On June 9, 2015, Allstate Insurance was issued U.S. Patent No. 9,053,591 titled "Motor Vehicle Operating Data Collection and Analysis." There may be some discussion in the coming weeks as to whether the claims of the Allstate '591 patent are susceptible to a § 101 challenge. See unrelated challenge in CBM2015-00115 Petition by Carfax of U.S. Patent No. 8,731,977 titled "System and Method for Analyzing and Using Vehicle Historical Data".
Below are some items to consider about the '591 patent, and the soon-to-issue Allstate parent of the '591 patent.
Claim 1 of the '591 patent recites:
1. A driving evaluation computing device comprising a processing unit comprising a processor; a memory unit; and a wireless receiver, wherein the driving evaluation computing device is configured to:
receive via the wireless receiver a first vehicle operational data collected by a vehicle data acquiring component, wherein the first vehicle operational data comprises time marked data acquired at regular periodic intervals by the vehicle data acquiring component;
determine a first vehicle operation factor from the first vehicle operational data;
and calculate a driver safety rating using the first vehicle operation factor;
wherein the first vehicle operational data is vehicle speed and the first vehicle operation factor is vehicle acceleration;
wherein, to determine the first vehicle operation factor, the device is further configured to identify elapsed seconds between at least two data points of the vehicle speed from the first vehicle operational data, calculate a change in the vehicle speed between the at least two data points, and calculate the vehicle acceleration between the at least two data points.
A quick review of the file history for the '591 patent, Application No. 14/087,968, doesn't show an Alice § 101 rejection for any of the 14 claims. Claims in the Allstate parent application, Application No. 11/921,912, were subject to a § 101 rejection. The Search Notes for the '912 Application reveal a discussion about § 101, whereas the '968 application does not.
For the parent '912 Application, a May 22, 2013 office action indicates a § 101 rejection.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
As to claims 1-3, this invention recited in these claims are directed towards descriptive material per se and are not statutory because they are not capable of causing functional change in a computer. A data structure by itself is not a physical thing.
As to claims 4-20, the applicant fails to recite how a machine or apparatus implements the claimed method/software steps. As a result, the aforementioned claims are directed to a judicial exception under 35 U.S.C. §101, i.e., an abstract idea. Integral use of a machine or apparatus to achieve performance of the method steps weighs toward eligibility, as compared to where the machine or apparatus is merely an object on which the method, which weighs against eligibility. See MPEP §2106(II)(B)(1).
In other words, claims 4-20 claim a method that is a mathematical algorithm without any practical application or the result of method, which is a number or metric. The claims evaluate a database (group of numbers) to arrive at another number or metric. There is never any real world or practical application claimed by performing some type of physical transformation. In other words, there is not a tangible result. The claims seem to claim statistical analysis itself (a mathematical algorithm), instead of a real world application of statistical analysis. There is no mention in the claims of communicating with a vehicle to collect the information in the database and there is not mention of performing an act based on one of the "evaluations" such as writing an insurance policy or delivering an advertisement.
Non-Final Rejection at 4-5 (2013-05-22)
By amendment dated November 21, 2013, Allstate responded to the § 101 rejections by canceling the bulk of the rejected claims, and amending claims 18-20. The subsequent office action of December 13, 2013 didn't contain a § 101 rejection, but claims 18-20 were rejected as anticipated under § 102(b) prior art. And this approach ultimately proved successful for Allstate in the '912 Application. Shown below is amended claim 18 - this exact claim has now received a Notice of Allowance.
Basically, to overcome the § 101 rejection in the '912 Application, Allstate incorporated the recited "driving data recorder" into the method claim. To overcome the prior art rejections, Allstate successfully argued the prior art didn't disclose "determining, by the driving data recorder, that the excess speed event occurred during the after-sunset time of day."
Below is an excerpt of the disclosure relating to the "driving data recorder."
If it were only that easy the majority of time during prosecution when facing these types of rejections, practitioners might not be as frustrated. Is this a preview of new patent office practice, or merely a couple of random events?