Shao, Peng et al.

Patent Trials and Appeals Board

Dec 16, 2019

15477345 - (D) (P.T.A.B. Dec. 16, 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.
15/477,345 04/03/2017 Peng Shao 170108-1171 2524
71247 7590 12/16/2019
Client 170101 c/o
THOMAS HORSTEMEYER, LLP
3200 WINDY HILL RD SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
PHAM, TUAN A
ART UNIT PAPER NUMBER
2163
NOTIFICATION DATE DELIVERY MODE
12/16/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@thomashorstemeyer.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PENG SHAO, LE HUANG, and MADHU M. KURUP
Appeal 2019-001048
Application 15/477,345
Technology Center 2100
Before JOHN A. JEFFERY, KRISTEN L. DROESCH, and
BETH Z. SHAW, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Amazon Technologies, Inc. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to extracting topics from customer review
search queries. Claims 1 and 9, reproduced below, are illustrative of the
claimed subject matter:
1. A system, comprising:
at least one computing device in data communication with
a plurality of client devices via a network;
a data store comprising a plurality of search queries related
to a collection of user reviews of a plurality of items, individual
search queries of the plurality of search queries being received
over the network from individual client devices of the plurality
of client devices via a respective first user interface rendered via
the individual client devices; and
at least one application executable in the at least one
computing device, wherein, when executed, the at least one
application causes the at least one computing device to at least:
identify a plurality of relevant topics from the plurality of
search queries associated with a specific item of the plurality of
items;
generate a user interface comprising at least one of the
plurality of relevant topics; and
transmit the user interface to at least one of the plurality of
client devices over the network.
9. A method, comprising:
storing, via at least one computing device, a plurality of search
queries of a collection of user reviews in a data store, the plurality of
search queries being collected over a network from a plurality of
client devices;
identifying, via the at least one computing device, at least one
relevant topic for a specific item based at least in part on the plurality
of search queries; and
generating, via the at least one computing device, a user
interface based at least in part on the at least one relevant topic.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Galitsky US 2009/0282019 A1 Nov. 12, 2009
Xie US 2010/0179948 A1 July 15, 2010
REJECTIONS
Claims 1–20 are rejected under 35 U.S.C. § 101. Final Act. 3.
Claim 20 is rejected under 35 U.S.C. § 112 ¶ 2 as being indefinite.
Ans. 13.
Claims 1–20 are rejected under 35 U.S.C. § 103(a) a being
unpatentable over Galitsky and Xie. Final Act. 9.2
OPINION
Section 101 Rejection
Appellant argues the pending claims as a group. As permitted by
37 C.F.R. § 41.37, we decide this issue based on claim 9. See 37 C.F.R.
§ 41.37(c)(1)(iv)(2016).
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof” is patent eligible. 35 U.S.C. § 101. However,
the Supreme Court has long recognized an implicit exception to this section:
“Laws of nature, natural phenomena, and abstract ideas are not patentable.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for

2 The Examiner also provisionally rejects claims 1–20 under obviousness-
type double patenting as being unpatentable over claims 1–26 of U.S. Patent
No. 8,658,824. Final Act. 4. Appellant does not traverse this provisional
rejection in the Appeal Brief, and therefore, we need not address this
rejection.
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Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
To determine whether a claim falls within one of these excluded categories,
the Court has set out a two-part framework. The framework requires us first
to consider whether the claim is “directed to one of those patent-ineligible
concepts.” Alice, 573 U.S. at 217. If so, we then examine “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.” Alice, 573 U.S. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)).
That is, we examine the claims for an “inventive concept,” “an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting
Mayo, 566 U.S. at 72–73).
The Patent Office has issued guidance about this framework. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Eligibility Guidance”). Under the guidance, to decide
whether a claim is “directed to” an abstract idea, we evaluate whether the
claim (1) recites an abstract idea grouping listed in the guidance and (2) fails
to integrate the recited abstract idea into a practical application. See 2019
Eligibility Guidance, 84 Fed. Reg. at 51. If the claim is “directed to” an
abstract idea, as noted above, we then determine whether the claim recites an
inventive concept. The 2019 Eligibility Guidance explains that when
making this determination, we should consider whether the additional claim
elements add “a specific limitation or combination of limitations that are not
well-understood, routine, conventional activity in the field” or “simply
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append[] well-understood, routine, conventional activities previously known
to the industry.” 2019 Eligibility Guidance, 84 Fed. Reg. at 56.
With these principals in mind, we turn to the Examiner’s § 101
rejection.
Abstract Idea
Turning to Step 2A, Prong 1, the claimed method includes the
following limitations: storing “a plurality of search queries of a collection of
user reviews in a data store,” and identifying “at least one relevant topic for
a specific item based at least in part on the plurality of search queries.”
Claim 9 recites an abstract idea grouping listed in the 2019 Eligibility
Guidance: “mental processes.” See 2019 Eligibility Guidance, 84 Fed. Reg.
at 52, 53 (listing “[m]ental processes—concepts performed in the human
mind (including an observation, evaluation, judgment, opinion)” as one of
the “enumerated groupings of abstract ideas” (footnote omitted)). The
guidance explains that “mental processes” include acts that people can
perform in their minds or using pen and paper, even if the claim recites that
a generic computer component performs the acts. See 2019 Eligibility
Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable
interpretation, covers performance in the mind but for the recitation of
generic computer components, then it is still in the mental processes
category unless the claim cannot practically be performed in the mind.”); see
also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318
(Fed. Cir. 2016) (“[W]ith the exception of generic computer-implemented
steps, there is nothing in the claims themselves that foreclose them from
being performed by a human, mentally or with pen and paper.”), quoted in
2019 Eligibility Guidance, 84 Fed. Reg. at 52 n.14; Mortg. Grader, Inc. v.
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First Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016)
(holding that computer-implemented method for “‘anonymous loan
shopping’” was an abstract idea because it could be “performed by humans
without a computer”); quoted in 2019 Eligibility Guidance, 84 Fed. Reg. at
52 n.14.
The method recited in claim 9 executes steps that people can perform
in their minds or using pen and paper. A person can perform each of the
italicized steps of claim 9 by using his or her mind, or pen and paper, in the
claimed manner. For example, a person can mentally (or by pen and paper)
store a plurality of search queries of a collection of user reviews, and can
identify “at least one relevant topic for a specific item based at least in part
on the plurality of search queries,” using his or her mind or pen and paper.
Turning to Step 2A, Prong 2, the remaining elements recited in claim
9 do not integrate the abstract idea into a practical application. In addition to
the steps discussed above, claim 9 recites a “at least one computing device”
and a “user interface.” The recited computing device and user interface are
generic components. See, e.g., Spec. Fig. 1, ¶ 11 (“computing environment
103 may include a plurality of computing devices may be employed that are
arranged, for example, in one or more server banks or computer banks or
other arrangements. For example, a plurality of computing devices together
may comprise a cloud computing resource, a grid computing resource,
and/or any other distributed computing arrangement”). See 2019 Eligibility
Guidance, 84 Fed. Reg. at 55 (identifying “merely includ[ing] instructions to
implement an abstract idea on a computer” as an example of when an
abstract idea has not been integrated into a practical application).
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We are not persuaded that the claimed invention improves the
computer or its components’ functionality or efficiency, or otherwise
changes the way those devices function, at least in the sense contemplated
by the Federal Circuit in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327
(Fed. Cir. 2016), despite Appellant’s arguments to the contrary (Appeal Br.
13–17). The claimed self-referential table in Enfish was a specific type of
data structure designed to improve the way a computer stores and retrieves
data in memory. Enfish, 822 F.3d at 1339. To the extent Appellant
contends that the claimed invention uses such a data structure to improve a
computer’s functionality or efficiency, or otherwise change the way that
device functions, there is no persuasive evidence on this record to
substantiate such a contention.
Appellant’s reliance on BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) (Appeal Br. 17–18) is also
unavailing. There, the court held eligible claims directed to a technology-
based solution to filter Internet content that overcame existing problems with
other Internet filtering systems by making a known filtering solution—
namely a “one-size-fits-all” filter at an Internet Service Provider (ISP)—
more dynamic and efficient via individualized filtering at the ISP.
BASCOM, 827 F.3d at 1351. Notably, this customizable filtering solution
improved the computer system’s performance and, therefore, was patent-
eligible. See id. But unlike the filtering system improvements in BASCOM
that added significantly more to the abstract idea in that case, the claimed
invention here uses generic computing components to implement an abstract
idea.
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Nor is this invention analogous to that which the court held eligible in
McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir.
2016) despite Appellant’s arguments to the contrary (Appeal Br. 15–16).
There, the claimed process used a combined order of specific rules that
rendered information in a specific format that was applied to create a
sequence of synchronized, animated characters. McRO, 837 F.3d at 1315.
Notably, the recited process automatically animated characters using
particular information and techniques—an improvement over manual three-
dimensional animation techniques—was not directed to an abstract idea. Id.
at 1316.
But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses generic computing components to generate a user
interface. This generic computer implementation is not only directed to a
mental process, but also does not improve a display mechanism as was the
case in McRO. See SAP Am. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed.
Cir. 2018) (distinguishing McRO).
Appellant’s reliance on Finjan, Inc. v. Blue Coat Systems, Inc., 879
F.3d 1299 (2018) (Appeal Br. 8, 9) is likewise unavailing. There, the court
held eligible claims directed to a behavior-based virus scanning system. In
reaching this conclusion, the court noted that the claimed invention
employed a new kind of file that enabled a computer security system to do
that which could not be done previously, including accumulating and using
newly-available, behavior-based information about potential threats. Finjan,
879 F.3d at 1305.
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That is not the case here. To the extent that Appellant contends that
the claimed invention is directed to such improvements in computer
capabilities (see Appeal Br. 8, 9), there is no persuasive evidence on this
record to substantiate such a contention.
We reach the same conclusion regarding Appellant’s reliance on Core
Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356 (2018)
(Appeal Br. 6, 7). There, the court held eligible claims reciting a computing
device that could display an application summary window that was not only
reachable directly from the main menu, but could also display a limited list
of selectable functions while the application was in an un-launched state.
Core Wireless, 880 F.3d at 1360–63. Upon selecting a function, the device
would then launch the application and initiate the selected function. Id. at
1360. In reaching its eligibility conclusion, the court noted that the claimed
invention was directed to an improved user interface for computing devices
that used a particular manner of summarizing and presenting a limited set of
information to the user, unlike conventional user interface methods that
displayed a generic index on a computer. Id. at 1362–63.
That is not the case here. To the extent that Appellant contends that
the claimed invention is directed to such improvements in computer
capabilities (see Appeal Br. 6, 7), there is no persuasive evidence on this
record to substantiate such a contention.
Thus, the claims do not integrate the judicial exception into a practical
application. The claims do not (1) improve the functioning of a computer or
other technology, (2) are not applied with any particular machine (except for
a generic computer), (3) do not effect a transformation of a particular article
to a different state, and (4) are not applied in any meaningful way beyond
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generally linking the use of the judicial exception to a particular
technological environment, such that the claim as a whole is more than a
drafting effort designed to monopolize the exception. See MPEP
§§ 2106.05(a)–(c), (e)–(h). We, therefore, agree with the Examiner that
claim 9 is directed to an abstract idea.
Inventive Concept
Because we determine claim 9 is “directed to” an abstract idea, we
consider whether claim 9 recites an “inventive concept.” The Examiner
determined claim 9 does not recite an inventive concept because the
additional elements in the claim do not amount to “significantly more” than
an abstract idea. See Final Act. 3.
We agree with the Examiner’s determination. As noted above, the
claimed invention merely uses generic computing components to implement
the recited abstract idea. The additional elements recited in the claim
include the “at least one computing device” and “user interface.” The claim
recites these elements at a high level of generality, and the written
description indicates that these elements are generic computer components.
See, e.g., Spec. Fig. 1, ¶¶ 11, 42. Using generic computer components to
perform abstract ideas does not provide the necessary inventive concept.
See Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer
cannot transform a patent-ineligible abstract idea into a patent-eligible
invention.”). Thus, these elements, taken individually or together in
combination, do not amount to “significantly more” than the abstract ideas
themselves.
Appellant contends various elements recited in the claim provide the
necessary inventive concept. Appeal Br. 17. But these elements form part
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of the recited abstract ideas and thus are not “additional elements” that
“‘transform the nature of the claim’ into a patent-eligible application.”
Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78); see also 2019
Eligibility Guidance, 84 Fed. Reg. at 55 n.24 (“USPTO guidance uses the
term ‘additional elements’ to refer to claim features, limitations, and/or steps
that are recited in the claim beyond the identified judicial exception.”
(Emphasis added)).
Rather, the recited “computing device” and “user interface” are the
additional recited elements whose generic computing functionality is well-
understood, routine, and conventional. See Intellectual Ventures I LLC v.
Capital One Bank (USA), 792 F.3d 1363, 1368 (Fed. Cir. 2015) (noting that
a recited user profile (i.e., a profile keyed to a user identity), database, and
communication medium are generic computer elements); Mortg. Grader,
811 F.3d at 1324–25 (noting that components such an “interface,”
“network,” and “database” are generic computer components that do not
satisfy the inventive concept requirement). Accord Final Act. 2 (concluding
that the claims’ additional generic computer components do not add
significantly more than the abstract idea.). Appellant’s arguments do not
persuade us claim 9 is “directed to” a patent-eligible inventive concept.
To the extent Appellant contends that the claimed invention is rooted
in technology because it is ostensibly directed to a technical solution (see
Appeal Br. 17), we disagree. Even assuming, without deciding, that the
claimed invention can facilitate generating a user interface faster than doing
so manually, any speed increase comes from the capabilities of the generic
computer components—not the recited process itself. See FairWarning IP,
LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (citing
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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.”)); see also Intellectual
Ventures I LLC v. Erie Indemnity Co., 711 F. App’x 1012, 1017 (Fed. Cir.
2017) (unpublished) (“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.’”). Like the claims in FairWarning, the focus of
claim 9 is not on an improvement in computer processors as tools, but on
certain independently abstract ideas that use generic computing components
as tools. See FairWarning, 839 F.3d at 1095 (citations and quotation marks
omitted).
Accordingly, we sustain the rejection of claims 1–20 under 35 U.S.C.
§ 101.

Section 112 ¶ 2 Rejection
The Examiner rejects dependent claim 20 under 35 U.S.C. § 112 ¶ 2
as being “unclear because it recites an open list of alternatives.” Ans. 13,
14. Yet, we agree with Appellant that claim 20 does not recite an open list
of alternatives. Reply Br. 3. “Rather, claim 20 recites that the listing
comprises at least one of ‘a number of user reviews associated with the
respective relevant topic, a rating summary for the respective relevant topic,
a description of the respective relevant topic, or a component for viewing the
collection of user reviews associated with the respective relevant topic.’” Id.
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3–4. Accordingly, we do not sustain the rejection of claim 20 under
35 U.S.C. § 112 ¶ 2.

Section 103 Rejection
Appellant generally argues that Galitsky and Xie fail to teach or
suggest “a data store comprising a plurality of search queries related to a
collection of user reviews of a plurality of items, . . . ‘individual search
queries of the plurality of search queries being received over the network
from individual client devices of the plurality of client devices via a
respective first user interface rendered via the individual client devices,’ as
recited in claim 1.” Appeal Br. 21–22 (emphases omitted); Reply Br. 8–9.
In particular, Appellant argues Galitsky merely discusses building queries
(Appeal Br. 21, 22) and using a query about a specific feature about a
product. Reply Br. 9. We are not persuaded by this argument because as the
Examiner finds, and we agree, Galitsky teaches collecting “sentiments” (i.e.,
reviews or opinions) from users of products, i.e., items, about the products,
and then storing them for subsequent retrieval or searches. Ans. 19 (citing
Galitsky ¶¶ 5, 7, 84, 87, 35, 40).
Appellant also argues the references do not teach “identify[ing] a
plurality of relevant topics from the plurality of search queries associated
with a specific item of the plurality of items.” Appeal Br. 22 (emphases
added); Reply Br. 11–12. In particular, Appellant argues “Galitsky merely
discusses receiving a single search query and providing recommendations
based on a lexicography.” Appeal Br. 23.
We are not persuaded by this argument because as the Examiner finds,
and we agree, Galitsky teaches identifying relevant information and ranking
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relevant topics or information associated with a specific product, i.e., an
item. Ans. 22 (citing Galitsky ¶¶ 40–44 (“In addition, the method is capable
of local extraction of phrases and sentences about an individual feature of
the product and identifying that phrase or sentence as belonging to the
individual feature . . . identify the topic and sentiment of individual
sentences and phrases in a document”)). Accordingly, we sustain the
rejection of claim 1 under 35 U.S.C. § 103.
Dependent Claim 2
Regarding dependent claim 2, Appellant argues Galitsky and Xie fail
to teach “receiv[ing] the plurality of search queries from the plurality of
client devices requesting a search of the collection of user reviews using the
plurality of search queries,” as recited in claim 2. Appeal Br. 25, 26; Reply
Br. 12–13. We are not persuaded by this argument because Galitsky teaches
receiving many search queries from a plurality of users and using the queries
information about the products and sentiments about the products are
extracted and stored. Final Act. 12 (citing Galitsky ¶¶ 40–41).
Appellant also argues Galitsky fails to teach storing “the plurality of
search queries in the data store,” as recited in claim 2. Appeal Br. 26, 27.
We are not persuaded by this argument because Galitsky teaches that queries
are assembled to extract information from obtained information, and that
using the queries, information is extracted “and stored.” Final Act. 12
(citing Galitsky ¶¶ 40-41). Thus, Galitsky teaches storing information,
including storing extracted phrases and sentences. “In addition, the method
is capable of local extraction of phrases and sentences about an individual
feature of the product and identifying that phrase or sentence as belonging to
the individual feature. That is also stored for later presentation to a user
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searching for that individual feature of a product.” Galitsky ¶ 40.
Moreover, Galitsky teaches “[t]he system also is able to present to a user, in
response to a query about a specific feature about a product, a quote from
another consumer's review that is responsive to the user’s query.” Id. at ¶ 7.
Accordingly, we sustain the rejection of claim 2 under 35 U.S.C. § 103.
Dependent Claim 4
Regarding claim 4, Appellant argues Galitsky and Xie fail to teach
“wherein the plurality of relevant topics are identified based at least in part
on a frequency of occurrence in the plurality of search queries.” Appeal Br.
28–29; Reply Br. 14–16. Yet, as the Examiner finds and we agree, Galitsky
teaches identifying and extracting relevant topics (Galitsky ¶¶ 40–44), and
Xie teaches taking into consideration historical query results of past queries
of a plurality of users, such as click frequencies or selection frequencies.
Ans. 23–24 (citing Xie ¶¶ 60, 74). Accordingly, we are unpersuaded by
Appellant’s argument. For these reasons, we sustain the rejection of claim 4
under 35 U.S.C. § 103(a).
Claims 9-15
With respect to independent claim 9 and dependent claims 10–15,
Appellant repeats similar arguments as made with respect to independent
claim 1. Appeal Br. 29–35. We are not persuaded by these arguments for
the reasons discussed above with respect to claim 1. Accordingly, we
sustain the rejection of claims 9–15 under 35 U.S.C. § 103.
Claim 16
With respect to independent claim 16 and dependent claims 17–20,
Appellant repeats similar arguments as made with respect to independent
claim 1. Appeal Br. 35–35. We are not persuaded by these arguments for
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the reasons discussed above with respect to claim 1. Accordingly, we
sustain the rejection of claims 16–20 under 35 U.S.C. § 103.

CONCLUSION
We affirm rejection of claims 1–20 under 35 U.S.C. § 101.
We reverse the rejection of claim 20 under 35 U.S.C. § 112.
We affirm rejection of claims 1–20 under 35 U.S.C. § 103.

SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
20 112 ¶ 2 Indefiniteness 20
1–20 103(a) Galitsky, Xie 1–20
Overall
Outcome
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