Wednesday, May 9, 2018

IBM wins reversal of Alice rejections for targeted ad delivery at airports

Takeaway: Finding, under step two of the Alice analysis, the rejected claims to recite an advancement to the technology for delivering targeted advertising, the Patent Board reversed § 101 rejections of claims directed to delivery of targeting advertising in airports.

Note: This is the first of two posts covering the same PTAB decision.  For the other, see "Patent Board extends software per se, printed matter doctrines to reject computer-readable media (CRM) claims".


Ex parte Musial

Appeal No. 2017-001164; Application No. 13/396,177; Tech. Center 3600
Decided: Apr. 30, 2018

Inventors for IBM filed an application relating to "a computer implemented method, data processing
system, and computer program product for . . . distributing advertisements to receptive audiences", and more specifically captive audiences sitting in airport terminals waiting to board their flights, or aboard airplanes waiting to take off or deboard.  The Board reproduced rejected independent claim 14 as representative:
14.     A computer program product for selecting an advertisement, the computer program product comprising:
         a computer readable non-transitory medium having computer readable program code stored thereon, the computer readable program code comprising:
                  program instructions to receive a first check-in corresponding to at least one person, wherein the first check-in is a indication of presence relative to an airport gate servicing a flight and the first check-in is received from a kiosk;
                  program instructions to receive a second check-in to form an aggregation of people, wherein the second check-in is a indication of presence relative to the airport gate servicing the flight;
                  program instructions to characterize the aggregation based on cumulative characteristics selected of at least one vital statistic of each person checking-in to form an aggregated population characteristic;
                  program instructions to receive flight details concerning the flight, wherein the flight details comprise a flight destination, and the advertisement concerns a service provider at the flight destination;
                  program instructions to select at least one advertisement based on the aggregated population characteristic and the flight details, in response to the second check-in;
                  program instructions to receive a check-out of at least one person, wherein the check-out comprises reading an identifier of an at least one person who departs;
                  program instructions to select at least one advertisement based on the aggregated population characteristic;
                  program instructions to second characterize the aggregation based on the cumulative characteristics to form a second cumulative characteristic based on the aggregation without at least one vital statistic corresponding to the at least one person who departs, wherein the program instructions to select at least one advertisement based on the aggregated population characteristic perform to select the at least one advertisement is based on the second cumulative characteristic;
                  program instructions to select at least one advertisement based on the second cumulative characteristic, and a destination of the flight details, wherein the destination is stated within the at least one advertisement;
                  program instructions to dispatch the at least one advertisement; and
                  program instructions to detect presence of a service vehicle associated with a flight near and outside an aircraft associated with the flight, wherein the detecting presence relies on at least one global positioning satellite (GPS) signal received at the service vehicle and reported as location data to the hardware processor, wherein program instructions to dispatch comprises instructions to dispatch the at least one advertisement to the service vehicle for rendering and such dispatching is responsive to detecting presence of the service vehicle.
(Emphasis added.)  The Board summarized the claim as computer program products for distributing advertisements to an aggregation of people in an airport, using a service vehicle associated with a flight for which the people have checked-in, where such service vehicles can include fuel trucks, food and beverage delivery trucks, and baggage handling equipment.

The examiner rejected the claims under § 101 as being directed to ineligible subject matter, specifically, the abstract idea of "displaying advertisements based on an aggregation of people which falls into the category of . . . a method of organizing human activities, . . . [and] an idea of itself."  Under step two of the Alice analysis, the examiner found the claim to offer "no more than the recitation of generic computer structure that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry."

The applicants argued that by placing its display apparatus on a service vehicle like a fuel truck, and detecting the presence of the vehicle near an airplane to display the selected ad, the computer program product permits useful information to reach its users within the airplane, which was unique and inventive:
[A] number of heterogeneous links between disparate machines and people occur, in some cases, in an ad hoc basis, to form a network that allows communication that would be impossible or difficult otherwise.  In other words, a conventional approach would be to use extra machinery within the aircraft.  But because aircraft need to be maintained when such machinery breaks, and weight is a factor in aircraft fuel efficiency, the more complex computer program product and supporting devices are necessary.
In an advisory action, the examiner "disagree[d]" that the claims presented significantly more than an abstract idea: "[T]here appears to only be an electronic device that runs/performs/executes the abstract idea manipulation. . . . [The asserted] improvements described by Applicant are not actual improvements to the technology."  The applicants filed a pre-appeal request, relying solely on DDR Holdings, LLC v., L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), but were told to take it to the Board.

The examiner argued, on appeal, that the service vehicle amounted to a kiosk, and that "[t]he claimed kiosk and GPS are electronic devices that run/perform/execute the abstract idea manipulation.  These claimed devices perform the same functionality that they would normally perform and do not lend themselves to any type of unconventional processing."  Rejecting the idea that the claims improved any technology, the examiner found that the
claims seek to address a problem that existed and continues to exist outside of the realm of the technology associated with the additionally recited elements (targeted advertising).  The proposed solution is one that could have been implemented directly by a human performing analogous functions by hand and/or with the assistance of a general purpose computer applied to facilitate the functions at a high level of generality or with the assistance of additional elements performing well-known, conventional functions.
The appellants' reply brief complained that the examiner failed to explain
how dispatching an advertisement for rendering at a service vehicle would be conventional given that passengers/users who have checked-in/checked-out are not even on or in that service vehicle.  A fair characterization would be that to render such advertisements (or even the mere dispatching of advertisements) to such a vehicle runs counter to the notion that passenger/users should be entertained/informed within the aircraft.  Rather, such an approach, as described in the claim limitations, is odd, counter-intuitive and unconventional. . . . [An] unconventional feature is the feature of bringing destination related information to the eyes of network-stranded occupants of an aircraftwhich is unheard ofgiven the frequent admonitions of flight crews to turn all connected devices to a disconnected state. . . . Certainly, it is unconventional to dispatch and/or render material for an audience on a vehicle that the audience does not even occupy. Accordingly, again, the Office again fails to consider the synergy of the claim combination, and incorrectly states that the ordered combination adds nothing.
Citing to the holding in Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d
1341, 1349-50 (Fed. Cir. 2016), that "an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces," the Board found that, contrary to the examiner's allegations, "[t]he ordered combination of Appellants' steps thus recites an advancement to the technology for delivering targeted advertising."  Reversing the examiner, the Board found:
[T]he ordered combination of steps in claims 14 and 21 is directed to a specific technological solution to a specific problem pertaining to targeted advertising, namely the problem of assessing receptiveness to various advertisements and then advertising to changing captive audiences in airport areas where network access may be limited or constrained. . . . Therefore, claims 14 and 21 include "additional features" that ensure the claims are "more than a drafting effort designed to monopolize [an abstract idea]." Alice, 134 S. Ct. at 2357.
My two cents: 

As noted in the Board's decision, targeted advertising claims have repeatedly been found to amount to unpatentable abstract ideas.  Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015); Affinity Labs of Tex., LLC v., Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016); ); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713 (Fed. Cir. 2014); Morsa v. Facebook, Inc., 77 F. Supp. 3d 1007 (C.D. Cal. 2014), aff'd, 622 F. App'x 915 (Fed. Cir. 2015); OpenTV, Inc. v. Netflix Inc., 76 F. Supp. 3d 886, 893 (N.D. Cal. 2014).

But there's a lot going on in the claims at issue, and the examiner's analysis was little more than conclusory.  The examiner failed to contradict that the claims involved a number of interactive elements that inventively combined to produce what the applicants referred to as a "creepy" effect of seeing an evidently targeted ad on a vehicle out an airplane window.  As such, the Board was able to find that the claims amounted to "something more" than an attempt at monopolizing "displaying advertisements based on an aggregation of people", which was the abstract idea to which the examiner found the claims to be directed.  The examiner declined to consider that targeted advertising was a technology that could be improved and was, in fact, improved by the claims.

Although the examiner's analysis was deficient, it was all too typical of rejections made under Alice.  The extent of the analysis in many rejections is still limited to whether claims include non-computing elements "[o]nce the abstract idea is removed", as went the examiner's reasoning in the advisory action.  Even when such elements are present, examiners typically dismiss them as "insignificant extrasolution activity", making it difficult to draft and defend even inventive claims without having to go to the Board.

So, the Board got it right in reversing the Alice rejections, if for no other reason than that the examiner failed to set forth a prima facie case of ineligibility under the Alice framework.  But right about here is where the decision in this case takes a left turn into the Twilight Zone, in a twist so surprising that it's worth devoting a whole other blog post to analyzing: although the claims clear Alice, they're still ineligible under § 101 as software per se and printed matter!  (No way!  Yes, way!  No, actually, no way.)

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