Adobe Systems Incorporated

Patent Trials and Appeals Board

Feb 12, 2020

14635811 - (D) (P.T.A.B. Feb. 12, 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.
14/635,811 03/02/2015 Anandhavelu N AD01.P4597US 3297
111003 7590 02/12/2020
Adobe / Finch & Maloney PLLC
50 Commercial Street
Manchester, NH 03101
EXAMINER
STROUD, CHRISTOPHER
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
02/12/2020 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@finchmaloney.com
nmaloney@finchmaloney.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANANDHAVELU N, ARCHIT AGRAWAL, SOUMAK DATTA,
SHAIK NASEERBABA, RITWIK SINHA, and ATANU SINHA
____________

Appeal 2019-002472
Application 14/635,811
Technology Center 3600
____________

Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1, 3, 5–10, and 12–19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED INVENTION
The claimed invention “relates generally to measuring an impact of
promotions on marketing related performance indicators, and more
specifically to methods that utilize logistic regression for measuring [an]
impact of promotions made over online social media” (Spec. ¶ 1).
Claims 1, 9, and 15 are the independent claims on appeal. Claim 15,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
15. A non-transitory computer program product having
instructions encoded thereon that when executed by one or more
computer processors cause a process to be carried out to measure
performance of a promotion made by a handle in an online social
media platform, the process comprising:
[(a)] identifying followers of the handle on the online
social media platform with a web crawler;
[(b)] defining a first subset that includes followers of the
handle that have performed further promotion of the promotion;

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed October 25, 2018) and Reply Brief (“Reply Br.,” filed February 5,
2019), and the Examiner’s Answer (“Ans.,” mailed December 13, 2018) and
Final Office Action (“Final Act.,” mailed May 17, 2018). Appellant
identifies Adobe Systems Incorporated as the real party in interest. Appeal
Br. 2.
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[(c)] defining a test group that includes followers of
members of the first subset;
[(d)] defining a second subset that includes followers of
the handle that have abstained from performing further
promotion of the promotion;
[(e)] defining a control group that only includes
followers of members of the second subset;
[(f)] searching for and collecting, via an electronic
communication network communicatively coupled to an online
social media platform, online social media features for members
of the test group and for members of the control group; and
[(g)] analyzing impact of the promotion by performing
regression with a marketing-relevant key performance indicator
as a dependent variable and the collected online social media
features for the test group and the online social media features
for the control group as independent variables.
REJECTION2
Claims 1, 3, 5–10, and 12–19 are rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
ANALYSIS
Under 35 U.S.C. § 101, an invention is patent eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus

2 The rejection of claims 1, 3, 5–10, and 12–19 under 35 U.S.C. § 112(b)
has been withdrawn. Ans. 3.
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Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “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.’” Id. at 217–18 (alteration in original).
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
determined that claim 1 includes steps for gathering data about promotions
and social media features of users of a social network platform, and
analyzing the data by (i) identifying a test group of users comprising
followers of followers of a handle on an online social media platform that
have further promoted a promotion, (ii) identifying a control group that
comprises only followers of the handle that have abstained from further
promoting the promotion, and (iii) performing an analysis of the data that
performs regression using further promotions as a dependent variable and
test group and control group as independent variables (Final Act. 4). The
Examiner reasoned that claim 1 is, thus, “conceptually similar to ‘a process
that started with data, added an algorithm and ended with a new form of
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data’ recognized as an abstract idea in Recognicorp, LLC v. Nintendo Co.,
855 F.3d 1322, 1330 (Fed. Cir. 2017))” and also “conceptually similar to
‘gathering and analyzing information of a specified content, then displaying
the results’ identified as an abstract idea in Electric Power Group LLC v.
Alstom, S.A., 830 F.3d 1350, 1351, (Fed. Cir. 2016)” (id.). The Examiner
also determined that claim 1 does not include additional elements or a
combination of elements sufficient to amount to significantly more than the
abstract idea itself (id. at 4–5).
The Examiner determined that the independent claims 9 and 15 are
patent ineligible for the same reasons set forth with respect to claim 1, and
that the dependent claims, “when analyzed as a whole, are patent
ineligible . . . because the additional recited limitations fail to establish that
the claims are not directed to an abstract idea” (id. at 5–6).
After Appellant’s Appeal Brief was filed, and the Examiner’s Answer
mailed, the U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance for use by USPTO personnel in evaluating subject matter
eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57 (Jan. 7, 2019) (the “2019
Revised Guidance”). That guidance revised the USPTO’s examination
procedure with respect to the first step of the Mayo/Alice framework by
(1) “[p]roviding groupings of subject matter that [are] considered an abstract
idea”; and (2) clarifying that a claim is not “directed to” a judicial exception
if the judicial exception is integrated into a practical application of that
exception. Id. at 50. The 2019 Revised Guidance, by its terms, applies to all
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applications, and to all patents resulting from applications, filed before, on,
or after January 7, 2019. Id.3,4
Independent Claims 1, 9, and 15 and Dependent Claims 5–8, 10, 12–14, 16,
18, and 19
Appellant argues claims 1, 5–10, 12–16, 18, and 19 as a group
(Appeal Br. 7). We select independent claim 15 as representative. The
remaining claims stand or fall with claim 15. See 37 C.F.R.
§41.37(c)(1)(iv).
Step One of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2A)
The first step in the Mayo/Alice framework, as mentioned above, is to
determine whether the claims at issue are “directed to” a patent-ineligible
concept, e.g., an abstract idea. Alice Corp., 573 U.S. at 217. This first step,
as set forth in the 2019 Revised Guidance (i.e., Step 2A), is a two-prong test;
in Step 2A, Prong One, we look to whether the claim recites a judicial
exception, e.g., one of the following three groupings of abstract ideas:
(1) mathematical concepts; (2) certain methods of organizing human

3 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) § 2106.04(II) and also supersedes all versions of the
USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.”
See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-related
guidance issued prior to the Ninth Edition, R-08.2017, of the MPEP
(published Jan. 2018) should not be relied upon.”). Accordingly,
Appellant’s arguments challenging the sufficiency of the Examiner’s
rejection will not be addressed to the extent those arguments are based on
now superseded USPTO guidance.
4 The USPTO issued an update on October 17, 2019 (the “October 2019
Update: Subject Matter Eligibility,” available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) clarifying the
2019 Revised Guidance in response to comments solicited from the public.
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activity, e.g., fundamental economic principles or practices, commercial or
legal interactions; and (3) mental processes. 2019 Revised Guidance,
84 Fed. Reg. at 54. If so, we next consider whether the claim includes
additional elements, beyond the judicial exception, that “integrate the
[judicial] exception into a practical application,” i.e., that 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 (“Step 2A, Prong Two”). Id. at 54–55.
Only if the claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea. Id.
We are not persuaded by Appellant’s arguments that the Examiner
erred in determining that claim 15 is directed to an abstract idea (Appeal
Br. 9–15). The Federal Circuit has explained that “the ‘directed to’ inquiry
applies a stage-one filter to claims, considered in light of the specification,
based on whether ‘their character as a whole is directed to excluded subject
matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir.
2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d
1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a
specific improvement in relevant technology or on a process that itself
qualifies as an “abstract idea” for which computers are invoked merely as a
tool. See id. at 1335–36. Here, it is clear from the Specification, including
the claim language, that the claims focus on an abstract idea, and not on any
improvement to technology and/or a technical field.
The Specification is titled “MEASURING PROMOTION
PERFORMANCE OVER ONLINE SOCIAL MEDIA,” and describes, in the
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Background section, that “[o]nline social media platforms including
Facebook® and Twitter®, among others, are increasingly used to promote
brands, products, and services in marketing campaigns” (Spec. ¶ 2).
“Conventional techniques for calculating performance for online social
media marketing campaigns have relied on counts of easily measured
criteria, e.g., the number of likes, comments, and ReTweets® that a
promotion may receive over online social media”; however, the
Specification describes that these measures, “suffer from biases” and
additionally, “may be wrong because some measures, such as ReTweets®,
may be limited to a small audience” (id.). “Another conventional approach
for quantifying the impact of an online social media . . . includes tracking
any purchases made by social media users who have clicked through a
promotion in order to purchase an associated product or service”; however,
“users rarely make a purchase of a product or service by clicking through a
promotion on online social media, thereby reducing the usefulness of this
approach as a measure of marketing campaign effectiveness” (id. ¶ 3).
According to the Specification, proposals have been made for
alternate ways to measure marketing campaign impact across online social
media platforms, e.g., measuring the impact of a Tweet® by assessing the
time and effort that a user expends in response to a marketing campaign and
employing various indirect metrics for quantifying marketing impact; yet,
the Specification describes that the former proposal lacks a mechanism to
actually quantify user time and effort, and the indirect metrics, employed in
the latter approach, cannot be measured in a statistically accurate manner (id.
¶ 4).
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The claimed invention is ostensibly intended to improve on these prior
approaches by providing a technique for directly measuring the impact of an
online social media promotion on an online social media audience, “while
taking into account any effects of other promotions that have been made or
are being made contemporaneously on the online social media platform or
other nonsocial media marketing efforts” (id. ¶ 10). Claim 15, thus, recites a
non-transitory computer program product having instructions encoded
thereon that when executed by one or more computer processors cause a
process to be carried out to measure the performance of a promotion made
by a handle5 on an online social media platform, the process comprising:
(1) identifying users that follow the handle on the social media platform
where a promotion is made, and establishing a test group that includes
followers of those users who have further promoted the promotion, i.e.,
identifying followers of the handle on the online social
media platform with a web crawler;
defining a first subset that includes followers of the handle
that have performed further promotion of the promotion; [and]
defining a test group that includes followers of members
of the first subset
(steps (a), (b)), and (c)); (2) establishing a control group that includes
followers of those users who have not further promoted the promotion, i.e.,
“defining a second subset that includes followers of the handle that have
abstained from performing further promotion of the promotion” and
“defining a control group that only includes followers of members of the

5 The Specification describes that “the term ‘handle’ refers to an entity
having an interest in promoting itself to build awareness, including any
goods, services, and/or good will that may be associated with the entity”
(Spec. ¶ 12).
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second subset” (steps (d) and (e)); (3) identifying online social media
features for members of the test and control groups, i.e., “searching for and
collecting, via an electronic communication network communicatively
coupled to an online social media platform, online social media features for
members of the test group and for members of the control group” (step (f));
and (4) analyzing the impact of the promotion on a performance indicator by
performing regression on the test group and control group, i.e., “analyzing
impact of the promotion by performing regression with a marketing-relevant
key performance indicator as a dependent variable and the collected online
social media features for the test group and the online social media features
for the control group as independent variables” (step (g)).
These limitations, given their broadest reasonable interpretation, recite
determining the impact of an entity’s online promotion on a social media
audience by (1) gathering information, i.e., a first set of users who follow the
entity on the social media platform and who have further promoted the
promotion over social media; a second set of users who follow the entity but
have abstained from further promoting the promotion; a test group of users
who follow the first set of users; a control group of users who follow the
second set of users; and social media features of the test group and the
control group; and (2) analyzing the information, i.e., performing regression
on the test group and the control group for a performance indicator, to
quantify the impact of the promotion. Simply put, claim 15 recites
determining the impact of an online promotion by performing regression
analysis, which is a mathematical concept and, therefore, an abstract idea.
See 2019 Revised Guidance, 84 Fed. Reg. at 52.
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Having concluded that claim 15 recites a judicial exception, i.e., an
abstract idea (Step 2A, Prong One), we next consider whether the claim
recites additional elements that integrate the judicial exception into a
practical application (Step 2A, Prong Two).
The only additional elements recited in claim 15, beyond the abstract
idea, are a “non-transitory computer readable medium”; “one or more
computer processors”; and “a web crawler,” i.e., generic computer
components (see, e.g., Spec. ¶¶ 27–33). We find no indication in the
Specification, nor does Appellant direct us to any indication, that the
operations recited in claim 15 invoke any assertedly inventive programming,
require any specialized computer hardware or other inventive computer
components, i.e., a particular machine, or that the claimed invention is
implemented using other than generic computer components to perform
generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no
doubt: recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes an improvement in technology and/or a technical
field, to the claimed invention or that otherwise indicates that the claimed
invention integrates the abstract idea into a “practical application,” as that
phrase is used in the Revised Guidance.6

6 The 2019 Revised Guidance references MPEP § 2106.05(a)–(c) and (e) in
describing the considerations that are indicative that an additional element or
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Appellant maintains that claim 15 is not directed to an abstract idea
but instead is patent eligible at least because the claim provides a non-
abstract improvement to existing technology (Appeal Br. 9–10). Appellant
asserts that the Specification describes the challenges associated with
quantifying the performance of online social media marketing campaigns,
(including the challenge involved in choosing metrics that do not suffer from
measurement biases, e.g., self-selection bias), and discloses “how [the]
effectiveness of an online social media promotion can be measured based on
the impact that the promotion is measured to have after the promotion is
made” (id. at 9). Appellant argues that the Specification, thus, clearly
identifies a “technical problem associated with existing technologies for
quantifying the impact of an online social media promotion, and further
explains the details of an unconventional technical solution to that problem”
(id.)
Specifically referencing claim 15, Appellant notes that the claim is
directed to a process to measure performance of a promotion made by a
handle in an online social media platform, and explains that claim 15
achieves this by defining test and control groups that include followers of
followers of the handle; collecting online social media features for members
of the test and control groups; and analyzing the impact of the promotion by
performing regression using the collected online social media features (id.
at 9–10). Appellant asserts that this combination of claim features makes

combination of elements integrates the judicial exception, e.g., the abstract
idea, into a practical application. 2019 Revised Guidance, 84 Fed. Reg.
at 55. If the recited judicial exception is integrated into a practical
application, as determined under one or more of these MPEP sections, the
claim is not “directed to” the judicial exception.
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clear that “the impact of the promotion is based on a test group and control
group formed post facto — i.e., after the promotion is made” and that the
combination of claim features also specifies a specific composition of the
test group and a specific composition of the control group that accounts for
self-selection bias in the resulting measurement (id. at 10).
Appellant ostensibly maintains that by measuring the impact of the
promotion based on a test group and a control group formed after the
promotion is made, and specifying a specific composition of the test and
control groups that accounts for self-selection bias and allows for the
collection and use of online social media features in performing the
regression to measure the impact of the promotion, claim 15 provides a
technological improvement (id.), i.e., an unconventional technical solution to
a technical problem (id. at 9; see also Reply Br. 3 (arguing that claim 15
“recites a specific process for defining test and control groups in a way that
allows such groups to be defined after a promotion has been made,” i.e., that
claim 15 recites “‘defining a first subset that includes followers of the handle
that have performed further promotion of the promotion’ and ‘defining a
second subset that includes followers of the handle that have abstained
from further promotion of the promotion,’” which Appellant asserts “makes
clear that Claim 15 is focused on a specific technique that ‘improves the
relevant technology’ involved in measuring ‘performance of a promotion
made by a handle in an online social media platform,’” and is not directed to
an abstract idea). But, we are not persuaded that measuring the performance
of an online social media promotion is a technical problem as opposed to a
business problem, or that forming specific test and control groups and
collecting social media features for these groups is a technological solution
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where, as here, there is no indication of record that the operations recited in
claim 15 invoke any assertedly inventive programming, require any
specialized computer hardware or other inventive computer components, or
that the claimed invention is implemented using other than generic computer
components to perform generic computer functions.
Appellant attempts to draw a parallel between claim 15 and the claims
at issue in McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d
1299 (Fed. Cir. 2016), arguing that the pending claims are analogous to the
McRO claims in that they recite “a particular way to solve the problem of
quantifying performance of an online social media promotion in a way that
accounts for measurement biases” (Appeal Br. 11; see also Reply Br. 2
(arguing that “[a]s recited in Claim 15, this process involves a specific way
of defining the test and control groups that accounts for multiple
simultaneous effects in quantifying marketing lift that is associated with a
particular promotion made on an online social media platform”)). Yet, the
Federal Circuit premised its determination that the claim in McRO was
patent eligible, not merely on the specificity of the claimed animation
scheme, but on the fact that the claim, when considered as a whole, was
directed to a technological improvement over existing, manual 3-D
animation techniques and used limited rules in a process specifically
designed to achieve an improved technological result in conventional
industry practice. See McRO, 837 F.3d at 1316.
We are not persuaded that the claimed invention, as recited in
claim 15, achieves a comparable improved technological result. To the
contrary, the claimed invention, when considered in light of the
Specification, clearly appears to be focused on achieving a commercial
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objective, i.e., determining the effectiveness of an online social media
promotion, and not on any claimed means for accomplishing that goal that
improves technology.
We also are not persuaded of Examiner error to the extent Appellant
maintains that the claims are patent eligible because they “prevent broad
preemption of all online social media promotion measurement techniques”
(Appeal Br. 11). Although the Supreme Court has described “the concern
that drives [the exclusion of abstract ideas from patent-eligible subject
matter] as one of pre-emption,” Alice Corp., 573 U.S. at 216, characterizing
preemption as a driving concern for patent eligibility is not the same as
characterizing preemption as the sole test for patent eligibility. “The
Supreme Court has made clear that the principle of preemption is the basis
for the judicial exceptions to patentability” and “[f]or this reason, questions
on preemption are inherent in and resolved by the § 101 analysis.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
(citing Alice Corp., 573 U.S. at 216). “[P]reemption may signal patent
ineligible subject matter, [but] the absence of complete preemption does not
demonstrate patent eligibility.” Id.
Responding to the Examiner’s Answer, Appellant argues in the Reply
Brief that claim 15 recites an improvement in computer functionality (Reply
Br. 7). Appellant notes that “Claim 15 recites a specific way of defining test
and control groups after a promotion that is being analyzed has occurred
(id.). And Appellant argues that “this technique allows the claimed process
for measuring performance of a promotion to account for multiple
simultaneous effects in quantifying marketing lift” (id.). Yet, importantly
here, there is a fundamental difference between computer functionality
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improvements, on the one hand, and uses of existing computers as tools to
perform a particular task, on the other — a distinction that the Federal
Circuit, in fact, applied in Enfish, in rejecting a § 101 challenge at the first
stage of the Mayo/Alice framework because the claims at issue focused on a
specific type of data structure, i.e., a self-referential table, designed to
improve the way a computer stores and retrieves data in memory, and not
merely on asserted advances in uses to which existing computer capabilities
could be put. See Enfish, 822 F.3d at 1335–36.
The alleged improvement in measuring the performance of a
promotion made by a handle in an online social media platform that
Appellant touts does not concern an improvement to computer capabilities
but instead relates to an alleged improvement in a business practice —a
process in which a computer is used as a tool in its ordinary capacity.
We conclude, for the reasons outlined above, that claim 15 recites a
mathematical concept, i.e., an abstract idea, and that the additional elements
recited in the claim are no more than generic components used as tools to
perform the recited abstract idea. As such, they do not integrate the abstract
idea into a practical application. See Alice Corp., 573 U.S. at 223–24
(“[W]holly generic computer implementation is not generally the sort of
‘additional featur[e]’ that provides any ‘practical assurance that the process
is more than a drafting effort designed to monopolize the [abstract idea]
itself.’” (quoting Mayo, 566 U.S. at 77)). Accordingly, we agree with the
Examiner that claim 15 is directed to an abstract idea.
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Step Two of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 15 is directed to an abstract idea, we next consider under Step 2B of
the 2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 15 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether the additional elements
amount to “significantly more” than the judicial exception itself.
2019 Revised Guidance, 84 Fed. Reg. at 56.
Directing our attention to steps (b) through (g), as recited in claim 15,
Appellant argues that these features make clear that claim 15 does not claim
“the functionality of defining test and control groups, collecting features,
and performing regression in a merely generic manner” and that claim 15
recites “significantly more,” such as a requirement that the test
group “includes followers of members of the first subset [who
are followers of the handle that have performed further
promotion of the promotion],” that the control group “only
includes followers of members of the second subset [who are
followers of the handle that have abstained from further
promotion of the promotion],” and that the regression is “with a
marketing-relevant key performance indicator as a dependent
variable and the collected online social media features for the test
group and the online social media features for the control group
as independent variables”
(Appeal Br. 17 (bracketed material in original)). Yet, these limitations are
part of the abstract idea, i.e., measuring the performance of an online social
media promotion; they are not additional elements to be considered when
determining whether claim 15 includes additional elements or a combination
of elements that is sufficient to amount to significantly more than the
judicial exception.
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It could not be clearer from Alice, that under step two of the
Mayo/Alice framework, the elements of each claim are considered both
individually and “as an ordered combination” to determine whether the
additional elements, i.e., the elements other than the abstract idea itself,
“transform the nature of the claim” into a patent-eligible application. Alice
Corp., 573 U.S. at 217 (internal quotations and citation omitted); see Mayo,
566 U.S. at 72–73 (requiring that “a process that focuses upon the use of a
natural law also contain other elements or a combination of elements,
sometimes referred to as an ‘inventive concept,’ sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
natural law itself” (emphasis added) (internal citation omitted)). In other
words, the inventive concept under step two of the Mayo/Alice test cannot be
the abstract idea itself:
It is clear from Mayo that the “inventive concept” cannot be the
abstract idea itself, and Berkheimer . . . leave[s] untouched the
numerous cases from this court which have held claims ineligible
because the only alleged “inventive concept” is the abstract idea.
Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed
invention’s use of the ineligible concept to which it is directed cannot supply
the inventive concept that renders the invention ‘significantly more’ than
that ineligible concept.”) (internal citation omitted).
Here, the only claim elements beyond the abstract idea are a “non-
transitory computer readable medium”; “one or more computer processors”;
and “a web crawler,” i.e., generic computer components used to perform
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generic computer functions — a determination amply supported by, and
fully consistent with the Specification (see, e.g., Spec. ¶¶ 27–33).7
Appellant cannot reasonably maintain, nor does Appellant, that there
is a genuine issue of material fact regarding whether operation of these
components is well-understood, routine, or conventional, where, as here,
there is nothing in the Specification to indicate that the operations recited in
claim 15 require any specialized hardware or inventive computer
components or that the claimed invention is implemented using other than
generic computer components to perform generic computer functions, e.g.,
receiving and processing information. Indeed, the Federal Circuit, in
accordance with Alice, has “repeatedly recognized the absence of a genuine
dispute as to eligibility” where claims have been defended as involving an
inventive concept based “merely on the idea of using existing computers or
the Internet to carry out conventional processes, with no alteration of
computer functionality.” Berkheimer, 890 F.3d at 1373 (Moore, J.,
concurring) (citations omitted); see also BSG Tech, 899 F.3d at 1291
(“BSG Tech does not argue that other, non-abstract features of the claimed
inventions, alone or in combination, are not well-understood, routine and

7 The Office’s April 19, 2018 Memorandum to the Examining Corps from
Deputy Commissioner for Patent Examination Policy, Robert W. Bahr,
entitled, Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.), available at https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.PDF, expressly directs that an examiner may
support the position that an additional element (or combination of elements)
is well-understood, routine or conventional with “[a] citation to an express
statement in the specification . . . that demonstrates the well-understood,
routine, conventional nature of the additional element(s)” (id. at 3).
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conventional database structures and activities. Accordingly, the district
court did not err in determining that the asserted claims lack an inventive
concept.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 15 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of claim 15, and claims 1, 5–10, 12–14, 16,
18, and 19, which fall with claim 15.
Dependent Claims 3 and 17
Claim 3 depends from claim 1, and recites that “defining the control
group,” as called for in claim 1, includes “defining the control group from a
second subset of the followers of the handle that have abstained from further
promoting the promotion made by the handle in the online social media
platform, and excludes members from the control group that are also
followers of the handle.” Claim 17 depends from claim 15, and recites that
“defining the test group includes excluding members from the test group that
are also followers of the handle by sampling with replacement from the first
subset.”
Appellant argues that claim 3 “represents an inventive concept that is
significantly more than any abstract idea” because the “formation of such a
control group in the context of the method of Claim 1 goes beyond what is
well-understood, routine conventional activity in the field of logistic
regression to measure impact of promotions made over online social media”
(Appeal Br. 19–20). Appellant presents a substantial similar argument with
respect to the formation of the test group, as called for in claim 17 (id. at 20–
21).
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Appellant’s arguments are not persuasive at least because the
limitations recited in claim 3 and 17 are part of the abstract idea itself; they
are not additional elements to be considered when determining whether
these claims include additional elements or a combination of elements that is
sufficient to amount to significantly more than the judicial exception.
Therefore, for the same reasons described above with respect to claim 15,
these limitations cannot supply the inventive concept that renders the claims
“significantly more” than the judicial exception.
As described above, the only claim elements beyond the abstract idea
“are a “non-transitory computer readable medium”; “one or more computer
processors”; and “a web crawler,” i.e., generic computer components used to
perform generic computer functions, which is not enough for patent
eligibility.8
We are not persuaded, on the present record, that the Examiner erred
in rejecting dependent claims 3 and 17 under 35 U.S.C. § 101. Therefore,
we sustain the Examiner’s rejection.

8 Appellant further argues that the Examiner has failed to establish a prima
facie case of patent ineligibility with respect to claims 3 and 17 (Appeal
Br. 20, 21). Yet, Appellant cannot reasonably maintain, nor does Appellant,
that the Examiner’s rejection was not understood or that the Examiner
otherwise failed to comply with the notice requirements of 35 U.S.C. § 132.
See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (holding that USPTO
carries its procedural burden of establishing a prima facie case when its
rejection satisfies the requirements of 35 U.S.C. § 132 by notifying the
applicant of the reasons for the rejection, together with such information and
references as may be useful in judging of the propriety of continuing the
prosecution of the application).
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5–10,
12–19
101 Eligibility 1, 3, 5–10,
12–19

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).

AFFIRMED