Monica Theresa. Mccann et al.Download PDFPatent Trials and Appeals BoardDec 2, 201912608679 - (D) (P.T.A.B. Dec. 2, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/608,679 10/29/2009 Monica Theresa McCann 170103-1200 6925 71247 7590 12/02/2019 Client 170101 c/o THOMAS HORSTEMEYER, LLP 3200 WINDY HILL RD SE SUITE 1600E ATLANTA, GA 30339 EXAMINER CAO, VINCENT M ART UNIT PAPER NUMBER 3688 NOTIFICATION DATE DELIVERY MODE 12/02/2019 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): docketing@thomashorstemeyer.com uspatents@tkhr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MONICA THERESA MCCANN, WILLIAM W. ALLOCCA, BRANDON R. I. CHANG, HENRY ROBERT NICKERSON, MARK S. GULBRANDSEN, DOUGLAS J. HERRINGTON, DILIP S. KUMAR, JAMES J. SHIMADA, and PAUL D. DEMARCO Appeal 2018-002643 Application 12/608,679 Technology Center 3600 BEFORE HUBERT C. LORIN, JOSEPH A. FISCHETTI, and AMEE A. SHAH, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 5–19, 21–26, and 28–33. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Amazon Technologies, Inc. Appeal Br. 2. Appeal 2018-002643 Application 12/608,679 2 CLAIMED SUBJECT MATTER The claimed subject matter relates to “implementing . . . many different coupons in association with the operation of a large online merchant” (Spec., para. 1). Claim 5, reproduced below, is illustrative of the claimed subject matter: 5. A method, comprising: maintaining a plurality of coupon campaigns in a computing device for a plurality of entities in association with an operation of an electronic commerce system employed to sell a plurality of items over a network, each of the coupon campaigns comprising at least one digital coupon to be applied to a purchase of at least one of the items; generating a network page in the electronic commerce system to be rendered on a client, the network page being generated in association with the operation of the electronic commerce system; determining a subset of the digital coupons to be included in the network page to present to a user based at least in part on information about the user and the content of the network page; determining a score for each of the digital coupons in the subset based at least in part on a plurality of factors by implementing a weighted summation of values, each of the values being derived from one at least one of the factors; and selecting a predefined number of the digital coupons to be included in the network page, wherein the predefined number of the digital coupons. REJECTION Claims 1, 5–19, 21–26, and 28–332 are rejected under 35 U.S.C. § 101 as being directed to judicially-excepted subject matter. 2 Appellant’s Appeal Brief indicates that claims 1, 5–19, 21–26, and 28–32 stand rejected. However, claim 33 was added during prosecution (“Response Appeal 2018-002643 Application 12/608,679 3 OPINION The Appellant argued these claims as a group. See Appeal Br. 5–24. We select claim 5 as the representative claim for this group, and the remaining claims 1, 6–19, 21–26, and 28–33 stand or fall with claim 5. 37 C.F.R. § 41.37(c)(1)(iv). Preliminary comment Our following analysis will comport with the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019), hereinafter “2019 Revised 101 Guidance”. Previous guidance such as the Office’s 2014 Interim Guidance on Patent Subject Matter Eligibility (cited at Appeal Br. 19) have been superseded by the 2019 Revised 101 Guidance, 84 Fed. Reg. at 51 (“Eligibility–related guidance issued prior to the Ninth Edition, R–08.2017, of the MPEP (published Jan. 2018) should not be relied upon.”) Introduction 35 U.S.C. § 101 provides that “[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.” In that regard, claim 5 covers a “process” and is, thus, statutory subject matter for which a patent may be obtained.3 This is not in dispute. to Non–Final Office Action of September 22, 2016,” filed Dec. 9, 2016) and is rejected. 3 This corresponds to Step 1 of the 2019 Revised 101 Guidance which requires determining whether “a claim is to a statutory category.” Id. at 53. See also sentence bridging pages 53 and 54 (“consider[ ] whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101 . . . .”). Appeal 2018-002643 Application 12/608,679 4 However, the § 101 provision “contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). In that regard, notwithstanding claim 5 covers statutory subject matter, the Examiner has raised a question of patent–eligibility on the ground that claim 5 is directed to an abstract idea. Alice identifies a two-step framework for determining whether claimed subject matter is directed to an abstract idea. Id. at 217. Alice step one – the “directed to” inquiry According to Alice step one, “[w]e must first determine whether the claims at issue are directed to a patent-ineligible concept.” Id. at 218 (emphasis added). The Examiner determined that claim 5 is directed to, inter alia, “the concept of selecting digital coupons for presentation to a user.” Final Act. 2. Appellant argues that the claim is not directed to an abstract idea but rather “directed to an improvement to the operation of computer by claiming approaches to distributing digital coupons in a more efficient manner by only identifying and selecting the most relevant digital coupons for individual users.” Appeal Br. 18. [Claim 5 is] instead . . . directed towards a specific technical approach to surfacing the most relevant digital coupons to individual customers. As recited in the independent claims, these steps include identifying a pool of digital coupons that are relevant to a user and the subject matter of a network page that is in the user’s browser, generating a weighted score for each coupon in the pool by summing values representing various Appeal 2018-002643 Application 12/608,679 5 factors, and presenting the set of highest scoring digital coupons to a user. Id. at 10 (repeated at 12, 14). Accordingly, there is a dispute over whether claim 5 is directed to an abstract idea. Specifically, is claim 5 directed to selecting digital coupons (Final Act. 2) or an improvement in computer operation (Appeal Br. 14, 18)? Claim Construction4 We consider the claim as a whole5 giving it the broadest reasonable construction6 as one of ordinary skill in the art would have interpreted it in light of the Specification7 at the time of filing. Claim 5 calls for a method comprising five steps: 4 “[T]he important inquiry for a § 101 analysis is to look to the claim.” Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013). “In Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012), the court observed that ‘claim construction is not an inviolable prerequisite to a validity determination under § 101.’ However, the threshold of § 101 must be crossed; an event often dependent on the scope and meaning of the claims.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1347–48 (Fed. Cir. 2015). 5 “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diamond v. Diehr, 450 U.S. 175, 188 (1981). 6 2019 Revised 101 Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation . . .” (emphasis added).). 7 “First, it is always important to look at the actual language of the claims. . . . Second, in considering the roles played by individual limitations, it is important to read the claims ‘in light of the specification.’” Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1387 (Fed. Cir. 2017) (J. Linn, dissenting in part and concurring in part), citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016), among others. Appeal 2018-002643 Application 12/608,679 6 1. “maintaining [information A] in a computing device for a plurality of entities in association with an operation of an electronic commerce system employed to sell a plurality of items over a network”; 2. “generating a network page in the electronic commerce system to be rendered on a client, the network page being generated in association with the operation of the electronic commerce system”; 3. “determining” [information B]; 4. “determining” [information C]; and, 5. “selecting” [information D]; where: A is “a plurality of coupon campaigns[,]” “each of the coupon campaigns comprising at least one digital coupon to be applied to a purchase of at least one of the items;” B is “a subset of the digital coupons to be included in the network page to present to a user based at least in part on information about the user and the content of the network page”; C is “a score for each of the digital coupons in the subset based at least in part on a plurality of factors by implementing a weighted summation of values, each of the values being derived from one at least one of the factors”; D is “a predefined number of the digital coupons to be included in the network page, wherein the predefined number of the digital coupons.” A, B, C, and D are types of information related to digital coupons. It should be noted that steps 3–5 are not attached to any device. They could be performed purely mentally. Appeal 2018-002643 Application 12/608,679 7 Putting it all together, the claim reasonably broadly covers a computer maintaining certain information, i.e., a plurality of coupon campaigns, in association with an operation of an electronic commerce system and generating a network page in the electronic commerce system to be rendered on a client, and determining and selecting other types of information related to digital coupons. The Specification describes a system for the implementation of coupons in a networked environment. Spec., para. 8. Merchants who sell products over the Internet may wish to offer coupons to consumers in association with the online sale of goods. A problem can be presented in that implementing the many different coupons in association with the operation of a large online merchant can be burdensome and labor intensive. In addition, it may be the case that large numbers of coupons may relate to specific customers. This makes it more difficult to determine which coupons to surface for specific customers. Spec., para. 1. Given the method as claimed as reasonably broadly construed above and in light of the Specification’s description of the invention as being related to the implementation of coupons in a networked environment, based on the record before us, we reasonably broadly construe claim 5 as being directed to a scheme for selecting digital coupons in a networked environment. The Abstract Idea8 8 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A determines “whether a claim is ‘directed to’ a judicial exception,” such as an abstract idea. Step 2A is two prong inquiry. Appeal 2018-002643 Application 12/608,679 8 Above, where we reproduce claim 5, we identify in italics the limitations we believe recite an abstract idea.9 Based on our claim construction analysis (above), we determine that the identified limitations describe a scheme for selecting digital coupons. Selecting information, albeit in this case “digital coupons,” is a “fundamental activity” that humans have performed for hundreds of years. Cf. Voter Verified, Inc. v. Election Systems & Software, LLC, 887 F.3d 1376 (Fed. Cir. 2018) (cited 2019 Revised 101 Guidance, 84 Fed. Reg. at n.13). It falls within the enumerated “[c]ertain methods of organizing human activity” as grouping of abstract ideas set forth in the 2019 Revised 101 Guidance.10 9 This corresponds to Prong One (a) of Step 2A of the 2019 Revised 101 Guidance. “To determine whether a claim recites an abstract idea in Prong One, examiners are now to: (a) Identify the specific limitation(s) in the claim under examination (individually or in combination) that the Examiner believes recites an abstract idea . . . .” 2019 Revised 101 Guidance, 84 Fed. Reg. at 54. 10 This corresponds to Prong One (“Evaluate Whether the Claim Recites a Judicial Exception”) (b) of Step 2A of the 2019 Revised 101 Guidance. “To determine whether a claim recites an abstract idea in Prong One, examiners are now to: . . . (b) determine whether the identified limitation(s) falls within the subject matter groupings of abstract ideas enumerated in Section I of the [2019 Revised 101 Guidance].” 2019 Revised 101 Guidance, 84 Fed. Reg. at 54. This case implicates subject matter grouping “(b) Certain methods of organizing human activity—fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions).” Id. at 52. Appeal 2018-002643 Application 12/608,679 9 Improvement In the Functioning of a Computer11 (Appellant’s Argument) The Examiner’s characterization of what the claim is directed to is the same as ours. We have reviewed the record and are unpersuaded as to error in the Examiner’s characterization of what claim 5 is directed to. A principle argument Appellant makes is that the claimed subject matter is directed to a specific technical approach to surfacing the most relevant digital coupons to individual customers. As recited in the independent claims, these steps include identifying a pool of digital coupons that are relevant to a user and the subject matter of a network page that is in the user’s browser, generating a weighted score for each coupon in the pool by summing values representing various factors, and presenting the set of highest scoring digital coupons to a user. Appeal Br. 10. This is not a persuasive argument. Claim 5 does not call for “identifying a pool of digital coupons that are relevant to a user and the subject matter of a network page that is in the 11 This corresponds to Prong Two (“If the Claim Recites a Judicial Exception, Evaluate Whether the Judicial Exception Is Integrated Into a Practical Application”) of Step 2A of the 2019 Revised 101 Guidance. “A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” 2019 Revised 101 Guidance, 84 Fed. Reg. at 54. One consideration, implicated here, that is “indicative that an additional element (or combination of elements)[] may have integrated the exception into a practical application” (id. at 55) is if “[a]n additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field” (id. at 55). Appeal 2018-002643 Application 12/608,679 10 user’s browser.” Id. Rather, claim 5 recites “determining a subset of the digital coupons to be included in the network page to present to a user based at least in part on information about the user and the content of the network page” (claim 5 (emphasis added)). The subset of digital coupons need not be relevant. Nor does claim 5 call for “presenting the set of highest scoring digital coupons to a user.” Appeal Br. 10. Claim 5 recites “determining a score for each of the digital coupons in the subset” and “selecting a predefined number of the digital coupons to be included in the network page.” The claimed method stops there. It does not further “present[] the set of highest scoring digital coupons to a user.” Appeal Br. 10. Accordingly, the “technical approach” argument (see Appeal Br. 7– 15) is unpersuasive as to error in the Examiner’s determination under Alice step one because it is not commensurate in scope with what is claimed. “Many of appellant’s arguments fail from the outset because, . . . they are not based on limitations appearing in the claims. . . .” In re Self, 671 F.2d 1344, 1348 (CCPA 1982). We have carefully reviewed the Specification but can find no disclosure associating the recited “determining” and “selecting” steps with any specific asserted improvement in computer capabilities, notwithstanding claim 5 does not attach a device to said steps (i.e., as claimed, they could be performed purely mentally). The first two recited steps involve “a computing device for a plurality of entities in association with an operation of an electronic commerce system employed to sell a plurality of items over a network” and “a network page in the electronic commerce system to be rendered on a client, the network page being generated in association with Appeal 2018-002643 Application 12/608,679 11 the operation of the electronic commerce system.” But even there, no specific asserted improvement in computer capabilities is indicated. Rather than being directed to any specific asserted improvement in computer capabilities, the record supports the view that the claimed subject matter is directed to selecting digital coupons using a generic computer as a tool. See e.g., Specification, para. 64 (“general purpose hardware”). The claim provides no additional structural details12 that would distinguish any of the recited devices from those that were well known at the time the application was filed. With respect to the first two steps that actually mention a device, all that they require is a “computing device” to maintain a plurality of coupons and an “electronic commerce system” to generate a network page. Maintaining information and generating webpages are basic computer functions. The Specification attributes no special meaning to these operations. In our view, consistent with the Specification, maintaining information and generating webpages are common processing functions that one of ordinary skill in the art at the time of the invention would have known generic computers were capable of performing and would have associated with generic computers. Cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015): Beyond the abstract idea of offer-based price optimization, the claims merely recite “well-understood, routine conventional activit[ies],” either by requiring conventional computer 12 Cf. Move, Inc. v. Real Estate Alliance Ltd., 721 Fed. App’x 950, 954 (Fed. Cir. 2018) (Nonprecedential). “Claim 1 is aspirational in nature and devoid of any implementation details or technical description that would permit us to conclude that the claim as a whole is directed to something other than the abstract idea identified by the district court.” Appeal 2018-002643 Application 12/608,679 12 activities or routine data-gathering steps. Alice, [573 U.S. at 224–25] (quoting Mayo, [566 U.S. at 71–72] (alterations in original). . . . For example, claim 1 recites “sending a first set of electronic messages over a network to devices,” the devices being “programmed to communicate,” storing test results in a “machine-readable medium,” and “using a computerized system . . . to automatically determine” an estimated outcome and setting a price. Just as in Alice, “all of these computer functions are ‘well-understood, routine, conventional activit[ies]’ previously known to the industry.” Alice, [573 U.S. at 224] (quoting Mayo, [566 U.S. at 71–72] (alterations in original); see also buySAFE[, Inc. v. Google, Inc.], 765 F.3d [1350,] 1355 [(Fed. Cir. 2014)] (“That a computer receives and sends the information over a network—with no further specification—is not even arguably inventive.”). At best, the claimed “computing device” and “electronic commerce system” distinguish over other generic computers known at the time the application was filed in the type of electronic information being maintained and potentially included on the webpage — that is, “digital coupons”. But that alone is not patentably consequential. This is so because “[c]laim limitations directed to the content of information and lacking a requisite functional relationship are not entitled to patentable weight because such information is not patent eligible subject matter under 35 U.S.C. § 101.” Praxair Distribution, Inc. v. Mallinckrodt Hospital Prods. IP Ltd., 890 F.3d 1024, 1032 (Fed. Cir. 2018). Accordingly, within the meaning of the 2019 Revised 101 Guidance, we find there is no integration into a practical application. We have considered Appellant’s other arguments challenging the Examiner’s determination under step one of the Alice framework and find them unpersuasive. For the foregoing reasons, the record supports the Examiner’s determination that claim 5 is directed to an abstract idea. Appeal 2018-002643 Application 12/608,679 13 Alice step two – Does the Claim Provide an Inventive Concept?13 Step two is “a search for an ‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 73). In that regard, the Examiner determined inter alia that the: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed invention is directed towards the execution of the judicial exception by a generic computer system. As currently claimed, the claimed systems comprise a computing device which stores information and executes a process. As per paragraph 0059-0062 of the originally filed [S]pecification, the computer system is comprised of generic computer components. These generic components further perform routine and conventional functions such as storing electronic data, retrieving electronic data, and performing repetitive calculations (generating scores/numeric values). The use of generic computer components to store, retrieve, and transmit information through a network does not impose any meaningful limit on the computer implementation of the abstract idea. Thus, taken alone, the additional elements do no amount to significantly more than the above-identified judicial exceptions. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually, there is no indication that the combination of elements improves the functioning of a computer or 13 This corresponds to Step 2B of the 2019 Revised 101 Guidance (see 84 Fed. Reg. at 56). “[I]f a claim has been determined to be directed to a judicial exception under revised Step 2A, examiners should then evaluate the additional elements individually and in combination under Step 2B to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself).” Appeal 2018-002643 Application 12/608,679 14 improves any other technology as the process executed by the computer is directed towards the access of stored commercial information based on business algorithms and information. Therefore the claimed invention is directed towards a judicial exception without significantly more. Final Act. 3–4. We agree. We addressed this matter of whether there were any purported specific asserted improvements in computer capabilities in our analysis above under step one of the Alice framework. This is consistent with the case law. See Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1347 (Fed. Cir. 2018) (“We have several times held claims to pass muster under Alice step one when sufficiently focused on such improvements.”). Such an argument can also challenge a determination under step two of the Alice framework. See buySAFE, 765 F.3d at 1354–55. “[R]ecent Federal Circuit jurisprudence has indicated that eligible subject matter can often be identified either at the first or the second step of the Alice/Mayo [framework].” 2019 Revised 101 Guidance, 84 Fed. Reg. at 53; see also id. at 53 n.17. Be that as it may, we are unpersuaded that claim 5 presents an element or combination of elements indicative of a specific asserted improvement in computer capabilities, thereby rendering the claimed subject matter sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the creating ordered lists abstract idea itself. We have reviewed the Specification and, as explained above, we can find no suggestion of any improvements to the system as a result of performing the recited steps as broadly as they are recited. We cited the Specification in our earlier discussion. It is intrinsic evidence that the claimed devices are conventional. In doing so, we have followed “Changes in Examination Procedure Pertaining to Subject Matter Appeal 2018-002643 Application 12/608,679 15 Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP Inc.[, 881 F.3d 1360 (Fed. Cir. 2018)],” USPTO Memorandum, Robert W. Bahr, Deputy Commissioner For Patent Examination Policy, April 19, 2018 (the “Berkheimer Memo”)). The court in Berkheimer held that “[t]he patent eligibility inquiry may contain underlying issues of fact.” Berkheimer, 881 F.3d at 1365 (quoting Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016) (“The § 101 inquiry ‘may contain underlying factual issues.”’)). But the court also held that “[w]hen there is no genuine issue of material fact regarding whether the claim element or claimed combination is well-understood, routine, [and] conventional to a skilled artisan in the relevant field, this issue can be decided on summary judgment as a matter of law.” Id. at 1368 (emphasis added). This qualification has been subsequently reiterated. If there is a genuine dispute of material fact, Rule 56 requires that summary judgment be denied. In Berkheimer, there was such a genuine dispute for claims 4–7, but not for claims 1–3 and 9. . . . [I]n accordance with Alice, we have repeatedly recognized the absence of a genuine dispute as to eligibility for the many claims that have been defended as involving an inventive concept based merely on the idea of using existing computers or the Internet to carry out conventional processes, with no alteration of computer functionality. Berkheimer v. HP Inc., 890 F.3d 1369, 1371–73 (Fed. Cir. 2018) (Order, On Petition for rehearing en banc, May 31, 2018); see also Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1368 (Fed. Cir. 2018) (“A factual allegation or dispute should not automatically take the determination out of the court’s hands; rather, there needs to be justification for why Appeal 2018-002643 Application 12/608,679 16 additional evidence must be considered—the default being a legal determination.”). Here, the Specification indisputably shows the claimed devices were conventional at the time of filing. Accordingly, no genuine issue of material fact exists as to the well–understood, routine, or conventional nature of the claimed “computing device” and “electronic commerce system” as claimed. No other persuasive arguments having been presented, we conclude that no error has been committed in the determination under Alice step two that claim 5 does not include an element or combination of elements circumscribing the patent-ineligible concept it is directed to so as to transform the concept into an inventive application. We have considered all of the Appellant’s arguments (including those made in the Reply Brief) and find them unpersuasive. Accordingly, because we are not persuaded as to error in the determinations that representative claim 5, and claims 1, 6–19, 21–26, and 28–33 which stand or fall with claim 5, are directed to an abstract idea and do not present an “inventive concept,” we sustain the Examiner’s conclusion that they are directed to patent-ineligible subject matter for being judicially- excepted from 35 U.S.C. § 101. Cf. LendingTree, LLC v. Zillow, Inc., 656 Fed. App’x 991, 997 (Fed. Cir. 2016) (“We have considered all of LendingTree’s remaining arguments and have found them unpersuasive. Accordingly, because the asserted claims of the patents in suit are directed to an abstract idea and do not present an ‘inventive concept,’ we hold that they are directed to ineligible subject matter under 35 U.S.C. § 101.”); see, e.g., OIP Techs., 788 F.3d at 1364; FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). Appeal 2018-002643 Application 12/608,679 17 CONCLUSION The decision of the Examiner to reject claims 1, 5–19, 21–26, and 28– 33 is affirmed. More specifically: The rejection of claims 1, 5–19, 21–26, and 28–33 under 35 U.S.C. § 101 as being directed to judicially-excepted subject matter is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5–19, 21– 26, 28–33 101 Eligibility 1, 5–19, 21– 26, 28–33 Overall Outcome 1, 5–19, 21– 26, 28–33 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation