Cyberonics, Inc.

Patent Trials and Appeals Board

Apr 24, 2020

14505151 - (D) (P.T.A.B. Apr. 24, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/505,151 10/02/2014 Thomas B. HOEGH 104292-1638 1803
138270 7590 04/24/2020
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
COBANOGLU, DILEK B
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
04/24/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte THOMAS B. HOEGH and DANIEL A. PARRISH1
____________________

Appeal 2019-001731
Application 14/505,151
Technology Center 3600
____________________

Before ROBERT E. NAPPI, JOHNNY A. KUMAR, and
SCOTT B. HOWARD Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1 through 48. 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(a). According to Appellant, Cyberonics Inc. is the real party in
interest. Appeal Br. 2.
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INVENTION
The invention relates generally to a screening method for evaluating
patient suitability for an implanted hypoglossal nerve stimulation (HGNS)
device. Abstract. Claim 1 is reproduced below.
1. A method of evaluating patient candidacy for an
implantation of a nerve stimulation device, the method
comprising:
preconditioning sleep data for analysis by a server, the
sleep data including a log of respiratory events for a sleep
period of a patient, the sleep data further including blood
oxygen data correlated with said respiratory events, wherein the
blood oxygen data supports a mean oxygen desaturation value
and an oxygen desaturation distribution curve, plotted against
desaturation rate, having a slope between two points on the
curve;
providing the sleep data to the server;
receiving a response from the server, the response
including an indication as to whether the patient is a candidate
for the implantation of the device; and
displaying, via a user interface, the indication to a user;
wherein the indication is based on at least one of the
mean oxygen desaturation value or a slope of the oxygen
desaturation distribution curve.
EXAMINER’S REJECTIONS2
The Examiner rejected claims 1 through 48 under 35 U.S.C. § 101 for
being directed to patent-ineligible subject matter. Final Act. 3–5.

2 Throughout this Decision we refer to the Appeal Brief filed July 10, 2018
(“Appeal Br.”); Reply Brief filed December 25, 2018 (“Reply Br.”) Final
Office Action mailed January 12, 2017 (“Final Act.”); and the Examiner’s
Answer mailed October 25, 2018 (“Ans.”).
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The Examiner rejected claims 1 through 48 under 35 U.S.C. § 103 as
being unpatentable over Westbrook (US 2002/0165462 A1; Nov. 7, 2002)
and Ni (US 8,983,572 B2; Mar. 17, 2015). Final Act. 5–17.
PRINCIPLES OF LAW
A. Section 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
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.
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
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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 waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); 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
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 is “directed to” 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,
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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.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. See 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, 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 (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4

3 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”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
4 This evaluation is performed 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. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); 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. 2019 Revised Guidance, 84 Fed.
Reg. at 52–56.
DISCUSSION
Rejection under 35 U.S.C. § 101
The Examiner determines the claims are not patent eligible because
they are directed to a judicial exception without reciting significantly more.
Final Act. 4–5. Specifically, the Examiner determines the claims recite steps
of preconditioning sleep data, providing sleep data to a server, receiving a
response from the server indicating whether the patient is a candidate for an
implantation device, and displaying the indication to a user, which are
directed to collecting information and analyzing it, which is similar to
concepts found abstract in Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350 (Fed. Cir. 2016). Ans. 3–4. Further, the Examiner finds that the
additional limitations of the claims recite generic computer components and
functions that are well-understood, routine, and conventional, and thus, do
not amount to significantly more than the abstract idea. Final Act. 4–5, Ans.
4–7.
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Patent eligibility under § 101 is a question of law that may contain
underlying issues of fact. “We review the [Examiner’s] ultimate conclusion
on patent eligibility de novo.” Interval Licensing LLC v. AOL, Inc., 896
F.3d 1335, 1342 (Fed. Cir. 2018) (citing Berkheimer v. HP Inc., 881 F.3d
1360, 1365 (Fed. Cir. 2018)); see also SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is drawn
to patent-eligible subject matter is an issue of law that we review de novo.”).
We have reviewed Appellant’s arguments in the Appeal Brief, the
Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. We concur with the Examiner’s findings and conclusions in the
Final Rejection and the Answer. Appellant’s arguments have not persuaded
us of error in the Examiner’s rejection of all the claims under 35 U.S.C.
§ 101 and we address them as they apply to the 2019 Revised Guidance.
Claims 1 through 12
The Judicial Exception
Appellant argues representative claim 1 is not directed to an abstract
idea. Appeal Br. 14–16. Appellant argues the Examiner did not “compare
the present claims to any claims found to be abstract or to concepts found to
be directed to an abstract idea by a court.” Appeal Br. 14, Reply Br. 3–4.
Further, Appellant argues that the Examiner provided no analysis as to why
the claims align with Electric Power Group. Reply Br. 3. Appellant asserts
that the claims do not recite a fundamental economic practice and are not
similar to the claims in Alice. App. Br. 15.
We concur with the Examiner that the claims recite a concept of
gathering data, analyzing it, and displaying the data, which is similar to the
idea held to be abstract in in Electric Power Group. The claims at issue in
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Electric Power Group recited several steps of receiving data from various
sources, detecting and analyzing the data, and displaying the data. Elec.
Power Grp., 830 F.3d at 1351–52. The court stated “we have treated
collecting information, including when limited to particular content (which
does not change its character as information), as within the realm of abstract
ideas.” Id. at 1353; see also Classen Immunotherapies, Inc. v. Biogen IDEC,
659 F.3d 1057, 1067 (Fed. Cir. 2011) (claim to collecting and comparing
known information determined to be steps that can be practically performed
in the human mind); Content Extraction & Transmission LLC v. Wells
Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (“The
concept of data collection, recognition, and storage is undisputedly well-
known. Indeed, humans have always performed these functions.”). In this
case, representative claim 1 recites: preconditioning sleep data for analysis
by a server (a data gathering step), providing the sleep data to the server (a
data gathering step), receiving a response from the server as to whether the
patient is a candidate for the implantation device (a data gathering step)5,
and displaying the indication to the user. These steps can be performed in
the human mind or with pen and paper as they are merely gathering data,
and displaying the data. We note that Appellant’s Specification identifies
that the steps of obtaining the sleep data (desaturation values), comparing
them to thresholds and evaluating a patients responsiveness to therapy from
the implant are steps that can be performed manually. Specification ¶¶ 179

5 While this step does not actually recite a step of making determination as
to whether the patient is a candidate, other than to say, the indication of
whether a candidate is based upon one of the mean oxygen desaturation
value or a slope of the oxygen desaturation curve. In as much as it implies
there is a determination it would constitute a data analysis step.
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and 180. Thus, we agree with the Examiner that they recite an abstract
concept (a mental process) similar to that at issue in Electric Power Group.
Integration of the Judicial Exception into a Practical Application
Appellant argues that the claims are similar to those at issue in McRO,
Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) in
that the claims are directed to an improvement to a technology as they result
in an “increase the likelihood of therapeutic efficiency.” App Br. 15-16,
citing Specification ¶0007. Further, Appellant argues that their claims are
similar to those at issue in BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), as the claims represent a
technological improvement over prior ineffective treatments. App Br. 18–20
(citing Specification ¶¶0003–0007), Reply Br. 4–5.
The Examiner responds to Appellant’s arguments finding that the
claims do not provide an improvement of another technology or an
improvement to the functioning of the computer itself. Ans. 4.
We concur with the Examiner and are not persuaded of error by these
arguments. In McRO, the court reviewed claims which use “a combined
order of specific rules that renders information into a specific format that is
then used and applied to create desired results: a sequence of synchronized,
animated characters.” McRO, 837 F.3d at 1315. The court found that the
claims did not “simply use a computer as a tool to automate conventional
activity,” but instead used the computer to “perform a distinct process” that
is carried out in a different way than the prior non-computer method to
improve the technology of (3-D animation techniques). See McRO, 837
F.3d at 1314–16. Here as discussed above claim 1 recites several steps of
gathering data, and displaying the data. Paragraphs 3 through 6 of
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Appellant’s Specification (cited by Appellant in the Reply Br. argument
discussed above) identify various methods of treating sleep apnea, such as
use of a continuous positive airway pressure device, surgery, or nerve
stimulation. These paragraphs do not discuss evaluating a patient candidacy
for a treatment as is claimed. Further, Appellant’s Specification identifies
that it is the screening methods that increase the likelihood of the therapeutic
efficacy of HGNS, and paragraphs 177, 179, 181 of Appellant’s discusses
that this screening is performed by comparing sleep data to threshold values,
(see ¶ 179 discussing comparing average desaturation to a threshold, ¶ 181
discussing screening considering Pcrit value). However, representative
claim 1 does not recite any specific analysis of the data that is performed in
the screening, rather it merely recites that “the indication is based on at least
one of the mean oxygen desaturation value or a slope of the oxygen
desaturation distribution curve.” Thus, we do not consider representative
claim 1 to recite the screening process improves likelihood of therapeutic
efficiency as argued by Appellant. Similarly, we do not consider claim 1 to
recite to a specific set of rules to improve a technology as is McRO.
Accordingly, we are not persuaded of error in the Examiner’s rejection, by
Appellant’s argument that the claim recites an improved improvement to a
technology, and we do not consider representative claim 1 to recite a
practical application of the abstract concept.
Significantly More than the Abstract Idea
Under the 2019 Revised Guidance, 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 adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
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conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
Appellant argues the Examiner has not provided evidence that the
claim elements are a combination of well-understood, routine, and
conventional elements as is required by Berkheimer v. HP Inc., 881 F.3d
1360 (Fed. Cir. 2018). Appeal Br. 16-17.
Appellant’s arguments have not persuaded us the Examiner erred in
considering the claims to not recite significantly more than the abstract idea.
The Examiner finds “that the steps of the claims provide performing generic
computer functions routinely used in computer applications.” Ans. 5. We
concur. As discussed above, representative claim 1 recites steps of
preconditioning sleep data for analysis by a server, providing the sleep data
to the server, receiving a response from the server as to whether the patient
is a candidate for the implantation device and displaying the indication to the
user, which are reciting an abstract concept. Representative claim 1
additionally recites that the data is directed a server, receiving a response
from a server and displaying an indication via a user interface. Appellant’s
Specification discusses the use of a server to receive data and send a
response in only one paragraph and this paragraph merely discuses it in
general terms as hosting a website, the user interface, i.e. Appellant’s
Specification merely discusses using a generic server to provide data.
Specification ¶ 180. Thus, Appellant’s Specification does not demonstrate
that a specific server or computer is required to implement the method.
Further, the steps of providing data, and receiving an indication, are merely
data collection steps which are conventional to computer technology MPEP
§ 2106.05(d) II (i). Similarly, the steps of providing displays of data is
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conventional. See Electric Power Grp., 830 F.3d at 1355.
In summary, Appellant’s arguments have not persuaded us of error in
the Examiner’s determination that representative claim 1 recites an abstract
idea of gathering data, analyzing and displaying the data, a mental process.
Further, Appellant’s arguments have not persuaded us that the Examiner
erred in finding that the claim is not directed to an improvement in the
functioning of the computer or to other technology or other technical fields;
directed to a particular machine; directed to performing or affecting a
transformation of an article to a different state or thing; or directed to using a
judicial exception in some meaningful way beyond linking the exception to a
particular technological environment, such that the claim as a whole is more
than a drafting effort to monopolize the judicial exception. For these
reasons, we are unpersuaded that the claims recite additional elements that
integrate the judicial exception into a practical application, nor do the claims
add a specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional.” See 2019 Revised Guidance, 84 Fed.
Reg. at 54. Accordingly, we sustain the Examiner’s rejection of claim 1, and
claims 2 through 12 grouped with claim 1, under 35 U.S.C. § 101 as being
directed to a patent-ineligible abstract idea, that is not integrated into a
practical application, and does not include an inventive concept.
Claims 13 through 36
On page 7 of the Appeal Brief, Appellant identifies that claims 13
through 24 and claims 25 through 36 are separately grouped with respect to
the rejection under 35 U.S.C. § 101. On page 21 of the Appeal Brief,
Appellant states that “claims 13-24 recite significantly more than an abstract
idea for similar reasons as discussed above with respect to claims 1-12.” On
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pages 21 and 22 of the Appeal Brief Appellant makes similar statements
directed to claims 25 through 36.
These statements on pages 21 and 22 of the Appeal Brief are not
separate arguments under 37 C.F.R § 41.37. Rather, Appellant’s statements
regarding claims 13 through 36 are considered to be nothing more than a
general allegation of patentability and are not considered separate
patentability arguments. Accordingly, we sustain the Examiner’s rejection
of claims 13 through 36 under 35 U.S.C. § 101 for the same reasons as
discussed with respect to claim 1.
Claims 37 through 48
On pages 22 of the Appeal Brief, Appellant asserts that representative
independent claim 37 is not directed to an abstract idea and recites
significantly more than the abstract idea, citing the arguments discussed
above with respect to claim 1. Further, Appellant argues that claim 37
recites providing a programming device configured to communicate with
sensors to generate sleep data and that the Examiner has not provided factual
support for the finding that this is performed by generic computer functions
used in computer applications. Appeal Br. 23.
We are not persuaded of error by these arguments. Claim 37 is
similar to claim 1 in that it recites receiving sleep data, determining whether
the patient is a candidate for implantation, providing an indication and
displaying the indication to the user. Thus, we consider claim 37 to recite an
abstract idea similar to claim 1. As claim 37 is directed to evaluating a
patient candidacy for implantation, our analysis of why the Appellant’s
arguments have not persuaded us the claim recites a technological
improvement are similarly unpersuasive.
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Appellant’s additional argument with respect to claim 37, that the
recitation of a programming device to communicate with sensors and
determine that the patient is a candidate of implantation is well-understood,
routine, conventional. Appellant’s arguments cite to the system 2100,
shown in Figures 7A and 10 as teaching the programming device. Appeal
Br. 23. Paragraph 120 of Appellant’s Specification describes Figure 7A, and
identifies it can be implemented using commercial available programmers,
and may comprise a contention laptop computer. Thus, Appellant’s
Specification does not demonstrate that a specific computer is required to
implement the method. Also, as discussed above providing data, receiving
an indication, and displaying the results are conventional to computer
technology. We additionally note that as discussed above the determination
whether the patient is a candidate, is part of the abstract process and can be a
mental process, thus performing it on a programming device (a conventional
computer) is merely automating a mental process on a computer. Our
reviewing court said “‘[t]he mere automation of manual processes using
generic computers’ . . . ‘does not constitute a patentable improvement in
computer technology.’” Trading Techs. Int’l v. IBG LLC, 921 F.3d 1378,
1384 (Fed. Cir. 2019) (quoting Credit Acceptance Corp. v. Westlake Servs.,
859 F.3d 1044, 1055 (Fed. Cir. 2017)). USPTO examination procedure also
requires that “the claim must include more than mere instructions to perform
the method on a generic component or machinery to qualify as an
improvement to an existing technology.” MPEP § 2106.05(a). Accordingly,
we sustain the Examiner’s rejection of claim 37, and claims 38 through 48
grouped with claim 37, under 35 U.S.C. § 101 as being directed to a patent-
ineligible abstract idea, that is not integrated into a practical application, and
does not include an inventive concept.
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Rejection under 35 U.S.C. § 103
Appellant presents several arguments directed to the Examiner’s
obviousness rejection of independent claims 1, 13, 25, and 37. Appeal Br.
24–26, 30–32, 34–35, Reply Br. 7–10, 12, 14, 15, 16. The dispositive issue
presented by these arguments is did the Examiner err in finding that the
combination of Westbrook and Ni teaches “wherein the indication (as to
whether patient is a candidate for the implantation of the device) is based on
at least one of the mean oxygen desaturation value or a slope of the oxygen
desaturation distribution curve” as claimed.
The Examiner in the rejection and response to arguments cites to Ni as
teaching determining if a patient is a candidate, and Westbrook as teaching
an evaluation based on at least one of the mean oxygen desaturation value or
a slope of the oxygen desaturation distribution curve. Final Act. 6–7, Ans.
8–9. Specifically, the Examiner cites to Westbrook paragraphs 54 and 157
as teaching quantifying severity of desaturation, and finds that this meets the
claimed mean oxygen desaturation value or a slope of the oxygen
desaturation distribution curve. Final Act. 6, Ans. 8 (also citing paras
129–130).
We have reviewed the Examiner’s rejection, response to arguments,
and the cited teachings of Westbrook, and are persuaded of error in the
rejection by Appellant’s arguments. Claim 1 recites “wherein the indication
is based on at least one of the mean oxygen desaturation value or a slope of
the oxygen desaturation distribution curve.” Independent claims 13, 25, and
37 recite commensurate limitations. We concur with the Examiner that Ni
teaches evaluating a patient to determine candidacy for a treatment,
however, we do not find that either Ni or Westbrook teach that a
determination is made based upon the mean oxygen desaturation value or a
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slope of the oxygen desaturation distribution curve. As argued by Appellant
Westbrook does not discuss an evaluation of the desaturation based upon the
mean or the slope of a desaturation value, but rather the evaluation of the
severity of desaturation is based upon the restoration rate (see ¶¶ 130–134).
As such, based on the record before us, Appellant’s arguments have
persuaded us of error and we do not sustain the Examiner’s obviousness
rejections of claims 1 through 48.
CONCLUSION
We affirm the Examiner’s rejection of claims 1 through 48 under 35
U.S.C. § 101.
We reverse the Examiner’s rejection of claims 1 through 48 under
35 U.S.C. § 103.
In summary:
Claim
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–48 101 Eligibility 1–48
1–48 103 Kumar, Rosenberg 1–48
Overall
Outcome
1–48

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