Adobe Inc.

Patent Trials and Appeals Board

May 25, 2021

2020002904 (P.T.A.B. May. 25, 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.
14/297,187 06/05/2014 Walter W. Chang 4022US01 4957
108982 7590 05/25/2021
FIG. 1 Patents
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
ELKASSABGI, ZAHRA
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
05/25/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Fig1Docket@fig1patents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WALTER W. CHANG, HARTMUT WARNCKE, and
EMRE DEMIRALP
Appeal 2020-002904
Application 14/297,187
Technology Center 3600
Before LARRY J. HUME, BARBARA A. PARVIS, and SCOTT E. BAIN,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–20, which are all claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Adobe Inc.
Appeal Br. 3.
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2
STATEMENT OF THE CASE2
The claims are directed to a trending topics tracking. See Spec.
(Title). In particular, Appellant’s disclosed embodiments and claimed
invention relate to
techniques for trending topics tracking, [in which] input text
data is received as communications from a user or between
users, where the communications are from one user to other
users, or between two or more of the users. A topics tracking
application is implemented to determine topics from the
communications that are from or between the users, and track
how the topics are trending over a time duration.
Spec. 41 (Abstr.).
Exemplary Claims
Claims 1 and 17, reproduced below, are representative of the subject
matter on Appeal (emphases and labeling added to contested prior-art
limitations):
1. In a digital medium environment including
computing devices performing trending topics tracking, a
method, comprising:
receiving a user selection of one or more data sources as
input text data, the one or more data sources comprising
electronic communications from communication-enabled
devices, the electronic communications being communicated
between users via the communication-enabled devices;
combining the input text data from the one or more data
sources to form a document, the document having a time

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
May 20, 2019); Reply Brief (“Reply Br.,” filed Mar. 2, 2020); Examiner’s
Answer (“Ans.,” mailed Jan. 3, 2020); Final Office Action (“Final Act.,”
mailed Oct. 2, 2018); and the original Specification (“Spec.,” filed
June 5, 2014).
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duration defined by points in time associated with the input text
data;
determining text data topics within the document by
determining at least one text analytics statistic for the document
according to a text analytics technique, the at least one text
analytics statistic including similarity values assigned to pairs
of adjacent blocks of text in the document;
tracking how the text data topics are trending over the
time duration by determining a frequency of a keyword phrase
localized in one or more of the blocks of text based on the
similarity values to identify how the text data topics are
trending over the time duration;
receiving an input selection of at least one of the text data
topics;
generating digital content as a visual dashboard that
includes a trending representation of the at least one text data
topic trending within the document over the time duration;
[(A)] displaying the visual dashboard with the trending
representation of the at least one text data topic;
[(B)] responsive to receiving an input to highlight an area
of the trending representation:
[(B1)] determining a data source of the one or
more data sources that influences the highlighted area;
and
[(B2)] updating the visual dashboard to
concurrently display a section of the determined data
source and the trending representation with the
highlighted area.
17. A non-transitory computer-readable storage
memory device comprising a topics tracking application stored
as instructions that are executable and, responsive to execution
of the instructions by a computing device, the computing device
performs operations of the topics tracking application
comprising to:
receive input text data as electronic communications
from communication-enabled devices, the electronic
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communications being communicated between users via the
communication-enabled devices;
receive a user selection of one or more of the electronic
communications as a data source for topic tracking;
combine the one or more selected electronic
communications to form a document, the document having a
time duration defined by points in time associated with the one
or more selected electronic communications;
determine text data topics from the document by
determining at least one text analytics statistic for the document
according to a text analytics technique indicating similarity
values assigned to pairs of adjacent blocks of text in the
document;
track how the text data topics are trending over the time
duration by determining a frequency of a keyword phrase
localized in one or more of the blocks of text based on the
similarity values;
generate digital content as a visual dashboard that
includes a trending representation of at least one of the text data
topics trending over the time duration within the document;
display the visual dashboard with the trending
representation of the at least one text data topic and an
interaction representation of how the electronic
communications between the users influence the at least one
text data topic;
[(C)] receive a selection of an area of the trending
representation to highlight;
[(D)] determine a section of the selected data source that
influenced the highlighted area; and
[(E)] navigate in the visual dashboard to the section of
the selected data source, responsive to receipt of the selection,
the visual dashboard simultaneously displaying the trending
representation.
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REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Sinel et al. (“Sinel”)3 US 2007/0294230 Al Dec. 20, 2007
Duchon et al. (“Duchon”) US 2010/0280985 A1 Nov. 4, 2010
Baarman et al. (“Baarman”) US 2011/0282860 A1 Nov. 17, 2011
Deurloo US 2013/0275527 A1 Oct. 17, 2013
Spivack et al. (“Spivack”) US 2013/0290317 A1 Oct. 31, 2013
Anstandig et al. (“Anstandig”) US 2014/0358891 A1 Dec. 4, 2014
REJECTIONS
Rejection Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis
R1
(Ans. 4; Final Act. 5)
1–20 101 Eligibility
R2
(Final Act. 7)
1, 4, 7– 9, 12,
13, 15,4 16
103 Baarman, Anstandig,
Sinel
R3
(Final Act. 17)
5 103 Baarman, Anstandig,
Sinel, Duchon
R4
(Final Act. 19)
2, 3, 6, 10, 11,
14
103 Baarman, Anstandig,
Sinel, Deurloo
R5
(Final Act. 22)
17 103 Anstandig, Deurloo,
Baarman, Spivack
R6
(Final Act. 27)
18–20 103 Anstandig, Spivack,
Sinel

3 In various parts of the record, the Sinel reference is erroneously referred to
as “Sniel.”
4 Although omitted in the explicit statement of Rejection R2 (Final Act. 7),
it appears the Examiner intended to include claim 15 in Rejection R2
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CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 17–52) and our
discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of patent-
ineligible subject matter Rejection R1 of claims 1–20 on the basis of
representative claim 1; and we decide the appeal of obviousness Rejection
R2 of claims 1, 4, 7, 8, 9, 12, 13, 15, and 16 on the basis of representative
claim 1. We decide the appeal of obviousness Rejection R5 of separately
argued claim 17 and obviousness Rejection R6 of separately argued claims
18–20, infra.
Remaining claims 2, 3, 5, 6, 10, 11, and 14 in Rejections R3 and R4,
not argued separately or substantively, stand or fall with the respective
independent claim from which they depend.5
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not

because the Examiner states: “Claim 15 recites similar limitations to claim 7.
Therefore, it is rejected under similar rationale.” Final Act. 21. We further
note claim 7 is included in Rejection R2 and, for that reason, we also include
claim 15 in Rejection R2. See Final Act. 7, 13.
5 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
Based upon our review of the record, we find a preponderance of the
evidence supports particular arguments advanced by Appellants with respect
to subject matter eligibility Rejection R1 of claims 1–20 and obviousness
Rejection R6 of claims 18–20 for the specific reasons discussed below.
However, we disagree with Appellant’s arguments with respect to
obviousness Rejections R2 through R5 of claims 1–17 and, unless otherwise
noted, we incorporate by reference herein and adopt as our own: (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner’s
Answer in response to Appellant’s arguments. We highlight and address
specific findings and arguments regarding claims 1 and 17 for emphasis as
follows.
1. § 101 Rejection R1 of Claims 1–20
Issue 1
Appellant argues (Appeal Br. 17–34; Reply Br. 2–5) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter is in error. These contentions present us with the
following issue:
Under the USPTO’s Revised Guidance, informed by our governing
case law concerning 35 U.S.C. § 101, is claim 1 patent-ineligible under
§ 101?
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Principles of Law
A. 35 U.S.C. § 101
An invention is patent-eligible if it is a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.6
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (alterations in original) (citing Diamond v.
Diehr, 450 U.S. 175, 185 (1981)).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014)
(citing Mayo, 566 U.S. at 75–77). In accordance with that framework, we
first determine what concept the claim is “directed to.” See Alice, 573 U.S.
at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk . . . .”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental

6 This threshold analysis of whether a claim is directed to one of the four
statutory categories of invention, i.e., a process, machine, manufacture, or
composition of matter, is referred to as “Step 1” in the USPTO’s patent-
eligibility analysis under § 101. MPEP § 2106.
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economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diehr, 450 U.S. at 191); “tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores”
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853)));
and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v.
Deener, 94 U.S. 780, 785 (1876))).
Abstract ideas may include, but are not limited to, fundamental
economic practices, methods of organizing human activities, and
mathematical formulas or relationships. Alice, 573 U.S. at 217–21. Under
this guidance, we must therefore ensure at step one that we articulate what
the claims are directed to with enough specificity to ensure the step one
inquiry is meaningful. Id. at 217 (“[W]e tread carefully in construing this
exclusionary principle lest it swallow all of patent law.”).
Examples of claims that do not recite mental processes because they
cannot be practically performed in the human mind include: (a) a claim to a
method for calculating an absolute position of a GPS receiver and an
absolute time of reception of satellite signals, where the claimed GPS
receiver calculated pseudoranges that estimated the distance from the GPS
receiver to a plurality of satellites, SiRF Technology, Inc. v. International
Trade Commission, 601 F.3d 1319, 1331–33 (Fed. Cir. 2010); (b) a claim to
detecting suspicious activity by using network monitors and analyzing
network packets, SRI Int’l, Inc. v. Cisco Systems, Inc., 930 F.3d 1295, 1304
(Fed. Cir. 2019); (c) a claim to a specific data encryption method for
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computer communication involving a several-step manipulation of data,
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed.
Cir. 2016) (distinguishing TQP Development, LLC v. Intuit Inc., 2014 WL
651935 (E.D. Tex. Feb. 19, 2014)) (the specific data encryption method
“could not conceivably be performed in the human mind or with pencil and
paper”). Whereas a claim limitation to a process that “can be performed in
the human mind, or by a human using a pen and paper” qualifies as a mental
process, a claim limitation that “could not, as a practical matter, be
performed entirely in a human’s mind” (even if aided with pen and paper)
would not qualify as a mental process.7
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held “[a] claim drawn to subject matter otherwise statutory
does not become nonstatutory simply because it uses a mathematical
formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view
respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment.”
Id. (citation omitted) (citing Benson and Flook); see, e.g., id. at 187 (“It is
now commonplace that an application of a law of nature or mathematical

7 CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 1375-
76 (Fed. Cir. 2011) (distinguishing Research Corp. Techs. v. Microsoft
Corp., 627 F.3d 859 (Fed. Cir. 2010), and SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319 (Fed. Cir. 2010)).
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formula to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘“inventive
concept”’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
B. USPTO Revised Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101.8 The Manual of
Patent Examining Procedure (“MPEP”) now incorporates this revised

8 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (hereinafter “Revised Guidance”) (https://www.govinfo.gov/
content/pkg/FR-2019-01-07/pdf/2018-28282.pdf). In response to formal
public comments, the Office issued further guidance on October 17, 2019,
clarifying the Revised Guidance. USPTO, October 2019 Update: Subject
Matter Eligibility (the “October 2019 Update”). “All USPTO personnel are,
as a matter of internal agency management, expected to follow the
guidance.” 84 Fed. Reg. at 51; see also October 2019 Update at 1.
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guidance and subsequent updates at Section 2106 (9th ed. Rev. 10.2019, rev.
June 2020).9
Under MPEP § 2106, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One,” referred
to herein as “Step 2A(i)”); and
(2) additional elements that integrate the judicial
exception into a practical application (“Step 2A, Prong Two,”
referred to herein as “Step 2A(ii)”).10
MPEP § 2106.04(a)) and § 2106.04(d).
Under this guidance, if the claim does not recite a judicial exception
(a law of nature, natural phenomenon, or subject matter within the
enumerated groupings of abstract ideas above), then the claim is patent-
eligible at Step 2A(i). This determination concludes the eligibility analysis,
except in situations identified in the Revised Guidance.11

9 All references to the MPEP are to the Ninth Edition, Revision 10.2019
(Last Revised June 2020), unless otherwise indicated.
10 “Examiners evaluate integration into a practical application by:
(1) identifying whether there are any additional elements recited in the claim
beyond the judicial exception, and (2) evaluating those additional elements
individually and in combination to determine whether the claim as a whole
integrates the exception into a practical application, using one or more of the
considerations introduced in subsection I supra, and discussed in more detail
in MPEP §§ 2106.04(d)(1), 2106.04(d)(2), 2106.05(a) through (c) and
2106.05(e) through (h).” MPEP § 2106.04(d)II.
11 In the rare circumstance in which an examiner believes a claim limitation
that does not fall within the enumerated groupings of abstract ideas should
nonetheless be treated as reciting an abstract idea, the procedure described in
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application,12 do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional”
in the field; or
(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial
exception.13
MPEP § 2106.05(d).
In the Step 2B analysis, an additional element (or combination of
elements) is not well-understood, routine or conventional unless the
examiner finds an evidentiary basis, and expressly supports a rejection in
writing with, one or more of the following:
1. A citation to an express statement in the
specification or to a statement made by an applicant during
prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s). . . .

the MPEP for analyzing the claim should be followed. See MPEP
§ 2106.04(a)(3)(“Tentative Abstract Ideas”).
12 This corresponds to Alice part one where it is determined whether the
claim is “directed to” an abstract idea. See Alice, 573 U.S. at 219. If a claim
is “not directed to an abstract idea under part one of the Alice framework, we
do not need to proceed to step two.” Enfish, LLC v. Microsoft Corp., 822
F.3d 1327, 1339 (Fed. Cir. 2016).
13 Items (3) and (4) correspond to Alice part two where it is determined
whether the claim contains an ‘inventive concept’ sufficient to ‘transform’
the claimed abstract idea into a patent-eligible application” (Alice, 573 U.S.
at 221) and continue to be collectively referred to as “Step 2B” of the
Supreme Court’s two-step framework, described in Mayo and Alice.
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2. A citation to one or more of the court decisions
discussed in MPEP § 2106.05(d)(II) as noting the well-
understood, routine, conventional nature of the additional
element(s).
3. A citation to a publication that demonstrates the
well-understood, routine, conventional nature of the additional
element(s). . . .
4. A statement that the examiner is taking official
notice of the well-understood, routine, conventional nature of
the additional element(s). . . .
See MPEP §§ 2106.05(d)(I)(2); 2106.07(a).
If the Examiner or the Board determines under Step 2B that the
element (or combination of elements) amounts to significantly more than the
exception itself, the claim is eligible, thereby concluding the eligibility
analysis.
However, if a determination is made that the element and combination
of elements do not amount to significantly more than the exception itself, the
claim is ineligible under Step 2B, and the claim should be rejected for lack of
subject matter eligibility.
Analysis
Step 1 – Statutory Category
Claim 1, as a method (process) claim, recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. Therefore, the issue
before us is whether it is directed to a judicial exception without
significantly more.
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Step 2A(i): Does the Claim Recite a Judicial Exception?
“[T]he Examiner maintains that the claim limitations singularly and as
a whole are directed to a mental process. The Examiner further maintains
that the claim limitations are organizing, tracking, and analyzing topics
between individuals. Similar inventions have been found patent ineligible.”
Ans. 4 (generally citing Smart Systems Innovations and Electric Power
Group.).14
We conclude claim 1 does not recite the judicial exceptions of either
natural phenomena or laws of nature. We evaluate whether claim 1 recites
an abstract idea based upon the Revised Guidance.
First, we look to the Specification to provide context as to what the
claimed invention is directed to. In this case, the Specification discloses the
invention:
Trending topics tracking is described. In embodiments,
input text data is received as communications from a user or
between users, where the communications are from one user to
one or more of the users, or between two or more of the users,
and the communications can be modeled as a document. A text
analytics application generates the input text data based on the
communications that are from or between the users, where the
text analytics application can include techniques for statistical
topic modeling and natural language sentence analysis. A topics
tracking application is implemented to determine topics from
the communications that are from and/or between the users
(e.g., modeled as the document), and track how the topics are

14 We note, prior to issuance of the Revised Guidance, the Examiner
originally determined “[c]laims 1, 9, and 17 are directed towards an idea of
itself. Specifically, organizing, tracking, and analyzing topics between
individuals.” Final Act. 5. In the Answer, the Examiner relies upon the
Revised Guidance to restate the § 101 rejection.
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trending over a time duration. The topics can include expressed
sentiments and/or expressed emotions.
Spec. ¶ 4.
Appellant’s Abstract describes the invention:
In techniques for trending topics tracking, input text data
is received as communications from a user or between users,
where the communications are from one user to other users, or
between two or more of the users. A topics tracking application
is implemented to determine topics from the communications
that are from or between the users, and track how the topics are
trending over a time duration. The topics can include expressed
sentiments and/or expressed emotions. An input selection of at
least one of the topics can be received, and the topics tracking
application generates a visual dashboard that displays a
trending representation of the at least one topic that is trending
over the time duration. The visual dashboard can also display
data sources of the communications between the two or more
users and/or an overview of one or more of the topics
determined from a selected data source.
Spec. 41 (Abstr.).
As detailed in TABLE I, below, we determine that claim 1, overall,
recites a certain method of organizing human activity in the form of
marketing activities that may also be performed by pen and paper. This type
of activity, i.e., tracking of trending topics to use in marketing analysis as
recited in limitations L1 through L8, for example, and aside from any
computer-related aspects, includes longstanding conduct that existed well
before the advent of computers and the Internet, and could be carried out by
a human with pen and paper. See CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) (“That purely mental processes
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can be unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.”).15
Thus, under Step 2A(i), we agree with the Examiner that claim 1’s
method for performing trending topics tracking recites a combination of
abstract ideas. We conclude claim 1, under our Revised Guidance, recites a
judicial exception of tracking of trending topics to use in marketing analysis,
i.e., a certain method of organizing human activity, and thus recites an
abstract idea.
In TABLE I below, we identify in italics the specific claim limitations
in claim 1 that we conclude recite an abstract idea. We additionally identify
in bold the additional (non-abstract) claim limitations that are generic
computer components and techniques, and underline limitations representing
extra or post-solution activity:

15 Our reviewing court recognizes that “[a]n abstract idea can generally be
described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc.,
842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does
not, “impact the patentability analysis.” Id. at 1241. Further, “[t]he Board’s
slight revision of its abstract idea analysis does not impact the patentability
analysis.” Id. Moreover, merely combining several abstract ideas does not
render the combination any less abstract. RecogniCorp, LLC v. Nintendo
Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea (math)
to another abstract idea . . . does not render the claim non-abstract.”); see
also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed.
Cir. 2016) (determining the pending claims were directed to a combination
of abstract ideas).
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TABLE I
Independent Claim 1 Revised Guidance
In a digital medium environment
including computing devices
performing trending topics
tracking, a method, comprising:
A process (method) is a statutory
subject matter class. See 35 U.S.C.
§ 101 (“Whoever invents or discovers
any new and useful process, machine,
manufacture, or composition of matter,
or any new and useful improvement
thereof, may obtain a patent therefor,
subject to the conditions and
requirements of this title.”).
[L1] receiving a user selection of
one or more data sources as
input text data,

[L1a] the one or more data
sources comprising electronic
communications from
communication-enabled
devices,
the electronic communications
being communicated between
users via the communication-
enabled devices;
Receiving information such as a user
selection of a data source, i.e., data
gathering, is merely insignificant extra-
solution activity that does not add
significantly more to the abstract idea
to render the claimed invention patent-
eligible. See MPEP § 2106.05(g);
Revised Guidance 55, n.31.
As claimed, the data sources, electronic
communications, and communication-
enabled devices represent conventional
computer components and techniques.
See Spec. Figs. 1, 10, 12, (elements
102, 106, 114, 1204, 1302); ¶¶ 12–14,
62, 68–76.
[L2] combining the input text
data from the one or more data
sources to form a document,
the document having a time
duration defined by points in
time associated with the input
text data;
Combining text data from data sources
to form a document is merely
insignificant extra-solution activity that
does not add significantly more to the
abstract idea to render the claimed
invention patent-eligible. See MPEP
§ 2106.05(g); Revised Guidance 55,
n.31; see In re Bilski, 545 F.3d 943,
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Independent Claim 1 Revised Guidance
962 (Fed. Cir. 2008) (en banc), aff’d on
other grounds, 561 U.S. 593 (2010)
(“[T]he involvement of the machine or
transformation in the claimed process
must not merely be insignificant extra-
solution activity”).
[L3] determining text data topics
within the document by
determining at least one text
analytics statistic for the
document according to a text
analytics technique,
the at least one text analytics
statistic including similarity
values assigned to pairs of
adjacent blocks of text in the
document;
“[D]etermining at least one text
analytics statistic” is an abstract idea,
i.e., an observation, evaluation,
judgment, opinion” which could be
performed as a mental process. See
MPEP § 2106.04(a)(2)(III)(A).
Alternatively, “determining at least
one text analytics statistic” is a
mathematical calculation that is an
abstract idea. See MPEP
§ 2106.04(a)(2)(I)(C); see also SAP
America, Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163 (Fed. Cir. 2018)
(holding that claims to a “series of
mathematical calculations based on
selected information” are directed to
abstract ideas).
[L4] tracking how the text data
topics are trending over the time
duration by determining a
frequency of a keyword phrase
localized in one or more of the
blocks of text based on the
similarity values to identify how
the text data topics are trending
over the time duration;
“[D]etermining a frequency of a
keyword phrase” for trend tracking is
an abstract idea, i.e., an observation,
evaluation, judgment, opinion” which
could be performed as a mental
process. See MPEP
§ 2106.04(a)(2)(III)(A).
[L5] receiving an input selection
of at least one of the text data
topics;
Receiving information such as an
input selection of a data source, i.e.,
data gathering, is merely insignificant
extra-solution activity that does not
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Independent Claim 1 Revised Guidance
add significantly more to the abstract
idea to render the claimed invention
patent-eligible. See MPEP
§ 2106.05(g); Revised Guidance 55,
n.31; see In re Bilski, 545 F.3d 943,
962 (Fed. Cir. 2008) (en banc), aff’d
on other grounds, 561 U.S. 593
(2010) (“[T]he involvement of the
machine or transformation in the
claimed process must not merely be
insignificant extra-solution activity”).
[L6] generating digital content as
a visual dashboard that includes
a trending representation of the
at least one text data topic
trending within the document
over the time duration;
Generating digital content for display
is insignificant extra-solution activity.
Revised Guidance 55, n.31; see also
MPEP § 2106.05(g). Moreover, data
gathering and display elements are
merely insignificant extra-solution
activity that do not add significantly
more to the abstract idea to render the
claimed invention patent-eligible. See
In re Bilski, 545 F.3d 943, 962 (Fed.
Cir. 2008) (en banc), aff’d on other
grounds, 561 U.S. 593 (2010) (“[T]he
involvement of the machine or
transformation in the claimed process
must not merely be insignificant
extra-solution activity”); and see
buySAFE, Inc. v. Google, Inc., 765
F.3d 1350, 1355 (Fed. Cir. 2014)
(computer receives and sends
information over a network).
[L7] displaying the visual
dashboard with the trending
representation of the at least one
text data topic;
Displaying information is
insignificant extra-solution activity.
Revised Guidance 55, n.31; see also
MPEP § 2106.05(g).
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Independent Claim 1 Revised Guidance
responsive to receiving an input
to highlight an area of the
trending representation:
[L8] determining a data source
of the one or more data sources
that influences the highlighted
area; and

“[D]etermining . . . influence[]” is an
abstract idea, i.e., an observation,
evaluation, judgment, opinion” which
could be performed as a mental
process. See MPEP
§ 2106.04(a)(2)(III)(A).
[L9] updating the visual
dashboard to concurrently
display a section of the
determined data source and the
trending representation with the
highlighted area.
See Step 2A(ii) analysis, infra.
Appeal Br. 54 (Claims App.).
Under the broadest reasonable interpretation standard,16 we conclude
limitations L1 through L8, overall, recite steps that would ordinarily occur
when tracking trending topics to use in marketing analysis. See generally
Final Act. 5; Ans. 4. For example, we determine that “tracking how the text
data topics are trending over the time duration by determining a frequency of

16 During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using “the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant’s specification.” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
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a keyword phrase localized in one or more of the blocks of text based on the
similarity values to identify how the text data topics are trending over the
time duration” is an operation that generally occurs when carrying out
topical marketing analysis.
Further, as illustrated in TABLE I, we determine limitations L3
(“determining at least one text analytics statistic for the document”), L4
(“determining a frequency of a keyword phrase”), and L8 (“determining a
data source of the one or more data sources that influences the highlighted
area”) recite abstract ideas, whether initiated person-to-person, on paper, or
using a computer. We further determine that claim 1, overall, recites the
abstract idea of tracking trending topics to use in marketing analysis, which
we determine is a certain method of organizing human activity in the form of
marketing activities.
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims are directed to a judicial exception, as we conclude
above, we proceed to the “practical application” Step 2A(ii) in which we
determine whether the recited judicial exception is integrated into a practical
application of that exception by: (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception(s); and
(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
As to the specific limitations, we find limitations L1 (“receiving a user
selection of one or more data sources as input text data”) and L5 (“receiving
an input selection of at least one of the text data topics”) recite insignificant
data gathering. See MPEP § 2106.05(g). Data gathering, as performed by
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the steps or function in Appellant’s claims, is a classic example of
insignificant extra-solution activity. See, e.g., In re Bilski, 545 F.3d 943,
963 (Fed. Cir. 2008) (en banc), aff’d sub nom, Bilski v. Kappos, 561 U.S.
593 (2010).
We also conclude limitations L2 (“combining the input text data from
the one or more data sources to form a document”), L6 (“generating digital
content as a visual dashboard”), and L7 (“displaying the visual dashboard”)
recite insignificant post solution activity. The Supreme Court guides that the
“prohibition against patenting abstract ideas ‘cannot be circumvented by’ . . .
adding ‘insignificant postsolution activity.’” Bilski, 561 U.S. at 610–11
(quoting Diehr, 450 U.S. at 191–92).
We further conclude limitation L1a (“one or more data sources
comprising electronic communications from communication-enabled
devices”) recite generic computer components and techniques. On this
record, we are of the view that Appellant’s claims do not operate the recited
generic computer components in an unconventional manner to achieve an
improvement in computer functionality. See MPEP § 2106.05(a).
In addition to the abstract steps recited in limitations L1 through L8
identified in Step 2A(i), supra, claim 1 further recites limitation L9, i.e.,
“updating the visual dashboard to concurrently display a section of the
determined data source and the trending representation with the highlighted
area.”
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For the reasons discussed below, we conclude limitation L9 integrates
the abstract idea into a practical application as determined under at least one
of the MPEP sections cited above.17
Appellant’s Specification discloses “[t]he topics tracking application
is also implemented to determine causal relationships between two or more
users based in part on the input text data as the communications between the
users, and the visual dashboard displays an interaction representation of
how interactions between the two or more users influence the topics that are
trending over the time duration.” Spec. ¶ 6 (emphasis added).
The topics tracking application can generate the visual
dashboard 108 that displays the trending representations 120 of
selected topics 118 that are trending over the time duration. The
visual dashboard can also display data sources of the
communications that are from and/or between the users, and/or
display an overview of the selected topics as determined from
selected data sources. The topics tracking application can also
receive a user input of a displayed section of a trending
representation 120 for a topic 118, and the visual dashboard 108
can display a section of the data source that corresponds to the
selected section of the trending representation.
Spec. ¶ 17. “The visual dashboard 108 can also display an interaction
representation of how interactions between the users influence the topics 118
that are trending over the time duration.” Spec. ¶ 18. The Specification
further describes:
[A] visual dashboard is generated that displays a trending
representation of the selected topic that is trending over the time
duration. For example, the topics tracking application 104

17 See, e.g., MPEP § 2106.05(a) “Improvements to the Functioning of a
Computer or To Any Other Technology or Technical Field,” and
§ 2106.05(e) “Other Meaningful Limitations.”
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generates the visual dashboard 108 that displays the trending
representations 120 of the trending topics 118 that are trending
over the time duration. The visual dashboard 108 can also
display data sources of the communications 106 that are from
and/or between the users, as well as an overview of the topics
that are determined from a selected data source. A user input of
a displayed section of a trending representation 120 for a topic
118 can be received, and the visual dashboard 108 displays a
section of the data source that corresponds to the selected
section of the trending representation. The visual dashboard 108
can also be implemented to display an interaction representation
of how interactions between the users of the communications
influence the topics 118 that are trending over the time
duration.
Spec. ¶ 29.
With respect to this phase of the analysis, Appellant argues:
Appellant notes that this language of claim 1 describes
with particularity specific steps performed with respect to the
displayed visual dashboard. As mentioned above, because the
visual dashboard is generated from electronic communications
between users’ communication-enabled devices, and because
the trending representation displayed by the visual dashboard
describes how text data topics of the electronic communications
are trending over time, the ability to determine a data source
that influences an area of the trending representation and
display the determined data source together with the trending
representation is unequivocally directed to solving a digitally-
rooted challenge particular to the Internet — identifying data
sources that influence a trending text data topic within
electronic communications over time.
Appeal Br. 28 (emphasis added).
We find Appellant’s argument persuasive that at least carrying out the
step of limitation L9, i.e., “updating the visual dashboard to concurrently
display a section of the determined data source and the trending
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representation with the highlighted area” provides improvements to the
underlying technology or technical field, namely, methods and systems for
tracking of trending topics to use in marketing analysis. See MPEP
§ 2106.05(a) or, alternatively, § 2106.05(e) “Other Meaningful
Limitations.”18
With respect to these other meaningful limitations, we find guidance
in MPEP § 2106.05(e), which summarizes and relies upon the Supreme
Court’s holding in Diehr, cited supra, and our reviewing court’s holdings in
Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir.
2011) (decision on remand from the Supreme Court, which had vacated the
lower court’s prior holding of ineligibility in view of Bilski v. Kappos).
Accordingly, we conclude, when the claim is considered as a whole,
the recited judicial exception is integrated into a practical application as
determined under either MPEP sections 2106.06(a) or 2106.05(e) cited
above, such that the claim is patent-eligible. Because the claims are directed
to a patent-eligible concept, this concludes the patent-eligibility inquiry.
Therefore, based upon the findings and legal conclusions above, on
this record and in consideration of the Revised Guidance, we are persuaded
the claims are directed to patent-eligible subject matter, such that we do not
sustain the § 101 rejection of claim 1, and grouped claims 2–20 which recite
limitations of commensurate scope.

18 Because we agree with at least one of the dispositive arguments advanced
by Appellant, we need not reach the merits of Appellant’s other arguments.
See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984)
(finding an administrative agency is at liberty to reach a decision based on “a
single dispositive issue”).
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2. § 103 Rejection R2 of Claims 1, 4, 7–9, 12, 13, 15, 16
Issue 2
Appellant argues (Appeal Br. 34–41) the Examiner’s rejection of
claim 1 under AIA 35 U.S.C. § 10319 as being obvious over the combination
of Baarman, Anstandig, and Sinel is in error. These contentions present us
with the following issues:
Did the Examiner err in finding the cited prior art combination teaches
or suggests “[i]n a digital medium environment including computing devices
performing trending topics tracking, a method” that includes, inter alia, the
steps of:
[(A)] displaying the visual dashboard with the trending
representation of the at least one text data topic;
[(B)] responsive to receiving an input to highlight an area
of the trending representation:
[(B1)] determining a data source of the one or
more data sources that influences the highlighted area;
and
[(B2)] updating the visual dashboard to
concurrently display a section of the determined data
source and the trending representation with the
highlighted area.
as recited in claim 1?

19 Although the Examiner states in the Final Action that obviousness
Rejections R2–R6 are made under pre-AIA 35 U.S.C. § 103(a), based upon
the filing date, i.e., June 5, 2014, this application is subject to the provisions
of the AIA.
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Principles of Law
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference . . . . Rather,
the test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” Id. at 425.
In KSR, the Court stated “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
416 (2007).
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill . . . . [A] court
must ask whether the improvement is more than the predictable
use of prior art elements according to their established
functions.
Id. at 417.
Further, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (cited with approval in KSR, 550 U.S. at 418).
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Analysis
Limitation (A): displaying the visual dashboard with the trending
representation of the at least one text data topic
The Examiner finds Anstandig teaches or suggests this disputed
limitation, i.e., “displaying the visual dashboard with the trending
representation of the at least one text data topic” in Figures 7 and 8. Final
Act. 10. Figures 7 and 8 of Anstandig are replicated below:

“[Figure 7] illustrate[s an] example display[] of a visual dashboard
that is generated in accordance with one or more embodiments of trending
topics tracking.” Spec. 4:19–21.
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“[Figure 8] illustrate[s an] example display[] of a visual dashboard
that is generated in accordance with one or more embodiments of trending
topics tracking.” Id.
Appellant generally alleges the combination of Baarman, Anstandig,
and Sinel “fails to teach or suggest, and has not been shown to teach or
suggest, ‘displaying the visual dashboard with the trending representation of
the at least one text data topic,’” as recited in claim 1 (Appeal Br. 34), but
Appellant fails to provide any specific analysis directed to this limitation.
See Appeal Br. 34–35.
Accordingly, we are not persuaded the Examiner erred by relying
upon Anstandig for this teaching.
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Limitation (B1): [responsive to . . .] determining a data source of the one or
more data sources that influences the highlighted area
The Examiner finds Sinel teaches or suggests this limitation, i.e.,
“responsive to receiving an input to highlight an area of the trending
representation . . . determining a data source of the one or more data sources
that influences the highlighted area,” as recited in claim 1. Final Act. 11
(citing Sinel ¶¶ 79–81; Figs. 7, 8).
Sinel discloses:
The time line graph control (FIG. 7.6 and FIG. 8.6) shows the
amount of discussions over a span of time related to every
executed query. For example, in FIG. 7.6, the amount of
dialogues on 8/26 is 1 and the amount of dialogues in FIG. 8.6
on 8/26 is 77. Graphic depiction over time allows analysts/end-
users to quickly identify “hot topics” by looking at activity
spikes and relating them back to various market events.
In a preferred embodiment, there are three modes of time line
analysis: monthly, daily, and hourly, with the application
defaulting to a monthly view. By selecting one or more days
within the time line control a query will be executed, utilizing
those days as search criteria. For example, if the date 8/26 is
selected as a search criterion (FIG. 9) the search result is
displayed on FIG. 9.2 with the system in Day mode.
Sinel ¶¶ 80–81.
Appellant argues the combination of Baarman and Anstandig,
particularly Anstandig, does not teach or suggest limitation B1 (Appeal
Br. 35–37), even though the Examiner clearly cites Sinel for this teaching.
See Final Act. 11. However, in later arguing that the reference combination
of Baarman, Anstandig, and Sinel is improper under § 103 due to lack of
motivation to combine (Appeal Br. 38), Appellant acknowledges the
Examiner’s reliance upon Sinel for limitation B1 (id.), but contends:
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For instance, as noted above in the excerpt of
Anstandig’s paragraph [0027], the user interface of Anstandig’s
Fig. 2 “allows users to go backwards in time to a particular day
or time period to observe which topics were trending during
that time” ( emphasis added). Thus, to the extent that the
Examiner asserts it would have been obvious to combine Sniel
[sic] with Baarman and Anstandig in order to enable “monthly,
daily, and hourly” view modes, Appellant respectfully submits
that such an incorporation does not enable any additional
functionality beyond that described by Anstandig. . . .
Appellant respectfully submits, particularly in view of
these tenets, that it would not have been obvious to combine
Sniel [sic] with Baarman and Anstandig at least because 1) the
alleged benefits of Sniel [sic] are not needed by Baarman or
Anstandig; 2) there is no suggestion by any reference to
incorporate the alleged benefits of Sniel [sic] into Baarman or
Anstandig; and 3) it is unknown how the alleged benefits of
Sniel [sic] would be employed or successfully incorporated into
the teachings of Baarman or Anstandig.
Appeal Br. 39–40.
The Examiner’s stated basis for motivation to combine Sinel with
Baarman and Anstandig is provided in the Final Action:
Therefore, it would have been obvious to one of ordinary
skill in the art before the effective filing date to incorporate the
teachings of Sniel [sic] within the invention of Baarman/
Anstandig with the motivation of collecting, storing,
categorizing, and analyzing online peer-to-peer discussions in
order to illuminate key consumer insights-clarify public
opinion, quantify trends and findings, and develop the
components for completed consumer research studies. (See,
Sniel [sic] Abstract) Moreover, all inventions are within the
same field of endeavor, namely, trending representation of
topics.
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Final Act. 11–12. In the Answer, the Examiner reiterates these findings
related to motivation to combine the references in the manner suggested, and
further emphasizes reliance upon rationales found in KSR. Ans. 6.
Other than providing a general allegation that Baarman and Anstandig
cannot properly be combined with Sinel, Appellant points to no evidence of
record that a person with skill in the art would decline to rely upon Sinel’s
teachings because, allegedly, “the alleged benefits of Sniel [sic] are not
needed by Baarman or Anstandig.” Appeal Br. 40. It could be inferred from
Appellant’s argument that the benefits of Sinel are not needed by Baarman
or Anstandig because one or more of these references already has the
features in Sinel relied upon by the Examiner, thus further buttressing the
Examiner’s rejection.
Mere attorney arguments and conclusory statements that are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984); and Ex parte Belinne, No. 2009-004693,
slip op. at 7-8 (BPAI Aug. 10, 2009) (informative), available at
https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/inform/
fd09004693.pdf.
Accordingly, we are not persuaded by Appellant’s unsupported
arguments that the Examiner erred in finding that Sinel in combination with
Baarman and Anstandig teaches or suggests disputed limitation B1.
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Limitation (B2): [responsive to . . .] updating the visual dashboard to
concurrently display a section of the determined data source and the
trending representation with the highlighted area
The Examiner finds Anstandig teaches or suggests limitation B2, i.e.,
“responsive to receiving an input to highlight an area of the trending
representation . . . updating the visual dashboard to concurrently display a
section of the determined data source and the trending representation with
the highlighted area,” as recited in claim 1. Final Act. 10 (citing Anstandig
Fig. 2; ¶ 27). This portion of Anstandig discloses:
The invention can also automatically alert users via SMS
text, e-mail, tweet, or other push mechanism when a topic in a
particular category has been labeled by the system in a
particular way (such as “hot” or “trending”). The invention also
allows users to go backwards in time to a particular day or time
period to observe which topics were trending during that time.
The invention also measures and estimates how much of the
story or topic’s “buzz” is based on coverage from news media
outlets vs. social media outlets. Users can see when a topic was
first detected by the invention and how fast it has been growing.
For most topics, users can also see a list of “most shared”
URL’s, making it easy for producers to research any particular
topic on multiple sources-namely those that are getting shared
most frequently by the audience measured by the system.
Anstandig ¶ 27.
Appellant alleges, because “the combination of Baarman and
Anstandig thus necessarily fails to teach or suggest any feature of claim 1
pertaining to the determined ‘data source that influences the highlighted
area,’” the Examiner erred. Appeal Br. 35. “Appellant respectfully
disagrees [with the Examiner] and submits that neither the cited portions,
nor any other portion, of Anstandig include a description that teaches or
even remotely suggests determining a data source of the one or more data
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sources that influences the highlighted area; and updating the visual
dashboard to concurrently display a section of the determined data source
and the trending representation with the highlighted area[ ], as recited.”
Appeal Br. 36 (footnote omitted).
Appellant further argues:
Thus, Anstandig merely illustrates and describes a user
interface that can list topics that are trending the fastest in the
past hour, the top stories for a given category (e.g., the top
“sports” stories in the middle column of Fig. 2), and topics that
have just recently been detected. In this manner, Anstandig
simply provides a user interface that displays “news stories,
headlines, blog entries, social media posts (e.g., tweets and
comments), message board entries, and other similar data.”
Anstandig’s user interface, however, is not the same as
“responsive to receiving an input to highlight an area of the
trending representation: determining a data source of the one or
more data sources that influences the highlighted area; and
updating the visual dashboard to concurrently display a
section of the determined data source and the trending
representation with the highlighted area”, as recited in
independent claim 1 (emphasis added).
This subject matter of claim 1 is simply missing from
Anstandig.
Appeal Br. 37 (footnote omitted).
The Examiner explains, in Figure 2 of Anstandig, “one can easily see
a visual dashboard that is concurrently displaying various all information
related to various trending and hot news. For example, the arrows and the
words ‘trending’ and ‘hot’ are explicitly disclosed next to the a data source
(i.e. ‘Parenting’ or ‘Politics’ or ‘Sports’) with an up and down arrow for
highlighting the area.” Ans. 5–6. The Examiner further elaborates by
referencing paragraph 27 of Anstandig which teaches “the lines, [‘]Users can
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see when a topic was first detected by the invention and how fast it has been
growing. For most topics, users can also see a list of ‘most shared’ URL's.’
Thus, the prior art showing/disclosing both a concurrent data source (i.e.
URL and which sections the information came from) and the trending
representation by the arrows and the list. Therefore, all limitations are met
and the Examiner maintains the rejection.” Ans. 6.
Figure 2 of Anstandig is provided below:

“FIG. 2 illustrates a user interface, or dashboard for the invention.”
As cited above, we agree with the Examiner’s finding that Anstandig
teaches or suggests disputed limitation B2, as recited in claim 1. We agree
with the Examiner because Appellant has not persuasively argued that
Anstandig fails to teach or suggest that the visual dashboard is updated to
concurrently display a section of the data source and a trending
representation associated with the highlighted area, as cited by the
Examiner.
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Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the disputed limitations of claim 1, nor do we find error in the
Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain
the Examiner’s obviousness rejection of independent claim 1, and grouped
claims 4, 7–9, 12, 13, 15, 16, which fall therewith. See Claim Grouping,
supra.
3. § 103 Rejection R5 of Claim 17
Issue 3
Appellant argues (Appeal Br. 48–52) the Examiner’s rejection of
claim 17 under 35 U.S.C. § 103 as being obvious over the combination of
Anstandig, Duerloo, Baarman, and Spivack is in error. These contentions
present us with the following issues:
Did the Examiner err in finding the cited prior discloses “[a] non-
transitory computer-readable storage memory device comprising a topics
tracking application stored as instructions that are executable and,
responsive to execution of the instructions by a computing device, the
computing device performs operations of the topics tracking application”
that includes, inter alia, the limitations of:
[(C)] receive a selection of an area of the trending
representation to highlight;
[(D)] determine a section of the selected data source that
influenced the highlighted area; and
[(E)] navigate in the visual dashboard to the section of
the selected data source, responsive to receipt of the selection,
the visual dashboard simultaneously displaying the trending
representation,
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as recited in claim 17?
Analysis
Limitation (C): receive a selection of an area of the trending
representation to highlight
The Examiner finds Spivack teaches or suggests limitation (C), i.e.,
“display the visual dashboard with the trending representation,” as recited in
claim 17. Final Act. 25 (citing Spivack ¶ 79). Paragraph 79 discloses:
FIG. 12 illustrates an example of a UI that shows
different trend activity events. The UI shows trend activity
events regarding a topic “Nike.” Each trend activity event is
associated with an impact score. For instance, the event of
“434K people (60%) started paying attention to Lance
Armstrong in one hour” has an impact score of 78. The
information about the trend activity events can be used to show
both a high-level and a low-level detail of how attention moves
around regarding any given topic.
Spivack ¶ 79. Figure 12 of Spivack is provided below:

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“FIG. 12 illustrates an example of a UI that shows different trend
activity events.” Spivack ¶ 22.
In particular, the Examiner finds paragraph 79 of Spivack teaches
“any given topic” functioning as the selection input, while the impact score
teaches the ‘highlight’.” Final Act. 25–26.
In response to the Examiner’s findings, Appellant presents arguments
that Anstandig is deficient with respect to teaching limitations (C) and (D),
and thus “cannot serve as the sole basis to reject claim 17’s recitation of
[limitation (E)].” Appeal Br. 50.
We are not persuaded the Examiner erred in making the findings
related to limitation (C) because Appellant’s arguments, based upon arguing
the references separately, are not commensurate with the Examiner’s
rejection, which relies upon the combination of Anstandig, Duerloo,
Baarman, and Spivack. See Keller, 642 F.2d at 426
Limitation (D): determine a section of the selected data source that
influenced the highlighted area
The Examiner finds Spivack teaches or suggests limitation (D), i.e.,
“determine a section of the selected data source that influenced the
highlighted area,” as recited in claim 17. Final Act. 26 (citing Spivack
Fig. 13; ¶¶ 80–84).
Paragraphs 80–81 disclose:
In order to analyze messages on a global level, the stream
rank analyzer includes a strategy for building an index of real-
time social networking data. Conventional scraping and
spidering approaches employed by search engines such as
Google rely on software programs that find, crawl and
download web pages using a large server infrastructure. This
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approach does not work for the real-time data needs of social
networks. By the time the crawl would be finished, all data can
be outdated.
The stream rank analyzer provides a solution by
including application programs for indexing messages part of
the browser. The stream rank analyzer includes a browser
extension or other form of software called an attention tracker
that can be installed within the browser.
Spivack ¶¶ 80–81. Figure 13 of Spivack is provided below:

“FIG. 13 illustrates a screenshot of an example attention tracker as a
browser extension that provides trend insights around links visited while
indexing social network data in the background.” Spivack ¶ 23.
The Examiner finds these portions of Spivack teach that the various
social networks function as the claimed data source, and the “trending
people” indicated in Figure 13 teaches the claimed selected data source.
Final Act. 26.
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Similar to Appellant’s argument with respect to claim 1, Issue 1,
supra,” Appellant argues:
[I]t would not have been obvious to combine Spivack with
Anstandig, Duerloo, and Baarman at least because 1) the
alleged benefits of Spivack are not needed by Anstandig,
Duerloo, or Baarman; 2) there is no suggestion by any reference
to incorporate the alleged benefits of Spivack into Anstandig,
Duerloo, or Baarman; and 3) it is unknown how the alleged
benefits of Spivack would be employed or successfully
incorporated into the teachings of Anstandig, Duerloo, or
Baarman.
Appeal Br. 51.
The Examiner’s stated basis for motivation to combine Duerloo with
Baarman and Anstandig is provided in the Final Action:
Therefore, it would have been obvious to one of ordinary
skill in the art at the time of filing to incorporate the teachings
of Baarman within the invention of Anstandig/Duerloo with the
motivation of visualizing to the user impact analysis. (See,
Baarman paragraph 90) Moreover all inventions are within the
same field of endeavor, namely, topic trending analysis.
Final Act. 25. The Examiner also provides a finding regarding the
motivation to add Spivack to the reference combination.
Therefore, it would have been obvious to one of ordinary
skill in the art before the effective filing date to incorporate the
teachings of Spivack within the invention of Anstandig/
Duerloo/Baarman with the motivation of sorting and organizing
to analyze the relevant trending information from non-trending
information. Moreover, both inventions are within the same
field of endeavor, namely, trending representation of topics.
Final Act. 26.
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In the Answer, the Examiner reiterates these findings related to
motivation to combine the references in the manner suggested, and further
emphasizes reliance upon rationales found in KSR. Ans. 8.
Other than providing a general allegation that Spivack cannot properly
be combined with Anstandig, Duerloo, and Baarman, Appellant points to no
evidence of record that a person with skill in the art would decline to rely
upon Spivack’s teachings because, allegedly, “the alleged benefits of
Spivack are not needed by Anstandig, Duerloo, or Baarman.” Appeal
Br. 51. Similar to the analysis in Issue 1, claim 1, it could be inferred from
Appellant’s argument that the benefits of Spivack are not needed by
Anstandig, Duerloo, and Baarman because one or more of these references
already has the features in Spivack relied upon by the Examiner, thus further
buttressing the Examiner’s rejection. Mere attorney arguments and
conclusory statements that are unsupported by factual evidence are entitled
to little probative value. Geisler, 116 F.3d at 1470.
Accordingly, we are not persuaded by Appellant’s unsupported
arguments that the Examiner erred in finding that Spivack in combination
with Anstandig, Duerloo, and Baarman teaches or suggests disputed
limitation D.
Limitation (E): navigate in the visual dashboard to the section of the
selected data source . . . the visual dashboard simultaneously
displaying the trending representation
The Examiner finds Anstandig teaches or suggests limitation (E), i.e.,
“navigate in the visual dashboard to the section of the selected data source,
responsive to receipt of the selection, the visual dashboard simultaneously
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displaying the trending representation,” as recited in claim 17. Final Act. 24
(citing Anstandig, Fig. 7). Figure 7 of Anstandig is again replicated below:

“[Figure 7] illustrate[s an] example display[] of a visual dashboard
that is generated in accordance with one or more embodiments of trending
topics tracking.” Spec. 4:19–21.
The Examiner further explains the rejection in the Answer. “Fig.7 of
Anstanding shows/discloses how once a user has navigated to a specific
topic (i.e. section of the selected data source), here that being the topic of
Tracy Morgan in the ‘Hot’ data, the dashboard shows both the selected data
and the trending representation, here that being the graph. Thus, all
limitations are met.” Ans. 7.
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Appellant argues:
In the present case, for at least the reason that the Examiner has
explicitly stated that Anstandig fails to disclose “[r]eceive a
selection of an area of the trending representation to highlight”
and “[d]etermine a section of the selected data source that
influences the highlighted area”, Anstandig cannot serve as the
sole basis to reject claim 17’s recitation of “navigate in the
visual dashboard to the section of the selected data source,
responsive to receipt of the selection, the visual dashboard
simultaneously displaying the trending representation”
(emphasis added).[ ]
The Examiner’s reliance on Fig. 7 of Anstandig is not
seen to remedy these deficiencies of Anstandig.
Appeal Br. 51.
We agree with the Examiner’s finding that the limitation “navigate in
the visual dashboard to the section of the selected data source, responsive to
receipt of the selection, the visual dashboard simultaneously displaying the
trending representation” reads on Anstandig’s Figure 7, as described by the
Examiner. Ans. 7.
We find Appellant is arguing the references separately because, as
discussed above, limitations (C) and (D) rely upon Spivack, and limitation
(E) relies upon the teachings of Anstandig. Moreover, the rejection relies
upon what the reference combination would have suggested to a person of
ordinary skill in the art. See Keller at 425.
Accordingly, we are not persuaded by Appellant’s argument that the
Examiner erred in finding that Anstandig in combination with Spivack,
Duerloo, and Baarman teaches or suggests disputed limitation E.
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Based upon the findings above, on this record, we are not persuaded
of error in the Examiner’s reliance on the cited prior art combination to teach
or suggest the disputed limitations of claim 17, nor do we find error in the
Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain
the Examiner’s obviousness rejection of independent claim 17.
4. § 103 Rejection R6 of Claims 18–20
Issue 4
Appellant argues (Appeal Br. 52; Reply Br. 6–7) the Examiner’s
rejection of claims 18–20 under 35 U.S.C. § 103 as being obvious over the
combination of Anstandig, Spivack, and Sinel is in error. These contentions
present us with the following issue:
Did the Examiner err in finding the cited prior art combination of
Anstandig, Spivack, and Sinel teaches or suggests all the limitations of
claims 18–20 considering that claim 17, from which claims 18–20 depend, is
rejected over the combination of Anstandig, Duerloo, Baarman, and
Spivack, such that the Examiner has omitted citation to the necessary
Duerloo and Baarman references?
Analysis
The Examiner concludes “[c]laims 18–20 are rejected under 35 U.S.C.
103[] as unpatentable over Anstandig in view Spivack in further view of
Sniel [sic].” Final Act. 27.20

20 Claims 18–20 depend from claim 17 which, in Rejection R5, was rejected
over the combination of Anstandig, Duerloo, Baarman, and Spivack. Final
Act. 22. Rejection R6 of claims 18–20, depending on claim 17, omits any
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Appellant contends:
Because claims 18–20 incorporate all the limitations
recited in claim 17, for which Duerloo and Baarman are cited, a
proper rejection of claims 18-20 relying on Sniel [sic] must also
provide a clear articulation of reasons to support a combination
of Sniel [sic] with Duerloo and Baarman. However, such
reasoning in support of rejecting claims 18–20 is absent from
the record. As such, the Examiner has failed to establish a
prima facie case of obviousness with respect to claims 18–20
and the § 103 rejections should be overturned.
Appeal Br. 52 (footnote omitted).
In response, the Examiner asserts, “Appellant reiterates the argument
of page 52 that the combination is inappropriate. The Examiner maintains
the combination is valid under KSR with the rationale provided in the Final
Office Action and section 1-B of this Examiner's Answer.” Ans. 8.
We disagree with the Examiner’s formulation of Rejection R6, and
agree with Appellant that the Examiner erred by not making explicit the
manner in which the various references were being combined in light of
Rejection R5 of claim 17, from which claims 18–20 depend. The Manual
for Patent Examining Procedure (MPEP § 2143) instructs
[t]he key to supporting any rejection under 35 U.S.C. 103 is the
clear articulation of the reason(s) why the claimed invention
would have been obvious. The Supreme Court in KSR noted
that the analysis supporting a rejection under 35 U.S.C. 103
should be made explicit. In Ball Aerosol v. Ltd. Brands, 555
F.3d 984[ ] (Fed. Cir. 2009), the Federal Circuit offered
additional instruction as to the need for an explicit analysis,

reference to the Duerloo and Baarman references included in Rejection R5.
Final Act. 27.
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which we are persuaded is lacking in this Appeal for this rejection.
Based upon the findings above, on this record, we are persuaded of at
least one error in the Examiner’s reliance on the cited prior art combination
to teach or suggest the limitations of claims 18–20, such that we find error in
the Examiner’s resulting legal conclusion of obviousness. Therefore, we do
not sustain the Examiner’s obviousness rejection of dependent claims 18–20.
5. Rejections R3 and R4 of Claims 2, 3, 5, 6, 10, 11, 14
In view of the lack of any substantive or separate arguments directed
to obviousness Rejections R3 and R4 of claims 2, 3, 5, 6, 10, 11, and 14
under § 103 (see Appeal Br. 40, 48), we sustain the Examiner’s rejection of
these claims. Arguments not made are waived.21
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 2–7) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.

21 Appellant merely argues, “[c]laims 2–8 depend from claim 1 and thus are
allowable at least for depending from an allowable base claim. These claims
are also allowable for their own recited features which, in combination with
features recited in claim 1, are neither taught nor suggested by the references
of record. To the extent that claims 2, 3, 5, and 6 are further rejected under
§ 103, the additions of Duerloo and Duchon are not seen to add anything of
significance to the rejection of claim 1.” Appeal Br. 40–41.
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CONCLUSIONS
(1) Under our Revised Guidance, governed by relevant case law,
Appellant has persuasively argued that claims 1–20 are patent eligible under
35 U.S.C. § 101,and we do not sustain the rejection.
(2) Appellant has not persuasively argued that the Examiner erred
with respect to obviousness Rejections R2 through R5 of claims 1–17 under
35 U.S.C. § 103 over the cited prior art combinations of record, and we
sustain the rejections.
(3) Appellant has persuasively argued that the Examiner erred with
respect to obviousness Rejection R6 of claims 18–20 under 35 U.S.C. § 103
over the cited prior art combination of record, and we do not sustain the
rejection.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1, 4, 7–9, 12,
13, 15, 16
103 Baarman,
Anstandig, Sinel
1, 4, 7–9, 12,
13, 15, 16

5 103 Baarman,
Anstandig, Sinel,
Duchon
5
2, 3, 6, 10,
11, 14
103 Baarman,
Anstandig, Sinel,
Duerloo
2, 3, 6, 10,
11, 14

17 103 Anstandig,
Duerloo, Baarman,
Spivack
17
18–20 103 Anstandig,
Spivack, Sinel
18–20
Overall
Outcome
1–17 18–20
FINALITY AND RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED IN PART