Jay Monahan

Patent Trials and Appeals Board

Jan 14, 2020

14087794 - (D) (P.T.A.B. Jan. 14, 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.
14/087,794 11/22/2013 Jay Monahan IP-2043.383US4/
EBAY.28584
8818
150601 7590 01/14/2020
Shook, Hardy & Bacon L.L.P.
(eBay Inc.)
2555 Grand Blvd.
KANSAS CITY, MO 64108-2613
EXAMINER
LE, JESSICA N
ART UNIT PAPER NUMBER
2157
NOTIFICATION DATE DELIVERY MODE
01/14/2020 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
docketing.shb@clarivate.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY MONAHAN
Appeal 2018-001479
Application 14/087,794
Technology Center 2100
Before BARBARA A. BENOIT, MICHAEL M. BARRY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENOIT, 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 21, 23–25, 27, 28, 30–32, 34, 35, 37,
38, and 40.2 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as eBay Inc. Appeal
Br. 2.
2 Claims 1–20, 22, 26, 29, 33, 36, and 39 have been cancelled. Final Act. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to an event ticket hub. See, e.g., Spec. title
(“Event Ticket Hub”); Appeal Br. 15 (Claims Appendix). Claim 21,
reproduced below, is illustrative of the claimed subject matter:
21. A method comprising:
collecting, at a server machine, profile information of a user, the
profile information compiled from observed user input information
history over a period of time;
periodically searching, at the server machine, based on user input
information, to create search results;
identifying, at the server machine, ticket information from the
search results using the profile information, the ticket information
pertaining to an event ticket;
providing, by the server machine, the ticket information to the
user; and
automatically triggering payment and retrieval, by the server
machine, of the event ticket in accordance with a subscription of the
user.
Appeal Br. 15 (Claim Appendix)
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Shaya US 2002/0161664 A1 Oct. 31, 2002
Fluhr US 2003/0061147 A1 Mar. 27, 2003
Harinstein US 2007/0260671 A1 Nov. 8, 2007
Ando US 2008/0279481 A1 Nov. 13, 2008
Karonis US 7,584,123 B1 Sept. 1, 2009

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REJECTIONS
Claims 21, 23–25, 27, 28, 30–32, 34, 35, 37, 38, and 40 stand rejected
under 35 U.S.C. § 101 as being directed to ineligible subject matter. Ans. 9–
12.
Claims 21, 24, 27, 28, 31, 34, 35, 38, and 40 stand rejected under
35 U.S.C. § 103 as being unpatentable over Shaya, Harinstein, Ando, and
Fluhr. Final Act. 3–7.
Claims 23, 25, 30, 32, and 37 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Shaya, Harinstein, Ando, Fluhr, and Karonis. Final
Act. 7–8.
ANALYSIS
A. Subject Matter Eligibility
Claims 21, 23–25, 27, 28, 30–32, 34, 35, 37, 38, and 40 stand rejected
under 35 U.S.C. § 101 as being directed to ineligible subject matter. Ans. 9–
12 (New ground of rejection). In issues involving subject matter eligibility,
our inquiry focuses on whether the claims satisfy the two-step test set forth
by the Supreme Court in Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014).
The Supreme Court instructs us to “[f]irst . . . determine whether the claims
at issue are directed to [a] . . . patent-ineligible concept[]” (id. at 217), and,
in this case, the inquiry centers on whether the claims are directed to an
abstract idea. If the initial threshold is met, we then move to the second
step, in which we “consider the elements of each claim both individually and
‘as an ordered combination’ to determine whether the additional elements
‘transform the nature of the claim’ into a patent-eligible application.” Id.
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
79, 78 (2012)). The Supreme Court describes the second step as a search for
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“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.’” Alice, 573 U.S. at 217–
18 (quoting Mayo, 566 U.S. at 72–73).
The USPTO has published revised guidance on the application of
§ 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Recently, the USPTO
published an update that responds to major themes from comments received
in response to the Guidance.3 See 84 Fed. Reg. 55,942 (Oct. 18, 2019)
(notice regarding availability of the Guidance Update). The Guidance
Update provides further explanation and examples, primarily directed to
examination but also applicable here. Guidance Update, 1.
Under the Guidance, we first look 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)
(Guidance, Step 2A, prong 1); and
(2) additional elements that integrate the judicial exception into a
practical application (see Manual of Patent Examining Procedure (MPEP)
§ 2106.05(a)–(c), (e)–(h) (9th ed., rev. 08.2017 Jan. 2018)) (Guidance,
Step 2A, prong 2).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:

3 https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf (“Guidance Update”).
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(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.
Guidance (Step 2B).
1. Examiner’s Determinations and Conclusion
Applying the first step of the Alice inquiry, the Examiner determines
the claims are directed to an abstract idea without significantly more—
namely, a fundamental practice of purchasing an item based on a purchaser’s
information. Ans. 9. The Examiner identifies certain claim limitations as
being similar to the abstract idea identified in OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015), which
concluded that the claimed concept of ‘‘offer-based price optimization’’ is
an abstract idea ‘‘similar to other ‘fundamental economic concepts’ found to
be abstract ideas.” Ans. 9. Specifically, the Examiner identified the
following limitations:
collecting, . . . profile information of a user, the profile
information compiled from observed user input information
history over a period of time;
periodically searching . . . based on user input information,
to create search results;
identifying . . . ticket information from the search results
using the profile information, the ticket information pertaining to
an event ticket;
providing . . . the ticket information to the user; and
automatically triggering payment and retrieval . . . of the
event ticket in accordance with a subscription of the user.
See id.
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The Examiner finds the claims “are directed toward computerizing
purchasing of items or product, which is a human activity” and the claims
use “profile information to trigger a purchase[,] which is an organization of
human activity.” Ans. 10. The Examiner finds this aspect to be “not
meaningfully different from the abstract idea found in [Intellectual Ventures
I LLC v. Capital One Bank, 792 F.3d 1363 (Fed. Cir. 2015) that] use[d] a
profile to determine if something should be triggered.” Ans. 10.
2. Appellant’s Contentions
Appellant argues, among other contentions, that independent claims
21, 28, and 35 each provides “something more” in “specific ordered actions
culminating with it automatically triggering payment and retrieval of the
event ticket in accordance with a user subscription.” Reply Br. 5.4
Appellant characterizes this as a “patentable distinction of independent
purchase by an automated agent described above[, which] in fact constitutes
a clear improvement to electronic commerce technology, even if based on
known elements.” Reply Br. 5 (citing BASCOM Global Internet Servs., Inc.
v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)). In Appellant’s
view, independent claims 21, 28, and 35 “do not involve user approval of
any specific transaction” and performs a purchase “in accordance with
previously provided purchase limitations” “without requiring further specific
approval from the user for an identified event” based on “general
information received from a user.” Reply Br. 2.

4 Appellant argues the independent claims 21, 28, and 35 as a group. We
select claim 21 as representative.
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3. Guidance, Revised Step 2A, Prong One: The Judicial Exception
The Guidance instructs us first to determine whether any judicial
exception to patent eligibility is recited in the claim. As explained by the
Guidance, when determining whether a claim recites a judicial exception,
the claim should be evaluated whether it sets forth or describes a judicial
exception in accordance with the Guidance certain groupings of abstract
ideas—(1) mathematical concepts; (2) certain methods of organizing human
activity such as fundamental economic practices, fundamental economic
principles or practices, commercial or legal interactions, and managing
personal behavior or relationships or interactions between people; and
(3) mental processes—or as clarified in Section II of the Guidance Update.
See Guidance, 84 Fed. Reg. at 54 (Step 2A, Prong 1); Guidance Update, 1.
As shown below, Appellant’s claims include limitations that fall
within the USPTO’s enumerated groupings of abstract ideas: certain
methods of organizing human activity such as commercial or legal
interactions, including “advertising, marketing, or sales activities or
behaviors.” Guidance, 84 Fed. Reg. at 52. The following limitations—
“identifying . . . ticket information from the search results using the profile
information, the ticket information pertaining to an event ticket” and
“providing . . . the ticket information to the user”—relate to selling event
tickets, which pertains to sales activities. Thus, claim 1 recites subject
matter relating to “advertising, marketing, or sales activities or behaviors,”
which is identified by the Guidance as falling within the enumerated sub-
grouping of “commercial or legal interactions,” which in turn falls within the
group of “certain methods or organizing human activity” of judicial
exceptions. Guidance, 84 Fed. Reg. at 52; see Guidance Update 4–5.
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Accordingly, we conclude Appellant’s claims recite a judicial
exception.
4. Guidance, Revised Step 2A, Prong Two:
Integration of the Judicial Exception into a Practical Application
Having determined that the claims recite a judicial exception as set
forth in the claim limitations, our analysis under the Guidance turns to
determining whether there are “additional elements that integrate the judicial
exception into a practical application.” See Guidance (citing MPEP
§ 2106.05(a)–(c), (e)–(h)). Under the Guidance, limitations that are
indicative of “integration into a practical application” include:
1. Improvements to the functioning of a computer, or to any other
technology or technical field — see MPEP § 2106.05(a);
2. Applying the judicial exception with, or by use of, a particular
machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular article to
a different state or thing — see MPEP § 2106.05(c); and
4. Applying or using the judicial exception in some other
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(e).
In contrast, limitations that are not indicative of “integration into a
practical application” include:
1. Adding the words “apply it” (or an equivalent) with the judicial
exception, or merely include instructions to implement an
abstract idea on a computer, or merely uses a computer as a tool
to perform an abstract idea – see MPEP § 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use — see
MPEP 2106.05(h).
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See 2019 Revised Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
Appellant’s claims recites various computer-related limitations,
including “a server machine” (independent claims 21, 28, and 35) and “a
data source” (independent claim 35). These computer-related limitations are
generic in nature and are described at a high-level in the Specification
without any meaningful detail about their structure or configuration. See
Spec. Fig. 1 (server machine 12, three server machines 36, data sources 18
including three server machines and three databases), Fig. 5 (server machine
12 with input information 102, metadata information 104, search result
information 145, target information 147, and output information folder 125,
server machines 18 that show no identified components), ¶¶ 27, 29
(describing data sources and server machines shown in Fig. 1), ¶¶ 35–42
(describing components shown in Fig. 5).
Claim 21 also recites additional limitations that focus on addressing
problems arising in the context of digital content searching in which
“considerable time” may be consumed to locate specific types of digital
content. Spec. ¶ 3. Specifically, claim 21 recites “identifying, at the server
machine, ticket information from the search results using the profile
information, the ticket information pertaining to an event ticket; providing,
by the server machine, the ticket information to the user; and automatically
triggering payment and retrieval, by the server machine, of the event ticket
in accordance with a subscription of the user.”
We conclude the limitation “automatically triggering payment and
retrieval, by the server machine, of the event ticket in accordance with a
subscription of the user” integrates the recited judicial exception into a
practical application. In particular, this limitation requires a server machine
to automatically purchase and retrieve a ticket to a particular event in
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accordance with a subscription of the user. The Specification describes the
ability for the electronic ticket hub to search for ticket availability for a
particular music artist and authorize payment not exceeding a predetermined
limit. Spec. ¶ 54. Notably, the claimed payment and retrieval of the event
ticket performed by the server machine is done without user intervention
other than specifying various types of input information (such as desired
artist and purchase amount limitations). See, e.g., Spec. ¶ 64; Reply Br. 2
(characterizing independent claims 21, 28, and 35), 5 (characterizing the
claims as reciting “specific ordered actions culminating with it automatically
triggering payment and retrieval of an event ticket in accordance with a
subscription”).
Thus, the use of the claimed automatically triggered payment and
retrieval of the event ticket provides a specific technological improvement
over prior electronic ticket purchase systems. Furthermore, the automatic
triggering of payment and retrieval is further limited as being “in accordance
with a subscription of the user,” and additionally by the ordered combination
of the claim involving, for instance, “collecting, at a server machine, profile
information of a user, the profile information compiled from observed user
input information history over a period of time” and “identifying, at the
server machine, ticket information from the search results using the profile
information, the ticket information pertaining to an event ticket.” As such,
these additional limitations impose a meaningful limit on the judicial
exception.
Accordingly, we conclude independent claim 21 is integrated into a
practical application, and under the Guidance, the claim is eligible because it
is not directed to the recited judicial exception. Because we have
determined the claim is not directed to the recited judicial exception, we
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need not reach the question of whether independent claim 21 provides an
inventive concept under the second step of the Alice inquiry. Accordingly,
we do not sustain the rejection of the independent claims 21, 28, and 35, or
their respective dependent claims 23–25, 27, 30–32, 34, 37, 38, and 40,
under 35 U.S.C. § 101.
B. Obviousness
Claims 21, 24, 27, 28, 31, 34, 35, 38, and 40 stand rejected under
35 U.S.C. § 103 as being unpatentable over Shaya, Harinstein, Ando, and
Fluhr. Final Act. 3–7. Claims 23, 25, 30, 32, and 37 stand rejected under
35 U.S.C. § 103 as being unpatentable over Shaya, Harinstein, Ando, Fluhr,
and Karonis. Final Act. 7–8.
1. Shaya, Harinstein, Ando and Fluhr
In rejecting claim 1 under § 103, the Examiner relies on the combined
teaching of Shaya, Harinstein, Ando and Fluhr and specifically relies on
Fluhr for disclosing “automatically triggering payment and retrieval, by the
server machine, of the event ticket in accordance with a subscription of the
user,” recited by independent claim 21. Final Act. 5–6; Ans. 13–15.
Among its contentions, Appellant disputes that Fluhr teaches or
suggests performing a purchase of the event ticket without requiring specific
user approval of the specific transaction. Appeal Br. 11 (arguing “the
rejected independent claims 21, 28, and 35 do not require specific user
approval of any specific transaction. . . . The [server machine] performs
purchases in accordance with the previously provided purchase and storage
information.”). By contrast, according to Appellant, the “cited prior art
references, whether considered separately or together, . . . all require a user
to perform a purchase.” Id. at 11 (emphasis in original). More specifically,
Appellant contends that “Fluhr neither teaches nor suggests automatically
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triggering payment and retrieval, by the server machine, of the event ticket
in accordance with a subscription of the user.” Id. at 13 (emphasis in
original).
We are persuaded by Appellant of Examiner error. As recognized by
both the Examiner and Appellant, Fluhr describes a buyer entering seat
selection information for a particular event, a delivery location for delivery
of the tickets (user’s home address, work address, or will call), shipping
options for ticket delivery, and method of payment, among other
information. Fluhr ¶ 63; Final Act. 6 (citing Fluhr ¶ 63); Ans. 14 (citing
Fluhr ¶ 63). Specifically, in Fluhr’s graphical user interface 300 shown on
Figure 16, Fluhr shows a confirmation button for a user to confirm the user’s
desire to purchase of a specific number of tickets to a particular event (“You
are buying 4 tickets to the San Francisco 49ers event”) using a particular
payment method (“You are charging the total cost to your credit card,
described as Mastercard 5424 *******.”). Fluhr Fig. 16; Final Act. 6 (citing
Fluhr Fig. 16, element 300; ¶ 63). Fluhr describes “a confirmation page that
allows a user to view a summary of . . . information [entered by the user in a
series of graphical user interfaces], including a description of the tickets,
delivery method, delivery location, payment amount, and method of
payment.” Fluhr ¶ 63.
Upon confirmation, Fluhr provides payment processing for the cost of
the tickets using the buyer’s credit card, notifies the seller that the tickets
have been sold, and arranges for the seller to provide the tickets to the buyer
(“shipping logistics”). Fluhr ¶¶ 70–71; Final Act. 6 (citing Fluhr ¶¶ 70–71);
see also Fluhr ¶¶ 72–75 (providing additional detail).
On this basis, the Examiner finds that Fluhr’s payment and shipping
logistics provided after user confirmation of the desired sale teaches
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“automatically triggering payment and retrieval, by the server machine, of
the event ticket in accordance with a subscription of the user,” as recited in
independent claim 21. We agree with the Examiner that Fluhr discloses or
suggests “automatically triggering payment and retrieval, by the server
machine, of the event ticket” in that the user confirmation triggers Fluhr’s
system to charge the buyer’s credit card for the ticket (“payment”) and
triggers Fluhr’s system to have the seller provide the tickets to the buyer
(“retrieval of the event ticket”).
We do not agree with the Examiner, however, that Fluhr discloses or
suggests doing so “in accordance with a subscription of the user” as required
by independent claim 21. As best understood, the Examiner finds that the
buyer’s interaction of searching for and selecting tickets to a particular
event, entering payment information, and delivery information is the
requisite “subscription of the user.” Final Act. 6 (citing Fluhr Fig, 16
element 300, ¶¶ 63, 71–72, 84).
For the following reasons, we determine that the broadest reasonable
interpretation of “a subscription of the user” does not encompass Fluhr’s
one-time search for tickets by a buyer. See In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997). Under the broadest reasonable construction standard,
claim terms are presumed to have their ordinary and customary meaning as
would be understood by one of ordinary skill in the art in the context of the
entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007).
Appellant’s Specification does not define “a subscription” or
otherwise describe a subscription in detail. The Specification describes “a
subscription to a feed” and also describes one example of a feed—an RSS
(“Really Simple Syndication”) feed. Spec. ¶¶ 39, 67, 75, 76, 78, 96; see id.
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¶ 50 (indicating a feed may be an RSS feed). The Specification also
indicates that a user may provide a specific time limit for a subscription,
such that a subscription, for example, may not exceed one month or one
year. Id. ¶ 96.
The Specification’s use of “subscription” is consistent with dictionary
definitions:
1a. A purchase made by signed order, as for a periodical for a
specified period of time or for a series of performances. b. An
agreement to receive or be given access to electronic texts or
services, especially over the Internet.
American Heritage Dictionary 1726 (4th ed. 2006) (defining “subscription”)
(Ex. 3001). As noted above, the Specification describes an RSS feed as an
example of a type of “feed” to which a user may subscribe, which aligns
with the definition of subscription as being given access to electronic texts
or services. The Specification indicates that a subscription can have a time
limit and so also aligns with the definition of subscription for a periodical for
a specified period of time.
The plain language of “in accordance with a subscription of the user”
is neither constrained by a time limit nor provides access to electronic texts
or services. Rather, the claim language aligns best with the definition of a
subscription as being for a series of performances.
Accordingly, we find one of ordinary skill in the art would understand
a purchase of an event ticket “in accordance with a subscription of the user”
to mean a purchase of an event ticket in accordance with a series of
performances identified by the user.
Thus, the broadest reasonable interpretation of “in accordance with a
subscription of the user” requires an event ticket related to a series of events
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or performances identified by the user. This construction of “subscription”
is further supported by the definition of “subscribe” as “[t]o contract to
receive and pay . . . tickets to a series of events or performances.” Ex. 3001
(definition 1a for “subscribe”).
Fluhr’s confirmation of the user’s selected purchase and payment
method relates to an event ticket that is unrelated to a series of performances
or otherwise identified as (or associated with) a subscription. We, therefore,
agree with Appellant that “Fluhr neither teaches nor suggests automatically
triggering payment and retrieval, by the server machine, of the event ticket
in accordance with a subscription of the user.” Appeal Br. 13 (emphasis in
original).
For these reasons, we do not sustain the rejection of independent
claim 21 under 35 U.S.C. § 103. The Examiner provides no additional
showing for the other claims rejected over Shaya, Harinstein, Ando, and
Fluhr that makes up for the shortcomings discussed above regarding
independent claim 21. See Final Act. 3–7. Accordingly, we also do not
sustain the rejection of claims 24, 27, 28, 31, 34, 35, 38, and 40.
Regarding the rejection of claims 23, 25, 30, 32, and 37 rejected under
35 U.S.C. § 103 over Shaya, Harinstein, Ando, Fluhr, and Karonis, the
Examiner provides no additional showing that makes up for the
shortcomings discussed above. Final Act. 7–9. We, therefore, do not
sustain the rejection of these claims.

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CONCLUSION
The Examiner’s rejections are reversed.
More specifically, we reverse the rejections of (i) claims 21, 23–25,
27, 28, 30–32, 34, 35, 37, 38, and 40 under 35 U.S.C. § 101 as being
directed to ineligible subject matter, (ii) claims 21, 24, 27, 28, 31, 34, 35, 38,
and 40 under 35 U.S.C. § 103 as being unpatentable over Shaya, Harinstein,
Ando, and Fluhr, and (iii) claims 23, 25, 30, 32, and 37 under 35 U.S.C.
§ 103 as being unpatentable over Shaya, Harinstein, Ando, Fluhr, and
Karonis.
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
21, 23–25,
27, 28, 30–
32, 34, 35,
37, 38, 40
101 Eligibility 21, 23–25,
27, 28, 30–
32, 34, 35,
37, 38, 40
21, 24, 27,
28, 31, 34,
35, 38, 40
103 Shaya, Harinstein,
Ando, Fluhr
21, 24, 27,
28, 31, 34,
35, 38, 40
23, 25, 30,
32, 37
103 Shaya, Harinstein,
Ando, Fluhr,
Karonis
23, 25, 30,
32, 37
Overall
Outcome
21, 23–25,
27, 28, 30–
32, 34, 35,
37, 38, 40

REVERSED