive to
determining that the site includes new, not-previously-posted song
recommendations, and then adding those to a playlist of songs already from
that user, to effectively achieve and hear an updated recommendation play
list, has not been shown to be a routine process. Id. Appellant further
argues that the Examiner has not shown how the idea of playing back a user-
specified time-block of music selected from the playlists, based on a user-
specified recommender-ranking, is a routine and typical process. Id.
At the outset, the limitations identified by Appellant as social media
sites, responsive to determining that the site include new, not-previously-
posted song recommendations, and then adding those to a playlist of songs
already from that user, to effectively achieve and hear an updated
recommendation play list, are not additional elements but rather, an abstract
idea as we determined supra. Furthermore, customization of information
has been held to constitute an abstract idea. See Intellectual Ventures I LLC
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v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015). The
additional element of claim 1 is the processor.
As stated in the Berkheimer Memo,
[a] specification demonstrates the well-understood, routine,
conventional nature of additional elements when it describes the
additional elements as well-understood or routine or
conventional (or an equivalent term), as a commercially
available product, or in a manner that indicates that the additional
elements are sufficiently well-known that the specification does
not need to describe the particulars of such additional elements
to satisfy 35 U.S.C. § 112(a).

Berkheimer Memo at 3.
In reviewing Appellant’s Specification, the processor is described at a
high level of generality as being provided with an operating system to allow
it to communicate with modern application software (see, i.e., para. 24) and
as a vehicle-based computer system (“VCS”) such as the SYNC system
manufactured by THE FORD MOTOR COMPANY (see, i.e., para.16). See
Spec. paras. 24, 16. Thus, the additional element of the claimed processor is
described in the Specification as the commercially available product SYNC
manufactured by THE FORD MOTOR COMPANY.
For the foregoing reasons, we conclude that claim 1 fails to integrate
the abstract idea into a practical application, and the additional claim
element does not add significantly more to the abstract idea. Accordingly,
we sustain the § 101 rejection of independent claim 1. We also affirm the
rejection of claims 2–5, 9–12, and 17–21 for the same reasons.
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Claims 1–3, 5 and 17–19 rejected under 35 U.S.C. § 103 over Reznor in
view of Armstrong
Appellant argues that Armstrong fails to teach “obtain[ing] a posted
new song recommendation . . . responsive to determining that the . . . site
includes the new . . . recommendation” because the cited prior art is only
able to inform of the new posting but not obtain the new posting. Appeal Br.
7. Appellant argues that Reznor in combination with Armstrong does not
teach or suggest obtaining and assembling the new song “into a playlist
associated with the recommender.” Appeal Br. 7–9.
We do not agree. The Examiner finds that Armstrong teaches that
content (i.e., music) may be provided with a link or other mechanism by
which the user may access the content associated with the recent content
publication activity. Ans. 5–6 (citing paras. 49 and 148). Therefore, we
agree with the Examiner that Armstrong teaches obtaining the new song
recommendation (and not just informing of the new posting) responsive to
determining that the site includes the new recommendation.
Thus, we affirm the Examiner’s rejection of claim 1 rejected under 35
U.S.C. § 103 over Reznor in view of Armstrong. For the same reasons we
also affirm the Examiner’s rejection of claims 2–3, 5, and 17–19 not
separately argued.
Claims 4 and 20 rejected under 35 U.S.C. § 103 over Reznor in view of
Armstrong and Kuper
We also affirm the Examiner’s rejection of claims 4 and 20 for the
same reasons as stated above.

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Claim 1 rejected under 35 U.S.C. § 103 over Reznor in view of Svendsen
Appellant argues that the combination of Reznor in view of Svendsen
does not teach or suggest the limitation of “obtain[ing] a posted new song
recommendation . . . responsive to determining that the . . . site includes the
new . . . recommendation” as recited in claim 1. Appeal Br. 8–9. In
particular, Appellant argues that the cited portions of Svendsen relate to
using playlists of designated recommenders, but there is utterly nothing
about accessing those lists. Id. at 9.
We do not agree. We agree with the Examiner’s finding that Svendsen
teaches that a user may choose to receive item recommendations explicitly
provided by the recommender (i.e., para. 56) and/or media items recently
included in a collection of one of the recommenders (para. 57). Appeal Br.
6–7. The media items recently included in a collection of one of the
recommenders are being interpreted as new song recommendations, as they
have been recently included. Id.
Thus, we affirm the Examiner’s rejection of claim 1 rejected under 35
U.S.C. § 103 over Reznor in view of Svendsen.

Claims 9–11 and 21 rejected under 35 U.S.C. § 103 over Armstrong in view
of Nakamura
Appellant argues that Nakamura does not teach the limitations of
claim 9 reciting “playing back a user-specified time-block of music selected
from the recommender-specific playlists, the music selected based on a user-
specified ranking of the recommenders.” Appeal Br. 9.
In particular, Appellant argues that ranking music recommenders is
not the same as ordering music based on relationships with recommenders.
Id. According to Appellant, if one had a preferred music recommender, but
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one was not particularly close with that person, under Nakamura the listener
would have to actually change a relationship status with the relatively
unknown person to obtain their music with increased frequency. Id.
We do not agree with Appellant. The Examiner finds, and we agree,
that Nakamura teaches playing back music based on user relationship and
evaluation of recommenders (paras. 104–107). Ans. 7. We agree with the
Examiner that the amount of time a user plays the music may be considered
the user-specified time block because the claim does not require the user to
select or predefine the time block. Id.
We further agree with the Examiner that claim 1 does not specify how
recommenders are ranked, but instead only recites a user-specified ranking
of recommenders that is used to select music for playback. Id. We agree with
the Examiner that Nakamura explicitly teaches generating a recommender
mix so that songs recommended are played in an order depending on a
relationship with the recommender, such as degrees of friendship,
acquaintance and/or followership (para. 104). Id. at 8. The Examiner further
finds and we agree that content pieces (i.e. music) that recommenders
recommend in real time are aggregated and the play order of songs is
determined in view of the number of or the degree of friendship with the
recommenders recommending content pieces (para. 106). Id. Nakamura also
teaches that a user may input an evaluation score for each recommender
(para. 77), and further teaches selecting and reselecting recommended
content (i.e., music) based on recommender evaluation score (para. 84). Id.
Therefore, we agree with the Examiner’s conclusion that Nakamura
teaches ranking recommenders (i.e., by determining degrees of friendship
and/or inputting evaluation scores) and using the ranking to select music for
playback. Id.
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Thus, we affirm the Examiner’s rejection of claim 9 rejected under 35
U.S.C. § 103 over Armstrong in view of Nakamura. We also affirm the
Examiner’s rejection of claims 10, 11, and 21 for the same reasons.

Claim 12 rejected under 35 U.S.C. § 103 over Armstrong in view of
Nakamura and further in view of Kuper
We also affirm the Examiner’s rejection of claims 12 for the same
reasons as stated above.

CONCLUSION
The Examiner’s decision to reject claims 1–5, 9–12, and 17–21 is
Affirmed.

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DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 9–12,
17–21
101 Eligibility 1–5, 9–12,
17–21

1–3, 5, 17–
19
103 Reznor, Armstrong 1–3, 5, 17–
19

4, 20 103 Reznor,
Armstrong, Kuper
4, 20
1 103 Reznor, Svendsen 1
9–11, 21 103 Armstrong,
Nakamura
9–11, 21
12 103 Armstrong,
Nakamura, Kuper
12
Overall
Outcome
1–5, 9–12,
17–21

TIME PERIOD FOR RESPONSE
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