Comcast Cable Communications, LLC

Patent Trials and Appeals Board

Jul 2, 2021

2020001855 (P.T.A.B. Jul. 2, 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.
15/651,840 07/17/2017 Matt Hull 007412.03339\US 7525
71867 7590 07/02/2021
BANNER & WITCOFF , LTD
ATTORNEYS FOR CLIENT NUMBER 007412
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
EXAMINER
FOGG, CYNTHIA M
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
07/02/2021 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):
PTO-71867@bannerwitcoff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATT HULL, ILMIR MOUSSIKAEV, WEI WANG, YI FANG
CHEN, ELEFTHERIOUS SOULAS, CHRIS WHITELY, BORIS
FREYDIN and JOEL IGLESIAS
Appeal 2020-001855
Application 15/651,840
Technology Center 2400

Before ROBERT E. NAPPI, ELENI MANTIS MERCADER, AND
BARBARA A. PARVIS, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Comcast Cable
Communications, LLC. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to receiving viewership data for a
viewer, determining missing data, such as data comprising when a viewer
started viewing a network programming but missing when the viewer
stopped viewing the network programming, and determining a substitute
data point that may be used for the report. Spec. para. 6. The substitute data
point may be determined by other viewership data for the viewer, such as
start and stop times for the viewer corresponding to other network
programming having similar characteristics (such as other episodes of the
same series or season of the series, other shows of the same genre, other
programming on the same network or during the same time of day, etc.). Id.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method, comprising:
receiving, by a computing device, a request for a report
of user consumption patterns;
retrieving, from a centralized database, viewership data
for a first viewer, the viewership data comprising information
indicating a plurality of content viewing sessions of the first
viewer;
determining a missing boundary time for one of the
content viewing sessions, wherein the missing boundary time
comprises a missing start time or a missing end time;
determining a first candidate boundary time based on a
subset of the viewership data for the first viewer;
determining a second candidate boundary time based on
viewership data for a plurality of other viewers;
determining a substitute candidate boundary time based
on the first candidate boundary time and the second candidate
boundary time;
using the substitute candidate boundary time in
generating the report of user consumption patterns; and
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transmitting the report in response to the request.

REJECTION
Claims 1–20 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more. Final Act. 6.
OPINION
To the extent consistent with our analysis below, we adopt the
Examiner’s findings and conclusions in the Final Action and the Answer.

Claims 1–20 rejected under 35 U.S.C. § 101
Patent Subject Matter Eligibility
“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). Arguments Appellant could have
made, but chose not to make, are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2018).
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. 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. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
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Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See Alice, 573 U.S. at
219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854)); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
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abstract . . . is not accorded the protection of our patent laws, . . . and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim recites an abstract idea, we turn to the second step of the
Alice and Mayo framework, where “we must examine the elements of the
claim to determine whether it contains an ‘inventive concept’ sufficient to
‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an
abstract idea must include ‘additional features’ to ensure ‘that the [claim] is
more than a drafting effort designed to monopolize the [abstract idea].’” Id.
(alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101.2 The USPTO
current eligibility guidance is found in the Ninth Edition, Revision 10.2019

2 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Revised Guidance”). In response to received public
comments, the Office issued further guidance on October 17, 2019,
clarifying the 2019 Revised Guidance. USPTO, October 2019 Update:
Subject Matter Eligibility (the “October 2019 Update”). “All USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance.” 84 Fed. Reg. at 51; see also October 2019 Update at
1.
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(revised June 2020) of the Manual of Patent Examination Procedure
(MPEP), and particularly within Sections 2103 through 2106.07(c).
“Because the MPEP now incorporates the 2019 Revised Patent
Subject Matter Eligibility Guidance (2019 PEG), October 2019 Patent
Eligibility Guidance Update (October 2019 Update), and the Berkheimer
Memo,3 all references to those materials should now be directed to the
MPEP.” See https://www.uspto.gov/patent/laws-and-
regulations/examination-policy/subject-matter-eligibility (emphasis added).
All references to the MPEP throughout this Decision are to the Ninth
Edition, Revision 10.2019 (Last Revised June 2020), unless otherwise
indicated.
Under MPEP § 2106, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).4

3 Referring to Berkheimer v. HP, Inc., 881 F.3d. 1360, 1369 (Fed. Cir.
2018).

4 “Examiners evaluate integration into a practical application by (a)
identifying whether there are any additional elements recited in the claim
beyond the judicial exception, and (b) evaluating those additional elements
individually and in combination to determine whether the claim as a whole
integrates the exception into a practical application.” MPEP § 2106.04(d) II.
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Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are not “well-understood, routine, conventional” in the field; or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception. See MPEP § 2106.05(d).

Step 2A, Prong One
The first Prong of Step 2A is to determine whether the claim recites a
judicial exception including (a) mathematical concepts; (b) certain methods
of organizing human activity; and (c) mental processes. See MPEP § 2106.
Appellant argues that the limitations “determining a missing boundary
time . . .,” “determining a first candidate boundary time . . .,” “determining a
second candidate boundary time . . .,” and “determining a substitute
candidate boundary time . . .” are not a mental process because the recited
limitations cannot be practically performed in the mind. See Appeal Br. 6
(citing 2019 Guidance at p. 11; Ex parte Herbst (Appeal No. 2018-000602)).
We agree with the Examiner that the limitations of
determining a missing boundary time for one of the
content viewing sessions, wherein the missing boundary time
comprises a missing start time or a missing end time;
determining a first candidate boundary time based on a
subset of the viewership data for the first viewer;
determining a second candidate boundary time based on
viewership data for a plurality of other viewers;
determining a substitute candidate boundary time based
on the first candidate boundary time and the second candidate
boundary time;
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recite the mental steps because determining a missing boundary is an
observation, determining first and second boundary times are evaluations
and determining a substitute candidate boundary time is a judgement. See
Ans. 8.
Appellant further argues that said limitations are technical details
similar to steps in Ex parte Herbst wherein the court found the steps
including embedding the tag, the image, and corresponding metadata of a
body part described by a tag to be eligible subject matter. See Appeal Br. 6–
7. Appellant argues that the claim recites similar technical details like
“candidate boundary times,” “subset of viewership data for the first viewer,”
and “viewership data for a plurality of other viewers” are impractical to be
found or replicated within the human mind. See Appeal Br. 7.
We do not agree with Appellant’s argument. Representative claim 1
does not recite a transponder or an image in, but rather, claim 1 recites a
computer and centralized database to generate a report. Under its broadest
reasonable interpretation, claim 1 covers performance in the mind, but for
the recitation of generic computer components, thus it is still in the mental
processes category performed in the mind. See Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Nothing in claim
1 forecloses it from being performed by a human, mentally or with pen and
paper. See Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d
1314, 1324 (Fed. Cir. 2016).
Because claim 1 recites mental processes (i.e., abstract idea) we
proceed to prong 2.

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Step 2A, Prong 2
Under Step 2A, Prong 2, we next determine whether the claims recite
additional elements that integrate the judicial exception into a practical
application. See MPEP § 2106.05(a)–(c), (e)–(h).
The “additional elements” recited in claim 1 include the claimed
“computing device” and “centralized database.” See claim 1.
Appellant argues that the additional limitations of “viewership data
for a plurality of other viewers” is used to “determine a second candidate
boundary time,” which is used to “determine a substitute candidate boundary
time” and eventually used to “generate the report of user consumption
patterns” is an improvement of making more reliable reports that can be
used by networks to more efficiently allocate resources. See Appeal Br. 7–8.
To integrate the exception into a practical application, the additional
claimed elements must, for example, improve the functioning of a computer
or any other technology or technical field (see MPEP § 2106.05(a)), apply
the judicial exception with a particular machine (see MPEP § 2106.05(b)),
affect a transformation or reduction of a particular article to a different state
or thing (see MPEP § 2106.05(c)), or apply or use the judicial exception in
some other meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment (see MPEP
§ 2106.05(e)).
The Examiner finds, and we agree, that the disputed limitation, e.g.,
generating a report, is not one of improvements in functioning of computer,
machine, state transformation or applying the abstract idea in a meaningful
way beyond generally limiting the abstract idea to a particular technological
environment. See Ans. 4. The Examiner finds, and we agree, that the step
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of retrieving viewership data is mere data gathering. See Ans. 5. The
Examiner further finds, and we agree, that requesting, compiling and
transmitting a report is similar to “consulting and updating an activity log.”
Ans. 5 (citing Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014)).
Appellant argues that the claimed subject matter of instant claim 1 is
similar to U.S. Patent 6,711,615 which the court found was directed to an
improvement in computer network technology. See Appeal Br. 8–9 (citing
SRI Int’l v. Cisco Sys., Inc., 918 F.3d 1368 (Fed. Cir. 2019) (“SRI
International”)). As such, Appellant argues that the focus of the claimed
subject matter is directed to a specific asserted improvement in computer
capabilities. See Appeal Br. 9 (citing SRI Int’l; Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016)).
We note that the report generation (improvement of the reliability of
the report) is claimed, but the actual use of the report by a network to
allocate resources in a more efficient manner is not claimed. See claim 1.
As such, the claimed subject matter is directed only to improving
information generated on a report. See claim 1. A claim for a useful or
beneficial abstract idea is still an abstract idea. See Ariosa Diagnostics, Inc.
v. Sequenom, Inc., 788 F.3d 1371, 1379–80 (Fed. Cir. 2015).
In reviewing Appellant’s Specification, the “computing device” is
described at a high level of generality as being provided with one or more
processors 201, which may execute instructions of a computer program to
perform any of the features described herein (see, i.e., para. 50) and a
“centralized database” is used to store data regarding viewership data,
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receive a request and determine report parameters (see, i.e., paras. 57–59).
See Spec. paras. 50, 57–59.
Thus, the “computing device” and “centralized database” as recited in
claim 1 is described at a high level of generality. The generic computer is
used as a tool to implement the recited abstract ideas. Using generic
computer components to implement an abstract idea does not integrate the
abstract idea into a practical application. See, e.g., Alice, 573 U.S. at 223–
24; see also Memorandum, 84 Fed. Reg. at 55 (explaining that courts have
identified merely using a computer as a tool to perform an abstract idea as an
example of when a judicial exception has not been integrated into a practical
application). As the generic “computing device” and “centralized database”
are part of the abstract idea, it does not constitute an additional element that
integrates the identified abstract idea into a practical application. See
Guidance, 84 Fed. Reg. at 54–55 (“[E]valuate integration into a practical
application by: (a) Identifying whether there are any additional elements
recited in the claim beyond the judicial exception(s)”).
Accordingly, we agree with the Examiner’s conclusion that the
present claims fail to integrate the exception into a practical application, and
we proceed to Step 2B.
Step 2B: Inventive Concept
Under Step 2B of the Guidance we analyze the claims to determine
whether they provide an inventive concept (i.e., whether the additional
elements amount to significantly more than the exception itself).
Considerations that are evaluated with respect to Step 2B include
determining whether the claims as a whole add a specific limitation or
combination of limitations that are not well-understood, routine,
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conventional activity in the field. See MPEP § 2106.05(d). Simply
appending well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception indicates that an inventive concept may not be present. Id.
Appellant argues that the “retrieving . . . determining . . . and
transmitting” steps are steps that achieve the practical outcome of creating a
more accurate and reliable report of consumption patterns, improving
operational efficiency by using the more accurate and reliable report to
generate other reports, and optimizing the use of networking resources. See
Appeal Br. 11. Appellant further argues that the limitation “‘the substitute
candidate boundary time to generate the report of user consumption patterns’
which has not been alleged as reciting an abstract idea” or well-understood,
routine, and conventional to a skilled artisan is an additional element that
amounts to significantly more by reciting inventive concepts. See Appeal
Br. 11. Appellant further argues that the additional elements including
computing device which receives the request for the report of user
consumption patterns and generates the report, and the centralized database
from which viewership data is retrieved is an ordered combination that
requires less memory and allows for faster and more efficient aggregation of
data. See Appeal Br. 11–12 (citing Spec. para. 56).
The Examiner finds, and we agree, that generating and transmitting a
report is insignificant extra solution activity that is well-understood routine
and conventional. See Ans. 6. The Examiner further finds, and we agree,
that elements in the claim do not improve the functioning of the computer
itself and that “gathering and analyzing information using conventional
techniques and displaying the result” is not sufficient to show an
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improvement in technology. See Ans. 6 (citing In re TLI Commc’ns LLC
Patent Litig., 823 F.3d 607, 612–13 (Fed. Cir. 2016)). We also note that the
claimed subject matter does not include memory. See claim 1.
Appellant makes a comparison to Amdocs Ltd. v. Openet Telecom,
Inc., 841 F.3d 1288 (Fed. Cir. 2106)(“Amdocs”). See Appeal Br. 12. In
Amdocs, the Court of Appeals ruled that the recited “completion of a
plurality of data records,” along with the recited collecting, filtering, and
aggregating features “depend[] on the system’s distributed architecture”
which helps minimize network impact by collecting and processing network
usage data close to its source, thereby distributing load and reducing
congestion in network bottlenecks, while still allowing data to be accessible
from a central location. See Appeal Br. 14 (citing Amdocs, 841 F.3d at
1303). Appellant argues that the invention’s claimed subject matter of a
“computing device” that receives requests, generates a report using “a
centralized database” that has access to a “plurality of viewership data . . . of
a plurality of users” and transmits the report is significantly more because
the Specification notes that “[a] table of tune in and tune out events may be
used to derive what a viewer was viewing at a particular moment in time or
during a particular range of time, while requiring less memory to store a
complete chronological ordering of a viewer’s viewing.” See Appeal Br. 14
(citing Spec. para. 56). Appellant further argues “a number of counters may
be stored for a plurality of networks and a plurality of time slots … [which]
may allow for faster and more efficient aggregation of data for querying.”
See Appeal Br. 14–15 (citing Spec. para. 56).
We do not agree with Appellant’s argument. We agree with the
Examiner that the requesting, compiling and transmitting a report is similar
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to “consulting and updating an activity log.” See Ans. 5 (citing
Ultramercial, 772 F.3d at 715). Unlike Amdocs, the claimed subject matter
is directed to improving the quality of information on a report which is not
dependent on the architecture because report generation as claimed only
depends on generic computing claimed at a high level of generality. See,
e.g., Alice, 573 U.S. at 223–24; see also Memorandum, 84 Fed. Reg. at 55.
We note that network reallocation, memory and counters are not claimed.
For the foregoing reasons, we conclude that claim 1 fails to integrate
the abstract idea into a practical application, and the additional claim
elements do not add significantly more to the abstract idea. Accordingly, we
sustain the § 101 rejection of independent claim 1. We also affirm the
rejection of claims 2–20 for the same reasons.
CONCLUSION
The Examiner’s decision to reject claims 1–20 is affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20

TIME PERIOD FOR RESPONSE
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