Vity Patent Holdco, LLC

Patent Trials and Appeals Board

Mar 18, 2022

2022000959 (P.T.A.B. Mar. 18, 2022)

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. 15/406,539 01/13/2017 Lynne Haaland VITY03-01 3711 144987 7590 03/18/2022 Vity Patent Holdco, LLC 1635 Foxtrail Drive, Ste 321 c/o BlueIron, LLC Loveland, CO 80538 EXAMINER BUSCH, CHRISTOPHER CONRAD ART UNIT PAPER NUMBER 3681 NOTIFICATION DATE DELIVERY MODE 03/18/2022 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): patents@blueironip.com russ.krajec@krajec.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LYNNE HAALAND ____________ Appeal 2022-000959 Application 15/406,539 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, JAMES P. CALVE, and NINA L. MEDLOCK, Administrative Patent Judges. MEDLOCK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2022-000959 Application 15/406,539 2 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 2, and 6-11.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED INVENTION The claimed invention relates to the management and organization of groups of social media influencers to execute advertising campaigns directed at certain targeted demographics (see, e.g., Spec. ¶ 15). Claim 1, reproduced below with bracketed notations added, is the sole independent claim and representative of the subject matter on appeal: 1. A method performed by a first computer system comprising at least one computer processor, a display, and a first input device, said method comprising: [(a)] displaying on said display representations of each of a plurality of influencer groups, each of said influencer groups comprising a plurality of influencers; [(b)] receiving an advertising request comprising a targeted user description; [(c)] displaying on said display a first influencer group meeting a portion of said targeted user description; 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,” filed September 24, 2021), Reply Brief (“Reply Br.,” filed November 8, 2021), and the Examiner’s Answer (“Ans.,” mailed November 4, 2021) and Final Office Action (“Final Act.,” mailed April 1, 2021). Appellant identifies Vity Patent Holdco, LLC as the real party in interest (Appeal Br. 2). 2 “Claims 3-5 and 12-13 have been cancelled. Claims 14-20 were previously withdrawn” (Final Act. 2). Appeal 2022-000959 Application 15/406,539 3 [(d)] identifying a first desired demographic parameter, said first desired demographic parameter having insufficient coverage within said first influencer group with respect to said targeted user description; [(e)] identifying a first influencer having a first following matching at least a first portion of said first desired demographic parameter; [(f)] identifying a second portion of said first desired demographic parameter; [(g)] identifying a second influencer having a second following matching said second portion of said first desired demographic parameter, said first portion and said second portion addressing at least a part of said first desired demographic parameter; and [(h)] adding said first influencer and said second influencer to said first influencer group. REJECTIONS Claims 1, 2, and 6-11 are rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. Claims 1, 2, and 6-9 are rejected under 35 U.S.C. § 103 as unpatentable over Murphy (US 2014/0358698 A1, published Dec. 4, 2014) and Sims et al. (US 2016/0019579 A1, published Jan. 21, 2016) (“Sims”). ANALYSIS Patent Ineligible Subject Matter Appellant does not present any argument in support of the patent eligibility of claims 1, 2, and 6-11. Instead, Appellant requests that the rejection under 35 U.S.C. § 101 “be held in abeyance until the current 35 USC 102/103 issues are resolved” (Appeal Br. 6). The Examiner’s rejection of claims 1, 2, and 6-11 under 35 U.S.C. § 101 is, therefore, summarily sustained. Appeal 2022-000959 Application 15/406,539 4 Obviousness In rejecting independent claim 1 under 35 U.S.C. § 103, the Examiner cited Murphy as disclosing a method, performed by a computer system, as called for in claim 1, comprising “displaying on said display representations of each of a plurality of influencer groups, each of said influencer groups comprising a plurality of influencers,” i.e., step (a), as recited in claim 1 (Final Act. 7 (citing Murphy ¶ 67, Fig. 12)). However, the Examiner found that although Murphy discloses an input device, Murphy “fails to explicitly disclose a method for receiving from said first input device a user selection of an influencer group” (id.). And the Examiner cited Sims to cure the deficiency of Murphy (id. (citing Sims ¶¶ 10, 51, 63)). Sims relates to a method and system for facilitating and coordinating communication between advertisers and online social media influencers (Sims ¶ 8), and discloses that the system uses information provided by the advertiser, e.g., an advertising plan to distribute information regarding its products and/or services, to identify potential influencers who can help the advertiser implement the influencer campaign (id. ¶ 9). Sims describes that “[t]he invention . . . allows the advertiser to select those influencers that best fit its needs and to . . . contact them, to engage the influencers” (id. ¶ 10; see also id. ¶ 51 (describing that the advertiser selects, from a system provided list, one or more influencers to execute the influencer campaign, and that the advertiser contacts the influencer, via the system, which offers the influencer a contract to carry out the proposed campaign), ¶ 63 (describing that the advertiser selects one or more influencers, from a provided listing, who the advertiser wants to use as part of the campaign and that, using the system, Appeal 2022-000959 Application 15/406,539 5 the advertiser transmits an offer to the influencer soliciting the influencer’s participation in the defined campaign)). Appellant explains in the Appeal Brief that the pending claims relate to a method of using groups of influencers to meet a demographic goal, and that “the first step is to find a group that matches some of that demographic goal”; once the group is identified, a deficiency in the group is recognized and additional individual influencers are added to the group to make up for the deficiency (Appeal Br. 6). Appellant acknowledges that Sims discloses identifying and hiring individual influencers (id. at 7). But Appellant argues that the rejection cannot be sustained at least because “Sims is utterly silent about any influencer ‘groups’ or about curating a group to meet a demographic parameter” and “never contemplates starting with a group and adding more influencers as required in the claims” (id.). Responding to Appellant’s argument, the Examiner notes that although claim 1 recites “a method for displaying influencer groups, receiving ad requests, identifying demographic parameters, identifying influencers that matches the demographic parameters, and adding the influencers to groups,” claim 1 does not “describe a process for selecting a group of influencers” (Ans. 3). The Examiner, thus, explains that, in the Final Office Action, the Examiner “inadvertently included that feature [i.e., receiving a selection of a first influencer group] in the rejection [of claim 1] because it had been combined with claim 14 in the preceding non-final office action” (id. at 4).3 3 Withdrawn claim 14 reads: 14. A method performed on at least one computer processor, said method comprising: Appeal 2022-000959 Application 15/406,539 6 Further responding to Appellant’s argument, the Examiner cites Figures 12 and 15 of Murphy as depicting influencer groups, and in the case of Figure 12 as depicting “four distinct groups of influencers who are commonly associated by a particular feature” (Ans. 4). The Examiner additionally cites paragraphs 66 and 67 as describing “a process in which an advertiser may subsequently select/invite a group of influencers to participate in [its] ad campaign” (id.). And the Examiner concludes, “claim 1 does not require the inclusion of Sims (because the feature that Sims discloses is not required by the claim), and its features are sufficiently disclosed by Murphy” (id.). Appellant argues, and we agree, that claim 1 does, in fact, require selecting a group of influencers (Reply Br. 2). As Appellant explains, claim 1 calls for “displaying on said display a first influencer group meeting a portion of said targeted user description”; the claim, thus, necessarily requires that this first influencer group is identified, i.e., selected from among the claimed plurality of influencer groups, which includes other groups that do not meet the targeted user description (id.). receiving a desired demographic profile for an advertising campaign; identifying a plurality of influencer groups, each of said influencer groups comprising a plurality of influencers; for each of said plurality of influencer groups, determining a demographic coverage profile; displaying a plurality of graphical representations, each of said plurality of graphic representations corresponding to one of said influencer groups; and receiving a selection of a first influencer group. (Emphasis added). Appeal 2022-000959 Application 15/406,539 7 Moreover, even if, as the Examiner ostensibly contends, Murphy’s disclosure, in paragraphs 66 and 67, of “a process in which an advertiser may subsequently select/invite a group of influencers to participate in [its] ad campaign” corresponds to “displaying on said display a first influencer group meeting a portion of said targeted user description” (see Ans. 4), the Examiner has not explained how Murphy also discloses or suggests identifying a first desired demographic parameter having insufficient coverage within the first influencer group, or identifying first and second influencers having first and second followings, which respectively match first and second portions of the first desired demographic parameter, as claimed (see Final Act 7; see also Ans. 4-5). The Examiner takes the position, as described above, that “claim 1 does not require the inclusion of Sims” (Ans. 4); as such, the teachings of Sims are not relevant to the rejection. We are persuaded that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 103. Therefore, we do not sustain the Examiner’s rejection of claim 1. For the same reasons, we also do not sustain the Examiner’s rejection of dependent claims 2 and 6-9. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (“dependent claims are nonobvious if the independent claims from which they depend are nonobvious”). CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 6-11 101 Eligibility 1, 2, 6-11 1, 2, 6-9 103 Murphy, Sims 1, 2, 6-9 Appeal 2022-000959 Application 15/406,539 8 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed Overall Outcome 1, 2, 6-11 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