- American Simmental Association v. Leachman Cattle Of Colorado, LLCAll claims unpatentablePTAB · Jun 13, 2016 · PGR2015-00005 · APJ Michael W Kim · PGR · Final written decision
Claims 1–20 are held unpatentable under § 101; claims 1–4, 8–12, and 14–19 are also obvious over Wang alone. The motion to amend is denied.
RulingsFinal written decision- Skill levelSkill level board ownOther
“Ultimately, we discern that Petitioner and Patent Owner are not very far apart. On education, we agree with Petitioner that evaluating genetic quality is sufficiently complex that it would require, at a minimum, a Master’s Degree in the field. On work experience, we agree with both parties that several years of experience in the field is necessary, with the optimum for a Master’s Degree being five years, and commensurately less for an individual possessing a PhD. We agree with Patent Owner that some understanding of economics and software is required, but agree with Petitioner that such understanding need only be a basic one that can be readily acquired through work experience in the field, with no formal education in that field being necessary. Finally, we disagree with Patent Owner that formal training or experience specific to the feeder calf market needs to be addressed separately, as, for the reasons set forth below, we are unpersuaded that evaluating feeder calves as a subgroup differs materially from evaluation of cattle overall, and that one of ordinary skill in evaluating of genetic quality of cattle generally would not have been familiar with feeder calves specifically, especially when the overwhelming goal of cattle production is to sell beef, of which the primary type sold is feeder calves. Perhaps more importantly, the significance of the level of ordinary skill in the art here is the role it plays in an obviousness analysis, and Patent Owner has not explained in a sufficiently persuasive manner how the disparate definitions impact dispositively the obviousness analysis. See Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of skill in the art is a prism or lens through which a judge, jury, or the Board views the prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.”). Accordingly, unless expressly indicated otherwise, we determine that a specific finding on the level of skill in the art is not required, because the prior art itself reflects an appropriate skill level. See Okajima, 261 F.3d at 1355.” slip op. at 6
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed petitioner constructionDecided for petitioner
“3. “genetic merit scorecard” Each of independent claims 1, 8, and 14 recite “genetic merit scorecard.” Petitioner asserts that “genetic merit scorecard” should be construed as “visual display of genetic merit information.” Pet. 17–18 (citing Ex. 1001). Patent Owner does not dispute this construction. PO Resp. 23–26. After considering all evidence and assertions concerning this claim construction, we agree with Petitioner that “genetic merit scorecard” should be construed as “visual display of genetic merit information.”” slip op. at 11
- Patent Eligibility (§101) › Alice/Mayo step one — 'directed to'Step1 directed to exceptionUnpatentable
“Owner are rooted sufficiently in the express claim language, and in any case, are peripheral to the above-identified fundamental concept, in that while they may represent variations of the fundamental concept, we are unpersuaded that they alter materially the fundamental concept itself. For example, being “dynamic,” while perhaps placing some temporal aspects on “determining an animal’s relative economic value based on its genetic and physical traits,” does not alter the fact that independent claim 1 is fundamentally directed to “determining an animal’s relative economic value based on its genetic and physical traits.” A similar analysis is applicable to “sale group of feeder calves,” “disparate sources,” and “transforming.” The Specification further supports Petitioner’s argument. The “Field of the Invention” section set forth in the ’557 patent reads as follows: Embodiments of the present invention relate generally to the field of genetic quality and relative market value of livestock. More specifically, embodiments of the present invention facilitate an owner or potential buyer of one or more sale groups of livestock to evaluate the relative market value of the sale groups based on predictions derived from genetic merit estimates of the herd. Ex. 1001, 1:23–29. The “Description of Related Art” section that follows delves heavily into problems associated with determining what the actual value of the livestock is, and more specifically what premium or discount the livestock should command based on these desired genetic merits. Ex. 1001, 1:47–49. The first three sentences of the “Summary” section then read as follows: The Applicants recognize the importance of determining relative market value of a sale group or a group of animals offered for sale from a livestock operation. Various embodiments of methods and apparatus for determining relative market value of a sale group are provided herein. Exemplary embodiments of the present invention include an online genetic merit scorecard system. Ex. 1001, 2:6–12. Based on the above cited portions of the ’557 patent, we determine that the Specification supports heavily Petitioner’s proposed fundamental concept. The unambiguous disclosure in the Specification as to the nature of the invention indicates to us that Petitioner has not over-generalized here.” slip op. at 16
- Patent Eligibility (§101) › Alice/Mayo step two — inventive conceptStep2 no inventive conceptUnpatentable
“PO Resp. 66. However, we are unpersuaded that (a) valuing a group of animals is “significantly more” than valuing a single animal, (b) tailoring a price to a user is “significantly more,” and (c) comparison shopping is “significantly more,” whether taken in succession or as a whole. Indeed, these requirements appear to be routine parts of commerce involving the fundamental concept of “determining an animal’s relative economic value based on its genetic and physical traits.” Patent Owner asserts additionally that the claimed invention does not merely recite the alleged abstract idea and say “apply it” on computer components, because the recited computer components are an integral part of rooting the invention in computer technology. Specifically, Patent Owner asserts that the claimed invention involves novel technical software that “transforms genetic and performance information associated with the sale group into a dynamically-generated scorecard available to users on-demand.” PO Resp. 67. We disagree, as the recitation of software in the claim, if any at all, is at a highly abstract level, in that the claims recite no more than taking in and outputting data, with no detail as to how that data is manipulated between input and output.5 Absent such detail, we are unpersuaded that the claims are reciting any more than “applying to software” the fundamental concept of “determining an animal’s relative economic value based on its genetic and physical traits,” which is not “significantly more.” As for “dynamically-generated scorecard available to users on-demand,” our analysis of the same in the abstract idea prong of Alice is equally applicable here, namely, that 5 “MR. COHN: Your Honor, the little calculator that’s in Windows is a dynamic calculator. It’s been there for 25, 30 years. You pull it up. You type in five times two and you hit equals and it spits the answer back to you on demand right there.” Tr. 85:24–86:2. we are unpersuaded that “dynamic” and “on-demand” are sufficiently related to the claims. Patent Owner cites DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) in support of their position, but it is precisely because of the instructive nature of the problem-solution approach in that case that we arrive at our conclusion here. Specifically, DDR Holdings held that the “problem of retaining website visitors” involves a “claimed solution [that] is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” DDR Holdings, LLC, 773 F.3d at 1257. Such is not the case here, where the problem, as clearly articulated above in the aforementioned portions of the Specification, is “determining an animal’s relative economic value based on its genetic and physical traits.” We are unpersuaded that this problem, or its solution, involves or requires anything computer-related. 4. Conclusion For the foregoing reasons, we conclude that Petitioner has shown, by a” slip op. at 20
Patent outcomesUS 8,725,557 unpatentableClaim construction§ 101 eligibility§ 102 anticipation§ 103 obviousnesscites Alice · MayoPatents in suitUS 8,725,557 - American Simmental Association v. Leachman Cattle Of Colorado, LLCAll claims unpatentablePTAB · Jun 13, 2016 · PGR2015-00003 · APJ Michael W Kim · PGR · Final written decision
Claims 1–20 are unpatentable under § 101; the obviousness grounds were not proven because the Angus system was not established as prior art and Wang alone did not disclose the online scorecard.
RulingsFinal written decision- Skill levelSkill level board ownOther
“Ultimately, we discern that Petitioner and Patent Owner are not very far apart. On education, we agree with Petitioner that evaluating genetic quality is sufficiently complex that it would require, at a minimum, a Master’s Degree in the field. On work experience, we agree with both parties that several years of experience in the field is necessary, with the optimum for a Master’s Degree being five years, and commensurately less for an individual possessing a PhD. We agree with Patent Owner that some understanding of economics and software is required, but agree with Petitioner that such understanding need only be a basic one that can be readily acquired through work experience in the field, with no formal education in that field being necessary. Finally, we disagree with Patent Owner that formal training or experience specific to the feeder calf market needs to be addressed separately, as, for the reasons set forth below, we are unpersuaded that evaluating feeder calves as a subgroup differs materially from evaluation of cattle overall, and that one of ordinary skill in evaluating of genetic quality of cattle generally would not have been familiar with feeder calves specifically, especially when the overwhelming goal of cattle production is to sell beef, of which the primary type sold is feeder calves.” slip op. at 7
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for patent owner
“implicitly asserting that “market value of any other market group” only makes sense if it is the “national market average value.” PO Resp. 55–56. We disagree. The claim limitation itself reads “relative market value,” and does not include either the “national” or “average,” and the aforementioned portion of the ’888 7 Divorced from surrounding claim language, we construe “relative market value” as “the market value of something as compared to the market value of any other market group.” patent discloses expressly that “relative market value may be expressed in various ways,” providing a non-limiting example of at least “the market value of a sale group that represents the average progeny of all registered bulls in the country or market region.” Also through their assertions concerning the prior art, Patent Owner appears to be implicitly asserting that by including the phrase “any other market group,” any values used to calculate the “relative market value” must be of a format that is standardized to allow comparisons across all other market groups, for example, across different breeds. PO Resp. 52–56. We disagree. Neither the express claim language nor the aforementioned portion of the ’888 patent requires that any values used to calculate the recited “relative market value,” or even the “relative market value” itself, be comparable across all market groups. Certainly calculating a value of one breed that is of a format that allows direct comparisons to a value of any other breed would appear to be more useful. The claim language itself, however, does not require such a result. For example, even if any values are only applicable to one specific breed, so long as there are two different market groups of that specific breed that are compared using that format, the value resulting from that comparison would still meet the recited “relative market value.” To eliminate any such confusion, we modify the aforementioned construction of “relative market value,” in the context of the aforementioned surrounding claim language, as follows: “the market value of a sale group as compared to the market value of at least one other market group.”” slip op. at 9
- BurdenNot shown unpatentable
“determine that its corroborative value is compromised by a variety of factors, to the point where we determine that it does not provide sufficient corroboration for Ms. Kurtz’s testimony that the document and the information it contains was available online at least as early as June 8, 2011. As an initial matter, we find that Exhibit 1014 was generated after every possible priority date. Ex. 2033, 57:7–58:6 (Ms. Kurtz testified, concerning Exhibit 1014, that “[i]t was actually printed last year is when I sent those to counsel.”) We find further that in attempting to make sense of the dates of the various documents, Ms. Kurtz had to consult the “IS department,” which also weighs against her testimony that she was personally aware that “[t]he revision date is the date on which Angus, through AngusSource, began providing electronic marketing documents to the public which have the same form, layout, and data as shown in Angus 2.” Ex. 1011 ¶ 6; Ex. 2033, 27:14– 28:2. We find additionally that changes were made at various times to the website on which Exhibit 1014 resides, and there is no definitive evidence presented in this proceeding as to which changes were made at which time. Ex. 2033, 28:8–31:6, 45:14–17, 46:1–47:7. To be sure, we find Ms. Kurtz to be credible, in that after reviewing all of the deposition testimony, we find that she was honest and sincere in trying to provide the most accurate information possible. The problem, however, is that her statement in the Declaration at paragraph 6, that she was personally aware that Exhibit 1014 existed in its exact form prior to every effective date, is in conflict with her testimony on cross-examination that she had to consult the IS department concerning the mechanics of the dates printed in Exhibit 1014, and that the format of Exhibit 1014 may have been altered between every possible priority date and the time that Exhibit 1014 was printed. Accordingly, given the weak corroborative value of Exhibit 1013, and the now-discounted corroborative value of Exhibit 1014, we conclude that Exhibits 1013 and 1014, collectively, do not constitute sufficient evidence to corroborate the Declaration of Ms. Kurtz that the Angus system is prior art.” slip op. at 20
- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable
“Wang and the Angus system as corresponding to the recited “online genetic merit scorecard.” Pet. 56–58, 61–65, 68–71; see also Pet. Reply 20–21. As set forth above, we determined that Petitioner has not met its burden of showing that the Angus system is prior art. Accordingly, Petitioner must rely on Wang alone for the “online genetic merit scorecard.” Aside from the Angus system, Petitioner relies on paragraphs 11, 14, and 72 of Wang (Ex. 1004) for disclosing an “online genetic merit scorecard.” Pet. 57–58. We have considered paragraphs 11, 14, and 72 of Wang, and find that while they do provide disclosure that corresponds properly to “genetic merit scorecard,” construed above as “visual display of genetic merit information,” Petitioner has not pointed to any disclosure or provided any analysis, unrelated to the Angus system, concerning the “online” aspect of “online genetic merit scorecard.” To be sure, at a high level, the fact that the “genetic merit scorecard” may be “online” seems like a relatively minor distinction, especially given that the ’888 patent has an earliest possible priority date of April 13, 2013. Furthermore, it is unclear how much weight should be given to “online,” in that it is possible that any computer output, in a sense, can be considered capable of being placed “online.” Additionally, Wang does provide some disclosure that a computer is connected to databases, and that the computer is used to “generate the output rankings and individual animal estimated breeding values” (Ex. 1004 ¶ 11, 14), which could, perhaps, be enough to be considered “online.” Petitioner, however, has not advanced any of the above assertions, nor provided evidence in support thereof. See 35 U.S.C. § 326(e) (“In a post-grant review instituted under this chapter, the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence.”) Absent such assertions or evidence, we determine that Petitioner has not met its burden of showing, by a preponderance of the evidence, that the “online” aspect of “online genetic merit scorecard,” as recited in each of independent claims 1, 9, and 16, is obvious in view of Wang alone.10” slip op. at 22
Patent outcomesUS 8,660,888 unpatentableClaim construction§ 101 eligibility§ 103 obviousnesscites Alice · Mayo · PhillipsPatents in suitUS 8,660,888 - Motorola Mobility, LLC v. Intellectual Ventures I, LLCAll claims unpatentablePTAB · Mar 21, 2016 · CBM2015-00004 · APJ Phillip J Kauffman · CBM · Final written decision
Claims 1, 8, 16, and 17 are unpatentable under § 101 because they claim the abstract idea of distributing electronic content using only routine, conventional activity.
RulingsFinal written decision- BurdenDecided for petitioner
“Final Written Decision is entered pursuant to 35 U.S.C. § 328(a). For the reasons that follow, we determine that Petitioner has shown by a preponderance of the evidence that claims 1, 8, 16, and 17 of the ’464 patent are unpatentable.” slip op. at 2
- ExcludeMotion to exclude, deniedDenied
“This argument is unpersuasive for two independent reasons. First, Petitioner’s objections do not mention an alleged failure to identify all material relied upon, and consequently the objection did not identify the grounds for the objection with sufficient particularity to permit Patent Owner to correct in the form of supplemental evidence. See 37 C.F.R. § 42.64(b)(1), (c). Second, our rules provide that the opinion of an expert witness may be given little or no weight if the expert does not disclose the underlying facts or data on which the opinion relies. See 37 C.F.R. § 42.65. Therefore, the absence of such underlying facts or data is a matter relating to the weight to be given such evidence rather than to the admissibility of that evidence. Further, Petitioner does not identify a Federal Rule of Evidence that supports exclusion as requested, and Petitioner’s citation to the Federal Rules of Civil Procedure (FRCP) is unpersuasive because the Board has not adopted those rules. See Mot. 2; Opp. Reply 2; 37 C.F.R. § 42.62 (applying the Federal Rules of Evidence (“Fed. R. Evid.”) to inter partes reviews); see generally Atlanta Gas Light Company v. Bennett Regulator Guards, Inc., Case IPR2013-00453, slip op. at 8 n.5 (PTAB Jan. 6, 2015) (Paper 88) (noting that the Board has not adopted the Federal Rules of Civil Procedure).” slip op. at 10
- Expert testimonyPetitioner expert creditedDecided for patent owner
“EXHIBIT 2010 – THE DECLARATION OF DR. SHORT Petitioner presents five arguments that all or some of the Declaration of Dr. Short (Ex. 2010) should be excluded. Before addressing those arguments, we observe that Dr. Short’s qualifications align sufficiently with the challenged subject matter (software for use on a user station) such that his knowledge is helpful in understanding the evidence and determining facts in issue. For example, as noted by Patent Owner, Dr. Short has a Ph.D. in Electrical Engineering and more than 35 years of experience as a practicing engineer, which includes experience in computer programming. Opp. 2–3; Ex. 2010 ¶¶ 5–7; Ex. 2019 (Dr. Short’s personal data sheet).” slip op. at 10
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for patent owner
“Claim 1 is directed to a software product comprised of computer executable instructions for use at a user station that includes a processor and a storage device. Step (a) recites “enable a user at the user station to select content,” and step (b) recites “effect transport of the selected content.” Step (b) requires effecting transport of the content that was selected (i.e., “the selected content”) in step (a). Use of the past tense of select (i.e., “selected”) in step (b) indicates that selection of the content occurred before transport was effected. Consequently, the language of claim 1 indicates that step (a) (the selecting step) must occur before step (b) (the transporting step). Likewise, step (c) effects storage of “the transported content,” meaning the content transported in step (b), and step (d) requires effecting presentation of “the stored content,” meaning the content that was stored in step (c). Accordingly, the plain language of claim 1 suggests that the steps must be performed in the order presented. See PO Resp. 25; see also E-Pass Techs., Inc. v. 3Com Corp., 473 F.3d 1213, 1222 (Fed. Cir. 2007) (holding that where subsequent steps to completed results of the prior step, the steps of the claim must be performed in order). We consider this interpretation, in light of the specification, as interpreted by a person of ordinary skill in the art. See Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (“The construction that stays true to the claim language and most” slip op. at 7
Patent outcomesUS 6,658,464 unpatentableClaim construction§ 101 eligibilitycites Alice · Mayo · PhillipsPatents in suitUS 6,658,464 - Viglink, Inc. / Skimlinks, Inc. et al. v. Linkgine, Inc.All claims unpatentablePTAB · Mar 16, 2016 · CBM2014-00184 · APJ Kristina M Kalan · CBM · Final written decision
Claims 1–6 are unpatentable under § 101 and § 102(a) over Landau; claim 7 is unpatentable under § 101 but not shown anticipated by Landau.
RulingsFinal written decision- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownOther
“The Board interprets claims in an unexpired patent using the broadest reasonable construction in light of the specification of the patent in which they appear. 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1277–79 (Fed. Cir. 2015) (“We conclude that Congress implicitly approved the broadest reasonable interpretation standard in enacting the AIA.”), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 890 (mem.) (2016). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning in view of the specification, as would be understood by one of ordinary skill in the art at the time of the invention. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Claim terms generally are given their ordinary and customary meaning, unless it appears from the specification or the file history that they were used differently by the inventor, in a clear, deliberate, and precise manner. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In instituting trial, we expressly construed the terms “automatic/automatically” to mean “without human intervention.” Dec. 7–8. Neither party specifically addresses or contests this claim construction. Accordingly, we maintain our construction of the terms “automatic/automatically” to mean “without human intervention.”” slip op. at 7
- Patent Eligibility (§101) › Alice/Mayo step one — 'directed to'Step1 directed to exceptionUnpatentable
“We note that the fundamental issue at hand, allocating commissions, can be performed by humans, or with the aid of pencil and paper. See, e.g., Mortgage Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (noting that the steps of the claims could be performed by a human without the use of a computer in concluding that the claims at issue were drawn to an abstract idea); Tr. 17:16–21. Although we have considered Patent Owner’s arguments to the contrary, we see little difference between replacing one character set with another character set to denote the recipient of a commission and the type of fundamental economic practices considered to be abstract ideas in Alice Corp. and Bilski.2 As established by the record, the concept of commissions, as well as the practice of allocating commissions, existed long before the internet. See, e.g., Pet. 8–9 (citing Ex. 1004, 128, 132, 356–57).” slip op. at 11
- Patent Eligibility (§101) › Alice/Mayo step two — inventive conceptStep2 no inventive conceptUnpatentable
“Patent Owner’s argument that the claims are meaningfully limited because they recite steps performed by an intermediate computer is unavailing. PO Resp. 22–23. We are not convinced that reciting a standard computer performing a standard computer operation imposes meaningful limitations on the abstract idea. We agree with Petitioner that the disclosures regarding the technical details of the “intermediary computer” are sparse, and do not make the intermediary computer specialized. Claims do not become patent-eligible under § 101 simply for reciting a known, general purpose computer. Benson, 409 U.S. at 67 (invalidating as patent-ineligible claimed processes that “can be carried out in existing computers long in use, no new machinery being necessary,” or “can also be performed without a computer”). The Supreme Court rejected a similar argument, determining that “the claims at issue amount to ‘nothing significantly more’ than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer.” Alice Corp., 134 S. Ct. at 2360 (quoting Mayo, 132 S. Ct. at 1298).” slip op. at 15
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableNot shown unpatentableMixed
“Based on Petitioner’s argument and the record before us, we are persuaded that Landau discloses a preferred affiliate code. Landau’s lookup operation determines that the existing affiliate code (Landau’s source Webmaster ID) is present, but recognizes that it is not the preferred affiliate code to complete the transaction. The existing affiliate code (Landau’s source Webmaster ID) is swapped out for the preferred affiliate code (Landau’s target Webmaster ID). The target Webmaster ID is the preferred affiliate code used by Landau to complete the transaction. Use of the word “preferred” to modify the term “affiliate code” indicates that the preferred affiliate code is a different element than existing affiliate code, and is preferred to the existing affiliate code within the affiliate manipulation system. We have not been directed by Patent Owner to any portion of the specification that persuasively indicates otherwise.3 Thus, Landau’s identification of the target Webmaster ID as the preferred alternative affiliate code to the existing affiliate code meets this limitation of the claims.” slip op. at 19
Patent outcomesUS 7,818,214 unpatentableClaim construction§ 101 eligibility§ 102 anticipationcites Alice · MayoPatents in suitUS 7,818,214 - Viglink, Inc. / Skimlinks, Inc. et al. v. Linkgine, Inc.All claims unpatentablePTAB · Mar 16, 2016 · CBM2015-00087 · APJ Kristina M Kalan · CBM · Final written decision
Claims 1–8 are unpatentable: claims 1–7 are anticipated by Landau, and claims 1–8 are anticipated by Priest.
RulingsFinal written decision- Skill levelOther
- ExcludeMotion to exclude, deniedDenied
“which Patent Owner responded (Paper 34) and on which Petitioner filed a Reply (Paper 35). Petitioner’s motion seeks to exclude Exhibits 2003 and 2004 as irrelevant. Mot. to Excl. 1–4. The moving party has the burden of proof to establish that it is entitled to the requested relief. 37 C.F.R. § 42.20(c). Patent Owner does not cite to Exhibits 2003 and 2004 in its Response, and we do not rely upon Exhibits 2003 and 2004 in our present determination. The Motion to Exclude, therefore, need not be decided as to these Exhibits. Accordingly, the Motion to Exclude is dismissed as to Exhibits 2003 and 2004.” slip op. at 33
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)Term construed board ownOther
“In instituting trial, we expressly construed the terms “automatic/automatically” to mean “without human intervention.” Dec. 7–8. Neither party specifically addresses or contests this claim construction. Accordingly, we maintain our construction of the terms “automatic/automatically” to mean “without human intervention.” B. Patentability of Claims 1–8 Under 35 U.S.C. § 101” slip op. at 8
- Patent Eligibility (§101) › Alice/Mayo step one — 'directed to'Step1 directed to exceptionUnpatentable
“We note that the fundamental issue at hand, allocating commissions, can be performed by humans, or with the aid of pencil and paper. See, e.g., Mortgage Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (noting that the steps of the claims could be performed by a human without the use of a computer in concluding that the claims at issue were drawn to an abstract idea); Tr. 17:16–21. Although we have considered Patent Owner’s arguments to the contrary, we see little difference between replacing one character set with another character set to denote the recipient of a commission and the type of fundamental economic practices considered to be abstract ideas in Alice Corp. and Bilski.2 As established by the record, the concept of commissions, as well as the practice of allocating commissions, existed long before the internet. See, e.g., Pet. 8–9 (citing Ex. 1004, 128, 132, 356–57).” slip op. at 11
Patent outcomesUS 8,027,883 unpatentableClaim construction§ 101 eligibility§ 102 anticipationcites Alice · MayoPatents in suitUS 8,027,883 - Viglink, Inc. / Skimlinks, Inc. et al. v. Linkgine, Inc.All claims unpatentablePTAB · Mar 16, 2016 · CBM2015-00086 · APJ Kristina M Kalan · CBM · Final written decision
Claims 1–7 are unpatentable under § 101; claims 1–6 are also anticipated by Landau, but claim 7 was not shown anticipated.
RulingsFinal written decision- Patent Eligibility (§101) › Alice/Mayo step one — 'directed to'Step1 directed to exceptionUnpatentable
“We note that the fundamental issue at hand, allocating commissions, can be performed by humans, or with the aid of pencil and paper. See, e.g., Mortgage Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (noting that the steps of the claims could be performed by a human without the use of a computer in concluding that the claims at issue were drawn to an abstract idea); Tr. 17:16–21. Although we have considered Patent Owner’s arguments to the contrary, we see little difference between replacing one character set with another character set to denote the recipient of a commission and the type of fundamental economic practices considered to be abstract ideas in Alice Corp. and Bilski.2 As established by the record, the concept of commissions, as well as the practice of allocating commissions, existed long before the internet. See, e.g., Pet. 8–9 (citing Ex. 1004, 128, 132, 356–57).” slip op. at 11
- Patent Eligibility (§101) › Alice/Mayo step two — inventive conceptStep2 no inventive conceptUnpatentable
“Patent Owner’s argument that the claims are meaningfully limited because they recite steps performed by an intermediate computer is unavailing. PO Resp. 22–23. We are not convinced that reciting a standard computer performing a standard computer operation imposes meaningful limitations on the abstract idea. We agree with Petitioner that the disclosures regarding the technical details of the “intermediary computer” are sparse, and do not make the intermediary computer specialized. Claims do not become patent-eligible under § 101 simply for reciting a known, general purpose computer. Benson, 409 U.S. at 67 (invalidating as patent-ineligible claimed processes that “can be carried out in existing computers long in use, no new machinery being necessary,” or “can also be performed without a computer”). The Supreme Court rejected a similar argument, determining that “the claims at issue amount to ‘nothing significantly more’ than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer.” Alice Corp., 134 S. Ct. at 2360 (quoting Mayo, 132 S. Ct. at 1298).” slip op. at 15
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableNot shown unpatentableMixed
“Based on Petitioner’s argument and the record before us, we are persuaded that Landau discloses a preferred affiliate code. Landau’s lookup operation determines that the existing affiliate code (Landau’s source Webmaster ID) is present, but recognizes that it is not the preferred affiliate code to complete the transaction. The existing affiliate code (Landau’s source Webmaster ID) is swapped out for the preferred affiliate code (Landau’s target Webmaster ID). The target Webmaster ID is the preferred affiliate code used by Landau to complete the transaction. Use of the word “preferred” to modify the term “affiliate code” indicates that the preferred affiliate code is a different element than existing affiliate code, and is preferred to the existing affiliate code within the affiliate manipulation system. We have not been directed by Patent Owner to any portion of the specification that persuasively indicates otherwise.3 Thus, Landau’s identification of the target Webmaster ID as the preferred alternative affiliate code to the existing affiliate code meets this limitation of the claims.” slip op. at 19
- ExcludeMotion to exclude, deniedDenied
“which Patent Owner responded (Paper 36) and on which Petitioner filed a Reply (Paper 37). Petitioner’s motion seeks to exclude Exhibits 2003 and 2004 as irrelevant. Mot. to Excl. 1–4. The moving party has the burden of proof to establish that it is entitled to the requested relief. 37 C.F.R. § 42.20(c). Patent Owner does not cite to Exhibits 2003 and 2004 in its Response, and we do not rely upon Exhibits 2003 and 2004 in our present determination. The Motion to Exclude, therefore, need not be decided as to these Exhibits. Accordingly, the Motion to Exclude is dismissed as to Exhibits 2003 and 2004.” slip op. at 26
Patent outcomesUS 7,818,214 unpatentable§ 101 eligibility§ 102 anticipationcites Alice · MayoPatents in suitUS 7,818,214 - Viglink, Inc. / Skimlinks, Inc. et al. v. Linkgine, Inc.All claims unpatentablePTAB · Mar 16, 2016 · CBM2014-00185 · APJ Kristina M Kalan · CBM · Final written decision
Claims 1–8 are unpatentable under § 101 and anticipated by Priest; claims 1–7 are also anticipated by Landau, but claim 8 is not.
RulingsFinal written decision- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner
“The Board interprets claims in an unexpired patent using the broadest reasonable construction in light of the specification of the patent in which they appear. 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1277–79 (Fed. Cir. 2015) (“We conclude that Congress implicitly approved the broadest reasonable interpretation standard in enacting the AIA.”), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 890 (mem.) (2016). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning in view of the specification, as would be understood by one of ordinary skill in the art at the time of the invention. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Claim terms generally are given their ordinary and customary meaning, unless it appears from the specification or the file history that they were used differently by the inventor, in a clear, deliberate, and precise manner. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In instituting trial, we expressly construed the terms “automatic/automatically” to mean “without human intervention.” Dec. 7–8. Neither party specifically addresses or contests this claim construction. Accordingly, we maintain our construction of the terms “automatic/automatically” to mean “without human intervention.” B. Patentability of Claims 1–8 Under 35 U.S.C. § 101” slip op. at 7
- Patent Eligibility (§101) › Alice/Mayo step one — 'directed to'Step1 directed to exceptionUnpatentable
“We note that the fundamental issue at hand, allocating commissions, can be performed by humans, or with the aid of pencil and paper. See, e.g., Mortgage Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (noting that the steps of the claims could be performed by a human without the use of a computer in concluding that the claims at issue were drawn to an abstract idea); Tr. 17:16–21. Although we have considered Patent Owner’s arguments to the contrary, we see little difference between replacing one character set with another character set to denote the recipient of a commission and the type of fundamental economic practices considered to be abstract ideas in Alice Corp. and Bilski.2 As established by the record, the concept of commissions, as well as the practice of allocating commissions, existed long before the internet. See, e.g., Pet. 8–9 (citing Ex. 1004, 128, 132, 356–57).” slip op. at 11
- Patent Eligibility (§101) › Alice/Mayo step two — inventive conceptStep2 no inventive conceptUnpatentable
“Patent Owner’s argument that the claims are meaningfully limited because they recite steps performed by an intermediate computer is unavailing. PO Resp. 20–21. We are not convinced that reciting a standard computer performing a standard computer operation imposes meaningful limitations on the abstract idea. We agree with Petitioner that the disclosures regarding the technical details of the “intermediary computer” are sparse, and do not make the intermediary computer specialized. Claims do not become patent-eligible under § 101 simply for reciting a known, general purpose computer. Benson, 409 U.S. at 67 (invalidating as patent-ineligible claimed processes that “can be carried out in existing computers long in use, no new machinery being necessary,” or “can also be performed without a computer”). The Supreme Court rejected a similar argument, determining that “the claims at issue amount to ‘nothing significantly more’ than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer.” Alice Corp., 134 S. Ct. at 2360 (quoting Mayo, 132 S. Ct. at 1298).” slip op. at 16
- Novelty / Anticipation (§102) › Anticipation standard (single reference, every element)UnpatentableNot shown unpatentableMixed
“Based on Petitioner’s argument and the record before us, we are persuaded that Landau discloses a preferred affiliate code. Landau’s lookup operation determines that the existing affiliate code (Landau’s source Webmaster ID) is present, but recognizes that it is not the preferred affiliate code to complete the transaction. The existing affiliate code (Landau’s source Webmaster ID) is swapped out for a preferred affiliate code (Landau’s target Webmaster ID). The target Webmaster ID is the preferred affiliate code used by Landau to complete the transaction. Use of the word “preferred” to modify the term “affiliate code” indicates that the preferred affiliate code is a different element than existing affiliate code, and is preferred to the existing affiliate code within the affiliate manipulation system. We have not been directed by Patent Owner to any portion of the specification that persuasively indicates otherwise.3 Thus, Landau’s identification of the target Webmaster ID as the preferred alternative affiliate code to the existing affiliate code meets this limitation of the claims.” slip op. at 20
Patent outcomesUS 8,027,883 unpatentableClaim construction§ 101 eligibility§ 102 anticipationcites Alice · MayoPatents in suitUS 8,027,883
Holdings, summaries, rulings, issues, outcomes, winners and claim constructions shown for a decision were generated by a large language model reading the opinion. They are a guide to the decision, not the decision. Confirm every one against the court's own text before relying on it. Outcomes read from the patent owner’s side. Party names are extracted from the decision and are missing on about 900 short Director denials and scans, which carry the trial number instead.