Okay, I know last week I said I wouldn’t blog about every PTAB opinion citing to the 2019 Revised Subject Matter Eligibility Guidance, but turns out that I am going to do it for one more week. Next week I will do my best to make some sort of pretty visualization. I promise (with fingers crossed, just in case). Here is a very quick recap of 27 more PTAB opinions that have come out citing to the 2019 Guidance.
As I quickly skimmed through these opinions I mostly found them consistent and unsurprising. But there were handful that I thought were debatable and 2 that kind of stuck in my craw.
2 affirmances that I don’t like
14/169,866 (PTAB says: “method of organizing human activity”):
receiving a first data set, the first data set including anonymized transaction data representing purchase transactions made by customers of a merchant;
receiving a second data set, the second data set including anonymized transaction data representing purchase transactions made by cardholders in a payment network;
filtering the second data set to remove therefrom data relating to cardholders who are not customers of the merchant;
processing said first data set and said filtered second data set using a probabilistic engine to establish linkages between data in the first data set and data in the filtered second data set;
selecting a first data attribute with respect to data in the first data set or other data supplied by the merchant;
selecting at least one second data attribute with respect to data in the filtered second data set for which linkages exist with data in the first data set;
defining a predictive model having at least one independent variable and a dependent variable, said at least one independent variable corresponding to said selected at least one second data attribute and said dependent variable corresponding to said selected first data attribute;
performing calculations using the predictive model to generate output data; and
appending the output data to the first data set.
My problem with this one is not so much that the claim is absolutely patent eligible (although I think it is), but that a bit of hand waiving is central to the decision. The Board writes:
As to the first step of the Alice framework the Examiner states that, “[t]aken as a whole, the claim recites the abstract idea of using two different data sets which are then processed and used to develop a model for predicting customer behavior” that is considered to be “mathematical relationships/formulas (i.e. which provide a prediction of customer shopping or buying behavior based on past patterns).” Final Action 15. The Examiner alternatively identifies the abstract idea as “processing customer data from different databases for the purpose of generating a predictive model of customer behavior,” which the Examiner regards as a type of “mathematical and/or statistical formulation.” Id. at 14. The Examiner also compares the present claims to those involved in Versata Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306 (Fed. Cir. 2015), explaining that the present claims amount to an “application of linking data to form a predictive model” that is “merely a method of calculating.” Answer 10. Viewed through the lens of the 2019 Revised Guidance, 84 Fed. Reg. at 52, the Examiner’s analysis depicts the claimed subject matter as one of the ineligible “[c]ertain methods of organizing human activity” that include “advertising, marketing or sales activities or behaviors” and “business relations.”
So the Examiner said its directed to either: (1) “using two different data sets which are then processed and used to develop a model for predicting customer behavior,” which somehow is merely a “mathematical relationship/formula;” or (2) “processing customer data from different databases for the purpose of generating a predictive model of customer behavior,” which is also inexplicably merely a “mathematical relationship/formula;” or (3) “application of linking data to form a predictive model;” which is “merely a method of calculating.” The Board seems to realize the examiner’s “all roads lead to math” approach is not going to work, so it just waives its hand and says “so really what the examiner is saying is that this is directed to certain methods of organizing human activity.” Really? Because I am pretty sure the examiner did NOT say that. Honestly, I think they would have been better off going with “mental process.” I might have bought that.
In reality I think the problems with these claims is that they: (a) are perceived as being too broad (a 112, not 101 issue), and (b) mention “transactions” and “merchants.” If there is one take away from the 30+ opinions so far it is that you should do everything in your power to avoid admitting your invention is somehow related to financial transactions. The smell of money on a claim is the smell of death.
1. A non-transitory computer-readable medium having instructions stored thereon that, when executed by a processor, cause the processor to automatically optimize a configurable invoice matching engine, the automatic optimizing comprising:
receiving a set of historical invoice matching data that comprises invoices classified by the invoice matching engine and resolution actions initiated by the invoice matching engine, wherein the invoice matching engine classifies the invoices based on a current set of invoice matching tolerance parameters and initiates the resolution actions based on a current set of invoice matching action parameters, the current set of invoice matching tolerance parameters including an exact match parameter, a tolerance match parameter and a non-match parameter, and the current set of invoice matching action parameters including:
an exact match parameter that defines an exact match resolution action that the invoice matching engine initiates in response to classifying the invoice as an exact match with the purchase document,
a tolerance match parameter that defines a tolerance resolution action that the invoice matching engine initiates in response to classifying the invoice as a match within a tolerance with the purchase document, and
a non-match parameter that defines a non-match resolution action that the invoice matching engine initiates in response to classifying the invoice as a non-match with the purchase document;
defining a processing level parameter that defines a level of granularity for calculating an overall cost, the level of granularity including a global level, a supplier level and an item level, the global level providing improved processor performance over the supplier level and the item level, and the supplier level providing improved processor performance over the item level, the global level calculating an overall cost for all suppliers and item types, the supplier level calculating an overall cost for each supplier, and the item level calculating an overall cost for each supplier and item type;
defining a set of fixed factor parameters that define cost values associated with the invoice matching engine initiating resolution actions;
calculating a set of historical factor parameters that define metric values based on the historical invoice matching data;
calculating a current overall cost associated with the invoice matching engine initiating resolution actions based on the level of granularity, the current set of invoice matching tolerance parameters, the current set of invoice matching action parameters, the set of fixed factor parameters, and the set of historical factor parameters;
calculating a plurality of alternate overall costs, associated with the invoice matching engine initiating resolution actions, based on the level of granularity and a plurality of alternate sets of invoice matching tolerance parameters, each alternate set including at least one different tolerance parameter value;
determining an optimal set of invoice matching tolerance parameters based on comparing the current overall cost with the plurality of alternate overall costs; and
adjusting the current set of invoice matching tolerance parameters to the optimal set of invoice matching tolerance parameters.
Here the part that rubs me the wrong way is:
We note the preamble of claim 1 is expressly directed to “automatically optimizing a configurable invoice matching engine” which we conclude is directed to a certain method of organizing human behavior, i.e., a fundamental economic practice.
Really? Optimizing an engine is a fundamental economic practice? I’m calling B.S. Again, I think the PTAB just doesn’t want to see anything finance related. If the matching engine matched something other than “invoices” and there was no mention of “cost” in the claim, I think it would have avoided 101.
2 reversals that I could see going the other way
13/709,517 (PTAB says: “We fail to see how the claimed process of partitioning transportation routing problems is directed to an economic concept”):
1. A method for automated partitioning of transportation routing problems by a data processing system, comprising:
determining, by the data processing system, a threshold number of shipments per partition, wherein determining a threshold number of shipments per partition is determined dynamically based on a heuristic function;
initially dividing, by the data processing system, a routing problem into geographic centers to form a plurality of geographic center routing problems for each of the geographic centers;
selecting, by the data processing system, a geographic center from the geographic centers;
mapping, by the data processing system, delivery and/or pickup sites at geographic locations around the geographic center;
scanning, by the data processing system, radially around the geographic center to determine a sparsest or densest region of the sites and selecting a starting point in this region;
progressing, by the data processing system responsive to the scanning, from the starting point radially around the geographic center aggregating the sites into partitions with a maximum of the threshold number of shipments in each partition; and
outputting, for each of the partitions, a set of routes that each comprise a vehicle, list of shipments for the vehicle, and unload events associated with the vehicle.
This one seems like it could be done mentally? I am not suggesting it should have been rejected on that grounds, I am just saying I would not have been surprised. But even if it could be done mentally, so what? If this is a new and non-obvious method that could, for example, reduce the cloud of smoke that the 1950s-era USPS truck spews outside my window everyday, then that is the type of invention I want the patent system to promote. I don’t care if it is carried out by a specially-built UNIVAC or class of third graders on their Mead 5-Star notebooks.
14/037,357 (PTAB says: “the dynamic variable display of optional information on a display is not an abstract idea”):
receiving an engagement request, at one or more servers of a network application from a client device, including an indication that a user has begun a transaction using a client application on the client device;
determining, by the one or more servers in response to the engagement request, whether providing personal information maintained at the network application will increase a probability that the user completes the transaction using the client application on the client device;
dynamically displaying, in a user interface of the client application, a user selectable option to complete the transaction using the personal information maintained by the one or more servers of the network application based on a determination that providing the personal information from the network application will increase the probability that the user completes the transaction using the client application on the client device; and
dynamically refraining from displaying, in the user interface of the client application, the user selectable option to complete the transaction using the personal information
maintained by the one or more servers of the network application based on a determination that providing the personal information from the network application will not increase the probability that the user completes the transaction using the client application on the client device.
You know all that stuff I said above about anything related to a financial transaction getting axed under 101? That’s why I was very surprised by this opinion. But, ultimately this claim is about a specific way of controlling a user interface of a client application, which I think should be good enough to get to the heart of the order (112, 102, 103).
23 more opinions (to be continued…)
Update 2/15/2019: 23 more opinions discussed in this follow-up post.
