The Nielsen Company (US), LLCDownload PDFPatent Trials and Appeals BoardMar 21, 20222021003222 (P.T.A.B. Mar. 21, 2022) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/194,211 06/27/2016 Helena Mendrisova 20004/125293US02 9640 81905 7590 03/21/2022 Hanley, Flight & Zimmerman, LLC (Nielsen) 150 S. Wacker Dr. Suite 2200 Chicago, IL 60606 EXAMINER BRADY, MARIE P. ART UNIT PAPER NUMBER 3621 NOTIFICATION DATE DELIVERY MODE 03/21/2022 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@hfzlaw.com jflight@hfzlaw.com mhanley@hfzlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HELENA MENDRISOVA, EDWARD ELLIS COHEN, DIPTI UMESH SHAH, ANTONIA TOUPET, and ELISABETH ADAMS ____________ Appeal 2021-003222 Application 15/194,211 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, AMEE A. SHAH, and ROBERT J. SILVERMAN, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s final decision to reject claims 1-20, which are all the claims pending in this application. 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. The Appellant identifies the real party in interest as “THE NIELSEN COMP ANY (US), LLC.” Appeal Br. 2. Appeal 2021-003222 Application 15/194,211 2 CLAIMED SUBJECT MATTER The Appellant’s invention “relates generally to audience measurement, and, more particularly, to methods and apparatus to enable duplication correction for broadcast station audience measurement data.” Spec. ¶ 2. Claims 1, 8, and 15 are the independent claims on appeal. Claim 1 (Appeal Br. 22 (Claims App.)) is exemplary of the subject matter on appeal and is reproduced below (with lettered bracketing added for reference). 1. A method to generate ratings information, the method comprising: [(a)] mapping, by executing an instruction with a processor, listening data to a daypart and a demographic group, the listening data generated based on collected audience measurement data; [(b)] calculating, by executing an instruction with the processor, a digital Cume [cumulative audience measurement] and a duplicate Cume from the listening data for a plurality of daypart-demographic group pairings; [(c)] determining, by executing an instruction with the processor, an unduplication factor for a first daypart- demographic group pairing based on a difference between i) a numerical value and ii) a ratio between the digital Cume and the duplicate Cume; and [(d)] removing, by executing an instruction with the processor, duplicated audience counts by applying the unduplication factor to an audience count associated with a streaming station to determine a cumulative audience measurement for the first daypart-demographic group pairing, the removing of the duplicated audience counts to correct audience measurement data. Appeal 2021-003222 Application 15/194,211 3 THE REJECTION Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. OPINION 35 U.S.C. § 101 Framework Section 101 An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the U.S. 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 Court’s two-part 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); Appeal 2021-003222 Application 15/194,211 4 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, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267-68 (1853))); 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 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 187; 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 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. (citation omitted) (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 (citation omitted). “A claim Appeal 2021-003222 Application 15/194,211 5 that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to 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. USPTO Section 101 Guidance We are also guided by U.S. Patent and Trademark Office (“USPTO”) Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”) and the October 2019 Update: Subject Matter Eligibility (“October 2019 Update”), incorporated into the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104-06, Rev. 10.2019 (“MPEP”) in June 2020. “The guidance sets out agency policy with respect to the USPTO’s interpretation of the subject matter eligibility requirements of 35 U.S.C. [§] 101 in view of decisions by the Supreme Court and the Federal Circuit.” Guidance, 84 Fed. Reg. at 51. Although “[a]ll USPTO personnel are, as a matter of internal agency management, expected to follow the guidance,” the guidance “does not create any right or benefit, substantive or procedural, enforceable by any party against the USPTO.” Id. The Guidance, by its terms, applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id. at 50. Under USPTO guidance, we first look to whether the claim recites: (1) any judicial exceptions, including laws of nature, natural phenomena, and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b)) (“Step 2A, Prong One”); and (2) additional elements that integrate the Appeal 2021-003222 Application 15/194,211 6 judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2), 2106.04(d)) (“Step 2A, Prong Two”).2 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under Step 2B, to whether the additional elements, individually or in combination, provide an inventive concept. See MPEP §§ 2106(III), 2106.05. “An inventive concept ‘cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir. 2016)). Among the considerations in determining whether the additional elements, individually or in combination, amount to significantly more than the exception itself, we look to whether they add a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” 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 judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56. Step One of the Mayo/Alice Framework Under the first step of the Mayo/Alice framework and Step 2A, Prong One of USPTO guidance, the Examiner determines that the limitations of independent claims 1, 8, and 15 that map listening data generated based on collected data to a daypart and a demographic group, calculate a digital 2 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. at 54-55; MPEP § 2106.04(d). Appeal 2021-003222 Application 15/194,211 7 Cume and a duplicate Cume from the listening data, determine an unduplication factor based on a difference between a numerical value and a ratio, and remove duplicated audience counts by applying the unduplication factor to an audience count to determine a cumulative audience measurement and to correct audience measurement data, under their broadest reasonable interpretations, recite a mental process and mathematical relationships. Final Act. 3-4. Under Prong Two of USPTO guidance, the Examiner determines that the additional elements of “executing an instruction with a processor,” “a tangible machine-readable storage medium,” “a daypart manager,” “a demographics manager,” “a digital Cume calculator,” “a duplicate Cume calculator,” “an unduplication calculator,” and “a total Cume calculator” do not impose any meaningful limits on the abstract idea and do not integrate that abstract idea into a practical application. Id.at 4. The Appellant disagrees and contends that, under Prong One, independent claims 1, 8, and 15 “do[] not recite a mathematical concept, a method of organizing human activity, or a mental process.” Appeal Br. 9-11, 14-16, 18-20; see also Reply Br. 2-5, 12-17, 21-24. Under Prong Two, the Appellant contends that the claims “provide[] a practical application of any judicial exception in a manner that imposes a meaningful limit on any such judicial exception” because they “implement[] a practical solution to the problem of eliminating duplicate information.” Appeal Br. 11-13, 16-17, 20; see also Reply Br. 5-12; 17-21, 24-28. Under the first step of the Mayo/Alice framework and Step 2A of USPTO guidance, we first determine to what the claims are directed, i.e., whether the claims recite an abstract idea and if so, whether the claims are Appeal 2021-003222 Application 15/194,211 8 directed to that abstract idea. The Federal Circuit has explained that “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) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335-36. Here, it is clear from the Specification, including the claim language, that independent claims 1, 8, and 15 are “directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery” rather than “a specific means or method that improves the relevant technology.” Smart Sys. Innovations, LLC v. Chi. Transit Authority, 873 F.3d 1364, 1371 (Fed. Cir. 2017). The Specification provides evidence as to what the claimed invention is directed. Here, the Specification is entitled “METHODS AND APPARATUS TO ENABLE DUPLICATION CORRECTION FOR BROADCAST STATION AUDIENCE MEASUREMENT DATA.” Spec. Title. In the “FIELD OF THE DISCLOSURE” section, the Specification provides that the “disclosure relates generally to audience measurement, and, more particularly, to methods and apparatus to enable duplication correction for broadcast station audience measurement data.” Id. ¶ 2. In the “BACKGROUND” section, the Specification discusses that audience measurement companies enroll households and participants to allow the companies to monitor their exposure to information presentations of media Appeal 2021-003222 Application 15/194,211 9 output via a television, radio, computer, etc., and to use statistical methods to determine the size and/or demographic composition of the audience for the media. Id. ¶ 3. This information is valuable to a number of entities such as advertisers, broadcasters, content providers, retailers, etc., and can be a factor in the placement of advertisements, monetary valuation of commercial slots, generating ratings, determining a marketing campaign, and evaluating effectiveness of a marketing campaign. Id. ¶¶ 3, 18. The Specification also discusses that methods to consume audio content have evolved from over- the-air (“OTA”) radio stations to include streaming stations presenting digital content accessible by any hand-held device. Id. ¶¶ 19-20. Measurement entities would monitor and measure exposure to radio and streaming stations by performing statistical analyses and calculating a cumulative audience measurement, a “Cume” for OTA stations and a “total digital Cume” for streaming stations irrespective of device, and would provide that data to the respective providers/distributors of OTA and streaming stations. Id. ¶¶ 19-21. However, for providers/distributors that have both OTA and streaming presences, “there is a risk of overestimating the total broadcast station Cume because simply adding the OTA Cume for the OTA version and the total digital Cume for the streaming version may include duplicate audience counts.” Id. ¶¶ 22-23. The invention ostensibly addresses this problem of duplication by using collected listening data and calculating an unduplication factor (“UF”) “to enable duplication correction for broadcast audience measurement data.” Id. ¶¶ 24, 140. Consistent with this disclosure, independent claim 1 recites “[a] method to generate ratings information, the method comprising” the steps of: (a) mapping data, i.e., “mapping, by executing an instruction with a Appeal 2021-003222 Application 15/194,211 10 processor, listening data to a daypart and a demographic group, the listening data generated based on collected audience measurement data;” (b) calculating data of a digital Cume and duplicate Cume, i.e., “calculating, by executing an instruction with the processor, a digital Cume and a duplicate Cume from the listening data for a plurality of daypart- demographic group pairings;” (c) analyzing data to determine data of an unduplication factor, i.e., “determining, by executing an instruction with the processor, an unduplication factor for a first daypart-demographic group pairing based on a difference between i) a numerical value and ii) a ratio between the digital Cume and the duplicate Cume;” and (d) removing/ adjusting data based on the analysis, i.e., “removing, by executing an instruction with the processor, duplicated audience counts by applying the unduplication factor to an audience count associated with a streaming station to determine a cumulative audience measurement for the first daypart- demographic group pairing, the removing of the duplicated audience counts to correct audience measurement data.” Appeal Br. 22 (Claims App.). Independent claim 8 similarly recites “[a]n apparatus to generate ratings information, the apparatus comprising:” managers to map data as recited in limitation (a) of claim 1 and calculators to calculate the digital Cume and duplicate Cume, determine an unduplication factor, and remove duplicated counts as recited in limitations (b), (c), and (d) of claim 1, the managers and calculators implemented by programmable processor(s). Id. at 24. Independent claim 15 likewise recites “[a] tangible machine-readable storage medium comprising instructions that, when executed, cause a processor to at least;” perform steps (a) through (d) as recited in claim 1. Appeal 2021-003222 Application 15/194,211 11 We consider the claims as a whole3 giving them the broadest reasonable construction4 as one of ordinary skill in the art would have interpreted them in light of the Specification5 at the time of filing. The steps of method claim 1 are performed “by executing an instruction with a processor.” Appeal Br. 22 (Claims App.). The Specification describes a system 100 including measurement systems 102, client 150, and central facility 108. Spec. ¶ 24, Fig. 1. The central facility 108 incudes a server and database and “may include disk arrays and/or multiple workstations (e.g., desktop computers, workstation servers, laptops, etc.) in communication with one another” to collect and process data, calculate the Cumes, and provide reports. Id. ¶¶ 33-38, Fig. 1. As such, the central facility 108 comprises a generic computer system with known components, and the processor of claim 1 is a generic processor, such as processor 1212, that “can be implemented by one or more integrated circuits, logic circuits, microprocessors or controllers from any desired family or manufacturer.” Id. ¶¶ 99, 131-134, Figs.1, 12. Similarly, the managers and calculators of claim 8 are components of the central facility 108, i.e., generic components of a generic computer system, that “may be implemented by 3 “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diehr, 450 U.S. at 188. 4 Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation . . . .”) (emphasis added). 5 “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 Sys., 873 F.3d at 1378 (J. Linn, dissenting in part and concurring in part) (citing Enfish, 822 F.3d at 1335, among others). Appeal 2021-003222 Application 15/194,211 12 hardware, software, firmware and/or any combination of hardware, software and/or firmware” and “could be implemented by one or more analog or digital circuit(s), logic circuits, programmable processor(s), application specific integrated circuit(s) (ASIC(s)), programmable logic device(s) (PLD(s)) and/or field programmable logic device(s) (FPLD(s)).” Id. ¶¶ 37, 44, 45, 49-51, 98, 132. And, the storage medium of claim 15 is a generic machine-readable medium “such as a CD-ROM, a floppy disk, a hard drive, a digital versatile disk (DVD), a Blu-ray disk, or a memory associated with the processor 1212” or hard disk drive, a flash memory, a read-only memory (ROM), a compact disk (CD), . . . a cache, a random-access memory (RAM) and/or any other storage device or storage disk in which information is stored for any duration (e.g., for extended time periods, permanently, for brief instances, for temporarily buffering, and/or for caching of the information). Id. ¶¶ 99-100, 138, 139. The limitations are all recited functionally without details on how, technologically or by what algorithm(s), they are performed. Mapping data is simply matching fields, i.e., comparing data (see Spec. ¶ 64 (“For example, the eighth example row 265 indicates the ‘market code’ variable corresponds to an identifier of a geographic location. For example, the market code ‘003’ may map to Chicago, IL”), ¶¶ 67-97, Fig. 3, 4), which comprises manipulating and evaluating data, a mental process. See Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (citing cases) (“we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes”). Similarly, calculating and determining data are ways of analyzing data using mathematical equations or algorithms and Appeal 2021-003222 Application 15/194,211 13 are mental processes. See Spec. ¶¶ 104-106, 115, Figs. 5, 8; Electric Power Grp., 830 F.3d at 1354. Removing data, i.e., adjusting the value, based on the results of the analyses, is a way of re-calculating the value (see Spec. ¶¶ 124, 128, Figs. 10, 11), which is a mental process. Electric Power Grp., 830 F.3d at 1354. When considered collectively and under the broadest reasonable interpretation, the limitations of claims 1, 8, and 15 recite a way of using generic processing components to analyze data for the purpose of knowing how many people access content.6 This is an abstract idea falling within USPTO guidance category of “[m]ental processes-concepts performed in the human mind (including an observation, evaluation, judgment, opinion).” Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(II). Our reviewing court has held similar concepts to be abstract. For example, the Federal Circuit has held abstract the concepts of collecting, analyzing, and displaying the results in Electric Power Group, 830 F.3d at 1354, “(1) gathering information about television users’ viewing habits; (2) matching the information with other content (i.e., targeted advertisements) based on relevancy to the television viewer; and (3) sending that content to a second device” in Free Stream Media Corp. v. Alphonso Inc., 996 F.3d 1355, 1361-62 (Fed. Cir. 2021), and “a process that employs mathematical algorithms to manipulate existing information to generate 6 We note that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. at 1241. Appeal 2021-003222 Application 15/194,211 14 additional information” in Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014). Thus, we disagree with the Appellant’s contention that the Examiner’s characterization that the claims recite an abstract idea of a mental process is in error, and as such, we are also not persuaded of Examiner error by the Appellant’s arguments that the claims do not recite an abstract idea because they do not recite a mathematical calculation or a method of organizing human activity. Appeal Br. 9-11, 14-16, 18-20; see also Reply Br. 2-5, 12-17, 21-24. We also disagree with the Appellant’s contention that the claims are like claim 2 of Example 37 of the 2019 Subject Matter Eligibility Examples at https://www.uspto.gov/sites/default/files/documents/ 101_examples_37to42_20190107.pdf (January 7, 2019) (“Examples”) in that the claimed “data mapping cannot be practically performed in the human mind as the respective formats and quantities of the data would be impossible for a human mind to process, even with the help of pencil and paper.” Appeal Br. 10; see also id. at 11; Reply Br. 4-5. We do not find this argument persuasive because the claimed subject matter is distinguishable from hypothetical claim 2 of Example 37. In Example 37, hypothetical claim 2 recites “determining the amount of use of each icon using a processor that tracks how much memory has been allocated to each application associated with each icon over a predetermined period of time.” This step, under its broadest reasonable interpretation, was determined to not recite a mental process because it “is not practically performed in the human mind, at least because it requires a processor accessing computer memory indicative of application usage.” Here, the processor maps, i.e., Appeal 2021-003222 Application 15/194,211 15 matches or compares, collected data. The claims no dot recite how the data is collected such that a human mind cannot match or compare them. Rather, the claims here are similar to hypothetical claim 1 of Example 37 in that other than reciting that the mapping is performed by a processer, the claims encompass the user manually mapping data. We note that the claims do require any particular format or quantity that would make this impossible to do mentally. Further, we note that “[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent- ineligible invention could be performed via pen and paper or in a person’s mind.” Versata Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015). As discussed more fully below, the mapping of data by a processor merely limits the invention to a particular computer environment.7 Having concluded that the independent claims recite a judicial exception under the Guidance, Step 2A, Prong One, we next consider 7 The Appellant’s arguments that “like the patent eligible claim of Example 38 (Simulating an Analog Audio Mixer) provided by the USPTO in connection with the 2019 Eligibility Guidance, claim 1 does not recite a mathematical relationship, formula, or calculation and is therefore does not recite a judicial exception” and “like the patent eligible claim of Example 39 (Method for Training a Neural Network for Facial Detection), claim 1 presented herein does not recite a judicial exception” (Reply Br. 3) were not raised in the Appeal Brief and are not responsive to an argument raised in the Examiner’s Answer. 37 C.F.R. § 41.41(b)(2). These Examples were available prior to the filing of the Appeal Brief. The Appellant has not shown good cause why this argument could not have been presented in the Appeal Brief. Thus, we do not consider these arguments except to note that the claims do recite a mental process including calculations and analyses, and thus recite an abstract idea. Appeal 2021-003222 Application 15/194,211 16 whether the claims recite additional elements that integrate the judicial exception into a practical application. To do so, we look to whether the claims “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claims are more than a drafting effort designed to monopolize the judicial exception,” i.e., “integrate[] a judicial exception into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP § 2106.04(d). We agree with and adopt the Examiner’s findings and conclusion that the additional limitations of claims 1, 8, and 15 do not integrate the abstract idea into a practical application, as the term is used in USPTO guidance. See Final Act. 4; Ans. 8-12, 18, 22-23. We add the following for emphasis. Here, the only additional elements recited in the independent claims beyond the abstract idea are, as the Examiner finds, “executing an instruction with a processor,” “a tangible machine-readable storage medium,” “a daypart manager,” “a demographics manager,” “a digital Cume calculator,” “a duplicate Cume calculator,” “an unduplication calculator,” and “a total Cume calculator”” - elements that are specified at a high level of generality and are described in the Specification as known, generic computer elements. See supra, e.g., Spec. ¶¶ 24, 33-38, 44, 45, 49-51, 98-100, 131-134, 138, 139, Figs. 1, 3, 12. As is clear from the Specification, there is no indication that the operations recited in claims 1, 8, and 15 require any specialized computer hardware or other inventive computer components, i.e., a particular machine, invoke any asserted inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, Appeal 2021-003222 Application 15/194,211 17 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.”). We also find no indication in the Specification that the claimed invention as recited in the claims effects a transformation or reduction of a particular article to a different state or thing. Nor do we find anything of record that attributes an improvement in technology and/or a technical field to the claimed invention or that otherwise indicates that the claimed invention integrates the abstract idea into a “practical application,” as that phrase is used in USPTO Guidance. The Appellant argues that the claims “implement[] a practical solution to the problem of eliminating duplicate information that is the result of processes carried out across various technological environments (e.g., mobile devices, desktop devices, etc.).” Appeal Br. 12, 17, 20; see also Reply Br. 7-12, 17-21, 24-28. We disagree. The claims here do not claim a solution “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” DDR Holdings, 773 F.3d at 1257; cf. Reply Br. 11, 20, 27. Here, the problem being addressed is that of duplication of data leading to inaccuracies in audience measurement counts (see Appeal Br. 12 (“the claimed practical solution as presented in claim 1 eliminates overlap in audience counts between the OTA Cume and the total digital Cume, thereby correcting or eliminating audience measurement data due to duplication of information across various technological environments”); Spec. ¶¶ 22-24, 140) or of “identifying a unique audience exposed to audio content regardless of the device used to access the audio content” (Reply Br. 7). Appeal 2021-003222 Application 15/194,211 18 Having more accurate data and identifying audiences exposed to media are not problems rooted in technology, but problems that existed prior to the Internet, such as identifying audiences between newspaper, radio, and television content. Further, the purported solution comprises a generic processor, software components, and a storage medium operating in their ordinary and conventional capacities to perform the functions of mapping, calculating, and re-calculating data. See supra; see also Alice, 573 U.S. at 224-26; DDR Holdings, 773 F.3d at 1258-59 (contrasting the claims to those at issue in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) in that, in DDR Holdings, the computer network was not operating in its “normal, expected manner” and the claims did not “recite an invention that is . . . merely the routine or conventional use of the Internet”). The Appellant does not direct attention to, and we do not see, where the Specification provides that the processor acts in an abnormal manner or outside of its ordinary capacity. The Appellant does not contend that it invented any of the claimed components or their basic functions or that those components, claimed generally, were unknown in the art as of the time of the invention. See Affinity Labs of Texas, LLC v. Amazon.com, Inc., 838 F.3d 1266, 1270 (Fed. Cir. 2016). Rather, as discussed above, the system was known and conventional and any solution presented is in the abstract idea itself, not to any technology, i.e., to the computer components themselves. To the extent the Appellant contends that the claims provide a technological improvement and/or an improvement to a technical field (Appeal Br. 12-13, 17, 20; Reply Br. 5-12, 17-21, 24-28), we disagree. The Appellant’s assertion that “it is clear that eliminating this duplicate Appeal 2021-003222 Application 15/194,211 19 information reduces the burden on a processor as it does not need to execute the instructions associated with performing those operations” (Appeal Br. 12; see also Reply Br. 5-6, 17-18, 25-26) is unsupported by any evidence. “Attorneys’ argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Notably, the Specification does not discuss any asserted reduction in processor burden from the correction of measurement data by removing duplicates. Further, the claims do not specify what happens after the duplicated counts are removed, how the processor uses the corrected audience measurement data so as to link the claimed elimination of duplicated data to any purported improvement in the processor itself, or how the claimed method achieves a reduction in processor burden. Unclaimed improvements do not support patent eligibility. See ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 769 (Fed. Cir. 2019); Berkheimer v. HP Inc., 881 F.3d 1360, 1369-70 (Fed. Cir. 2018); Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1338-39 (Fed. Cir. 2017); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331-32 (Fed. Cir. 2017). The Appellant contends that the claims achieve an improvement in the technological field of “audience measurement.” Appeal Br. 12, 17, 20. But, in the claims, the “audience” is simply part of the technological environment in which the abstract idea is performed. See Alice, 573 U.S. at 223 (holding that attempting to limit the use of an abstract idea to a particular technological environment does not make a claim patent-eligible) (quoting Bilski, 561 U.S. at 610-11); Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016) (“The Supreme Court and [the Federal Circuit] have repeatedly made clear that merely limiting the field of use of Appeal 2021-003222 Application 15/194,211 20 the abstract idea to a particular existing technological environment does not render the claims any less abstract.”). Any improvement here to the process of audience measurement is an improvement to the abstract itself. The claims’ focus is “not a physical-realm improvement but an improvement in a wholly abstract idea,” that is not eligible for patenting. SAP Am. Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018); see also Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 893 (Fed. Cir. 2019) (“Where a claim’s ‘essential advance’ is abstract, a novel method of performing that advance ‘does not avoid the problem of abstractness.’” (quoting Affinity Labs, 838 F.3d at 1263)). The benefits here “flow from performing an abstract idea in conjunction with” well-known computer structure. BSG Tech, 899 F.3d at 1289.8 Regarding the Appellant’s argument that the claims “provide[] no risk whatsoever of preempting the use of any judicial exception” (Appeal Br. 13; 8 The Appellant’s argument that “[l]ike the patent-eligible ‘Isolating and Removing Malicious Code from Electronic Messages’ example provided in the USPTO listing of examples related to Abstract Ideas (http://www.uspto.gov/patents/law/exam/abstract_idea_examples.pdf. ‘Abstract Examples’), the pending claims are not directed to ‘an abstract concept, or a concept similar to those found by the courts to be abstract, such as a fundamental economic practice, a method of organizing human activity, an idea itself (standing alone), or a mathematical relationship.’” (Reply Br. 10, 19, 26-27) was not raised in the Appeal Brief and are not responsive to an argument raised in the Examiner’s Answer. 37 C.F.R. § 41.41(b)(2). The Appellant has not shown good cause why this argument could not have been presented in the Appeal Brief. The example (Example 1 issued prior to the 2019 Guidelines) was available prior to the filing of the Appeal Brief. Thus, we do not consider this argument except to note that outside of stating that the claims are similar, the Appellant does not present argument explaining precisely how or why. Appeal 2021-003222 Application 15/194,211 21 see also Reply Br. 10-12, 19-21, 26-28), we note that although the Supreme Court has described “the concern that drives this exclusionary principle[, i.e., the exclusion of abstract ideas from patent eligible subject matter,] as one of pre-emption” (see Alice, 573 U.S. at 216), characterizing preemption as a driving concern for patent eligibility is not the same as characterizing preemption as the sole test for patent eligibility. “The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability” and “[f]or this reason, questions on preemption are inherent in and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice, 573 U.S. at 216). Although “preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Id.; see also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1321 (Fed. Cir. 2016) (“A narrow claim directed to an abstract idea, however, is not necessarily patent-eligible”). That the claim does not preempt all manners of audience measurement data does not make the claims any less abstract. See buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed.Cir.2014); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015). Thus, we are not persuaded of error in the Examiner’s determination that the claims are directed to an abstract idea. Step Two of the Mayo/Alice Framework Under the second step in the Mayo/Alice framework and USTPO guidance Step 2B, we “[e]valuat[e] additional elements to determine whether they amount to an inventive concept [which] requires considering them both individually and in combination to ensure that they amount to Appeal 2021-003222 Application 15/194,211 22 significantly more than the judicial exception itself.” MPEP § 2106.05(I). Here, the Examiner finds that, considering the claimed limitations individually as an ordered combination, the “claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.” Final Act. 4. We agree. The Appellant provides no separate argument why the Examiner’s determination that the claims do not amount to significantly more than the abstract idea is in error. Thus, we are not persuaded of error in the Examiner’s determination that the additional elements of independent claims 1, 8, and 15, considered individually and as an ordered combination, do not amount to significantly more than the abstract idea itself. We sustain the Examiner’s rejection under 35 U.S.C. § 101 of independent claims 1, 8, and 15 and thus also of dependent claims 2-7, 9-14, and 16-20, for which no separate argument was provided. CONCLUSION The Examiner’s decision to reject claims 1-20 is sustained. In summary: Claims Rejected 35 U.S.C. § References/ Basis Affirmed Reversed 1-20 101 Eligibility 1-20 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). AFFIRMED Copy with citationCopy as parenthetical citation