The Patent Eligibility Absurdity Continues
“Ignore everything tangible and you are left with an abstract idea—no kidding; of course! Under this rationale, nothing can pass the patent eligibility analysis.”
Recently, it has come to my attention that a system that utilizes a camera to capture images and software to run facial recognition is being rejected by the United States Patent and Trademark Office (USPTO) as an abstract idea. Why? Well, it unfortunately seems that the reason is simply because the purpose of this very tangible, working system is to identify people and charge them a fare. Because money is overtly involved, for reasons that make no rational sense, this is being deemed a business method, despite the facial recognition technology—and even though this is a clean, streamlined approach for conducting commerce.
Claim 1 of U.S. Patent Application No. 16/910719 is representative of the claims being rejected by the patent examiner as abstract:
- A system, comprising: an image-capturing unit configured to capture an image in a predetermined region that accommodates a plurality of persons passing through; an identification unit configured to identify the plurality of persons based on respective faces of the plurality of persons included in an image generated by the image-capturing by the image-capturing unit; and a charging unit configured to charge the plurality of persons identified by the identification unit respective fares that are chargeable to the plurality of persons.
An Unreasonable Interpretation
The examiner says in the Final Rejection that the invention “at best” claims “features that may improve an abstract idea.” The examiner goes on to also make the all too familiar, disingenuous argument that if you take out all computer elements the claimed invention can be performed by a human, which is of course absurd. I know examiners hate it when it is pointed out that they are doing it, but the law says examiners are supposed to give the broadest REASONABLE interpretation to the claim. But even if you unreasonably interpret the breadth of the claim, as the examiner is doing here, it is ridiculous on its face to conclude a brain of a human is an image capture unit.
And the unreasonable breadth of how “image-capturing unit” is interpreted demonstrates the utter nonsense that has become patent eligibility analysis. There is nothing in the application that would suggest in any way, shape, or form that a human without the use of any tangible technology could perform this invention. Indeed, a camera is recited over and over again in the specification, and the specification couldn’t possibly support the unreasonable breadth the examiner is applying to the terms of the claim and the claim as a whole.
How is it possible that an examiner can interpret claim terms and claims in ways that would violate basic disclosure principles set forth in 35 U.S.C. 112? Simply stated, an interpretation of claim terms that is not supported by the specification, which fundamentally expands and alters the invention, cannot possibly be the correct construction. And if the specification can’t possibly support the interpretation by the examiner, that by definition means the interpretation by the examiner is unreasonable and unfounded. Yet, these types of unreasonable interpretations have become commonplace when dealing with patent eligibility analysis.
What the patent applicant should do is file new claims specifically and unambiguously covering a human without any technology performing this method. When the examiner issues a 112 rejection because the specification doesn’t support the claim, this issue can be properly set up for the Board and then ultimately the Federal Circuit. This unreasonable reading of claims to cover things clearly not envisioned by the specification must end.
Everything is Abstract When You Ignore the Tangible
We all know the real problem is that this camera system with facial recognition technology is being interpreted to be a business method since the use of the system is to charge fares. Under that rationale, nothing is patent eligible.
Someone really needs to sue the USPTO for equal protection. The giant corporations that are the Silicon Valley darlings, and the numerous mega banks, are allowed to patent their inventions—all of which are intended to drive money changing hands—but some inventors languish because unreasonably aggressive examiners believe tangible, real-world innovations are merely business methods when money is changing hands. Astonishingly myopic.
To read out the camera and other technologies and claim that once you have you are left only with money changing hands, or something a human could do, violates the most fundamental and basic tenets of claim construction. Ignore everything tangible and you are left with an abstract idea—no kidding; of course! Under this rationale, nothing can pass the patent eligibility analysis. When you read out everything that is tangible, there is nothing but ideas left, because, as even the Supreme Court understands, every invention starts with an idea.
Image Source: Deposit Photos
Author: aga77ta
Image ID: 202737996
Gene Quinn
Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people […see more]
