Collecting location data is abstract, but a specific use of it to rerank search results survives the pleadings

2022-10-13Fed. Cir.

Weisner v. Google LLC, 51 F.4th 1073 (Fed. Cir. Oct. 13, 2022) (precedential) (Stoll, J., joined by Reyna, J.; Hughes, J., dissenting in part), affirming in part and reversing in part Weisner v. Google LLC, 551 F. Supp. 3d 334 (S.D.N.Y. 2021) (Hellerstein, J.), No. 1:20-cv-02862-AKH

Weisner asserted four related patents, United States Patent Nos. 10,380,202, 10,642,910, 10,394,905 and 10,642,911, against Google. Claim 1 of the '202 and '910 patents recites a member network in which a handheld device records a "physical encounter" with a stationary vendor, generating a location history entry with the vendor's URL, time and place. Claim 1 of the '911 patent recites assigning a priority in a search result ranking based on a vendor URL's appearance in the searching member's own location history; claim 1 of the '905 patent increases a vendor's ranking through a "physical location relationship" with a reference individual whose history shares a vendor with the searcher. The Southern District of New York dismissed all four under Section 101 of Title 35 of the United States Code. The Federal Circuit, Judge Stoll writing with Judge Reyna, affirmed as to the '202 and '910 patents, directed to creating a digital travel log, and reversed as to the '905 and '911 patents: those claims are directed to an abstract idea, but the specificity of the mechanism for prioritizing results, with the complaint's allegations that it solves a problem of non-personalized web search, plausibly supplies an inventive concept at step two under DDR Holdings. Judge Hughes dissented in part, reading the complaint's concession that the search algorithm is conventional as fatal and the problem as one that predates the Internet.

What it changesThe line this panel drew runs between gathering data and specifying how the gathered data changes what the system outputs. For a machine learning application, the claim that recites collecting training or telemetry data, storing it and making it searchable is the '202 claim and will not survive a motion to dismiss; the claim that recites the specific way a model's output or a stored history alters a ranking, a route, a recommendation or a control signal is the '905 claim and can. Draft the independent claim around the use of the data in the system, name the inputs that produce the change in output and the rule that combines them, and write the specification's problem statement in terms a complaint can later quote as a problem particular to networked computing. The decision is one vote from going the other way, the concession that the algorithm was conventional nearly sank the surviving claims, and the holding is only that those claims survive the pleadings.

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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