ADOBE INC.

Patent Trials and Appeals Board

Mar 7, 2022

2021003177 (P.T.A.B. Mar. 7, 2022)

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. 15/229,827 08/05/2016 MATTHEW RYAN SCHARF P6132-US/ADBS.251828 3304 121363 7590 03/07/2022 Adobe Inc. Shook, Hardy & Bacon L.L.P. Intellectual Property Department 2555 Grand Blvd Kansas City, MO 64108 EXAMINER GARTLAND, SCOTT D ART UNIT PAPER NUMBER 3622 NOTIFICATION DATE DELIVERY MODE 03/07/2022 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): seaton@shb.com shbdocketing@shb.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATTHEW RYAN SCHARF ____________ Appeal 2021-003177 Application 15/229,827 Technology Center 3600 ____________ Before JAMES P. CALVE, KENNETH G. SCHOPFER, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s final decision to reject claims 1-20, which are all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Adobe Inc. Appeal Br. 1. Appeal 2021-003177 Application 15/229,827 2 CLAIMED SUBJECT MATTER The Appellant’s invention relates to “providing attribution data from a marketer’s attribution model to media partners on a per-content impression basis in a way that allows the media partners to associate the attribution data from the marketer with data within their own platform.” Spec. ¶ 5. Claims 1, 10, and 17 are the independent claims on appeal. Claim 1 is illustrative of the subject matter on appeal and is reproduced below (with added paragraphing, formatting, and lettered bracketing for reference). 1. One or more computer storage media storing computer- useable instructions that, when executed by a computing device, cause the computing device to perform operations, the operations comprising: [(a)] receiving content impression data and media partner metadata from a user device for each of a plurality of content impressions on the user device, the content impression data and media partner metadata including first content impression data and first media partner metadata for a first content impression on the user device received from the user device responsive to: [(a1)] the user device receiving a first ad tag with the first media partner metadata from a first media partner server of a first media partner and [(a1i)] executing code of the first ad tag to generate a first content request that includes the first media partner metadata and [(a1ii)] transmit the first content request with the first media partner metadata to a first content server of a first content provider separate from the first media partner, and [(a2)] the user device receiving first content and a first pixel tag with the first media partner metadata generated by the first content server in response to the first content request and Appeal 2021-003177 Application 15/229,827 3 [(a2i)] executing code of the first pixel tag to capture and transmit the first media partner metadata and the first content impression data for the first content impression; [(b)] determining an attribution score for each content impression based at least in part on the content impression data; [(c)] associating the attribution score for each content impression with the media partner metadata for each content impression; [(d)] generating an attribution file for the first media partner that includes the attribution score associated with the media partner metadata for content impressions from the first media partner; and [(e)] providing the attribution file to the first media partner. Appeal Br. 22-23 (Claims App.). REFERENCES The prior art relied upon by the Examiner are: Name Reference Date Schoen et al. (“Schoen”) US 2011/0231240 A1 Sept. 22, 2011 Mathura et al. (“Mathura”) US 2016/0048937 A1 Feb. 18, 2016 REJECTIONS Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. Claims 1-8, 10-15, and 17-20 stand rejected under 35 US.C. § 102(a)(1) as anticipated by Schoen. Claims 9 and 16 stand rejected under 35 US.C. § 103 as being unpatentable over Schoen and Mathura. Appeal 2021-003177 Application 15/229,827 4 OPINION 35 U.S.C. § 101 - Statutory Subject Matter The Appellant argues the pending claims as a group. See Appeal Br. 7, 14. We select independent claim 1 as representative of the group, with the remaining claims standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv) (2020). 35 U.S.C. § 101 Framework Section 101 An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the U.S. 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. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Court’s two-part framework, described in Mayo and Alice. Id. at 217-18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). 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 Appeal 2021-003177 Application 15/229,827 5 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” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “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))). In Diehr, the claim at issue recited a mathematical formula, but the Court held that “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 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. (citations 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 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- Appeal 2021-003177 Application 15/229,827 6 eligible application.” Alice, 573 U.S. at 221 (quotation marks 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. USPTO Section 101 Guidance We are also guided by U.S. Patent and Trademark Office (“USPTO”) Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”) and the October 2019 Update: Subject Matter Eligibility (“October 2019 Update”), incorporated into the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104-06, Rev. 10.2019 (“MPEP”) in June 2020. “The guidance sets out agency policy with respect to the USPTO’s interpretation of the subject matter eligibility requirements of 35 U.S.C. § 101 in view of decisions by the Supreme Court and the Federal Circuit.” Guidance, 84 Fed. Reg. at 51. Although “[a]ll USPTO personnel are, as a matter of internal agency management, expected to follow the guidance,” the guidance “does not create any right or benefit, substantive or procedural, enforceable by any party against the USPTO.” Id. The Guidance, by its terms, applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id. at 50. Under USPTO guidance, we first look to whether the claim recites: (1) any judicial exceptions, including laws of nature, natural phenomena, and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b)) (“Step 2A, Prong One”); and (2) additional elements that integrate the Appeal 2021-003177 Application 15/229,827 7 judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2), 2106.04(d)) (“Step 2A, Prong Two”).2 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under Step 2B, to whether the additional elements, individually or in combination, provide an inventive concept. See MPEP §§ 2106(III), 2106.05. “An inventive concept ‘cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir. 2016)). Among the considerations in determining whether the additional elements, individually or in combination, amount to significantly more than the exception itself, we look to whether they add a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field or simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56. Step One of the Mayo/Alice Framework Under the first step of the Mayo/Alice framework and Step 2A, Prong One of USPTO guidance, the Examiner determines that claim 1 “may be summarized as the idea of attributing content impressions” that is within the certain methods of organizing human activity (e.g. ... commercial or legal interactions such as ... advertising, 2 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54-55; MPEP § 2106.04(d). Appeal 2021-003177 Application 15/229,827 8 marketing or sales activities/behaviors, or business relations ... ) grouping of subject matter based on the long-established advertising, marketing, and/or sales practice of tracking who is seeing content such as advertising, and/or who is responding or acting on the impressions. The claims may also be considered as within the grouping of mental processes (e.g., concepts performed in the human mind such as observation, evaluation, judgment, and/or opinion) - where people have, or used to, mentally track who and/or how many people viewed or attended a content presentation (e.g., speeches, sermons or church services, concerts, television and/or radio presentations, etc.). Non-Final Act. 6-7. Under Prong Two of USPTO guidance, the Examiner also determines “the above judicial exception is not integrated into a practical application because the additional elements do not impose a meaningful limit on the judicial exception when evaluated individually and as a combination.” Id. at 8. The Appellant disagrees and contends the Examiner’s assertion under Prong One that the claim recites an abstract idea is in error because claim 1 does not recite an abstract of organizing human activity or mental processes. See Appeal Br. 7-10. Under Prong Two, the Appellant contends the “claim as a whole is directed to a particular improvement in technology.” Appeal Br. 10; see also id. at 11-12; Reply Br. 2-6. Under the first step of the Mayo/Alice framework and Step 2A of USPTO guidance, we first determine to what the claims are directed, i.e., whether the claims recite an abstract idea and if so, whether the claims are directed to that abstract idea. The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Appeal 2021-003177 Application 15/229,827 9 Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335-36. Here, it is clear from the Specification, including the claim language, that claim 1 focuses on an abstract idea, and not on any improvement to technology and/or a technical field. The Specification provides evidence as to what the claimed invention is directed. Here, the Title of the Specification provides for “ENHANCING MEDIA PARTNER METADATA WITH ATTRIBUTION DATA.” Spec. 1. The “BACKGROUND” section discusses that traditionally, a media partner serving marketers’ content “does not have visibility into how they’re performing relative to other media partners with respect to the fact that their media represents only a partial contribution to a user’s eventual conversion,” i.e., purchase of a product. Id. ¶ 2. “[D]ue to the lack of insight into all other contributing touchpoints, the media partner is often forced to assume 100% contribution to a conversion because of a lack of visibility into the full contribution to the user’s eventual conversion form other media partners or marketing channels.” Id. “Meanwhile, the marketer can use attribution models that look at the different content impressions [i.e., deliveries of content for display] provided to a user who has performed a conversion to determine the contribution of each content impression to that conversion.” Id. ¶ 3. The marketer can use data from the models to optimize delivery of the content by reallocating marketing budgets or giving direction to media partners to narrow in on targeting tactics. Id. However, “there is a disconnect between how advanced attribution models are Appeal 2021-003177 Application 15/229,827 10 becoming and the information that is given to media partners in order to inform their optimization efforts towards the media tactics and media partner touchpoints that the attribution models are identifying as valuable.” Id. ¶ 4. “The data in the attribution platforms used by marketers are inherently different with different data identifiers for unique users, different methods, and disparate data processing capabilities.” Id. This results in media partners being “limited in the ways they can apply their own data to increase the contribution to the marketer’s business with respect to how the marketer’s attribution model determines contribution value.” Id. Embodiments of the present invention address the technical challenge of optimizing media partners’ targeting of content to users by providing an approach that allows a marketer to deliver attribution data to the media partners such that the media partners can tie attribution data to individual content impressions in the media partners’ own data as well as any associated data within their data warehouses. Id. ¶ 25. Media partners are thus allowed to optimize their content target more intelligently, make decisions within their own proprietary systems based on their unique business, and leverage their own proprietary methods. Id. Consistent with this disclosure, independent claim 1 recites “[o]ne or more computer storage media storing computer-useable instructions that, when executed by a computing device, cause the computing device to perform operations, the operations comprising:” (1) receiving data from a user device in response to the user device receiving data and tags, generating data of a request, capturing the data, and transmitting the data, i.e., limitations (a), (a1), and (a2) of receiving content impression data and media partner metadata from a user device for each of a plurality of content Appeal 2021-003177 Application 15/229,827 11 impressions on the user device, the content impression data and media partner metadata including first content impression data and first media partner metadata for a first content impression on the user device received from the user device responsive to: ([(a1)] the user device receiving a first ad tag with the first media partner metadata from a first media partner server of a first media partner and [(a1i)] executing code of the first ad tag to generate a first content request that includes the first media partner metadata and [(a1ii)] transmit the first content request with the first media partner metadata to a first content server of a first content provider separate from the first media partner, and [(a2)] the user device receiving first content and a first pixel tag with the first media partner metadata generated by the first content server in response to the first content request and [(a2i)] executing code of the first pixel tag to capture and transmit the first media partner metadata and the first content impression data for the first content impression; (2) determining a score based on the data, i.e., limitation (b) of “determining an attribution score for each content impression based at least in part on the content impression data;” (3) associating the score with data, i.e., limitation (c) of “associating the attribution score for each content impression with the media partner metadata for each content impression;” (4) generating a file including the score, i.e., limitation (d) of “generating an attribution file for the first media partner that includes the attribution score associated with the media partner metadata for content impressions from the first media partner;” and Appeal 2021-003177 Application 15/229,827 12 (5) sending data, i.e., limitation (e) of “providing the attribution file to the first media partner.” Taking claim 1 as representative, we consider the claim as a whole3 giving it the broadest reasonable construction4 as one of ordinary skill in the art would have interpreted it in light of the Specification5 at the time of filing. Receiving data is an extra-solution activity and an abstract idea. See In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc), aff’d Bilski v. Kappos, 561 U.S. 593 (2010) (characterizing data gathering steps as insignificant extra-solution activity); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding that collecting information is an abstract idea); ChargePoint, Inc. v. SemaCONNECT, Inc., 920 F.3d 759, 766 (Fed. Cir. 2019) (holding that communicating over a network as an abstract idea); MPEP § 2106.05(g). The limitations requiring the generating, capturing, determining, and associating of data are all recited functionally without details on how, technologically or by what algorithm, they are performed. And, we do not see any further detail in the portions of the Specification cited by the 3 “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diehr, 450 U.S. at 188. 4 Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation . . . .”) (emphasis added). 5 “First, it is always important to look at the actual language of the claims. . . . Second, in considering the roles played by individual limitations, it is important to read the claims ‘in light of the specification.’” Smart Sys. Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1378 (Fed. Cir. 2017) (J. Linn, dissenting in part and concurring in part) (citing Enfish, 822 F.3d at 1335, among others). Appeal 2021-003177 Application 15/229,827 13 Appellant. See Appeal Br. 3 (citing Spec. ¶¶ 5, 53-58, 62-64, Figs. 1B, 5). Thus, these limitations are ways of analyzing and collecting data, which are mental processes and abstract ideas. See Elec. Power Grp., 830 F.3d at 1353-54 (holding that collecting information is an abstract idea and “we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes”) (citing cases). The limitations of generating file data based on the analyses and providing that data are “abstract as an ancillary part of such collection and analysis.” Elec. Power Grp., 830 F.3d at 1354. The computing device of independent claim 1, the user device of independent claim 10, and the computer system of independent claim 17 are generic computing systems. See, e.g., Spec. ¶¶ 34, 65-70 (describing a general purpose computer such as a workstation, server, laptop, or hand-held device, etc.), Figs. 1A, 6. When considered collectively and under the broadest reasonable interpretation, the limitations of claim 1 recite a way of using a generic computing device to receive and analyze data and send data based on the results of the analyses for the purpose of providing attribution data, i.e., the value of a content impression to a conversion, which is similar to the Examiner’s characterization.6 This is an abstract idea of a “[c]ertain method[] of organizing human activity-. . . commercial or legal 6 We note 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). The Board’s “slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. at 1241. Appeal 2021-003177 Application 15/229,827 14 interactions (including . . . advertising, marketing or sales activities or behaviors; business relations)” and comprises “[m]ental processes- concepts performed in the human mind (including an observation, evaluation, judgment, opinion).” Guidance, 84 Fed. Reg. at 52; MPEP §§ 2106.04(a)(2)(II), 2106.04(a)(2)(III). Our reviewing court has held similar concepts to be abstract. For example, the Federal Circuit has held abstract the concepts of “taking two data sets and combining them into a single data set” in Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014), standardizing data to be conveyed to a bedside device for graphical display in Univ. of Fla. Research Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363, 1366-68 (Fed. Cir. 2019, collecting, analyzing, and displaying the results in Elec. Power Grp., 830 F.3d at 1354, collecting, analyzing, manipulating, and processing data and displaying the results of the analysis, manipulation, and processing in Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (“Capital One Fin.”), and “selecting certain information, analyzing it using mathematical techniques, and reporting or displaying the results of the analysis” in SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). As such, we are unpersuaded by the Appellant’s arguments that claim 1 does not recite an abstract idea because the Examiner oversimplifies that claim and because the claim does not recite a method, a certain method of organizing human activity, nor a mental process. See Appeal Br. 7-9. Furthermore, the question of whether said claim or its steps fall within one of the groupings of abstract ideas of the Guidance (see Appeal Br. 7 “As noted in the 2019 Guidance, to recite an abstract idea, claim limitations must Appeal 2021-003177 Application 15/229,827 15 on their own or per se recite one of the following concepts”)) is not dispositive of patent eligibility of the claim as a whole. See Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., 955 F.3d 1317, 1327 (Fed. Cir. 2020). (“Ericsson’s suggestion that an abstract idea must be a ‘mathematical algorithm,’ ‘method of organizing human activity,’ or ‘fundamental economic practice,’ . . . is legally erroneous. The Supreme Court has explicitly rejected the use of such “categorical rules” to decide patent eligibility. Bilski v. Kappos, 561 U.S. 593, 610, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010). As a result, ‘[t]he Supreme Court and we have held that a wide variety of well-known and other activities constitute abstract ideas.’ Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1314 (Fed. Cir. 2016) (collecting cases).”); see also Guidance, 84 Fed. Reg. at 51 (“Rejections will continue to be based upon the substantive law.”).” Regarding the Appellant’s contention that the claims do not recite an abstract idea because they “cannot, in their entirety, be practically performed in the human mind or even by pen and paper” (Appeal Br. 10; see also Reply Br. 6-8), we disagree. We first note that “[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind.” Versata Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015). Second, as discussed more fully below, this merely limits the invention to a particular computer environment. Having concluded that claim 1 recites a judicial exception under the Guidance, Step 2A, Prong One, we next consider whether the claim recites additional elements that integrate the judicial exception into a practical application. To do so, we look to whether the claim “appl[ies], rel[ies] on, Appeal 2021-003177 Application 15/229,827 16 or use[s] the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim[ is] more than a drafting effort designed to monopolize the judicial exception,” i.e., “integrates a judicial exception into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP § 2106.04(d). We agree with and adopt the Examiner’s findings and conclusion that the additional limitations of claim 1 do not integrate the abstract idea into a practical application, as the term is used in USPTO guidance. See Non-Final Act. 8-10. We add the following for emphasis. Here, the additional elements recited in claim 1 beyond the abstract idea are, as identified by the Examiner, the computer storage media, computing device, user device, ad tag, content server, pixel tag, and code. The Specification provides that the storage media, computing device, user device, and content server are generic computers and components. See Spec. ¶¶ 34, 65-70. The terms ad tag, pixel tag, and code refer to computer code, i.e., program instructions, and thus data that instruct a device to perform actions to as requesting, capturing, and sending data. Id. ¶¶ 19 (“The term ‘pixel tag’ refers to code that is triggered when associated content is displayed on a user device for a content impression. A pixel tag is configured to capture media partner metadata and content impression data for the content impression”); 21 (“The term ‘ad tag’ refers to HTML code that is provided to a user device for a content impression and acts as a redirect to cause the user device to request content from a content server for the content impression”). Thus, the additional elements comprise generic computer components and program instructions. As is clear from the Specification, there is no indication that the operations recited in the claim require any specialized computer hardware or Appeal 2021-003177 Application 15/229,827 17 other inventive computer components, i.e., a particular machine, invoke any asserted inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.”). We also find no indication in the Specification that the claimed invention as recited in the claim effects a transformation or reduction of a particular article to a different state or thing. Nor do we find anything of record that attributes an improvement in technology and/or a technical field to the claimed invention or that otherwise indicates that the claimed invention integrates the abstract idea into a “practical application,” as that phrase is used in USPTO Guidance. We are not persuaded of Examiner error by the Appellant’s argument that the claim “as a whole is directed to a particular improvement in technology” in that it solves the challenge presented when a media partner server initiating a content impression is provided by a media partner that is a separate entity from a content provider whose content server provides content to a user device by providing a system configured to transmit media partner metadata from the media partner server to the content server . . . by providing a system that is configured to use a combination of ad tags and pixel tags to capture content impression data and media partner metadata on a per-content impression basis. Appeal Br. 10-11. First, we note that the problem being addressed is the difficulty in “[a]ssessing the attribution of each media partner” (id. at 11), or as described in the Specification, in understanding how one media partner is Appeal 2021-003177 Application 15/229,827 18 “performing relative to other media partners with respect to the fact that their media represents only a partial contribution to a user’s eventual conversion” because of the “different directional data” used to inform media partners’ optimizations as compared to the data used by the attribution platform (Spec. ¶¶ 2, 4). The problem addressed is not one rooted in technology, but rather a business one of having accurate data to determine attribution of each partner. See DDR Holdings, 773 F.3d at 1257 (holding that the claims were directed to statutory subject matter because they claim a solution “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks”). To the extent the Appellant asserts the problem being addressed is of “correlating data for a content impression on a user device when multiple servers from different entities are involved in the content impression” (Reply Br. 5), we note that the problem of correlating data between different entities is not one rooted in technology and existed prior to the Internet. Even were one to consider these problems to be Internet-centric, the claim recites an invention that is merely the routine use of the computer components with generally claimed programming. See DDR Holdings, 773 F.3d at 1258-59 (cautioning that “not all claims purporting to address Internet-centric challenges are eligible for patent” and contrasting the claims to those at issue in Ultramercial, Inc. v. Hulu LLC, 772 F.3d 709 (Fed. Cir. 2014) in that, in DDR Holdings, the computer network was not operating in its “normal, expected manner” and the claims did not “recite an invention that is . . . merely the routine or conventional use of the Internet”). The purported solution comprises a generic computer operating in its ordinary and conventional capacity to perform the functions of receiving and Appeal 2021-003177 Application 15/229,827 19 analyzing data and sending data based on the results of the analyses. See supra; see also Alice, 573 U.S. at 224-26. Here, the limitations are recited functionally without implementation details on how they are technologically performed such that they would not be routine and conventional uses of the claimed component. To the extent that the Appellant asserts that the solution of “providing a system that is configured to use a combination of ad tags and pixel tags to capture content impression data and media partner metadata on a per-content impression basis” is an unconventional, non-routine technical solution (Appeal Br. 11), we disagree. The Appellant does not direct attention to, and we do not see, where the Specification provides that the computer system acts in an abnormal manner or outside of its ordinary capacity; at best, the system is programmed to perform a function of executing code of a pixel tag for capturing and transmitting data. The Appellant does not contend that it invented any of the claimed components or their basic functions or that those components and functions, claimed generally, were unknown in the art as of the time of the invention. See Affinity Labs of Texas, LLC v. Amazon.com, Inc., 838 F.3d 1266, 1270 (Fed. Cir. 2016); see also Ans. 5-6 (asserting that the claim is recited more broadly than the Appellant argues). The “focus” of the claim as a whole is not “on the specific asserted improvement in computer capabilities.” Enfish, 822 F.3d at 1336. Rather, the claim merely limits the abstract idea to a particular technological environment of the Internet and online advertising, which does not render the claim any less abstract. See id.; Alice, 573 U.S. at 223 (holding that attempting to limit the use of an abstract idea to a particular technological environment does not make a claim patent-eligible) (quoting Bilski, 561 U.S. Appeal 2021-003177 Application 15/229,827 20 at 610-11); Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016) (“[M]erely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claim[] any less abstract.”); Ultramercial, 772 F.3d at 716 (“As we have held, the use of the Internet is not sufficient to save otherwise abstract claims from ineligibility under § 101.”). Any solution presented is in the abstract idea itself, and not to any technology, i.e., to the computer components themselves. See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287-88 (Fed. Cir. 2018). Therefore, we are not persuaded of error in the Examiner’s determination that claim 1 is directed to an abstract idea. Step Two of the Mayo/Alice Framework Under the second step in the Mayo/Alice framework and USTPO guidance Step 2B, we “[e]valuat[e] additional elements to determine whether they amount to an inventive concept [which] requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” MPEP § 2106.05(I). Here, the Examiner finds that claim 1 do[es] not include additional elements that are sufficient to amount to significantly more than the judicial exception because even at reconsideration or reevaluation, the additional activity still appears to not amount to significantly more than the application of the abstract idea by a computer, using the computer as a tool, and merely generally linking the idea to a/the technical environment and/or the field of use of attributing impressions. Non-Final Act. 10; see also id. at 11, Ans. 7-8. The Appellant disagrees and argues that the claim “recites a combination of elements that is not well-understood, routine, and Appeal 2021-003177 Application 15/229,827 21 conventional” because the features of a “media partner server provid[ing] an ad tag with media partner metadata to a user device, causing the user device to send a content request with the media partner metadata to a content server” that in response to the request, “generat[ing] a pixel tag to capture the media partner metadata as well as content impression data on the user device” “were not previously employed by conventional systems.” Appeal Br. 13-14; see also Reply Br. 6-9. As discussed above, under Step 2B, we look to whether the additional elements beyond the abstract idea, individually or in combination, provide an inventive concept. Guidance, 84 Fed. Reg. at 55; MPEP § 2106.05(I). Alice is clear, as described above, that under step two of the Mayo/Alice framework, the elements of each claim are considered both individually and “as an ordered combination” to determine whether the additional elements, i.e., the elements other than the abstract idea itself, “transform the nature of the claim” into a patent-eligible application. Alice, 573 U.S. at 217. In other words, the inventive concept under step two of the Mayo/Alice framework cannot be the abstract idea itself: “It is clear from Mayo that the ‘inventive concept’ cannot be the abstract idea itself, and Berkheimer [v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) (“Berkheimer”)] . . . leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged ‘inventive concept’ is the abstract idea.” Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Order, On Petition for rehearing en banc, May 31, 2018) (Moore, J., concurring) (Berkheimer II); see also BSG Tech, 899 F.3d at 1290 (“It has been clear since Alice that a claimed invention’s use of the ineligible concept to which it is directed cannot supply Appeal 2021-003177 Application 15/229,827 22 the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.”). Here, the Examiner properly considers the additional elements outside the abstract idea and determines they do not transform the nature of the claim into a patent-eligible application. See Non-Final Act. 10-11; Ans. 7-8. The elements to which the Appellant refers, i.e., providing an ad tag with metadata to a user device, causing the user device to send a content request metadata to a content server, generating code of a pixel tag to capture and transmit data (see Appeal Br. 13), are, as also discussed above, abstract ideas themselves and part of the abstract idea as a whole as well as an extra-solution activity of transmitting data. They are not additional elements to be considered when determining whether claim 1 includes additional elements or a combination of elements that is sufficient to amount to significantly more than the judicial exception. And, as discussed above, the claim elements beyond the abstract idea of computer storage media, computing device, user device, ad tag, content server, pixel tag, and code comprise generic, conventional computer components and program instructions. See supra, Spec. ¶¶ 19, 21, 34, 65-70. As also noted above, the claim functionally recites the steps without any details on how they are performed, technologically or by what algorithm, except to say they are performed by the computing and user devices. “Indeed, the claim language here provides only a result-oriented solution, with insufficient detail for how a computer accomplishes it. Our law demands more.” Capital One Fin., 850 F.3d at 1342. Taking the claimed elements separately, the functions performed by the computing device of collecting, generating, determining, associating, and Appeal 2021-003177 Application 15/229,827 23 sending data are purely conventional. See, e.g., Elec. Power Grp., 830 F.3d at 1355 (determining that gathering, sending, monitoring, analyzing, selecting, and presenting information does not transform the abstract process into a patent-eligible invention); Alice, 573 U.S. at 226 (“Nearly every computer will include a ‘communications controller’ and ‘data storage unit’ capable of performing the basic calculation, storage, and transmission functions required by the method claims.”); Capital One Fin., 850 F.3d at 1342 (concluding that the claimed elements “recite no more than routine steps of data collection and organization using generic computer components and conventional computer data processing activities”); ChargePoint, 920 F.3d at 773-74 (determining that network communication is not an inventive concept); MPEP § 2106.05(g). Considered as an ordered combination, the components of the Appellant’s claim add nothing that is not already present when the steps are considered separately. The sequence of receiving data, generating data, analyzing data, and sending data based on the results of the organizing is equally generic and conventional or otherwise held to be abstract. See, e.g., Elec. Power Grp., 830 F.3d at 1354-56 (holding that the sequence of gathering, analyzing, and displaying in real-time was abstract); Capital One Fin., 850 F.3d at 1342 (concluding that as an ordered combination, the claimed elements recited “routine steps of data collection and organization using generic computer components and conventional computer data processing activities”); SAP Am. Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168-70 (Fed. Cir. 2018) (“[A]n invocation of already-available computers that are not themselves plausibly asserted to be an advance . . . amounts to a recitation of what is ‘well-understood, routine, [and] conventional.’”). Appeal 2021-003177 Application 15/229,827 24 Further, the Appellant’s argument that the features were not employed by previous systems (Appeal Br. 13) is not supported by evidence or reasoning. “Attorneys’ argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). To the extent the Appellant argues these features are not well-understood, routine, and conventional because they are not taught by the prior art and thus amount to an inventive concept, we note that an abstract idea does not transform into an inventive concept just because the prior art does not disclose or suggest it. See Mayo, 566 U.S. at 78. “Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). Indeed, “[t]he ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.” Diehr, 450 U.S. at 188-89; see also Mayo, 566 U.S. at 91 (rejecting “the Government’s invitation to substitute §§ 102, 103, and 112 inquiries for the better established inquiry under § 101”). In response to the Appellant’s argument that “the pixel tag recited in Appellant’s claim is being used in an unconventional manner compared to the traditional approach” because it is used to track when content is delivered as opposed to when a conversion is done (Reply Br. 9), we note that the pixel tag itself is not behaving in an abnormal capacity. The pixel tag still tracks data; the differences are in when it is used and for what purpose, i.e., what type of data, and not that the tag performs in an unconventional manner. Appeal 2021-003177 Application 15/229,827 25 Thus, we are not persuaded of error in the Examiner’s determination that the additional elements of claim 1, considered individually and as an ordered combination, do not amount to significantly more than the abstract idea itself. Therefore, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of claims 1-20. 35 U.S.C. § 102 - Anticipation After a careful review of the record before us, we agree with the Appellant’s contention that the Examiner does not adequately explain how Schoen discloses “the user device receiving a first ad tag with the first media partner metadata from a first media partner server of a first media partner,” as recited in limitation (a1) of independent claim 1 and similarly recited in independent claims 10 and 17. See Reply Br. 10-11. The Examiner finds, in relevant part, that Schoen’s “code or script indicated by Schoen at [paragraph] 0022 that is calling an ad from an advertiser or a third party network is an ad tag.” Ans. 9-10; Non-Final Act. 13. The Examiner further finds that the term “metadata” only requires “metadata from a media partner’s platform regarding a content impression served by the media partner.” Ans. 8 (quoting Spec. ¶ 20). As such, “[s]ince the ads are requested for display on the social networking system, and the social networking system is providing the user information (e.g., age, sex, demographic, etc.) and may include, e.g., ‘friendships or groups’ of the user, this is explicitly ‘metadata’” as defined in the Specification. Id. at 9. Thus, the Examiner makes the following findings regarding Schoen: (1) the underlying script that calls an ad from an advertiser meets the claimed first ad tag (Ans. 9; Non-Final Act. 13); (2) the attributes including Appeal 2021-003177 Application 15/229,827 26 demographic and friendship information meet the claimed media partner metadata (Ans. 8-9); and (3) the request to advertisers and ad networks for ads meets the first content request (id. at 9). Schoen’s invention relates, “in particular, to tracking activities of users of social network systems on other domains to, for example, analyze, target, or gauge the effectiveness of advertisements (ads) rendered in conjunction with social network systems.” Schoen ¶ 2. The social networking system may select ads to be displayed on various sections of various pages hosted by the social networking system by utilizing an ad inventory of ads from third parties. Id. ¶ 22. When a client device’s application “consumes a structured document (e.g., an HTML document) used to render a page” hosted by the social networking system, “underlying scripts or calls when executed at the client device make and transmit (or cause to make and cause to transmit) requests for ads from third-party advertisers directly or to ad networks having ad inventories.” Id. The advertisers or networks then return an ad that is “targeted based on a number of attributes such as age, sex, demographic, location, income, career, as well as based on friendships or groups the associated user may have established or entered into” and displayed in conjunction with the current page. Id. Using cookies set at the user device, the social networking system determines which ads the user actually clicked on and which they did not. Id. ¶ 26. Using conversion tracking tags on an advertiser’s conversion page, the social networking system tracks post-impression conversions from users who have seen but did not click on an associated ad and post-click conversions from users who have clicked on an ad with the tracking tag, generates conversion data from ads, and provides that data to advertisers Appeal 2021-003177 Application 15/229,827 27 with insights on the ad’s performance. See id. ¶¶ 23-25, 31-34, 116, 118-124. The Examiner does not adequately explain, and we do not see, where or how Schoen discloses the user device receiving an ad tag with the metadata. Schoen discloses that the ad tag is received by the user device in consuming an HTML document to render a page and that the metadata (attributes) would necessarily be included in the content request in order for the content, i.e., advertisement, to be targeted. See Schoen ¶ 22. However, we do not see, and the Examiner does explain, where or how Schoen discloses that the metadata itself would be received by the user device with the ad tag. Although the user device would receive the ad tag with the HTML document and the content that is based on the metadata sent to the advertiser, the metadata itself may not necessarily be included with the ad tag and content received by the user. Thus, based on the record before us, we do not sustain the rejection under 35 U.S.C. § 102(a)(1) of independent claims 1, 10, and 17 and dependent claims 2-8, 11-15, and 18-20. 35 U.S.C. § 103 - Obviousness We also do not sustain the rejection under 35 U.S.C. § 103 of dependent claims 9 and 16 as we do not understand the Examiner’s reliance on Mathura to remedy the deficiency in the Examiner’s rejection of the independent claims. CONCLUSION The Examiner’s decision to reject claims 1-20 under 35 U.S.C. § 101 is affirmed. Appeal 2021-003177 Application 15/229,827 28 The Examiner’s decision to reject claims 1-8, 10-15, and 17-20 under 35 U.S.C. § 102(a)(1) is reversed. The Examiner’s decision to reject claims 9 and 16 under 35 U.S.C. § 103 is reversed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1-20 101 Eligibility 1-20 1-8, 10-15, 17-20 102 Schoen 1-8, 10-15, 17-20 9, 16 103 Schoen, Mathura 9, 16 Overall Outcome 1-20 TIME PERIOD FOR 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). AFFIRMED