Yonatan Wexler et al.

Patent Trials and Appeals Board

Sep 3, 2019

14807038 - (D) (P.T.A.B. Sep. 3, 2019)

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.
14/807,038 07/23/2015 Yonatan Wexler 12234.0026-00000 2506
22852 7590 09/03/2019
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
MOYER, ANDREW M
ART UNIT PAPER NUMBER
2663
NOTIFICATION DATE DELIVERY MODE
09/03/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte YONATAN WEXLER and AMNON SHASHUA
____________________

Appeal 2018-004296
Application 14/807,038
Technology Center 2600
____________________

Before JOSEPH L. DIXON, JOHN A. JEFFERY, and JUSTIN BUSCH,
Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner’s decision to reject claims 1–33, which constitute all the claims
pending in this application. We have jurisdiction over the pending claims
under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
Appellants’ disclosure relates to “devices and methods for capturing
and [selectively] processing images from an environment of a user.” Spec.
¶ 2, Abstract. More specifically, embodiments of Appellants’ claimed
invention relate to “an apparatus and methods for distinguishing between
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different types of captured image data.” Spec. ¶ 5. Exemplary embodiments
use rules to classify images as key images and auxiliary images and delete
some of the auxiliary images. Spec. ¶¶ 6, 8, Abstract. Other embodiments
identify “a visual trigger associated with a private contextual situation,” and
delete images including that visual trigger. Spec. ¶ 7. Claims 22 and 26 are
representative of the claimed subject matter and reproduced below:
22. A wearable apparatus for selectively processing images,
the wearable apparatus comprising:
an image sensor configured to capture a plurality of
images from an environment of a user; and
at least one processing device programmed to:
receive image data representative of the plurality of
images;
analyze, using at least one automated image
processing technique, the image data representative of one
or more of the plurality of images;
detect, in the image data representative of at least
one of the plurality of images, a face;
classify the at least one image in which the face
appears as a key image;
determine that the key image includes, a visual
trigger associated with a private contextual situation; and
delete the key image that includes the visual trigger
associated with the private contextual situation.

26. A computer-implemented method for selectively
processing images, the method comprising:
receiving, by at least one processing device, image data
representative of a plurality of images captured by at least one
image sensor included in a wearable apparatus;
analyzing, using at least one automated image processing
technique, the image data representative of one or more of the
plurality of images;
detecting, in the image data representative of at least one
of the plurality of images, a face;
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identifying at least one facial feature in the image data
representative of the at least one image;
determining, based on the at least one facial feature, that
the face is of a person known to the user;
classifying at least a first subset of the plurality of images
that include the face of a person known to the user as key images
and at least a second subset of the plurality of images that do not
include the face of the person known to the user as auxiliary
images; and
deleting at least some of the auxiliary images.
REJECTIONS
Claims 1–25 and 32 stand rejected under 35 U.S.C. § 112(b) as
indefinite. Final Act. 9–10.
Claims 1–13, 16, 17, 19, 21, 22, 24, and 26–33 stand rejected under
35 U.S.C. § 101 as being directed to ineligible subject matter. Final
Act. 10–11.
Claims 1, 9–12, 16–18, 26, and 31 stand rejected under 35 U.S.C.
§ 103 as obvious in view of Ollila (US 2008/0170130 A1; July 17, 2008),
Prentice (US 2012/0287217 A1; Nov. 15, 2012), and Wang (US
2014/0241574 A1; Aug. 28, 2014). Final Act. 12–20.
Claims 2, 5–8, and 28–30 stand rejected under 35 U.S.C. § 103 as
obvious in view of Ollila, Prentice, Wang, and Calman (US 2012/0232937
A1; Sept. 13, 2012). Final Act. 20–24.
Claims 3 and 19–21 stand rejected under 35 U.S.C. § 103 as obvious
in view of Ollila, Prentice, Wang, and Mick (US 2008/0228821 A1;
Sept. 18, 2008). Final Act. 24–26.
Claims 4 and 27 stand rejected under 35 U.S.C. § 103 as obvious in
view of Ollila, Prentice, Wang, and Bilcu (US 2009/0245633 A1; Oct. 1,
2009). Final Act. 27–28.
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Claim 13 stands rejected under 35 U.S.C. § 103 as obvious in view of
Ollila, Prentice, Wang, and Yoo (US 2009/0023472 A1; Jan. 22, 2009).
Final Act. 28–29.
Claims 14 and 15 stand rejected under 35 U.S.C. § 103 as obvious in
view of Ollila, Prentice, Wang, and Wu (US 2006/0193387 A1; Aug. 31,
2006). Final Act. 29–30.
Claims 22–24 stand rejected under 35 U.S.C. § 103 as obvious in
view of Ollila, Prentice, and Mick. Final Act. 30–33.
Claim 25 stands rejected under 35 U.S.C. § 103 as obvious in view of
Ollila, Prentice, Mick, and Keyes (US 9,141,194 B1; Sept. 22, 2015). Final
Act. 33–34.
Claims 32 and 33 stand rejected under 35 U.S.C. § 103 as obvious in
view of Ollila, Prentice, Wang, and Holland (US 2012/0327258 A1; Dec.
27, 2012). Final Act. 34–36.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellants made.
Arguments Appellants could have made, but chose not to make in the Briefs,
are deemed waived. See 37 C.F.R. § 41.37(c)(1)(iv).
THE 35 U.S.C. § 112 REJECTION
The Examiner concludes claims 1–28 and 32 are indefinite. Final
Act. 9–10; Ans. 33–34. In particular, the Examiner concludes claims 1–28
and 32 recite various limitations that invoke pre-AIA 35 U.S.C. § 112(f) and
the Specification provides inadequate support for the corresponding
structure to the recited means. Final Act. 8–10; Ans. 31–34.
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Appellants only response is that 35 U.S.C. § 112(f) does not apply
because a person of ordinary skill in the art “would understand that
‘processing device’ would have a sufficiently definite meaning as the name
of a structure to perform the claimed functions. Appeal Br. 6; Reply Br. 3–
4.
Claim 1 recites, in relevant part, “one processing device programmed
to: receive image data . . .; analyze . . . the image data . . .; detect, in the
image data . . . a face; identify at least one facial feature . . .; determine,
based on the at least one facial feature, that the face is of a person known to
the user; classify” images into key images and auxiliary images; and “delete
at least some of the auxiliary images.” Appeal Br. 20 (claim 1, emphases
added). Claim 22 recites similar limitations. Appeal Br. 25. More
specifically, claim 22 recites commensurate limitations to claim 1’s recited
processing device programmed to receive image data; analyze the image
data; detect, in the image data, a face; and delete certain identified images.
Appeal Br. 25. Claim 22 does not recite the processing device is
programmed to identify a facial feature, determine the face is of a person
known to the user, or classify the images into both key and auxiliary images,
as recited in claim 1. Appeal Br. 25. Claim 22, however, recites classifying
images including a face as a key image (but is silent regarding auxiliary
images) and additionally recites that the processing device is programmed
determine a key image includes “a visual trigger associated with a private
contextual situation.” Appeal Br. 25.
Generic terms such as “mechanism,” “element,” “device,” and other
“nonce words” used in a claim can also be considered as a substitute for the
“means-plus-function” limitation and, as such, may invoke the application of
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35 U.S.C. § 112(f),1 even without reciting the term “means,” because these
generic terms or nonce words “‘typically do not connote sufficiently definite
structure.”’ Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1350 (Fed.
Cir. 2015) (en banc). As in Williamson, the claims here do not recite the
term “means,” but “the [processing device] limitation is drafted in the same
format as a traditional means-plus-function limitation, and merely replaces
the term ‘means’ with ‘nonce’ word ‘device,’ thereby connoting a generic
‘black box’ for performing the recited computer-implemented functions.”
Williamson, 792 F.3d at 1350.
The term “device” in this context is used as a generic term tantamount
to reciting a means because “device” provides no indication of the structure
necessary to perform the recited functions. The claim limitation in question
is not the “processing device” by itself; it includes all of the functions the
processing device is “programmed to” perform. See Williamson, 792 F.3d at
1350. Specifically, at least the functions italicized above require structure
beyond simply a generic processor to carry out the claimed functions.
Accordingly, the presumption against applying 35 U.S.C. § 112(f) is
overcome because the claim merely “recites ‘function without reciting
sufficient structure for performing that function.’” Williamson, 792 F.3d at
1348 (quoting Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000)).
Similarly, the prefix “processing” provides one of ordinary skill in the
art no insight on the structure necessary to perform the recited functions.

1 The pre-AIA sections of the statute were applicable in Williamson, but pre-
AIA 35 U.S.C. § 112, sixth paragraph, corresponds to the current § 112(f).
We refer to 35 U.S.C. § 112(f) throughout this opinion, even when referring
to determinations made in cases when § 112, sixth paragraph, was in effect,
except when directly quoting from other cases.
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Here, as in Williamson, even if one of ordinary skill in the art would be
capable of programming a computer to perform the recited functions, it is
not sufficient to create the structure not otherwise disclosed. Williamson,
792 F.3d at 1351.
Even to the extent a person of ordinary skill in the art would have
understood the recited “processing device” to include generic computer
components (e.g., a processor or device including a processor), such generic
computer components without specific programming are not capable of
performing each of the recited functions. Williamson, 792 F.3d at 1350–51
(finding the presumption against invoking 35 U.S.C. § 112(f) is overcome
because the recitation of a “distributed learning control module” connotes
insufficient structure for carrying out the recited functions). Appellants
provide no argument or evidence indicating a generic processor, without the
appropriate specific programming would be capable of performing at least
the italicized functions (i.e., detecting a face in an image, identifying a facial
feature, determining the face is of a person known to the user, and
classifying the images into key images and auxiliary images).
Even prior to Williamson overruling previous cases holding the
presumption that § 112(f) is not invoked if the claim does not recite the term
“means” is “strong,” 792 F.3d at 1349, expanded panels of this Board
provided guidance on the issue before us. For example, the expanded panels
found the recitation of a generic processor configured to perform functions
that would require special programming invoked § 112(f). Ex parte
Lakkala, Appeal No. 2011-001526, 2013 WL 1341108, at *6 (PTAB Mar.
11, 2013) (expanded panel) (informative). Similarly, the Board found a
claim that recited, in part, “a processor adapted to” perform various
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functions invoked § 112(f), and explained that “[t]o see whether the
presumption is overcome, we look to how a skilled artisan would understand
‘processor,’ whether the limitation recites sufficient structure, material, or
acts for achieving the recited functions, and whether the term ‘processor’ is
modified by functional language.” Ex parte Erol, Appeal No. 2011-001143,
2013 WL 1341107, at *8–9 (PTAB Mar. 11, 2013) (expanded panel)
(informative); accord Ex parte Smith, Appeal No. 2012-007631, 2013 WL
1341109, at *6–8 (PTAB Mar. 12, 2013) (expanded panel) (informative).
The expanded panel further explained that, “[t]o confirm whether the
presumption against such a substitution is overcome, we look to determine
whether the functions performed by the processor are typical functions
found in a commercially, available off-the-shelf processor, which would
weigh against invoking § 112, sixth paragraph.” Erol, 2013 WL 1341107, at
*8.
Therefore, even though claims 1 and 22 recite a “processing device”
rather than a “means,” we agree with the Examiner that aspects of claims 1
and 22 invoke 35 U.S.C. § 112(f) such that they are construed as means-
plus-function limitations because the recited “processing device” would not
be “understood by persons of ordinary skill in the art to have a sufficiently
definite meaning as the name for structure” that is capable of carrying out
each of the recited functions. Williamson, 792 F.3d at 1348 (citing
Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1584 (Fed. Cir.
1996)).
Accordingly, we look to Appellants’ Specification to determine
whether there is sufficient structure to support the recited functions. The
Examiner finds the Specification’s only disclosure of corresponding
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structure for the recited processing device is a processor. Final Act. 8.
Notably, Appellants do not state on this record, let alone provide any
supporting evidence regarding, what structure a person of ordinary skill in
the art allegedly would understand a “processing device” encompasses. See
Appeal Br. 6; Reply Br. 3–4. On this record, we agree with the Examiner
that the only disclosed structure corresponding to the recited “processing
device” is a generic processor. See Spec. ¶¶ 43, 58 (explaining that
“‘processing device’ includes any physical device having an electric circuit
that performs a logic operation on input or inputs”), 74, 79 (describing a
generic processor as an example of a “processing device”). As discussed
above, a generic processor does not provide sufficient structure to perform
each of the recited functions.
However, the Federal Circuit has held that corresponding structure
may be sufficiently disclosed in the form of an algorithm. WMS Gaming,
Inc. v. Int’l Game Tech., 184 F.3d 1339, 1348 (“A general purpose
computer, or microprocessor, programmed to carry out an algorithm creates
‘a new machine, because a general purpose computer in effect becomes a
special purpose computer once it is programmed to perform particular
functions pursuant to instructions from program software.’” (quoting In re
Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994) (en banc)). The
Specification’s disclosure that the system may be implemented using
computer programs suggests the claimed processing devices may simply be
software executing on generic computer components, which, without
specific programming, are not capable of performing each of the recited
functions. See Spec. ¶ 142.
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The “processing device” in claims 1 and 22 “recites ‘function without
reciting sufficient structure for performing that function,’” because
Appellants’ system is unable to perform the recited function without specific
programming. Williamson, 792 F.3d at 1349 (quoting Watts, 232 F.3d at
880).
Appellants’ identify portions of the Specification that allegedly
provide support for each of limitations recited in claims 1, 22, and 26.
Appeal Br. 3–5 (citing Spec. ¶¶ 41, 43, 57–58, 60, 77–79, 135, Figs. 5A–5C,
6, 9, 12). Paragraphs 41, 43, and 60 of the Specification simply disclose, at a
high level, that a processor may be used to perform the functions recited in
claims 1 and 22, and the processor may include a processing device either
accesses a memory storing executable instructions or stores the instructions
itself, wherein executing the instructions results in performing the recited
functions. Spec. ¶¶ 41, 43, 60. Paragraphs 57 and 58 of the Specification
disclose, at a high level, hardware components of an apparatus depicted in
Figure 5A and that the processing device may include any physical device
that performs a logic operation on inputs, such as various generic processors.
Spec. ¶¶ 57–58, Fig. 5A. Paragraphs 77 through 79 and 135 of the
Specification disclose various exemplary image storage options, the general
function of identifying triggers, and the fact that an apparatus may be
configured to process images to distinguish and classify images. Spec.
¶¶ 77–79, 135.
None of these disclosures describe details (e.g., an algorithm or other
corresponding structure) on how to perform each of the recited functions.
Williamson, 792 F.3d at 1352 (“Even if the specification discloses
corresponding structure, the disclosure must be of ‘adequate’ corresponding
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structure to achieve the claimed function.”). Although a general purpose
computer may provide sufficient structure to perform functions that do not
require special programming, the same general purpose computer is
insufficient structure for performing specific functions that require special
programming. In re Katz, 639 F.3d 1303, 1316 (Fed. Cir. 2011). Therefore,
based on this record, we conclude the term “processing device programmed
to . . . detect . . .; identify . . .; determine . . .; [and] classify” fails “to fulfill
the ‘public notice function’ of 35 U.S.C. § 112 ¶ 2 by ‘particularly pointing
out and distinctly claiming’ the invention” and “exhibit the ‘overbreadth
inherent in open-ended functional claims.” Katz, 639 F.3d at 1315 (citing
Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1319 (Fed. Cir. 2008); quoting
Halliburton Energy Servs. v. M–I LLC, 514 F.3d 1244, 1256 n.7 (Fed. Cir.
2008)). For the above reasons, we agree with the Examiner that claims 1–25
and 32 are indefinite under 35 U.S.C. § 112(b).
THE 35 U.S.C. § 101 REJECTION
The Examiner concludes claims 1–13, 16, 17, 19, 21, 22, 24, and 26–
33 are directed to judicially excepted subject matter. Final Act. 10–11;
Ans. 34–36. More specifically, the Examiner determines Appellants’ claims
are directed to “recording, organizing, and transmitting data, and other
routine human activity,” and the additional elements recite only generic
components (i.e., a camera and a processor) to perform the abstract idea.
Final Act. 10–11. Appellants argue the § 101 rejection of all claims as a
group. Appeal Br. 6–13; Reply Br. 4–11. We select claim 26 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573
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U.S. 208, 217 (2014). In addition, the United States Patent and Trademark
Office recently published revised guidance for evaluating subject matter
eligibility under 35 U.S.C. § 101, specifically with respect to applying the
Alice framework. USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”).
If a claim falls within one of the statutory categories of patent
eligibility (i.e., a process, machine, manufacture, or composition of matter),
we determine whether the claim is directed to one of the judicially
recognized exceptions (i.e., a law of nature, a natural phenomenon, or an
abstract idea). Alice, 573 U.S. at 217. As part of our inquiry, we “look at
the ‘focus of the claimed advance over the prior art’ to determine if the
claim’s ‘character as a whole’ is directed to excluded subject matter.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016). The Guidance directs us to address this inquiry using the
following two prongs of analysis: (i) does the claim recite a judicial
exception (e.g., an abstract idea), and (ii) if so, is the judicial exception
integrated into a practical application. 84 Fed. Reg. at 54.
Under the Guidance, if the judicial exception is integrated into a
practical application, the claim is patent eligible under § 101. 84 Fed. Reg.
at 54–55. If the claim is directed to a judicial exception (i.e., the claim both
recites a judicial exception and fails to integrate the exception into a
practical application), we next determine whether the claim provides an
inventive concept, which includes determining whether any element, or
combination of elements, amounts to significantly more than the judicial
exception. Alice, 573 U.S. at 217; 84 Fed. Reg. at 56.
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Here, we conclude representative claim 26 recites an abstract idea
because it recites mental processes. If a claim, under its broadest reasonable
interpretation, covers performance in the mind but for the recitation of
generic computer components, then it is still in the mental processes
category unless the claim cannot be performed practically in the mind. See
Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed.
Cir. 2016) (“[W]ith the exception of generic computer-implemented steps,
there is nothing in the claims themselves that foreclose them from being
performed by a human, mentally or with pen and paper.”). More
specifically, claim 26 generally is directed to receiving, analyzing, and
classifying image data to enable selectively deleting a portion of the images.
This is consistent with how Appellants describe the claimed invention. See
Spec. ¶¶ 2 (“More particularly, this disclosure relates to devices and
methods for selectively processing images.”), 5 (“Embodiments consistent
with the present disclosure provide an apparatus and methods for
distinguishing between different types of captured image data.”), 6 (“The at
least one processing device is also programmed to classify . . . images as key
images and . . . auxiliary images. The at least one processing device is
further programmed to delete at least some of the auxiliary images.”), Fig. 9.
Consistent with our Guidance and case law, we conclude that
receiving, analyzing, and classifying image data to enable selectively
deleting a portion of the images is a mental process and, therefore, an
abstract idea. See 84 Fed. Reg. at 52; Content Extraction and Transmission
LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014)
(“collecting data, . . . recognizing certain data within the collected data set,
and . . . storing that recognized data in a memory” is an abstract idea); see
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also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–54
(Fed. Cir. 2016) (explaining that “analyzing information by steps people go
through in their minds” is a mental process within the abstract idea category
and concluding claims directed to “collecting information, analyzing it, and
displaying certain results of the collection and analysis” were abstract);
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340
(Fed. Cir. 2017) (concluding claims that focused on collecting, displaying
and manipulating data were directed to an abstract idea).
Claim 26 is reproduced below, with the claim limitations that recite
elements of the abstract idea of receiving, analyzing, and classifying image
data to enable selectively deleting a portion of the images emphasized in
italics:
26. A computer-implemented method for selectively
processing images, the method comprising:
receiving, by at least one processing device, image data
representative of a plurality of images captured by at least one
image sensor included in a wearable apparatus;
analyzing, using at least one automated image processing
technique, the image data representative of one or more of the
plurality of images;
detecting, in the image data representative of at least one
of the plurality of images, a face;
identifying at least one facial feature in the image data
representative of the at least one image;
determining, based on the at least one facial feature, that
the face is of a person known to the user;
classifying at least a first subset of the plurality of images
that include the face of a person known to the user as key images
and at least a second subset of the plurality of images that do not
include the face of the person known to the user as auxiliary
images; and
deleting at least some of the auxiliary images.
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More particularly, receiving, analyzing, and classifying image data to
enable selectively deleting a portion of the images comprises (i) receiving
image data; (ii) analyzing the image data; (iii) detecting a face in the image
data; (iv) identifying a facial feature in the image data; (v) determining,
based on the identified facial feature, whether the face is of a person the user
knows; and (vi) classifying images that include a known person as key
images and other images as auxiliary images. These image collection and
analysis steps constitute mental process because receiving information,
analyzing the received information, detecting and identifying elements
within the information, and classifying the data based on the identified
elements are all steps that could be performed mentally. Our Guidance
identifies mental processes are a category of abstract ideas. 84 Fed. Reg. at
52 (explaining that “observation, evaluation, judgment, and opinion” are
examples of concepts that can be performed in the human mind); see also
Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–54
(Fed. Cir. 2016) (explaining that “analyzing information by steps people go
through in their minds” is a mental process within the abstract-idea
category).
Because the claim recites a judicial exception, we next determine
whether the claim integrates the judicial exception into a practical
application. 84 Fed. Reg. at 54. To determine whether the judicial
exception is integrated into a practical application, we identify whether there
are “any additional elements recited in the claim beyond the judicial
exception(s)” and evaluate those elements to determine whether they
integrate the judicial exception into a recognized practical application. 84
Fed. Reg. at 54–55 (emphasis added); see also Manual of Patent Examining
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Procedure (“MPEP”) § 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017,
Jan. 2018).
Here, the additional limitations recited beyond the judicial exception
itself fail to integrate the exception into a practical application. More
particularly, the claims do not recite: (i) an improvement to the functionality
of a computer or other technology or technical field (see MPEP
§ 2106.05(a)); (ii) a “particular machine” to apply or use the judicial
exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an
article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other
meaningful limitation (see MPEP § 2106.05(e)). See also 84 Fed. Reg.
at 55.
Rather, the additional elements simply recite a generic “processing
device” that performs the receiving and analyzing steps, and the insignificant
post-solution activity of deleting some of the images that were classified as
auxiliary images. Spec. ¶¶ 43, 58, 74, 79; see 84 Fed. Reg. at 55; MPEP
§§ 2106.05(f)–(g). To the extent the claims require an image sensor and a
wearable apparatus, these elements also are generic computer components
recited at a high level of generality. Spec. ¶¶ 49, 53, 96, Figs. 1A–1D, 3A–
5C, 7, 14. Accordingly, the physical components simply recite the use of
generic computer components as tools to implement the abstract idea. 84
See Fed. Reg. at 55; MPEP § 2106.05(f).
Appellants assert the claims are not directed to an abstract idea.
Appeal Br. 7–10; Reply Br. 4–8. Specifically, Appellants argue the claims
are directed to more than the alleged abstract idea, “the claims recite a
technological solution to a technical problem of managing memory
resources in a wearable image capture apparatus” by selectively deleting
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certain images, and the claims are directed to a wearable apparatus with
specific image analysis steps. Appeal Br. 7–8.
Appellants’ arguments that the claims are directed to more than the
alleged abstract idea itself, Appeal Br. 7–10, are unpersuasive for the
reasons discussed above. More specifically and contrary to Appellants’
arguments, Appeal Br. 8–10, Appellants’ claims are not similar to the claims
found eligible in McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
1299 (Fed. Cir. 2016). The claims in McRO—unlike the claims here—
recited a “specific . . . improvement in computer animation” using
“unconventional rules” that related “sub-sequences of phonemes, timings,
and morph weight sets” to automatically animate lip synchronization and
facial expressions for three-dimensional characters that only human
animators could previously produce. McRO, 837 F.3d at 1302–03, 1307–08,
1313–15. In McRO, “the incorporation of the claimed rules” improved an
existing technological process. McRO, 837 F.3d at 1314.
In contrast, claim 26 does not improve an existing technological
process. See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed.
Cir. 2016) (distinguishing between claims wherein the focus of the claims is
on an improvement in computer capabilities and those that invoke a
computer as a tool). The additional elements recited in claim 26 beyond the
abstract idea merely require: (1) performing two of the steps using a generic
processing device; (2) the images are captured by an image sensor included
in a wearable apparatus; and (3) deleting at least some of the images
classified as auxiliary images. In other words, Appellants merely claim
using known technology (i.e., a processing device, and an image sensor
included in a wearable device) to perform their known functions (i.e.,
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executing instructions and capturing images, respectively) as a tool to assist
in an the abstract mental steps of receiving and analyzing image data. See
Alice, 573 U.S. at 222 (using a computer to perform known processes is not
enough to supply an inventive concept). Appellants’ claimed components,
therefore, amount to using technology as a tool, not improving computer
capabilities. See Enfish, 822 F3.d at 1335–36.
Regarding Appellants’ argument that the claims provide a specific
technological solution to a technical problem of selectively deleting images,
Appeal Br. 7–10; Reply Br. 4–8, we disagree. Appellants’ arguments focus
on the physical components, which we addressed above, and the fact that the
claims recite a “specific technique” for selectively deleting images. Appeal
Br. 7–10. Appellants fail to recognize, however, that the recited mental
steps are the abstract idea itself and, therefore, cannot integrate the abstract
idea into a practical application. We look to the elements recited in addition
to the abstract idea to determine whether the claims integrate the abstract
idea into a practical application. 84 Fed. Reg. at 54. We disagree that the
claim recites an improvement to the functionality of a computer, other
technology, or a technical field because, other than the mental steps, the
claims recite only generic computer components and insignificant post-
solution activity, as explained above. We note that “relying on a computer
to perform routine tasks more quickly or more accurately is insufficient to
render a claim patent eligible.” OIP Technologies, Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1363 (Fed. Cir. 2015); see Alice, 573 U.S. at 224 (“use of a
computer to create electronic records, track multiple transactions, and issue
simultaneous instructions” is not an inventive concept).
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We emphasize that Appellants neither claim nor describe any
technological improvement. Rather, Appellants’ merely claim collecting
image data using a generically recited wearable device having an image
sensor, performing a series of mental steps (some of which claim 26 recites
are performed by a generic “processing device”), and deleting a subset of the
images. As discussed above, the Specification describes the physical
components (i.e., processing device and image sensor included in a wearable
device) at a high level of generality, suggesting that a person of ordinary
skill in the art would know how to make and use the feature such that the
Specification does not need to describe the particulars of this additional
element to satisfy 35 U.S.C. § 112(a). Thus, we are not persuaded
representative claim 26 recites a technological improvement; rather claim 26
merely recites insignificant activity that uses existing components to collect
and process image data.
For at least the foregoing reasons, representative claim 26 does not
integrate the judicial exception into a practical application.
Because we determine claim 26 is directed to an abstract idea, we
analyze the claims under step two of Alice to determine whether there are
additional limitations that individually, or as an ordered combination, ensure
the claims amount to “significantly more” than the abstract idea. Alice, 573
U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 72–73, 77–79 (2012)). As stated in the Guidance, many of the
considerations to determine whether the claims amount to “significantly
more” under step two of the Alice framework are already considered as part
of determining whether the judicial exception has been integrated into a
practical application. 84 Fed. Reg. at 56. Thus, at this point of our analysis,
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we determine if the claims add a specific limitation, or combination of
limitations, that is not well-understood, routine, conventional activity in the
field, or simply appends well-understood, routine, conventional activities at
a high level of generality. 84 Fed. Reg. at 56.
Appellants also contend the claims recite significantly more than the
abstract idea. Appeal Br. 10–13; Reply Br. 8–11. In particular, Appellants
argue “reliance on conventional computer activity does not preclude a
finding of ‘significantly more’ than an abstract idea” and the claims “recite a
specific, discrete implementation” including “a particular combination of
steps” (i.e., “a ‘technology-based solution’ based on specific steps that in
combination obviates preemption concerns). Appeal Br. 12–13; Reply
Br. 10–11.
An inventive concept “cannot be furnished by the unpatentable law of
nature (or natural phenomenon or abstract idea) itself.” Genetic Techs. Ltd.
v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016); see also 84 Fed.
Reg. at 56; Alice, 573 U.S. at 217 (explaining that, after determining a claim
is directed to a judicial exception, “we then ask, ‘[w]hat else is there in the
claims before us?’” (emphasis added, brackets in original)
(quoting Mayo, 566 U.S. at 78)). Instead, an “inventive concept” is
furnished by an element or combination of elements that is recited in the
claim in addition to the judicial exception and sufficient to ensure the claim
as a whole amounts to significantly more than the judicial exception
itself. Alice, 573 U.S. at 218–19 (citing Mayo, 566 U.S. at 72–73); see BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018)
(explaining that the Supreme Court in Alice “only assessed whether the
claim limitations other than the invention’s use of the ineligible concept to
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which it was directed were well-understood, routine and conventional,”
(emphasis added)).
Appellants are correct that reciting conventional computer
components does not render the claims ineligible, but neither does reciting
such components provide an inventive concept sufficient to transform an
otherwise abstract idea into patent-eligible subject matter. See also
Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314,
1324–25 (Fed. Cir. 2016) (generic computer components such as an
“interface,” “network,” and “database” fail to satisfy the inventive concept
requirement). Representative claim 26 fails to recite specific limitations (or
a combination of limitations) that are not well-understood, routine, and
conventional. Rather, the only additional elements (i.e., the “processing
device,” “image sensor included in a wearable apparatus,” and the deleting
step) are generic computer components recited at a high level of generality
or a basic computer function, none of which Appellants argue is beyond
what was well-understood, routine, and conventional in the art. See Spec.
¶¶ 43, 58, 74, 79; see Berkheimer Memo2 § III.A.1.
To the extent Appellants argue the receiving, analyzing, detecting,
identifying, determining, and classifying steps add significantly more, we

2 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.)” at 3 (Apr. 19, 2018), available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF (explaining that a specification that describes additional
elements “in a manner that indicates that the additional elements are
sufficiently well-known that the specification does not need to describe the
particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can
show that the elements are well understood, routine, and conventional).
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note that these steps are part of the ineligible abstract idea. “If a claim’s
only ‘inventive concept’ is the application of an abstract idea using
conventional and well-understood techniques, the claim has not been
transformed into a patent-eligible application of an abstract idea.” BSG
Tech, 899 F.3d at 1290–91 (citing Berkheimer v. HP Inc., 881 F.3d 1360,
1370 (Fed. Cir. 2018)). “[I]t is irrelevant whether [the claimed abstract idea]
may have been non-routine or unconventional as a factual matter . . .
narrowing or reformulating an abstract idea does not add ‘significantly
more’ to it.” BSG Tech, 899 F.3d at 1291.
Similarly, Appellants reliance on BASCOM Glob. Internet Servs., Inc.
v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), Appeal Br. 11–13,
is unpersuasive. In BASCOM, the court found “the patent describes how its
particular arrangement of elements is a technical improvement,” and, when
construed in favor of BASCOM,3 the claims may be read to improve an
existing technological process. BASCOM, 827 F.3d at 1350. As discussed
above, representative claim 26 does not improve an existing technological
process, but rather uses existing technology to perform the abstract idea or
claim a desired functional goal (i.e., identifying and classifying key images).
Additionally, Appellants do not clearly indicate what additional elements
they believe recite an unconventional element or combination of elements.
Furthermore, unlike the arrangement of elements (i.e., installation of a
filtering tool at a specific location) in BASCOM, 827 F.3d at 1349–50, we
see nothing in representative claim 26 that recites a non-conventional and
non-routine arrangement of known elements.

3 In BASCOM, BASCOM appealed the district court's granting of a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). BASCOM, 827 F.3d at 1341
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For the above reasons, Appellants have not persuaded us of Examiner
error, and we sustain the Examiner’s rejection of claims 1–13, 16, 17, 19, 21,
22, 24, and 26–33 under 35 U.S.C. § 101.
THE 35 U.S.C. § 103 REJECTIONS
Claims 1, 9–12, 16–18, 26, and 31
Appellants argue claims 1, 9–12, 16–18, 26, and 31 as a group.
Appeal Br. 15 (arguing claims 9–12 and 16–18, which depend from claim 1,
as well as claims 26 and 31, which recite limitations similar to those recited
in claim 1, are patentable over the Examiner’s proposed combination for the
same reasons argued with respect to claim 1). We select independent claim
26 as representative of claims 1, 9–12, 16–18, 26, and 31. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner finds the combination of Ollila, Prentice, and Wang
teaches or suggests every limitation recited in claims 1, 9–12, 16–18, 26, and
31. Final Act. 12–20. Of particular note regarding representative claim 26,
the Examiner finds: Ollila teaches or suggests the receiving and deleting
steps and classifying images into key images and auxiliary images; Prentice
teaches or suggests the analyzing, detecting, and identifying steps and
images that include a face being key images and images that do not being
auxiliary images; and Wang teaches or suggests the determining step and,
cumulative with Prentice, Wang also teaches or suggests the identifying step
and images that include a face being key images and images that do not
being auxiliary images. Final Act. 18 (citing Ollila ¶¶ 20, 22, 32, 39, 53,
63), 18–19 (citing Prentice ¶¶ 23, 25), 19–20 (citing Wang ¶¶ 41, 57,
Figs. 2–10); Ans. 37–38 (citing Wang ¶¶ 41, 57, Figs. 2–10). The Examiner
also provides a rationale for combining the cited teachings from Ollila,
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Prentice, and Wang. Final Act. 14–15 (citing Prentice ¶ 23). In particular,
the Examiner determines it would have been obvious to substitute Prentice’s
general disclosure of using a facial recognition technique with Wang’s
particular known facial recognition technique because Prentice teaches or
suggests using facial recognition. Final Act. 15 (citing Prentice ¶ 23); see
also Prentice ¶ 25 (disclosing the Prentice system and method may use “any
suitable (now known or hereinafter developed) face detection software that
is capable of detecting a human face within each video frame”).
Appellants argue Ollila fails to teach or suggest the analyzing,
detecting, identifying, and determining steps. Appeal Br. 14; Reply Br. 13.
Appellants also argue Prentice fails to teach the determining step because,
although Prentice discloses facial recognition software, there is no teaching
or suggestion of determining that an identified face is known to the user.
Appeal Br. 14; Reply Br. 13. Appellants contend Wang fails to teach or
suggest the identifying and determining steps and classifying images that
include a face of a known person as key images and images that do not as
auxiliary images. Appeal Br. 14–15; Reply Br. 13–14. Finally, Appellants
assert, without further explanation, the proposed “combination is based upon
impermissible hindsight.” Appeal Br. 15; Reply Br. 14 (arguing the
Examiner “provides no reason why one of ordinary skill in the art would
have modified the prior art, as claimed”).
Many of Appellants’ arguments—i.e., that Ollila fails to teach the
analyzing, detecting, and determining steps; Prentice fails to teach the
determining step; and Wang fails to teach classifying images—are
unpersuasive because they do not address the Examiner’s findings and
conclusions. Specifically, the Examiner does not find Ollila teaches or
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suggests the analyzing, detecting, and determining steps; the Examiner does
not find Prentice teaches or suggests the determining step; and the Examienr
does not find Wang, alone, teaches classifying images. See Final Act. 12–
14.
That leaves only Appellants’ arguments that Wang fails to teach or
suggest (1) the identifying and determining steps, (2) that images including a
face of a person known to the user are key images and other images are
auxiliary images, and (3) that the proposed combination is based only on
impermissible hindsight and the Examiner provides no reason why a person
of ordinary skill in the art would have combined Wang with Prentice. See
Appeal Br. 14–15; Reply Br. 13–14. We initially note the Examiner also
finds Prentice teaches the identifying step and that images including a face
of a person known to the user are key images and other images are auxiliary
images. Accordingly, Wang’s teachings with respect to these limitations are
cumulative and Appellants present no persuasive argument that Prentice fails
to teach these limitations. For that reason alone, Appellants’ argument that
Wang fails to teach or suggest these limitations is unpersuasive. Moreover,
for the reasons discussed below, we also agree with the Examiner’s finding
that Wang teaches or suggests each of the disputed limitations (i.e., the
identifying step, the determining step, and images including a known
person’s face are key images and other images are auxiliary images).
Wang discloses a facial recognition technique that includes extracting
facial features, comparing the extracted features with features of known
faces, and outputting a face ID associated with a known face having facial
features that match the extracted features. Wang ¶¶ 41, 57. Wang further
discloses not outputting a face ID when it is determined, based on whether a
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similarity score surpasses a given threshold, that there is no known face
having features that sufficiently match the extracted features. Wang ¶¶ 41,
57.
Appellants assert that, although Wang discloses facial recognition and
comparing a similarity score to a threshold, Wang does not disclose the
recited limitations, but Appellants provide no persuasive explanation why
the identified disclosures in Wang fail to teach or suggest the recited
limitations. Wang’s passages described above, clearly describe a process of
identifying known faces based on comparing facial features of a face
detected in an image. Accordingly, it is unclear what aspect of these
limitations Appellants contend is missing. We agree with the Examiner that
Wang teaches or suggests “detecting, in the image data . . ., a face,”
“identifying at least one facial feature in the image data,” and “determining,
based on the at least one facial feature, that the face is of a person known to
the user.” Although we do not rely on the Examiner’s finding that Wang
teaches or suggests images including a known person’s face are key images
and other images are auxiliary images because the Examiner finds Prentice
provides cumulative teachings, we also agree with the Examiner’s
explanation that the act of matching some images with a face ID and not
matching a face ID for other images at least suggests that the images with a
corresponding face ID are key images and the other images are auxiliary
images. Final Act. 13–15; Ans. 38.
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Contrary to Appellants’ argument, Appeal Br. 15; Reply Br. 14, the
Examiner’s rationale for combining Wang with Ollila and Prentice provides
a reason with a rational underpinning. Specifically, the Examiner states:
It would have been obvious to one of ordinary skill in the art at
the time of filing to simply substitute the facial recognition
technique of Prentice with that of Wang, because Prentice
teaches and suggests using facial recognition (see Prentice
¶ 0023), and it is predictable that Wang’s facial recognition
technique would succeed at recognizing Ollila’s and Prentice’s
known faces.
Final Act. 15; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007)
(combination of familiar elements according to known methods is likely to
be obvious when it does no more than yield predictable results).
For the above reasons, we are not persuaded the Examiner erred in
rejecting representative claim 26 as obvious in view of the combination of
Ollila, Prentice, and Wang. For the same reasons, we are not persuaded the
Examiner erred in rejecting claims 9–12, 16–18, 26, and 31, not argued
separately with particularity.
Claims 22–24
Appellants argue claims 22–24 as a group. Appeal Br. 15 (arguing
claims 23 and 24, which depend from claim 22 are patentable over the
Examiner’s proposed combination for the same reasons argued with respect
to claim 22). We select independent claim 22 as representative of claims
22–24. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds the combination of Ollila, Prentice, and Mick
teaches or suggests every limitation recited in claims 22–24. Final Act. 31–
33. Of particular note regarding claim 22, the Examiner finds: Ollila
teaches or suggests a wearable apparatus, including an image sensor and a
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processing device, for selectively processing images that receives image data
and classifies images as key images; Prentice teaches or suggests the
analyzing the image data, detecting a face in the image data, and classifying
images that include a face as key images; and Mick teaches or suggests
determining key images include a visual trigger associated with a private
contextual situation and deleting such key images. Final Act. 31 (citing
Ollila ¶¶ 20, 22, 32, 39, 53, 63), 31–32 (citing Prentice ¶¶ 23, 25), 32–33
(citing Mick ¶ 321); Ans. 38–42. The Examiner also provides a rationale for
combining the cited teachings from Ollila, Prentice, and Mick. Final
Act. 32–33 (citing Prentice ¶ 23; Mick ¶ 321); Ans. 40–42. In particular, the
Examiner determines it would have been obvious to use Mick’s technique to
delete Ollila’s content that includes nudity because it is predictable a user
would want to protect privacy, such as deleting content including nudity.
Final Act. 32–33 (citing Mick ¶ 321).
Appellants argue Ollila and Mick fail to teach or suggest the
analyzing, detecting, classifying, and determining functions recited in claim
22. Appeal Br. 15–16; Reply Br. 15. Appellants assert Mick discloses
storing downloaded video content with timestamped parameters that enable
selective deletion of certain scenes, such as scenes including nudity or
sexual situation, which does not teach “that any of Mick’s categorized scenes
are determined in the manner recited in claim 22.” Appeal Br. 17.
Appellants also contend Mick fails to teach or suggest deleting images
including the identified visual trigger because Mick does not teach
determining categorized scenes “in the manner recited” and any deletion in
Mick “is user directed based on the selectable audio or video parameters
selected by a user.” Appeal Br. 17.
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Appellants’ argument that Ollila and Mick fail to teach or suggest the
analyzing, detecting, classifying, and determining functions recited in claim
22 is merely an assertion without any persuasive explanation and, therefore,
is unpersuasive. Appellants’ argument that Mick fails to teach or suggest the
recited deleting function because Mick’s deletion of particular video scenes
“is user directed” is also unpersuasive because it is not commensurate with
the scope of the claim 22. In particular, claim 22 recites a processing device
programmed to delete images including the visual trigger, but claim 22 does
not preclude a user from directing the deletion of such images.
Mick discloses storing video files with selectable parameters that
identify various portions of the video as including private contextual
situations (e.g., nudity, sexual situations, or explicitly sexual dialogue).
Mick ¶ 321. Because Mick discloses associate timestamps with the video to
identify the particular scenes, Mick at least suggests a processor determining
which particular images include the visual trigger. See Mick ¶ 321.
Appellants’ argument that Mick’s disclosure fails to teach or suggest
determining a key image includes a visual trigger associated with a private
contextual situation is similarly unpersuasive. Claim 22 merely requires
determining that the image includes the recited visual trigger and does not
recite a particular way the determination is made. Accordingly, Appellants’
argument that “there is no teaching that any of Mick’s categorized scenes are
determined in the manner recited in claim 22” does not persuasively
demonstrate error in the Examiner’s finding.
Appellants also argue “Mick is not properly combinable with Ollila
because they are not analogous art.” Appeal Br. 16. More specifically, an
ordinarily skilled person would not have modified Ollila and Prentice with
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Mick’s functionality because they “are disparate unrelated systems.” Appeal
Br. 16. Appellants further argue the Examiner provides no “teaching or
suggestion in the cited references for combining the cited art,” such that the
conclusion is based on impermissible hindsight. Appeal Br. 16.
The Examiner explains that Mick teaches it is predictable that a
person may want to censor or delete video including nudity or profanity,
which is equally applicable to someone recording video rather than just
viewing downloadable content. Ans. 41–42 (citing Mick ¶ 321). The
Examiner further explains claim 22 simply recites deleting “such content,
which is a basic and obvious protective measure.”
First, we note the question of whether a person of ordinary skill in the
art would look to a reference—i.e., whether a reference is analogous art—
asks whether the particular reference is analogous to Appellants’ claimed
subject matter. More specifically, prior art is analogous art to the claimed
invention if either (1) the art is from the same field of endeavor as the
claimed invention (even if it addresses a different problem); or (2) the art is
reasonably pertinent to the problem faced by the inventor (even if it is not in
the same field of endeavor as the claimed invention). In re Bigio, 381 F.3d
1320, 1325 (Fed. Cir. 2004) (emphasis added); see also Bigio, 381 F.3d at
1325 (explaining that the first test “requires the PTO to determine the
appropriate field of endeavor by reference to explanations of the invention’s
subject matter in the patent application, including the embodiments,
function, and structure of the claimed invention.”).
Appellants do not persuasively argue any of Ollila, Prentice, or Mick
are non-analogous art because Appellants fail to argue, let alone provide any
support, any of the references are from a different field of endeavor than
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Appellants’ claimed subject matter and are not reasonably pertinent to the
problem Appellants’ invention addresses. On this record and lacking any
persuasive argument or evidence to the contrary, we determine each of the
cited references are in the same field of endeavor as Appellants’ invention
and/or are reasonably pertinent to the problem Appellants’ invention
addresses.
Furthermore, and contrary to Appellants’ assertion, Appeal Br. 16;
Reply Br. 17, the Examiner’s rationale for combining Ollila, Prentice, and
Mick includes a reason with a rational underpinning. Final Act. 32–33;
Ans. 41–43; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Other than the unpersuasive non-analogous art argument, Appellants argue
the Examiner fails to identify a teaching or suggestion in the cited references
for combining the references. Appeal Br. 16. This argument is also
unpersuasive because the Examiner does cite specific teachings in Prentice
and Mick as support for the provided rationale. Moreover, the rationale for
combining the references need not come from the references themselves.
KSR, 550 U.S. at 417 (“[I]f a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.”), 418 (“the analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ”).
For the above reasons, we are not persuaded the Examiner erred in
rejecting representative claim 22 as obvious in view of the combination of
Ollila, Prentice, and Mick. For the same reasons, we are not persuaded the
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Examiner erred in rejecting claims 23 and 24, not argued separately with
particularity.
Claims 2–8, 13–15, 19–21, 25, 27–30, 32, and 33
Appellants argue the additionally recited prior art does not cure the
deficiencies noted with respect to the independent claims and, therefore,
dependent claims 2–8, 13–15, 19–21, 25, 27–30, 32, and 33 are patentable
for the same reasons asserted regarding claims 1, 22, and 26, from which
they depend. Appeal Br. 17–18; Reply Br. 18–19. Because we find no
deficiencies regarding the rejection of independent claims 1, 22, and 26, we
are not persuaded the Examiner erred in rejecting claims 2–8, 13–15, 19–21,
25, 27–30, 32, and 33, not argued separately with particularity, for the same
reasons discussed above.
SUMMARY
We sustain the Examiner’s decision to reject claims 1–25 and 32 as
indefinite under 35 U.S.C. § 112(b).
We sustain the Examiner’s decision to reject claims 1–13, 16, 17, 19,
21, 22, 24, and 26–33 under 35 U.S.C. § 101.
We sustain the Examiner’s decision to reject claims 1–33 under
35 U.S.C. § 103.
DECISION
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner’s decision to reject claims 1–33 is
affirmed. See 37 C.F.R. § 41.50(a)(1).

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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)(1)(iv).

AFFIRMED