Barbour, Jesse et al.

Patent Trials and Appeals Board

Jul 27, 2020

2018006344 (P.T.A.B. Jul. 27, 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.
12/916,210 10/29/2010 Jesse Barbour Q2S1110 9169
44654 7590 07/27/2020
Sprinkle IP Law Group
1301 W. 25th Street
Suite 408
Austin, TX 78705
EXAMINER
PUTTAIAH, ASHA
ART UNIT PAPER NUMBER
3695
MAIL DATE DELIVERY MODE
07/27/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JESSE BARBOUR, ADAM D. ANDERSON, and
ROBERT HENRY SEALE III
____________________

Appeal 2018-006344
Application 12/916,210
Technology Center 3600
____________________

Before CARL W. WHITEHEAD JR., JOHN P. PINKERTON, and
NABEEL U. KHAN, Administrative Patent Judges.

PINKERTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Non-Final Rejection of claims 1–20, which are all of the claims pending in
the application. On July 9, 2020, an oral hearing was held in this appeal. A
transcript of the hearing will be added to the record in due course. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Q2 Software, Inc. as the real party in
interest. Appeal Br. 3.
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STATEMENT OF THE CASE
Introduction
Appellant generally describes the disclosed and claimed invention as
follows:
Embodiments disclosed herein provide a behavioral based
solution to user identity validation, useful in real-time detection
of abnormal activity while a user is engaged in an online
transaction with a financial institution. A risk modeling system
may run two distinct environments: one to train machine learning
algorithms to produce classification objects and another to score
user activities in real-time using these classification objects. In
both environments, activity data collected on a particular user is
mapped to various behavioral models to produce atomic
elements that can be scored. Classifiers may be dynamically
updated in response to new behavioral activities. Example user
activities may include login, transactional, and traverse. In some
embodiments, depending upon configurable settings with respect
to sensitivity and/or specificity, detection of an abnormal activity
or activities may not trigger a flag-and-notify unless an attempt
is made to move or transfer money.
Abstract.2
Claims 1, 10, and 14 are independent. Claim 14 is representative of
the subject matter on appeal and is reproduced below (with paragraph
lettering added):
14. A system for identifying anomalous user activity in real-
time in an online networked environment based on a user’s
activity within an online computer application, comprising:

2 Our Decision refers to the Non-Final Office Action mailed June 23, 2017
(“Non-Final Act.”); Appellant’s Appeal Brief filed Jan. 22, 2018 (“Appeal
Br.”) and Reply Brief filed May 31, 2018 (“Reply Br.”); the Examiner’s
Answer mailed Apr. 4, 2018 (“Ans.”); and the original Specification filed
Oct. 29, 2010 (“Spec.”).

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(a) a behavioral analysis engine operating on a computer
in a modeling system for use in online financial transactions
having access to a production database storing user activity data,
wherein the behavioral analysis engine is configured to perform:
(b) in a supervised, inductive machine learning
environment, generating classification objects for a user, wherein
each classification object represents a behavior of only that user
in conducting an online financial transaction using the online
computer application presented over a computer network by a
server of a financial institution and generating the classification
objects for the particular user comprises:
(c) partitioning user activity data for that user into a test
partition and a train partition, the user activity data including data
on behavioral patterns taken by the user in online transactions
conducted using the online computer application;
(d) mapping data from the train partition to a plurality of
modeled action spaces to produce a plurality of elements;
(e) generating classification objects for the user based on
behavioral patterns of that user, wherein the behavioral patterns
are extracted from the plurality of elements, wherein each of the
plurality of elements represents a particular user action for an
online financial transaction, and wherein the classification
objects are generated on a transaction-by-transaction basis;
(f) testing the classification objects for the user utilizing
user activity data for the user from the test partition, wherein the
testing produces an array of distinct classification objects; and
(g) storing the array of distinct classification objects for
the user and associated with the particular user action in a
database;
(h) in a real-time scoring environment, evaluating a
particular action taken by the user during a particular online
financial transaction in real-time as the particular online financial
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transaction is occurring using the classification objections3 for
that user by:
(i) collecting real-time user activity data during the
particular online financial transaction conducted over the
computer network between the online application being provided
by the server computer of the financial institution and a
computing device of the user, wherein the real-time activity data
is associated with the particular action taken by the user during
the particular online financial transaction;
(j) producing a real-time element representing the
particular user action taken during the particular online financial
transaction;
(k) applying, in real-time, a classification object to the
real-time element representing the particular user action, wherein
the classification object is selected from the array of distinct
classification objects associated with the behavior of the user
stored in the database based on the particular action taken by the
user; and
(l) based at least in part on a value produced by the
application of the classification object, determining whether to
pass or fail the particular action taken by the user during the
particular online financial transaction in real-time, wherein the
value produced by the classification object is reflective of
whether the particular action taken by the user is anomalous with
respect to that user.
Appeal Br. 44–45 (Claims App.).
Rejections on Appeal
Claims 1–20 stand rejected under 35 U.S.C. § 101 as being directed to
unpatentable subject matter, i.e., to a judicial exception without significantly
more. Non-Final Act. 8–12.

3 In the event of further prosecution of this application, we suggest that
Appellant consider amending the independent claims by changing the term
“objections” to “objects.”
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Claims 1–20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gopinathan et al. (US 5,819,226; issued Oct. 6, 1998)
(“Gopinathan”) and Baker et al. (US 2010/0145836 A1; published June 10,
2010) (“Baker”). Non-Final Act. 13–23.
ANALYSIS
A. Examiner’s Findings and Conclusions,
and Appellant’s Contentions
The Examiner finds that the claims at issue are directed to “risk
modeling including a real-time scoring model and an inductive model.”
Non-Final Act. 9–11; see also Ans. 6. In particular, the Examiner finds that
risk modeling is similar to “processing of loan information (Dealertrak),
collecting and comparing known information (Classen), an algorithm for
calculating parameters indicating an abnormal condition (Grams) and
mitigating settlement risk (Alice).” Non-Final Act. 9. Thus, the Examiner
finds that “the claims include an abstract idea.” Id. In addition, the
Examiner finds that “the claims do not include additional elements that are
sufficient to amount to significantly more” than the abstract idea. Id. at 11.
In that regard, the Examiner finds that the claims do not include an
improvement to the functioning of the computer itself, “an improvement to
another technology or technical field (i.e.[,] the claims are directed to fraud
detection in the economic environment),” or “meaningful limitations beyond
generally linking the use of an abstract idea to a particular technological
environment (i.e.[,] the claims are effectively gathering observed data,
creating/using modeling techniques and creating an alert using a model).”
Id. The Examiner further finds that the claim limitations are performed by
the generically recited computing devices. Id. at 12 (citing Spec. ¶¶ 24–25,
36).
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Appellant contends that the Examiner failed to set forth a prima facie
case of patent-ineligible subject matter under § 101. Appeal Br. 19–24;
Reply Br. 3–10. In particular, Appellant argues the Examiner
mischaracterized the claims as being directed to “risk modeling,” which the
Examiner used as “equivalent to economic fraud detection.” Appeal Br.
19–20. Appellant also argues the claims “are manifestly not about risk
modeling (i.e., fraud detection), but instead are concerned with identifying
anomalous user behavior with respect to individual end users in real-time.”
Id. at 20. Appellant further argues that the Examiner failed to clearly
articulate the reasons why the claims are not patent eligible and failed to
analyze a single dependent claim. Id. at 21–23.
Appellant also contends the claims are patent eligible under a proper
application of “the Alice/Mayo framework.” Id. at 24–28; Reply Br. 11–14.
In that regard, Appellant argues the claims do not preempt any abstract idea
and instead “recite specific limitations for, identifying anomalous user
behavior with respect to individual end users of a computer application in
real-time by generating classification objects for that user’s behavior in one
environment and evaluating the user’s behavior in real time in a second
environment.” Appeal Br. 24–25. Thus, according to Appellant, the claims
are “unambiguously directed to ‘a specific implementation of a solution to a
problem in the software arts.’” Id. at 25 (citing Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016); Spec. 13). Appellant also
argues the claimed embodiments provide “improvements to the computer
functionality” by providing two distinct environments, including (1) a real-
time scoring environment and (2) a supervised, inductive machine learning
environment “where one environment provides objects used by the second
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environment in order to speed the second environment to ensure it can be
implemented in real-time.” Id. at 26–27 (citing Spec. ¶¶ 47–48); see also
Reply Br. 8. Appellant further argues that even assuming arguendo the
claims are directed to an abstract idea, “the limitations of the claims amount
to significantly more than any such abstract idea.” Appeal Br. 27–28.
According to Appellant, “the claimed solution is necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks.” Id. (citing DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1254 (Fed. Cir. 2014)). Moreover,
Appellant argues that like the claims in Finjan, Inc. v. Blue Coat Systems,
Inc., 879 F.3d 1299 (Fed. Cir. 2018), the claims here provide a behavior
based threat assessment system that is a non-abstract improvement to
computer functionality and are, therefore, patent eligible. Reply Br. 11–14.
B. Applicable Law
“Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n,
601 F.3d 1319, 1331 (Fed. Cir. 2010).
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof” is patent eligible. 35 U.S.C. § 101. However,
the Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas are not
patentable.” Alice, 573 U.S. at 216 (quoting Ass’n for Molecular Pathology
v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). To determine whether
a claim falls within one of these excluded categories, the Court has set out a
two-part framework. The framework requires us first to consider whether
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the claim is “directed to one of those patent-ineligible concepts.” Alice, 573
U.S. at 217. If so, we then examine “the elements of [the] claim both
individually and ‘as an ordered combination’ to determine whether the
additional elements ‘transform the nature of the claim’ into a patent-eligible
application.” Alice, 573 U.S. at 217 (quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)). That is, we examine
the claim for an “inventive concept,” “an element or combination of
elements that is ‘sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.’” Alice,
573 U.S. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–
73).
In January 2019, the Patent Office issued guidance about this
framework. See 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).4 Under the Revised
Guidance, to decide whether a claim is directed to an abstract idea, we
evaluate whether the claim (1) recites one of the abstract ideas listed in the
Revised Guidance (“Prong One”) and (2) fails to integrate the recited
abstract idea into a practical application (“Prong Two”). See Revised
Guidance, 84 Fed. Reg. at 51, 54. If the claim is directed to an abstract idea,
as noted above, we then determine whether the claim has an inventive
concept. The Revised Guidance explains that when making this
determination, we should consider whether the additional claim elements
add “a specific limitation or combination of limitations that are not well-

4 See also USPTO, October 2019 Patent Eligibility Guidance Update (Oct.
17, 2019), https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf.
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understood, routine, conventional activity in the field” or “simply append[]
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality.” Revised Guidance, 84 Fed.
Reg. at 56.
With these principles in mind, we first analyze whether claim 14 is
directed to an abstract idea.5
C. Abstract Idea
1. USPTO Step 2A, Prong One
Beginning with Step 2A, Prong One, of the Revised Guidance,6 we
must determine “whether the claims at issue are directed to one of those
patent-ineligible concepts,” including the abstract ideas enumerated in the
Revised Guidance. Alice, 573 U.S. at 217. One of the subject matter
groupings identified as an abstract idea in the Revised Guidance is “[c]ertain
methods of organizing human activity—fundamental economic principles or
practices (including . . . mitigating risk); commercial . . . interactions
(including . . . business relations); managing personal behavior or
relationships or interactions between people (including . . . following rules
or instructions).” Revised Guidance, 84 Fed. Reg. at 52.
For our prong one analysis, we set aside, for consideration below, the
technological elements recited in claim 14: “behavioral analysis engine,”
“computer” and “production database,” as recited in limitation (a); and,

5 Appellant argues claims 1–20 as a group. See Appeal Br. 13–28; Reply
Br. 3–10. Thus, we decide the appeal based on representative claim 14. See
37 C.F.R. § 41.37(c)(1)(iv).
6 The Guidance refers to “Step One” as determining whether the claimed
subject matter falls within the four statutory categories identified by 35
U.S.C. § 101: process, machine, manufacture, or composition of matter.
This step is not at issue in this case.
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“inductive machine,” “computer network,” and “server,” as recited in
limitation (b).
The preamble of claim 14 recites a system for identifying anomalous
user activity in real-time based on a user’s activity. Limitations (a)–(g) of
claim 14 focus on “a supervised . . . learning environment, generating
classification objects for a user, wherein each classification object represents
a behavior of only that user in conducting an online financial transaction.”
In particular, limitation (c) recites “partitioning user activity data for that
user into a test partition and a train partition,” and limitation (d) recites
“mapping data from the train partition to a plurality of modeled action
spaces to produce a plurality of elements.” Limitation (e) recites
“generating classification objects for the user based on behavioral patterns
. . . extracted from the plurality of elements, wherein each of the plurality of
elements represents a particular user action for an online financial
transaction, and . . . the classification objects are generated on a transaction-
by-transaction basis.” Limitation (f) recites “testing the classification
objects . . . [to] produce[] an array of distinct classification objects,” and
limitation (g) recites “storing the array of classification objects for the user.”
Limitations (h)–(l) focus on a “real-time scoring environment” in
which a particular action taken by the user during a particular online
financial transaction is evaluated using the classification objects to produce a
“value” to determine “whether to pass or fail the particular action . . . in real-
time.” Specifically, limitation (i) recites “collecting real-time user activity
data during the particular online financial transaction . . . wherein the . . .
data is associated with the particular action taken by the user during the
particular online financial transaction.” Limitation (j) recites “producing a
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real-time element representing the particular user action,” and limitation (k)
recites “applying, in real-time, a classification object [selected from the
stored array] to the real-time element.” Limitation (l) then recites, “based at
least in part on a value produced by the application of the classification
object, determining whether to pass or fail the particular action taken by the
user . . . in real-time, wherein the value produced by the classification object
is reflective of whether the particular action taken by the user is anomalous
with respect to that user.”
We determine that these limitations of claim 14 focus on evaluating a
particular action taken by a user in a particular online financial transaction in
real-time to determine whether the action is anomalous with respect to that
user. We also determine that these limitations, under their broadest
reasonable interpretation, constitute a fundamental economic practice akin to
mitigating risk because the described operations take place in the
commercial environment of a financial transaction and the purpose of
detecting anomalous user activity is to manage or minimize risk. See Alice,
573 U.S. at 219–20 (concluding that use of a third party to mediate
settlement risk is a “fundamental economic practice” and thus an abstract
idea); id. (describing the concept of risk hedging identified as an abstract
idea in Bilski as “a method of organizing human activity”); Bilski, 561 U.S.
at 611–12 (concluding that hedging is a “fundamental economic practice”
and therefore an abstract idea); buySAFE, Inc. v. Google, Inc., 765 F.3d
1350 (Fed. Cir. 2014) (transaction guaranty); see also Intellectual Ventures I
LLC v. Capital One Bank (USA), 792 F.3d 1363, 1368 (Fed. Cir. 2015)
(using a profile keyed to a user identity to track financial transactions over
the Internet and telephone networks is an abstract idea);
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Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 887 (Fed. Cir. 2019)
(steps of retrieving “a persistent device identifier associated with the
network access device,” “retrieving” information associated with the
identifier, “analyzing” the information, and “placing directed media” based
on the analysis recites an abstract idea).
Moreover, the operations of “storing user activity data,” “partitioning
user activity data for that user,” “mapping data,” “generating classification
objects,” “testing the classification objects,” “storing the array of distinct
classification objects,” “collecting real-time activity data,” “producing a
real-time element,” and “applying, in real-time, a classification object to the
real-time element,” as recited in limitations (a), (c)–(g), and (i)–(k),
respectively, are merely receiving, analyzing, manipulating, and conveying
data. Federal Circuit cases have found limitations that simply retrieve, store,
manipulate, and convey data, like those in claim 14, are abstract. See, e.g.,
Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)
(collection, manipulation, and display of data); 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.”); see
also Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can., 771 F. Supp. 2d
1054, 1066 (E.D. Mo. 2011), aff’d, 687 F.3d at 1266 (explaining that
“storing, retrieving, and providing data . . . are inconsequential data
gathering and insignificant post solution activity”).
We are not persuaded by Appellant’s arguments that the Examiner
failed to set forth a prima facie case of patent-ineligible subject matter under
35 U.S.C. § 101 or that the Examiner mischaracterized the claims. See
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Appeal Br. 19–24; Reply Br. 3–10. The Examiner is required to provide
Appellant reasonable notice as to the basis of the § 101 rejection pursuant to
35 U.S.C. § 132:
[T]he PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
“notify[ing] the applicant . . . [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application.” 35
U.S.C. § 132. That section “is violated when a rejection is so
uninformative that it prevents the applicant from recognizing and
seeking to counter the grounds for rejection.” Chester v. Miller,
906 F.2d 1574, 1578 (Fed. Cir. 190).
See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
Here, the Examiner stated the claims are rejected under 35 U.S.C. §
101 because the claimed invention is directed to an abstract idea and the
claims as a whole “do not amount to significantly more than an abstract
idea.” See Non-Final Act. 8–9. The Examiner also applied the two-part
Alice test. Id. at 8–12. Although Appellant argues that the Examiner failed
to analyze or even mention a single dependent claim (see Appeal Br. 23–24),
any fair reading of the Examiner’s § 101 rejection reflects that the
Examiner’s analysis with respect to independent claims 1, 10, and 14 applies
to their respective dependent claims, which are specifically referred to by the
Examiner. See Non-Final Act. 11–12. Moreover, Appellant’s mere
assertion that the Examiner did not analyze any dependent claims is not
persuasive of error. See In re Jung, 637 F.3d at 1365; 37 C.F.R. §
41.37(c)(1)(iv)
Based on the Examiner’s findings and reasons set forth in the Non-
Final Action, we determine the Examiner provides a reasonable explanation
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of why the claims are directed to an abstract idea and do not include
additional elements to amount to significantly more than the abstract idea.
Thus, the Examiner satisfied the notice requirement of 35 U.S.C. § 132.
We also are not persuaded that the Examiner mischaracterized the
claims. Appellant argues that the claims “are manifestly not about risk
modeling (i.e., fraud detection), but instead are concerned with identifying
anomalous user behavior with respect to individual end users in real-time.”
Appeal Br. 20. As discussed supra, we have determined that claim 14
focuses on a fundamental economic practice similar to mitigating risk
because the described operations take place in the commercial environment
of a financial transaction for the purpose of detecting anomalous user
activity to lessen or minimize risk. Although we do not agree with the
Examiner’s specific finding that the claims are directed to a “risk modeling
system,” in the context of describing an abstract idea under a § 101 analysis,
we do not agree with Appellant that the Examiner mischaracterized the
claims by referring to the “risk” aspect of the claims, which the Examiner
equates with economic fraud detection. See Appeal Br. 19–20. The
Examiner finds, and we agree, that the Specification provides support for the
claims being directed to the concepts of detecting anomalous activity and
fraud, and thereby managing or lessening risk, in financial transactions by a
user. Ans. 5–6. In that regard, the Examiner finds that: (1) the title of the
application is “System, Method and Computer Program Product for Real-
Time Online Transaction Risk and Fraud Analytics and Management”; (2)
the abstract states, “[a] risk modeling system may run two distinct
environments”; and (3) paragraph 1 of the Specification states that
embodiments disclosed relate to “detection of potentially fraudulent or
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unauthorized transactions.” Paragraph 14 of the Specification also states
that rather than identifying “all fraudulent activity,” some of the disclosed
embodiments “endeavor to identify anomalous activity,” and “[f]rom this
perspective, a majority of fraudulent activity fits nicely as a subset into the
collection of anomalous activity.”
Accordingly, we conclude that claim 14 recites the abstract idea of
organizing human activity by evaluating a particular action taken by a user
in a particular online financial transaction in real-time to determine whether
the action is anomalous with respect to that user and to thereby mitigate risk.
2. USPTO Step 2A, Prong Two
Because we determine that claim 14 recites an abstract idea, we turn
to prong two of the first step of the Alice analysis and consider whether
claim 1 integrates this abstract idea into a practical application. See Revised
Guidance, 84 Fed. Reg. at 51. In doing so, we consider whether there are
any additional elements beyond the abstract idea that, individually or in
combination, “integrate the [abstract idea] into a practical application, using
one or more of the considerations laid out by the Supreme Court and the
Federal Circuit.”7 Revised Guidance, 84 Fed. Reg. at 54–55.
As discussed supra, the Examiner finds that “the claims do not
include additional elements that are sufficient to amount to significantly
more” than the abstract idea and that the claim limitations are performed by

7 We acknowledge that some of these considerations may be properly
evaluated under step 2 of Alice (step 2B of the Revised Guidance). Solely
for purposes of maintaining consistent treatment within the Office, we
evaluate it under step 1 of Alice (step 2A, prong two, of the Revised
Guidance). See Revised Guidance, 84 Fed. Reg. at 54–55.
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the generically recited computing devices. Non-Final Act. 11–12 (citing
Spec. ¶¶ 24–25, 36).
As also discussed supra, Appellant argues the claims do not preempt
any abstract idea and instead “recite specific limitations for, identifying
anomalous user behavior with respect to individual end users of a computer
application in real-time by generating classification objects for that user’s
behavior in one environment and evaluating the user’s behavior in real time
in a second environment.” Appeal Br. 24–25. Thus, according to Appellant,
the claims are “unambiguously directed to ‘a specific implementation of a
solution to a problem in the software arts.’” Id. at 25 (citing Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016); Spec. 13).
Appellant also argues that the claimed embodiments provide “improvements
to the computer functionality” by providing two distinct environments,
including (1) a real-time scoring environment and (2) a supervised, inductive
machine learning environment “where one environment provides objects
used by the second environment in order to speed the second environment to
ensure it can be implemented in real-time.” Id. at 26–27 (citing Spec. ¶¶ 47–
48); see also Reply Br. 8. Appellant further argues that even assuming
arguendo the claims are directed to an abstract idea, “the limitations of the
claims amount to significantly more than any such abstract idea.” Appeal
Br. 27–28. According to Appellant, “the claimed solution is necessarily
rooted in computer technology in order to overcome a problem specifically
arising in the realm of computer networks.” Id. (citing DDR Holdings, LLC
v. Hotels.com, L.P., 773 F.3d 1245, 1254 (Fed. Cir. 2014)). Moreover,
Appellant argues that like the claims in Finjan, Inc. v. Blue Coat Systems,
Inc., 879 F.3d 1299 (Fed. Cir. 2018), the claims here provide a behavior
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based threat assessment system that is a non-abstract improvement to
computer functionality and are, therefore, patent eligible. Reply Br. 11–14.
We are not persuaded by Appellant’s arguments. First, we are not
persuaded by Appellant’s argument that claim 14 provides “improvements to
the computer functionality” by providing two distinct environments,
including (1) a real-time scoring environment and (2) a supervised, inductive
machine learning environment “where one environment provides objects
used by the second environment in order to speed the second environment to
ensure it can be implemented in real-time.” Appeal Br. 26–27 (citing Spec.
¶¶ 47–48); see also Reply Br. 8. Referencing the two environments set forth
in the claims is insufficient to demonstrate a practical application because
Appellant has shown these limitations amount to nothing more than the
abstract idea itself. Cf. 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.”); cf. also Aatrix Software, Inc. v. Green Shades
Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018) (“[T]he ‘inventive
concept’ cannot be the abstract idea itself.”); Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“But, a claim for a
new abstract idea is still an abstract idea.”); Versata Dev. Grp., Inc. v. SAP
Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (holding claims that
improved an abstract idea but did not recite the supposed computer
improvements were not patent eligible)).
Second, Appellant’s arguments are conclusory and fail to specify how
claim 14 allegedly provides any specific improvement to the technological
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elements recited in claim 14. In particular, Appellant has failed to
demonstrate that claim 14 requires any specialized computer hardware or
other inventive computer components, i.e., requires a particular machine,
uses other than generic computer components, or that the claim results in the
improvement of a computer, computer software, or the functioning of a
computer or its components. Nor has Appellant identified any disclosure in
the Specification of any inventive techniques or specialized computer
components or software required by claim 14.
Third, we are not persuaded by Appellant’s arguments that “the
claimed solution is necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks”
or that the Federal Circuit’s holdings in DDR, Enfish, and Finjan support a
conclusion that claim 14 is patent eligible. Appeal Br. 27–28; Reply Br. 11–
14. These cases are distinguishable because unlike claim 14 here, the claims
in these cases were directed to specific technological improvements or were
rooted in computer technology.
For example, in DDR, instead of a computer network operating in its
normal, expected manner by sending a website visitor to a third-party
website apparently connected with a clicked advertisement, the claimed
invention generated and directed the visitor to a hybrid page that presented
(1) product information from the third party, and (2) visual “look and feel”
elements from the host website. DDR, 773 F.3d at 1258–59. Given this
particular Internet-based solution, the court held that the claimed invention
did not merely use the Internet to perform a business practice known from
the pre-Internet world, but rather was necessarily rooted in computer
technology to overcome a problem specifically arising in computer
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networks. Id. at 1257. That is not the case here. As noted previously, claim
14 merely uses a computer, without any recited technological improvements
and the existing Internet, to identify anomalous user behavior with respect to
individual end users of a computer application in real-time. In short, this
operation is not rooted in computer technology to overcome a problem
arising in computer networks, but is directed to organizing human activity
by evaluating a particular action taken by a user in a particular online
financial transaction to determine whether the action is anomalous with
respect to that user and to thereby mitigate risk—an abstract idea.
In Enfish, the claims were “specifically directed to a self-referential
table for a computer database.” Enfish, 822 F.3d at 1337. The claims were,
therefore, “directed to a specific improvement to the way computers
operate,” rather than an abstract idea implemented on a computer. Id. at
1336. In contrast, claim 14 here is not directed to an improvement in the
way computers operate, nor has Appellant identified any technical advance
or improvement to a computer or specialized computer components.
Appellant’s reliance on Finjan is likewise unavailing. See Reply Br.
11–14. In Finjan, the court held eligible claims directed to a behavior-based
virus scanning system. In reaching this conclusion, the court noted that the
claimed invention employed a new kind of file that enabled a computer
security system to do that which could not be done previously, including
accumulating and using newly-available, behavior-based information about
potential threats. Finjan, 879 F.3d at 1305. That is not the case here. To
the extent Appellant contends that the claimed invention is directed to such
improvements in computer capabilities or functionality (see Appeal Br. 25–
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28), there is no persuasive evidence on this record to substantiate such a
contention.
Fourth, we are not persuaded by Appellant’s argument that the claims
do not preempt any abstract idea. See Appeal Br. 24–25. “While
preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility . . . . Where a
patent’s claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework, as they are in this case, preemption concerns are
fully addressed and made moot.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015) (“[T]hat the
claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract.”).
Thus, claim 14 does not recite a technological improvement to
computers, computer components or software, or network-related
infrastructure. Rather, the computer, database, sever, computer network, and
network-related infrastructure recited in the claims are readily available
computing and networking elements performing their basic functions as
tools in implementing the abstract idea. Accordingly, we determine that the
additional elements recited in claim 14 do not integrate the recited abstract
idea into a practical application. See SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1169–70 (Fed. Cir. 2018); Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“In this case, the
claims are directed not to an improvement in cellular telephones but simply
to the use of cellular telephones as tools in the aid of a process focused on an
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abstract idea. That is not enough to constitute patentable subject matter.”);
Revised Guidance, 84 Fed. Reg. at 55 (explaining that courts have identified
“merely us[ing] a computer as a tool to perform an abstract idea” as an
example of when a judicial exception may not have been integrated into a
practical application). Further, consistent with the Examiner’s findings (see
Non-Final Act. 11–12), and in view of Appellant’s Specification (see e.g.,
paragraphs 24, 25, 36), we conclude that claim 14 does not integrate the
judicial exception into a practical application, and thus is directed to the
judicial exception itself. In particular, we determine claim 14 does not
recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a
different state or thing; or
(v) other meaningful limitations beyond generally linking the
use of the abstract idea to a particular technological
environment.
See MPEP § 2106.05(a)–(c), (e)–(h).
3. USPTO Step 2B — Inventive Concept
Finally, we consider whether claim 14 has an inventive concept, that
is, whether any additional claim elements “‘transform the nature of the
claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting
Mayo, 566 U.S. at 78, 79). This requires us to evaluate whether the
additional claim elements add “a specific limitation or combination of
limitations that are not well-understood, routine, conventional activity in the
field” or “simply append[] well-understood, routine, conventional activities
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previously known to the industry, specified at a high level of generality.”
Revised Guidance, 84 Fed. Reg. at 56.
The Examiner finds the claim limitations of the claims at issue are
performed by the generically recited computing devices. Non-Final Act. 12
(citing Spec. ¶¶ 24–25, 36). The Examiner also finds the claim limitations
“require no more than a generic computer to perform generic computer
functions that are well-understood, routine and conventional activities
previously known to the industry.” Id.
As stated supra, Appellant argues that even assuming arguendo the
claims are directed to an abstract idea, “the limitations of the claims amount
to significantly more than any such abstract idea.” Appeal Br. 27–28.
Appellant also argues that “the claimed solution is necessarily rooted in
computer technology” and that the claims provide a behavior based threat
assessment system that is improvement to computer technology because the
claims require “a behavioral analysis engine that operates two distinct
environments to provide security in an Internet or network-centric
environment by determining whether to pass or fail a user action based on
whether that particular action is anomalous behavior with respect to that
user.” Id.; Reply Br. 11–14.
We are not persuaded by Appellant’s arguments. First, as discussed
supra, Appellant has failed to demonstrate that claim 14 is rooted in
computer technology or requires any specialized computer hardware or other
inventive computer components, i.e., requires a particular machine, is
performed using other than generic computer components, or results in the
improvement of a computer, computer software, or the functioning of a
computer or its components.
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Second, we are not persuaded by Appellant’s argument that the claims
require “a behavioral analysis engine that operates two distinct environments
to provide security in an Internet or network-centric environment by
determining whether to pass or fail a user action based on whether that
particular action is anomalous behavior” because this is nothing more than
the abstract idea itself. The law is clear that the claim elements to be
considered under Alice step 2B cannot be the abstract idea itself.
Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring) (“Berkheimer . . . leave[s] untouched the numerous cases from
[the Federal Circuit] which have held claims ineligible because the only
alleged ‘inventive concept’ is the abstract idea.”); BSG, 899 F.3d at 1290;
Aatrix, 890 F.3d at 1359 “[T]he ‘inventive concept’ cannot be the abstract
idea itself.”).
Moreover, we find that the Specification indisputably shows the
additional elements of claim 14 were well-understood, routine, and
conventional at the time of filing because they are described in a general
manner without additional details that would distinguish them from
conventional components. See, e.g., Spec. ¶¶ 24–25, 3–38; see also
Berkheimer, 890 F.3d at 1371 (“Relying on the specification alone may be
appropriate where, as in Mayo, the specification admits . . . .” [that the
additional elements were well-understood, routine, and conventional]).
Accordingly, consistent with the Examiner’s findings, we determine
that the recited components implementing the system of claim 14 are readily
available and well-understood, routine, and conventional. See, e.g., Alice,
573 U.S. at 225–26 (holding that “implement[ing] the abstract idea . . . on a
generic computer” was not sufficient “to transform an abstract idea into a
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patent-eligible invention”); Mortg. Grader, Inc. v. First Choice Loan Servs.,
Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (noting that components such
an “interface,” “network,” and “database” are generic computer components
that do not satisfy the inventive concept requirement); buySAFE, Inc. v.
Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer
receives and sends the information over a network—with no further
specification—is not even arguably inventive.”).
Accordingly, considering claim 14 as a whole, we determine that the
additional elements recited in claim 14 are readily available computing and
networking elements performing their available basic functions and do not
provide “a specific limitation or combination of limitations that are not well-
understood, routine, conventional activity in the field.” Revised Guidance,
84 Fed. Reg. at 56. Rather, these elements “simply append[] well-
understood, routine, conventional activities previously known to the
industry, specified at a high level of generality.” Id. Accordingly, we find
that claim 14 does not have an inventive concept.
4. Conclusion
Because we determine that claim 14 is directed to an abstract idea and
does not contain an inventive concept, we sustain the Examiner’s rejection
of claim 14 under 35 U.S.C. § 101. For the same reasons, we sustain the
Examiner’s rejection under 35 U.S.C. § 101 of independent claims 1 and 10,
and dependent claims 2–9, 11–13, and 15–20, which are not argued
separately.
II. SECTION 103(a) REJECTION
The dispositive issue raised by Appellant’s arguments with respect to
the rejection of claim 14 under 35 U.S.C. § 103(a) is whether the
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combination of Gopinathan and Baker discloses “applying, in real-time, a
classification object to the real-time element representing the particular user
action, wherein the classification object is selected from the array of distinct
classification objects associated with the behavior of the user” and “a value
produced by application of the classification object . . . is reflective of
whether the particular action taken by the user is anomalous with respect to
that user,” as recited in limitations (k) and (l) of claim 14, and
commensurately recited in claims 1 and 10.8 See Appeal Br. 34–38; Reply
Br. 17–20.
The Examiner finds that Gopinathan teaches the disputed limitations
of claim 14. See Non-Final Act. 13–17. In the Answer, the Examiner copies
portions of the non-final office action relating to the disputed limitations,
which, as the Examiner states, includes citations to the prior art. Ans. 9.
The Examiner finds that the Specification does not define the term
“classification object,” which Appellant argues is associated with the
behavior of the user. Id. at 9–10. The Examiner then finds that Gopinathan
teaches “classification data”9 under the broadest reasonable interpretation,
because Gopinathan teaches generating fraud scores using “customer
data/profiles which describe[] user behavior.” Id. at 10 (citing Gopinathan
27:3–8) (explaining that customer data includes “general information on the
customer” and “a profile record” based on the customer’s past transactions).

8 With respect to the rejection under § 103(a), Appellant argues independent
claims 1, 10, and 14 as a group. See Appeal Br. 34–38. Thus, we decide the
rejection under § 103(a) based on representative claim 14. See 37 C.F.R.
§ 41.37(c)(1)(iv).
9 The Examiner refers to the term “classification data,” which Appellant
notes is not recited in the claims, rather than the claimed “classification
object.” Ans. 10; Reply Br. 15 (citing Ans. 10).
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The Examiner also finds Gopinathan teaches “user specific transaction data
is used to generate a profile record that is selected and applied to the neural
network model.” Id. (citing Gopinathan Figs. 13–16; 4:65–5:59; 27:64–
28:5). The Examiner further finds Gopinathan teaches “applying a model to
classify transactions (reads on a classification object . . . ) into categories of
likelihood of fraud,” which is an “[Appellant] admitted species of anomalous
activity.” Id. (citing Gopinathan 27:3–8; Spec. ¶ 14).
Appellant makes several arguments regarding why Gopinathan fails to
teach or suggest the disputed claim limitations. See Appeal Br. 34–38;
Reply Br. 14–20. Appellant also argues the Examiner failed to provide
analysis or articulated reasoning regarding how the cited portions of
Gopinathan read on the disputed claim limitations, but provides “mere
conclusory statements.” Reply Br. 14–15 (citing In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006); see also, MPEP 2142, 2143)).
Upon consideration of the Examiner’s findings, and Appellant’s
arguments, we are persuaded that the Examiner has not shown, on this
record, that Gopinathan teaches or suggests the disputed limitations of claim
14. We agree with Appellant that the Examiner has not provided sufficient
analysis and technical reasoning demonstrating that the cited portions of
Gopinathan teach or suggest the disputed limitations of claim 14. We will
not resort to speculation or assumptions to cure the deficiencies in the
Examiner’s fact finding and reasoning. See In re Warner, 379 F.2d 1011,
1017 (CCPA 1967); Ex parte Braeken, 54 USPQ2d 1110, 1112 (BPAI 1999)
(unpublished) (“The review authorized by 35 U.S.C. [§] 134 is not a process
whereby the [E]xaminer . . . invite[s] the [B]oard to examine the application
and resolve patentability in the first instance.”)). Thus, we are constrained
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on this record to not sustain the Examiner’s rejection of claim 14 under 35
U.S.C. § 103(a). For the same reasons, we do not sustain the Examiner’s
rejection of claims 1–13 and 15–20.
DECISION
We affirm the Examiner’s rejection of claims 1–20 under 35 U.S.C.
§ 101.
We reverse the Examiner’s rejection of claims 1–20 under 35 U.S.C.
§ 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner’s decision is affirmed. See 37 C.F.R.
§ 41.50(a)(1).

SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1–20 103(a) Gopinathan, Baker 1–20
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R.
§ 41.50(f).
AFFIRMED