Xing Yi et al.

Patent Trials and Appeals Board

Apr 10, 2020

13843504 - (D) (P.T.A.B. Apr. 10, 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.
13/843,504 03/15/2013 Xing Yi Y09321US00 7835
123510 7590 04/10/2020
Cooper Legal Group LLC
6505 Rockside Road Suite 330
Independence, OH 44131
EXAMINER
DAGNEW, SABA
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
04/10/2020 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):
docketing@cooperlegalgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte XING YI, SCOTT GAFFNEY, and JEAN-MARC LANGLOIS
____________

Appeal 2018-008281
Application 13/843,504
Technology Center 3600
____________

Before ANTON W. FETTING, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Xing Yi, Milpitas, CA, Scott Gaffney, and Jean-Marc Langlois
(Appellant2) seeks review under 35 U.S.C. § 134 of a non–final rejection of

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed March 23, 2018) and Reply Brief (“Reply Br.,” filed August 22,
2018), and the Examiner’s Answer (“Ans.,” mailed June 22, 2018), and
Non-Final Action (“Non-Final Act.,” mailed November 16, 2017).
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claims 1, 3–7, 9–13, and 15–18, the only claims pending in the application
on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
The Appellant invented a way of personalizing a page. Specification
para. 40.
An understanding of the invention can be derived from a reading of
exemplary claim 1 which is reproduced below (bracketed matter and some
paragraphing added).
1. A method for page personalization, comprising:
[1] identifying a user operating a client device;
[2] receiving, over a network, a request for page data from the
client device;3
[3] determining a user profile associated with the user,
the user profile defining weights indicating levels of
interest for features of articles,
the weights being determined from historical display
times of articles previously presented to the user,
the historical display time for each of the previously
presented articles defining an amount of time that each
article was displayed to the user via the user profile;
wherein the historical display time for each article being
determined by analyzing events logged to a client-side
beacon during the presentation of each article to the user,
the events being logged by a page event module
transmitted with each article when transmitted for
display to the user,

2 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 OATH
INC. (Appeal Br. 3).
3 Construed as the request, not the page data, being from the client device
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the client-side beacon for each article being
received over the network from a device on which
the article was presented to the user;
[4] for each one of a plurality of articles, predicting a display
time of the article when presented to the user,
wherein predicting the display time of the article includes
applying the weights of the user profile, that are
determined from historical display times, to features of
the article,
wherein the predicted display time of the article is
defined by an expected amount of time that the article
will be actively displayed if rendered in a current browser
session of the user;
[5] prior to rendering of a page by the client device, selecting
one or more of the plurality of articles to include in the page to
be rendered by the client device based on the predicted display
times;
[6] assembling the page data,
the page data defining the page when rendered by the
client device, the rendered page defining references to the
selected articles to include in the page;
[7] sending the page data over the network to the client device;
[Contextual Limitation] wherein the method is executed by a
processor.
The Examiner relies upon the following prior art:
Name Reference Date
Cannon US 2002/0016736 A1 Feb. 7, 2002
Thomas US 2009/0271514 A1 Oct. 29, 2009
Plummer US 2010/0100415 A1 Apr. 22, 2010
Wu US 2013/0218679 A1 Aug. 22, 2013
Claims 1, 3–7, 9–13, and 15–18 stand rejected under 35 U.S.C. § 101
as directed to a judicial exception without significantly more.
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Claims 1, 3–7, 11–13 and 15–18 stand rejected under 35 U.S.C. § 103
as unpatentable over Plummer, Thomas, and Cannon.
Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as unpatentable
over Plummer, Thomas, Cannon, and Wu.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
The issues of obviousness turn primarily on whether Thomas shows it
was predictable to use past time history data of presentation for a user to
assemble content to present to a user.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Plummer
01. Plummer is directed to improving ad delivery and traffic
tracking at internet publisher’s sites, and more particularly
implementing a common tag format for internet ad-delivery and
traffic tracking. Plummer para. 2.
02. Plummer describes an ad delivery system, a beacon system,
and a management system (also referred to as a federated system).
The ad delivery system serves ads to a browser visiting a
publisher's web page. The beacon system collects usage data on
the publisher's web site. The management system receives a
service request, checks the request type of the service request, and
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then forwards the request to the ad delivery system, or to the
beacon system, or to both, according to the request type. The
service request is originated by a common tag embedded in the
publisher’s web page when loaded by a browser. The same
common tag format is used for ad and tracking requests, thereby
simplifying the management of the publisher’s website and
simplifying the migration process to change from just tracking a
website to serving, merely by changing a parameter in the tag
embedded in the publisher’s page. Plummer para. 8.
03. Plummer describes receiving a service request originated by a
common tag embedded in a publisher’s web page when loaded by
a browser. Plummer further parses the service request to identify
parameters included in the service request, such as the request
type parameter. An ad is served to the user’s browser when the
request type parameter indicates that an ad has been requested,
and a tracking item is delivered to the browser when the request
type parameter indicates that usage data has been requested but an
ad has not been requested. Plummer para. 10.
04. Plummer describes a management server providing ad
delivery and user tracking services to Internet users and
Publishers. An Internet ad is a commercial message in one of
several formats, such as graphical or rich media. An ad call is a
request for an ad, sent from the publisher to the ad management
platform. One or more requests are sent to the ad management
platform whenever a user browses to a publisher’s web page.
Each ad call includes criteria that the ad management platform can
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use to select and deliver the ad or ads for the web page. The ad
call is generated automatically from the ad code embedded on the
publisher page. The ad code is also called an ad tag. Plummer
para. 25.
05. Plummer describes an ad delivery server delivering ads to
users accessing publisher's web pages, and a beacon server
managing the user tracking process. An advertiser server interacts
with the ad management platform to supply the ads. Plummer
para. 26.
06. Plummer describes the publisher serving a tag code, embedded
within a web page, to a client's browser. The client browser
executes the tag and sends a request to the management server.
Plummer para. 48.
07. Plummer describes a management server parsing the
parameters. The management server checks whether an ad will be
served to the client. If an ad is being served, then the ad is served.
Plummer para. 49.
08. Plummer describes receiving a service request originated by a
common tag, where the tag is embedded in a publisher’s web page
being loaded by a browser. The service request is parsed to
identify the parameters included in the service request. One of the
parameters is the request type parameter. Plummer para. 50.
Thomas
09. Thomas is directed to monitoring usage of computers and other
electronic devices, and, more particularly, collecting information
concerning user interaction with application programs and the host
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environment in accordance with defined monitoring profiles.
Thomas para. 2.
10. Thomas describes a client component installed in a client
device being operative to monitor usage of the client device in
accordance with a monitoring profile, and to generate
corresponding usage data. The monitoring profile typically
includes information specifying which application programs, and
which features of such application programs, installed on the
client device are to be monitored by the client component. A
server component, installed on a server device in communication
with the client device, provides the monitoring profile to the client
device and receives the usage data from the client device. The
system may also include a data management component disposed
to store the monitoring profile and to store the usage data provided
to the server device. A data analysis component determines usage
statistics associated with application programs installed on the
client device based upon the usage data. The usage statistics may
include measurements of usage time, number of uses, and
sequence of usage of specified ones of the application programs.
Thomas para. 7.
11. Thomas describes monitoring user interaction with a web
page downloaded to a client device from a remote location.
Monitoring instrumentation is initially embedded within the web
page in accordance with a monitoring profile. This embedding
may be effected by, for example, incorporating scripting
language into the web page. Events relating to such user
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interaction are monitored, and corresponding usage data is
generated using the monitoring instrumentation. The usage data is
then transmitted from the client device to a monitoring server.
Thomas para. 8.
12. Thomas describes a monitoring profile being generated
designating which features should be tracked and which measures
are of particular interest. The monitoring profile is then used to
“instrument” (i.e., add JavaScript instructions to) the web page
documents with which the user will interact. This instrumentation
of web pages is performed independently of the content
development process, and can even be effected in real time as the
page is transmitted to a requester. The only corresponding
instrumentation required at the server is incorporation of the
applicable monitoring script in the page just after the
tag and in the page header. Thomas para. 166.
Cannon
13. Cannon is directed to advertising, and in particular to a system
and method of controlling delivery of advertisements to
consumers and for determining when to insert advertisements
between requested content. Cannon para. 2.
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ANALYSIS
Claims 1, 3–7, 9–13, and 15–18 rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more
STEP 14
Claim 1, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court:
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[w]hat
else is there in the claims before us? To answer that question, .
. . consider the elements of each 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. [The Court] described step two of this
analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc.,
566 U.S. 66 (2012)). To perform this test, we must first determine what the
claims are directed to. This begins by determining whether the claims recite

4 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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one of the judicial exceptions (a law of nature, a natural phenomenon, or an
abstract idea). Then, if the claims recite a judicial exception, determining
whether the claims at issue are directed to the recited judicial exception, or
whether the recited judicial exception is integrated into a practical
application of that exception, i.e., that 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 claim is more than a drafting effort designed
to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at
54. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 1 recites identifying user data, receiving request data, determining data
associated with other data, creating prediction data, and selecting,
assembling, and sending page articles and page data. Identifying data,
determining data associations, creating prediction data, and selecting data
are rudimentary forms of data analysis. Assembling data is basic data
modification. Sending data is transmission. Thus, claim 1 recites analyzing,
receiving, modifying, and transmitting data. None of the limitations recite
technological implementation details for any of these steps, but instead recite
only results desired by any and all possible means.
From this we see that claim 1 does not recite the judicial exceptions of
either natural phenomena or laws of nature.
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Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts5, (2) certain methods of organizing
human activity6, and (3) mental processes7. Among those certain methods
of organizing human activity listed in the Revised Guidance are commercial
or legal interactions. Like those concepts, claim 1 recites the concept of
editing disseminated content in a web publishing context, which is a
commercial context. Specifically, claim 1 recites operations that would
ordinarily take place in advising one to select content for web publication
based on predicted display times based on weighted user data regarding prior
display times. The advice to select content for publication based on
predicted display times based on weighted user data regarding prior display
times involves publishing content on the web, which is a commercial act,
and selecting content to publish, which is an act ordinarily performed in the
stream of publishing commerce. For example, claim 1 recites “sending the
page data over the network,” which is an activity that would take place

5 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
6 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
7 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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whenever one is publishing commercial content. Similarly, claim 1 recites
“selecting one or more of the plurality of articles to include in the page,”
which is also characteristic of managing commercial publication of content.
The Examiner determines the claims to be directed to providing
relevant content and advertising. Final Act. 2–3.
The preamble to claim 1 recites that it is a method for page
personalization. The steps in claim 1 result in selecting content for
publication based on predicted display times based on weighted user data
regarding prior display times absent any technological mechanism other than
a conventional computer for doing so.
As to the specific limitations, limitation 2 recites receiving data.
Limitations 1 and 3–7 recite generic and conventional analyzing, modifying,
and transmitting of user and content data, which advise one to apply generic
functions to get to these results. The limitations thus recite advice for
selecting content for publication based on predicted display times based on
weighted user data regarding prior display times. To advocate selecting
content for publication based on predicted display times based on weighted
user data regarding prior display times is conceptual advice for results
desired and not technological operations.
The Specification at paragraph 40 describes the invention (as to the
claims in the instant application) as relating to personalizing page content.
Thus, all this intrinsic evidence shows that claim 1 recites editing
disseminated content. This is consistent with the Examiner’s determination.
This in turn is an example of commercial or legal interactions as a
certain method of organizing human activity because dissemination of
content is the primary manner of coordinating activities among businesses
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and its members, and editing of such content is the way to particularize the
message within the content. Alternatively, this is an example of managing
personal behavior as a certain method of organizing human activity because
selecting content on behalf of someone for dissemination manages the
behavior of the person publishing the content. The concept of editing
disseminated content by selecting content for publication based on predicted
display times based on weighted user data regarding prior display times is
one idea for selecting content for publication. The steps recited in claim 1
are part of how this might conceptually be premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Affinity Labs of Texas, LLC v.
Amazon.com Inc., 838 F.3d 1266, 1271 (2016)(tailoring content);
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369 (2015) (tailoring content).
From this we conclude that at least to this degree, claim 1 recites
editing disseminated content by selecting content for publication based on
predicted display times based on weighted user data regarding prior display
times, which is a commercial and legal interaction, one of certain methods of
organizing human activity identified in the Revised Guidance, and, thus, an
abstract idea.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
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some technological implementation or application of, or improvement to,
this concept, i.e., integrated into a practical application.8
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, “all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.”
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. “[A]pplication[s]” of
such concepts “ ‘to a new and useful end,’ ” we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Step 2 is a pure data gathering step.
Limitations describing the nature of the data do not alter this. Step 7 is
insignificant post solution activity, such as storing, transmitting, or
displaying the results. Steps 1 and 3–6 recite generic computer processing
expressed in terms of results desired by any and all possible means and so
present no more than conceptual advice. All purported inventive aspects
reside in how the data is interpreted and the results desired, and not in how
the process physically enforces such a data interpretation or in how the
processing technologically achieves those results.
Viewed as a whole, Appellant’s claim 1 simply recites the concept of
editing disseminated content by selecting content for publication based on

8 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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predicted display times based on weighted user data regarding prior display
times as performed by a generic computer. This is no more than conceptual
advice on the parameters for this concept and the generic computer
processes necessary to process those parameters, and do not recite any
particular implementation. No technological implementation details for
measuring such prior display times are recited. The claims do no more than
generically process records that represent such time data after measurement.
Claim 1 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The Specification only spells out different
generic equipment9 and parameters that might be applied using this concept
and the particular steps such conventional processing would entail based on
the concept of editing disseminated content by selecting content for
publication based on predicted display times based on weighted user data
regarding prior display times under different scenarios. It does not describe
any particular improvement in the manner a computer functions. Instead,
claim 1 at issue amounts to nothing significantly more than an instruction to
apply editing disseminated content by selecting content for publication based
on predicted display times based on weighted user data regarding prior
display times using some unspecified, generic computer. Under our
precedents, that is not enough to transform an abstract idea into a patent-
eligible invention. See Alice, 573 U.S. at 225–26.
None of the limitations reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for

9 The Specification describes a general purpose computer. Spec. para. 103.
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a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or applies or uses the judicial
exception in some other meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception.
We conclude that claim 1 is directed to achieving the result of editing
disseminated content by advising one to select content for publication based
on predicted display times based on weighted user data regarding prior
display times, as distinguished from a technological improvement for
achieving or applying that result. This amounts to commercial or legal
interactions, which fall within certain methods of organizing human activity
that constitute abstract ideas. The claim does not integrate the judicial
exception into a practical application.
STEP 2B
The next issue is whether claim 1 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
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computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[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. They do not.
Taking the claim elements separately, the Specification evidences that
the function performed by the computer at each step of the process is purely
conventional. See e.g., Spec. ¶¶ 100, 101, 103, 105, 123, Fig. 9A. Using a
computer for analyzing, receiving, modifying, and transmitting data amounts
to electronic data query and retrieval—one of the most basic functions of a
computer. The step 3 wherein clause limitations of logging by a page event
module and receiving client side beacons are not steps, but a recitation of
how the user profile data determined in step 3 originated prior to the scope
of the claim, viz. a characterization of data origination, which is aspirational
rather than functional. All of these computer functions are generic, routine,
conventional computer activities that are performed only for their
conventional uses. See Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016). Also see In re Katz Interactive Call Processing
Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible
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narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . .
. those functions can be achieved by any general purpose computer without
special programming”). None of these activities is used in some
unconventional manner nor do any produce some unexpected result.
Appellant does not contend they invented any of these activities. In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, “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.” SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161,
1168 (Fed. Cir. 2018).
Considered as an ordered combination, the Specification evidences
that the computer components of Appellant’s claim 1 add nothing that is not
already present when the steps are considered separately. See e.g., Spec.
¶¶ 100, 101, 103, 105, 123, Fig. 9A. The sequence of data analysis-
reception-modification-transmission is equally generic and conventional.
See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Communications,
LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
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We conclude that claim 1 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
REMAINING CLAIMS
Claim 1 is representative. The other independent method claims 7 and
13 are substantially similar at least as regards this analysis. The remaining
method claims merely describe process parameters. We conclude that the
method claims at issue are directed to a patent-ineligible concept itself, and
not to the practical application of that concept.
There are no structural claims. As a corollary, the claims are not
directed to any particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by the commercial and
legal interaction of editing disseminated content by advising one to select
content for publication based on predicted display times based on weighted
user data regarding prior display times, without significantly more.
APPELLANT’S ARGUMENTS
As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Non-Final Action 2–7 and Answer 3–7
and reach similar legal conclusions. We now turn to the Reply Brief.
We are not persuaded by Appellant's argument that the:
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claimed subject matter includes more than “screening” and
“comparing information,” but is drawn to a specific tangible
application that responds to requests through assembly of page
data, using specifically selected articles, and transmittal of the
page data over the network to the client device to define the
page when rendered by the client device.
Reply Br. 3. As we determine supra, selecting, assembling, and transmitting
content are conventional data operations. The claims are no more than using
such conventional operations for the conceptual idea of editing disseminated
content by advising one to select content for publication based on predicted
display times based on weighted user data regarding prior display times.
The arguments pertaining to the cases Examiner cites are similar, and are
equally unpersuasive.
Claims 1, 3–7, 11–13 and 15–18 rejected under 35 U.S.C. § 103 as
unpatentable over Plummer, Thomas, and Cannon
We adopt Examiner’s findings and conclusion from Non-Final Action
8–22 and Answer 17 and reach similar legal conclusions. We now turn to
the Reply Brief.
We are not persuaded by Appellant's argument that Thomas:
does not disclose or suggest the Appellant's claimed features of
determining dwell times of specific articles, each dwell time of
an article defining a duration of time the article was actively
displayed during a browser session of the user. Thomas teaches
measuring the duration of usage of an application, whereas the
claimed subject matter recites dwell times of specific articles
Reply Br. 5. The claims assemble page content selected based on selection
criteria. The criteria in the claims happen to be predictions of how long a
reader will stay on content, but the criteria are just that, predictions. The
issue is whether it was predictable to base such predictions on past history.
Thomas describes monitoring such user interactions including past time
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history as a measure of user activity. Thomas shows it was known to collect
past time usage data for deciding what to add to web pages. This is
sufficient to show it was obvious to use such data for assembling content for
a user on a web page.
Claims 9 and 10 rejected under 35 U.S.C. § 103 as unpatentable over
Plummer, Thomas, Cannon, and Wu
These claims are not separately argued.
CONCLUSIONS OF LAW
The rejection of claims 1, 3–7, 9–13, and 15–18 under 35 U.S.C.
§ 101 as directed to a judicial exception without significantly more is proper.
The rejection of claims 1, 3–7, 11–13 and 15–18 under 35 U.S.C.
§ 103 as unpatentable over Plummer, Thomas, and Cannon is proper.
The rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as
unpatentable over Plummer, Thomas, Cannon, and Wu is proper.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
1, 3–7, 9–13,
15–18
101 Eligibility 1, 3–7, 9–13,
15–18

1, 3–7, 11–13,
15–18
103 Plummer,
Thomas,
Cannon
1, 3–7, 11–13,
15–18

9, 10 103 Plummer,
Thomas,
Cannon, Wu
9, 10
Overall
Outcome
1, 3–7, 9–13,
15–18

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED