Lee, Eugene M.

Patent Trials and Appeals Board

Apr 30, 2020

13603926 - (D) (P.T.A.B. Apr. 30, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/603,926 09/05/2012 Eugene M. Lee 113708.124_CON1 8567
23400 7590 04/30/2020
POSZ LAW GROUP, PLC
12040 SOUTH LAKES DRIVE
SUITE 101
RESTON, VA 20191
EXAMINER
NGUYEN, CINDY
ART UNIT PAPER NUMBER
2161
NOTIFICATION DATE DELIVERY MODE
04/30/2020 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):
dposz@poszlaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte EUGENE M. LEE
____________________

Appeal 2019-0016701
Application 13/603,926
Technology Center 2100
____________________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF CASE
Introduction
Appellant2 appeals under 35 U.S.C. § 134(a) from a Non-Final
rejection of claims 32, 34–38, 40, 42–46, 48, and 50–56. Claims 1–31, 33,

1 Throughout this Opinion, we refer to: (1) the Non-Final Office Action
mailed July 12, 2017, from which this application is appealed (“Non-Final
Act.”); (2) the Appeal Brief filed December 1, 2017 (“Appeal Br.”); (3) the
Examiner’s Answer mailed October 25, 2019 (“Ans.”); and (4) the Reply
Brief filed December 24, 2018 (“Reply Br.”). This application was
previously appealed on February 19, 2016, and the Board reversed the
Examiner’s rejection under 35 U.S.C. 103(a) of claims 32, 34–38, 40, 42–
46, and 50–54 in a Decision mailed April 25, 2017 (“Dec.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
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39, 41, and 47 have been canceled (see Appellant’s Amendment filed
August 3, 2015, pp. 2–9). Claims 55 and 56 were newly added in the
Amendment filed August 3, 2015 (see p. 9). We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
Appellant’s Disclosed and Claimed Invention
Appellant’s disclosed invention, entitled “Apparatus for and Method
of Searching and Organizing Intellectual Property Information Utilizing a
Field-of-Search” (Title), relates to formulating and facilitating searches for
intellectual property information (see Spec. ¶¶ 2, 4, 5; claims 34, 35, 42, 43,
50, 51), and more particularly to electronic searching with a thesaurus
module and library for formulating the content and direction of an
intellectual property information search strategy (see Spec. ¶¶ 4, 5; claims
34, 35).
Exemplary Claims
Claims 34, 35, 42, 43, 50, and 51 are independent. Claims 34, 42, and
50 recite similar subject matter pertaining to the use of a thesaurus module;
and claims 35, 43, and 51 recite subject matter commensurate in scope with
claims 34, 42, and 50, and including the addition of an electronic thesaurus
library in combination with the thesaurus module. Exemplary claims 34 and
35 under appeal, with bracketed lettering and formatting added, and
emphases added to key portions of the claim at issue, read as follows:

37 C.F.R. § 1.42. “The word ‘applicant’ when used in this title refers to the
inventor or all of the joint inventors, or to the person applying for a patent as
provided in §§ 1.43, 1.45, or 1.46.” 37 C.F.R. § 1.42(a). Appellant
identifies the real party in interest as the inventor, Eugene M. Lee (Appeal
Br. 4).
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34. A method for formulating an intellectual property
search, comprising:
[A] inputting, in a computer processor device, as a search
field, an identification of at least one classification in a
classification system;
retrieving, in the computer processor device, select
intellectual property documents that have the classification, that
was input as the search field, indicated as content of a
classification field, and returning the select intellectual property
documents as source grouping search results;
[B] providing, in the computer processor device,
intellectual property documents which were returned as the
source grouping search results, to a thesaurus module to
generate a list of elements which are significant search
elements found in the source grouping search results;
[C] providing, in the computer processor device, the list
of elements which are the significant search elements as a field-
of-search corresponding to the at least one classification which
was input, for further use as terminology;
wherein the at least one classification is an enumerated
class in the classification system, and the classification system
is determined by a government patent or trademark office;
and providing, in the computer processor device, an analysis of
the list of elements in the source grouping search results, the
analysis includes frequency of occurrence of elements in
the select intellectual property documents in the source
grouping search results, wherein the elements are at least one
of: a word, a phrase, a concept, a number, a picture, a feature, a
representation, a graphic, and an identifier.

35. A method for formulating an intellectual property
search, comprising:
[A] inputting, in a computer processor device, as a search
field, an identification of at least one classification in a
classification system;
retrieving, in the computer processor device, select
intellectual property documents that have the classification, that
was input as the search field, indicated as content of a
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classification field, and returning the select intellectual property
documents as source grouping search results;
[B] providing, in the computer processor device,
intellectual property documents which were returned as the
source grouping search results, to a thesaurus module to
generate a list of elements which are significant search
elements found in the source grouping search results; and
[C] providing, in the computer processor device, the list
of elements which are the significant search elements as a field-
of-search corresponding to the at least one classification which
was input, for further use as terminology,
[D] wherein the computer processor device stores, as the
thesaurus module, the significant search elements found in the
source grouping search results in an electronic thesaurus
associated with the at least one classification, as part of an
electronic thesaurus library that stores plural thesauruses, each
thesaurus in the electronic thesaurus library having terminology
devoted to a technical area.
Claims Appendix, p. 2 (emphases, formatting, and bracketed lettering
added). Claims 34 and 35, including limitations A–D, were present in same
form in the prior appeal of this application (see Dec. 5), and were subject to
the Examiner’s prior rejection for obviousness over the combination of
Rivette et al. (US 6,339,767 B1; issued January 15, 2002) (hereinafter,
“Rivette”) and Turtle et al. (US 5,488,725; issued January 30, 1996)
(hereinafter, “Turtle”). The Board reversed the obviousness rejection of
claims 34 and 35 based on the failure of Turtle to teach or suggest
“generating search elements from an initial search result set of documents”
(Dec. 4), and therefore limitation B in claim 34 (and the commensurate
limitations of remaining independent claims 35, 42, 43, 50, and 51) (see
Dec. 3–4). With the approval of the Technology Center Director, the
Examiner reopened prosecution (see Ans. 2, 20), applied Miller et al. (US
5,926,811; issued July 20, 1999) (hereinafter, “Miller”) under 35 U.S.C.
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§ 103(a) in place of Turtle as teaching or suggesting limitations B, C, and D
in claims 34 and 35 (see Non-Final Act. 6–9), and added a rejection under
35 U.S.C. § 101 (see Non-Final Act. 2–5).
The Examiner’s Rejections
(1) The Examiner rejected claims 32, 34–38, 40, 42–46, 48, and 50–
56 under 35 U.S.C. § 101 as being directed to patent-ineligible subject
matter (an abstract idea), without significantly more. Non-Final Act. 2–5;
Ans. 3–5.
(2) The Examiner rejected claims 32, 34–38, 40, 42–46, 48, and 50–
56 under 35 U.S.C. § 103(a) as being unpatentable over Rivette and Miller.
Non-Final Act. 5–19; Ans. 5–18.
Appellant’s Contentions
(1) With regard to the patent eligibility rejection, Appellant primarily
makes arguments regarding claim 34 (see Appeal Br. 13–22; Reply Br. 3–
10), and relies on those arguments for the patent eligibility of claims 32, 35–
38, 40, 42–46, 48, and 50–56 (see Appeal Br. 22). Appellant generally
contends claim 34 is not directed to an abstract idea, but to a technical
solution to a technical problem (see Appeal Br. 13–18, 21–22), e.g., an aid to
refine search queries and to assist in the preparation of patent applications in
a particular technical area (see Appeal Br. 14). Appellant argues that
limitation C recited in claim 34, and paragraph 4 of the Specification support
this contention (see Appeal Br. 4, 21–22). Appellant also contends that (i)
the ordered combination of elements in claim 34 amounts to significantly
more than just the well-known, routine, or conventional functions of
performing a search using a thesaurus (see Appeal Br. 19–21); and (ii) the
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Examiner failed to properly consider “the sequence of the individual steps
which, as an ordered combination, transform the nature of the invention into
a patent-eligible application” (Appeal Br. 19).
Therefore, based on Appellant’s patent eligibility arguments, and
because claims 32, 34–38, 40, 42–46, 48, and 50–56 contain commensurate
limitations, we select claim 34 as representative of claims 32, 34–38, 40, 42–
46, 48, and 50–56 rejected under 35 U.S.C. § 101 for patent-ineligibility.
(2) With regard to the obviousness rejections of claims 32, 34–38, 40,
42–46, 48, and 50–56, Appellant primarily argues the merits of independent
claims 34 and 35 (see Appeal Br. 23–40; Reply Br. 11–19), and makes
similar arguments as to the patentability of remaining independent claims
42, 43, 50, and 51 (see Appeal Br. 31, 36, 37, 40).
As to independent claim 34, Appellant contends (Appeal Br. 26–36;
Reply Br. 11–17) that the Examiner erred in rejecting claim 34 under
35 U.S.C. § 103(a), because (i) Rivette and Miller, whether taken
individually or in combination, fail to teach or suggest limitations A–C
recited in claim 34; and (ii) the combination is inoperable, and the Examiner
employed impermissible hindsight and failed to provide a rational
articulation for the combination. Appellant relies on these arguments for
claims 36, 37, 42, 44, 45, 50, 52, 53, and 55, which contain similar
limitations.
As to independent claim 35, Appellant relies on the arguments
provided as to claim 34 (see Appeal Br. 37–38; Reply Br. 18–19), and
further contends (Appeal Br. 38–40) that the Examiner erred in rejecting
claim 35 under 35 U.S.C. § 103, because Rivette and Miller, whether taken
individually or in combination, fail to teach or suggest limitations A–D
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recited in claim 35. Appellant relies on these arguments for claims 32, 38,
40, 43, 46, 51, 54, and 56, which contain similar limitations.
Based on Appellant’s obviousness arguments, and because (1) claims
34, 36, 37, 42, 44, 45, 50, 52, 53, and 55 contain commensurate limitations
(see e.g., claim 34, limitations A–C); and (2) claims 32, 35, 38, 40, 43, 46,
51, 54, and 56 contain commensurate limitations (see e.g., claim 35,
limitations A–D), we select (1) claim 34 as representative of claims 34, 36,
37, 42, 44, 45, 50, 52, 53, and 55; and (2) claim 35 as representative of
claims 32, 35, 38, 40, 43, 46, 51, 54, and 56, rejected under 35 U.S.C.
§ 103(a) for obviousness over the combination of Rivette and Miller.
Principal Issues on Appeal
Based on Appellant’s arguments in the Appeal Brief (Appeal Br. 13–
41) and the Reply Brief (Reply Br. 3–20), the following issues are presented
on appeal:
(1) Did the Examiner err in rejecting representative claim 34, as well
as 32, 35–38, 40, 42–46, 48, and 50–563–7, 9–13, 15–19, 21–25, and 27–31
grouped therewith, under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter (i.e., a judicial exception such as an abstract idea),
without significantly more)?
(2) Did the Examiner err in rejecting claims 32, 34–38, 40, 42–46, 48,
and 50–56 under 35 U.S.C. § 103(a) as being unpatentable over the properly
made combination of Rivette and Miller, because the combination (i) fails to
teach or suggest (i) limitations A–C recited in representative claim 34;
and/or (ii) limitations A–D recited in representative claim 35?
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ANALYSIS
First Issue: Patent Eligibility Under 35 U.S.C. § 101
Section 101 of the Patent Act provides “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may
obtain a patent therefor, subject to the conditions and requirements of this
title.” 35 U.S.C. § 101. However, the Supreme Court has long interpreted
35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural
phenomena, and abstract ideas” are not patentable. 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 Supreme Court’s two-step 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
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,
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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.
(15 How.) 252, 267–68 (1854))); 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
Supreme 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 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (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-
eligible application.” Alice, 573 U.S. at 221 (internal 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
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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.
The PTO published revised guidance on the application of § 101.
USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”).3 Under the Guidance, we first look to
whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong 1”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) §§ 2106.05(a)–(c), (e)–(h)) (9th Ed.,
Rev. 08.2017, 2018) (“Step 2A, Prong 2”).4
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, updating and clarifying the Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
4 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. 54–55.
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception (“Step 2B”).
See Guidance, 84 Fed. Reg. at 54–56.
Even if the claim recites an abstract idea, the Federal Circuit explains
the “directed to” inquiry is not simply asking whether the claims involve a
patent-ineligible concept:
The “directed to” inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical
products and actions involves a law of nature and/or natural
phenomenon—after all, they take place in the physical world.
See Mayo, 132 S.Ct. at 1293 (“For all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas.”) Rather, 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); see
also Diehr, 450 U.S. at 188 (“In determining the eligibility of respondents’
claimed process for patent protection under § 101, their claims must be
considered as a whole.”); McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314 (Fed. Cir. 2016) (the question is whether the claims as a
whole “focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery”).
We have reviewed the Examiner’s subject matter eligibility rejection
(Final Act. 2–5; Ans. 3–5) in light of Appellant’s contentions that the
Examiner has erred (Appeal Br. 13–22; Reply Br. 3–10), and the Examiner’s
response to Appellant’s arguments in the Appeal Brief (Ans. 18–20). We
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are not persuaded by Appellant’s contention of Examiner error in rejecting
representative claim 34, or claims 32, 35–38, 40, 42–46, 48, and 50–56
grouped therewith, under 35 U.S.C. § 101.
Step 1
Under Step 1 of the patent-eligibility inquiry under § 101, we
determine whether a claim is directed to one of the four statutory categories
of invention, i.e., a process, machine, manufacture, or composition of matter.
In the instant case on appeal, representative claim 34 recites “[a]
method for formulating an intellectual property search” which includes, inter
alia, the steps of (1) inputting a classification as a search field “in a
computer processor device” (claim 34, limitation A); (2) providing
intellectual property documents from the resulting search “to a thesaurus
module” (claim 34, limitation B); (3) providing a list of significant search
elements for further use (claim 34, limitation C); and (4) providing an
analysis of the significant search elements including frequency of occurrence
in intellectual property documents of the search results. Therefore, claim 34,
as a method claim, recites at least one of the enumerated categories (e.g., a
process including a series of steps) of eligible subject matter in 35 U.S.C.
§ 101.
Accordingly, as to claim 34, as well as claims 32, 35–38, 40, 42–46,
48, and 50–56 grouped therewith, we continue our analysis under Step 2A,
Prong 1 of the Guidance to determine whether claim 1recites a judicial
exception (a law of nature, natural phenomenon, or subject matter within the
enumerated groupings of abstract ideas above).
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Step 2A, Prong 1
The Guidance states that the abstract idea exception includes mental
processes, which include “concepts performed in the human mind (including
an observation, evaluation, judgment, opinion).” Guidance, 84 Fed. Reg. at
52. Such concepts must be capable of being practically performed in the
human mind, although the use of a physical aid, such as a pen and paper, or
a computer does not negate the mental nature of such a concept. October
2019 Update: Subject Matter Eligibility Guidance (hereinafter, 2019
Update) 8–9 (October 2019), available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df.
We agree with the Examiner’s determination (see Non-Final Act. 3;
Ans. 3) that claim 34 recites limitations falling within the mental process
category of abstract ideas, including the steps of “formulating an intellectual
property search include inputting as a search field, an identification of at
least one classification, retrieving intellectual property documents as source
grouping search results, providing the source grouping to thesaurus module
to generate a list of elements and providing the list of elements” (Non-Final
4; Ans. 4). We agree that these steps recite the types of observation,
evaluation, and judgment that are characteristic of mental processes that may
be practically performed in the human mind, or with the aid of pen and
paper. See Synopsys, 839 F.3d at 1146 (“While the Supreme Court has
altered the § 101 analysis since CyberSource in cases like Mayo and Alice,
we continue to ‘treat[] analyzing information by steps people go through in
their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category.’”) (quoting Elec. Power
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Group, LLC v. Alstrom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)); see also
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir.
2011) (“That purely mental processes can be unpatentable, even when
performed by a computer, was precisely the holding of the Supreme Court in
Gottschalk v. Benson.”); Benson, 409 U.S. at 67.
In addition, determining which of the list of elements are significant
search elements useful in finding better prior art, in order to craft a field-of-
search corresponding to a classification (see claim 34, limitation C), is also a
mental process using judgment, evaluation, or opinion, as is providing an
analysis for the list of elements in the search results that is organized by
frequency of occurrence of elements in the intellectual property documents
in the results.
Thus, consistent with the Guidance and case law, we conclude
representative claim 34 recites mental processes (i.e., a concept performed in
the human mind, such as, an observation, evaluation, judgment, and
opinion), which are abstract ideas. See Guidance, 84 Fed. Reg. at 52;
Guidance Update, 7–9; Digitech Image Techs., LLC v. Elecs. For Imaging,
Inc., 758 F.3d 1344, 1351 (2014) (concluding claims reciting receiving two
data sets, and combining those data sets into a single data set is “an
ineligible abstract process of gathering and combining data”); CyberSource
654 F.3d at 1372–73 (concluding claims reciting obtaining a data transaction
set affiliated with a particular Internet address, generating a map based on
those transaction, and using the map to determine whether a transaction is
valid were abstract because they were directed to steps a person could
perform mentally); Elec. Power Group, 830 F.3d at 1353–54 (concluding
claims directed to “collecting information, analyzing it, and displaying
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certain results of the collection and analysis” were abstract); SAP Am., Inc.
v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (concluding claims
were directed to the abstract idea of “selecting certain information, analyzing
it using mathematical techniques, and reporting or displaying the results of
the analysis”); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1361–
62 (Fed. Cir. 2015) (determining claims reciting obtaining statistics,
analyzing those statistics to determine another piece of information—i.e., a
price at which to sell a product—was directed to the abstract idea of offer-
based price optimization).
Although Appellant alleges the claims to be in “the field of electronic
searching” (Appeal Br. 13), “and that such a search is never performed
mentally” (Appeal Br. 15), we take a different view. In our view, claim 34,
taken as a whole and in view of the Specification, broadly covers searches
and search formulations performed (i) in the mind, or with the aid of pen and
paper (e.g., intellectual property documents, collections, classification
schedule, etc.); (ii) in the mind (e.g., as to steps requiring judgment or
evaluation) in combination with a computer processing device, thesaurus,
and/or library; or (iii) automatically and electronically by a computer
processing device with memory (e.g., an electronic thesaurus and/or library).
Although claim 34 nominally recites a “computer processor device”
(see claim 34, limitation A) and “a thesaurus module” (see claim 34,
limitation B), and provides an analysis including frequencies of occurrence
(see claim 34, last limitation), the focus of claim 34 is on performing the
steps of a mental processes (see Gottschalk v. Benson, 409 U.S. 63, 67
(1972), i.e., formulating an intellectual property search (claim 34, preamble).
As such, the claimed invention recites a mental process, which is an abstract
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idea. See, e.g., Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1146 (Fed. Cir. 2016) (“analyzing information by steps people [can] go
through in their minds, or by mathematical algorithms, without more [are]
mental processes within the abstract-idea category.”); Clarilogic v.
Formfree Holdings, 681 F. App’x. 950, 954–55 (Fed. Cir. 2017) (gathering,
analyzing, and outputting financial data/assessment is an abstract idea that is
patent ineligible).
Our reviewing court has also concluded that abstract ideas include the
concepts of collecting data, recognizing certain data within the collected data
set, and storing the data in memory. Content Extraction & Transmission
LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir.
2014); see also Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873
F.3d 1364, 1372 (Fed. Cir. 2017) (concluding “claims directed to the
collection, storage, and recognition of data are directed to an abstract idea”).
Moreover, our reviewing court has concluded that acts of parsing,
comparing, storing, and editing data are abstract ideas. Berkheimer v. HP
Inc., 881 F.3d 1360, 1366 (Fed. Cir. 2018). In addition, the collection of
information and analysis of information (e.g., recognizing certain data
within the dataset) are also abstract ideas. Elec. Power Grp., 830 F.3d at
1353. Similarly, “collecting, displaying, and manipulating data” is an
abstract idea. Intellectual Ventures I LLC v. Capital One Fin. Corp., 850
F.3d 1332, 1340 (Fed. Cir. 2017); see also SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1167 (Fed. Cir. 2018) (“merely presenting the results of
abstract processes of collecting and analyzing information . . . is abstract as
an ancillary part of such collection and analysis”) (quotations omitted). In
this light, crafting a field of search with the use of a classification and
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thesaurus, even if electronic, is similar to the concepts of collecting, parsing,
comparing, storing, and analyzing data recognized by our reviewing court to
be abstract ideas.
Because we conclude claim 34 recites an abstract idea, we proceed to
Step 2A, Prong 2 of the Guidance to determine whether claim 34 is “directed
to” the judicial exception, by determining whether additional elements of the
claim integrate the abstract idea into a practical application. Such additional
elements may reflect an improvement to a technology or technical field. See
Guidance, 84 Fed. Reg. at 55.
Step 2A, Prong 2 – Practical Application
Having determined that claim 34 recites an abstract idea, we next
determine, under Step 2A, Prong 2 of the Guidance, whether claim 34 is
directed to that abstract idea, or whether the claims have additional elements
that integrate the abstract idea into a practical application of that abstract
idea. Guidance, 84 Fed. Reg. at 54.
Here, claim 34 recites the additional elements of “a computer
processor device” (claim 34, limitation A) and “a thesaurus module” (claim
34, limitation B). Although Appellant contends that claim 34 is not directed
to an abstract idea, but to a technical solution to a technical problem such as
refining search queries (see Appeal Br. 13–14), we do not agree that claim
34 recites any improvement in speed or efficiency to the computer processor
device or thesaurus module themselves.
As noted in our discussion of Step 2A, Prong 1 above, the method for
formulating an intellectual property search set forth in claim 34 is only used
as a tool for performing certain activities of the recited process (to collect
and analyze necessary information). Appellant also describes the list of
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elements produced by the claimed invention, and used to refine search
queries (see e.g., claim 34, limitation B), as “a drafting tool to assist in the
preparation of, e.g., patent applications” (Appeal Br. 14). The method for
formulating a search recited in claim 34 only serves to provide data needed
for analysis, here, a classification identification (see claim 34, limitation A).
The mere recitation of identifying and analyzing information in claim
34 does not embody an improvement in computer capabilities as in Enfish.
See 822 F.3d at 1336 (“[T]he plain focus of the claims is on an improvement
to computer functionality itself, not on economic or other tasks for which a
computer is used in its ordinary capacity.”). Rather, the focus of claim 34 is
on formulating and facilitating an intellectual property search based on an
identified classification, i.e., determining which classification to use for
enhanced searching, and then selecting documents matching that
classification as results, reference those results with a thesaurus to provide
enhanced results, and providing an analysis including occurrence
frequencies of words, phrase, etc. This is an improvement to help the
user/searcher, but not the computer itself (or in the case of claim 34, the
computer processor device and/or thesaurus module or memory). Claim 34
does not recite a method of formulating a search that improves the speed or
efficiency of the memory device and/or processor, reduces memory
requirements, or otherwise improves a user interface.
In the instant case, the additional limitations recited beyond the
judicial exception itself fail to integrate the exception into a practical
application. More particularly, representative claim 34 does not recite: (i) an
improvement to the functionality of a computer or other technology or
technical field (see MPEP § 2106.05(a)); (ii) a “particular machine” to apply
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or use the judicial exception (see MPEP § 2106.05(b)); (iii) a particular
transformation of an article to a different thing or state (see MPEP
§ 2106.05(c)); or (iv) any other meaningful limitation (see MPEP
§ 2106.05(e)). See also Guidance, 84 Fed. Reg. at 55.
Rather, the additional elements simply recite insignificant extra-
solution activity. Each of the steps may be performed completely in a
person’s mind or by a person using pen and paper. Notably, the step of
inputting an identification of a classification (see claim 34, limitation A)
could alternatively be considered part of the abstract idea because selecting a
classification as a search field could be done mentally or, for example, by
receiving a piece of paper containing the information, and receiving that list
of classifications whose information is evaluated as part of the abstract idea
is necessary to performing the idea itself.
Nevertheless, we consider this retrieving step to be a step in addition
to the abstract idea that, considered in light of the claim as a whole, fails to
integrate the abstract idea into a practical application. Specifically, this step
adds only insignificant extra-solution activity because it merely receives an
initial set of data to enable executing the mental steps making up the abstract
idea. Guidance, 84 Fed. Reg. at 55; see Bilski v. Kappos, 561 U.S. 593, 612
(2010) (holding the use of well-known techniques to establish inputs to the
abstract idea as extra-solution activity that fails to make the underlying
concept patent eligible); CyberSource, 654 F.3d at 1372 (finding that, even
to the extent certain “physical steps are required to obtain information from
the database . . . such data-gathering steps cannot alone confer
patentability”); Elec. Power, 830 F.3d at 1355 (explaining that “selecting
information, by content or source, for collection, analysis, and display does
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nothing significant to differentiate a process from ordinary mental
processes”). In other words, this additional data-gathering step merely
obtains information needed to perform the recited abstract idea.
To the extent that the claimed method may perform search
formulation faster than other computerized scheduling methods, that would
not provide an improvement to the computer itself. See, e.g., Versata Dev.
Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015)
(explaining that in order for a machine to add significantly more, it must
“play a significant part in permitting the claimed method to be performed,
rather than function solely as an obvious mechanism for permitting a
solution to be achieved more quickly”) (emphasis added); FairWarning IP,
LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (2016) (“While the claimed
system and method certainly purport to accelerate the process of analyzing
audit log data, the speed increase comes from the capabilities of a general-
purpose computer, rather than the patented method itself”); Bancorp Servs.,
L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed.
Cir. 2012) (“[T]he fact that the required calculations could be performed
more efficiently via a computer does not materially alter the patent eligibility
of the claimed subject matter”).
The method of the claimed invention (see claim 34) identifies data
(e.g., classification search field in limitation A) used to provide intermediate
results (e.g., the intellectual property documents, source grouping search
results, resultant list of elements, and terminology in limitations B and C);
and analyzes data (e.g., providing an analysis in the last limitation). Thus,
the additional steps of claim 34 beyond the abstract idea are merely
conventional data gathering and analysis (see MPEP § 2106.05(g); OIP
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Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015);
Elec. Power, 830 F.3d at 1354); and/or insignificant extra-solution activity
that does not meaningfully limit the claim (see MPEP § 2106.05(g)). As
such, based on the record before us, we determine that the claimed invention
is not integrated into a practical application.
Merely adding a programmed computer to perform generic computer
functions does not automatically overcome an eligibility rejection. Alice,
573 U.S. at 223–24. Furthermore, the use of a general purpose computer to
apply an otherwise ineligible algorithm does not qualify as a particular
machine. See Ultramercial, 772 F.3d at 716–17; In re TLI Commc’ns LLC
v. AV Automotive, LLC, 823 F.3d 607, 613 (Fed. Cir. 2016) (mere recitation
of concrete or tangible components is not an inventive concept); Eon Corp.
IP Holdings LLC v. AT&T Mobility LLC, 785 F.3d 616, 623 (Fed. Cir. 2015)
(noting that Alappat’s rationale that an otherwise ineligible algorithm or
software could be made patent-eligible by merely adding a generic computer
to the claim was superseded by the Supreme Court’s Bilski and Alice
decisions). In the instant case, using a computer to more quickly facilitate or
formulate an intellectual property search is nothing more than the abstract
idea itself (i.e., a mental process).
Appellant’s arguments that claim 34 recites an ordered combination of
elements, which are more than the abstract idea (Appeal Br. 19–20; Reply
Br. 4–5), are not persuasive. Specifically, Appellant argues that the
Examiner “never considers the ordered combination of two entirely different
types of search[es] having two different types of search results in this order”
(Reply Br. 4 citing Appeal Br. 20). However, the broadest reasonable
interpretation of limitation A of claim 34 is that the “enumerated class in the
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classification system” could be the associated text (i.e., class definition, title,
heading, or descriptive text) or class/subclass designation (i.e., a numerical
values, e.g., 707/2) that is identified.5 And while Appellant acknowledges
that the claimed solution is useful to “automate the creation of search queries
and criteria” (Spec. ¶ 3), these types of improvements to the abstract idea
result from the routine application of computers as tools, not from any
technical innovation. See Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015) (“claiming the improved speed
or efficiency inherent with applying the abstract idea on a computer [does
not] provide a sufficient inventive concept”); Bancorp Servs., L.L.C. v. Sun
Life Assur. Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he
fact that the required calculations could be performed more efficiently via a
computer does not materially alter the patent eligibility of the claimed
subject matter.”). “[R]elying on a computer to perform routine tasks more
quickly or more accurately is insufficient to render a claim patent eligible.”
OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir.
2015) (citing Alice Corp., 134 S. Ct. at 2359).
We do not consider representative claim 34 to recite any element(s),
or ordered combination of elements, which transforms the abstract idea to
patent eligible subject matter. Our reviewing court in McRO reviewed
claims which use “a combined order of specific rules that renders
information into a specific format that is then used and applied to create
desired results: a sequence of synchronized, animated characters” McRO,

5 See infra pp. 33–35 (discussing, in detail, the broadest reasonable
interpretation of the term “classification in a classification system,” recited
in limitation A of claim 34, with regard to the obviousness rejection of claim
34).
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837 F.3d at 1315. Further, the court found that the claims did not “simply
use a computer as a tool to automate conventional activity” but instead uses
the computer to “perform a distinct process” that is carried out in a different
way than the prior non-computer method to improve the technology of (3-D
animation techniques). See McRO, at 1314–16.
Here, we do not find that claim 34 recites such an ordered set of rules
carried out in a different way than the non-computer implemented method.
As Appellant states, the claimed solution is useful to “automate the creation
of search queries and criteria” (Spec. ¶ 3). The use of two different types of
search results, is not a technological solution to a technological problem, but
rather a factor to be considered in formulating an intellectual property
search. Neither Appellant’s Specification nor Appellant’s arguments have
identified this as a solution that cannot be implemented manually or as a
mental process, just that doing so “require[s] the IP professionals to
formulate the content and direction of their search strategy through previous
experience or trial-and-error” (Spec. ¶ 4). Thus, Appellant’s arguments have
not persuaded us the Examiner erred in finding that the claims fail to
represent an improvement to an existing technology.
Appellant’s abstract idea of formulating an intellectual property
search is applied to generic computing infrastructure and does not provide
any particular practical application as required by BASCOM, or entail an
unconventional technological solution to a technological problem as
required by Amdocs. See BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1352, 1350 (Fed. Cir. 2016); Amdocs Ltd. v.
Openet Telecom, Inc., 841 F.3d 1288, 1300, 1302 (Fed. Cir. 2016). For
example, BASCOM's patent-eligible ordered combination of claim
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limitations contains an “inventive concept [that] harnesses [a] . . . technical
feature of network technology in a filtering system by associating individual
accounts with their own filtering scheme and elements while locating the
filtering system on an ISP [(Internet Service Provider)] server.” See
BASCOM, 827 F.3d at 1350. BASCOM's claimed ordered combination
“improve[s] the performance of the computer system itself” with a
“technology-based solution . . . to filter content on the Internet that
overcomes existing problems with other Internet filtering systems.” See
BASCOM, 827 F.3d at 1351–52 (internal citation omitted). By contrast,
Appellant’s invention uses generically-claimed computing elements to
perform the abstract idea (Non-Final Act. 4; Ans. 4). As our reviewing court
has observed, “after Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible.” DDR Holdings, 773 F.3d at 1256 (citing Alice, 573 U.S. at 223).
For the reasons discussed above, we conclude Appellant’s claim 34
(and claims 32, 35–38, 40, 42–46, 48, and 50–56 grouped therewith) invokes
generic computer components (a “computer processor device” and
“thesaurus module”) merely as a tool in which the computer instructions
apply the judicial exception and, thus, the abstract idea is not integrated into
a practical application. Because Appellant has not persuaded us the
Examiner’s determination that claim 34 recites an abstract idea under Step
2A is in error, and claim 34 recites a judicial exception (i.e., the abstract idea
of a mental process) that is not integrated into a practical application, in
accordance with the Guidance, we conclude claim 34 and claims 32, 35–38,
40, 42–46, 48, and 50–56 grouped therewith, are directed to an abstract idea
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under Step 2A, and the eligibility analysis with regard to claims 32, 35–38,
40, 42–46, 48, and 50–561 proceeds to Step 2B.
Step 2B – Inventive Concept
Having determined claim 34 and claims 32, 35–38, 40, 42–46, 48, and
50–56 grouped therewith are directed to an abstract idea that is not
integrated into a practical application, we now evaluate whether the
additional elements, whether examined alone or as an ordered combination,
add a specific limitation that is not well-understood, routine, or conventional
activity 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 abstract idea. See generally Guidance.
Here, claim 34 recites the additional elements of “a computer
processor device” (claim 34, limitation A) and “a thesaurus module” (claim
34, limitation B). Considering claim 34 as a whole, none of the additional
elements applies or uses the abstract idea in a meaningful way such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception.
Appellant alleges that “[t]he ordered combination of limitations in the
presently recited invention amounts to significantly more than simply well-
known, routine, or conventional functions of performing a search based on a
search term, and using some kind of thesaurus to suggest expansions to
the search term” (Appeal Br. 20; see also Reply Br. 5). Appellant also
alleges that the Examiner fails to address or explain “how to get from an
‘enumerated’ classification search field (which results in a batch of
intellectual property documents) to an expansion of the classification search
field” (Reply Br. 5). Appellant’s conclusory statements to this effect do not
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provide an explanation as why the Examiner erred on this ground of
rejection, as required by 37 C.F.R. § 41.37(c)(1)(iv). See In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011).
However, Appellant has not explained why the Examiner has not
complied with the eligibility analysis as described in the Berkheimer
memorandum. Changes in Examination Procedure Pertaining to Subject
Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v.
HP, Inc.) (April 19, 2018), available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF. The Berkheimer memorandum provides for a “citation to an
express statement in the specification . . . that demonstrates the well-
understood, routine, conventional nature of the additional element(s).” Id.
In the instant case, specific portions of the Specification support the
Examiner’s determination. For example, the Specification shows (see Fig.
1) and describes (Spec. ¶¶ 13–23, 50–53) only the use of well-understood,
routine, conventional computer systems.
Specifically, Appellant discloses that “the invention may be deployed
in any form of network or communication technology” or “any known
wired/wireless technology may be used to implement the invention,” and
“[t]he embodiments may similarly be implemented in other known systems
and platforms (e.g., personal computer, Internet-based devices, PDAs,
portable or hand-held electronic devices, etc.)” (Spec. ¶ 50). Appellant
further discloses that “[u]ser interface devices may be any device used to
input and/or output information” (Spec. ¶ 51), and “memory or database
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units described herein may be any one or more of the known storage devices
or systems)” (Spec. ¶ 53). Finally, Appellant discloses that:
Indeed, even a single general purpose computer (or other
processor-controlled device) executing a program stored on an
article of manufacture (e.g., recording medium or other memory
units) to produce the functionality referred to herein may be
utilized to implement the illustrated embodiments.
Spec. ¶ 52 (emphases added). See Hybritech Inc. v. Monoclonal Antibodies,
Inc., 802 F.2d 1367, 1384 (Fed. Cir. 1986) (explaining that “a patent need
not teach, and preferably omits, what is well known in the art”); see also
USPTO, Memorandum on Changes in Examination Procedure Pertaining to
Subject Matter Eligibility, Recent Subject Matter Eligibility Decision
(Berkheimer v. HP, Inc.) at 3 (Apr. 19, 2018), available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF (explaining that a specification that describes additional
elements “in a manner that indicates that the additional elements are
sufficiently well-known that the specification does not need to describe the
particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can
show that the elements are well understood, routine, and conventional);
Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed.
Cir. 2017) (“The claimed mobile interface is so lacking in implementation
details that it amounts to merely a generic component (software, hardware,
or firmware) that permits the performance of the abstract idea, i.e., to
retrieve the user-specific resources.”).
Appellant has not explained persuasively why the Examiner’s
characterization of the functions of the computer processor device and
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thesaurus module, based on the description of those components in the
Specification, is in error.
Furthermore, generically claimed elements of computer processors
and computer databases (e.g., thesaurus modules) have been found to be no
more than well-understood, routine, and conventional activity in the context
of gathering and assembling data. See, e.g., Berkheimer v. HP Inc., 890 F.3d
1369, 1370 (Fed. Cir. 2018) (“The conventional limitations of claim 1,
combined with limitations of analyzing and comparing data and reconciling
differences between the data . . . amount to no more than performing the
abstract idea of parsing and comparing data with conventional computer
components); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (updating
an activity log by computer is well-understood, routine, conventional
activity). As explained by the Supreme Court, the presence of a generic
computer performing generic computer functions, such as calculation and
transmission of data, is not enough to transform an abstract idea into a
patent-eligible invention. Alice Corp. v. CLS Bank, 573 U.S. 208, 225–226
(2014).
Here, the processor and computer function as computational tools to
receive and store data, generate intermediate data, and compare and analyze
data to formulate a search. Under our governing case law, this is not enough
to show that computer causes claim 34 to be significantly more than the
identified abstract idea. Accordingly, we are not persuaded by Appellant’s
argument.
In view of the foregoing, under the 2019 Guidance, informed by our
governing case law concerning 35 U.S.C. § 101, Appellant has not shown
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the Examiner erred in concluding claim 34 is directed to a judicial exception,
i.e., an abstract idea, without significantly more, and thus is patent-ineligible
under § 101. We therefore sustain the Examiner’s rejection of claim 34, as
well as claims 32, 35–38, 40, 42–46, 48, and 50–56 grouped therewith. We
therefore sustain the Examiner’s patent-eligibility rejection of claims 32, 34–
38, 40, 42–46, 48, and 50–56.

Second Issue: Obviousness Under 35 U.S.C. § 103(a)
We have reviewed the Examiner’s obviousness rejection of claims 32,
34–38, 40, 42–46, 48, and 50–56 (Final Act. 5–19; Ans. 5–18) and response
to Appellant’s arguments in the Appeal Brief (Ans. 20–24), in light of
Appellant’s arguments in the Appeal Brief (Appeal Br. 23–40) and the
Reply Brief (Reply Br. 11–17) that the Examiner has erred. We disagree
with Appellant’s arguments.
Representative Claim 34 – Limitations A–C; Motivation and Hindsight
With regard to representative independent claim 34, we adopt as our
own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken (Final Act. 5–7; Ans. 5–7), and (2) the
reasons set forth by the Examiner in the Examiner’s Answer (Ans. 20–22) in
response to Appellant’s Appeal Brief. We concur with the findings and
conclusions reached by the Examiner. We provide the following for
emphasis only.
Appellant argues that “the combination of references [i.e., Rivette and
Miller] fails to teach or suggest at least the combination of [limitations A–
C]” (Appeal Br. 21; see also Reply Br. 11–12 (making similar arguments)).
This is not persuasive for at least the following reasons.
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First, Rivette teaches limitation A, and Miller teaches or suggests
limitations B and C.
Second, because Appellant has not sufficiently shown that one of
ordinary skill in the art, armed with the teachings and suggestions of Rivette,
Miller, and the background knowledge that a person of ordinary skill in the
intellectual property document searching art would have, would not have
envisaged the subject matter of Appellant’s claim 34. See In re Graves, 69
F.3d 1147, 1152 (Fed. Cir. 1995) (citing In re LeGrice, 301 F.2d 929, 936
(CCPA 1962)) (confirming the longstanding interpretation that the teachings
of a reference may be taken in combination with knowledge of the skilled
artisan to put the artisan in possession of the claimed invention even though
the patent does not specifically disclose certain features); see also In re
Taylor Made Golf Company, Inc., 589 Fed. Appx. 967 (Fed. Cir. 2014) (the
Board erred in failing to consider the prior art in the context of the
background knowledge that a person of ordinary skill in the art would have
had).
In addition, under 35 U.S.C. § 103, the obviousness inquiry turns not
only on the prior art, but whether “the differences between the claimed
invention and the prior art are such that the claimed invention as a whole
would have been obvious . . . to a person having ordinary skill in the art to
which the claimed invention pertains.” 35 U.S.C. § 103. “A reference must
be considered for everything that it teaches, not simply the described
invention or a preferred embodiment.” In re Applied Materials, Inc., 692
F.3d 1289, 1298 (Fed. Cir. 2012) (citing EWP Corp. v. Reliance Universal
Inc., 755 F.2d 898, 907 (Fed. Cir. 1985)). Indeed, “[o]n the issue of
obviousness, the combined teachings of the prior art as a whole must be
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considered.” EWP, 755 F.2d at 907. In the instant case, Appellant has not
overcome the Examiner’s prima facie case of obviousness, including the
Examiner’s (i) findings as to limitations A, B, and C (see Non-Final Act. 5–
7; Ans. 5–7, 21–22); and (ii) reasoning and articulation as to the motivation
for making the combination (see Non-Final Act. 7; Ans. 7, 21–22), including
the knowledge of the skilled artisan regarding the searching of intellectual
property documents.
We are unpersuaded by Appellant’s argument (see Appeal Br. 27–28)
that one of ordinary skill in the art would limit Miller’s teachings to
inputting only textual information into the thesaurus, and not including
Rivette’s classification identification. Rather, “[a] reference may be read for
all that it teaches, including uses beyond its primary purpose.” See In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012); EWP Corp. v. Reliance
Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985) (“A reference must be
considered for everything it teaches by way of technology and is not limited
to the particular invention it is describing and attempting to protect.”). Thus,
one of ordinary skill in the art, viewing Rivette and Miller, as well as the
knowledge of one of ordinary skill in the art of intellectual property (and
especially patents) search formulation, would not find the method of
formulating an intellectual property search including the combination of
limitations A through C set forth in claim 34, to be an unpredictable or
unexpected result.
We again emphasize that the Examiner’s ultimate legal conclusion of
obviousness is based upon the combined teachings of the cited references.
Moreover, “‘the question under 35 USC 103 is not merely what the
references expressly teach but what they would have suggested to one of
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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) (quoting In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976)). (Emphasis added); see also
MPEP § 2123. Here, Appellant has not persuaded us of Examiner error in
making the ultimate conclusion of obviousness.
Limitation A
Limitation A of claim 34 recites, “inputting, in a computer processor
device, as a search field, an identification of at least one classification in a
classification system” (claim 34, limitation A) (emphases added).
The Examiner relies on Rivette as teaching limitation A, including
inputting and identifying at least one classification, such as a class field (see
Non-Final Act. 7–8 and Ans. 5–6 each citing Rivette col. 28, ll. 14–29).
Although the Examiner mistakenly refers to field 5313 as being the class
field (see Non-Final Act. 5; Ans. 6), we consider this to be harmless error for
at least two reasons. First, Figure 53 and the corresponding text at column
28, lines 1 through 29 show and describe field 5314 as the class field, and do
not show, and are silent as to, any field shown in the searching window 5302
as being numbered 5313 (see Fig. 53; col. 28, ll. 1–29). Second, the
Examiner corrects the error by referring to the class field as element 5314 at
page 21 of the Answer.
The Examiner also relies on column 49, lines 1 through 14 and 51
through 32; column 49, lines 25 through 26; and column 60, lines 26
through 27 as teaching or suggesting limitation A.
Appellant contends that Rivette nor Miller, taken individually or in
combination, teach or suggest the subject matter of limitation A, at least
when combined with the subject matter of limitations B and C (see Appeal
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Br. 26–27; Reply Br. 11–12). Notably however, Appellant does not directly
dispute the Examiner’s findings with regard to limitation A, e.g., that Rivette
teaches inputting a class identification.
Figure 53 clearly shows a searching window 5302 that allows a
user/searcher to search intellectual property documents such as patents with
the entry of a class field 5314 (see col. 28, ll. 1–29; see also col. 49, ll. 24–
26 (“if the operator defined a search based on patent number and PTO class,
then the number and class parameters of the search command would be
filled in”); col. 60, ll. 25–27 (“By breaking the class/subclass into these three
fields, it is possible to fine tune searches and direct searches to any
combination of the class, subclass, or subclass suffix”)), and outputs ranked
search results (see Fig. 54; col. 28, ll. 50–52).
In addition, one of ordinary skill in the art of searching intellectual
property documents such as patents, which are organized by class and
subclass, would understand that a search field input, which is “an
identification of at least one classification in a classification system” (claim
34, limitation A), could include either words or numerical values, or both.
This is because the United States Patent Classification (USPC) system
in effect at the time of the filing of Appellant’s application (i.e., September
5, 2012),6 includes classes and subclasses that are identified by both words

6 Patent classification is a system for organizing all U.S. patent documents
and other technical documents into specific technology groupings based on
common subject matter. On January 1, 2013 (after the filing of the instant
application on appeal), the USPTO moved from using the United States
Patent Classification (USPC) system to the Cooperative Patent Classification
(CPC) system, a jointly developed system with the European Patent Office
(EPO). CPC has now been adopted by many countries throughout the
world.
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(the classification title/heading of the class/subclass) and numbers (the
class/subclass number). By way of example, Rivette is classified in a main
class/subclass of 707/2 (see Rivette, cover page field 52 (“U.S. Cl. . . .
707/2”), entitled textually as “Data processing: database and file
management or data structures”/“access augmentation or optimizing” (now
707/999.002); and Miller is classified in (i) a main class/subclass of 707/5
(see Miller, cover page field 52 (“U.S. Cl. . . . 707/5”), entitled textually as
“Data processing: database and file management or data structures”/“Query
augmenting and refining (e.g., inexact access) (now 707/999.005), and (ii)
secondary class/subclasses of 707/3, 4, and 7 (see Miller, cover page field 52
(“U.S. Cl. . . . 707/5; 707/3; 707/4; 707/7”), entitled textually as “Data
processing: database and file management or data structures”/“Query
processing (i.e., searching) (now 707/999.003), “Query formulation, input
preparation, or translation (now 707/999.004), and “Sorting” (now
707/999.007). Thus, a person of ordinary skill seeking a solution for a
particular problem, such as identifying classes and subclasses to search
intellectual property documents like patents, would have been led to
consider three distinct possibilities -- namely that the classification could be
identified either by (1) numerical class/subclass; (2) textual description,
definition, or title of the class/subclass; or (3) both numerical and textual
identifiers.
Thus, under the broadest reasonable interpretation of the recited term,
“identification of at least one classification in a classification system” (claim
34), one of ordinary skill in the art would not understand the identified
classification to be limited to just numerical values. Further, the “list of
elements which are significant search elements” generated by the thesaurus
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module recited in limitation B, and “the list of elements which are the
significant search elements as a field-of-search corresponding to the at least
one classification which was input [in limitation A]” recited in limitation C,
are not limited to numerical or textual values. As a result, we are not
persuaded by Appellant’s arguments that the combination of Rivette and
Miller fails to teach a combination of limitation A, B, and C. More
discussion of limitations B and C follows below.
Limitations B and C
Limitation B of claim 34 recites:
providing, in the computer processor device, intellectual
property documents which were returned as the source
grouping search results, to a thesaurus module to generate a list
of elements which are significant search elements found in the
source grouping search results

Claim 34, limitation B (emphases added).
And, Limitation C of claim 34 recites:
providing, in the computer processor device, the list of
elements which are the significant search elements as a field-of-
search corresponding to the at least one classification which
was input, for further use as terminology

Claim 34, limitation C (emphases added).
As already discussed, Appellant contends that Rivette nor Miller,
taken individually or in combination, teach or suggest the subject matter of
limitation A, at least when combined with the subject matter of limitations B
and C (see Appeal Br. 26–27; Reply Br. 11–12). Appellant does not directly
dispute the Examiner’s findings with regard to limitation A, e.g., that Rivette
teaches inputting a class identification. And, as discussed above, Rivette
teaches inputting search class as a field, which one of ordinary skill in the art
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would understand to include either numerical class/subclass or textual
description, such a class/subclass definition, heading, or title.
Appellant contends that Miller requires an input search term that is a
word, not a number (see Appeal Br. 27–28), and that Appellant’s invention
recited in claim 34 produces an unexpected result which “is the ‘significant
search elements’ which frequently occur in the documents, ‘as a field-of-
search corresponding to the at least one classification which was input’”
(Reply Br. 12). Appellant’s contentions regarding limitations B and C are
premised on Miller (i) being limited to textual inputs for search terms, and
thus, (ii) lacking a classification input that consists of a numerical value.
However, Appellant has not sufficiently shown, with evidence or argument,
that the combination of Rivette and Miller, taken with the knowledge of the
ordinarily skilled artisan concerning intellectual property, searches such as
patent searches of patent documents arranged by class and subclass, fails to
teach or suggest limitations B and/or C, or B and C in combination, or even
A, B, and C in combination.
In this light, Appellant’s arguments presented as to the shortcomings
in the combined teachings of Rivette and Miller are not persuasive inasmuch
as the Examiner relies on a properly made combination of Rivette and
Miller, that when taken with the knowledge of a person having ordinary skill
in the art of electronic searching of intellectual property documents, supports
the conclusion of obviousness of the subject matter of claim 34.
Motivation for Combination; Hindsight
Appellant argues (see Appeal Br. 33–35; Reply Br. 13–17) that the
Examiner has provided insufficient rationale for combining Rivette and
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Miller, or modifying Rivette, to teach or suggest inputting an enumerated
class as a search input term used in the thesaurus of Miller.
We find Appellant’s arguments do not take into account what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art and are therefore ineffective to rebut the Examiner’s prima
facie case of obviousness. Our reviewing Court instructs us that:
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981). Further, the artisan is not
compelled to blindly follow the teaching of one prior art reference over the
other without the exercise of independent judgment (see Lear Siegler, Inc. v.
Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984)). A reference may be
read for all that it teaches, including uses beyond its primary purpose. See
id. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418-21 (2007); see also
Beckman Instruments, Inc. v. LKB Pro-dukter AB, 892 F.2d 1547, 1551
(Fed. Cir. 1989). Any motivation, “whether articulated in the references
themselves or supported by evidence of the knowledge of a skilled
artisan, is sufficient.” Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364,
1370–71 (Fed Cir. 2017).
In addition, it is well settled that the motivation to combine references
need not be found in the references sought to be combined, but may be
found in any number of sources, including common knowledge, the prior art
as a whole, or the nature of the problem itself. DyStar Textilfarben GmbH &
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Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361 (Fed. Cir.
2006). When a combination of prior art references is cited for the purpose of
determining that a claim is unpatentable under 35 U.S.C. §103, a showing
that a skilled artisan would have been motivated to combine the references
in order to achieve the claimed combination is required.
Here, the Examiner has provided a factual basis and articulated
reasoning with a rational underpinning to support the conclusion of
obviousness with regard to claim 34 (see Final Act. 5–7; Ans. 5–7). See
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). We agree with the
Examiner (Final Act. 5–7; Ans. 5–7) that it would have been obvious to
modify Rivette’s method with Miller’s thesaurus in order “to provide the
statistical thesaurus to enable the improved expansion query term” as
suggested by Miller (Non-Final Act. 7 citing Miller, Abstract; see also Ans.
7, 22). We also agree with the Examiner that:
Because Miller teach[es] generat[ing] the expansion
query terms from the collection of records that is being
searched from an initial query, it is obvious that the search term
can be a field of search such as an class/subclass field and
performing the search and providing the search results to the
thesaurus to generate a list of expanded query terms. One
having ordinary skill in the art at the time of
applicant’s invention would have been motivated to combine
Miller with Rivette to provide the thesauri to
generate additional search terms to the user for improving
expansion query term (Abstract).

Ans. 22.
One of ordinary skill in the art of searching intellectual property
documents by classification and query expansion to rank relevant search
results would have found it useful to have as much information as possible
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on hand to perform the searching process, namely either numerical or textual
values as inputs/outputs, or both. Expanding a field-of-search using a
thesaurus as recited in claim 34 would have been obvious in order to provide
more appropriately targeted results based on relevancy, whether by
numerical class/subclass or by class/subclass definition. Appellant has not
persuasively shown that the combination of Rivette and Miller, which are
both drawn to the search of patent documents (which are known to have both
numerical and textual classification definitions), in view of the knowledge of
a person having ordinary skill in the art of electronic searching and search
formulation using a field-of-search based on such classification of patent
documents, fails to teach or suggest the combination of limitations A, B, and
C as set forth in claim 34.
Accordingly, we disagree with Appellant’s assertions that the
Examiner failed to articulate a sufficient rationale or reason to combine
Rivette and Miller, which both relate to intellectual property searching (see
Miller col. 7, ll. 33–34 (text searches using a thesaurus can be applied to “the
library PATENT (which contains the full text of U.S. patents)”); Rivette
Title; Abstract; Fig. 54; col. 28, ll. 1–13; col. 49, ll. 25–26; col. 60, ll. 25–
27). As a result, we find Appellant’s contentions (see Appeal Br. 21; see
also Reply Br. 11–12 (making similar arguments)) that the combination of
Rivette and Miller fails to teach or suggest the combination of limitations A,
B, and C, unpersuasive.
Appellant also contends (App. Br. 23, 31–33; Reply Br. 12–17) the
Examiner’s obviousness determination is hinged upon impermissible
hindsight. To support the allegations of hindsight, Appellant presents
statements that the combination of Rivette and Miller would (i) be
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inoperable (Appeal Br. 30–33; Reply Br. 11–16), and (ii) require more than
ordinary skill in the art, thus produce unexpected results (see Appeal Br. 23–
24, 33–35; Reply Br. 16–17).
Although there must be “a reason to combine prior art references”
(Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1367 (Fed.
Cir. 2012) (internal citations omitted)), and an obviousness determination
cannot rest upon impermissible hindsight reasoning, the our reviewing court
“flexibly seeks evidence from before the time of the invention in the form of
some teaching, suggestion, or even mere motivation (conceivably found
within the knowledge of an ordinarily skilled artisan) to make the variation
or combination” to guard against impermissible hindsight reasoning. Rolls-
Royce, PLC v. United Technologies Corp., 603 F.3d 1325, 1338 (Fed. Cir.
2010) (internal citations omitted). In the instant case before us, we find no
error in the Examiner’s findings as to the individual references applied
(Non-Final Act. 5–7; Ans. 5–7), as well as the Examiner’s findings and
reasoning articulated and set forth in the Answer in response to Appellant’s
arguments in the Appeal Brief (Ans. 21–22).
Appellant’s statements regarding any use of impermissible hindsight
are unsupported by fact or evidence. And, arguments of counsel cannot take
the place of factually supported objective evidence. See, e.g., In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974); Icon Health & Fitness, Inc. v. Strava,
2017 WL 744548 *5 (Fed. Cir. Feb. 27, 2017). Also, while not required to,
Appellant has not submitted evidence of secondary considerations.
Objective evidence of secondary considerations, which our reviewing court
guides, “operates as a beneficial check on hindsight” (Cheese Systems, Inc.
v. Tetra Pak Cheese and Powder Systems, Inc., 725 F.3d 1341, 1352 (Fed.
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Cir. 2013)), and “may also serve a guard against slipping into use of
hindsight.” Kahn, 441 F.3d at 986 (Fed. Cir. 2006) (quoting Graham v John
Deere Co., 383 U.S. 1, 36 (1966)). Therefore, we accord very little
probative value to Appellant’s statements that combining the teachings of
Rivette and Miller required more than ordinary skill in the art.
In view of the foregoing, Appellant’s contentions (App. Br. 23, 33–
35; Reply Br. 12–17) that it would not have been obvious to combine
Rivette and Miller because the Examiner’s reasoning involves hindsight are
unconvincing. Appellant has not adequately shown that the properly made
combination of Rivette and Miller teaches or suggests limitations A through
C, as set forth in claim 34. In view of the foregoing, Appellant’s contentions
(Appeal Br. 24–37; Reply Br. 11–17) that the Examiner erred in rejecting
claim 34 as being obvious over the combination of Rivette and Miller are
unpersuasive. Accordingly, we sustain the Examiner’s obviousness
rejection of representative claim 34, as well as the claims grouped therewith,
as being unpatentable over the combination of Rivette and Miller.

Representative Claim 35
With regard to representative independent claim 35, we adopt as our
own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken (Final Act. 7–9; Ans. 7–9), and (2) the
reasons set forth by the Examiner in the Examiner’s Answer (Ans. 23–24) in
response to Appellant’s Appeal Brief. We concur with the findings and
conclusions reached by the Examiner. We provide the following for
emphasis only.
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Appellant’s arguments (Appeal Br. 38; Reply Br. 18) that claim 35 is
patentable for the same reasons provided as to limitations A through C of
claim 34 are unpersuasive for the same reasons discussed above with respect
to claim 34, which recites limitations A through C that are commensurate
with limitations A through C of claim 35.
Limitation D
Appellant’s remaining argument as to claim 35 is that Miller fails to
teach or suggest limitation D of claim 35 (Appeal Br. 38–40; Reply Br. 18–
19). Limitation D of claim 35 recites:
wherein the computer processor device stores, as the
thesaurus module, the significant search elements found in the
source grouping search results in an electronic thesaurus
associated with the at least one classification, as part of an
electronic thesaurus library that stores plural thesauruses, each
thesaurus in the electronic thesaurus library having terminology
devoted to a technical area.

Claim 35, limitation D (emphases added).
The Examiner relies on Rivette as teaching classification as an input
as discussed above with regard to limitation A of claim 34, leading to the
return of search results of patent documents (see Non-Final Act. 7–8; Ans.
8), and Miller as teaching the remainder of limitation D of claim 35 (see
Non-Final Act. 8–9; Ans. 8–9). We agree with the Examiner that Miller
teaches or suggests (i) a thesaurus used for expanding search queries as in
limitation B (see Non-Final Act. 8; Ans. 8), and storing significant search
elements in an electronic thesaurus library as in limitation D (see Non-Final
Act. 9; Ans. 9).
The Examiner finds and reasons, and we agree, that:
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Because Miller teach generate the expansion query terms from
the collection of records that is being searched from an initial
query, it is obvious that the search term can be a field of search
such as an class/subclass field and performing the search and
providing the search results to the thesaurus to generate a list of
expanded query terms. Thus, Miller discloses a thesaurus
module to generate a list of elements which are significant
search elements found in the source grouping search results and
providing … the list of elements which are the significant
search elements[] as a field-of-search corresponding to the at
least one classification which was input, for further use as
terminology claimed as element [B] and [C].

(Ans. 21–22). The Examiner also finds, and we agree, that “[o]ne having
ordinary skill in the art at the time of applicant’s invention would have been
motivated to combine Miller with Rivette to provide the statistical thesaurus
[of Miller] to enable the improved expansion query term (Miller,
[Abstract])” (Non-Final Act. 9; Ans. 9).
Thus, we conclude that one of ordinary skill in the art of searching
intellectual property documents by classification and query expansion to
rank relevant search results would have found it useful to have as much
information as possible on hand to perform the searching process, namely
either numerical or textual values as inputs/outputs, or both. Expanding a
field-of-search using a thesaurus as recited in claims 34 and 35 would have
been obvious in order to provide more appropriately targeted results based
on relevancy, whether by numerical class/subclass or by class/subclass
definition. Appellant has not persuasively shown that the combination of
Rivette and Miller, which are both drawn to the search of patent documents
(which are known to have both numerical and textual classification
definitions), in view of the knowledge of a person having ordinary skill in
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the art of electronic searching and search formulation using a field-of-search
based on such classification of patent documents, fails to teach or suggest
the combination of limitations A, B, and C as set forth in claim 34, and/or
the additional limitation D, drawn to an electronic thesaurus library, as set
forth in claim 35.
Appellant’s contentions (Appeal Br. 37–40; Reply Br. 18–19) that the
Examiner erred in rejecting claim 35 as being obvious over the combination
of Rivette and Miller, based primarily on Miller’s alleged failure to teach or
suggest limitation D, are unpersuasive. For all of the foregoing reasons,
Appellant has not adequately shown that the combination of Rivette and
Miller teaches or suggests limitation A–D, as set forth in claim 35.
Accordingly, we sustain the Examiner’s obviousness rejection of
representative claim 35, as well as the claims grouped therewith, as being
unpatentable over the combination of Rivette and Miller.

Summary
(1) As explained above, under the USPTO’s Revised Patent Eligibility
Guidance, based on the record before us, and informed by our governing
case law concerning 35 U.S.C. § 101, Appellant has not shown the Examiner
erred in rejecting representative claim 34, as well as claims 32, 35–38, 40,
42–46, 48, and 50–56 grouped therewith, as being directed to patent-
ineligible subject matter without significantly more, and we sustain the
rejection of claims 32, 34–38, 40, 42–46, 48, and 50–56 under 35 U.S.C.
§ 101.
(2) In addition, Appellant has not shown the Examiner erred in
rejecting claims 32, 34–38, 40, 42–46, 48, and 50–56 as being unpatentable
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under 35 U.S.C. § 103(a). In view of the foregoing, we sustain the
obviousness rejection of (a) representative claim 34, as well as claims 36,
37, 42, 44, 45, 50, 52, 53, and 55 grouped therewith; and (b) representative
claim 35, as well as claims 32, 38, 40, 43, 46, 51, 54, and 56 grouped
therewith, as being obvious over the combination of Rivette and Miller.

CONCLUSION
In summary:
For all of the reasons above, we hold as follows:

Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
32, 34–
38, 40,
42–46,
48, 50–
56
101 Eligibility 32, 34–38, 40,
42–46, 48, 50–
56

32, 34–
38, 40,
42–46,
48, 50–
56
103(a) Rivette, Miller 32, 34–38, 40,
42–46, 48, 50–
56

Overall
Outcome
32, 34–38, 40,
42–46, 48, 50–
56

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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). See
37 C.F.R. §§ 41.50(f), 41.52(b) (2013).

AFFIRMED