Brad Boothby et al.

Patent Trials and Appeals Board

Sep 24, 2021

2021001758 (P.T.A.B. Sep. 24, 2021)

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.
14/202,022 03/10/2014 Brad A. Boothby 14-HAN/102 3194
22890 7590 09/24/2021
RICHARD D. CLARKE
LAW OFFICE OF RICHARD D. CLARKE
3755 AVOCADO BLVD #1000
LA MESA, CA 91941
EXAMINER
RANKINS, WILLIAM E
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
09/24/2021 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):
rclarkeesq@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRAD A. BOOTHBY and BYRON L. HANCHETT
____________

Appeal 2021–001758
Application 14/202,022
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and
AMEE A. SHAH, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 27–40. We have jurisdiction under 35 U.S.C.
§ 6(b).

SUMMARY OF DECISION
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies Brad A. Boothby and Byron L.
Hanchett as the real party in interest. (Appeal Br. 4.)
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THE INVENTION
Appellant claims a method for optimizing return on investment in real
property and/or a loan made with real property as security. (Spec. ¶ 1,
Title).
Claim 27 is representative of the subject matter on appeal.
27. A computer-implemented web-based system for
improving a multiple listing service limited to income
producing real properties available for sale and loan
comprising:
(a) a web server configured to receive requests for one or
more property profiles and receive requests for one or more
target property profiles from authorized user accounts each
logged in from a client device;
(b) a valuation server configured to generate one or more
property profiles including a property's projected financial
performance and a resulting property value generated using
market data, property data, underlying financial assumptions,
and rent roll information when said web server communicates
said requests for one or more said property profiles, wherein
each said property profile includes property data, said projected
financial performance and said property value;
(c) a marketing server configured to create one or more
said target property profiles that includes a desired financial
performance of the target property when receiving a request
from said web server; and
(d) said marketing server further configured to create one
posted property profile from each said property profile
containing one property's said property data, said projected
financial performance and said property value without
containing said rent roll information;
then to create one or more ranked search results to
display one or more said posted property profiles;
whereby a marketing of real property consists of said
multiple listing service limited to income producing real
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properties is improved by the location, configuration and
integrated communication of said web server, said valuation
server and said marketing server configured to perform ordered
steps to produce one or more said ranked search results
generated from a search, match and rank of said target property
profiles with said posted property profiles including real
properties for sale, tax deferred exchange pursuant to Section
1031 of the Internal Revenue Code, and in need of financing to
assure said rent roll information is not accessed by unauthorized
user accounts.

THE REJECTION
Claims 27–40 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 27–40 are rejected under 35 U.S.C. § 112(a) as failing to
comply with the written description requirement.
Claims 27–40 are rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly claim the subject
matter the inventor regards as the invention.

ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 27–40 under 35 U.S.C. § 101.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of those
patent-ineligible concepts. If so, . . . then ask, “[w]hat else is
there in the claims before us?” To answer that question, . . .
consider the elements of each claim both individually and “as an
ordered combination” to determine whether the additional
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elements “transform the nature of the claim” into a patent-
eligible application. [The Court] described step two of this
analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217-218 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012))
(citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the [S]pecification, based on whether ‘their character
as a whole is directed to excluded subject matter.’” See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp., 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.
In so doing we apply a “directed to” two prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 FR 50, 50–57 (Jan. 7, 2019) (“Guidance”).
The Examiner determines that the claims recite means to quickly and
efficiently evaluate real properties beyond the ways the current MLS system
is designed for by providing a system which builds on the MLS data. The
Examiner determines that this is a “certain method of organizing human
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activity, commercial or legal interactions, advertising, marketing or sales
activities or behaviors.” (Final Act. 5; Ans. 11). The Examiner finds the
judicial exception is not integrated into a practical application because the
claims do not include additional limitations indicative of an improvement to
the functioning of a computer, other technology or technical field. (Final
Act. 5–6). The Examiner also finds that the claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception. (Final Act. 6).
The Specification discloses that the invention is directed to a method
for optimizing return on investment in real property and/or a loan made with
real property as securing. (Spec. ¶ 1). As such, the Specification discloses
that the invention is directed to a commercial and marketing method of
optimizing return on investment.
Consistent with this disclosure, claim 27 recites “a web server
configured to receive requests for one or more property profile,” “a
valuation server configured to generate one or more property profiles,”
“marketing server configured to create one or more said target property
profiles,” “said marketing server further configured to create one posted
property profiles.”
We thus agree with the Examiner’s findings that the claim recites a
method organizing human activity in the form of a commercial and
marketing method to optimize return on investment in real property.
Guidance, 84 Fed. Reg. 52.
Turning to the second prong of the “directed to test,” claim 27
requires a “web server,” “a valuation server,” “marketing server.” These
recitations do not impose “a meaningful limit on the judicial exception, such
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that the claim is more than a drafting effort designed to monopolize the
judicial exception.” Guidance, 84 Fed. Reg. at 55. We find no indication in
the Specification, nor does Appellant directs us to any indication, that the
operations recited in independent claim 27 invoke any 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 any improvement in computer technology and/or
functionality 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. See Guidance, 84 Fed. Reg.
at 55.
In this regard, the recitation does not affect an improvement in the
functioning of the servers or other technology, does not recite a particular
machine or manufacture that is integral to the claims, and does not transform
or reduce a particular article to a different state or thing. (Id.) Thus, claim
27 is directed to a judicial exception that is not integrated into a practical
application, and, thus, claim 27 is directed to an abstract idea.
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Turning to the second step of the Alice analysis, because we find that
the claims are directed to an abstract idea, claim 27 must include an
“inventive concept” in order to be patent-eligible, i.e., there must be an
element or combination of elements that is sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217–18 (alteration in original) (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
The Specification discloses that the method can be operated using a
desktop computer, smartphone, tables or other wireless device. (Spec.
¶ 144). The introduction of computers into the claim does not alter the
analysis at Alice step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly generic computer implementation is not
generally the sort of “additional featur[e]” that provides any
“practical assurance that the process is more than a drafting effort
designed to monopolize the [abstract idea] itself.”
Alice, 573 U.S. at 223 (alterations in original) (citations omitted).
Instead, “the relevant question is whether claim 27 here does more
than simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Id. at 225. It does not.
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Taking the claim elements separately, the function performed by the
computers at each step of the process are purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
trading industry. See Elec. Power Grp., 830 F.3d at 1354; see also In re
Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.
Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming”). In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, “even if a process of
collecting and analyzing information is ‘limited to particular content’ or a
particular ‘source,’ that limitation does not make the collection and analysis
other than abstract.” SAP Am. Inc. v. InvestPic, LLC, 890 F.3d 1016, 1022
(Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim 27 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
access/display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (sequence of receiving, selecting, offering for exchange, display,
allowing access, and receiving payment recited an abstraction), Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (holding that sequence of data retrieval, analysis, modification,
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generation, display, and transmission was abstract), Two-Way Media Ltd. v.
Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
(holding sequence of processing, routing, controlling, and monitoring was
abstract). The ordering of the steps is, therefore, ordinary and conventional.
Claim 27 does not, for example, purport to improve the functioning of
the computer itself. As we stated above, claim 27 does not effect an
improvement in any other technology or technical field. The Specification
spells out different generic equipment and parameters that might be applied
using this concept and the particular steps such conventional processing
would entail based on the concept of information access under different
scenarios. (See, e.g., Spec. ¶ 144). Thus, claim 27 at issue amounts to
nothing significantly more than instructions to apply the abstract idea using
some unspecified, generic computer. Under our precedents, that is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 226.
We have reviewed and considered all the arguments (Appeal
Br. 16–50) Appellant has submitted concerning the patent eligibility of the
claims before us that stand rejected under 35 U.S.C. § 101. We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of emphasis, we will address various
arguments in order to make individual rebuttals of same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the present claims improve the functionality of
prior art MLS information search and retrieval systems by improving and
integrating two stand–alone prior art technologies similar to the invention in
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016).
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(Appeal Br. 21). Inn our view, the claims differ from those found patent
eligible in Enfish, where the claims were “specifically directed to a self-
referential table for a computer database.” Enfish, 822 F.3d at 1337. The
claims thus were “directed to a specific improvement to the way computers
operate” rather than an abstract idea implemented on a computer. Id. at
1336. Here, by contrast, the claims are not directed to an improvement in
the way computers operate. Though the claims purport to accelerate the
process of evaluating real properties, our reviewing court has held that speed
and accuracy increases stemming from the ordinary capabilities of a general
purpose computer “do[] not materially alter the patent eligibility of the
claimed subject matter.” Bancorp Servs., L.L.C. v. Sun Life Assurance Co.
of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012).
Appellant analogizes the claimed invention to the invention at issue in
McRO, Inc. dba Planet Blue v. Bandai Namco Games America Inc., 837
F.3d 1299 (Fed. Cir. 2016). (Appeal. Br. 24). Appellant contends that as in
McRO, the instant claims use a combined order of specific rules in a
configured valuation server to render market data, property data, underlying
financial assumptions, and rent roll information into a property profile.
We are not persuaded that the claimed invention is analogous to the
claimed invention in McRO. The claims in McRO were directed to a
specific asserted improvement in computer animation, i.e., the automatic use
of rules of a particular type. McRO, 837 F.3d at 1313. Claim 27, unlike the
claims found non-abstract in prior cases, uses generic computer technology
to perform data modification, storage, reception, transmission, and analysis
and does not recite an improvement to a particular computer technology.
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See, e.g., McRO, Inc. 837 F.3d at 1314–15 (finding claims not abstract
because they “focused on a specific asserted improvement in computer
animation”). As such, claim 27 recites modifying, storing, transmitting,
receiving, and analyzing data, and not a technological implementation or
application of that idea.
Appellant argues that the claims are necessarily rooted in computer
technology like the claims in DDR Holdings. (Appeal Br. 25). In DDR
Holdings, the Court evaluated the eligibility of claims “address[ing] the
problem of retaining website visitors that, if adhering to the routine,
conventional functioning of Internet hyperlink protocol, would be instantly
transported away from a host’s website after ‘clicking’ on an advertisement
and activating a hyperlink.” DDR, 773 F.3d at 1257. There, the Court found
that the claims were patent eligible because they transformed the manner in
which a hyperlink typically functions to resolve a problem that had no “pre-
Internet analog.” Id. at 1258. The Court cautioned, however, “that not all
claims purporting to address Internet-centric challenges are eligible for
patent.” Id. For example, in DDR Holdings the Court distinguished the
patent-eligible claims at issue from claims found patent-ineligible in
Ultramercial. See DDR Holdings, 773 at 1258–59 (citing Ultramercial, 772
F.3d 709, 715–16 (Fed. Cir. 2014)). As noted there, the Ultramercial
claims were “directed to a specific method of advertising and content
distribution that was previously unknown and never employed on the
Internet before.” Id. at 1258 (quoting Ultramercial, 772 F.3d at 715–16).
Nevertheless, those claims were patent ineligible because they “merely
recite[d] the abstract idea of ‘offering media content in exchange for viewing
an advertisement,’ along with ‘routine additional steps such as updating an
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activity log, requiring a request from the consumer to view the ad,
restrictions on public access, and use of the Internet.’” Id.
Appellant’s asserted claims are analogous to claims found ineligible
in Ultramercial and distinct from claims found eligible in DDR Holdings.
The ineligible claims in Ultramercial recited “providing [a] media product
for sale at an Internet website;” “restricting general public access to said
media product;” “receiving from the consumer a request to view [a] sponsor
message;” and “if the sponsor message is an interactive message, presenting
at least one query to the consumer and allowing said consumer access to
said media product after receiving a response to said at least one query.”
Ultramercial, 772 F.3d at 712. Similarly, Appellant’s asserted claims recite
receiving, analyzing, modifying, and transmitting data. This is precisely the
type of Internet activity found ineligible in Ultramercial.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claims do not recite a mathematical concept or
a mental process because the Examiner has not determined that the claims
are directed to a mathematical concept or a mental process. (Appeal Br. 25).
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claims do not set forth human activity nor do
they describe human activity but rather are directed to improving computer
related search and retrieval technology that is used in computer implemented
web–based MLS’s. (Appeal Br. 26). Appellant specifically argues that the
claims are not directed to fundamental economic principles and practices,
commercial or legal interactions or managing personal behavior. We do not
agree because valuation of property includes human activities which are
detailed in this brief. (Appeal Br. 7–8). In addition, as claim 27 recites a
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method that relates to improving the multiple listing service, it necessarily
recites a method that is related to a commercial interaction.
In addition, claims that recite method of displaying real estate
properties as in the present application have been determined by our
reviewing court to recite abstract ideas. In Move v. Real Estate Alliance,
721 F. App’x 950, 954 (Fed. Cir. 2018), for example, our reviewing court
determined that the claims were directed to the abstract idea of “a method
for collecting and organizing information about available real estate
properties and displaying this information on a digital map that can be
manipulated by the user.” In Move, the Federal Circuit found the claim at
issue focused “not on a technological improvement, but rather on a method
of searching for real estate using a computer” (id. at 956), because the claim
recited steps of creating a property database, displaying a geographic region
on a map, iterative zooming to focus on a desired geographic region, and
identifying properties within the database that fall within the selected
geographic region.
And, in In re Villena, 745 F. App’x 374, 376 (Fed. Cir. 2018), our
reviewing court similarly determined that claims reciting property valuation
concepts (one or more computers configured to receive a user’s target
geographic region, produce property valuations) were directed to a
fundamental economic practice, and thus an abstract idea. The Federal
Circuit based this determination on the finding that “[p]rospective sellers
and buyers have long valued property and doing so is necessary to the
functioning of the residential real estate market.” Id. at 376. Here, claim 27
focuses on similar concepts related to real estate information display.
Appellant argues that the claims recite a technical improvement
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because the valuation server is configured with improved real property
valuation functionality and is located remote from the end users so as to be
integrated with a marketing server configured with MLS functionality and a
web server whereby said integration creates an improved MLS. (Appeal
Br. 28). Appellant argues that like the claims in BASCOM Global Internet
Servs. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) the inventive
concept of the present invention creates specific improvements in the recited
computer technology that go beyond well–understood, routine, and
conventional activities and render the invention patent–eligible. (Appeal
Br. 29). Specifically, Appellant argues that by integrating the prior art
MLS’s with a valuation server, the invention produces a more dynamic and
efficient system (generating projected financial performance and
individualized search criteria available at the web server) that improves the
performance of the MLS computer system itself. (Appeal Br. 30, 36).
Appellant does not show how the claim here is similar to BASCOM's
“particular arrangement of elements [that] is a technical improvement over
prior art ways of filtering such content.” 827 F.3d at 1350. The patent at
issue in BASCOM “claim[ed] a technology-based solution (not an abstract-
idea-based solution implemented with generic technical components in a
conventional way) to filter content on the Internet that overcomes existing
problems with other Internet filtering systems.” Id. at 1351. The court
determined that “[b]y taking a prior art filter solution (one-size-fits-all filter
at the ISP server) and making it more dynamic and efficient (providing
individualized filtering at the ISP server), the claimed invention represents a
‘software-based invention[ ] that improve[s] the performance of the
computer system itself.”’ Id. Here, there is no such improvement to the
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claimed server system themselves nor is there an unconventional
arrangement of computer elements in that system. We do not see how this
application causes a technical improvement to the servers themselves or how
the servers are used. Any improvement lies in the process of evaluating real
properties by combining real property valuation software and prior art MLS,
i.e., the abstract idea itself. In this regard, the Specification discloses that
the need addressed by the instant claims is to allow a potential investor and
lender to be able to have more immediate access to the information used by
the owner to value property that is posted in a search of the buyer and
lender. This improvement relates to the abstract idea itself. (Spec. ¶ 8).
Thus, we are not persuaded of error in the Examiner’s determination that the
additional elements of claim 27, considered individually and as an ordered
combination, do not amount to significantly more than the abstract idea
itself.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claims are similar to the claims in DDR
Holdings. (Appeal Br. 30).
Rather, as discussed above, Appellant’s asserted claims are analogous
to claims found ineligible in Ultramercial and distinct from claims found
eligible in DDR Holdings. Like the ineligible claims in Ultramercial
Appellant’s asserted claims recite receiving, analyzing, modifying, and
transmitting data using generic computer components. This is precisely the
type of Internet activity found ineligible in Ultramercial.
We disagree with the Appellant’s contention that the claims are
analogous to those of Diamond v. Diehr, 450 U.S. 175 (1981). (Appeal
Br. 33). The claims in Diehr were directed to a process for curing synthetic
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rubber, and recited a series of steps (e.g., installing rubber in a press, closing
the mold, constantly determining the temperature of the mold, constantly
recalculating the appropriate cure time through the use of the Arrhenius
equation and a digital computer, and automatically opening the press at the
proper time) that together provided a significant and novel practical
application of the well-known Arrhenius equation and transformed uncured
synthetic rubber into a new state or thing. See Diehr, 450 U.S. at 184-87.
The Court determined that although the invention employed a well-known
equation, it used that equation in a process designed to solve a technological
problem in conventional industry practice. Alice, 573 U.S. at 223 (citing
Diehr, 450 U.S. at 177). The claims in Diehr were, thus, patent-eligible
because they improved an existing technological process. Id. Appellant
contends that the claim here improves the technological process and
provides an MLS’s with the functionality to generate projected financial
performance and search, rank, and display one or more posted property
profiles based on their credible projected financial performance. (Appeal
Br. 33). However, merely taking a manual, mental, or computer-
implemented action is not transforming the data from one form to another,
such as a molded product, and is not patent eligible, as the Supreme Court
made clear in Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972). In contrast
to the situation in Diehr, opening or activating the software of the MDR
module does not result in any analogous transformation of matter from one
state (i.e., raw rubber) to another (i.e., a molded product).
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claims do not preempt the alleged abstract
idea. (Appeal Br. 35). While preemption may signal patent ineligible
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subject matter, the absence of complete preemption does not demonstrate
patent eligibility.” 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), cert, denied, 136 S. Ct. 701, 193
(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.”). And, “[w]here 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, 788 F.3d at 1379.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the individual elements of the claims are
significantly more than the alleged abstract idea. (Appeal Br. 37).
Appellant directs our attention specifically to the recited web server and
marketing server. (Id.). We agree with the Examiner’s response to this
argument found on page 11 of the Answer that Appellant’s Specification
belies this assertion as the Specification lacks a detailed description of a
system or the software used. In addition, the Specification is implicit
evidence that the servers recited are unimproved, generic servers by
disclosing that the method can be implemented using desktop computers,
smartphones, notebook computers, tablets and other wireless devices. (Spec.
¶ 144).
In view of the foregoing, we will not sustain this rejection as it is
directed to claim 27. We will also not sustain the rejection as it is directed to
the remaining claims because Appellant does not argue the separate
eligibility of these claims.
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REJECTIONS UNDER 35 U.S.C. § 112, FIRST PARAGRAPH and
SECONE PARAGRAPH
The Appellant does not argue these rejections. Therefore, we
summarily affirm these rejections.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 27–40 under
35 U.S.C. § 101.
We conclude the Examiner did not err in rejecting claims 27–40 under
35 U.S.C. § 112(a).
We conclude the Examiner did not err in rejecting claims 27–40
under 35 U.S.C. § 112(b).

CONCLUSION
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
27–40 101 Eligibility 27–40
27–40 112(a) Written
Description
27–40
27–40 112(b) Indefiniteness 27–40
Overall
Outcome
27–40

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