Ex Parte Morey et al

Patent Trial and Appeal Board

Dec 7, 2017

12766714 (P.T.A.B. Dec. 7, 2017)

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.
12/766,714 04/23/2010 John D. Morey 1092-077US01/2591US01 2077
124175 7590 12/11/2017
Shumaker & Sieffert, P.A./Ecolab
1625 Radio Drive
Suite 100
Woodbury, MN 55125
EXAMINER
TORRICO-LOPEZ, ALAN
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
12/11/2017 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):
pairdocketing @ ssiplaw.com
ecolab_PAIR @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN D. MOREY, BRYAN M. ANDERSON, ERIC R. BALZ,
and TIMOTHY R. SNELLEN
Appeal 2016-005375
Application 12/766,714
Technology Center 3600
Before ST. JOHN COURTENAY III, DENISE M. POTHIER, and
JASON M. REPKO, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—11, 13—16, and 18—21, which are all the claims pending in this
application. Claims 12 and 17 are cancelled. We have jurisdiction over the
pending claims under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Introduction
Appellants’ “invention relates generally to dispensation of chemical
products” (Spec. 12). More particularly, “the invention relates to a
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Application 12/766,714
comprehensive and systematic approach to cleaning and sanitizing practices
based on monitoring of chemical product dispensation.” (Spec, 17).
Representative Claim
Claim 1 is representative of the invention and reads as follows.
1. A system comprising:
a server computer that receives dispenser data from a
chemical product dispenser located at a cleaning site, the
dispenser data including an amount of a chemical product
dispensed by the chemical product dispenser;
a database coupled to the server computer that stores the
dispenser data in association with corporate data regarding the
cleaning site and that stores cleanliness metrics associated with
the cleaning site, the cleanliness metrics including cleaning
scores associated with the cleaning site; wherein the corporate
data includes cleaning site identification information, corporate
target amounts of chemical product to be dispensed, and at least
one target cleanliness metric;
[L] an analysis application resident on the server
computer that analyzes the dispenser data in combination with
at least some of the corporate data and generates therefrom
product usage data indicative of an amount of chemical product
usage at the cleaning site, and determines a connection
between the amount of chemical product usage at the
cleaning site and the cleanliness metrics; and
a reporting application resident on the server computer
that generates reports based on the analysis.
(Contested limitation L is bracketed and emphasized in bold and italics).
Rejections
A. Claims 1—11, 13—16, and 18—21 are rejected under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter (Final Act. 3).
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B. Claims 1—11, 13—16, 18, 20, and 21 are rejected under pre-AIA
35 U.S.C. § 103(a) as being obvious over the combined teachings and
suggestions of Sanville et al. (US 2004/0162850 Al, published Aug.
19, 2004) (hereinafter “Sanville”), in view of Crevel et al. (US
2001/0039501 Al, published Nov. 8, 2001) (hereinafter “Crevel”), in
further view of C. J. Griffith et al., An Evaluation of Hospital
Cleaning Regimes and Standards, 45 J. Hosp. Infection 19—28 (2000),
(cited by Applicants in the Information Disclosure Statement filed
January 5, 2012, referred to hereinafter as “Griffith”). Final Act. 3—
19.
C. Claim 19 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Sanville,
Crevel, and Measuring Street Cleanliness: A Comparison of New
York City's Scorecard and Results from a Citizen Survey, 68 Public
Administration Review 295—303 (2008) by Gregg G. Van Ryzin,
Stephen Immerwahr, and Stan Altman (previously provided as
reference 1-W in the Office Action mailed March 29, 2012, referred
to hereinafter as Van Ryzin). Final Act. 19—21.
Issues on Appeal
Did the Examiner err in rejecting claims 1—11, 13—16, and 18—21
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter?
Did the Examiner err in rejecting claims 1—11, 13—16, and 18—21
under pre-AIA 35 U.S.C. § 103(a) as being obvious over the cited
combination of references?
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ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Rejection A of Claims 1—11, 13—16, and 18—21 under 35 U.S.C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” The Supreme Court has “long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. v.
CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014) (quoting Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). The
Supreme Court in Alice reiterated the two-step framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566
U.S. 66, 82—84 (2012), “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 134 S. Ct. at 2355.
The first step in that analysis is to determine whether the claims at
issue are directed to one of those patent-ineligible concepts, such as an
abstract idea. Abstract ideas may include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Id. at 2355—57.
If the claims are not directed to a patent-ineligible concept, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’
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to determine whether the additional elements ‘transform the nature of the
claim’ into a patent-eligible application.” Alice, 134 S. Ct. at 2355 (quoting
Mayo, 566 U.S. at 79, 78).
We, therefore, review on appeal: (1) whether the claims focus on a
specific means or method that improves the relevant technology, or (2), are
directed to a result or effect that itself is the abstract idea, in which the
claims merely invoke generic processes and machinery. See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
The Examiner’s Rejection under 35 U.S.C. § 101
Regarding the first part of the Mayo/Alice analysis, the Examiner
concludes the claims are directed to the “abstract idea of cleanliness
assessment.” (Final Rej. 2). Regarding the second step of the analysis, the
Examiner concludes:
[t]he additional element(s) or combination of elements in the
claim(s) other than the abstract idea per se amount(s) to no
more than mere instructions to implement the idea on a
computer. Viewed as a whole, these additional claim
element(s) do not provide meaningful limitation(s) to transform
the abstract idea into a patent eligible application of the abstract
idea such that the claim(s) amounts to significantly more than
the abstract idea itself.
(Final Act. 2) (emphasis added).
Mayo/Alice Analysis — Step 1
Regarding Mayo!Alice Step 1, Appellants contend the final office
action has “not met the burden of ‘providing a reasoned rationale that
identifies the judicial exception recited in the claim and why it is considered
an exception, and that identifies the additional elements in the claim (if any)
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and explains why they do not amount of significantly more than the
exception.’” (App. Br. 9) (emphasis added).
We note Appellants’ independent claim 1 is directed, inter alia, to
“analyzing] the dispenser data in combination with at least some of the
corporate data and generat[ing] therefrom product usage data indicative of
an amount of chemical product usage at the cleaning site, and determin[ing]
a connection between the amount of chemical product usage at the cleaning
site and the cleanliness metrics” (claim 1). Remaining independent system
claims 9 and 14 recite similar language of commensurate scope.
Our reviewing court guides that fundamental economic and
conventional business practices are often found to be abstract ideas, even if
performed on a computer. See, e.g., OIP Techs, v. Amazon.com, Inc., 788
F.3d 1359, 1362—63 (Fed. Cir. 2015). Thus, under a broad but reasonable
interpretation, we conclude Appellants’ claims on appeal are each directed to
an economic or business practice, such as generating product usage data
“indicative of an amount of chemical product usage at the cleaning site,” and
determining “a connection between the amount of chemical product usage at
the cleaning site and the cleanliness metrics” and “generat[ing] reports based
on the analysis.” (Claim 1).
Moreover, but for the recitation of a generic “server computer”
(claims 1, 14), or a generic “processing apparatus” (claim 9), we conclude
the functions of receiving and analyzing various data which is used to
“determine[] a connection between the amount of chemical product usage at
the cleaning site and the cleanliness metrics” (claim 1), could be performed
as mental steps, or with the aid of pen and paper. See CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) (“That purely
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mental processes can be unpatentable, even when performed by a computer,
was precisely the holding of the Supreme Court in Gottschalk v. Benson’’ ).
Further, “[t]he abstract idea exception prevents patenting a result where ‘it
matters not by what process or machinery the result is accomplished.’”
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1312 (2016)
(quoting O'Reilly v. Morse, 56 U.S. 62, 113 (1854)).
This guidance is applicable here. Therefore, on this record, we are not
persuaded of error regarding the Examiner’s legal conclusion that all claims
on appeal are “directed to the abstract idea of a cleanliness assessment.”
(Final Act. 2) (emphasis added).
Mayo/Alice Analysis — Step 2
Because the claims are directed to an abstract idea, we turn to the
second part of the Mayo/Alice analysis. We analyze the claims to determine
if there are additional limitations that individually, or as an ordered
combination, ensure the claims amount to “significantly more” than the
abstract idea. Alice, 134 S. Ct. at 2357.
Regarding A lice, Step 2, Appellants contend, inter alia: “assuming,
arguendo, that the claims are directed to an ‘abstract idea,’ and that the
abstract idea is properly labeled as ‘cleanliness assessment,”’
[T]he cited limitation add specific limitations other than what is
well-understood, routine and conventional in the field, and adds
unconventional steps that confine the claim to a particular
useful application, and further that are improvements to another
technology or technical field.
In addition, the dependent claims include additional
limitations that further recite “significantly more” than the so-
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called abstract idea of “cleanliness assessment”. For example,
dependent claim 8 recites that “the reporting application
generates reports that characterize the effectiveness of
cleaning activities at the cleaning site based on the dispenser
data, the corporate data, the product usage data, and the
cleanliness metrics.” As another example, dependent claim 21
recites that “the reporting application generates reports
concerning recommended cleaning process improvements if the
target parameters for each of the plurality of chemical products
are not met.”
Thus, when considered as a whole, claims 1-11, 13-16,
and 18-21 recite “significantly more” than a judicial exception.
(App. Br. 9-11) (emphasis added).
Appellants’ arguments do not persuade us the Examiner erred,
because Appellants essentially recite claim limitations without any
persuasive explanation of how the limitations either individually, or as an
ordered combination, amount to an inventive concept that converts the
abstract idea into patent-eligible subject matter.
We find Appellants claimed data gathering, analysis, and reporting are
consistent with “well-understood, routine, [and] conventional activities
previously known to the industry.” Content Extraction & Transmission LLC
v. Wells Fargo Bank, Nat. Ass ’n, 776 F.3d 1343, 1347-48 (Fed. Cir. 2014)
(quoting Mayo, 566 U.S. at 73). Further, “simply appending conventional
steps, specified at a high level of generality, to laws of nature, natural
phenomena, and abstract ideas cannot make those laws, phenomena, and
ideas patentable.” Mayo, 566 U.S. at 82. (Emphasis added).
For example, we conclude the generic “database coupled to the
server computer” (emphasis added), as recited Appellants’ claim 1, is
distinguishable from the type of patent-eligible database claim considered by
the court in Enfish, because Appellants’ claim 1 is not directed to a “self-
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referential table for a computer database.” Enfish, 822 F.3d at 1336. We
further conclude Appellants claims are not “directed to an improvement in
the functioning of a computer,” as was found by the court regarding the
claims in Enfish. Id. at 1338 (emphasis added). Instead, we conclude
Appellants merely claim a generic “server computer” (Claims 1 and 14), or
a generic “processing apparatus” (Claim 9).
Nor do we find Appellants’ claims similar to the claimed solution
considered by the court in DDR Holdings, LLC v. Hotels.com, 773 F.3d
1245 (Fed. Cir. 2014). Here, we conclude Appellants’ claimed solution
which “determines a connection between the amount of chemical product
usage at the cleaning site and the cleanliness metrics” (claim 1) is not rooted
in computer technology, such that the invention on appeal overcomes a
problem specifically arising in the realm of computer networks, as was the
case with the type of claim the court concluded was patent-eligible in DDR
Holdings. {Id. at 1257). We note Appellants’ claims on appeal are silent
regarding any mention of a computer “network.”
Although Appellants’ claims are directed to a system (apparatus), we
nevertheless conclude Appellants’ claims are analogous to the method claim
considered by the court in Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350 (2016), at least to the extent that Appellants’ claims are similarly
directed to “merely selecting information, by content or source, for
collection, analysis, and display [which] does nothing significant to
differentiate a process from ordinary mental processes.” Id. at 1355.
Thus, we agree with the Examiner that “[a]t best, the generated report
is an improvement to the business process, which is different than an
improvement to the functioning of the computer itself and does not serve
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to provide ‘significantly more’ than just the abstract idea.” (Ans. 4)
(emphasis added).
Further regarding the use of a generic computer server, processing
apparatus, and a memory, see Alice, 134 S. Ct. at 2358 (holding that “the
mere recitation of a generic computer cannot transform a patent-ineligible
abstract idea into a patent-eligible invention”); Bascom Glob. Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016)
(“An abstract idea on ‘an Internet computer network’ or on a generic
computer is still an abstract idea.”); Elec. Power Grp., 830 F.3d at 1355
(quotation omitted) (“We have repeatedly held that such invocations of
computers and networks that are not even arguably inventive are insufficient
to pass the test of an inventive concept in the application of an abstract
idea.”) (quotations omitted); Intellectual Ventures I LLC v. Capital One Fin.
Corp., 850 F.3d 1332, 1341 (Fed. Cir. 2017) (“Rather, the claims recite both
a generic computer element—a processor—and a series of generic computer
‘components’ that merely restate their individual functions .... That is to
say, they merely describe the functions of the abstract idea itself, without
particularity. This is simply not enough under step two.”)
Applying the aforementioned guidance of our reviewing courts here,
we conclude Appellants’ claims are not directed to an improvement to the
recited server computer, processing apparatus, or database functionality.
(Claims 1, 9, 14). Therefore, we conclude that none of the claim limitations,
viewed “both individually and as an ordered combination,” amount to
significantly more than the judicial exception in order to sufficiently
transform the nature of the claims into patent-eligible subject matter. See
Alice, 134 S. Ct. at 2355 (internal quotations omitted) (quoting Mayo, 566
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U.S. at 79).
For at least the aforementioned reasons, and on this record, Appellants
have not persuaded us the Examiner erred. Accordingly, we sustain the
Examiner’s rejection A of claims 1—11, 13—16, and 18—21 under 35 U.S.C.
§ 101.1
Rejections B and C under § 103(a)
Based upon Appellants’ arguments, we decide the appeal of all claims
which stand rejected under rejection B based upon representative claim 1.
We address remaining dependent claim 19, rejected under rejection C, infra.
See n. 1 infra.
Rejection B of Claims 1—11, 13—16, 18, 20, and 21 under § 103(a)
Issue: Under pre-AIA 35 U.S.C. § 103(a), did the Examiner err by
finding the cited combination of Sanville, Crevel, and Griffith teaches or
suggests contested limitation L:
[L] an analysis application resident on the server
computer that analyzes the dispenser data in combination
with at least some of the corporate data and generates
therefrom product usage data indicative of an amount of
chemical product usage at the cleaning site, and
determines a connection between the amount of
chemical product usage at the cleaning site and the
cleanliness metrics[,]
1 To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv).
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within the meaning of representative claim l?2 (Emphasis added).
Regarding contested limitation L of claim 1, Appellants contend:
“Griffith does not teach or suggest determining any type of ‘connection
between the amount of chemical product usage at the cleaning site and the
cleanliness metrics’ as recited in claim 1.” (App. Br. 12).
The Examiner disagrees, and finds Griffith teaches:
the evaluation of a cleaning process [that] involves a set level of
chemical usage, which involves the evaluation of a relationship
between the chemical usage (cleaning process) and cleanliness
metrics as the chemical usage (cleaning process) is evaluated
(see Griffith page 20 The aim of the present study was to
evaluate cleaning standards in one hospital... page 21 ... In
the present study, 85% of surfaces in the ward were
considered visually clean before cleaning compared to 82%
after cleaning; discusses connection between cleaning process
(chemical usage) and a cleanliness metric ... Tables II and IV
showing ATP levels of various sites before and after
cleaning using the sanitizer as measured using
microbiological assessments and routine ATP
bioluminescence arrays; see Table II which shows the
connection/relationship between a cleaning process (chemical
usage) and cleaning metrics by displaying a measure of
cleanliness metrics before and after the cleaning process
(chemical usage)).
(Ans. 6).
2 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 111
F.3d 1048, 1054 (Fed. Cir. 1997); see, e.g., Spec. 1 83 (“Various
embodiments of the invention have been described. These and other
embodiments are within the scope of the following claims.” (emphasis
added)).
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The Examiner additionally notes that Sanville was cited to teach:
determining a connection between the amount of chemical
product usage at cleaning site and the cleanliness metrics
(Sanville paragraph 10 In an embodiment, the user ID[]s of the
authorized service representatives accessing the chemical
dispense systems, the names of the chemical products dispensed
and the volume of these chemical products are collected and
transmitted by the host computers of each chemical dispense
system to the central server. Either prior to being transferred to
the central server, or alternatively, once received by the central
server, the above-noted information associated with each
instance that a chemical product is dispensed to a service
representative is linked together and associated with a time
reference relative to a point in time corresponding to each
instance, i.e., when the chemical product is dispensed to the
service representative. The central server analyzes this
information as well as the corresponding time references to
render an evaluation related to chemical product usage by one
or more of the service representatives over a given period of
time, paragraph 48
(id.) (emphasis omitted).3
We note in the statement of the rejection for claim 1, the Examiner
further finds Crevel teaches:
collecting process or operating parameter data to be reported
against reference parameter data where key performance
indicators are reported against targets (i.e., a target cleanliness
metric), norms, or averages [paragraph 27]. Crevel et al. also
teaches providing hygiene reports with details on parameters of
the industrial cleaning machine (i.e., cleanliness metrics
associated with the cleaning site), such as water temperatures,
3 In the Final Action (6) the Examiner finds Sanville “determines a
connection between the amount of chemical product usage at the cleaning
site and the cleanliness metrics,” as claimed, citing to paragraph 57 of
Sanville.
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detergent concentration and time intervals (i.e., analysis of
cleanliness metrics) [paragraph 29].
(Final Act. 7).
Although Appellants urge in the Appeal Brief (14) that “[t]he
invention as claimed leads to several advantages not obtainable by the
combination of Sanville, Crevel and Griffith” (and refer to the Specification
in support),4 we find Appellants fail to substantively traverse the Examiner’s
specific findings regarding contested limitation L. (Final Act. 3—9). We
emphasize the Examiner’s ultimate legal conclusion of obviousness, and
underlying factual findings, are based on the combined teachings and
suggestions of Sanville, Crevel, and Griffith.
We find Appellants’ singular attack on Griffith in the Appeal Brief
(11—16) is unavailing.5 Further, we find Appellants’ new arguments
addressing Sanville in the Reply Brief (6—7) are: (1) untimely,6 and (2)
merely reproduce portions of Sanville, and assert the claim limitation is not
taught or suggested by Sanville.7
4 “[NJeither the particular motivation nor the avowed purpose of the
[Appellants] controls” in an obviousness analysis. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 419 (2007).
5 See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (One cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations of references.).
6 See 37 C.F.R. § 41.41(b)(2)(“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.”).
1 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
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Moreover, ‘“the question under 35 U.S.C. § 103 is not merely what
the references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made. Merck & Co.
v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); see also MPEP
§2123.
For at least the aforementioned reasons, and based upon a
preponderance of the evidence, we are not persuaded the Examiner erred.
Accordingly, we sustain rejection B under § 103 of independent claim 1.
Independent Claims 9 and 14 — not argued separately (rejection B)
Appellants further recite the similar contested language of
commensurate scope, and urge that “independent claims 9 and 14 are
patentable over the references cited for at least the reasons discussed above
with respect to independent claim 1.” (App. Br. 15). We find Appellants’
contentions unavailing for the same reasons discussed above regarding
rejection B of independent claim 1.
Dependent Claims rejected under rejection B — not argued separately
Appellants further submit “[t]he dependent claims incorporate the
limitations of their respective independent claims, and are likewise
submitted to be patentable for at least the same reasons as discussed above
with respect to independent claim 1.” (Id.).
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”).
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To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(l)(iv).
Therefore, for at least the aforementioned reasons, we find the
Examiner’s underlying factual findings and legal conclusion of obviousness
are supported by a preponderance of the evidence. Because Appellants have
not persuaded us the Examiner erred, we sustain Rejection B of all claims
1—11, 13—16, 18, 20, and 21 rejected thereunder.
Rejection C of Dependent Claim 19, under 35 U.S.C. § 103(a)
Claim 19 recites: “The system of claim 1 wherein the cleaning scores
are obtained from one or more of comment cards, online surveys, online
forum reviews, verbal communications.”
Although Appellants urge “there would have been no apparent reason
that would have caused one of ordinary skill in the art to modify the applied
references to arrive at the claimed features” (App. Br. 16), Appellants fail to
provide any substantive argument (or evidence) to support the conclusory
allegation.8
Appellants submit “[cjlaim 19 depends from independent claim 1, and
is therefore respectfully submitted to be patentable for at least the same
reasons as discussed above with respect to independent claim 1.” Id.
8 We afford such conclusory attorney argument little weight. In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997). See also Enzo Biochem, Inc. v. Gen-
Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney argument is no
substitute for evidence.”).
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However, we find no deficiencies regarding the Examiner’s rejection
B of independent claim 1, for the reasons discussed above. Therefore, on
this record, we are not persuaded of error regarding the Examiner’s rejection
C of dependent claim 19, which depends directly from claim 1.
Accordingly, we sustain rejection C under § 103 of claim 19.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner’s position in the Answer, we note
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).
CONCLUSIONS
The Examiner did not err in rejecting claims 1—11, 13—16, and 18—21
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
The Examiner did not err in rejecting claims 1—11, 13—16, and 18—21
under pre-AIA 35 U.S.C. § 103(a) as being obvious over the combined
teachings and suggestions of the cited references.
DECISION
We affirm the Examiner’s decision rejecting claims 1—11, 13—16, and
18-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See
37 C.F.R. §41.50(f).
AFFIRMED
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