Ronnie Jack. GarmonDownload PDFPatent Trials and Appeals BoardJan 3, 202012567973 - (D) (P.T.A.B. Jan. 3, 2020) 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. 12/567,973 09/28/2009 Ronnie Jack Garmon 60735 5434 27975 7590 01/03/2020 ADD&G - 27975 1401 CITRUS CENTER 255 SOUTH ORANGE AVENUE P.O. BOX 3791 ORLANDO, FL 32802-3791 EXAMINER HENRY, RODNEY M ART UNIT PAPER NUMBER 3681 NOTIFICATION DATE DELIVERY MODE 01/03/2020 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): creganoa@allendyer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RONNIE JACK GARMON ____________________ Appeal 2018-002642 Application 12/567,9731 Technology Center 3600 ____________________ Before ROBERT E. NAPPI, JOHNNY A. KUMAR, and JOHN P. PINKERTON, Administrative Patent Judges. PINKERTON, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134 from the Examiner’s Non- Final Rejection of claims 1, 5, 6, 7, 10, 14, 16, and 19–25, which are all of the claims pending in this application. Claims 2–4, 8, 9, 11–13, 15, 17, and 18 are canceled. 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. Appellant identifies the real party in interest as Inmar Analytics, Inc. Appeal Br. 1. Appeal 2018-002642 Application 12/567,973 2 STATEMENT OF THE CASE Introduction Appellant generally describes the disclosed and claimed invention as follows: Methods and systems for customer performance scoring are provided. In one embodiment a method and system for customer performance scoring can include receiving user identification information. Based at least in part on the user identification information, a customer performance score can be determined. Based at least in part on the customer performance score, an offer to extend to an online user can be determined. Abstract. 2 Claims 1, 7, 14, 16, and 20 are independent claims. Claim 1 is representative of the subject matter on appeal and reads as follows (with paragraph letters and numbers added): 1. A method for providing an offer, comprising: (a) receiving, by a computing device comprising a memory and a processor coupled thereto, user identification information from a user device associated with a user; (b) determining, using the computing device, a persistence factor based upon the user identification information, the persistence factor being determined by at least (1) determining a plurality of different persistence attributes relating to a level of engagement between a user and a network site based upon aggregated user identification information associated with the user and stored in 2 Our Decision refers to the Non-Final Office Action mailed May 5, 2017 (“Non-Final Act.”), Appellant’s Appeal Brief filed June 7, 2017 (“Appeal Br.”) and Reply Brief filed Jan. 17, 2018 (“Reply Br.”), the Examiner’s Answer mailed Dec. 21, 2017 (“Ans.”), and the original Specification filed Sept. 28, 2009 (“Spec.”). Appeal 2018-002642 Application 12/567,973 3 a database, and relating to non-monetary transactions with the network site, (2) normalizing to a common scale the plurality of different persistence attributes to generate a plurality of different persistence attribute ordinal values, (3) weighting each of the plurality of different persistence attribute ordinal values relative to others of the plurality of different persistence attribute ordinal values, and (4) summing the plurality of weighted different persistence attribute ordinal values to generate the persistence factor; (c) determining, using the computing device, a value factor based upon the user identification information, the value factor being determined by at least (1) determining a plurality of different value attributes relating to interactions between the user and the network site based upon the aggregated user identification information, (2) normalizing to the common scale the plurality of different value attributes to generate a plurality of different value attribute ordinal values, (3) weighting each of the plurality of different value attribute ordinal values relative to others of the plurality of different value attribute ordinal values, and (4) summing the plurality of weighted different value attribute ordinal values to generate the value factor; (d) generating, using the computing device a customer performance score based upon the persistence factor and the value factor, the customer performance score representing a transformation of disparate user data to distinguish one user from another user; (e) determining, using the computing device, the offer to extend to the user based upon the customer performance score; and (f) transmitting the offer to the user device. Appeal 2018-002642 Application 12/567,973 4 Claims App. 29–30. Rejection on Appeal3 Claims 1, 5, 6, 7, 10, 14, 16, and 19–25 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. Ans. 2–8. ANALYSIS A. Applicable Law Section 101 of the Patent Act provides that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the Supreme Court has long recognized an implicit exception to this section: “Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). To determine whether a claim falls within one of these excluded categories, the Court has set out a two-part framework. The framework requires us first to consider whether the claim is “directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then examine “the elements of [the] claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)). That is, we examine the claim for an “inventive concept,” “an element or combination of elements that is ‘sufficient to ensure that the patent in 3 Although the Examiner rejected claims 1, 5, 6, 7, 10, 14, 16, 19, and 21 under 35 U.S.C. 102(b), and claims 20 and 22–25 under 35 U.S.C. 103(a), the Examiner has withdrawn these rejections. Ans. 3. Appeal 2018-002642 Application 12/567,973 5 practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–73). The Patent Office has issued guidance about this framework. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).4 Under the Revised Guidance, to decide whether a claim is directed to an abstract idea, we evaluate whether the claim (1) recites one of the abstract ideas listed in the Revised Guidance (“Prong One”) and (2) fails to integrate the recited abstract idea into a practical application (“Prong Two”). See Revised Guidance, 84 Fed. Reg. at 51, 54. If the claim is directed to an abstract idea, as noted above, we then determine whether the claim has an inventive concept. The Revised Guidance explains that when making this determination, we should consider whether the additional claim elements add “a specific limitation or combination of limitations that are not well-understood, routine, 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.” Revised Guidance, 84 Fed. Reg. at 56. With these principles in mind, we first analyze whether claim 1 is directed to an abstract idea.5 4 See also USPTO, October 2019 Patent Eligibility Guidance Update (Oct. 17, 2019), https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p df. 5 Appellant argues independent claims 1, 7, 14, 16, and 20 together. Appeal Br. 20–26. Thus, we decide the appeal based on representative claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2018-002642 Application 12/567,973 6 B. Abstract Idea The Examiner determines that the recited steps of claim 1, excluding the “computing device,” are directed to “an abstract idea of collecting and scoring user online behaviors and using an aggregated score to select targeted offers for the user.” Non-Final Act. 3–5; see also Ans. 3 (determining “claims are directed to an abstract idea of scoring customers and targeting customers according to their scores”). The Examiner also determines that claim 1 is similar to the claims found by the courts to be directed to abstract ideas in Affinity Labs of Texas, LLC v. Amazon.com, 838 F.3d 1266 (Fed. Cir. 2016) and Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Non-Final Act. 5; Ans. 3. Appellant contends that the Examiner mischaracterized claim 1 as being directed to an abstract idea because the function of the method of claim 1 cannot be performed mentally, and is more than an abstract idea. Appeal Br. 20. In particular, Appellant argues that claim 1 is directed to a technological improvement “as it relates to providing an offer based upon a customer performance score that is representative of a transformation of disparate or different user data to distinguish one user from another user.” Id.; Reply Br. 2–4. Appellant argues that the Examiner mischaracterizes Affinity Labs because the court found the claims directed to delivering user- selected media content to portable devices and not targeted advertising. Appeal Br. 20; Reply Br. 3–4. According to Appellant, the only way that Appellant’s claims could be determined to be directed to an abstract idea “would be to improperly distill [them] to merely ‘processing data,’” but the claims are directed to a technological improvement to system functionality. Appeal Br. 21. In particular, Appellant argues: Appeal 2018-002642 Application 12/567,973 7 the claims are directed to the improvement in the functionality of the overall system for or method of providing an offer based upon a customer performance score that is representative of a transformation of disparate or different user data to distinguish one user from another user (e.g., using less memory and reducing processing time, and increasing comprehensibility of the relatively large amount of data). Thus, the claims are directed to an improvement in computer or system functionality instead of to economic tasks in which a computer is used in its ordinary capacity. In other words, the claims are directed to specific improvement to operation of the computers and methods of operations and are thus not directed to an abstract idea. Id. at 22; see also Reply Br. 5. Appellant further argues that the Board’s decision in Barous supports the claims here not being directed to an abstract idea. Appeal Br. 22–24. In that regard, Appellant argues that like the Examiner here, in Barous, the original Examiner improperly broadly defined the abstract idea as being directed to “distributing coupons by a retailer for the purpose of enhancing revenue,” but the Board determined it was not directed to such an abstract idea. Id. at 24. Appellant further argues that “[t]he present claims include further details and recitations (i.e., are more narrow) than the claims from the Barous application.” Reply Br. 4. Moreover, Appellant contends that the claims “do not preempt any [] contended abstract idea.” Id. at 5. 1. USPTO Step 2A, Prong One Beginning with prong one of the first step of Alice, we must determine “whether the claims at issue are directed to one of those patent-ineligible concepts,” including the abstract ideas enumerated in the Revised Guidance. Alice, 573 U.S. at 217. One of the subject matter groupings identified as an abstract idea in the Revised Guidance is “mental processes—concepts Appeal 2018-002642 Application 12/567,973 8 performed in the human mind (including an observation, evaluation, judgment, opinion).” See Revised Guidance, 84 Fed. Reg. at 52, 53. The Revised Guidance explains that “mental processes” include acts that people can perform in their minds or using pen and paper, even if the claim recites that a generic computer component performs the acts. See Revised Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation, covers performance in the mind but for the recitation of generic computer components, then it is still in the mental processes category unless the claim cannot practically be performed in the mind.”) The Revised Guidance also identifies the subject matter grouping of “mathematical concepts—mathematical relationships, mathematical formulas or equations, mathematical calculations”—as an abstract idea. See Revised Guidance, 84 Fed. Reg. at 52. Here, apart from “a computing device comprising a memory and a processor coupled thereto” and “a database” recited in limitations (a), (b), (b)(i), (d), and (e), we determine that the limitations of claim 1 recite the abstract ideas of “mental processes” and “mathematical concepts.” Claim 1 recites the steps of: (a) “receiving . . . user identification information,” (b) “determining . . . a persistence factor based on the user identification information, the persistence factor being determined by at least (i) determining a plurality of different persistence attributes relating to a level of engagement between a user and a network site . . . and relating to non-monetary transactions with the network site,” (ii) “normalizing to a common scale the plurality of different persistence attributes to Appeal 2018-002642 Application 12/567,973 9 generate a plurality of different persistence attribute ordinal values,” (iii) “weighting each of the plurality of different persistence attribute ordinal values,” and (iv) “summing the plurality of weighted different persistence attribute ordinal values to generate the persistence factor,” (c) “determining . . . a value factor based upon the user identification information, the value factor being determined by at least” (i) “determining a plurality of different value attributes relating to interactions between the user and the network site,” (ii) “normalizing to the common scale the plurality of different value attributes to generate a plurality of different value attribute ordinal values,” (iii) “weighting each of the plurality of different value attribute ordinal values,” and (iv) “summing the plurality of weighted different value attribute ordinal values to generate the value factor,” (d) “generating . . . a customer performance score based upon the persistence factor and the value factor, the customer performance score representing a transformation of disparate user data to distinguish one user from another user,” (e) “determining . . . the offer to extend to the user based upon the customer performance score,” and (f) “transmitting the offer.” The functions performed in limitations (a)–(e) of claim 1 are “mental processes” and “mathematical concepts.” Regarding “mental processes,” the function of “receiving . . . user identification information,” as recited in limitation (a), can be performed in a person’s mind by obtaining the Appeal 2018-002642 Application 12/567,973 10 information through any media and using pen and paper to record the information. The functions of “determining a plurality of different persistence attributes,” as recited in limitation (b)(i), and “determining a plurality of different value attributes,” as recited in limitation (c)(i), can also be performed by people in the human mind or using pen and paper. In that regard, the Specification states that “[a]ny number of rules, criteria, filters, or logic can be used to determine value attributes and persistence attributes from a particular set of user information,” as shown, for example in Figure 7. Spec. ¶ 41 (emphasis added). The Specification explains that “value attributes” can include, for example, purchase amount, number of purchases, and number of items purchased. Id. ¶¶ 42–50. The Specification also explains that “persistence attributes” can include, for example, the number of elapsed days since last log on, the number of times a member logs on over the observed time period, and the number of pages a member has viewed over the observed period. Id. ¶¶ 51–61. The function of “normalizing,” as recited in limitations (b)(ii) and (c)(ii) can be performed by a person in his or her mind or using pen and paper because “normalizing” is defined as, “[t]o assign a beginning value to a variable.” See Microsoft Computer Dictionary p. 273 (5th ed. 2002). Moreover, the function of “determining . . . the offer to extend to the user based upon the customer performance score,” as recited in limitation (e), can be performed in the human mind or using pen and paper because the Specification explains that this determination can include “comparing the customer performance score against a plurality of predetermined scores and corresponding offers; and upon matching at least one of the plurality of predetermined scores, selecting at least one of the plurality of corresponding Appeal 2018-002642 Application 12/567,973 11 offers.” Spec. ¶ 78. Thus, limitations (a), (b)(i), (b)(ii), (c)(i), (c)(ii), and (e) of claim 1 are directed to the abstract idea of “mental processes.” Regarding “mathematical concepts,” limitation (b)(ii) further recites “generate a plurality of different persistence attribute ordinal values,” and limitation (c)(ii) further recites “generate a plurality of different value attribute ordinal values.” The Specification describes, for example, determining the “attribute ordinal value” using a mathematical calculation “by subtracting the minimum value in the attribute domain range from the attribute observed value and dividing the difference by the difference in the maximum and minimum attribute domain range values” and multiplying the result “by about 10 to obtain an ordinal value between about 0 and about 10.” Id. ¶ 92. The Specification also describes using a mathematical calculation to perform the function of “weighting each of the plurality of different persistence attribute ordinal values,” as recited in limitation (b)(iii), and the function of “weighting each of the plurality of different value attribute ordinal values,” as recited in limitation (c)(iii). See, e.g., Spec. ¶ 93; Fig. 6. The Specification further describes performing a mathematical calculation to perform the function of “generating . . . a customer performance score based upon the persistence factor and the value factor,” as recited in limitation (d). Id. ¶ 97. In addition, the function of “determining . . . a persistence factor,” as recited in limitation (b), results from “summing the plurality of weighted different persistence attribute ordinal values to generate the persistence factor,” as recited in limitation (b)(iv). Similarly, the function of “determining . . . a value factor,” as recited in limitation (c), results from Appeal 2018-002642 Application 12/567,973 12 “summing the plurality of weighted different value attribute ordinal values to generate the value factor,” as recited in limitation (c)(iv). Thus, because “summing,” as recited in limitations (b)(iv) and (c)(iv), is a mathematical calculation, the functions of “determining . . . a persistence factor” and “determining . . . a value factor,” as recited in limitations (b) and (c), respectively, are also mathematical calculations because they result from the “summing” procedures. Thus, limitations (b), (b)(ii) (“generate . . . attribute ordinal values”), (b)(iii), b(iv), (c), (c)(ii) (“generate . . . value attribute ordinal values”), (c)(iii), (c)(iv), and (d) of claim 1 are directed to the abstract idea of “mathematical concepts.” With respect to limitation (f), which recites “transmitting the offer,” we determine it merely adds insignificant extra-solution activity to the judicial exception. See Revised Guidance, 84 Fed. Reg. at 55 n.31. Claim 1 is, therefore, directed to a combination of features that we conclude are similar or analogous to claims in other cases that courts have found are directed to an abstract idea. The Federal Circuit has found claims reciting collecting and manipulating data in a certain way, and mathematical relationships and calculations, to be directed to abstract ideas. See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (identifying the abstract idea of collecting, displaying, and manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing information by steps people go through in their minds, or by mathematical algorithms, and presenting the results of collecting and analyzing information, without more, as matters within the realm of abstract ideas); Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d Appeal 2018-002642 Application 12/567,973 13 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.”); see also SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (“As many cases make clear, even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” (quoting Elec. Power Grp., 830 F.3d at 1353, 1355 (citing cases)). Based on the analysis above, we determine that claim 1 recites the abstract ideas of “mental processes” and “mathematical concepts.” In that regard, we note that merely combining several abstract ideas does not render the combination any less abstract. RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea . . . to another abstract idea . . . does not render the claim non-abstract.”); see also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir. 2016) (determining the pending claims were directed to a combination of abstract ideas). We are not persuaded by Appellant’s arguments that the Examiner erred. First, for the reasons discussed supra, contrary to Appellant’s arguments, we determine that the Examiner did not mischaracterize claim 1 as being directed to an abstract idea. Second, we do not agree with Appellant that claim 1 is directed to a technological improvement “as it relates to providing an offer based upon a customer performance score that is representative of a transformation of disparate or different user data to distinguish one user from another user.” Appeal Br. 20; Reply Br. 2–4. As discussed further infra (with respect to Step 2A, Prong Two), claim 1 does Appeal 2018-002642 Application 12/567,973 14 not recite any technological enhancement or improvement to the computer or computer technology. Instead, claim 1 merely describes an improved process for receiving and manipulating user identification information into a customer score that is used to identify an offer to extend to the user. See Spec. ¶ 114. Third, Appellant’s reliance on the PTAB’s non-precedential decision in Ex parte Barous, Appeal No. 2016-003320 (PTAB August 1, 2016), is unpersuasive. In Barous, the PTAB held that the claims comprised “significantly more” because the claims “are not directed to the ‘abstract idea’ as defined by the Examiner, which is quite broad, but to much more limited systems and methods.” Barous at 8. The claims in Barous included an unconventional use of a point of sale register, tied the limitations to a particular machine, and stated how the machine was configured. See Barous at 7. Thus, Barous is distinguishable from this case because, contrary to Appellant’s argument (see Reply Br. 4), the claims here do not recite, and are not limited by, any comparable specific technical limitations. In any event, we are not bound by a non-precedential decision of the PTAB. Fourth, we are not persuaded by Appellant’s argument that the claims “do not preempt any [] contended abstract idea.” See Reply Br. 4. “While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. . . . Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015) (“that the Appeal 2018-002642 Application 12/567,973 15 claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract”). Accordingly, we conclude that claim 1, as a whole, is directed to mental processes and mathematical concepts, two of the abstract idea groupings in the Revised Guidance. See Revised Guidance, 84 Fed. Reg. at 52. Thus, we also conclude that claim 1 is directed to an abstract idea. 2. USPTO Step 2A, Prong Two Because we determine that claim 1 recites an abstract idea, we turn to prong two of the first step of the Alice analysis and consider whether claim 1 integrates this abstract idea into a practical application. See Revised Guidance, 84 Fed. Reg. at 51. In doing so, we consider whether there are any additional elements beyond the abstract idea that, individually or in combination, “integrate the [abstract idea] into a practical application, using one or more of the considerations laid out by the Supreme Court and the Federal Circuit.”6 Revised Guidance, 84 Fed. Reg. at 54–55. The Examiner finds that the Specification “does not explicitly identify steps to improve another technology or technical field,” but “merely describes generic computer technology.” Non-Final Act. 6 (citing Figs. 4 and 7, and associated text). The Examiner also finds that the steps of the claims “do not improve the functioning of the computer itself.” Id. The Examiner further finds claim 1 recites “the additional limitations of a 6 We acknowledge that some of these considerations may be properly evaluated under step 2 of Alice (step 2B of the Revised Guidance). Solely for purposes of maintaining consistent treatment within the Office, we evaluate it under step 1 of Alice (step 2A, prong two, of the Revised Guidance). See Revised Guidance, 84 Fed. Reg. at 54–55. Appeal 2018-002642 Application 12/567,973 16 ‘computing device,’” and that the “use of generic computer components to perform electronic recordkeeping and transmitting data does not impose any meaningful limit on the computer implementation of the abstract idea.” Id.; Ans. 3–4. The Examiner further finds that the additional limitations, taken alone and as an ordered combination, do not amount to significantly more. Non-Final Act. 6–7. Appellant argues that, “if the claims can somehow be determined to be directed to an abstract idea, the claims amount to significantly more than that abstract idea.” Appeal Br. 24. In particular, Appellant argues that the claim elements, and their functions, amount to significantly more than any abstract idea by reciting improvements to the technology “that are beyond the conventional operations of a generic computer.” Id. at 24–25. According to Appellant, the claims recite significantly more because they recite, at least, determining the plurality of different persistence attributes, normalizing to a common scale the plurality of different persistence attributes, weighting each of the different persistence attributes, and summing the weighted different persistence attributes to determine the persistence factor (and performing similar steps for the value factor) and ultimately determining the customer performance score based upon which an offer is determined, are not conventional operations for a generic computer and are not conventional operations for processing or providing offers. Id. at 25. Citing Bascom,7 Appellant further argues that “[a]n inventive concept, i.e., significantly more than any abstract idea, can be found in the non- 7 BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). Appeal 2018-002642 Application 12/567,973 17 conventional and non-generic arrangement of known, conventional pieces,” and the present application sets forth such an “arrangement of components to process or provide an offer.” Id. at 25–26; Reply Br. 5. Moreover, Appellant argues that similar to Barous, the Examiner “failed to consider all the claim limitations and has failed to provide evidence to support the conclusion that the present claims lack specific limitations other than what is well understood, routine and conventional in the field.” Appeal Br. 26. We are not persuaded by Appellant’s arguments. First, we are not persuaded by Appellant’s arguments that claim 1 is “directed to a technological improvement to system functionality” and that the claim elements recite “improvements to the technology . . . that are beyond the conventional operations of a generic computer.” See Appeal Br. 20, 24–25. In that regard, Appellant has failed to demonstrate that claim 1 recites or requires any asserted inventive programming, any specialized computer hardware or other inventive computer components, i.e., a particular machine, or that the claimed invention is performed using other than generic computer components. Nor has Appellant identified any disclosure in the Specification of any inventive techniques or specialized computer components to perform the recited functions of claim 1. The Examiner finds, and we agree, that Appellant “has not shown how the steps of the claimed invention ha[ve] been tied to specific technology that improves the performance, throughput, or efficiency.” Non-Final Act. 5. Thus, Appellant’s arguments that claim 1 is directed to a technological improvement are not persuasive because they are conclusory and unsupported by the claim, the Specification or other persuasive evidence or technical reasoning. Appeal 2018-002642 Application 12/567,973 18 Second, we do not agree with Appellant’s arguments that claim 1 is analogous to the claims in Bascom. Initially, we remind Appellant that Bascom did not find claims eligible on the substance, but rather because Appellees did not provide sufficient evidence to support a Rule 12(b)(6) motion to dismiss in which facts are presumed in the non-movant’s favor. The key fact in Bascom was the presence of a structural change in “installation of a filtering tool at a specific location, remote from the end- users, with customizable filtering features specific to each end user. This design gives the filtering tool both the benefits of a filter on a local computer and the benefits of a filter on the ISP server.” Bascom, 827 F.3d at 1350. Claim 1 has no analogous structural benefit. Third, Appellant’s references to Enfish8 are also unpersuasive. Appeal Br. 21; Reply Br. 4. The claims in Enfish were “specifically directed to a self-referential table for a computer database.” Enfish, 822 F.3d at 1337. The claims were, therefore, “directed to a specific improvement to the way computers operate,” rather than an abstract idea implemented on a computer. Id. at 1336. The claims here, in contrast, are not directed to an improvement in the way computers operate, nor has Appellant identified any technical advance or improvement or specialized computer components. As stated supra, the only elements in claim 1 besides the abstract ideas are “a computing device comprising a memory and a processor coupled thereto” and “a database,” as recited in limitations (a), (b), (b)(i), (d), and (e). The Examiner finds, and we agree, that Appellant: has not assigned any specific functions to the generic computers beyond that a server receives data, processes data and outputs resulting data. Although the steps add a degree of particularity 8 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). Appeal 2018-002642 Application 12/567,973 19 to calculating the score, the underlying concept embodied by these limitations merely encompasses the abstract idea itself. Non-Final Act. 5–6. Thus, for these reasons, we determine that the additional elements recited in claim 1 do not integrate the recited abstract ideas into a practical application. See Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter.”); Revised Guidance, 84 Fed. Reg. at 55 (explaining that courts have identified “merely us[ing] a computer as a tool to perform an abstract idea” as an example of when a judicial exception may not have been integrated into a practical application). Further, consistent with the Examiner’s findings, and in view of Appellant’s Specification (e.g., ¶¶ 106–113; Figure 4), we conclude that claim 1 does not integrate the judicial exception into a practical application, and thus is directed to the judicial exception. In particular, we determine claim 1 does not recite: (i) an improvement to the functioning of a computer; (ii) an improvement to another technology or technical field; (iii) an application of the abstract idea with, or by use of, a particular machine; (iv) a transformation or reduction of a particular article to a different state or thing; or (v) other meaningful limitations beyond generally linking the use of the abstract idea to a particular technological environment. See MPEP §§ 2106.05(a)–(c), (e)–(h). Appeal 2018-002642 Application 12/567,973 20 3. USPTO Step 2B – Inventive Concept Finally, we consider whether claim 1 has an inventive concept, that is, whether any additional claim elements “‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78, 79). This requires us to evaluate whether the additional claim elements add “a specific limitation or combination of limitations that are not well-understood, routine, 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.” Revised Guidance, 84 Fed. Reg. at 56. As stated supra, the Examiner finds that claim 1 recites “the additional limitations of a ‘computing device,’” and that the “use of generic computer components to perform electronic recordkeeping and transmitting data does not impose any meaningful limit on the computer implementation of the abstract idea.” Non-Final Act. 6; Ans. 3–4. The Examiner further finds that the additional limitations, taken alone and as an ordered combination, do not amount to significantly more. Non-Final Act. 6–7. Appellant argues that, “if the claims can somehow be determined to be directed to an abstract idea, the claims amount to significantly more than that abstract idea.” Appeal Br. 24. In particular, Appellant argues that claim 1 is “directed to a technological improvement to system functionality” and that the claim elements, and their functions, amount to significantly more than any abstract idea by reciting improvements to the technology “that are beyond the conventional operations of a generic computer.” Id. at 20, 24– 25. Appeal 2018-002642 Application 12/567,973 21 We are not persuaded by Appellant’s arguments. As discussed supra, we are not persuaded by Appellant’s arguments that claim 1 is directed to a technological improvement because Appellant’s arguments are conclusory and unsupported by persuasive evidence and technical reasoning identifying or explaining any alleged technological advance in computer software or hardware. In that regard, the Examiner finds, and we agree, that “[a]lthough the steps [of claim 1] add a degree of particularity to calculating the score, the underlying concept embodied by these limitations merely encompasses the abstract idea itself.” Non-Final Act. 6. Moreover, we see nothing in claim 1 or the Specification suggesting that the “computing device comprising a memory and a processor coupled thereto” and “database” recited in claim 1, are anything but generic computer components that perform well-understand, routine, and conventional activities. See, e.g., Spec. ¶¶ 106–113; Fig. 4. Although Appellant argues that the Examiner “failed to provide evidence to support the conclusion that the present claims lack specific limitations other than what is well understood, routine and conventional in the field,” Appellant does not explain specifically why the additional limitations of claim 1 are not well-understood, routine, and conventional, nor does Appellant identify any passages from the Specification that support its assertions. Thus, the record fails to show that any factual issues exist regarding a claim element’s well-understood, routine, or conventional nature in light of Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018). Thus, considering claim 1 as a whole, we determine that the additional elements recited in claim 1 do not provide “a specific limitation or combination of limitations that are not well-understood, routine, Appeal 2018-002642 Application 12/567,973 22 conventional activity in the field.” Revised Guidance, 84 Fed. Reg. at 56. Rather, these elements “simply append[] well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality.” Id. Accordingly, we agree with the Examiner that claim 1 does not have an inventive concept. 4. Conclusion Because we determine that claim 1 is directed to an abstract idea and does not contain an inventive concept, we sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 101. For the same reasons, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of independent claims 7, 14, 16, and 20, and dependent claims 5, 6, 10, 19, and 21–25, which are not argued separately. CONCLUSION We affirm the Examiner’s rejection of claims 1, 5, 6, 7, 10, 14, 16, 19–25 under 35 U.S.C. § 101. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s) /Basis Affirmed Reversed 1, 5, 6, 7, 10, 14, 16, 19–25 101 Eligibility 1, 5, 6, 7, 10, 14, 16, 19–25 Appeal 2018-002642 Application 12/567,973 23 No 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). AFFIRMED Copy with citationCopy as parenthetical citation