Ex Parte Pal et al

Patent Trial and Appeal Board

Nov 6, 2018

13801712 (P.T.A.B. Nov. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/801,712 03/13/2013 Biswajit Pal
145169 7590 11/08/2018
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP (DXC)
379 Lytton Avenue
Palo Alto, CA 94301
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.
36MK-255225 8747
EXAMINER
WHITAKER, JONATHAN J
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
11/08/2018 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):
svpatents@sheppardmullin.com
SheppardMullin_Pair@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BISW AJIT PAL, SUBHASISH MISRA, and AB HIS EK SAHA
Appeal2017-005649
Application 13/801, 712
Technology Center 3600
Before NINA L. MEDLOCK, SCOTT C. MOORE, and AMEE A. SHAH,
Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1--4, 6, 7, 10-15, and 17-19.3 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Throughout this Decision, we refer to the Appellants' Appeal Brief
("Appeal Br.," filed Aug. 9, 2016), Reply Brief ("Reply Br.," filed Feb. 15,
2017), and Specification ("Spec.," filed Mar. 13, 2013), and to the
Examiner's Answer ("Ans.," mailed Dec. 15, 2016) and Final Office Action
("Final Act.," mailed Feb. 10, 2016).
2 According to the Appellants, the real party in interest is "Hewlett Packard
Enterprise Development LP." Appeal Br. 3.
3 Claims 22-24 have been cancelled. See Advisory Action mailed June 5,
2016.
Appeal2017-005649
Application 13/801,712
STATEMENT OF THE CASE
The Appellants' invention relates to "determin[ing] target customer[s]
based on the likelihood they will make a future purchase in [a] future period
of time." Spec. ,r 8.
Claims 1, 11, and 19 are the independent claims on appeal. Claim 1
(Appeal Br. 27-28 (Claims App.)) is illustrative of the subject matter on
appeal and is reproduced below (with added bracketing for reference):
1. A method of scalably estimating probability of future
purchases based on customer database records, the method,
compnsmg:
[(a)] receiving records from a customer database, wherein
the records include transaction data for a plurality of customers;
[ (b)] estimating, by at least one hardware processor,
parameters from inputs of sample customers and providing an
approximation model for each of the estimated parameters;
for each customer of a plurality of customers:
[(c)] determining, by the at least one hardware
processor, corresponding explanatory variables from the
transaction data, wherein the explanatory variables
include a timing of a first purchase by the customer, a
timing of a last purchase by the customer, and a number of
purchases by the customer from the first purchase to the
last purchase;
[(d)] applying, by the at least one hardware
processor, the explanatory variables to the approximation
models to determine a dropout probability and a
transaction rate, wherein the dropout probability is a
probability that the customer is inactive; and
[ ( e)] determining, by the at least one hardware
processor, a likelihood of a repeat purchase during a
selected time period based on the dropout probability and
the transaction rate, wherein the determining of the
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likelihood of the repeat purchase during the selected time
period includes, for each customer,:
determining a likelihood the customer
remains active during the selected time period based
on the dropout probability for the customer;
determining a likelihood the customer will
make a purchase during the selected time period
based on the transaction rate; and
determining the likelihood of the repeat
purchase during the selected time period from the
likelihood the customer remains active and the
likelihood the customer will make a purchase
during the selected time period; and
[(f)] scoring, by the at least one hardware processor, each
of the plurality of customers based on the corresponding
likelihood of repeat purchase.
REJECTIONS
Claims 1--4, 6, 7, 10-15, and 17-19 stand rejected under 35 U.S.C.
§ 101 as being directed to a judicial exception without significantly more.
Claims 1, 2, 6, 7, 10-13, and 17-19 stand rejected under pre-AIA
35 U.S.C. § I02(b) as being anticipated by Davis (US 2010/0070346 Al,
pub. Mar. 18, 2010).
Claims 3, 4, 14, and 15 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Davis in view of Chiang et al.
(US 2014/0006166 Al, pub. Jan. 2, 2014) ("Chiang").
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ANALYSIS
35 USC§ JOI -Non-Statutory Subject Matter
The Appellants argue the claims as a group for this rejection. See
Appeal Br. 9, 11, 15, 16. We select claim 1 as representative of the group;
claims 2--4, 6, 7, 10-15, and 17-19 stand or fall therewith. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
The Supreme Court in Alice reiterated the two-step framework, set
forth previously in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 78-79 (2012), "for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts." Alice Corp. v.
CLS Bank Int'!, 134 S. Ct. 2347, 2355 (2014). The first step in that analysis
is to "determine whether the claims at issue are directed to one of those
patent-ineligible concepts." Id. (citing Mayo, 566 U.S. at 79) (emphasis
added). If so, the second step is to consider the elements of the claims
"individually and 'as an ordered combination'" to determine whether the
additional elements "'transform the nature of the claim' into a patent-eligible
application." Id. (quoting Mayo, 566 U.S. at 78, 79).
The First Step
The step-one analysis requires us to consider the claims "in their
entirety to ascertain whether their character as a whole is directed to
excluded subject matter." Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015). The Court acknowledged in Mayo,
that "all inventions at some level embody, use, reflect, rest upon, or apply
laws of nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71.
The question is whether the claim as a whole "focus[ es] on a specific means
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or method that improves the relevant technology" or is "directed to a result
or effect that itself is the abstract idea and merely invoke generic processes
and machinery." McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
1299, 1314 (Fed. Cir. 2016). We, therefore, look to "whether the focus of
the claims is on [a] specific asserted improvement in computer
capabilities ... or, instead, on a process that qualifies as an 'abstract idea'
for which computers are invoked merely as a tool." Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016).
Under the first step of the Mayol Alice framework, the Examiner
determines that the claim is "directed to the abstract idea of estimating
scores for customers based on the likelihood of repeat purchase, which is a
fundamental economic practice and/or a method of organizing human
activities." Final Act. 7; see also Ans. 22-26.
The Appellants do not ostensibly disagree that the claim is directed to
estimating scores for customers based on the likelihood of repeat purchase.
Rather, the Appellants argue that "[t]he claims of the present application are
not directed to an abstract idea that is similar to what the courts have
identified as abstract ideas, and thus the rejection should be reversed."
Appeal Br. 11; see also Reply Br. 4. The Appellants also argue that "the
claims of the present application are not directed to an abstract idea that is
similar to Cyberfone and SmartGene." Appeal Br. 11. (citing Cyberfone
Syst., LLC v. CNN Interactive Grp., Inc., 558 F. Appx 988 (Fed. Cir. 2014);
SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. Appx 950
(Fed. Cir. 2014)); see also id. at 12-13; Reply Br. 5. The Appellants further
argue that "the claims of the present application are directed to an
improvement in computer-related technology, which demonstrates the
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claims do not recite a concept similar to previously identified abstract
ideas." Appeal Br. 13; Reply Br. 5-6.
We disagree. Here, claim 1 recites "[a] method of scalably estimating
probability of future purchases based on customer database records, the
method comprising:" (a) receiving, from a database, records including
transaction data; (b) estimating, by a processor, parameters from inputs and
providing an approximation model; for each customer: ( c) determining, by
the processor, corresponding variables including timing and number of
purchases, ( d) applying the variable to the models to determine a probability
and rate, and ( e) determining, by the processor, a likelihood of repeat
purchase based on the probability and rate, including determining
likelihoods of remaining active, making a purchase, and repeat purchases;
and (f) scoring, by the processor, each customer based on the likelihood of
repeat purchases. See Appeal Br. 27-28. The Appellants cite to Figure 2
and paragraphs 8, 10-16, 19, 23, 27, 28, 33, and 34 of the Specification as
support for these limitations. Appeal Br. 3-7. These cited paragraphs
provide that the method is performed by computing device 300 that, "[i]n a
basic hardware configuration, ... typically includes a processor system 302
having one or more processing units, i.e., processors 304, and memory 306."
Spec. ,r 33.
Claim 1 does not recite the specifics for how, i.e., by what process or
algorithm, steps (b) through (f) of estimating, determining, and scoring are
performed. The Specification provides that step (b) of estimating parameters
can be performed by using statistical models such as the "Bayesian
Hierarchal model and MCMC [Markov Chain Monte Carlo] algorithm."
Spec. ,r 23; see also claim 3. The Appellants cite to paragraphs 19 and 28 as
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support for determining variables, dropout probability, and transaction rate,
as recited in steps ( c) and ( d). Appeal Br. 4. These paragraphs provide that
these determinations are performed by using approximation models and
calculations using a formula. Similarly, the Specification, at paragraphs 10
through 16 and 28, relied on by the Appellants (Appeal Br. 4--5), describes
the determinations of likelihood, as recited in limitation ( e ), as being
performed by using mathematical expressions and formulas to calculate
probabilities. Paragraphs 8 and 27, relied on by the Appellants (id. at 5),
provide that customers can be scored or ranked to provide an output, such as
by filtering the results of the probability of future purchases. As such,
claim 1 provides for a method of estimating probability of future purchases
by receiving data, determining data using mathematical expressions, models,
and formulas, and scoring the results of the determinations.
This is similar to those claims deemed to be abstract ideas in Electric
Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
( claims were directed to a process of gathering and analyzing information of
a specified content and displaying the result), SAP America, Inc. v. Investpic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (claims were directed to
performing certain statistical analysis comprising "selecting certain
information, analyzing it using mathematical techniques, and reporting or
displaying the results of the analysis"), Digitech Image Technologies, LLC v.
Electronics for Imaging, Inc., 758 F.3d 1344, 1350-51 (Fed. Cir. 2014)
( claims of the challenged patent were directed to the abstract idea of
organizing information through mathematical correlations), Cyberfone,
558 F. App'x at 992 (claims directed collecting, separating, and transmitting
information), and SmartGene, 555 F. App'x at 955 (claims directed to
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comparing new and stored information and using rules to identify options).
Here, claim 1 involves nothing more than estimating scores by receiving and
determining data, and scoring the results of the determinations without any
particular inventive technology- an abstract idea. See Electric Power,
830 F.3d at 1354; SAP America, 898 F.3d at 1167. As such, we find
unpersuasive the Appellants' arguments that the claim is not similar to what
the courts have identified as abstract ideas and is not similar to Cyberfone,
SmartGene, and Electric Power. See Appeal Br. 11-13; Reply Br. 4--5.
We also find unpersuasive the Appellants' argument that claim 1 is
not abstract because it is "directed to an improvement in computer-related
technology." Appeal Br. 13; see also Reply Br. 5---6. As discussed above,
the processor used to perform the steps of the method is a conventional
processor. Estimating probabilities is an analysis, not a computer-related
technology. See SAP America, 898 F.3d at 1169 ("the focus of the claims is
not any improved computer network, but the improved mathematical
analysis; and indeed the Specification makes clear that off-the-shelf
computer technology is usable to carry out the analysis."). And, we agree
with the Examiner that paragraphs 29 and 30 of the Specification do not
show that computer technology itself is improved. See Ans. 27-28.
Paragraph 29 provides that hypotheses were formed about the speed with
which the process can be executed in big databases, and the hypothesis
considered was "whether the process is so fast that it can be applied on large
data bases." "Random targeting of a given percentage of customers can be
expected to result in the given percentage of repeat buyers. . . . Process 200
outperformed random targeting for every percentage of customers targeted
from at least 10% to almost 100%." Spec ,r 29. "Process 200 is also more
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efficient than the [sic] over the Bayesian Hierarchal model and MCMC
algorithm. The deployed approximation model was demonstrated to be
about 180 times faster over the Bayesian Hierarchal model and MCMC
algorithm." Id. ,r 30. At best, these paragraphs show that the efficiency of
the computer's conventional function of calculating happens to be improved
as a result of a faster mathematical method of calculating. Although these
paragraphs show that the claimed process may lead to a faster calculating
processes, they do not show how the technology itself is improved.
Thus, we are not persuaded of error in the Examiner's determination
that claim 1 is directed to an abstract idea.
The Second Step
The second step is to "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."' Alice Corp., 134 S. Ct. at 2355 (alteration in
original) (quoting Mayo, 566 U.S. at 72-73). The Court acknowledged in
Mayo, that "all inventions at some level embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas." Mayo, 566 U.S.
at 71. We, therefore, look to whether the claims focus on a specific means
or method that improves the relevant technology or are instead directed to a
result or effect that itself is the abstract idea, and merely invoke generic
processes and machinery. See Enfzsh, 822 F.3d at 1336.
We agree with and find supported the Examiner's determination that
the elements of claim 1, individually or as an ordered combination, do not
amount to significantly more than the abstract idea. See Final Act. 9-11;
Ans. 29-32. We do not agree with the Appellants' contention that claim 1
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"recite[s] features that are 'significantly more' than the alleged abstract idea
of 'estimating scores for customers based on the likelihood of repeat
purchase."' Appeal Br. 14; see also id. 15-18; Reply Br. 4---6.
We are not persuaded by the Appellants' argument that the claim is
"directed to a technical solution to a technical problem that is significantly
more than the abstract idea." The Appellants do not state what problem the
invention addresses; rather, the Appellants state "[p ]aragraph 22 of the
present application describes efficiently and accurately scoring customer
lists of any size and scalably meeting the features of big data." Appeal
Br. 14. Although paragraph 22 states "Figure 2 illustrates a method 200 for
use with scoring engine 104 to efficiently and accurately score customer lists
of any size and is scalable to meet the features of big data," there is no
discussion of the problems of the prior art that the invention addresses. And,
as discussed above, paragraphs 29 and 30 simply describe a faster
calculating process. The Background section of the Specification discusses
that firms collect information and use that information for a number of
reasons including projections, and "[ s ]ophisticated statisticians" can apply
the information to create models to guess the likelihood and timing of future
purchases. Spec. ,r 1. Making mathematical/statistical models or guesses
more effective is not a technical problem. See DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) (the claims were
directed to statutory subject matter because they claim a solution
"necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks").
Further, the purported technical solution comprises the use of a
generic processer operating in its routine and conventional way to receive,
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estimate, and analyze data. See Spec. ,r 33. There is no further technology
for performing the recited steps. See Affinity Labs of Texas, LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1263 (Fed. Cir. 2016); see also Enfish,
822 F.3d at 1336 (focusing on whether the claim is "an improvement to [the]
computer functionality itself, not on economic or other tasks for which a
computer is used in its ordinary capacity"). We do not see where the
claimed subject matter provides for an improvement in the technology of the
processor. As discussed above, although the claim limitations may result in
a faster calculating processes, they do not show how the technology itself is
improved. "In order for the addition of a machine to impose a meaningful
limit on the scope of a claim, it must play a significant part in permitting the
claimed method to be performed, rather than function solely as an obvious
mechanism for permitting a solution to be achieved more quickly, i.e.,
through the utilization of a computer for performing calculations." Versata
Develop. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015)
(quoting SiRF Tech., Inc. v. Int'! Trade Comm'n, 601 F.3d 1319, 1333
(Fed. Cir. 2010)). As discussed above, there is no indication in the
Specification that any novel technology or inventive hardware is used.
"[ A ]n invocation of already-available computers that are not themselves
plausibly asserted to be an advance, for use in carrying out improved
mathematical calculations, amounts to a recitation of what is 'well-
understood, routine, [and] conventional." SAP America, 898 F.3d at 1170.
And, receiving, estimating, and analyzing data are well-understood, routine,
and conventional functions of a generic computer. See Electric Power,
830 F.3d at 1354--55; cf Appeal Br. 16.
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The claim recites an invention that is merely the routine or
conventional use of a processor to perform an abstract business/economic
practice. DDR Holdings, 773 F.3d at 1258-59. The Appellants provide no
further argument such as why its particular arrangement and/or integration
of elements is a technical improvement to the field of estimating scores. See
BASCOM Globs. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341, 1350 (Fed. Cir. 2016).
In response to the Appellants' argument that "[a]s explained in detail
below with respect to the prior art rejections, multiple claim features are not
taught by the prior art and are not believed to be well-understood, routine,
and conventional" (Appeal Br. 16), we note that an abstract idea does not
transform into an inventive concept just because the prior art does not
disclose or suggest it. See Mayo, 566 U.S. at 89-90. "Groundbreaking,
innovative, or even brilliant discovery does not by itself satisfy the § 101
inquiry." Ass 'nfor Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 591 (2013). Indeed, "[t]he 'novelty' of any element or steps in a
process, or even of the process itself, is of no relevance in determining
whether the subject matter of a claim falls within the § 101 categories of
possibly patentable subject matter." Diamond v. Diehr, 450 U.S. 175, 188-
89 (1981); see also Mayo, 566 U.S. at 91 (rejecting "the Government's
invitation to substitute§§ 102, 103, and 112 inquiries for the better
established inquiry under § 101 ").
We are also not persuaded by the Appellants' argument that "the
ordered combination of elements in each of the independent claims of the
present application must be considered simply more than organizing human
activities or a fundamental economic practice similar to claim 2 of
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example 21." Appeal Br. 18; see also id. at 17 ( citing July 2015 Update on
Subject Matter Eligibility, 80 Fed. Reg. 146, 45429, Examples4 (July 30,
2015) ("July 2015 Update")). In that hypothetical example, the limitations
related to "transmitting an alert over a wireless communication channel to
activate the stock viewer application, which causes the alert to display and
enables the connection of the remote computer to the data source over the
Internet when the remote subscriber computer comes online" were
considered by the USPTO to "add more than generally linking the use of the
abstract idea ( the general concept of organizing and comparing data) to the
Internet, because they solve an Internet-centric problem with a claimed
solution that is necessarily rooted in computer technology, similar to the
additional elements in DDR Holdings." July 2015 Update, Appendix I, 4.
In contrast, here, as discussed above, the limitations do not solve an Internet-
centric problem with a solution necessarily rooted in computer technology.
In response to the Appellants' argument that "customer scoring can be
done any number of ways, and the above-recited features confine the claims
to very specific application that does not preempt all targeted marketing"
(Appeal Br. 16), we note that although the Supreme Court has described "the
concern that drives this exclusionary principle[, i.e., the exclusion of abstract
ideas from patent eligible subject matter,] as one of preemption" (Alice,
134 S. Ct. at 2354), characterizing preemption as a driving concern for
patent eligibility is not the same as characterizing preemption as the sole test
for patent eligibility. "The Supreme Court has made clear that the principle
of preemption is the basis for the judicial exceptions to patentability" and
4 Available at https://www.uspto.gov/sites/default/files/ documents/ieg-july-
2015-update.pdf.
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"[ f]or this reason, questions on preemption are inherent in and resolved by
the§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015) (citing Alice, 134 S. Ct. at 2354). Although
"preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility." Id.
Thus, we are not persuaded of error in the Examiner's determination
that claim 1 does not contain an inventive concept under the second part of
the Mayo/Alice framework.
Based on the foregoing, we sustain the Examiner's rejection under
35 U.S.C. § 101, of claim 1 and of claims 2--4, 6, 7, 10-15, and 17-19,
which fall with claim 7.
35 USC§ 102(b)-Anticipation
We agree with the Appellants' contention that the Examiner's
rejection of independent claims 1, 11, and 19 is in error because the
Examiner does not adequately show that Davis discloses determining
step ( e) of independent claim 1 and similarly recited in independent
claims 11 and 19. See Appeal Br. 23-24. Specifically, we agree that the
Examiner does not adequately show how Davis discloses determining the
likelihood that the customer will make a repeat purchase during the period
based on the likelihoods of remaining active and willingness to make a
future purchase. See id.
The Examiner finds, in relevant part, that Davis discloses determining
a likelihood the customer remains active during a time period at
paragraphs 37, 38, 42--44, 70, 78, 85, and 128. Final Act. 14. The Examiner
relies on Davis's paragraphs 28, 34, 36-38, 78, 83-85, 98, and 99 for
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disclosing determining the likelihood the customer will make a purchase
during the time period. Id. And the Examiner cites to Davis's
paragraphs 21-23, 34, 36-38, 70, 84, 98, and 99 as disclosing determining
the likelihood of a repeat purchase during the time period from the
likelihoods of remaining active and willing to make a purchase. Id.
Specifically, the Examiner finds that
Davis explicitly teaches the input of collected transactional data
as variables into mathematical formulas, algorithms, and
functions for predictive modeling in order to determine
probabilities of a consumer entering or not entering into
transactions ([0036]-[0038]; [0080]; [0084]; [0095]). All of the
variables and calculated probabilities described in the applicant's
claims are taught by the Davis reference. The Davis reference
discloses determining the likelihood of repeat purchase during a
selected time period for a customer from the likelihood the
customer remains active and the likelihood the customer will
make a purchase during the selected time period ([0021 ]-[0023];
[0034]; [0036]-[0038]; [0070]; [0084]; [0098]-[0099]).
Id. at 32-33.
We agree with the Examiner that Davis discloses determining a
likelihood that the customer remains active in disclosing generating a
probability of lapsing. See Davis ,r,r 38, 44, 45, 85. We also agree with the
Examiner that Davis discloses determining a likelihood that the customer
will make a purchase in disclosing generating a probability of purchasing
items in a specific class. See id. ,r,r 38, 44, 85. However, even if we were to
agree that Davis discloses determining a likelihood of a repeat purchase in
determining a likelihood of the consumer performing a specified transaction
(see id. ,r,r 34, 38, 98), we do not see where or how Davis discloses that the
likelihood of a repeat purchase is determined from the likelihoods of lapsing
and purchasing items in a specific class. We find unsupported the
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Examiner's finding that "[d]etermining the likelihood of a customer making
a repeat purchase during a selected time period necessarily includes
determining the likelihood the customer will make a purchase during the
selected time period and determining the likelihood the customer remains
active in a selected time period." Ans. 40. We also find unsupported the
Examiner's finding that Davis discloses the intermediate determinations of
likelihoods of activeness and willingness that are used in the "mathematical
formulas, algorithms, and functions for predictive modeling in order to
determine probabilities of a consumer entering or not entering into
transactions," i.e., probability of a repeat purchase. Ans. 41--42. Rather, as
the Examiner finds (id.), Davis discloses determining a probability of a
repeat purchase based on transaction data and "demographic data, loyalty
quotient dat[a], and block data in the consumer's record" (Davis ,r 98).
Davis is silent as to whether the probability of lapsing is factored into the
determination of a repeat transaction.
And, we disagree that "'determining a likelihood a customer remains
active in a selected time period', 'determining a likelihood the customer will
make a purchase during the selected time period', and 'determining the
likelihood of the customer making a repeat purchase during the selected time
period" are all "the same generalized concept with different wording."
Ans. 40. Although they are all mathematical correlations, they rely on
different factors in their algorithms to reach the desired results. Thus, we
agree with the Appellants that Davis does not anticipate determining a
likelihood of a repeat purchase as claimed.
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Based on the foregoing, we do not sustain the Examiner's rejection
under 35 U.S.C. § 102(b) of independent claims 1, 11, and 19, and
dependent claims 2, 6, 7, 10, 12, 13, 17, 18, and 22-24.
35 US.C. § 103(a)- Obviousness
For the rejection of dependent claims 3, 4, 14, and 15, the Examiner
relies on the same findings regarding Davis as relied upon for independent
claims 1 and 11. See Final Act. 22, 24. Thus, we also do not sustain the
Examiner's rejection under 35 U.S.C. § 103(a) of dependent claims 3, 4, 14,
and 15 for the same reasons we do not sustain the rejection of independent
claims 1 and 11.
DECISION
TheExaminer'srejectionofclaims 1--4, 6, 7, 10-15, and 17-19under
35 U.S.C. § 101 is AFFIRMED.
The Examiner's rejection of claims 1, 2, 6, 7, 10-13, and 17-19 under
pre-AIA 35 U.S.C. § 102(b) is REVERSED.
The Examiner's rejection of claims 3, 4, 14, and 15 under pre-AIA
35 U.S.C. § 103(a) is REVERSED.
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).
AFFIRMED
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