Ex Parte Ferguson

Patent Trial and Appeal Board

Jul 31, 2018

12191788 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/191,788 08/14/2008
24739 7590 08/02/2018
CENTRAL COAST PATENT AGENCY, INC
3 HANGAR WAY SUITED
WATSONVILLE, CA 95076
FIRST NAMED INVENTOR
Hill Ferguson
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.
P4934Dl 1504
EXAMINER
SHEIKH, ASFAND M
ART UNIT PAPER NUMBER
3627
NOTIFICATION DATE DELIVERY MODE
08/02/2018 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):
officeactions@CENTRALCOASTPATENT.COM
plambuth@centralcoastpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HILL FERGUSON1
Appeal2017-004901
Application 12/191,788
Technology Center 3600
Before BRADLEY W. BAUMEISTER, MICHAEL J. STRAUSS, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellant, the real party in interest is Y odlee.com, Inc. See
Br. 2.
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Application 12/191,788
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a non-final rejection
of claims 21-32. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm. 2
THE INVENTION
The claims are directed to a system and method for a frame-based
internet enabled user interface. Spec., Title. Claim 21, reproduced below, is
representative of the claimed subject matter:
21. A method for providing a bill management service executed
by software distributed to memory of a bill management server
connected to the Internet and memory of a computerized device
at a user premises subscribing to the service, comprising the steps
of-
' (a) collecting and aggregating billing information specific
to the user by the software at the bill management server by
automatically, periodically, navigating to biller web sites,
logging in as the user and collecting billing information specific
to the user directly from third-party service providers connected
to the Internet providing services for the user;
(b) providing a graphic user interface ( GUI) to the user by
the software at the computerized device to communicate with the
bill management service via the Internet, the GUI including a
first frame enabling a direct deep-link Internet connection
between the user and at least one of the third-party services,
wherein the frame is maintained in a first portion of the GUI
enabling the user to interact directly at the third party service
within the first frame and view a remaining portion of the GUI
simultaneously;
2 We refer to the Specification, filed Aug. 14, 2008 ("Spec."); the Non-Final
Office Action, mailed Mar. 23, 2016 ("Non-Final Act."); Appeal Brief, filed
May 2, 2016 ("Br."); and the Examiner's Answer, mailed Nov. 18, 2016
("Ans.").
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( c) accessing a second frame in the GUI by the user, the
second frame presented in a second portion of the GUI, the
second frame having information specific to the user and the at
least one third-party service, the information provided by the bill
management service; and
( d) accessing the deep-link in the first frame by the user to
at least pay a bill directly at the third-party service while using
the information provided in the second frame and simultaneously
viewing the remaining portion of the GUI.
REFERENCES
The following prior art is relied upon by the Examiner in rejecting the
claims on appeal:
Kolling
Kramer
Khanna
Labrou
Allen
us 5,963,925
US 6,327,574 Bl
US 2002/0133605 Al
US 2004/0098350 Al
US 6,785,891 Bl
REJECTIONS
The Examiner made the following rejections:
Oct. 5, 1999
Dec. 4, 2001
Sept. 19, 2002
May 20, 2004
Aug. 31, 2004
Claims 21-32 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Non-Final
Act. 5.
Claims 21-32 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Kolling, Kramer, Khanna, Allen, and Labrou. Non-
Final Act. 6-11.
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ANALYSIS
Appellant's contentions are unpersuasive of Examiner error. We
adopt as our own ( 1) the findings and reasons set forth by the Examiner in
the Action from which this appeal is taken (Non-Final Act. 2-11) and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
Appellant's Appeal Brief (Ans. 2-11), and we concur with the conclusions
reached by the Examiner. We highlight the following for emphasis.
35 U.S.C. § 101
Patentable subject matter is defined by 35 U.S.C. § 101, as follows:
[w]hoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvernent thereof: may obtain a patent therefor,
subject to the conditions and requirements of this title.
In interpreting this statute, the Supreme Court emphasizes that patent
protection should not pre-empt "the basic tools of scientific and
technological work." Gottschalkv. Benson, 409 U.S. 63, 67 (1972); Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012);
Alice Corp. v. CLS Bank Int 'l, 134 S. Ct. 2347, 2354 (2014). The rationale
is that patents directed to basic building blocks of technology would not
"promote the [p ]rogress of [ s ]cience" under the U.S. Constitution, Article I,
Section 8, Clause 8, but instead would impede it. Accordingly, laws of
nature, natural phenomena, and abstract ideas, are not patent-eligible subject
matter. Thales Visionix Inc. v. US., 850 F.3d 1343, 1346 (Fed. Cir. 2017)
( citing Alice, 134 S. Ct. at 2354).
The Supreme Court set forth a two-part framework for analyzing
subject matter eligibility in Alice (134 S. Ct. at 2355). The first step is to
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determine whether the claim is directed to a patent-ineligible concept. Id.
( citing Mayo, 566 U.S. at 76-77). If so, then the eligibility analysis
proceeds to the second step of the Alice/ Mayo framework in which we
"examine the elements of the claim to determine whether it contains an
'inventive concept' sufficient to 'transform' the claimed abstract idea into a
patent-eligible application." Alice, 134 S. Ct. at 2357 ( quoting Mayo, 566
U.S. at 72, 79).
The "inventive concept" may be embodied in one or more of the
individual claim limitations or in the ordered combination of the limitations.
Id. at 2355. The "inventive concept" must be significantly more than the
abstract idea itself, and cannot be simply an instruction to implement or
apply the abstract idea on a computer. Id. at 2358. "'[W]ell-understood,
routine, [and] conventional activit[ies]' previously known to the industry"
are insufficient "to transform an abstract idea into a patent-eligible
invention." Id. at 2359---60 (citing Mayo, 566 U.S. at 73).
Alice/Mayo Step 1: Abstract Idea
The Examiner finds "[t]he claim(s) is/are directed to the abstract idea
of (i) a fundamental economic practice (i.e., bill management)." Non-Final
Act. 5. The Examiner finds the claim limitations are directed to collecting
and aggregating billing information, providing a graphic user interface with
first and second frames, and paying a bill via a link in the first frame using
information provided in the second frame. Ans. 2. The Examiner further
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finds the claims at issue are directed to similar concepts found to be abstract
in several cited prior cases. Ans. 3.
Rather than contend error in the Examiner's finding that the invention
is directed to an abstract idea, "Appellant argues that the Examiner clearly
errs when not considering additional elements and functionality, as claimed
in [A]ppellant's invention." Br. 8. Accordingly, the Examiner's findings
under Step 1 of the Alice/Mayo framework are undisputed.
Alice/Mayo Step 2: Inventive Concept
The Examiner finds "[t]he additional element(s) or combination of
elements in the claim( s) other than the abstract idea per se amount( s) to no
more than: (i) mere instructions to implement the idea on a computer, and/or
(ii) recitation of generic computer structure that serves to perform generic
computer functions that are well-understood, routine, and conventional
activities previously known to the pertinent industry." Non-Final Act. 5.
The Examiner concludes "[ v ]iewed as a whole, these additional claim
element( s) do not provide meaningful limitation( s) to transform the abstract
idea into a patent eligible application of the abstract idea such that the
claim( s) amounts to significantly more than the abstract idea itself." Id.
Appellant argues providing multiple frames and deep links3 to third-
party web sites provides a graphic user interface (GUI) enabling a user to
3 According to Appellant
[D]eep linking is the use of a hyperlink that links to a specific,
generally searchable or indexed, piece of web content on a
website (e.g.[,] "http://example.com/path/page"), rather than the
website's home page (e.g.[,] "http://example.com/"). For
example, the link could be to a bill at a biller's website or a pay
bill option directly at the biller web site.
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directly transact with the third-party websites while providing information
automatically gathered by a user's billing service. Br. 8. According to
Appellant, "providing multiple frames within the GUI providing deep links
for the user is not a generic computer activity known in the art." Id. In
particular,
Br. 9.
Appellant argues that the claims actually do not focus on the
fundamental economic practice, but provide additional software
structure via multiple frames with direct deep-linking providing
a tool set for a user to access bills directly from vendor sites (via
deep-linking) and pay them with information from other
windows, all while staying within one GUI (website).
Appellant argues the pending claims are similar to claim 2 of
Example 21 of the July 2015 Update Appendix 1 of the 2014 Interim
Guidance Matter Eligibility (hereinafter "Example 21 "). According to the
Appellant, "[the] incorporation of multiple deep linking frames within a
single GUI at a single Web site is far more than merely a generic computer
function." Br. 10. Appellant further argues the additional requirements of
the claims avoid monopolizing the abstract idea of paying bills and, instead,
improve the technology of computer information presentation allowing a
user to pay bills while staying at the service web site GUI. According to
Appellant, "this is not something a human can do with a paper and pencil."
Id. The Examiner responds, finding all steps of claim 21 to be known
techniques performed by computers and web browsers. Ans. 5.
Appellant's arguments are unpersuasive of Examiner error. We agree
with the Examiner in finding the claimed steps, including providing a GUI
Br. 11 ( emphasis omitted).
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with first and second frames and deep linking, are known techniques that are
well-understood, routine and conventional processes performed and
information displays provided by computers running conventional web
browsers processing hypertext markup language (HTML) web pages. In
particular, deep linking is "the use of a hyperlink that links to a specific,
generally searchable or indexed, piece of web content on a website ... rather
than the website's home page." Br. 11. Therefore, from an HTML
perspective, a deep link is the same as any other hyperlink whether the target
is designated as a website's home page or a page on a website other than that
designated as the website's home page. That is, whether the target web page
is a home page or otherwise (i.e., a deep link) does not affect the functioning
of the HTML code. Such conventional computer processing is insufficient
to transform an abstract idea into a patent-eligible invention.
Appellant has not provided sufficient evidence or argument that the
target specified by a hyperlink (i.e., a website's home page or other page)
transforms the hyperlink into something that was not well-understood,
routine, and conventional. Appellant's naked assertion to the contrary
(Br. 8) is insufficient to persuade us otherwise. Mere attorney arguments
and conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney
argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA
197 4 ). Nor can such argument take the place of evidence lacking in the
record.
Appellant's reliance on DDR Holdings is also unpersuasive. See Br. 9
citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed.
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Cir. 2014). The claims in DDR Holdings were directed to a "challenge
particular to the Internet," and did not "broadly and generically claim 'use of
the Internet' to perform an abstract business practice (with insignificant
added activity)." DDR Holdings, 773 F.3d at 1257, 1258.
For example, in DDR Holdings, the claims 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." Id. at 1249 (claim 19 of US 7,818,399 Bl; issued to Ross,
Jr., Oct. 19, 2010). The court held that a claim may amount to more than an
abstract idea recited in the claims when it addresses and solves problems
only encountered with computer technology and online transactions, e.g., by
providing (serving) a composite web page rather than adhering to the
routine, conventional functioning of Internet hyperlink protocol. See DDR
Holdings, 773 F.3d at 1257-59. There is nothing similar to DDR 's web
page with an active link in Appellant's claim 21. Rather, all that claim 21
requires is first and second frames, the first frame encapsulating a resource
from a third-party internet based service and the second a providing user-
specific information related to the content provided by the resource. Spec. 5.
The recited deep linking only requires reference to a particular web page
rather than to a third-party home page. Thus, rather than addressing a
particular problem of the Internet, such as a limitation of hyperlink protocol
or HTML, the invention uses a standard feature of HTML to provide
multiple frames as part of a GUI.
We are also unpersuaded by Appellant's argument that the invention
is similar to Example 21 of the July 2015 Update as providing significantly
more than the abstract idea. See Br. 10.
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First, claim 2 of Example 21 is a hypothetical claim, not an actual
claim present in US 7,035,914 Bl that was at issue in Google Inc. v.
SimpleAir, Inc., Covered Business Method Case No. CBM 2014-00170
(Jan. 22, 2015), the Board decision on which hypothetical Example 21 is
based.
Second, the Board did not hold a claim like claim 2 of Example 21, or
any claim in US 7,035,914 Bl for that matter, patent-eligible as a matter of
law. Rather, the Board found that the Petitioner had not "shown sufficiently
that claims 1-3, 7, and 22-24 [of US 7,035,914 Bl] are more likely than not
unpatentable as being directed to patent-ineligible subject matter under
35 U.S.C. § 101." Id. at 16. ("Petitioner's generalized arguments, not
directed to the specific language of the challenged claims, are insufficient to
show that the claims more likely than not are directed to a patent-ineligible
abstract idea.")
Third, be that as it may, claim 2 of Example 21 is not comparable to
what is claimed in the instant appeal. Claim 2 of Example 21 includes the
limitation "[an] alert [that] activates [a] stock viewer application to cause the
stock quote alert to display on the remote subscriber computer and to enable
connection via the URL to the data source over the Internet when the
wireless device is locally connected to the remote subscriber computer and
the remote subscriber computer comes online." The Appellant has not
explained how claim 21 on appeal contains any comparable limitation.
We are also unpersuaded by Appellant's argument "the present claims
are significantly more than a drafting effort designed to monopolize the
exception (paying bills)." Br. 9. Although pre-emption "'might tend to
impede innovation more than it would tend to promote it,' thereby thwarting
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the primary object of the patent laws" (Alice, 134 S. Ct. at 2354 (citing
Mayo, 132 S. Ct. at 1293)), "the absence of complete preemption does not
demonstrate patent eligibility." Ariosa Diagnostics, Inc. v. Sequenom, Inc.,
788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs.Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362---63 (Fed. Cir. 2015) ("[T]hat the
claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract.").
Finally, we are further unpersuaded by Appellant's argument that the
claims do not encompass "something a human can do with a paper and
pencil." Br. 9. Whether the abstract idea identified by the Examiner can be
performed either mentally or with pencil and paper is relevant to
demonstrating the idea is abstract under Step 1 of the Alice/ Mayo
analysis. "A method that can be performed by human thought alone is
merely an abstract idea and is not patent-eligible under§ 101." CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011). The
technological components of claim 21 requiring more than mental steps or
pencil and paper, such as the argued service website GUI, are considered
under Step 2 of the Alice/ Mayo analysis. In the present case, we agree with
the Examiner in finding the claims are directed to the abstract idea of
"providing bill management service that aggregates billing information
specific to the user and allows payment of a bill []directly to []a third-party
service," which can be performed "by a human being (i.e., [using] pencil and
paper)." Non-final Act. 2-3.
Moreover, the Federal Circuit has held that claims similar to those at
issue here, claims directed to collecting, generating, organizing, and
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displaying data, are directed to patent-ineligible abstract ideas. See
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1097-98 (Fed.
Cir. 2016) ("the practices of collecting, analyzing, and displaying data, with
nothing more, are practices 'whose implicit exclusion from § 101 undergirds
the information-based category of abstract ideas'") ( citation omitted); see
also, e.g., Intellectual Ventures I LLC v. Capital One Financial Corp., 850
F.3d 1332, 1341 (Fed. Cir. 2017); West View Research, LLC v. Audi AG,
685 F. Appx 923, 926 (Fed. Cir. 2017) (nonprecedential); Content
Extraction and Transmission LLC v. Wells Fargo Bank, Nat. Ass 'n, 776 F.3d
1343, 1347 (Fed. Cir. 2014); cf also Intellectual Ventures I LLC v. Capital
One Bank (USA), 792 F.3d 1363, 1368 (Fed. Cir. 2015) ("Indeed, the
budgeting calculations at issue here are unpatentable because they could still
be made using a pencil and paper with a simple notification device .... "
(internal quotation marks and citations omitted)). In the present appeal,
Appellant fails to identify any technological improvement to computer,
browser or Internet capabilities as a result of the argued claim limitations.
For the reasons discussed above, Appellant's contentions are
unpersuasive of Examiner error. Accordingly, we sustain the rejection of
claims 21-32 under 35 U.S.C. § 101.
35 U.S.C. § 103(a)
Appellant contends the information displayed in Kolling's windows is
provided by the same service providing the interface, not a direct link to a
third-party website, as claimed. Br. 10. "Appellant argues that the user of
Kolling only transacts with a single service, which is the bill pay service at
the interface. No direct deep-link connection exists in the art of Kolling, so
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a transaction with a third-party cannot happen, nor is there a suggestion to
do so." Br. 11.
The Examiner finds Kolling' s statement origination workstations
(SORG) and statement generation workstation (SGEN) may be located
remotely such that "Kolling teaches that a biller or biller service provider
[(i.e., third party)] can transmit a statement to a consumer service provider
via the Internet." Ans. 6-7 (citing Kolling col. 4, 11. 62---66, col. 31, 11. 19--
34, col. 34, 11. 49---67 and Figs. 3 and 13). According to the Examiner, a
"reasonable construction of Kolling would read on linking [by] the use of a
hyperlink that links to a specific, generally separable or indexed piece of
web content on a web site, as Kolling[' s] biller provides a statement that is
generated and transmitted to the GUI at the Consumer Service Provider."
Ans. 7.
Appellant's contention is unpersuasive of Examiner error. In
particular, Appellant fails to provide sufficient evidence or reasoned
argument distinguishing the claimed deep link over Kolling's Internet
connection. Appellant emphasizes that "deep linking is the use of a
hyperlink that links to a specific, generally searchable or indexed, piece of
web content on a website (e.g.[,] 'http://example.com/path/page'), rather
than the website's home page (e.g.[,] 'http://example.com/')." Br. 11
(emphases omitted). However, Appellant fails to explain why Kolling's
hyperlinks (see, e.g., Kolling Figs. 11, 12, and 13 and connections to Great
Northern Bank) fail to teach or suggest the disputed deep linking, whether
directly or subsequent to initially landing on a home page, so as to allow a
user to log in, retrieve billing information, etc. Furthermore, Appellant fails
to address the Kramer and Allen references, also cited for teaching or
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suggesting the disputed deep-link Internet connection. See Non-Final Act. 8
(citing Kramer col. 7, lines 16-28; col. 8, lines 1-13) and 9 (citing Allen,
Abstract and col. 5, 11. 8-21 and 39--41. It is well established that one cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413,426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
Appellant further contends that, because no "direct deep-link
connection exists in the art of Kolling ... a transaction with a third-party
cannot happen" as required by step ( d) of claim 21, i.e., accessing the deep-
link in the first frame by the user to at least pay a bill directly at the third-
party service while using the information provided in the second frame and
simultaneously viewing the remaining portion of the GUI. See Br. 11.
Appellant notes that the Examiner's recitation of the disputed limitation at
page 7 of the Non-Final Action does not reflect the amended language of
claim 21. Id. According to Appellant, the language used by the Examiner in
analyzing step ( d) fails to emphasize that "Appellant does not claim
accessing information in a first frame by using information in a second
frame [but, instead,] using information in a second frame to complete a
transaction (paying a bill) within the first frame." Br. 12. Addressing the
Allen reference, Appellant argues the reference "teaches in all embodiments
that only one html page (frame) can be viewed at a time." Id (citing Allen
Fig. 3).
The Examiner responds, explaining the Non-Final Action addressed
the amended claim language with the application of Labrou for teaching the
argued requirement of direct user interaction with a third party service
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within the GUI and providing user access to pay a bill directly at the third
party service. Ans. 7 (citing Non-Final Act. 10). The Examiner further
details how the combination of Kramer, Khanna, Allen and Labrou teaches
or suggests disputed step ( d) of claim 21. Ans. 9--10. The Examiner finds
Allen's ability to display a plurality of HTML pages including frames
teaches or suggests the argued simultaneous display of frames. Ans. 10.
Appellant's contentions are unpersuasive. Initially, having found
Kolling teaches or suggests deep-link connections for the reasons discussed
above, we disagree with Appellant's premise and therefore Appellant's
conclusion that, as a result of the argued deficiency, "in the art of Kolling,
... a transaction with a third-party cannot happen" (Br. 11 ).
In connection with the Examiner's reference to claim language
appearing prior to the argued amendment and/ or paraphrasing of the existing
claim language of step ( d), Appellant fails to persuade us that the applied art
fails to teach or suggest any of the argued limitations. Instead, as indicated
by the Examiner (Ans. 7), all limitations were considered and shown to be
taught or suggested by the combination of Kramer, Khanna, Allen and
Labrou. Ans. 9--10.
Concerning simultaneous display of frames, we agree with the
Examiner in finding Allen teaches or suggests this feature. However, even if
otherwise, claim 21 does not require the argued simultaneous viewing of
frames (see Br. 13), only "accessing the deep-link in the first frame by the
user to at least pay a bill directly at the third-party service while using the
information provided in the second frame and simultaneously viewing the
remaining portion of the GUI." Accordingly, Appellant's argument is not
commensurate in scope with the claim.
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For the reasons discussed above, we sustain the rejection of
independent claim 21 and, for the same reasons, independent claim 27 under
35 U.S.C. § 103(a) over Kolling, Kramer, Khanna, Allen, and Labrou.
Appellant's arguments in connection with dependent claims 24 and 30
(Br. 13-14) are substantially the same as those found unpersuasive in
connection with independent claims 21 and 27. Accordingly, the rejection
of claims 24 and 30 are likewise sustained together with the rejection of
dependent claims 22, 23, 25, 26, 28, 29, 31, and 31, which are not argued
separately with particularity.
DECISION
We affirm the Examiner's decision to reject claims 21-32 under
35 U.S.C. § 101.
We affirm the Examiner's decision to reject claims 21-32 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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