USPTO Issues Post-Alice Abstract Idea Examples

by McDonnell Boehnen Hulbert & Berghoff LLP
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USPTO SealOn January 27, the USPTO provided its promised set of examples of patent-eligible and patent-ineligible claims relating to the abstract idea exception to 35 U.S.C. § 101, in light of Alice Corp. v. CLS Bank.  These examples are intended to be used in conjunction with the Office's 2014 Interim Guidance on Patent Subject Matter Eligibility.  While the latter document includes examples of claims that were considered by the Supreme Court or Federal Circuit, some of the new examples are hypothetical claims designed to illustrate the contours of § 101.

Out of the eight example claims, four are considered by the Office to be patent-eligible, while four are not.  Additionally, five of these claims appear to be identical to those of particular Federal Circuit cases, two claims are based on particular Federal Circuit cases, and one claim appears to be fashioned by the Office for purposes of example.  (Actually, more than eight claims are provided, as some of the examples include distinct method, computer-readable media, and/or system claims; but for purposes of this discussion we will consider only one claim per example, as statutory category does not impact the analysis of patent-eligibility of any claim.)

These example claims may prove useful when prosecuting applications before the Office, or in IPR proceedings.  However, it is unlikely that courts will give deference to the Office's reasoning in this memo, to the extent that it goes beyond that of the Supreme Court or Federal Circuit.

With respect to business method claims, these examples provide little additional insight.  The Office does not provide an example of an eligible business method, perhaps because the Supreme Court and Federal Circuit have yet to find any business method patent-eligible.

However, with respect to computer-implemented claims, these examples elucidate the difference between the recent Ultramercial v. Hulu and DDR Holdings v. Hotels.com cases.  The former indicates that adding a limitation such as "the Internet" to an otherwise disembodied method claim will not render that claim patent-eligible, while the latter holds that making a fundamental change to how a networked server operates is patent-eligible.  Consequently, applicants and patentees may focus their § 101 arguments on the similarities between their claims and those of DDR, as well as the differences between their claims and those of Ultramercial.

Another notable point in these examples is that the two claims based on particular Federal Circuit cases are both based on pre-Alice cases, and the Office provides narrower versions of each herein.  It appears that the Office may be walking back from their analysis of these cases in the 2014 Interim Eligibility Guidance, where the Office suggested that these claims would survive review under Alice.

Eligible Example 1: Isolating and Removing Malicious Code from Electronic Messages

A computer-implemented method for protecting a computer from an electronic communication containing malicious code, comprising executing on a processor the steps of:
    receiving an electronic communication containing malicious code in a computer with a memory having a boot sector, a quarantine sector and a non-quarantine sector;
    storing the communication in the quarantine sector of the memory of the computer, wherein the quarantine sector is isolated from the boot and the non-quarantine sector in the computer memory, where code in the quarantine sector is prevented from performing write actions on other memory sectors;
    extracting, via file parsing, the malicious code from the electronic communication to create a sanitized electronic communication, wherein the extracting comprises
    scanning the communication for an identified beginning malicious code marker,
    flagging each scanned byte between the beginning marker and a successive end malicious code marker,
    continuing scanning until no further beginning malicious code marker is found, and
    creating a new data file by sequentially copying all non-flagged data bytes into a new file that forms a sanitized communication file;
    transferring the sanitized electronic communication to the non-quarantine sector of the memory; and
    deleting all data remaining in the quarantine sector.

This claim recites a method for protecting a computer from electronic communication (e.g., email) that potentially includes malicious code (e.g., a computer virus).  While the communication is in quarantined memory, the computer scans the communication for a beginning malicious code marker and an end malicious code marker, flagging all bytes between these markers.  The computer then creates a new version of the communication without the flagged bytes, releases it from the quarantine memory, and deletes the original version of the message.

According to the Office, "[t]he claim is directed towards physically isolating a received communication on a memory sector and extracting malicious code from that communication to create a sanitized communication in a new data file," and [s]uch action does not describe an abstract concept" similar to those of Bilski v. Kappos or Alice.  Instead, the claim is "inextricably tied to computer technology."  Consequently, the claim is patent-eligible, and there is no need to carry out the two-prong patent-eligibility analysis of Alice.

Eligible Example 2: E-Commerce Outsourcing System/Generating a Composite Web Page

This example claim is that of DDR Holdings, LLC v. Hotels.com, a case that we have already discussed in detail (see this previous analysis for a presentation of the claim).  The claim is directed to "automatically generating and transmitting a web page in response to activation of a link using data identified with a source web page having certain visually perceptible elements."

In the Office's view, this claim "does not recite a mathematical algorithm; nor does it recite a fundamental economic or longstanding commercial practice."  Instead, it "addresses a business challenge (retaining website visitors) that is particular to the Internet."  But unlike business method claims that merely recite the performance of a business practice over the Internet, the claim is "necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks."

The Office suggests that the claim is patent-eligible, and that there is no need to carry out the two-prong patent-eligibility analysis of Alice.  However, the Office also notes that in the actual case, the Federal Circuit found that additional limitations in the claim amounted to more than just applying an abstract idea on the Internet, and therefore the claim would pass the second-prong of the Alice test.

Eligible Example 3: Digital Image Processing

A computer-implemented method for halftoning a gray scale image, comprising the steps of:
    generating, with a processor, a blue noise mask by encoding changes in pixel values across a plurality of blue noise filtered dot profiles at varying gray levels;
    storing the blue noise mask in a first memory location;
    receiving a gray scale image and storing the gray scale image in a second memory location;
    comparing, with a processor on a pixel-by-pixel basis, each pixel of the gray scale image to a threshold number in the corresponding position of the blue noise mask to produce a binary image array; and
    converting the binary image array to a halftoned image.

This claim is based on that of Research Corporation Technologies Inc. v. Microsoft Corp., a pre-Alice Federal Circuit decision, but recites a more specific variation of the invention.  Particularly, the claim recites "generating a blue noise mask and using that blue noise mask to halftone a gray scale image."

Due to the iterative mathematical operations of the claim, and because mathematical operations are examples of abstract ideas, the Office concludes that this claim is directed to an abstract idea.  Notably, the Office indicated that the background of the patent defines generation of the blue noise mask to be a mathematical operation, which is a suggestion to applicants that what they say in the specification may have a role in determining the patent-eligibility of their claims.

Applying the second prong of the Alice test, the Office notes that the claim's recitation of generic processor and memory elements "is not sufficient to transform a judicial exception into a patentable invention."  However, the claim also recites "comparing the blue noise mask to a gray scale image to transform the gray scale image to a binary image array and converting the binary image array into a halftoned image," which "tie the mathematical operation (the blue noise mask) to the processor's ability to process digital images."  Further (and again looking to the patent's specification), the Office states that, when viewed as an ordered combination, "the steps recited in addition to the blue noise mask improve the functioning of the claimed computer itself," as well as digital image processing technology.  In particular, the claimed invention "allows the computer to use to less memory than required for prior masks, results in faster computation time without sacrificing the quality of the resulting image as occurred in prior processes, and produces an improved digital image."  As a result, the claim would pass the second prong of the Alice test, and therefore be patent-eligible.

Eligible Example 4: Global Positioning System

A system for calculating an absolute position of a GPS receiver and an absolute time of reception of satellite signals comprising:
    a mobile device comprising a GPS receiver, a display, a microprocessor and a wireless communication transceiver coupled to the GPS receiver, the mobile device programmed to receive PN codes sent by a plurality of GPS satellites, calculate pseudo-ranges to the plurality of GPS satellites by averaging the received PN codes, and transmit the pseudo-ranges, and
    a server comprising a central processing unit, a memory, a clock, and a server communication transceiver that receives pseudo-ranges from the wireless communication transceiver of the mobile device, the memory having location data stored therein for a plurality of wireless towers, and the central processing unit programmed to:
    estimate a position of the GPS receiver based on location data for a wireless tower from the memory and time data from the clock,
    calculate absolute time that the signals were sent from the GPS satellites using the pseudo-ranges from the mobile device and the position estimate,
    create a mathematical model to calculate absolute position of the GPS receiver based on the pseudo-ranges and calculated absolute time,
    calculate the absolute position of the GPS receiver using the mathematical model, and
    transmit the absolute position of the GPS receiver to the mobile device, via the server communication transceiver, for visual representation on the display.

This claim is based on that of SiRF Technology Inc. v. International Trade Commission, another pre-Alice Federal Circuit decision.  Like the previous claim, this example claim is narrower than that of the claim at issue in the case.  The claim recites ways to "improve GPS techniques by enabling the mobile GPS receiver to determine its position more accurately and improve its signal-acquisition sensitivity to operate even in weak-signal environments."

Applying the Alice test, the Office finds that that claim recites "mathematical operations (e.g., calculating pseudo-ranges and absolute times, and the mathematical model)" which fall into the category of abstract ideas.

In regard to the second prong of the test, the Office notes that merely reciting a generic CPU, memory and clock adds nothing to the patent-eligibility of the claim.  But, these elements act in concert with the claimed mobile device "to improve an existing technology (global positioning) by improving the signal-acquisition sensitivity of the receiver to extend the usefulness of the technology into weak-signal environments and providing the location information for display on the mobile device."  When viewed as a whole, these features amount to significantly more than the abstract idea.  Therefore, the claim is patent-eligible.

Ineligible Example 5: Digital Image Processing

This example claim is that of Digitech Image Tech., LLC v. Electronics for Imaging, Inc., a post-Alice case that we have already discussed in detail (see this previous analysis for a presentation of the claim).  The claim is directed to "generating first data and second data using mathematical techniques and combining the first and second data into a device profile."

The Office notes that the claim is directed to an abstract idea because it "simply describes the concept of gathering and combining data by reciting steps of organizing information through mathematical relationships."  Due to the fact that the claim does not recite any additional elements beyond this abstract idea, the claim is not patent eligible.

Ineligible Example 6: The Game of Bingo

This example claim is that of Planet Bingo, LLC v. VKGS LLC, another post-Alice case that we have already discussed in detail (see this previous analysis for a presentation of the claim).  The claim involves "an automated Bingo system having the ability to print sets of numbers on tickets . . . , track the sale of the tickets and to validate winning tickets."

The Office indicates that the claim recites computerized steps of "managing a game of Bingo, including for example inputting and storing two sets of Bingo numbers, assigning a unique player identifier and control number, and verifying a winning set of Bingo numbers," and that these steps recite a way of organizing human activity similar to those of Bilski and Alice.  Therefore, the claim is directed to an abstract idea.

While the claim also recites "a computer with a central processing unit (CPU), memory, a printer, an input and output terminal, and a program," these generic computer components merely instruct one to implement the abstract idea on a computer.  With no further meaningful limitations, the claim amounts to no more than the abstract idea itself.

Ineligible Example 7: E-Commerce providing Transaction Performance Guaranty

A method, comprising:
    receiving, by at least one computer application program running on a computer of a safe transaction service provider, a request from a first party for obtaining a transaction performance guaranty service with respect to an online commercial transaction following closing of the online commercial transaction;
    processing, by at least one computer application program running on the safe transaction service provider computer, the request by underwriting the first party in order to provide the transaction performance guaranty service to the first party,
    wherein the computer of the safe transaction service provider offers, via a computer network, the transaction performance guaranty service that binds a transaction performance guaranty to the online commercial transaction involving the first party to guarantee the performance of the first party following closing of the online commercial transaction.

This claim is from buySAFE, Inc. v. Google, Inc., another post-Alice Federal Circuit decision.  The Office describes the claim as reciting "methods for conducting reliable transactions in an e-commerce environment."

In applying the Alice test, the Office finds that "the steps of creating a contract, including receiving a request for a performance guaranty (contract), processing the request by underwriting to provide a performance guaranty and offering the performance guaranty" describe the creation of a contractual relationship, similar to the abstract idea of Bilski.  The Office also notes that "narrowing the commercial transactions to particular types of relationships or particular parts of that commercial transaction (e.g., underwriting) would not render the concept less abstract."  As a result, the claim is directed to an abstract idea.

Applying the second prong of Alice, the Office concludes that "the claim limitations in addition to the abstract idea include a computer application running on a computer and the computer network."  These recitations of generic computer technology do not amount to more than the abstract idea itself, and consequently the claim is not patent-eligible.

Ineligible Example 8: Distribution of Products over the Internet

This example claim is that of Ultramercial v. Hulu, a post-Alice case that we have already discussed in detail (see this previous analysis for a presentation of the claim).  The claim is directed to "distributing products covered by intellectual property, such as copyright, over a telecommunications network by allowing a consumer to choose to view or interact with a sponsor's message in exchange for access to copyrighted material."  For instance, one may be required to watch an advertisement before viewing an online video.

In applying the Alice test, the Office finds that the claim "describes the concept of using advertising as an exchange or currency," which is similar to the claimed subject matter of Bilski.  Thus, the claim is directed to an abstract idea.

With respect to the second prong of the test, the additional limitations of "accessing and updating of an activity log . . . only represent insignificant pre-solution activity," while "requiring a consumer request and restricting public access is insignificant pre-solution activity."  Further, recitation of "the Internet" is "simply an attempt to limit the abstract idea to a particular technological environment."  Thus, the claim is not patent-eligible.

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