Woods, Rosann

Patent Trials and Appeals Board

Mar 2, 2020

13246783 - (D) (P.T.A.B. Mar. 2, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/246,783 09/27/2011 Rosann Woods 8223-1706971(P-41717US01) 8242
144885 7590 03/02/2020
The Webb Law Firm / Visa International
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
REFAI, SAM M
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
03/02/2020 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):
patents@webblaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROSANN WOODS
____________

Appeal 2018–005014
Application 13/246,783
Technology Center 3600
____________

Before: JOHN A. EVANS, JASON J. CHUNG, and SCOTT E. BAIN,
Administrative Patent Judges.

EVANS, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s Final rejection of claims 1–5, 8–10, and 12–20. App. Br. 1.
Claims 6, 7, and 11 are canceled. Final Act. 2. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Visa International Service
Association as the real party in interest. App. Br. 3.
2 Rather than reiterate the arguments of Appellant and the Examiner, we
refer to the Appeal Brief filed January 8, 2018, (“App. Br.”); the Reply Brief
filed April 11, 2018, (“Reply Br.”); the Examiner’s Answer mailed February
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STATEMENT OF THE CASE
The claims relate to systems and methods to structure services in tiers
and provide services as rewards in accordance with the tiers. See Abstract.
Invention
Claims 1, 16, and 20 are independent. An understanding of the
invention can be derived from a reading of claim 1, which is reproduced in
Table 1.
Rejections3
Claims 1–5, 8–10, and 12–20 stand rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more. Final Act. 2–11.

Allowable Subject Matter
The Examiner finds claims 1–5, 8–10, and 12–20 would be allowable
if rewritten or amended to overcome the rejection under 35 U.S.C. § 101 set
forth in the Final Action. Final Act. 11.

ANALYSIS
We have reviewed the rejections of claims 1–5, 8–10, and 12–20 in
light of Appellant’s arguments that the Examiner erred. We have considered
in this Decision only those arguments Appellant actually raised in the Brief.
Any other arguments which Appellant could have made but chose not to

21, 2018, (“Ans.”); the Final Action mailed August 8, 2017, (“Final Act.”);
and the Specification filed July 1, 2013, (“Spec.”) for their respective details.
3 The present application was examined under the pre-AIA first to invent
provisions. Final Act. 2.
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make in the Brief are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv).
We provide the following explanation to highlight and address specific
arguments and findings primarily for emphasis. We consider Appellant’s
arguments as they are presented in the Appeal Brief, pages 13–25.
Claims 1–5, 8–10, and 12–20: INELIGIBLE SUBJECT MATTER
Appellant argues these claims as a group in view of the recitations of
claim 1.4 Therefore, we decide the appeal of the 35 U.S.C. § 101 rejection
on the basis of representative claim 1 and refer to the rejected claims
collectively herein as “the claims.” See 37 C.F.R. § 41.37(c)(1)(iv); see also
In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).

De novo review
Appellant contends “the entirety of the claims were not substantively
examined and every rejection necessary fails for this reason alone.” App.
Br. 13.
We review the record de novo. SiRF Tech., Inc. v. Int’l Trade

4 Appellant argues “[c]laims 1, 16, and 20 require, inter alia, the following
two steps.” App. Br. 13. Appellant further argues the “Office Action
glosses over the dependent claims with essentially the same, duplicative
analysis.” App. Br. 24. Appellant’s contentions do not rise to the level of
arguing the separate patentability of the claims. In re Dance, 160 F.3d 1339,
1340 n.2 (Fed. Cir. 1998) (noting that dependent claims not argued
separately on the merits rise or fall with the independent claim to which they
relate). When claims are not argued separately, the consequence is not to
treat the missing argument as an admission but rather to treat the affected
claims as standing or falling together. C.W. Zumbiel Co., Inc. v. Kappos,
702 F.3d 1371, 1378 n.2 & 1381 n.4 (Fed. Cir. 2012); see also In re Dillon,
919 F.2d 688, 695 (Fed. Cir. 1990) (en banc).
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Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is drawn
to patent-eligible subject matter is an issue of law that we review de novo.”).
Based upon our review of the record in light of recent policy guidance with
respect to patent-eligible subject matter rejection under 35 U.S.C. § 101, we
affirm the rejection of the claims for the specific reasons discussed below.5
Preemption
Appellant contends claim 1 does not pose any risk of preempting, or
monopolizing, any idea the Office may identify as abstract. See App. Br. 24.
Although preemption may denote patent ineligibility, its absence does not
demonstrate patent eligibility. See FairWarning, IP, LLC v. Iatric Systems,
Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). For claims covering a patent-
ineligible concept, preemption concerns “are fully addressed and made
moot” by an analysis under the Mayo/Alice framework. Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). We conduct
such an analysis below.
35 U.S.C. § 101
Section 101 provides that a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” See 35 U.S.C. § 101. The Supreme Court
has long recognized, however, that 35 U.S.C. § 101 implicitly excludes
“[l]aws of nature, natural phenomena, and abstract ideas” from the realm of
patent-eligible subject matter, as monopolization of these “basic tools of

5 See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Revised Guidance, 84 Fed. Reg.”).
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scientific and technological work” would stifle the very innovation that the
patent system aims to promote. Alice Corp. Pty. Ltd. 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)); see also Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–78 (2012); and Diamond
v. Diehr, 450 U.S. 175, 185 (1981).
Under the mandatory Revised Guidance, we reconsider whether
Appellant’s claims recite:

1. any judicial exceptions, including certain groupings of abstract ideas
(i.e., mathematical concepts, certain methods of organizing human
interactions such as a fundamental economic practice, or mental
processes), and
2. additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim, (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, do we then reach the
issue of whether the claim:
3. adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
4. simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.

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A. Whether the claims recite a judicial exception
The Revised Guidance extracts and synthesizes key concepts
identified by the courts as abstract ideas to explain that the abstract-idea
exception includes the following groupings of subject matter, when recited
as such in a claim limitation(s) (that is, when recited on their own or per se):
(a) mathematical concepts,6 i.e., mathematical relationships, mathematical
formulas, equations,7 and mathematical calculations;8 (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

6 Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“The concept of hedging . . .
[reduced] to a mathematical formula . . . . is an unpatentable abstract idea.”).
7 Diehr, 450 U.S. at 191 (“A mathematical formula as such is not accorded
the protection of our patent laws.”); Parker v. Flook, 437 U.S. 584, 594
(1978) (“[T]he discovery of [a mathematical formula] cannot support a
patent unless there is some other inventive concept in its application.”).
8 SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018)
(holding that claims to a “series of mathematical calculations based on
selected information” are directed to abstract ideas).
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instructions);9 and (c) mental processes—concepts performed in the human
mind (including observation, evaluation, judgment, opinion).10
The preamble of independent claim 1 recites: “[a] computer-
implemented method, comprising.” Each limitation, recited in the body of
the claim, is analyzed in Table I against the categories of abstract ideas as set
forth in the Revised Guidance. This analysis renders moot Appellant’s
contention that “[t]he errors with the Section 101 analysis start with the
Examiner's interpretation of the claims which admittedly disregards two
entire steps.” App. Br. 13; see also Reply Br. 2.
Claim 1 Revised Guidance, p. 52
[a]11 providing a computing
apparatus comprising:
Insignificant extra-solution activity.
[b] a transaction handler configured
on an electronic payment processing
network connecting separate
computers, including: transaction
terminals configured to initiate
transactions of payments in the
electronic payment processing
network;
Conventional computing apparatus.

9 Alice, 573 U.S. at 219–20 (concluding that use of a third party to mediate
settlement risk is a “fundamental economic practice” and thus an abstract
idea); see also Revised Guidance, at 52 n.13 for a more extensive listing of
“certain methods of organizing human activity” that have been found to be
abstract ideas.
10 Mayo, 566 U.S. at 71 (“[M]ental processes[ ] and abstract intellectual
concepts are not patentable, as they are the basic tools of scientific and
technological work.”) (quoting Gottschalk v. Benson, 409 U.S. 63, 67
(1972)).
11 Step designators, e.g., “[a],” were added to facilitate discussion.
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[c] first computers controlling
consumer accounts from which the
payments are made, including an
account of a user;
Certain methods of organizing
human activity, i.e., managing
relationships or interactions
between people.
[d] second computers controlling
merchant accounts in which the
payments are received;
Certain methods of organizing
human activity, i.e., managing
relationships or interactions
between people.
[e] a data warehouse storing account
data identifying an account feature
of the account of the user, the
account feature associated with a
plurality of services organized in
tiers, the plurality of services
provided by a plurality of different
service providers; and
Certain methods of organizing
human activity, i.e., managing
relationships or interactions
between people.
[f] a portal coupled with the data
warehouse configured to provide a
user interface for enrollment in at
least some of the services;
Certain methods of organizing
human activity, i.e., managing
relationships or interactions
between people.
[g] monitoring, by the transaction
handler configured in the electronic
payment processing network,
transactions in the account of the
user;
Mental processes, i.e., concepts
performed in the human mind
including observation, evaluation,
judgment, opinion.
[h] measuring, by the computing
apparatus, a spending level of the
user within a predetermined period
of time based on settled transactions
recorded by the transaction handler,
wherein the spending level includes
a count of international airline
tickets that are purchased using the
account of the user within the
Mental processes, i.e., concepts
performed in the human mind
including observation, evaluation,
judgment, opinion.
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predetermined period of time;
[i] receiving, in the user interface
from the user, a custom designed
tier structure for the account feature
based on a set of predetermined
rules;
Mathematical concepts, i.e.,
mathematical relationships,
formulas, equations, or calculations.
[j] enrolling, using the user
interface, the user in a first set of
services of the plurality of services,
including a first service in the
plurality of services, for the
predetermined period of time;
Certain methods of organizing
human activity, i.e., managing
relationships or interactions
between people.
[k] determining, by the computing
apparatus, a tier level of the account
feature based on the count of
international airline tickets that are
purchased using the account of the
user within the predetermined
period of time;
Mathematical concepts, i.e.,
mathematical relationships,
formulas, equations, or calculations.
[l] in response to a determination
that a position of the first service in
the tiers is below the tier level of the
account feature in accordance with
the tier structure, providing the first
service to the user at a first cost; and
Certain methods of organizing
human activity, i.e., managing
relationships or interactions
between people.
[m] in response to an increase in the
count of international airline tickets
that are purchased using the account
of the user within the predetermined
period of time to above a threshold,
updating, by the computing
apparatus, the tier level of the
account feature in accordance with
the tier structure to above the
Mathematical concepts, i.e.,
mathematical relationships,
formulas, equations, or calculations.
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position of the first service in the
tiers, waiving the first cost in
providing the first service to the
user, and offering the user to enroll,
via the user interface, in a second
set of services of the plurality of
services, the second set of services
including: the first set of services,
and at least a third service not in the
first tier.

In view of Table I, we find limitations [c]–[m] of independent Claim 1
recites a judicial exception, per se, i.e., at least one abstract idea in each of
the three categories set forth in the Revised Guidance. Our analysis renders
moot Appellant’s contention the Examiner’s analysis has improperly found
the claims to recite abstract ideas. See Reply Br. 3.

Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims recite a patent-ineligible concept, as we conclude above,
we proceed to the “practical application” Step 2A(ii) wherein we determine
whether the recited judicial exception is integrated into a practical
application of that exception by: (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception(s); and
(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
For the reasons which follow, we conclude that Appellant’s claims do
not integrate the judicial exception into a practical application.
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MPEP § 2106.05(a): “Improvements to the Functioning of a
Computer or to Any Other Technology or Technical Field.”
“In determining patent eligibility, examiners should consider whether
the claim ‘purport(s) to improve the functioning of the computer itself’” or
“any other technology or technical field.” MPEP § 2106.05(a).
With respect to technological improvements, Appellant analogizes to
Enfish and contends “the rejections should also be reversed because it is
clear that the claims are directed to specific improvements in the specific
field of electronic rewards systems for airline tickets.” App. Br. 19–20
(citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)
(Under Alice, claims purporting to “improv[e] an existing technological
process, might not succumb to the abstract idea exception.”).
Alice held that “method claims, which merely require generic
computer implementation, fail to transform that abstract idea into a patent-
eligible invention.” Alice, 134 S.Ct. 2357. The Alice Court noted the Mayo
claims were directed to a method for measuring metabolites in the
bloodstream in order to calibrate the appropriate dosage of thiopurine drugs
in the treatment of autoimmune diseases. Id. It seems to us that measuring
concentrations of thiopurine metabolites in blood in order to calibrate
dosages rises, at least, to the technological level required for measuring the
claimed “count of international airline tickets that are purchased using the
account of the user” and calibrating a “tier level of the account,” as claimed.
Because methods directed to calibrating dosage levels fails to meet a
sufficient technology standard, we must find calibrating tier levels of an
account based on ticket sales must also fail.
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The claims collect data, recognize certain data within the collected
data set, and present the data for display, which the courts have recognized
as abstract. See Content Extraction & Transmission LLC v. Wells Fargo
Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014).
MPEP § 2106.05(b) Particular Machine
The Bilski machine-or-transformation test is only applicable to
method (process) claims on appeal in the present application. Appellant
discloses generic computer devices. See Spec. ¶ 272 (“In one embodiment,
a computing apparatus is configured to include some of the modules or
components illustrated in Figures 1, 2 and 14, such as the transaction handler
(103), the portal (143), the issuer processor (145), the acquirer processor
(147), the feature offer engine (113), the notification engine (117), the
procurement engine (119), and their associated storage devices, such as the
data warehouse (149).”). Nor do we find disclosure of anything other than
generic computer hardware or software.
MPEP § 2106.05(c) Particular Transformation
This section of the MPEP guides: “Another consideration when
determining whether a claim recites significantly more is whether the claim
effects a transformation or reduction of a particular article to a different state
or thing.” “Transformation and reduction of an article to a different state or
thing is the clue to the patentability of a process claim that does not include
particular machines.” See Bilski, 561 U.S. at 658 (quoting Benson, 409 U.S.
at 70).
The claims select and analyze certain electronic data. The selection of
electronic data is not a “transformation or reduction of an article into a
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different state or thing constituting patent-eligible subject matter[.]” See In
re Bilski, 545 F.3d 943, 962 (Fed. Cir. 2008) (emphasis added); see also
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir.
2011) (“The mere manipulation or reorganization of data . . . does not satisfy
the transformation prong.”). Applying this guidance here, we conclude
Appellant’s method claims fail to satisfy the transformation prong of the
Bilski machine-or-transformation test.
MPEP § 2106.05(e) Other Meaningful Limitations

This section of the MPEP guides:
Diamond v. Diehr provides an example of a claim that recited
meaningful limitations beyond generally linking the use of the
judicial exception to a particular technological environment.
450 U.S. 175 . . . (1981). In Diehr, the claim was directed to
the use of the Arrhenius equation (an abstract idea or law of
nature) in an automated process for operating a rubber-molding
press. 450 U.S. at 177-78. . . . The Court evaluated additional
elements such as the steps of installing rubber in a press,
closing the mold, constantly measuring the temperature in the
mold, and automatically opening the press at the proper time,
and found them to be meaningful because they sufficiently
limited the use of the mathematical equation to the practical
application of molding rubber products. 450 U.S. at 184, 187
. . . . In contrast, the claims in Alice Corp. v. CLS Bank
International did not meaningfully limit the abstract idea of
mitigating settlement risk. 573 U.S. . . . . In particular, the
Court concluded that the additional elements such as the data
processing system and communications controllers recited in
the system claims did not meaningfully limit the abstract idea
because they merely linked the use of the abstract idea to a
particular technological environment (i.e., “implementation via
computers”) or were well-understood, routine, conventional
activity.
MPEP § 2106.05(e).
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“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. Similarly as in Alice, we find
that “[t]aking the claim elements separately, the function performed by the
computer at each step of the process is ‘[p]urely conventional.’” Id. “In
short, each step does no more than require a generic computer to perform
generic computer functions.” Id. We find that Appellant’s claims do not
add meaningful limitations beyond generally linking the use of the judicial
exception to a particular technological environment.
MPEP § 2106.05(f) Mere Instructions to Apply an Exception
Appellant does not persuasively argue that their claims do any more
than to merely invoke generic computer components merely as a tool in
which the computer instructions apply the judicial exception.

MPEP § 2106.05(g) Insignificant Extra-Solution Activity
The claims acquire and display data, which are classic examples of
insignificant extra-solution activity. See, e.g., Bilski, 545 F.3d at 963 (en
banc), aff’d sub nom, Bilski, 561 U.S. 593.
MPEP § 2106.05(h) Field of Use and Technological Environment

[T]he Supreme Court has stated that, even if a claim does not
wholly pre-empt an abstract idea, it still will not be limited
meaningfully if it contains only insignificant or token pre- or
post-solution activity—such as identifying a relevant audience,
a category of use, field of use, or technological environment.
Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1346 (Fed. Cir. 2013). We
find the claims manipulate “customer spending levels,” which is simply a
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field of use that attempts to limit the abstract idea to a particular
technological environment. We do not find Appellant’s arguments to be
persuasive because “[t]he courts have also identified examples in which a
judicial exception has not been integrated into a practical application.”
Revised Guidance, 84 Fed. Reg. 55. The claims fail to recite a practical
application where the additional element does more than generally link the
use of a judicial exception to a particular technological environment or field
of use. Id. The mere application of an abstract idea in a particular field is
not sufficient to integrate the judicial exception into a practical application.
See id. at 55 n.32. In view of the foregoing, we conclude the claims are
“directed to” a judicial exception.
3. Well-understood, routine, conventional
Because the claims recite a judicial exception and do not integrate that
exception into a practical application, we must then reach the issue of
whether the claim adds a specific limitation beyond the judicial exception
that is not “well-understood, routine, conventional” in the field. Revised
Guidance, 84 Fed. Reg. 56.
The written description describes the claimed computer system
consistent with its being “well-understood, routine, [and] conventional:”
[i]n one embodiment, a computing apparatus is configured to
include some of the modules or components illustrated in
Figures 1, 2 and 14, such as the transaction handler (103), the
portal (143), the issuer processor (145), the acquirer processor
(147), the feature offer engine (113), the notification engine
(117), the procurement engine (119), and their associated
storage devices, such as the data warehouse (149).
Spec. ¶ 272.
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4. Specified at a high level of generality
It is indicative of the absence of an inventive concept where the
claims simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. Revised Guidance, 84 Fed. Reg. 56.
The claims fail to recite any specific steps of an algorithm, nor does
Appellant cite any Specification disclosure for the required specificity.
We find the limitations are specified at such a high level of generality
consistent with the absence of an inventive concept. Considering the claim
limitations as an ordered combination adds nothing to the abstract idea that
is not already present when the limitations are considered separately. See
Mayo, 566 U.S. at 79. The ordered combination of limitations amounts to
nothing more than certain mental processes implemented with generic
computer components that operate “in a conventional way.” See also Alice,
573 U.S. at 225–26. Therefore, we conclude that none of the claim
limitations, viewed “both individually and as an ordered combination,”
amount to significantly more than the judicial exception in order to
sufficiently transform the nature of the claims into patent-eligible subject
matter. See Alice, 573 U.S. at 217 (quotations omitted) (quoting Mayo, 566
U.S. at 79).

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Remaining claims
Independent claims 16 and 20 must fall for the reasons adduced for
claim 1. “Regardless of what statutory category (‘process, machine,
manufacture, or composition of matter,’ 35 U.S.C. § 101) a claim’s language
is crafted to literally invoke, we look to the underlying invention for patent-
eligibility purposes.” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1374 (Fed. Cir. 2011). Here, it is clear that the invention underlying
both independent claims 16 and 20 is the method claimed in claim 1. With
respect to the dependent claims, Appellant fails to argue any limitation
affirmatively integrates the abstract ideas into an inventive concept.
In view of the foregoing, we sustain the rejection of claims 1–5,
8–10, and 12–20 under 35 U.S.C. § 101.
CONCLUSION
In summary:

Claims
Rejected
35 U.S.C.§ Reference(s)/Basi Affirme
d
Reversed
1–5, 8–10,
and 12–20
101 Eligibility 1–5, 8–
10, and
12–20
--

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). See 37
C.F.R. § 41.50(f).
AFFIRMED