PTAB Affirms Patent Eligibility of Claims for Using Dwell Time to Rank Search Results

In a decision issued last month, the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office reversed the final rejection of all pending claims in U.S. Application No. 12/814,020, for which the real party in interest is eBay.

The claims at issue are directed to methods and systems for managing how search results are ranked and presented to a user of a trading or e-commerce application.  The application aims to balance the desires of buyers, sellers, and intermediaries, to best present "items" (i.e., products and services) that are being offered for sale, to increase the chances that a "transaction" (e.g., a sale) involving such items will occur.  To accomplish this, the claimed invention involves ranking listings based at least in part on "dwell time" -- that is, the amount of time that the user spends interacting with or viewing a webpage containing information about a listing of an item for sale.  More particularly, dwell time refers to the time that elapses between when the user navigates to such a page from a display of search results and when the user navigates away from the page.

The claims had been rejected under 35 U.S.C. § 101 as being directed to an abstract idea.  Representative claim 18 is shown below.  The other independent claims (a system and CRM) recite similar limitations.

18.  A method comprising:
    identifying a plurality of listings stored in a listing database as search results;
    determining, using a processor, a respective dwell time associated with each of the plurality of listings, the dwell time based on an elapsed amount of time one or more users view a page describing the listing, and the dwell time associated with a likelihood o f a transaction occurring with respect to the listing; and
    ranking the listings composing the identified plurality of listings based at least in part on the respective dwell time associated with each of the plurality of listings.

The bulk of the Examiner's position analogized the claims to advertising, at one point calling the claims a "business model for advertising on the web."  More particularly, the Examiner cited the Federal Circuit's decisions in Cyberfone and Digitech, arguing that the claims are directed to the abstract idea of "organizing search listings, a type of advertising, ranked by the time that a user views the advertisement" or, put simply, "sales and marketing actions or behaviors."  The Examiner also argued that claims recite generic computer functionality and do not recite any limitations that would add significantly more than the alleged abstract idea.

In the briefing, the Appellants attempted to argue that the Examiner did not establish a prima facie case of patent-ineligibility, but the Board disagreed.  The Appellants also argued that the claims are directed not to advertising, but rather to a "specific way in which relevant search result can be identified and ranked" (i.e., using dwell time), and thus provide an improvement to computer technology similar to patent-eligible claims in cases such as DDR Holdings.  The Board agreed with this argument, particularly noting the recited use of dwell time and how the invention, similar to that in DDR Holdings, addresses an "Internet-centric challenge":

We determine claim 1 is directed not only to the "business idea" of organizing (ranking) search results, but claim 1 also is directed to the use of dwell time, which is an Internet-centric challenge.  . . .  Thus, just as in DDR Holdings, here Appellants' claim 1 is not directed to an abstract idea because it does "not merely recite the performance of some business practice known from the pre-Internet world along with the requirement to perform it on the Internet."  Claim 1 is not directed to an abstract idea because it "is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks."

(citations omitted)

The Board thus reversed the Examiner's rejections.

While welcome, this decision is further evidence of the Board's inconsistent patent-eligibility determinations.  One could imagine a different panel reaching the opposite decision.  Still, the bar for patent-eligible improvements to computer technology is often set too high, and this decision is a refreshing entry that lowered the bar.

Another thing worth noting:  the Examiner's rejection here appeared to lack a great deal of substance, yet the Board did not agree as much.  For example, the Appellants repeatedly pointed out in their briefings and responses that the Examiner did not attempt to articulate why the claims are similar to Cyberfone and Digitech.  Less substantive § 101 rejections weren't all that uncommon years ago (and occur a bit too often even today), but it is still a bit surprising that the Board dismissed the Appellants' arguments to this point despite so matter-of-factly reaching a conclusion of patent-eligibility in this short decision.

Ex parte Bolivar (PTAB 2018)
Panel:  Administrative Patent Judges Strauss, Barry, and Bennett
Decision on Appeal by Administrative Patent Judge Barry