Michael Sarver

Patent Trials and Appeals Board

Aug 30, 2019

13573300 - (D) (P.T.A.B. Aug. 30, 2019)

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.
13/573,300 09/10/2012 Michael Sarver A14230US(99905.2) 2024
22920 7590 08/30/2019
GARVEY, SMITH & NEHRBASS, PATENT ATTORNEYS, L.L.C.
LAKEWAY 3, SUITE 3290
3838 NORTH CAUSEWAY BLVD.
METAIRIE, LA 70002
EXAMINER
MILEF, ELDA G
ART UNIT PAPER NUMBER
3694
MAIL DATE DELIVERY MODE
08/30/2019 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL SARVER
____________

Appeal 2018-007060
Application 13/573,3001
Technology Center 3600
____________

Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
NABEEL U. KHAN, Administrative Patent Judges.

KHAN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 38, 58, and 60–77.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellant identifies Assessure Systems, LLC as the real-party-in-interest.
App. Br. 3.
2 Claims 1–37, 39–57, and 59 have been cancelled. See App. Br. 27–37
(Claims App’x).
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BACKGROUND
THE INVENTION
Appellant describes its invention as follows:
A tax fraud finder network is provided with a device for
calculating a score based on information provided to government
agencies by using multiple collections of information. An HEV
algorithm uses mismatches in different sets of collections to
arrive at a display and edit score. A report is generated and sent
to local government agencies to find violations.
Abstract.
Exemplary independent claim 38 is reproduced below.
38. A method of using an operational computing network to
generate and deliver a report of registered tax exempt users with
a homestead exemption with a score indicating a likelihood that
the users do not reside in a home purported to be a primary
residence, said method having the following steps:
a) providing a provider microprocessor for conducting a
search of databases in order to retrieve fraud tracking records;
b) providing a homestead exemption software program
that is executable by the provider microprocessor;
c) receiving a listing of registered tax exempt users from a
Tax Assessor;
d) preparing, by the provider microprocessor, a homestead
exemption provider database from the listing including a first
collection of information including a name and home address for
each registered tax exempt user;
e) acquiring a second collection of information about the
registered tax exempt users and expanding, by the provider
microprocessor, the homestead exemption provider database to
associate the second collection of information to the registered
tax exempt users;
f) analyzing, by the provider microprocessor executing the
homestead exemption software program, the first and second
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collections of information for a first plurality of factors, where
each of the first plurality of factors has a corresponding code and
point value;
g) associating, by the provider microprocessor executing
the homestead exemption software program, the corresponding
codes and point values of the first plurality of factors to the
registered tax exempt users based on the analysis of step f),
wherein each of the registered tax exempt users is associated with
at least one code and point value corresponding to at least one of
the first plurality of factors;
h) acquiring a third collection of information about the
registered tax exempt users from a voter registration database
and expanding, by the provider microprocessor, the homestead
exemption provider database with the third collection of
information;
i) analyzing, by the provider microprocessor executing the
homestead exemption software program, either the first or
second collections of information in view of the third collection
of information for a second plurality of factors, where each of the
second plurality of factors has a corresponding code and point
value;
j) associating, by the provider microprocessor executing
the homestead exemption software program, the corresponding
codes and point values of the second plurality of factors to the
registered tax exempt users based on the analysis of step i);
k) acquiring a fourth collection of information about the
registered tax exempt users from a department of motor vehicles
database and expanding, by the provider microprocessor, the
homestead exemption provider database with the fourth
collection of information;
l) analyzing, by the provider microprocessor executing the
homestead exemption software program, either the first or
second collections of information in view of the fourth collection
of information for a third plurality of factors, where each of the
third plurality of factors has a corresponding code and point
value;
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m) associating, by the provider microprocessor executing
the homestead exemption software program, the corresponding
codes and point values of the third plurality of factors to the
registered tax exempt users based on the analysis of step l);
n) acquiring a fifth collection of information about the
registered tax exempt users from a state income tax database and
expanding, by the provider microprocessor, the homestead
exemption provider database with the fifth collection of
information;
o) analyzing, by the provider microprocessor executing
the homestead exemption software program, either the first or
second collections of information in view of the fifth collection
of information for a fourth plurality of factors, where each of the
fourth plurality of factors has a corresponding code and point
value;
p) associating, by the provider microprocessor executing
the homestead exemption software program, the corresponding
codes and point values of the fourth plurality of factors to the
registered tax exempt users based on the analysis of step o);
q) acquiring a sixth collection of information about the
registered tax exempt users from a Federal Income Tax database
and expanding, by the provider microprocessor, the homestead
exemption provider database with the sixth collection of
information;
r) analyzing, by the provider microprocessor executing the
homestead exemption software program, either the first or
second collection of information in view of the sixth collection
of information for a fifth plurality of factors, where each of the
fifth plurality of factors has a corresponding code and point
value;
s) associating, by the provider microprocessor executing
the homestead exemption software program, the corresponding
codes and point values of the fifth plurality of factors to the
registered tax exempt users based on the analysis of step r);
t) calculating, by the provider microprocessor executing
the homestead exemption software program, a HEV score with
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the point values associated with each of the registered tax exempt
users and associating, by the provider microprocessor executing
the homestead exemption software program, the HEV score to
the registered tax exempt user;
u) wherein the HEV score indicates the likelihood that the
registered tax exempt user does not reside in the home purported
to be the primary residence;
v) analyzing the codes associated with each of the
registered tax exempt users for a plurality of associated code
combinations, wherein a multiplier value is associated with a
registered tax exempt user having at least one of the plurality of
associated code combinations;
w) applying, by the provider microprocessor executing the
homestead exemption software program, the multiplier value to
the HEV score of the registered tax exempt user having at least
one of the plurality of associated code combinations;
x) generating, by the provider microprocessor executing
the homestead exemption software program, a list of registered
tax exempt users with HEV scores indicating a likelihood of a
homestead exemption violation; and
y) providing the report, prepared by the provider
microprocessor executing the homestead exemption software
program, including the HEV scores for the registered tax exempt
users on the list, via electronic transfer to the Tax Assessor,
wherein death of a registered tax exempt user and a different
address or addresses for the registered tax exempt user are
weighted the most heavily in the HEV scores.
REJECTION
Claims 38, 58, and 60–77 stand rejected under 35 U.S.C. § 101. Final
Act. 2–6.
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DISCUSSION
Legal Principles
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with 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, 69 (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
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rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); 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
Supreme Court held that “a claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” 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 Supreme 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. (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 is “directed to” 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. (quoting Mayo, 566 U.S. at 77).
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“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). 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); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
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) 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 Guidance.
Guidance Step 2A - Whether the Claims are
Directed to a Judicial Exception
First Prong of Step 2A
The Examiner summarizes claim 38 as being directed to “analyzing
information regarding registered tax exempt users of homestead exemption
law in order to locate violations, and generating a report based on analysis.”
Final Act. 3; Ans. 3. The Examiner determines that, as summarized, the
claim “corresponds to concepts identified as abstract ideas by the courts,
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such as collecting and analyzing information to detect misuse and notifying
a user when misuse is detected.” Final Act. 4 (citing FairWarning IP, LLC
v. Iatric Systems, Inc., 839 F.3d 1089 (Fed. Cir. 2016)); see also Ans. 3–4).
The Examiner further determined that the concepts “relate to an idea of itself
standing alone . . . as well as a mental process (thinking) that ‘can be
performed in the human mind, or by a human using pen and paper.’” Final
Act. 4.
Appellant alleges “claims 38, 58, 60–77 are not directed to the
abstract idea of analyzing information regarding registered tax exempt users
of homestead exemption law in order to locate violations, and generating a
report based on analysis.” App. Br. 22. Appellant further argues “the claims
claim both an embodiment of hardware (a microprocessor) and unique
software that is significantly more than an abstract idea.” Id.
Under the first prong of step 2A of the Guidance, we determine if the
claims recite an abstract idea. Claim 38 recites, inter alia:
• “c) receiving a listing of registered tax exempt users from a Tax
Assessor;”
• “d) preparing . . . a homestead exemption provider database
from the listing including a first collection of information
including a name and home address for each registered tax
exempt user;”
• “e) acquiring a second collection of information about the
registered tax exempt users and expanding . . . the homestead
exemption provider database to associate the second collection
of information to the registered tax exempt users;”
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• “f) analyzing . . .the first and second collections of information
for a first plurality of factors, where each of the first plurality of
factors has a corresponding code and point value;”
• “g) associating . . . the corresponding codes and point values of
the first plurality of factors to the registered tax exempt users
based on the analysis of step f), wherein each of the registered
tax exempt users is associated with at least one code and point
value corresponding to at least one of the first plurality of
factors;”
• “h) acquiring a third collection of information about the
registered tax exempt users from a voter registration database
and expanding . . . the homestead exemption provider database
with the third collection of information;”
• “i) analyzing . . . either the first or second collections of
information in view of the third collection of information for a
second plurality of factors, where each of the second plurality
of factors has a corresponding code and point value;”
• “j) associating . . . the corresponding codes and point values of
the second plurality of factors to the registered tax exempt users
based on the analysis of step i);”
• “k) acquiring a fourth collection of information about the
registered tax exempt users from a department of motor
vehicles database and expanding . . . the homestead exemption
provider database with the fourth collection of information;”
• “l) analyzing . . . either the first or second collections of
information in view of the fourth collection of information for a
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third plurality of factors, where each of the third plurality of
factors has a corresponding code and point value;”
• “m) associating . . . the corresponding codes and point values of
the third plurality of factors to the registered tax exempt users
based on the analysis of step l);”
• “n) acquiring a fifth collection of information about the
registered tax exempt users from a state income tax database
and expanding . . . the homestead exemption provider database
with the fifth collection of information;”
• “o) analyzing . . . either the first or second collections of
information in view of the fifth collection of information for a
fourth plurality of factors, where each of the fourth plurality of
factors has a corresponding code and point value;”
• “p) associating . . . the corresponding codes and point values of
the fourth plurality of factors to the registered tax exempt users
based on the analysis of step o);”
• “q) acquiring a sixth collection of information about the
registered tax exempt users from a Federal Income Tax
database and expanding . . . the homestead exemption provider
database with the sixth collection of information;”
• “r) analyzing . . . either the first or second collection of
information in view of the sixth collection of information for a
fifth plurality of factors, where each of the fifth plurality of
factors has a corresponding code and point value;”
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• “s) associating . . . the corresponding codes and point values of
the fifth plurality of factors to the registered tax exempt users
based on the analysis of step r);”
• “t) calculating . . . a HEV score with the point values associated
with each of the registered tax exempt users and associating . . .
the HEV score to the registered tax exempt user; “
• “u) wherein the HEV score indicates the likelihood that the
registered tax exempt user does not reside in the home
purported to be the primary residence;”
• “v) analyzing the codes associated with each of the registered
tax exempt users for a plurality of associated code
combinations, wherein a multiplier value is associated with a
registered tax exempt user having at least one of the plurality of
associated code combinations;”
• “w) applying . . . the multiplier value to the HEV score of the
registered tax exempt user having at least one of the plurality of
associated code combinations;”
• “x) generating . . . a list of registered tax exempt users with
HEV scores indicating a likelihood of a homestead exemption
violation;” and
• “y) providing the report, . . . including the HEV scores for the
registered tax exempt users on the list, via electronic transfer to
the Tax Assessor, wherein death of a registered tax exempt user
and a different address or addresses for the registered tax
exempt user are weighted the most heavily in the HEV scores.”
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Essentially the claims require acquiring data records of activity
regarding registered tax exempt users of homestead exemption law,
calculating scores regarding the acquired data records which identify a
likelihood of fraudulent behavior, and generating a report based on the
calculated scores. As such, the claims are analogous to those claims the
Federal Circuit has found to be directed to abstract idea. For example, the
Federal Circuit has explained in various cases that steps involving collecting,
analyzing, and categorizing information are drawn to an abstract idea. See
Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 1353 (Fed. Cir.
2016) (“The focus of the asserted claims . . . is on collecting information,
analyzing it, and displaying certain results of the collection and analysis”);
FairWarning, 839 F.3d at 1093 (“Specifically, the claims here are directed
to collecting and analyzing information to detect misuse and notifying a user
when misuse is detected”); Cyberfone Systems, LLC v. CNN Interactive
Group, Inc., 558 Fed. Appx. 988, 992 (“using categories to organize, store,
and transmit information is well-established. Here, the well-known concept
of categorical data storage, i.e., the idea of collecting information in
classified form, then separating and transmitting that information according
to its classification, is an abstract idea that is not patent-eligible”).
Because the claims involve collecting, analyzing, and categorizing
information, the claims are directed to “observation, evaluation, judgment,
and opinion,” which are mental processes. Guidance 84 Fed. Reg. at 52; see
also Elec. Power, 830 F.3d at 1355 (“[M]erely selecting information, by
content or source, for collection, analysis, and display does nothing
significant to differentiate a process from ordinary mental processes, whose
implicit exclusion from § 101 undergirds the information-based category of
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abstract ideas”). Under the Guidance, mental processes are identified as a
category of abstract ideas, thus we determine that the claims recite an
abstract idea. Guidance 84 Fed. Reg. at 52.
Appellant argues the claims “organizes complex amounts of data into
a device profile,” and further argues “[t]he level of complexity performed by
the [claimed] invention could not easily be replaced with human effort or a
generic computer component.” App. Br. 22. This argument is not
persuasive because the argued increase in speed and capability comes from
the capabilities of a general-purpose computer that includes a
microprocessor, rather than the claimed method itself. See Bancorp Servs.,
L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed.
Cir. 2012) (“[T]he 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.”).
Second Prong of Step 2A
Next we determine whether the claims recite a practical application of
the recited judicial exception. Here we look to see if, for example, (i) any
additional elements of the claims reflects an improvement in the functioning
of a computer or to another technological field, (ii) an application of the
judicial exception with, or by use of, a particular machine, (iii) a
transformation or reduction of a particular article to a different state or thing,
or (iv) a use of 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(a)–(c), (e)–(h).
We find none of the aforementioned factors apply to claim 38. In
particular, we agree with the Examiner that the additional elements (e.g., “a
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provider microprocessor for conducting a search of databases to retrieve
fraud tracking records,” “a software program that is executable by the
provider microprocessor,” “a homestead exemption provider database”) are
recited at a high level of generality and are further recited as performing
generic computer functions routinely used in computer applications. See
Final Act. 4–5.
Appellant argues the claims result in an improvement to the
technology of filtering content in databases to allow assessors to focus on
properties that are most likely to have incorrect homestead exemptions. See
App. Br. 23. Appellant’s argument is not persuasive. We agree with the
Examiner that Appellant’s argued improvement is an improvement to a
problem (i.e., confirming that taxpayers are validly receiving homestead
exemption benefits) that is financial in nature, rather than technical. See
Ans. 4 (citing Spec. 3, 7).
Appellant further analogizes the claims to those in McRO, Inc. v.
Bandai Namco Games America Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016).
See App. Br. 22. This argument is not persuasive either. In McRO, the rules
were “rendered in a specific way: as a relationship between sub-sequences of
phonemes, timing, and the weight to which each phoneme is expressed
visually at a particular timing . . . .” McRO, 837 F.3d at 1315. It was the
“structure of the limited rules” that were “limited to a specific process for
automatically animating characters using particular information and
techniques” that led the Federal Circuit to conclude that the claims were
“directed to a patentable, technological improvement.” McRO, 837 F.3d at
1316. Here, Appellant fails to identify any rules recited in the claims that
limit the claimed method in any way that improves technology.
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Appellant further argues the pending claims are similar to Example 34
of the Patent Office’s Subject Matter Eligibility Examples: Business
Methods, issued December 15, 2016. See App. Br. 24. We agree with the
Examiner that this argument is not persuasive, because: Appellant has failed
to persuasively establish how the claims provide an unconventional and non-
generic combination of known elements that results in an improvement in
the underlying technology. See Ans. 9.
Appellant also argues the claims include “the tangible steps of
receiving a listing of tax exempt users from a Tax Assessor, displaying the
steps of the claims on review screens, engaging in manual reviews based on
the HEV score, generating lists of tax exempt users, using the lists to prepare
reports, and electronically sending reports to the Tax Assessor.” App.
Br. 23. We agree with the Examiner that this argument is not persuasive, as
tangibility is not a factor in the eligibility analysis under the Mayo/Alice
framework. See Ans. 9.
Appellant further analogizes the claims to those in Diamond v. Diehr,
450 U.S. 175, 187 (1981). See App. Br. 25. This argument is not persuasive
either. In Diehr, the court determined the claims were not directed to an
abstract idea (i.e., a mathematical formula) but instead were directed to a
physical process of curing synthetic rubber that employed a mathematical
formula. See Diehr, 450 U.S. at 187. In contrast, there is no similar
physical process recited in the claims. Instead, as previously described, the
claims recite a method of collecting, analyzing, and categorizing
information, which is a mental process, and thus, is an abstract idea.
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Guidance Step 2B - Whether the Claims
Provide an Inventive Concept
In our analysis under step 2B, we look to see if the claims add
limitations beyond the judicial exception that are not “well-understood,
routine, conventional” in the field (see MPEP § 2106.05(d)). Analyzing the
claim limitations individually, and as an ordered whole, we determine that
the claim does not add any limitations beyond the recited mental processes
that add significantly more to the judicial exception. More particularly, and
consistent with the Examiner’s findings, the claims recite a
“microprocessor,” “software program” and “database,” where the recited
elements are recited at a high level of generality and are recited as
performing generic computer functions routinely used in computer
applications (e.g., conducting a search of databases, preparing a database
including a collection of information, acquiring collections of information,
analyzing the collected information, associating the analyzed information,
calculating a score, generating a list of values, and providing a report
including the generated list of values). See Final Act. 4–5; see also Ans. 7.
Further, Appellant’s Specification similarly describes the claimed
“microprocessor,” “software program” and “database,” generally as
performing routine computer functions. See e.g., Spec. 7, 28–29. Thus, we
agree with the Examiner’s findings that the claims do not add limitations
that amount to significantly more than the judicial exception.
Appellant argues the claims provide significantly more than “well-
understood, routine, and conventional activities,” citing the Declaration of
the inventor, Michael Sarver, submitted along with Appellant’s
Supplemental Response, filed on July 19, 2017, during prosecution of the
instant application. See App. Br. 22. We agree with the Examiner that
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Appellant’s Declaration is not persuasive, as the argued improvement of the
claimed invention (i.e., increased speed in processing disparate sets of data)
comes from the capabilities of a general-purpose computer that includes a
microprocessor, rather than the claimed method itself. See Ans. 5–6.
Conclusion
For the aforementioned reasons, we sustain the Examiner’s rejection
of independent claim 38. We also sustain the Examiner’s rejection of claims
58 and 60–77, for which Appellant does not offer any separate arguments for
patentability.
DECISION
The Examiner’s rejection of claims 38, 58, and 60–77 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended. See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED