CFPH, LLCDownload PDFPatent Trials and Appeals BoardDec 13, 20212021002279 (P.T.A.B. Dec. 13, 2021) Copy Citation 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. 15/676,188 08/14/2017 Antonio Papageorgiou 07-2166-C1 2306 63710 7590 12/13/2021 CANTOR FITZGERALD, L.P. INNOVATION DIVISION 110 EAST 59TH STREET NEW YORK, NY 10022 EXAMINER BRADY, MARIE P. ART UNIT PAPER NUMBER 3621 NOTIFICATION DATE DELIVERY MODE 12/13/2021 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): Caitlyn.kelly@chareiter.com gabriella.zisa@chareiter.com patentdocketing@cantor.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANTONIO PAPAGEORGIOU ____________ Appeal 2021-002279 Application 15/676,188 Technology Center 3600 ____________ Before ANTON W. FETTING, NINA L. MEDLOCK, and ROBERT J. SILVERMAN, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL Appeal 2021-002279 Application 15/676,188 2 STATEMENT OF THE CASE1 Antonio Papageorgiou (Appellant2) seeks review under 35 U.S.C. § 134 of a final rejection of claims 1–20, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). The Appellant invented a way of distributing media and advertising content to remote devices. Specification 1:9–10. An understanding of the invention can be derived from a reading of exemplary claim 11, which is reproduced below (bracketed matter and some paragraphing added). 11. A method comprising: [1] receiving, by at least one processor, a request for media content from a user of a first device; [2] receiving, by the at least one processor, a request for the media content from a user of a second device; 1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal Br.,” filed November 13, 2020) and Reply Brief (“Reply Br.,” filed February 12, 2021), and the Examiner’s Answer (“Ans.,” mailed December 14, 2020), and Final Action (“Final Act.,” mailed June 15, 2020). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as CFPH, LLC (Appeal Br. 2). Appeal 2021-002279 Application 15/676,188 3 [3] retrieving, by the at least one processor, a media file associated with the media content requested by first and second users, wherein the media content comprises a defined null space; [4] retrieving, by the at least one processor, data for a first and second product placement; [5] mixing, by the at least one processor, in response to the request from the user of the first device the media file and the data for the first product placement such that the first product placement appears in the media content disposed in at least a portion of the defined null space; [6] mixing, by the at least one processor, in response to the request from the user of the second device the media file and data for the second product placement such that the second product placement appears in the media content disposed in at least a portion of the defined null space; [7] communicating, by the at least one processor, the media content with the first product placement data to the user of the first device; Appeal 2021-002279 Application 15/676,188 4 [8] communicating, by the at least one processor, the media content with the second product placement data to the user of the second device; and [9] receiving, by the at least one processor, via the communication network, from a cache of at least one of the first device and the second device, data representing number of times product placement appeared in the media content that was communicated to the at least one of the first device and the second device. The Examiner relies upon the following prior art: Name Reference Date Snyder US 2006/0282316 A1 Dec. 14, 2006 Senftner US 2008/0019576 A1 Jan. 24, 2008 Gajdos US 2008/0104634 A1 May 1, 2008 Claims 1–20 stand rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. Claims 1–20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Gajdos, Senftner, and Snyder. Appeal 2021-002279 Application 15/676,188 5 ISSUES The issues of eligible subject matter turn primarily on whether the claims recite more than abstract conceptual advice of results desired. The issues of obviousness turn primarily on whether there was adequate reason to combine the references. FACTS PERTINENT TO THE ISSUES Facts Related to the Prior Art Gajdos 01. Gajdos is directed to product placement and, more particularly, to receiver based product placement. Gajdos para. 1. 02. Gajdos describes determining if a received data stream includes product placement information, and identifying a first product placement based on information associated with a device or a user associated with a device. Gajdos para. 5. Senftner 03. Senftner is directed to manipulating, processing, and producing video creating personalized videos through partial image replacement. Senftner para. 4. 04. Senftner describes a requester of a personalized video transmitting a request to the personalization process. The request may identify a specific video to be retrieved. The personalization process retrieves the selected prepared digital video and the 3D actor model and performs the requested personalization. The Appeal 2021-002279 Application 15/676,188 6 completed personalized video may be delivered to the requester. Senftner para. 99. Snyder 05. Snyder is directed to two-way communication devices with storage and displays for displaying advertisements and the like to users. Snyder para. 1. 06. Snyder describes each distinct instance of an ad being displayed incrementing a display counter in the ad click cache that reflects number of times a particular ad is displayed. This better keeps track of the number of times each ad is displayed to the user for purposes of revenue sharing, as is known in the art of advertising over electronic networks. Snyder para. 24. 07. Occasionally the user will ‘click’ on the displayed pop-up or banner ad, which increments a hit counter in the ad click cache by one. The hit counter keeps a running tally of how many times the various advertisements are selected by a user of the device. Snyder para. 25. 08. From time to time, the information stored in the ad click cache (the hit counter, the display counter, and any hit or display statistical information) is uploaded as an advertisement update message. Click update messages may be triggered by any of several thresholds, such as a chronological interval; when the display counter or hit counter reaches a predetermined level; at a non-recurring predetermined time such as when an ad expires; and any time a new or replacement ad is downloaded. Snyder para. 26. Appeal 2021-002279 Application 15/676,188 7 ANALYSIS Claims 1–20 rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more STEP 13 Claim 11, as a method claim, nominally recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101. The issue before us is whether it is directed to a judicial exception without significantly more. STEP 2 The Supreme Court set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, . . . determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us? To answer that question, . . . consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent- eligible application. [The Court] described step two of this analysis as a search for an “‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66 (2012)). To perform this test, we must first determine what the claims are directed to. This begins by determining whether the claims recite 3 For continuity of analysis, we adopt the steps nomenclature from 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Appeal 2021-002279 Application 15/676,188 8 one of the judicial exceptions (a law of nature, a natural phenomenon, or an abstract idea). Then, if the claims recite a judicial exception, determining whether the claims at issue are directed to the recited judicial exception, or whether the recited judicial exception is integrated into a practical application of that exception, i.e., that the claims “apply, rely on, or use 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.” Revised Guidance, 84 Fed. Reg. at 54. If the claims are directed to a judicial exception, then finally determining whether the claims provide an inventive concept because the additional elements recited in the claims provide significantly more than the recited judicial exception. STEP 2A Prong 1 At a high level, and for our preliminary analysis, we note that method claim 11 recites receiving request data, retrieving and mixing media and placement data, communicating content data, and receiving placement statistics data. Retrieving data is receiving data. Mixing data is modifying data. Communicating data is transmitting data. Thus, claim 11 recites receiving, modifying, and transmitting data. None of the limitations recites technological implementation details for any of these steps, but instead recite only results desired by any and all possible means. From this we see that claim 11 does not recite the judicial exceptions of either natural phenomena or laws of nature. Under Supreme Court precedent, claims directed purely to an abstract idea are patent ineligible. As set forth in the Revised Guidance, which extracts and synthesizes key concepts identified by the courts, abstract ideas Appeal 2021-002279 Application 15/676,188 9 include (1) mathematical concepts,4 (2) certain methods of organizing human activity,5 and (3) mental processes.6 Among those certain methods of organizing human activity listed in the Revised Guidance are commercial or legal interactions. Like those concepts, claim 11 recites the concept of managing product marketing. Specifically, claim 11 recites operations that would ordinarily take place in advising one to transmit media content with product placement data to users and placement statistics based on media with spaces available for placement data. The advice to transmit media content with product placement data to users and placement statistics based on media with spaces available for placement data involves sending product placements in media, which is an economic act, and putting placements in media, which is an act ordinarily performed in the stream of commerce. For example, claim 11 recites “communicating . . . media content with the first product placement data,” which is an activity that would take place whenever one is transmitting product placements for marketing. Similarly, claim 1 recites “mix[ing] . . . media file and the data for the first product 4 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v. Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio Corp. of Am., 306 U.S. 86, 94 (1939); SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). 5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219–20; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir. 2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed. Cir. 2018). 6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Appeal 2021-002279 Application 15/676,188 10 placement,” which is also characteristic of transmitting product placements for marketing. The Examiner determines the claims to be directed to mixing media content with first product placement and with second product placement, which are advertising and marketing activities. Final Act. 3. The preamble to claim 11 does not recite what it is to achieve, but the steps in claim 11 result in managing product marketing by transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data absent any technological mechanism other than a conventional computer for doing so. As to the specific limitations, limitations 1–4 recite receiving data. Limitations 5–9 recite generic and conventional receiving, modifying, and transmitting of product placement and media data, which advise one to apply generic functions to get to these results. The limitations thus recite advice for transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data. To advocate transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data is conceptual advice for results desired and not technological operations. The Specification at 1:9–10 describes the invention as relating to distributing media and advertising content to remote devices. Thus, all this intrinsic evidence shows that claim 11 recites managing product marketing. This is consistent with the Examiner’s determination. This in turn is an example of commercial or legal interactions as a certain method of organizing human activity because managing product Appeal 2021-002279 Application 15/676,188 11 marketing is a way of managing organizing customers to purchase. The concept of managing product marketing by transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data is one idea for managing such placement. The steps recited in claim 11 are part of how this might conceptually be premised. Our reviewing court has found claims to be directed to abstract ideas when they recited similar subject matter. Ultramercial, 772 F.3d at 715 (using advertising as an exchange or currency); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (data collection). Alternately, this is an example of concepts performed in the human mind as mental processes because the steps of receiving, modifying, and transmitting data mimic human thought processes of observation, evaluation, judgment, and opinion, perhaps with paper and pencil, where the data interpretation is perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016). Claim 11, unlike the claims found non-abstract in prior cases, uses generic computer technology to perform data reception, modification, and transmission and does not recite an improvement to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract because they “focused on a specific asserted improvement in computer animation”). As such, claim 11 recites receiving, modifying, and Appeal 2021-002279 Application 15/676,188 12 transmitting data, and not a technological implementation or application of that idea. From this we conclude that at least to this degree, claim 11 recites managing product marketing by transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data, which is a commercial and legal interaction, one of certain methods of organizing human activity identified in the Revised Guidance, and, thus, an abstract idea. STEP 2A Prong 2 The next issue is whether claim 11 not only recites, but is more precisely directed to this concept itself or whether it is instead directed to some technological implementation or application of, or improvement to, this concept i.e., integrated into a practical application.7 At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. At some level, “all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. “[A]pplication[s]” of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Accordingly, in applying the § 101 exception, we must distinguish between patents that claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those that integrate the building blocks into something more. Alice, 573 U.S. at 217 (citations omitted). 7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S. 175 (1981). Appeal 2021-002279 Application 15/676,188 13 Taking the claim elements separately, the operation performed by the computer at each step of the process is expressed purely in terms of results, devoid of implementation details. Steps 1–4 are pure data gathering steps. Limitations describing the nature of the data do not alter this. Steps 4–8 recite basic conventional data operations such as generating, updating, and storing data. Step 9 is insignificant post-solution activity, such as storing, transmitting, or displaying the results. All steps recite generic computer processing expressed in terms of results desired by any and all possible means and so present no more than conceptual advice. All purported inventive aspects reside in how the data are interpreted and the results desired, and not in how the process physically enforces such a data interpretation or in how the processing technologically achieves those results. Viewed as a whole, Appellant’s claim 11 simply recites the concept of managing product marketing by transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data as performed by a generic computer. This is no more than conceptual advice on the parameters for this concept and the generic computer processes necessary to process those parameters, and does not recite any particular implementation. Claim 11 does not, for example, purport to improve the functioning of the computer itself. Nor does it effect an improvement in any other technology or technical field. The 9+ pages of Specification do not bulge Appeal 2021-002279 Application 15/676,188 14 with disclosure, but only spell out different generic equipment8 and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of managing product marketing by transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data under different scenarios. They do not describe any particular improvement in the manner a computer functions. Instead, claim 11 at issue amounts to nothing significantly more than an instruction to apply managing product marketing by transmitting media content with product placement data to users and placement statistics based on media with spaces available for placement data using some unspecified, generic computer. Under our precedents, that is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26. None of the limitations reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field, applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effects a transformation or reduction of a particular article to a different state or thing, or applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological 8 The Specification describes a computing device that generally includes at least one processor, and a memory, or any computer readable medium. Spec. 2:31–33. Appeal 2021-002279 Application 15/676,188 15 environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. We conclude that claim 11 is directed to achieving the result of managing product marketing by advising one to transmit media content with product placement data to users and placement statistics based on media with spaces available for placement data, as distinguished from a technological improvement for achieving or applying that result. This amounts to commercial or legal interactions, which fall within certain methods of organizing human activity that constitute abstract ideas. The claim does not integrate the judicial exception into a practical application. STEP 2B The next issue is whether claim 11 provides an inventive concept because the additional elements recited in the claim provide significantly more than the recited judicial exception. The introduction of a computer into the claims does not generally alter the analysis at Mayo step two. the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to “implement[t]” an abstract idea “on . . . a computer,” that addition cannot impart patent eligibility. This conclusion accords with the preemption concern that undergirds our § 101 jurisprudence. Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of “additional feature[e]” that provides any Appeal 2021-002279 Application 15/676,188 16 “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Alice, 573 U.S. at 223–24 (citations omitted). “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea . . . on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the function performed by the computer at each step of the process is purely conventional. Using a computer for receiving, modifying, and transmitting data amounts to electronic data query and retrieval—one of the most basic functions of a computer. All of these computer functions are generic, routine, conventional computer activities that are performed only for their conventional uses. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). See also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any general purpose computer without special programming”). None of these activities is used in some unconventional manner nor does any produce some unexpected result. Appellant does not contend it invented any of these activities. In short, each step does no more than require a generic computer to perform generic computer functions. As to the data operated upon, “even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” SAP Am., 898 F.3d at 1168. Appeal 2021-002279 Application 15/676,188 17 Considered as an ordered combination, the computer components of Appellant’s claim 11 add nothing that is not already present when the steps are considered separately. The sequence of data reception-modification- transmission is equally generic and conventional. See Ultramercial, 772 F.3d at 715 (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis, modification, generation, display, and transmission), Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling, and monitoring). The ordering of the steps is therefore ordinary and conventional. We conclude that claim 11 does not provide an inventive concept because the additional elements recited in the claim do not provide significantly more than the recited judicial exception. REMAINING CLAIMS Claim 11 is representative. The remaining method claims merely describe process parameters. We conclude that the method claims at issue are directed to a patent-ineligible concept itself, and not to the practical application of that concept. As to the structural claims, they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] ... against” interpreting § 101“in ways that make patent eligibility ‘depend simply on the draftsman’s art.’” Appeal 2021-002279 Application 15/676,188 18 Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any particular machine. LEGAL CONCLUSION From these determinations we further determine that the claims do not recite an improvement to the functioning of the computer itself or to any other technology or technical field, a particular machine, a particular transformation, or other meaningful limitations. From this we conclude the claims are directed to the judicial exception of the abstract idea of certain methods of organizing human activity as exemplified by the commercial and legal interaction of managing product marketing by advising one to transmit media content with product placement data to users and placement statistics based on media with spaces available for placement data, without significantly more. APPELLANT’S ARGUMENTS As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s determinations and analysis from Final Action 2–6 and Answer 5–13 and reach similar legal conclusions. As the Reply Brief does not present any arguments, we particularly note the following. We are not persuaded by Appellant’s argument that the claims recite a computerized system for communication over a communication network in which at least one computing device is operable to receive requests for media content from users of first and second devices, retrieve a media file associated with the media content for those first and second users, mix first and second product placements into a null space in the media content, communicate the media content with the first product placement data to the user of the first device, and communicate the media content with the second product placement data to the user of the second device. This enables, for example, a different video Appeal 2021-002279 Application 15/676,188 19 version to be shown to a user based on information about the user . . . . This also provides a technological benefit by enabling the dynamic insertion of the product placement data, as the mixing happens in response to the requests from the users, thereby avoiding the data storage that would otherwise be needed if every combination of product placement and media content were already premixed and stored prior to the request. Appeal Br. 5–6. This argues only that information may be improved, not technology. This does not confer eligibility. “The claims are focused on providing information to traders in a way that helps them process information more quickly, not on improving computers or technology. . . . The ‘tool for presentation’ here is simply a generic computer.” Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384–85 (Fed. Cir. 2019) (internal citations omitted). We are not persuaded by Appellant’s argument that the claims provide a technical benefit through the receiving “from a cache of at least one of the first device and the second device, data representing number of times product placement appeared in the media content that was communicated to the at least one of the first device and the second device.” The Examiner alleges that “[a]ccessing cache to retrieve information has been well-known in the art for a long time” (Final Office Action at 15), but the Examiner presents no evidence that receiving “data representing number of times product placement appeared in the media content” from a cache of a user device to which the media content is communicated, as required by the claimed invention, is well-known. Appeal Br. 6. Simply reciting use of conventional and generic computer equipment, including cache, is insufficient to confer eligibility. Because the claims are directed to an abstract idea, the claims must include an “inventive concept” in order to be patent- eligible. No such inventive concept is present here. Instead, the Appeal 2021-002279 Application 15/676,188 20 claims “add” only generic computer components such as an “interface,” “network,” and “database.” These generic computer components do not satisfy the inventive concept requirement. Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324– 1325 (Fed. Cir. 2016) (internal citations and quotation marks omitted). The nature or origin of the data stored in the cache cannot confer eligibility. See SAP above. We are not persuaded by Appellant’s argument that the claims recite significantly more under Step 2B. Appeal Br. 6–7. We show why the claims do not recite significantly more under Step 2B above. Appellant further argues that the asserted claims are akin to the claims found patent eligible in DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245 (Fed. Cir. 2014). Appeal Br. 7–8. In DDR Holdings, the court evaluated the eligibility of claims “address[ing] the problem of retaining website visitors that, if adhering to the routine, conventional functioning of Internet hyperlink protocol, would be instantly transported away from a host’s website after ‘clicking’ on an advertisement and activating a hyperlink.” Id. at 1257. There, the court found that the claims were patent eligible because they transformed the manner in which a hyperlink typically functions to resolve a problem that had no “pre-Internet analog.” Id. at 1258. The court cautioned, however, “that not all claims purporting to address Internet-centric challenges are eligible for patent.” Id. For example, in DDR Holdings the Court distinguished the patent-eligible claims at issue from claims found patent ineligible in Ultramercial. See id. at 1258–59 (citing Ultramercial, 772 F.3d at 715–16). As noted there, the Ultramercial claims were “directed to a specific method of advertising and content Appeal 2021-002279 Application 15/676,188 21 distribution that was previously unknown and never employed on the Internet before.” Id. at 1258 (quoting Ultramercial, 772 F.3d at 714). Nevertheless, those claims were patent ineligible because they “merely recite[d] the abstract idea of ‘offering media content in exchange for viewing an advertisement,’ along with ‘routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet.’” Id. Appellant’s asserted claims are analogous to claims found ineligible in Ultramercial and distinct from claims found eligible in DDR Holdings. The ineligible claims in Ultramercial recited “providing [a] media product for sale at an Internet website”; “restricting general public access to said media product”; “receiving from the consumer a request to view [a] sponsor message”; and “if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query.” Ultramercial, 772 F.3d at 712. Similarly, Appellant’s asserted claims recite receiving, modifying, and transmitting data. This is precisely the type of Internet activity found ineligible in Ultramercial. Claims 1–20 rejected under 35 U.S.C. § 103(a) as unpatentable over Gajdos, Senftner, and Snyder We are not persuaded by Appellant’s argument that “Gajdos already includes a degree of personalization because it determines product placement media based on a user profile . . . . Thus, no modification to Gajdos is needed to have Gajdos ‘create personalized videos through partial image replacement.’ Accordingly, there is no reason to make the Appeal 2021-002279 Application 15/676,188 22 combination.” Appeal Br. 4. The problem with Appellant’s argument is it presumes product marketing provides all or nothing solutions. Rather, marketing uses various techniques to attract customers. Just because one solution such as using a user profile to place product data is known does not mean adding another technique to augment that solution, such as creating personalized videos would not improve the marketing yield, and thus be desirable. CONCLUSIONS OF LAW The rejection of claims 1–20 under 35 U.S.C. § 101 as directed to a judicial exception without significantly more is proper. The rejection of claims 1–20 under 35 U.S.C. § 103(a) as unpatentable over Gajdos, Senftner, and Snyder is proper. CONCLUSION The rejection of claims 1–20 is affirmed. In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 101 Eligibility 1–20 1–20 103 Gajdos, Senftner, Snyder 1–20 Overall Outcome 1–20 Appeal 2021-002279 Application 15/676,188 23 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED Copy with citationCopy as parenthetical citation