Ex Parte Farmer et al

Patent Trial and Appeal Board

Jul 30, 2018

12061868 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/061,868 04/03/2008
57600 7590 08/01/2018
HOLLAND & HART
222 South Main Street, Suite 2200
P.O. Box 11583
Salt Lake City, UT 84110
FIRST NAMED INVENTOR
James G. Farmer
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P002.0l.Ol (75080.0008) 9231
EXAMINER
ROSEN, NICHOLAS D
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
PA TENTDOCKET@HOLLANDHART.COM
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES G. FARMER, CHARLES W. FARMER, and
JOSPEH W. FARMER
Appeal 2017-001899
Application 12/061,8681
Technology Center 3600
Before, ANTON W. PETTING, JOSEPHA. FISCHETTI, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
FISCHETTI, Administrative Pa tent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
fmalrejectionofclaims 1, 2,4, 8, 10, 17-20and23-33. Wehave
jurisdiction under35 U.S.C. § 6(b).
1 Appellants identify Trace Produce, LLC as the real party in interest.
Appeal Br. 2.
Appeal 2017-001899
Application 12/061,868
SUMMARY OF DECISION
We AFFIRM.
THE INVENTION
Appellants' claims relate to product information methods allowing a
customer to access information related to an order of a commodity. Spec.
Claim 1 reproduced below, is representative of the subject matter on
appeal.
1. A product information method, comprising:
gathering informational items associated with a given product;
entering the informational items into a central database:
putting the informational items on a web page;
assigning and affixing at least one code to the given product;
associating the at least one code with the informational items on
the web page, wherein data associated with the web page is
stored within the central database;
providing a web-based application configured to provide at
least one customer with access to the web page when the at
least one code is entered or scanned into the web-based
application;
determining a geographical location of the at least one customer
by a computing device when the at least one customer accesses
the web page; and
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Application 12/061,868
identifying the geographical location of the given product based
at least in part on the determining the geographical location of
the at least one customer.
THE REJECTIONS
The following rejections are before us for review.
Claims 1, 2, 4, 8, 10, 17-19, and23-27 are rejected under 35 U.S.C.
§ 112 first paragraph.
Claims 1, 2, 4, 8, 10, 17-20, and23-33 are rejected under 35 U.S.C.
§ 101.
ANALYSIS
35 U.S.C. § 112 FIRST P ARAGRAPHREJECTION
We will not sustain the rejection of claims 1, 2, 4, 8, 1 0, 1 7-20, and
23-33 under 35 U.S.C. § 112 first paragraph.
The Examiner found that "the instant specification and drawings do
not show that the inventors had possession of identifying the geographical
location of the product based at least in part on the determining the
geographical location of the at least one customer." (Final Act. 3).
Appellants however argue,
T[]he produce includes a tracking ID that allows the produce' s
location to be known when it's [sic] tracking ID is entered into
the central database. [Specification, [0104].] The tracking ID
is located on the produce or its package. Id., at [0061 ], [ 0062],
[0102], [0104], [0120]. The consumer enters the tracking ID
obtained from the produce or its package which is in the
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consumer's possession. Id., at [0061], [0104]. The user gets
the tracking ID from the produce because the tracking ID is
obtained from the produce itself or its package. Id. Thus, a
user would enter the tracking ID into the central website while
having the produce in his or her possession. Therefore, when
the consumer's location is known, the location of the produce is
also known. This is further supported by the fact that the
advertising campaign is directed to benefit restaurants in the
general geographical location of the customer/produce.
(Appeal Br. 10).
We agree with Appellants. We find that the Specification at paragraph 60
explicitly describes that marking information includes a tracking ID, and
paragraph 62 explicitly describes that "the marking information is affixed
directly to each piece of produce within an order (e.g., a sticker is affixed to
each piece of fruit within an order)." Paragraph 104 explicitly describes,
"[a]ccordingto this exemplary embodiment, once the server(51, FIG. 7 or
80, FIG. 8) or other remote computing device receives and [sic] general
geographic location of the end customer (18; FIG. 7 or FIG. 8), a
geographically based targeted advertisement campaign, related to the tracked
produce may be launched." We thus fmd that those skilled in the art would
understand that because customer and product locations are correlated,
determining one will determine the other. Accordingly, we fmd that the
Specification conveys with reasonable clarity to those skilled in the art that,
as of the filing date, Appellants were in possession of the limitations of
claims 1, 20, and 28 listed as lacking written description support on pages 2
and 3 of the fmal action.
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35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 1, 2, 4, 8, 10, 17-20, and23-
33 under35 U.S.C. § 101.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, ...
determine whether the claims at issue are directed to one of
those patent-ineligible concepts .... If so, we then ask,"[ w ]hat
else is there in the claims before us?" ... To answer that
question, . . . consider the elements of each claim both
individually and "as an ordered combination" to determine
whether the additional elements "transform the nature of the
claim" into a patent-eligible application. . . . [The Court]
described step two of this analysis as a search for an "'inventive
concept'"-i.e., an element or combination of elements that is
"sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept]
itself."
AliceCorp.Pty.Ltd. v. CLSBanklnt'l, 134S. Ct.2347,2355(2014)
(internal citations omitted) ( quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 72-73 (2012)).
To perform this test, we must frrst determine whether the claims at
issue are directed to a patent-ineligible concept.
Although the Court in Alice made a direct fmding as to what the
claims were directed to, we determine that this case's claims themselves and
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Application 12/061,868
the Specification provide enough information to inform one as to what they
are directed to.
The steps in claim 1 result in:
determining a geographical location of the at least one
customer by a computing device when the at least one customer
accesses the web page; and
identifying the geographical location of the given product
based at least in part on the determining the geographical
location of the at least one customer.
The Examiner determined that the claims are directed to "commodity
tracing methods, which are considered to be expressions of an abstract idea."
(Final Act. 4). The Specification states:
The ability to trace produce back to its packing facilities,
inspection points, and even the field in which it was grown is
becoming more of a necessity in the produce industry as
concerns regarding food safety increase. In the event of a food-
bome illness outbreak, for example, damage may be limited if
the source of the contaminated product is identified quickly so
that other products grown in the same field, processed in the
same packing facility, and/or transported in the same vehicle
can be quarantined.
Spec, ,r 2.
The Specification also states:
In addition, many customers, such as brokers and
retailers, are increasingly requesting real time access to
information regarding the produce they buy. For example,
they often desire to view shipping, tracing, and inspection
information immediately after they place an order for produce.
Many customers also require independent certification audits
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of all produce sold in their stores.
Spec. ,r 4.
Thus, all this evidence shows that claim 1 is directed to commodity
tracing to geographically match an end user with a product in the general
geographic area of each other. It follows from prior Supreme Court cases,
and Gottschalkv. Benson, 409U.S. 63 (1972), in particular, that the claims
at issue here are directed to an abstract idea. Commodity tracing to
geographically match an end user with a product in the general geographic
area of each other is a fundamental economic principle because it matches
buyer and seller in the shortest route thereby reducing transportation costs.
The patent-ineligible end of the 35 U.S.C. § 101 spectrum includes
fundamental economic principles. See Alice Corp. Pty. Ltd., 134 S. Ct. at
2357. Thus, calculating a maximum average global satisfaction value used
to assign the seats of allocated seats to a group of customers is an "abstract
idea" beyond the scope of § 101.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of an intermediated settlement in Alice and the concept
of commodity tracing to geographically match an end user with a product in
the general geographic area of each other, at issue here. Both are squarely
within the realm of "abstract ideas" as the Court has used that term. That the
claims do not preempt all forms of the abstraction or may be limited to
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Application 12/061,868
commodities, does not make them any less abstract. See GIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1360----61 (Fed. Cir. 2015).
Claim 1, unlike the claims held non-abstract in prior cases, uses
generic computer technology to perform data reception, transmission, and
linkage and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314--15 (Fed. Cir. 2016) (determining claims not abstract
because they "focused on a specific asserted improvement in computer
animation").
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it'" is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implemen[t]" an abstract idea
"on . . . a computer," that addition cannot impart patent
eligibility. This conclusion accords with the pre-emption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of "additional
featur[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
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Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (alterations in original) (internal
citations omitted).
"[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer." Id. at 23 5 9. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval----one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
industry. See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1354; see also In re
Katz Interactive Call Processing Patent Litig, 639 F.3d 1303, 1316 (Fed.
Cir. 2011) ("Absent a possible narrower construction of the terms
'processing,' 'receiving,' and 'storing,' ... those functions can be achieved
by any general purpose computer without special programming."). In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, "even if a process of
collecting and analyzing information is 'limited to particular content' or a
particular 'source,' that limitation does not make the collection and analysis
other than abstract." SAP Am. Inc. v. InvestPic, LLC, 890 F.3d l 016, 1022
(Fed. Cir. 2018) (internal citation omitted).
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Considered as an ordered combination, the computer components of
Appellants' method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
access/display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (holding that the sequence of receiving, selecting, offering for
exchange, display, allowing access, and receiving payment recited an
abstraction), Inventor Holdings, LLCv. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis,
modification, generation, display, and transmission), Two-Way Media Ltd. v.
Comcast Cable Commc 'ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
( sequence of processing, routing, controlling, and monitoring). The ordering
of the steps is, therefore, ordinary and conventional.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The Specification spells out
different generic equipment and parameters that might be applied using this
concept and the particular steps such conventional processing would entail
based on the concept of information access under different scenarios. See,
e.g., Spec. ,r 33. The Specification does not describe any particular
improvement in the manner a computer functions, at least with respect to the
claims in the instant application. Instead, the claims at issue amount to
nothing significantly more than instructions to apply the abstract idea of
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information access and retrieval using some unspecified, generic computer.
Under our precedents, that is not enough to transform an abstract idea into a
patent-eligible invention. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2360.
We have reviewed all the arguments (Appeal Br. 14--27) Appellants
have submitted concerning the patent eligibility of the claims before us that
stand rejected under 3 5 U.S. C. § 101. We fmd that our analysis above
substantially covers the substance of all the arguments, which have been
made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
Appellants contrast its appealed claims with Intellectual Ventures
argumg:
claim 1 does not teach customizing a website. Rather, claim 1
recites that a method involves assigning a code to a given
product and that the code is associated with information in a
website. The code is not part of a website customization, but is
rather assigned to the product so that the user can gain access to
the website. Thus, Applicant respectfully submits that there is
no customization of the website as described in Intellectual
Ventures.
(Appeal Br. 17).
We disagree with Appellants.
Intellectual Ventures argue[ d] that the "interactive interface"
is a specific application of the abstract idea that provides an
inventive concept. But nowhere does Intellectual Ventures
assert that it invented an interactive interface that manages
web site content. Rather, the interactive interface limitation is
a generic computer element.
Intellectual Ventures I LLCv. Capital One Bank (USA), NA., 792 F.3d
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1363, 1370 (2015).
Like the claims in Intellectual Ventures, as we determined supra, there
is no evidence of anything more than generic computer elements being
claimed, i.e., a central database, a web-based application and servers.
Appellants argue "DDR Holdings teaches that where the claims recite
subject matter that solves a problem rooted in computer and/or internet
technology that the claim is subject matter eligible. In this case, computer
security is a problem rooted in computer and internet technology." (Appeal
Br. 19).
We disagree with Appellants. In light of the breadth of the claims,
Appellants' argument is not persuasive as to error in the rejection. InDDR,
the claims at issue involved, inter alia, "web pages displays [with] at least
one active link associated with a commerce object associated with a buying
opportunity of a selected one of a plurality of merchants" ( claim 1 of US
7,818,399 B 1 ). There is no such claim element with this degree of detail
addressing technology here before us. All that is required by the claims is
generically recited computer technology, namely a web based application, a
central database, and servers.
Appellants further argue, "determining the location of the product by
determining the location of the user is not conventional or well understood,
which is supported by the fact that after multiple searches performed by the
Examiner that there is no prior art of record containing this claim element."
(Appeal Br. 19-20).
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We disagree with Appellants.
That is, the Examiner addresses the claims as an ordered combination
and determined there to be nothing "significantly more than the abstract idea
itself' ( as do we above) stating:
Moreover, when considering the elements and
combinations of elements, the claims as a whole do not amount
to significantly more than the abstract idea itself. This is
because the claims do not amount to an improvement to another
technology or technical field, or to the functioning of a
computer itself; the claims do not move beyond a general link
of the use of an abstract idea to a particular technological
environment, and to the application of the abstract idea using a
computer.
(Final Act. 4--5, see also Answer 16-19). See Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1057 (Fed. Cir. 2017) ("Significantly, the
claims do not provide details as to any non-conventional software for
enhancing the financing process."). See also Intellectual Ventures I LLC v.
Capital One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017) ( explaining
that "[ o ]ur law demands more" than claim language that "provides only a
result-oriented solution, with insufficient detail for how a computer
accomplishes it").
We are further not persuaded by Appellants' argument because the
standard forpatentability under 35 U.S.C. § 103(a) is obviousness, the
standard forpatentability under 35 U.S.C. § 102 is novelty, and the standard
for patentability under 35 U.S.C. § 101 is subject matter eligibility. Each of
these standards is separately required to be met before patentability can be
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conferred on invention, which is not the case here based on the latter
standard.
The question in step two of the Alice framework is not whether a
claim element is novel, but whether the implementation of the abstract idea
involves "more than the performance of'well-understood, routine, [and]
conventional activities previously known to the industry.'" Content
Extraction and TransmissionLLCv. Wells Fargo Bank, NA., 776 F.3d
1343, 1347--48 ( quoting Alice, 134 S. Ct. at 2359). Here, the Examiner
made fmdings (Answer 16-19) of the well-understood, routine, conventional
nature of the combination. The Examiner analyzed the claims using the
Mayo/Alice two-step framework, consistent with the guidance set forth in the
USPTO's 2015 UPDATE OF THE INTERIM GUIDANCE ON PATENT SUBJECT
MATTERELIGIBILITY. See id. at 16-17. Accordingly, we fmd no error with
the Examiner's prima facie case that the claimed implementation does not
rise to more than the performance of well-understood, routine, conventional
activities previously known to the industry.
Appellants also argue, "[ c ]laim 20 deals with a method of tracking
products, so the claim is clearly not directed towards a law of nature or a
natural phenomenon. In this case, the Final Office Action alleges that claim
20 is directed towards the abstract idea of commodity tracing methods."
(Appeal Br. 21 ).
We disagree with Appellants because as determined supra, tracking or
tracing an item or person, and/or assigning codes thereto are abstractions and
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not patent eligible. SeeElec. Power Grp., LLC, 830F.3dat 1354.
CONCLUSIONS OF LAW
We conclude the Examiner did err in rejecting claims 1, 2, 4, 8, 10,
17-19, and23-27 under 35 U.S.C. § 112 frrst paragraph.
We conclude the Examiner did not err in rejecting claims 1, 2, 4, 8,
10, 17-20, and23-33 under35 U.S.C. § 101.
DECISION
The decision of the Examiner to reject claims 1, 2, 4, 8, 10, 17-20,
and 23-33 is affrrmed.
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)(l)(iv).
AFFIRMED
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