My World, Inc.

Patent Trials and Appeals Board

Apr 22, 2020

14611995 - (D) (P.T.A.B. Apr. 22, 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.
14/611,995 02/02/2015 Kenneth J. Ouimet 2734.0023 5342
84278 7590 04/22/2020
PATENT LAW GROUP: Atkins and Associates P.C.
123 W. Chandler Heights Road, Unit 12535
Chandler, AZ 85248
EXAMINER
RAMPHAL, LATASHA DEVI
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
04/22/2020 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):
main@plgaz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KENNETH J. OUIMET
__________________

Appeal 2019-005881
Application 14/611,995
Technology Center 3600
____________________

Before STEFAN STAICOVICI, JAMES P. CALVE, and
MICHAEL L. WOODS, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 26–45, which are all the pending claims.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies MYWORLD, INC. as the real party in interest. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Claims 26, 32, and 39 are independent. Claim 26 is reproduced
below.
26. A method of controlling communication over an
electronic network including a first computing system and a
second computing system in a virtual marketplace, comprising:
providing a database on the first computing system
including a first data structure to organize product information
corresponding to a plurality of products;
providing an electronic consumer agent on the first
computing system in electronic communication with a
consumer in the virtual marketplace;
providing a first electronic sales agent on the second
computing system in electronic communication with a first
seller in the virtual marketplace;
identifying an intent to buy using the electronic consumer
agent on the first computing system in the virtual marketplace;
transmitting the intent to buy to the first electronic sales
agent on the second computing system in the virtual
marketplace; and
creating a second data structure on the first computing
system to perform an electronic negotiation between the
electronic consumer agent on the first computing system and
the first electronic sales agent on the second computing system
in the virtual marketplace.

REJECTIONS
Claims 26–45 are rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
Claims 26–45 are rejected under 35 U.S.C. § 112(b) as being
indefinite.
Claims 26–45 are rejected as directed to a judicial exception under
35 U.S.C. § 101.

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Claims 26–28, 30–34, 36–41, and 43–45 are rejected under 35 U.S.C.
§§ 102(a)(1) and 102(a)(2) as anticipated by Rzevski (US 2006/0020565 A1,
pub. Jan. 26, 2006).
Claims 29, 35, and 42 are rejected under 35 U.S.C. § 103 as
unpatentable over Rzevski and Nickitas (US 2014/0279208 A1, pub. Sept.
18, 2014).
ANALYSIS
Claims 26–45 for Lack of Written Description
The Examiner determines that the limitations “a first data structure”
and “a second data structure” in independent claim 26 and “a data structure”
in independent claims 32 and 39 lack adequate written description. See
Final Act. 5–6.
The “first data structure” in claim 26 is part of a database on the first
computing system used “to organize product information corresponding to a
plurality of products.” Appeal Br. 58 (Claims App.). The “second data
structure” in claim 26 and “data structure” in claims 32 and 39 are created
“on the first computing system to perform an electronic negotiation between
the electronic consumer agent on the first computing system and the first
electronic sales agent on the second computing system in the virtual
marketplace.” Id. at 58–59, 60, 62–63 (Claims App.).
Appellant presents argument for “a first data structure” in claim 26,
and Appellant presents the same arguments for “a second data structure” in
claim 26 and “a data structure” in claims 32 and 39. See id. at 8–12. We
select claim 26 as representative because it recites a “first data structure” and
it also recites “a second data structure” with the same limitations as “a data
structure” in independent claims 32 and 39. See 37 C.F.R. § 41.37(c)(1)(iv).
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“a first data structure” (Claim 26)
The Examiner finds that the Specification describes central database
56 that stores data such as product and pricing information generated by
consumers, manufactures, and retailers, but it does not describe a “first data
structure.” Ans. 4–6. The Examiner interprets “data structure” as “a method
or format of organizing data in a computer such as an array, file table, linked
lists, stack, queues, trees, and graphs” whereas “a database is a collection of
data that is stored in a computer and provides access to the data.” Id. at 7
(“A person of ordinary skill in the art would not assume that the mere
disclosure of a database also discloses a data structure when there is no
description of a data structure in the written description.”). The Examiner
also determines that the description of algorithms and tools used to structure
and organize data into the central database is not a “data structure.” Id.
Appellant contends that a database is supported by central database 56
described in paragraphs 30 and 31, and Figure 3 of the application. Appeal
Br. 8. Appellant argues that central database 56 has a first data structure that
stores product and pricing information, consumer generated data, retailers,
and manufacturers, and store name, location, and hours in categories for the
products, attributes of the products, separate prices for the products, and
relationships between the products. Id. (“In particular, the store, product,
and price information (data) is structured and organized into central database
56, see paragraph [0031] of the subject application. . . . [A] person skilled in
the art would understand from the written description that central database
56 has a first data structure to store the above product content.”). Appellant
also argues that “the store, product, and price information (data) is structured
and organized (structure) into central database 56.” Reply Br. 1–2.
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The Patent Laws state that “[t]he specification shall contain a written
description of the invention.” 35 U.S.C. § 112(a). The written description
must reasonably convey to a skilled artisan that the inventor had possession
of the claimed subject matter as of the filing date. Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (citations omitted). The
test requires an objective inquiry into the four corners of the specification
from the perspective of a person of ordinary skill in the art. Id. The written
description requirement does not require the claimed subject matter to be
described identically. Id. at 1352. But, “[t]he appearance of mere indistinct
words in a specification or a claim, even an original claim, does not
necessarily satisfy” the written description requirement if it does not put
others on notice of the scope of the claimed invention and demonstrate
possession of that invention. Enzo Biochem, Inc. v. Gen-Probe Inc., 323
F.3d 956, 968 (Fed. Cir. 2002).
The Examiner and Appellant agree that the term “data structure” is
not used in the Specification or original disclosure. See Final Act. 6; Appeal
Br. 8. The Specification does describe how “[s]ervice provider 52 includes
category management algorithms and tools that structure and organize the
store, product, and price information into central database 56.” Spec. ¶ 31.
Appellant argues that this disclosure provides written description
support for “a first data structure” in claim 26. See Appeal Br. 8; Reply Br.
1–2. We appreciate the Examiner’s position that a “data structure” may be
understood in the art to include formats such as “an array, file, table, linked
lists, stack, queues, trees, and graphs.” Ans. 7. Appellant does not traverse
this finding by the Examiner. Instead, Appellant essentially argues that a
“data structure” as used in the claim should be interpreted more broadly.
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The Examiner takes the position that organizing and structuring data
into a database using algorithms and tools is not a data structure. Ans. 7.
An ordinary meaning of “data structure” is “[t]he organization of
stored data or records in a regular or characteristic way, such as in an array,
tree, list, queue, or stack.” Academic Press Dictionary of Science and
Technology, http://search.credoreference.com/content/entry/apdst/data_
structure/0 (last viewed Apr. 2, 2020). Although the Specification does not
describe an array, file, table, linked lists, stack, queues, trees, graphs, or
other data structure, the Specification does describe “category management
algorithms and tools that structure and organize” store, product, price
information data Spec. ¶ 31. Other definitions of “data structure” include:
Data structure, way in which data are stored for efficient
search and retrieval. Different data structures are suited for
different problems. Some data structures are useful for simple
general problems, such as retrieving data that has been stored
with a specific identifier. For example, an online dictionary can
be structured so that it can retrieve the definition of a word. On
the other hand, specialized data structures have been devised to
solve complex specific search problems.

The simplest data structure is the one-dimensional (linear) array, in
which stored elements are numbered with consecutive integers and
contents are accessed by these numbers. Data items stored
nonconsecutively in memory may be linked by pointers (memory
addresses stored with items to indicate where the “next” item or items
in the structure are located). Many algorithms have been developed
for sorting data efficiently; these apply to structures residing in main
memory and also to structures that constitute information systems and
databases. More-complex data structures may incorporate elements of
simpler data structures.

Britannica, https://www.britannica.com/technology/data-structure (last
viewed Apr. 2, 2020).
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Definition - What does Data Structure mean?
Data structure refers to methods of organizing units of data
within larger data sets. Achieving and maintaining specific data
structures help improve data access and value. Data structures
also help programmers implement various programming tasks.

Techopedia, http://www.techopedia.com/definition/1149/data-structure (last
viewed Apr. 13, 2020).
The Specification’s description of using algorithms to structure and
organize store, product, and price information into central database 56 is
consistent with Brittanica’s definition describing the use of algorithms to
sort data efficiently and to apply these algorithms to structures that constitute
information systems and databases as described in Appellant’s Specification.
It also is consistent with Techopedia’s definition that a data structure can
organize data within larger data sets, which could include a database.
We also consider the prior art of record cited by the Examiner in the
rejections that are under review. For example, Rzevski describes shopping
agents as having data structures built into the agent body and demand agents
creating a “‘property–value’ data structure table.” Rzevski ¶¶ 26, 28, 82, 83,
99, 107, Figs. 12, 14. Rzevski evidences an understanding in the art that a
data structure is described to convey its structure and function. Rzevski also
describes accessing the data structures in an agent’s database. See id. ¶ 83.
This teaching indicates that a data structure may be included in a database to
organize data in tables and the like.
Based on the record before us, we determine that the Specification
provides a written description sufficient to convey reasonably to a skilled
artisan that Appellant had possession of a “data structure.” Thus, we do not
sustain the rejection of claim 26 or its dependent claims 27–31.
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“a second data structure” (Claim 26) / “a data structure” (Claims 32, 39)
The “second data structure” of claim 26 and “data structure” of claims
32 and 39 is created on the first computing system “to perform an electronic
negotiation between the electronic consumer agent on the first computing
system and the first electronic sales agent on the second computing system
in the virtual marketplace.” The Examiner finds the Specification does not
describe a second data structure/data structure created on a first computing
system to perform an electronic negotiation. Final Act. 6; Ans. 5–7.
We agree with Appellant that the Specification describes an electronic
negotiation between an electronic consumer agent and a first electrical sales
agent in a virtual marketplace. However, the Specification does not describe
a second data structure/data structure that is created to perform this activity.
The term “second data structure” or “data structure” is not used in the
Specification. Intelligent electronic consumer and sales agents access data
in databases and computer systems to perform electronic negotiations as
described in paragraphs 30–32 and 40–55 of the Specification. See Appeal
Br. 9 (citing Spec. ¶¶ 31, 43–55). However, there is no description of this
data being organized into a “data structure.” Nor is there a description of a
data structure being used to perform electronic negotiations as claimed. The
Specification does not describe the data being used in any form to perform
electronic negotiations as claimed.
Instead, service provider 52 provides access to comparative shopping
services and one-to-one negotiations with manufacturers and retailers. Spec.
¶ 30. Each member of commerce connects to service provider 102, which
provides intelligent personal agents that engage in one-to-one negotiations
with one another to find the best deals. Id. ¶¶ 40–42, Fig. 6.
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Consumer and sales agents perform electronic negotiations on behalf
of consumers, retailers, and manufacturers. Id. ¶¶ 47–50. Each member of
commerce uses application program interfaces (APIs) and control systems
112, 118 to update the negotiation strategy used by their intelligent personal
agents. Id. ¶ 50. Consumers can use apps, websites, and other computer
programs to access consumer agent 104 via the API to configure one-to-one
negotiations performed by consumer agent 104 on behalf of the consumer.
Id. ¶ 52. Retailers and manufacturers also use APIs for intelligent personal
agents to transfer information to and from service provider 102 regarding
deals negotiated and being negotiated by their agents and information about
consumers and retailers with whom they negotiated. Id. ¶¶ 53, 54.
Furthermore, service provider 102 hosts a web app that interfaces with
intelligent personal agents via an API to provide a dashboard or portal that
consumers, retailers, and manufacturers can access with personal intelligent
agents to control and evaluate the performance of their intelligent personal
agents. Id. ¶ 55. Consumers request product information about a seller from
service provider via consumer agent 104 using an API. Id. ¶ 60. Service
provider 102 also provides a virtual marketplace for one-to-one negotiation
services between consumers, retailers, and manufacturers over an electronic
network. Id. ¶ 61. However, we find no disclosure of “creating a second
data structure . . . to perform an electronic negotiation between the electronic
consumer agent . . . and electronic sales agent” as claimed.
Based on the disclosure in the Specification, a skilled artisan would
not understand Appellant to be in possession of this claimed subject matter.
Thus, we sustain the rejection of claims 26, 32, and 39 and their
dependent claims for lack of written description of this subject matter.
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Claims 26–45 as Being Indefinite
The Examiner determines that the claims are indefinite because it is
unclear how the second data structure in claim 26 and the data structure in
claims 32 and 39 are created to perform a negotiation between the multiple
agents as claimed. Final Act. 7–8. The Examiner interprets this limitation
according to its plain meaning to require that a second data structure “is
somehow created in an unknown manner on the first computing system.”
Ans. 9. The Examiner also determines that “using data from a data structure
does not equate to ‘creating a second data structure on the first computing
system to perform an electronic negotiation’” as claimed. Id. at 9–10.
We agree with Appellant that the Specification describes central
database 56 implemented as multiple databases across multiple computer
systems accessible by an API and an intelligent agent to perform electronic
negotiations (Appeal Br. 14); however, we find no description of a second
data structure created to perform the negotiations as recited in the claims.
Appellant also argues that the claims do not require the second data
structure itself to perform an electronic negotiation because the electronic
negotiation is between the electronic consumer agent on the first computing
system and the first electronic sales agent on the second computing system
using in part data from the second data structure. Id. at 14–15 (“[A] person
skilled in the art would understand from the subject specification that the
electronic negotiation is between the electronic consumer agent and first
electronic sales agent.”).
We agree with the Examiner that the plain meaning of the claims is
“creating” a second data structure in claim 26, or a data structure in claims
32 and 39, “to perform an electronic negotiation” between agents.
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The Patent Laws set forth the standard for indefiniteness by stating
that “[t]he specification shall conclude with one or more claims particularly
pointing out and distinctly claiming the subject matter which the applicant
regards as his invention.” 35 U.S.C. § 112, second paragraph.
For claims in a pending application that has not issued as a patent, “[a]
claim is indefinite when it contains words or phrases whose meaning is
unclear.” In re Packard, 751 F.3d 1307, 1310 (Fed. Cir. 2014) (alteration in
original); see Ex parte McAward, 2017 WL 3669566 at *2, Appeal 2015-
006416, slip op. at 11 (PTAB Aug. 25, 2017) (precedential) (same).
Packard, 751 F.3d at 1311 also held that:
[W]hen the USPTO has initially issued a well-grounded
rejection that identifies ways in which language in a claim is
ambiguous, vague, incoherent, opaque, or otherwise unclear in
describing and defining the claimed invention, and thereafter
the applicant fails to provide a satisfactory response, the
USPTO can properly reject the claim as failing to meet the
statutory requirements of § 112(b).

“[A] patent does not satisfy the definiteness requirement of § 112
merely because ‘a court can ascribe some meaning to a patent’s claims.’”
Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014)
(quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 911
(2014)). Rather, “[t]he claims, when read in light of the specification and
the prosecution history, must provide objective boundaries for those of skill
in the art.” Id. (citing Nautilus, 572 U.S. at 911 & n.8 (determining that an
indefiniteness problem exists “if the claim language might mean several
different things and no informed and confident choice is available among the
contending definitions” (internal quotation marks omitted))).

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Appellant agrees the Specification does not describe a data structure
that performs an electronic negotiation but argues the claim only requires the
data structure to be used to perform an electronic negotiation. Reply Br. 3;
Appeal Br. 14–15. This argument illustrates that the claim scope is unclear
because the claims recite creating a data structure to perform an electronic
negotiation, and the Specification does not describe this claimed process.
Thus, we sustain the rejection of claims 26, 32, and 39 as indefinite on
this ground and their respective dependent claims as well.
Claims 26–45 under 35 U.S.C. § 101
The Examiner determines that the claims recite methods of organizing
human activity and fundamental economic practices such as commercial
interactions and negotiations, social activities, transactions between people,
and creating contractual and business relationships between a buyer and
seller. Final Act. 9–11; Ans. 12–13. The Examiner finds that the limitations
of “providing a database,” “providing an electronic consumer agent” and “a
first electronic sales agent,” “identifying an intent to buy,” “transmitting an
intent to buy,” and “creating a second data structure” recite this abstract
idea. Ans. 12–13.
Appellant argues that “a significant purpose of claim 26 is to avoid (as
much as possible) the human involvement in the sales transaction, because
the human component introduces inefficiencies in the system.” Appeal Br.
21. Appellant also argues that the claimed process solves the problem of
retailers trying to optimize marketing strategies and consumers trying to
optimize prices and make good purchasing decisions by getting the right
product at the right price in the realm of computer networks and computer
technology. Id. at 24–25.
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Appellant further argues that “a specific process that improves the
functioning of a computer system is eligible subject matter if the process
taken as a whole is not conventional or well-known.” Id. at 24. Appellant
argues that identifying an intent to buy, transmitting the intent to buy, and
creating a second database structure are parts of what makes the claim as a
whole recite statutory subject matter because the electronic sales agent is
reacting to situations where the consumer has expressed an intent to buy so
that productive and efficient negotiations can proceed to complete the
purchase transaction. Id. at 26–27.
Applicable Legal Principles
Section 101 of the Patent Act states:
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.
35 U.S.C. § 101. This provisions contains an implicit exception: “Laws of
nature, natural phenomena, and abstract ideas are not patentable.” Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the elements of each claim, individually and
“as an ordered combination,” to determine if additional elements “‘transform
the nature of the claim’ into a patent-eligible application” by providing an
“inventive concept” to ensure the patent amounts to significantly more than
a patent on the ineligible concept. Id. at 217–18.
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The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). Under the Revised Guidance, to determine whether a
claim is “directed to” an abstract idea, we evaluate whether the claim recites
(1) any judicial exceptions, including certain groupings of abstract ideas
listed in the Revised Guidance (i.e., mathematical concepts, certain methods
of organizing human activities 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)).
See Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and also (2) does not
integrate that exception into a practical application, do we then consider
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. Id. at 56.
Step 1: Is Claim 26 Within a Statutory Category?
The Examiner correctly determines that claim 26 recites a method,
which is directed to the statutory category of a process under 35 U.S.C.
§ 101. Final Act. 9.
Step 2A, Prong 1: Does Claim 26 Recite a Judicial Exception?
Appellant presents similar arguments for independent claims 32 and
39 as for independent claim 26. Appeal Br. 19–41. Therefore, we select
claim 26 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).

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We agree with the Examiner that claim 26 recites certain methods of
organizing human activity, which the Revised Guidance enumerates as
fundamental economic practices, commercial interactions including sales
activities and managing personal behavior and relationships or interactions
between people. Revised Guidance, 84 Fed. Reg. at 52.
Steps of “providing a database . . . to organize product information
corresponding to a plurality of products;” “providing an electronic consumer
agent . . . in electronic communication with a consumer in the virtual
marketplace;” “providing a first electronic sales agent . . . in electronic
communication with a first seller in the virtual marketplace;” “identifying an
intent to buy using the electronic consumer agent,” “transmitting the intent
to buy to the first electronic sales agent,” and “creating a second data
structure . . . to perform an electronic negotiation between the electronic
consumer agent . . . and the first electronic sales agent . . . in the virtual
marketplace” recite this abstract idea.
The virtual marketplace provides a site for consumers, retailers, and
manufactures to engage in commercial transactions through their respective
electronic agents. The consumer agent is a personal shopping agent, and the
sales agent represents retailers and manufacturers. See Spec. ¶¶ 14, 61.
Steps of “identifying an intent to buy using the electronic consumer
agent” and “transmitting the intent to buy to the first electronic sales agent”
also recite this same abstract idea. Consumers express an “intent to buy” a
specific product or category, and retailers and manufacturers use their agents
to satisfy that intent to buy through negotiations. Id. ¶¶ 14, 55, 56, 61, 76.
The intent to buy of a consumer triggers a one-to-one negotiation among
retailers, manufactures, and others to satisfy the intent to buy. Id. ¶ 62.
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The final step of “creating a second data structure . . . to perform an
electronic negotiation between the electronic consumer agent on the first
computing system and the first electronic sales agent on the second
computing system in the virtual marketplace” recites further steps of this
abstract idea and commercial transaction, namely, the actual negotiations.
Appellant argues that “the Examiner fails to identify specific claim
limitations and explain why those claim limitations set forth an abstract
idea.” Appeal Br. 23. This argument is not persuasive as the Examiner has
identified each limitation of claim 26 that recites the abstract idea of certain
methods of organizing human activity and fundamental practice of shopping
negotiations. See Final Act. 9–10; Ans. 12–13. These findings comport
with the Revised Guidance. See Revised Guidance, 84 Fed. Reg. at 52.
The Examiner’s citation of court decisions that treat similar concepts
as abstract ideas (Final Act. 10–12) comports with the Revised Guidance’s
extraction and synthesis of key concepts identified by the courts as abstract
ideas in the groups discussed above (Revised Guidance, 84 Fed. Reg. at 52).
The claimed “intent to buy” simply indicates a consumer’s desire to
buy a product. A consumer expresses an intent to buy “with the click of a
button generated by a web browser plugin on the webpage of a product” or
“adds several items to a shopping list . . . by clicking a button.” Spec. ¶ 56.
A consumer may communicate an intent to buy via a computer or cell phone
for products via a shopping list, voice recognition technology, QR codes on
products, and a camera on a smartphone. Id. ¶¶ 68–72, Figs. 7, 9, 10a–10c.
Merely entering, transmitting, locating, storing, and displaying data to
facilitate buying and selling of items, without more, is an abstract idea. Voit
Techs., LLC v. Del-Ton, Inc., 757 F. App’x 1000, 1002 (Fed. Cir. 2019).
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So too, claims to processing a credit card transaction after receiving
“an indication from the buyer to buy the one or more of the items” recite an
abstract idea with no particular concrete or tangible form. See Innovation
Sci., LLC v. Amazon.com, 778 F. App’x 859, 861, 863 (Fed. Cir. 2019).
Communicating an intent to buy triggers a one-to-one negotiation 126
between a buyer’s and a seller’s agent. Spec. ¶ 78–87. Conveying an intent
to buy a product is a fundamental economic practice. See Appeal Br. 25–26
(“The electronic sales agent is reacting to situations where the consumer has
expressed an intent to buy. A true, actual, and present opportunity to make a
sale.”). Organizing this activity allows retailers to target their marketing to
consumers interested in their products. Spec. ¶¶ 3–15, 20–22; see Bridge
and Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 887 (Fed. Cir.
2019) (“Targeted marketing is a form of ‘tailoring information based on
[provided] data,’ which we have previously held is an abstract idea.”).
Appellant’s argument that this shopping allows retailers to optimize
marketing strategies and consumers to optimize purchase prices (Appeal Br.
24–25) is not commensurate with the claim scope, which merely recite an
electronic negotiation occurring between the consumer and sales agents.
Furthermore, a claim to the concept of offer-based price optimization for
pricing a product for sale recites a fundamental economic concept and an
abstract idea. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362
(Fed. Cir. 2015); see also Revised Guidance, 84 Fed. Reg. at 52 & n.13.
Accordingly, we determine that claim 26 recites the abstract idea of
certain methods of organizing human activity––fundamental economic
practices, commercial interactions including sales activities and managing
personal behavior and relationships or interactions between people.
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Step 2A, Prong Two: Integration into a Practical Application
We next consider whether claim 26 recites any additional elements
that integrate the abstract idea into a practical application. See Revised
Guidance, 84 Fed. Reg. at 54. Appellant argues that the claim as a whole
improves computer functions by identifying an intent to buy so productive
electronic negotiations can complete the purchase transaction. Appeal Br.
26–27. Appellant argues that removing a human from sales negotiations
improves a computer’s functionality by removing unnecessary computer
operations needed by a human-controlled interface to arrive at the same goal
because identifying an intent to buy and negotiating a sale use fewer
searches, pricing options, computer operations, and network use. Id. at 27.
This argument is not persuasive because these limitations recite the
abstract idea discussed above rather than improvements to computers. “It
has been clear since Alice that a claimed invention’s use of the ineligible
concept to which it is directed cannot supply the inventive concept that
renders the invention ‘significantly more’ than that ineligible concept.” BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018); see id.
at 1291 (“As a matter of law, narrowing or reformulating an abstract idea
does not add ‘significantly more’ to it.”); see also RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract
idea (math) to another abstract idea (encoding and decoding) does not render
the claim non-abstract.”); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an
abstract idea.”); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306,
1335 (Fed. Cir. 2015) (claims that improved an abstract idea, but not a
computer’s performance, were held unpatentable).
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19
The Specification describes these features on generic computers and
components that perform generic functions that apply the abstract idea in a
particular technical environment without improving computers or other
technology. See Revised Guidance, 84 Fed. Reg. at 55; MPEP § 2106.05(f).
Efficiencies may be gained if retailers/manufactures can access a consumer’s
preferences and shopping lists. Spec. ¶¶ 146–49. However, this feature is
not claimed. Nor is it inherent in automating negotiations.
Central database 56 stores store, product, and pricing information and
data generated by consumers, manufacturers, and retailers. Spec. ¶¶ 30, 31.
Computer system 62 connects to electronic communications network 60 by
communication channel or link 64, and network 60 may be a cell phone
network or the internet. Id. ¶¶ 34–36; Ans. 13–14. Computers run programs
and application software to display user interface screens. Spec. ¶ 38.
This description indicates the abstract idea is not implemented with a
particular machine or manufacture that is integral to the claim. See Revised
Guidance, 84 Fed. Reg. at 55. Nor do these elements transform or reduce a
particular article to a different state or thing. Id.; see Ans. 14.
The alleged efficiencies depend on information that a service provider
shares with consumers and sellers and the information that one party obtains
about the other party before a negotiation. Spec. ¶¶ 52–64. Efficiency for
one party may come at the expense of the other party. If a consumer 106
expresses an intent to buy a product of a particular manufacturer 110, that
manufacturer 110 “does not need to offer a discount to consumer 106, thus
saving money compared to a coupon or other discount available to the public
as a whole.” Id. ¶ 61. Manufacturer benefits at the expense of the consumer
because the consumer expressed an intent to buy. See id. ¶ 81.
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Any efficiency depends on how the parties configure their agents for
negotiations. Consumers can optimize shopping lists with priorities and
optimized prices for products at preferred retailers. Id. ¶ 61. This unclaimed
feature involves the abstract idea of price optimization discussed above.
Even if we consider the electronic network to be the Internet, mere
“invocation of the Internet also adds no inventive concept.” Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (“As we have held,
the use of the Internet is not sufficient to save otherwise abstract claims from
ineligibility under § 101.”); BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016) (“An abstract idea on
‘an Internet computer network’ or on a generic computer is still an abstract
idea.”). The Specification makes clear that the Internet is used for its known
capabilities as a global, open-architecture network. Spec. ¶ 35.
Merely automating sales transactions using electronic agents and
generic computers, without more, does not make the claims patent-eligible.
See OIP Techs., 788 F.3d at 1363 (“[R]elying on a computer to perform
routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible.”); see also Intellectual Ventures I LLC v. Erie Indem.
Co., 711 F. App’x 1012, 1017 (Fed. Cir. 2017) (“Though the claims purport
to accelerate the process of finding errant files and to reduce error, we have
held that speed and accuracy increases stemming from the ordinary
capabilities of a general-purpose computer ‘do[] not materially alter the
patent eligibility of the claimed subject matter.”’ (alteration in original)).
Here, claim 26 does not improve computer function, use abstract ideas
on a particular machine that is integral to the claim, or transform or reduce
an article to a different state. See Revised Guidance, 84 Fed. Reg. at 55.
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The purported improvements, even if true, relate to price optimization
for either a buyer or a seller, wherein a benefit to one party may come at the
expense of the other as discussed above. The improvement is not rooted in
computer technology to overcome a problem in computer networks or to
provide a specific improvement to the way computers operate. See Ans. 10;
Appeal Br. 24–27.
Accordingly, we determine that claim 26 does not include additional
elements that integrate the abstract ideas recited therein into a practical
application.
Step 2B: Does Claim 26 Include an Inventive Concept?
We next consider whether the claims recite elements, individually, or
as an ordered combination, that provide an inventive concept. Alice, 573
U.S. at 217–18. The second step of the Alice test is satisfied when the claim
limitations involve more than performance of well-understood, routine, and
conventional activities previously known to the industry. Berkheimer v. HP
Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018); see Revised Guidance, 84 Fed.
Reg. at 56 (explaining that the second step of the Alice analysis considers
whether a claim adds a specific limitation beyond a judicial exception that is
not “well-understood, routine, conventional” activity in the field).
Individually, the limitations of claim 26 recites an abstract idea on a
generic computer system and network. Computer elements are described in
the Specification in a way that indicates they are well-understood, routine,
and conventional. See Spec. ¶¶ 23–39; see also Revised Guidance, 84 Fed.
Reg. at 56; MPEP § 2106.05(d); Ans. 15 (sending messages over a network,
receiving/transmitting data, sorting data, and pricing information are well-
understood, routine, and conventional operations).
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“[P]roviding a database on the first computing system including a first
data structure to organize product information corresponding to a plurality of
products” does not recite an inventive concept. In SAP America, the claims
recited “a financial data database” and “a client database (SAP Am., 898 F.3d
at 1165 (claim 22), id. n.2 (claims 1 and 11), id. at 1169 n.3 (claim 32)) and
“a first data structure for storing a first return object having a first time field
and a first value field” and “a second data structure for storing a second
return object having a second time field and a second value field” (Id. at
1169 n.3 (claim 32)). The court found an inventive concept lacking.
Some of the claims require various databases and processors,
which are in the physical realm of things. But it is clear, from
the claims themselves and the specification, that these
limitations require no improved computer resources InvestPic
claims to have invented, just already available computers, with
their already available basic functions, to use as tools in
executing the claimed process.

Id. at 1169–70. Based on these findings, the Court determined that:
[T]his court has ruled many times that “such invocations of
computers and networks that are not even arguably inventive
are insufficient to pass the test of an inventive concept in the
application of an abstract idea,” Electric Power, 830 F.3d at
1355 (internal quotation marks omitted) (citing cases). . . .
Under those decisions, an invocation of such computers and
networks is not enough to establish the required “inventive
concept” in application.

Id. at 1170; see also BSG, 899 F.3d at 1287–88 (holding the claims do not
recite a non-abstract improvement in database functionality or the quality
and organization of information because the benefits are not improvements
to database functionality but instead flow from performing an abstract idea
in conjunction with a well-known database structure).
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Nor is there anything unconventional about the “ordered combination”
that is not merely the sum of the parts. See In re TLI Commc’ns LLC Patent
Litig., 823 F.3d 607, 615 (Fed. Cir. 2016) (holding that the “recited physical
components [that] behave exactly as expected according to their ordinary
use,” through “steps that generically spell out what it means to ‘apply it on a
telephone network’ also cannot confer patent eligibility”).
Accordingly, we determine that the claims do not recite any elements,
individually or as an ordered combination, that provide an inventive concept
sufficient to transform the abstract ideas into patent eligible subject matter.
Thus, we sustain the rejection of claims 26–45 as directed to patent-
ineligible subject matter under a judicial exception to 35 U.S.C. § 101.
Claims 26–28, 30–34, 36–41, and 43–45
as Anticipated by Rzevski
Appellant acknowledges that Rzevski discloses simulating a real
environment by creating a virtual environment to establish relationships
between demand agents and resource agents. Appeal Br. 42 (citing Rzevski
¶ 9). Appellant also acknowledges that the demand and resource agents can
be executable programs that negotiate by exchanging messages and resource
agent 110 initiates the negotiation. Id. at 43 (citing Rzevski ¶¶ 11–13, 39).
Appellant argues that Rzevski does not teach an electronic consumer
agent in electronic communication with a consumer in a virtual marketplace
or a first electronic sales agent in electronic communication with a first
seller in a virtual marketplace because these agents operate under control of
the system with no communication with the consumer or seller as claimed.
Id. Appellant also argues that Rzevski does not identify an intent to buy
using the electronic consumer agent and transmitting the intent to buy. Id.
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We agree with the Examiner that Rzevski discloses electronic
communications between a buyer or customer and their agent in the virtual
marketplace and between a seller and their virtual agent to modify terms of a
sale in a virtual marketplace involving selling cars over an internet portal.
Ans. 17–18 (citing Rzevski ¶¶ 11–13, 39). In this example, first order agent
212 contacts the first customer (buyer) by ringing his phone to offer a 50%
discount obtained from second order agent 210 in exchange for agreeing to
wait another month for delivery of the red Mercedes car. Rzevski ¶ 76. If
the first customer agrees to wait another month, first order agent 212 cancels
booking of the initial red car 202 and books a new car 220, and second order
agent 210 in turn books red car 202 for a price equal to the initial price plus
the added compensation to cover the 50% discount to the first customer. Id.
The agents have sufficient intelligence to act autonomously, but they
also can establish, cancel, and modify relations with the buyers’ and sellers’
permission. Id. ¶ 73. The permission from a buyer and/or seller is based on
electronic communications between the buyer/seller and their intelligent
agent to modify established relationships (contracts). Id. ¶¶ 73, 76.
We also agree with the Examiner that Rzevski discloses identifying an
intent to buy using the electronic consumer agent on the first computing
system in the virtual marketplace. Ans. 18. In this regard, Rzevski discloses
that a demand agent is allocated to a buyer’s demand as it arrives to the
system. See Rzevski ¶ 43. Rzevski discloses that demand agents represent
buyers and resource agents represent sellers. Id. ¶ 39. Once a demand agent
is allocated to a buyer’s demand for an item, the demand agent sends its
characteristics in a message to all free resource agents asking for a resource
with particular features at a particular price. Id. ¶ 43.
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All free resource agents with the resource make an offer to the
demand agent. Id. ¶ 44. The demand agent then selects the most suitable
resource agent from those offers and a match is made. Id. ¶ 45; Ans. 19. In
regards to the car purchasing example discussed above, Rzevski discloses
that first order agent 212 places an order from a first customer residing in
Brazil for a red Mercedes cabriolet 202 for a price of 50000 mu. Rzevski
¶ 74, Fig. 6; Ans. 18–19.
Appellant does not apprise us of error in either of these findings of the
Examiner or teachings of Rzevski. See Reply Br. 9; Appeal Br. 42–54. The
fact that Rzevski discloses demands to buy products through agents without
also referring to the demand as an “intent to buy” does not negate Rzevski’s
anticipation of claim 26. Although a reference must disclose each and every
element of a claim arranged in the same way as in the claim, the reference
does not have to satisfy an ipsissimis verbis test. In re Gleave, 560 F.3d
1331, 1334 (Fed. Cir. 2009). After a demand agent indicates an intent to
buy a product and receives offers of resources, it selects the most suitable
resource agent and establishes a match or re-negotiates with a previously
allocated resource agent. Rzevski ¶¶ 44–46.
Thus, we sustain the rejection of claim 26 and claims 27, 28, 30, and
31, which are not argued separately by Appellant. See Appeal Br. 42–45; 37
C.F.R. § 41.37(c)(1)(iv). Appellant presents the same arguments for claims
32–34, 36–41, and 43–45 as Appellant presented for claim 26. See Appeal
Br. 45–51. These arguments are not persuasive for the reasons discussed
above for the anticipation of claim 26. Thus, we sustain the rejection of
independent claims 32 and 39 and their respective dependent claims 33, 34,
36–38, 40, 41, and 43–45.
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26
Claims 29, 35, and 42
as Unpatentable over Rzevski and Nickitas
Appellant argues that Nickitas does not teach or suggest a consumer
rating of a likelihood to purchase a product as recited in claims 29, 35, and
42. Appeal Br. 53–56 (asserting the same arguments for each claim). We
select claim 29 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
We agree with the Examiner that Nickitas teaches this feature as an
electronic shopping system/service that analyzes a user’s purchase behavior
and estimates when a product will be needed by a user again. Nickitas ¶ 79.
In particular, Nickitas teaches a predictive database 210 that stores customer
predictive data collected from their shopping and purchasing data and a
recommendation engine 220 that uses the data to predict items that a user is
likely to run out of and purchase so that the items can be recommended to
the user. Id. ¶ 83. The system/service can predict purchasing intervals to
predict the next purchase date of products when a product will be needed by
a user again. Id. ¶ 101. The system uses machine learning techniques and
learning algorithms to predict when a user will purchase a product again. Id.
¶¶ 101, 102. Thus, Nickitas teaches a system/service that determines/rates a
likelihood that a consumer/user will need/purchase a product as claimed.
The fact that Nickitas uses this information to remind a user to buy a
product as Appellant argues (Appeal Br. 54) does not negate the fact that
Nickitas rates a likelihood that a user will purchase a product as claimed.
Indeed, Nickitas also teaches that purchase recommendations may be sent to
the user based on this rated likelihood that the user will purchase a product.
Nickitas ¶ 101.
Thus, we sustain the rejection of claim 29.
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27
Because Appellant asserts the same arguments for the patentability of
claims 35 and 42 as Appellant asserted for the patentability of claim 29 (see
Appeal Br. 53–56), we also sustain the rejection of claims 35 and 42 for the
same reasons that we sustain the rejection of claim 29.
CONCLUSION
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
26–31 112(a) Written
Description
(“first data
structure”)
26–31
26–45 112(a) Written
Description
(“second data
structure”/“data
structure”)
26–45
26–45 112(b) Indefiniteness 26–45
26–45 101 Eligibility 26–45
26–28, 30–
34, 36–41,
43–45
102(a)(1) Rzevski 26–28, 30–
34, 36–41,
43–45

26–28, 30–
34, 36–41,
43–45
102(a)(2) Rzevski 26–28, 30–
34, 36–41,
43–45

29, 35, 42 103 Rzevski, Nickitas 29, 35, 42
Overall
Outcome
26–45
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED