Thursday, March 1, 2012

Alverson and the abstract idea

Ex Parte Alverson et al, No. 2010-008459 (BPAI Feb 15, 2012) involved a system and method providing business information to a contractor certification system for providing a performance assessment, technical evaluation and certification to assist a surety underwriting a building project.

Owner/inventor David J Alverson brought US Patent Application 10/634,504 before the Board of Patent Appeals and Interferences. The Examiner had rejected claims 1, 2 and 4-13 as being directed to non-statutory subject matter.

Claim 1 for example read as follows:
1. A contractor certification system for obtaining lines of credit for a building contractor comprising:

a. survey means comprising a questionnaire stored in a computer database, which is provided to selected candidates within different organizational levels of a building contractor's business for electronically gathering answers concerning information detailing business and financial practices, said answers being used for assessing business and financial practices of said contractor's practices by an independent third party, said financial practices being used to predicate risk ranking when securing lines of credit for said contractor's business, said business practice information comprising management structure, reporting structure, internal communications procedures, safety and labor management practices, said financial practice information comprising current projects, funding, gross margins and close out procedures;
b. said different organizational levels comprising at least one worker, foremen, project manager, engineer, and principal;
c. mapping means for studying said answers provided to said questionnaire on said computer database to select job site visits and candidates for interviews, said mapping means comprising examining and correlating said answers to determine matches, discrepancies and inadequate details;
d. on-location assessment means for determining business and financial practices at the contractor's operations, said assessment means comprising asking questions to each of said candidates selected through said mapping means and observing examples of the contractor's business practices and financial procedures, said assessment means further comprising visiting several active job sites at which said contractor is involved;
e. comparison means for assessing business and financial practices by way of software evaluation of results obtained from steps a-d, and electronically ranking the contractor in comparison with industry standards; and
f. reporting means for providing a grade indicative of said contractor's rank, said reporting means further comprising computer generation of a comparative report that provides a listing of key risk factors and highlights said business and financial practices and risk factors of said contractor in comparison of said risk factors, said risk factors comprising said operational structure, marketing of new projects, current projects, details of project execution, safety procedures,statutory compliance, project administration, mediation / arbitration procedures and past litigation.
Human thought and processing

The Examiner had objected that Claim 1 claims coverage of a human as an element of the system/apparatus per se. Since the broadest reasonable interpretation of the claimed invention as a whole encompasses a human being, the examiner objected that the claimed invention is directed to non-statutory subject matter.

The Appellants on the other hand argued that “Applicant's claims inextricably rely on numerous machines to process the survey results, determine the risk levels, and thereby calibrate the proper surety risk assessment.”

Claim 1, said the Appellants, passes the machine-or-transformation test.

Citing Bilski v. Kappos, 130 S.Ct. 3218, 3227-3228 (2010), the Board observed that abstract ideas are not patent eligible. Claim 1, said the Board, effectively covers an abstract idea because it incorporates human thought and processing to effect claim functions. The recited computer based solution activity is of insufficient cause to avoid preempting an abstraction under 35 U.S.C. § 101.

Significant part

The Board observed that simply adding a “computer aided” limitation to a claim covering an abstract concept, without more, is insufficient to render the claim patent eligible. See Dealertrack v Huber Case No. 2009-1566 (my blog post).

There was nothing in the Specification that would support using a computer to provide anything more than a solution achieved more quickly, i.e., through the utilisation of a computer for performing calculations. In fact, said the Board, the Risk Technology item is described without mention of any computer implementation making the language generic to both human and a computer based solution.


The Appellants also argued unsuccessfully that the system of claim 1 transforms something because the result is “credible”.

The result of claim 1, said the Board, is that an entity receives a line of credit which does not physically transform that entity into something different. Having more access to credit is nothing more than an exercisable legal right, to be used or not used according to the entity’s financial needs and designs.

Further steps

The Board affirmed the rejection of the Examiner under 35 U.S.C. § 101.

Photo courtesy of authors and neighbours Al and Rose at The Crate Outdoors.

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