MasterCard International Incorporated

Patent Trials and Appeals Board

Sep 1, 2020

14718930 - (D) (P.T.A.B. Sep. 1, 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.
14/718,930 05/21/2015 Steven Charles DAVIS 0076412-000418 9903
125578 7590 09/01/2020
MASTERCARD
C/O Buchanan Ingersoll & Rooney PC
P.O. Box 1404
Alexandria, VA 22314
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
09/01/2020 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):
ADIPDOC1@BIPC.com
charles.wieland@bipc.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN CHARLES DAVIS
____________

Appeal 2019-002664
Application 14/718,930
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and
AMEE A. SHAH, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–20, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
THE INVENTION
Appellant claims a method and system for processing blockchain-
based transactions on existing payment networks. Specifically, the invention
relates to the use of payment network transaction messages and payment
networks to securely store and convey transaction details for a blockchain-
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based transaction for use thereof in execution of the blockchain-based
transaction. (Spec. ¶ 1, Title).
Claim 1 is representative of the subject matter on appeal.
1. A method for authorizing a blockchain-based transaction,
comprising:
receiving, by a receiving device, a transaction request,
wherein the transaction request includes at least a network
identifier associated with a blockchain network, a transaction
amount, and one of: a public key and an address identifier;
generating, by a processing device, an address identifier
using at least the public key included in the received transaction
request and one or more hashing algorithms, encoding
algorithms, or a combination thereof if the received transaction
request does not include an address identifier;
generating, by the processing device, a transaction
message, wherein the transaction message is formatted based on
one or more standards governing the interchange of transaction
messages and includes a plurality of data elements, including at
least a first data element configured to store a transaction
amount and a second data element reserved for private use, and
the first data element includes a zero value and the second data
element includes at least (i) the network identifier or an
encoded value based on the network identifier, (ii) the address
identifier, and (iii) the transaction amount; and
transmitting, by a transmitting device, the transaction
message to a financial institution via payment rails of a
payment network.

THE REJECTION
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 1–20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable in view of Lingappa (US 2015/0371224 A1, Dec. 24, 2015), in
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further view of Feeney (US 2016/098730 A1, Apr. 7, 2016), in further view
of Bacastow (US 2015/0154597 A1, June 4, 2015).

ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 1–20 under 35 U.S.C. § 101.
The Supreme Court
set forth a framework for distinguishing patents
that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible
applications of those concepts. First, . . . determine
whether the claims at issue are directed to one of
those patent-ineligible concepts. . . . If so, . . . then
ask, “[w]hat else is there in the claims before us?” .
. . To answer that question, . . . 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. . . . [The
Court] described step two of this analysis as a
search for an “‘inventive concept’”—i.e., an
element or combination of elements that is
“sufficient to ensure that the patent in practice
amounts to significantly more than a patent upon
the [ineligible concept] itself.”
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217-218 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012))
(citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the [S]pecification, based on whether ‘their character
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as a whole is directed to excluded subject matter.’” See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp., 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.
In so doing we apply a “directed to” two prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 FR 50, pp 50–57 (Jan. 7, 2019) (“Guidance”).
The Examiner determines that the claims are directed toward
authorization of a blockchain-based transaction which is analogous to
performing a transaction. The Examiner determines that the steps of the
claims are directed to (1) using categories to organize, store and transmit
information and (2) a fundamental economic practice. (Final Act. 4). The
Examiner finds that the use of a generic computer to perform the extra
solution activities does not impose any meaningful limitations as an ordered
combination and adds nothing that is not already present when looking at the
elements taken individually. The Examiner also finds that and there is no
indication that the combination of elements improve the functioning of the
computer or improve any other technology. (Final Act. 5).
The Specification discloses that the invention relates to the
authorization of a blockchain-based transaction, specifically the use of
existing payment network transaction messages and payment networks to
securely store and convey transaction details for a blockchain-based
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transaction. (Spec. ¶1). The method of the invention includes the steps of
receiving a transaction request, generating an address identifier, generating a
transaction message, and transmitting the transaction message. (Spec. ¶7).
Consistent with this disclosure claim 1 recites “receiving . . . a
transaction request,” “generating . . . an address identifier,” “generating . . .
a transaction message,” and “transmitting . . . the transaction message to a
financial institution.”
We thus agree with the Examiner’s determination that claim 1 is
directed to authorization of a blockchain-based transaction which is
analogous to performing a transaction. Blockchain-based transactions
involve commercial interactions. As such, claim 1 recites a certain method
of organizing human activity in the form of a fundamental economic
practice. Guidance, 84 Fed. Reg. at 52.
Also, we find the steps of receiving, generating, and transmitting data
constitute “analyzing information by steps people go through in their minds,
or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category.” Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016); see also buySAFE, Inc.
v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (claims directed to
certain arrangements involving contractual relations are directed to abstract
ideas). Thus, we find that claim 1 recites the judicial exception of a method
of organizing human activity and in the alternative, a mental process.
Turning to the second prong of the “directed to test”, claim 1 requires
a “processing device” and a “payment network.” The recitation of these
computer and network components do not impose “a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
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to monopolize the judicial exception.” Guidance 84 Fed. Reg. at 53. We
find no indication in the Specification, nor does Appellant direct us to any
indication, that the operations recited in claim 1 invokes any inventive
programming, requires any specialized computer hardware or other
inventive computer components, i.e., a particular machine, or that the
claimed invention is implemented using other than generic computer
components to perform generic computer functions. See DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter
Alice, there can remain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention of claim 1 effects a transformation or reduction of a particular
article to a different state or thing. Nor do we find anything of record, short
of attorney argument, that attributes any improvement in computer
technology and/or functionality to the claimed invention or that otherwise
indicates that the claimed invention integrates the abstract idea into a
“practical application,” as that phrase is used in the revised Guidance. See
Guidance, 84 Fed. Reg. at 55.
In this regard, the recitation does not effect an improvement in the
functioning of the processing device or the payment network, does not recite
a particular machine or manufacture that is integral to the claim, and does
not transform or reduce a particular article to a different state or thing. Id.
Thus, claim 1 is directed to judicial exceptions that are not integrated into a
practical application, and thus claim 1 is directed to “abstract ideas.”
Turning to the second step of the Alice analysis, because we find that
claim 1 is directed to abstract ideas, the claim must include an “inventive
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concept” in order to be patent-eligible, i.e., there must be an element or
combination of elements that is sufficient to ensure that the claim in practice
amounts to significantly more than the abstract idea itself. See Alice, 573
U.S. at 217–18 (alteration in original) (quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
The introduction of computer and network components into the claim
does not alter the analysis at Alice step two.
[T]he mere recitation of a generic computer cannot
transform a patent-ineligible abstract idea into a
patent-eligible invention. Stating an abstract idea
“while adding the words ‘apply it’” is not enough
for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological
environment.’” Stating an abstract idea while
adding the words “apply it with a computer”
simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a
computer amounts to a mere instruction to
“implemen[t]” an abstract idea “on . . . a
computer,” that addition cannot impart patent
eligibility. This conclusion accords with the
preemption concern that undergirds our § 101
jurisprudence. Given the ubiquity of computers,
wholly 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.”
Alice, 573 U.S. at 223 (alterations in original) (citations omitted).
Instead, “the relevant question is whether the claim here does more
than simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Id. at 225. It does not.
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Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
trading industry. See Elec. Power Grp., 830 F.3d at 1354; see also In re
Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.
Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming”). In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, “even if a process of
collecting and analyzing information is ‘limited to particular content’ or a
particular ‘source,’ that limitation does not make the collection and analysis
other than abstract.” SAP Am. Inc. v. InvestPic, LLC, 890 F.3d 1016, 1022
(Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim 1 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
access/display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (sequence of receiving, selecting, offering for exchange, display,
allowing access, and receiving payment recited an abstraction), Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (holding that sequence of data retrieval, analysis, modification,
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generation, display, and transmission was abstract), Two-Way Media Ltd. v.
Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
(holding sequence of processing, routing, controlling, and monitoring was
abstract). The ordering of the steps is, therefore, ordinary and conventional.
Claim 1 does not, for example, purport to improve the functioning of
the computer itself. As we stated above, the claim does not effect an
improvement in any other technology or technical field. The Specification
spells out different generic equipment and parameters that might be applied
using this concept and the particular steps such conventional processing
would entail based on the concept of information access under different
scenarios. In this regard, the Specification discloses that the disclosed
subject matter can be practiced by a general purpose processor device. (See,
e.g., Spec. ¶¶ 138, 141). Thus, claim 1 at issue amounts to nothing
significantly more than instructions to apply the abstract ideas using some
unspecified, generic computer. Under our precedents, that is not enough to
transform an abstract idea into a patent-eligible invention. See Alice, 573
U.S. at 226.
We have reviewed all the arguments (Appeal Br. 5–12; Reply Br. 23)
Appellant has submitted concerning the patent eligibility of the claims
before us that stand rejected under 35 U.S.C. § 101. We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of emphasis, we will address various
arguments in order to make individual rebuttals of same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the Examiner over-generalized the claims.
(Appeal Br. 5–6). Appellant’s argument is not persuasive because the
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Examiner’s characterization here, as discussed above, is fully consistent with
the Specification. That independent claim 1 includes more words than the
phrase the Examiner used to articulate the abstract idea to which the claim is
directed is an insufficient basis to persuasively argue that the claim language
has been mischaracterized or that the Examiner has otherwise failed to
consider all of the limitations of the claim. See Apple, Inc. v. Ameranth,
Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016).
We note that an abstract idea can generally be described at
different levels of abstraction. As the Examiner has done, the claimed
abstract idea could be described as authorization of a blockchain-
based transaction which is analogous to performing a transaction. It
could be described in other ways as Appellant has done on page 6 of
the Appeal Brief. But the abstract nature remains the same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the method and system of the present claims are
completely new and unique. To the extent Appellant maintains that the
limitations of claim 1 necessarily amount to “significantly more” than an
abstract idea because the claimed apparatus is allegedly patentable over the
prior art, Appellant misapprehends the controlling precedent. Although the
second step in the Alice/Mayo 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 [ineligible concept] itself.”’ Alice,
573 U.S. at 217. A novel and nonobvious claim directed to a purely abstract
idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S. at 90.
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We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the method and system of the claims result in a
technological system that has significant benefits. Appellant argues that by
adapting transaction messages to be able to convey the data necessary for
blockchain transactions, the more secure and faster communication
infrastructure traditionally used in standard payment transactions can be
leveraged. (Appeal Br. 7). However, this advantage flows from processing
a blockchain transaction using a payment network, which is the abstract idea
itself. Appellant does not explain, nor does the Specification discuss, how
the adaptation results in a technological advance in any network or computer
component; rather, the advance lies in using an existing network for faster,
equally secure transactions. See Spec. ¶¶3– 5. No matter how much of an
advance in the field of processing blockchain transactions claim 1 recites,
the advance lies entirely in the realm of abstract ideas, with no plausibly
alleged innovation in the non-abstract application realm.” SAP America,
Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). In addition,
none of the limitations recite implementation details for any of the steps, but
instead recite functional results to be achieved by any and all possible
means. Data reception, analysis and modification, and display are all
generic, conventional data processing operations which are themselves
abstract concepts awaiting implementation details.
We do not agree with Appellant that claim 1 recites a technical
solution to a technological problem that exists in the realm of blockchain
processing networks similar to the technical solution found eligible in DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014).
(Appeal Br. 6–7).
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In DDR Holdings, the Court evaluated the eligibility of claims
“address[ing] the problem of retaining website visitors that, if adhering to
the routine, conventional functioning of Internet hyperlink protocol,
would be instantly transported away from a host’s website after
‘clicking’ on an advertisement and activating a hyperlink.” DDR, 773 F.3d
at 1257. There, the Court found that the claims were patent eligible because
they transformed the manner in which a hyperlink typically functions to
resolve a problem that had no “pre-Internet analog.” Id. at 1258. The
Court cautioned, however, “that not all claims purporting to address
Internet-centric challenges are eligible for patent.” Id. For example, in
DDR Holdings the Court distinguished the patent-eligible claims at issue
from claims found patent-ineligible in Ultramercial. See DDR, 773 at
1258–59 (citing Ultramercial, 772 F.3d 7 0 9 , 715–16 (Fed. Cir. 2014)).
As noted there, the Ultramercial claims were “directed to a specific
method of advertising and content distribution that was previously
unknown and never employed on the Internet before.” Id. at 1258
(quoting Ultramercial, 772 F.3d at 715–16). Nevertheless, those claims
were patent ineligible because they “merely recite[d] the abstract idea of
‘offering media content in exchange for viewing an advertisement,’ along
with ‘routine additional steps such as updating an activity log, requiring a
request from the consumer to view the ad, restrictions on public access, and
use of the Internet.’” Id.
Appellant’s asserted claim 1 is analogous to claims found ineligible
in Ultramercial and distinct from claims found eligible in DDR Holdings.
The ineligible claims in Ultramercial recited “providing [a] media product
for sale at an Internet website;” “restricting general public access to said
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media product;” “receiving from the consumer a request to view [a]
sponsor message;” and “if the sponsor message is an interactive message,
presenting at least one query to the consumer and allowing said consumer
access to said media product after receiving a response to said at least one
query.” Ultramercial, 772 F.3d at 712. Appellant’s asserted claim 1
recites authorization of blockchain transactions using the routine steps of
receiving, analyzing, modifying, and transmitting data. This is the type of
Internet activity found ineligible in Ultramercial.
(Appeal Br. 7).
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 1 under 35 U.S.C. §101. We will also sustain the rejection as it is
directed to the remaining claims because Appellant has not argued the
separate eligibility of the remaining claims.

DOUBLE PATENTING REJECTION
Claims 1–20 are rejected under the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1–20
of copending Application No. 14/719,047, now U.S. Patent No. 9,870,562.
(Final Act. 6–7). The Examiner’s statement of this rejection in total is:
“Although the conflicting claims are not identical, they are not patentable
distinct from each other.” (Final Act. 7).
In evaluating obviousness-type double patenting, the Federal Circuit
has “endorsed an obviousness determination similar to, but not necessarily
the same as, that undertaken under 35 U.S.C. § 103 in determining the
propriety of a rejection for double patenting.” In re Braat, 937 F.2d 589,
592–93 (Fed. Cir. 1991). In making an obviousness-type double patenting
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rejection, the Examiner must show that a claimed invention is “a mere
variation of [the patented invention] . . . which would have been obvious to
those of ordinary skill in the relevant art . . . [and] there must be some clear
evidence to establish why the variation would have been obvious which can
properly qualify as ‘prior art.”’ In re Kaplan, 789 F.2d 1574, 157–80 (Fed.
Cir. 1986). Accordingly, in Kaplan, the Federal Circuit reversed an
obviousness-type double patenting rejection “because there [was] no proper
evidence to show that the claim [was] for a mere obvious variation of what
is claimed in the Kaplan patent relied on to support the rejection.” Id. at
1581. We will not sustain this rejection because the Examiner has failed to
provide evidence that the claim differences between the instant claims are
mere obvious variations of what is claimed in the ’562 patent.

REJECTION UNDER 35 U.S.C. §103(A)
The Examiner rejects claims 1–20 under 35 U.S.C. §103(a) as being
unpatentable over Lingappa, Feeney, and Bacastow. (Final Act. 9-10). We
agree with the Examiner’s findings of fact in regard to the teachings of the
prior art and adopt same as our own. (Final Act. 9).
We are not persuaded of error on the part of the Examiner in making
this rejection by Appellant’s argument that there is no disclosure in the prior
art of the generation of a transaction messages, let alone the use of payment
rails or payment networks for blockchain transaction. (Appeal Br. 13–14).
Specifically, Appellant argues that Lingappa makes no reference to
traditional payment transaction processing systems, Bacastow fails to
disclose a transaction message, and Feeney fails to disclose a traditional
payment transaction processing system. These arguments relate to what
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each reference teaches on an individual basis. Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co. Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986). In this
regard, we note that the Examiner relies on Lingappa for disclosing a
transaction message, Feeney for disclosing a transaction message with the
network identifier or an encoded value based on the network identifier, and
Bacastow for disclosing using a traditional payment transaction for
blockchain or crypto currency transactions. (Final Act. 9–10).
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that one would not combine Bacastow with Lingappa
because “Bacastow appears to equate a Bitcoin account number with a
traditional transaction number, despite the non-existence of such a value and
inability for a blockchain transaction to be conducted with a single number.
Thus a person having ordinary skill in the art would not find it obvious to
combine Bacastow with Lingappa and Feeney. . . .” (Appeal Br. 15). This
argument is not persuasive because it is based on Attorney argument rather
than evidence of record. It is well established that “[a]ttorney's argument in
a brief cannot take the place of evidence.” In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (“The fatal defect in this argument is that there is no
competent evidence which would negate the board's conclusion . . .
Attorney's argument in a brief cannot take the place of evidence.”); see also
Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977) (“[T]he argument
that... is unsupported by evidence. Argument of counsel cannot take the
place of evidence lacking in the record.”).
In view of the foregoing, we will sustain the Examiner’s rejection of
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claim 1 under 35 U.S.C. §103(a). We will sustain the rejection as it is
directed to the remaining claims because Appellant does not argue the
separate patentability of the remaining claims.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1–20 under
35 U.S.C. § 101.
We conclude that the Examiner did err in rejecting claims 1–20 on the
ground of nonstatutory obviousnesss-type double patenting.
We conclude that the Examiner did not err in rejecting claims 1–20
under 35 U.S.C. §103(a).

CONCLUSION
Claims
Rejected 35 U.S.C. § References Affirmed Reversed
1-20 101 1-20
1-20 Nonstatutory
obvious-type
double
patenting
1-20
1–20 103 Lingappa, Feeney, and
Bacastow
1–20
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