1B3Y, LLC

Patent Trials and Appeals Board

Jan 28, 2021

2019000503 (P.T.A.B. Jan. 28, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/781,744 02/28/2013 Keith Rinzler 4I05-1-010 5901
35725 7590 01/28/2021
MEHRMAN LAW OFFICE, P.C.
P.O. Box 420797
ATLANTA, GA 30342
EXAMINER
LOFTIS, JOHNNA RONEE
ART UNIT PAPER NUMBER
3683
MAIL DATE DELIVERY MODE
01/28/2021 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEITH RINZLER
____________

Appeal 2019-000503
Application 13/781,744
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
Appellant1 filed a Request for Rehearing (“Req. Reh’g”), pursuant to
37 C.F.R. § 41.52, on June 12, 2020, seeking reconsideration of our
Decision on Appeal mailed May 12, 2020 (“Decision” or “Dec.”), in which
we affirmed the Examiner’s rejection of claims 1–20 under 35 U.S.C. § 101

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief
(“Appeal Br.,” filed June 5, 2018) and Reply Brief (“Reply Br.,” filed
October 16, 2018), and the Examiner’s Answer (“Ans.,” mailed September
5, 2018) and Final Office Action (“Final Act.,” mailed November 14, 2017).
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as directed to a judicial exception without significantly more. We have
jurisdiction over the Request under 35 U.S.C. § 6(b).
DISCUSSION
Appellant first asserts that the Board misapprehended the subject
matter of exemplary independent claim 1 by characterizing the claim as
reciting “a form of marketing.” Req. Reh’g 4–5 (citing Decision 12).
Instead, Appellant argues that claim 1 is directed to “a ‘market polling and
research system’ which is a tool for conducting market research rather than a
‘form of marketing.’” Id. (emphasis omitted).
We disagree with Appellant that the Board may have overgeneralized
or oversimplified the subject matter of exemplary independent claim 1 in
characterizing it as reciting “a form of marketing.” Dec. 12. Rather, in
applying Step 2A, Prong One of the 2019 Revised Guidance, the Board
determined that the limitations of claim 12 (see id. at 9–12), when given their
broadest reasonable interpretation, recite
a system for directing market polling surveys using functionality
operative [to] receive information (e.g., authorization data,
location data, target demographic data), identify information
(e.g., target demographic), send information (i.e., direct
information), receive additional information (e.g., location data,
survey information), and analyze data via polling algorithm. Cf.
Ans. 13–14.
Dec. 12. Appellant does not identify any point of fact or law that the Board
misapprehended or overlooked in determining that the limitations of claim 1,

2 Appellant argued independent claims 1, 13, and 18 as a group. Appeal Br.
7; Reply Br. 2–14. We selected independent claim 1 as representative, such
that the remaining independent claims would stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv).
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when given their broadest reasonable interpretation, recite “a system for
directing market polling surveys using functionality operative [to] receive
information . . . , identify information . . . , send information . . . , receive
additional information . . . , and analyze data via [a] polling algorithm,” i.e.,
“a form of marketing,” which is a method of organizing human activity and,
therefore, an abstract idea. See id. (citing 2019 Revised Guidance,
84 Fed. Reg. at 52). Appellant is, thus, reminded that a request for rehearing
is not an opportunity to merely express disagreement with a decision without
setting forth the points believed to have been misapprehended or overlooked.
Appellant next asserts that the Board misapprehended or overlooked
“the facts of the case” with respect to the claimed “dynamic polling
algorithm” in determining whether claim 1 includes additional elements that
integrate the judicial exception into a practical application. Req. Reh’g 5–6
(citing Dec. 14). However, Appellant’s assertion does not specifically
identify any points that were misapprehended or overlooked by the Decision
that resulted in error.
Nonetheless, Appellant asserts that “the dynamic polling algorithm is
inventive (also referred to as innovative) programming producing a non-
conventional improvement rendering the claimed invention eligible” simply
because “[t]he Application from end-to-end describes the dynamic polling
algorithm as Applicant’s own invention” and lacks a prior art rejection. Id.;
see also id. at 5, FN 4. The difficulty with Appellant’s position, however, is
that Appellant’s arguments still fail to persuade us that “the dynamic polling
algorithm” integrates the abstract idea into a “practical application,” as that
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phrase is used in the 2019 Revised Guidance.3 Instead, as stated in the
Decision, we maintain that
there is no such improvement to technology or a technological
process. The Appellant does not assert an improvement in the
technical or technological aspects operative to receive
information (e.g., authorization data, location data, target
demographic data), identify information (e.g., target
demographic), send information (i.e., direct information),
receive additional information (e.g., location data, survey
information), and analyze data via polling algorithm.
Dec. 18. And, we also maintain,
to the extent the claimed invention provides an improvement,
that improvement does not concern an improvement to computer
capabilities, but instead relates to an alleged improvement in the
application of the dynamic polling algorithm — a process in
which a computer is used as a tool in its ordinary capacity.
Id. at 19 (citing Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of
Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012)).
Appellant further asserts that the Board misapprehended or
overlooked the fact that Appellant’s claimed invention does not “tie up the
abstract idea” because “the claimed invention is directed to the dynamic
polling algorithm as a specific improvement to solve a specific problem,
rather an attempt to tie up an abstract idea.” Req. Reh’g 6–7. Appellant’s
argument is not persuasive.

3 The 2019 Revised Guidance references MPEP §§ 2106.05(a)–(c) and (e)
in describing the considerations that are indicative that an additional element
or combination of elements integrates the judicial exception, e.g., the
abstract idea, into a practical application. 2019 Revised Guidance, 84 Fed.
Reg. at 55. If the recited judicial exception is integrated into a practical
application, as determined under one or more of these MPEP sections, the
claim is not “directed to” the judicial exception.
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“While preemption may signal patent ineligible subject matter, the
absence of complete preemption does not demonstrate patent eligibility.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–
63 (Fed. Cir. 2015) (“[T]hat the claims do not preempt all price optimization
or may be limited to price optimization in the e-commerce setting do not
make them any less abstract.”). And, “[w]here a patent’s claims are deemed
only to disclose patent ineligible subject matter under the Mayo framework,
as they are in this case, preemption concerns are fully addressed and made
moot.” Ariosa, 788 F.3d at 1379.
Appellant still further asserts that the Board misapprehended or
overlooked “the facts of the case by incorrectly determining that the claimed
invention is ‘well-understood, routine, or conventional.’” Req. Reh’g 7
(emphasis omitted) (citing Dec. 20). More particularly, Appellant argues
that “[t]he Application itself conveys that the inventor considered the
claimed ‘dynamic polling algorithm’ to be his own invention, rather than
‘well-understood, routine, or conventional.’” Id. at 7. According to
Appellant, the Decision fails to point to any statement “in the Application
itself,” “in the cited references,” “court decision, publication, or official
notice,” “as allegedly supporting the contention that the dynamic polling
algorithm was ‘well-understood, routine, or conventional.’” Id. at 7–8. We
disagree.
Initially, we note that the question in step two of the Alice framework
is not whether an additional feature is novel, but whether the implementation
of the abstract idea involves “more than performance of ‘well-understood,
routine, [and] conventional activities previously known to the industry.’”
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Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n,
776 F.3d 1343, 1347–48 (Fed. Cir. 2014) (alteration in original) (quoting
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 225 (2014)). In this regard, we
note that the Decision stated that
there is nothing in the Specification to indicate that the steps
recited in claim 1 require any specialized hardware or inventive
computer components or that the claimed invention is
implemented using anything other than generic computer
components to perform generic computer functions, e.g., receive
information, identify information, send information, and analyze
data.
Dec. 20–21. Appellant’s Request fails to address this portion of the
Decision.
The Decision also noted that the Examiner determined that
the computer functions involved in the claims include receiving
or transmitting data over a network (directing electronic surveys,
receive authoriziation [sic], receive location data, receive survey
request), performing repetitive calculations (apply the polling
algorithm to the data to adjust the number and the demographic
distribution of the members participating in the survey), storing
and retrieving information in memory. Each of these computer
functions have been deemed conventional by the courts, thus
satisfying the requirement set forth in the Berkheimer memo.
Id. at 20 (citing Ans. 13–14). In response, Appellant argues that the Board
improperly relied on the Examiner’s determination because it is
“unsupported by an actual citation to a real court decision as required by the
Berkheimer decision and Memorandum.” Req. Reh’g 10. Appellant’s
argument is not persuasive.
Appellant does not provide any supported reasoning or explanation
that the functions of receiving information, identifying information, sending
information, and analyzing via dynamic polling algorithm data are not well-
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understood, routine, and conventional. Cf. Intellectual Ventures I LLC v.
Capital One Bank (USA), 792 F.3d 1363, 1369–71 (Fed. Cir. 2015) (holding
that “the entry of data into a computer database, the breakdown and
organization of that entered data according to some criteria, . . . and the
transmission of information derived from that entered data to a computer
user, all through the use of conventional computer components, such as a
database and processors, operating in a conventional manner” did not
transform a patent-ineligible process into something more); Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (gathering,
sending, monitoring, analyzing, selecting, and presenting information does
not transform the abstract process into a patent-eligible invention);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir.
2016) (generating a rule related to accessing information, applying the rule,
and storing and announcing the result did not transform the abstract idea into
a patent-eligible invention).
Appellant last asserts that the Board misapprehended or overlooked
the requirement to consider the “claim as a whole.” Req. Reh’g 10. More
particularly, Appellant argues that the Board improperly dissects “the
dynamic polling algorithm into individual computer functions, which are
then considered individually to determine that they are ‘well-understood,
routine, or conventional’ notwithstanding the non-conventional
improvement achieved by the dynamic polling algorithm as a whole.” Id.
However, “the relevant inquiry is not whether the claimed invention as a
whole is unconventional or non-routine.” BSG Tech LLC v. BuySeasons,
Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018). Instead, the question under step
two of the Mayo/Alice framework is whether the claim includes additional
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elements, i.e., elements other than the abstract idea itself, that “‘transform
the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at
217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
66, 78–79 (2012)).
In summary, Appellant’s Request is denied in all substantive respects.
Accordingly, we decline to modify our original Decision.
CONCLUSION
Outcome of Decision on Rehearing:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Denied Granted
1–20 101 Eligibility 1–20
Final Outcome of Appeal After Rehearing:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20

DENIED