Zuili v. Google LLC

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICK ZUILI,
Appellant
v.
GOOGLE LLC,
Appellee
______________________
2017-2161, 2017-2258, 2017-2267
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
CBM2016-00008, CBM2016-00021, CBM2016-00022.
______________________
Decided: February 9, 2018
______________________
PATRICK ZUILI, Boca Raton, FL, pro se.
ANDREW JOHN PINCUS, Mayer Brown LLP, Washing-
ton, DC, for appellee. Also represented by PAUL
WHITFIELD HUGHES, SAQIB SIDDIQUI, JONATHAN
WEINBERG; ROBERT G. PLUTA, Chicago, IL.
______________________
Before PROST, Chief Judge, REYNA and WALLACH, Circuit
Judges.
2 ZUILI v. GOOGLE LLC
WALLACH, Circuit Judge.
Appellee Google LLC (“Google”) filed petitions with
the U.S. Patent and Trademark Office’s (“USPTO”) Pa-
tent Trial and Appeal Board (“PTAB”), seeking covered
business method (“CBM”) patent review of claims 1–3, 6,
10, 14–15, 18–19, and 21 of U.S. Patent No. 7,953,667(“the ’667 patent”), claims 1–3, 5–6, 10–11, 14–15, and 17
of U.S. Patent No. 8,326,763 (“the ’763 patent”), and
claims 1, 5, 9, and 11 of U.S. Patent No. 8,671,057 (“the
’057 patent”) (collectively, “the Asserted Claims”) (collec-
tively, “the Patents-in-Suit”). The Patents-in-Suit teach a
method and system that relate to identifying invalid or
illegitimate “impressions” and “clicks” for online “pay-per-
click” and “pay-per-impression” advertisers. 1 ’057 patent,
Abstract; see ’667 patent, Abstract; ’763 patent, Abstract.
The PTAB issued three final written decisions in
which it found, inter alia, (1) the Patents-in-Suit eligible
for CBM review pursuant to the Leahy-Smith America
Invents Act (“AIA”), Pub L. No. 112-29, § 18, 125 Stat.
284, 329–31 (2011); and (2) the Asserted Claims directed
to patent-ineligible subject matter under 35 U.S.C. § 101(2012). 2 See Google Inc. v. Zuili (Google I), No. CBM2016-
00021, 2017 WL 2080392, at *20 (P.T.A.B. May 5, 2017)
(’667 patent); Google Inc. v. Zuili (Google II), No. CBM-
2016-00022, 2017 WL 2116956, at *19 (P.T.A.B. May 5,
2017) (’763 patent); 3 Google Inc. v. Zuili (Google III), No.
1 Pay-per-click is “when advertisers pay upon users
actually clicking,” and pay-per-impression is “when adver-
tisers pay based on number of views.” ’057 patent, Ab-
stract.
2 Congress did not amend § 101 when it passed the
AIA. See generally Pub. L. No. 112-29, 125 Stat. 284.
3 Because of the similarities between the specifica-
tions of the ’763 and ’667 patents and the nearly identical
nature of the PTAB’s reasoning in Google I and Google II,
ZUILI v. GOOGLE LLC 3
CBM2016-00008 (P.T.A.B. Apr. 24, 2017) (’057 patent)
(Appellee’s App. 1000–37). Appellant Patrick Zuili ap-
peals. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(4)(A) (2012). We affirm.
DISCUSSION
Mr. Zuili has three primary contentions on appeal,
arguing (1) the Patents-in-Suit are not eligible for CBM
review, see Appellant’s Br. 51–63, (2) the PTAB erred in
finding the Asserted Claims patent-ineligible under § 101,
see id. at 63–72, and (3) the overall integrity of the PTAB
proceedings may be compromised, see, e.g., id. at 18–36,
93–96. We address each argument in turn.
I. Eligibility for CBM Review
“CBM review is limited to patents ‘that claim a meth-
od or corresponding apparatus for performing data pro-
cessing or other operations used in the practice,
administration, or management of a financial product or
service, except that the term does not include patents for
technological inventions.’” Blue Calypso, LLC v. Groupon,
Inc., 815 F.3d 1331, 1338 (Fed. Cir. 2016) (quoting Pub. L.
No. 112-29, § 18(d)(1), 125 Stat. at 331). In evaluating
whether a patent falls within the technological invention
exception, the PTAB considers “whether the claimed
subject matter as a whole recites a technological feature
that is novel and unobvious over the prior art; and solves
a technical problem using a technical solution.” 37 C.F.R.
§ 42.301(b) (2017). We have reviewed the PTAB’s inter-
pretation of the language of AIA § 18(d)(1) in Google I–III
and determine that it accords with our case law. See
Google II, 2017 WL 2116956, at *4–5, *7–8; Appellee’s
App. 1006–11, 1013–14. Accordingly, “[w]e review the
for ease of reference we cite only to the ’763 patent and
Google II when referring to either patent or their related
proceedings, unless otherwise noted.
4 ZUILI v. GOOGLE LLC
[PTAB]’s reasoning” in its application of the CBM statute
“under the arbitrary and capricious standard and its
factual determinations under the substantial evidence
standard.” Blue Calypso, 815 F.3d at 1339.
The PTAB determined that claim 1 of each of the Pa-
tents-in-Suit meets the financial product or service re-
quirement because the claimed method detects fraudulent
clicks for the financial activity of pay-per-click advertis-
ing. See Google II, 2017 WL 2116956, at *5 (citing ’763
patent col. 1 ll. 35–47) (“We find . . . that a pay-per-click
system provides advertising of goods and services, for
payment of money[, and thus] is itself a financial product
and provides a financial service.”); Appellee’s App. 1012–
13 (citing ’057 patent col. 1 ll. 28–31, 48–61, col. 3 ll. 2–5)
(“[W]e find . . . each valid click is a transaction for which
the merchant is charged a fee and each invalid click is a
fraudulent transaction that should be deducted from the
merchant’s invoice.”). 4 The PTAB also found the statute’s
technological invention exception does not save any of the
Patents-in-Suit from CBM review because (1) the ’057
patent is directed to the “business problem” relating to
“undesirable level[s] of expenditure on the part of the
merchant [caused] by [user] over-clicking” rather than
using a “technical solution” to solve a “technical problem,”
4 To arrive at this conclusion, the PTAB found the
preambles of claim 1 of each of the Patents-in-Suit to be
limiting. See Google II, 2017 WL 2116956, at *6; Appel-
lee’s App. 1011–12. Although Mr. Zuili argues that none
of the claims’ preambles are limiting, see Appellant’s Br.
53–54, 59, we have independently reviewed the specifica-
tion (including the claims) of the Patents-in-Suit and find
that the relevant preambles are limiting, see Catalina
Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801,
808 (Fed. Cir. 2002) (setting forth the standards to deter-
mine if a preamble is limiting).
ZUILI v. GOOGLE LLC 5
Appellee’s App. 1015–16 (internal quotation marks omit-
ted) (quoting ’057 patent col. 1 ll. 49–50), and (2) the ’667
and ’763 patents “do[] not recite a technological feature
that is novel and unobvious over the prior art,” Google II,
2017 WL 2116956, at *10; see id. at *8–9 (citing, inter
alia, ’763 patent col. 1 ll. 34–37, col. 2 ll. 13–19; Appellee’s
App. 1694–97 (testimony of Google’s expert, Stephen
Gray)). We do not detect error in the PTAB’s findings or
reasoning and, therefore, conclude that the Patents-in-
Suit are CBM patents eligible for review.
II. Patent Eligibility Under 35 U.S.C. § 101Under § 101, a patent claim is ineligible if “(1) it is ‘di-
rected to’ a patent-ineligible concept,” such as an “abstract
idea,” and “(2), if so, the particular elements of the claim,
considered ‘both individually and “as an ordered combina-
tion,”’ do not add enough to ‘“transform the nature of the
claim” into a patent-eligible application.’” Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016) (quoting Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134
S. Ct. 2347, 2355 (2014)). We review § 101 determina-
tions de novo. See Intellectual Ventures I LLC v. Syman-
tec Corp., 838 F.3d 1307, 1312 (Fed. Cir. 2016).
We hold that the Asserted Claims are directed to the
abstract idea of collecting, transmitting, analyzing, and
storing data to detect fraudulent and/or invalid clicks
based on the time between two requests by the same
device or client. See, e.g., ’057 patent col. 5 ll. 17–37
(claim 1); ’667 patent col. 2 l. 61–col. 3 l. 15 (claim 1),
col. 3 ll. 46–61 (claim 10), col. 4 ll. 12–30 (claim 14), col. 4
ll. 42–60 (claim 18); ’763 patent col. 2 l. 59–col. 3 l. 8
(claim 1), col. 3 ll. 37–50 (claim 10), col. 4 ll. 17–30 (claim
14). 5 We previously have determined that similar claims
5 We cite only to the independent claims of the Pa-
tents-in-Suit because “[Mr. Zuili] has not separately
6 ZUILI v. GOOGLE LLC
are directed to patent-ineligible subject matter. See, e.g.,
Elec. Power, 830 F.3d at 1353 (finding claims that, inter
alia, “collect[]” and “analyz[e]” information directed to
abstract ideas); In re TLI Commc’ns LLC Patent Litig.,
823 F.3d 607, 609 (Fed. Cir. 2016) (finding claims that,
inter alia, “transmit[]” digital images directed to the
“abstract idea of . . . storing digital images”). Moreover,
although we have stated that claims “purporting to im-
prove the functioning of the computer . . . might not
succumb to the abstract idea exception,” Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016), the
Asserted Claims recite the use of generic computer com-
ponents performing conventional activities to carry out
the claimed invention, see, e.g., ’057 patent col. 5 ll. 18–19
(“web page” and “computing device”), 22 (use of conven-
tional “code” without explaining further), 26 (“communi-
cation network”); ’667 patent col. 2 l. 63 (“search engine”),
col. 3 ll. 3–4 (“plurality of links associated with a plurality
of websites”); ’763 patent col. 3 ll. 40–43 (discussing
“client side” and “server side” devices); Appellee’s
App. 1695–97 (providing a statement by Mr. Gray that
“the claimed components are generic computer compo-
nents” and that certain claims “recite generic computing
features” (emphases added)); cf. In re TLI Commc’ns, 823
F.3d at 612 (finding claims “directed to the use of conven-
tional or generic technology in a nascent but well-known
environment” do not survive Alice step one).
The Asserted Claims do not recite an inventive con-
cept. When claims, such as the Asserted Claims, are
“directed to an abstract idea” and “merely requir[e] gener-
ic computer implementation,” they “do[] not move into
argued the patent eligibility of the dependent claims and
thus has waived any argument that those claims should
be analyzed separately.” Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1264 n.4 (Fed. Cir. 2016).
ZUILI v. GOOGLE LLC 7
[§] 101 eligibility territory.” buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1354 (Fed. Cir. 2014) (internal quota-
tion marks and citation omitted); see BASCOM Glob.
Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341, 1350 (Fed. Cir. 2016) (recognizing that claims
directed to an abstract idea that add “the requirement to
perform it on the Internet” do not state an inventive
concept). We have considered Mr. Zuili’s remaining § 101
arguments and conclude that the Asserted Claims are not
patent eligible.
III. Integrity of the PTAB Proceedings
Mr. Zuili asserts various theories that the integrity of
the PTAB proceedings have been tainted. See, e.g., Appel-
lant’s Br. 18–36, 93–96. We have independently reviewed
Mr. Zuili’s claims in light of the record but find his claims
insufficiently supported. For instance, Mr. Zuili avers
that the USPTO’s Director sought to improperly influence
the PTAB proceedings by stacking the judges on the CBM
panel to Mr. Zuili’s detriment, see, e.g., id. at 10–12;
however, the USPTO’s Director has delegated the author-
ity to assign PTAB panels, see Manual of Patent Examin-
ing Procedure § 1002.02(f)(3) (9th ed. Rev. 8, Jan. 2018);
see also 35 U.S.C. § 6(c), and Mr. Zuili has not presented
evidence to contradict the PTAB panel’s statement that it
acted “independently,” Google II, 2017 WL 2116956, at
*17 (internal quotation marks and citation omitted).
Similarly, Mr. Zuili claims the PTAB erred in relying on
certain testimony submitted to support Google because
the declarants were not reliable due to “inherent con-
flict[s] of interest[],” Appellant’s Br. 20, but Mr. Zuili
candidly admitted to the PTAB that he “can’t prove” his
allegations, Appellee’s App. 1545; see id. at 1542. Accord-
ingly, we reject Mr. Zuili’s unsupported accusations.
CONCLUSION
We have considered Mr. Zuili’s remaining arguments
and find them unpersuasive. Accordingly, the Final
8 ZUILI v. GOOGLE LLC
Written Decisions of the U.S. Patent and Trademark
Office’s Patent Trial and Appeal Board are
AFFIRMED
COSTS
Each party shall bear its own costs.