Daniel Cudgma et al.

Patent Trials and Appeals Board

Aug 14, 2020

14190407 - (D) (P.T.A.B. Aug. 14, 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.
14/190,407 02/26/2014 Daniel Cudgma TPTP-002-101 1841
75436 7590 08/14/2020
MORSE, BARNES-BROWN & PENDLETON, P.C.
ATTN: Patent Group Director
CityPoint
480 Totten Pond Road, 4th Floor
WALTHAM, MA 02451
EXAMINER
COPPOLA, JACOB C
ART UNIT PAPER NUMBER
3685
NOTIFICATION DATE DELIVERY MODE
08/14/2020 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):
patentmail@morse.law
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte DAVID CUDGMA, CHRISTOPHER C. NOCERA,
and KYLE A. THOMAS
________________

Appeal 2018-006566
Application 14/190,407
Technology Center 3600
________________

Before DAVID C. MCKONE, JASON J. CHUNG, and
CARL L. SILVERMAN, Administrative Patent Judges.

Opinion for the Board filed by CHUNG, Administrative Patent Judge.

Opinion Concurring-in-part filed by MCKONE, Administrative Patent
Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–23. 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. According to Appellant, MotiveMetrics, Inc. is the real
party in interest. Appeal Br. 2.
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INVENTION
The invention relates to marketing surveys suitable for providing
information about a consumer. Spec. ¶ 2. Claim 1 is illustrative of the
invention and is reproduced below:
1. A computer implemented method for determining
correlations between personality traits of a group of consumers
and one or more brand or product, the method comprising:
storing one or more personality traits for the group of
consumers in at least one data store;
determining, using at least one processor, a first
collection of consumer motivations of the group of consumers,
wherein motivations in the first collection of consumer
motivations are based on associations between possible
consumer motivations and the one or more personality traits
from the group of consumers;
storing the first collection of consumer motivations in at
least one data store;
deriving, using at least one processor, a second collection
of consumer motivations from the first collection of consumer
motivations, wherein the second collection of consumer
motivations is based on a first correlation between the first
collection of consumer motivations and one or more brand or
product, and each consumer motivation of the second collection
has a correlation with the one or more brand or product;
the second collection of consumer motivations connect
all relevant motivations to specific aspects of the one or more
brand or product;
storing the second collection of consumer motivations in
at least one data store;
determining, using at least one processor, a second
correlation between the one or more personality traits of the
group of consumers and the second collection of consumer
motivations;
deriving, using at least one processor, a third correlation
between the one or more personality traits of the group of
consumers and the one or more brand or product by identifying
which of the one or more personality traits contributed to each
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of the consumer motivations of the second collection of
consumer motivations based on the second correlation; and
outputting, using an output device, the third correlation
between the one or more personality traits of the group of
consumers and the one or more brand or product.
Appeal Br. 24 (Claims Appendix).

REJECTIONS
The Examiner rejects claims 1–23 under 35 U.S.C. § 101 as being
directed to patent ineligible subject matter. Final Act. 2–5.
The Examiner rejects claims 1–23 under 35 U.S.C. § 112 ¶ 1 as failing
to comply with the written description requirement. Final Act. 5–12.
The Examiner rejects claims 1–23 under 35 U.S.C. § 112 ¶ 2 as being
indefinite for failing to point out and distinctly claim the subject matter
which the inventor regards as the invention. Final Act. 12–13.

ANALYSIS
I. Rejection of Claims 1–23 Under 35 U.S.C. § 101
A. Principles of Law
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.,
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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 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
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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,
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. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).2 “All USPTO personnel are, as a matter of

2 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 “Update”)
(available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
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internal agency management, expected to follow the guidance.” Id. at 51;
see also Update at 1.
Under the 2019 Revised Guidance and the 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”).3

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.

3 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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C. Step 2B
For the sake of brevity, we bypass Step 2A, Prong 1 and Step 2A,
Prong 2 to focus on a dispositive issue. Turning to Step 2B of the Guidance,
“[t]he second step of the Alice test is satisfied when the claim limitations
‘involve more than performance of []well-understood, routine, [and]
conventional activities previously known to the industry.’” Berkheimer v.
HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (quoting Content Extraction
& Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343,
1347–48 (Fed. Cir. 2014) and Alice, 573 U.S. at 225). “Whether something
is well-understood, routine, and conventional to a skilled artisan at the time
of the patent is a factual determination.” Berkheimer, 881 F.3d at 1369.
In this case, the Examiner finds “these steps are merely appending
routine and conventional activities.” Final Act. 4. Berkheimer requires
factual determination of “well-understood, routine, and conventional.”
Thus, the only such finding resides in the Final Rejection. Id. at 4; see also
Ans. (lacking a well-understood, routine, and conventional finding). As
pointed out by Appellant, the Examiner does not provide the evidence
required by Berkheimer to support the determination that an RFID device in
a material processing system is well-understood, routine, or conventional.
See Reply Br. 13–14 (citing Berkheimer, 881 F.3d at 1369); Appeal Br. 15.
In particular, the Examiner does not provide any of the four categories of
information required by the Memorandum of Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.) (“Berkheimer Memorandum”):
1. A citation to an express statement in the specification or to a
statement made by an applicant during prosecution that
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demonstrates the well-understood, routine, conventional
nature of the additional element(s). . . .
2. A citation to one or more of the court decisions discussed in
MPEP § 2106.05(d)(II) as noting the well-understood,
routine, conventional nature of the additional element(s).
3. A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional
element(s). . . .
4. A statement that the examiner is taking official notice of the
well-understood, routine, conventional nature of the
additional element(s). . . .
Berkheimer Memorandum at 3–4.
Because the Examiner fails to provide any evidence, we agree with
Appellant that the Examiner does not cite to one of the four categories of
evidence. See Reply Br. 13–14 (citing Berkheimer, 881 F.3d at 1369);
Appeal Br. 15.
We respectfully disagree with our esteemed concurring colleague. On
page 23, our colleague states “[t]he Examiner is, in essence, taking official
notice of the unremarkable fact that storing data and outputting a result of
calculations were routine and conventional activities for computers.”
Additionally, on pages 20 (see n.7) and 23–24 below, our colleague is
making a new ground of rejection by: (1) concluding that the claims recite a
mental process; (2) citing to paragraphs 83 to 95 of the Specification to
support a well-understood, routine, and conventional finding; and (3) stating
that the Examiner takes official notice. Notably, the Examiner never uses
the words “official notice.” Even if the Examiner takes official notice as our
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colleague states, which the Examiner does not, the Examiner’s technical line
of reasoning underlying a decision to take such notice must be “clear and
unmistakable,” as required by MPEP § 2144.03(B); we do not discern how
the Examiner’s so called notice was “clear and unmistakable.”
To the extent that our colleague is saying that Appellant does not
argue timely the Berkheimer issue in response to the Examiner’s official
notice (see pages 23–24 below), we disagree for the following two reasons:
(1) the Examiner does not take official notice, as discussed above;
(2) Appellant timely argues the lack of evidence to support a well-
understood, routine, or conventional finding on page 15 of the Appeal Brief
and pages 13 and 14 of the Reply Brief.
Regarding the second point in the preceding paragraph, the Examiner
determines the three additional elements “processor,” “data store,” and
“output device” are generic for the first time. Compare Ans. 17
(determining that the 3 additional elements are generic) with Final Act.
(lacking a determination that the 3 additional elements are generic)).
Additionally, intervening in time between the mailing of the Answer and
the Reply Brief, the Berkheimer Memorandum published on April 19, 2018.
Shortly after the Berkheimer Memorandum published, Appellant argues the
Examiner fails to provide sufficient evidence pursuant to Berkheimer on
pages 13–14 of the Reply Brief.
Therefore, the Examiner erred with respect to Step 2B pursuant to the
Berkheimer Memorandum and the 2019 Revised Guidance. Accordingly,
we do not sustain the Examiner’s rejection of: (1) independent claim 1; and
(2) dependent claims 2–23 under 35 U.S.C. § 101 on procedural grounds.
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II. Rejection of Claims 1–23 Under 35 U.S.C. § 112 ¶ 1
A. Ground 1
The Examiner finds the limitation
Determin[ing], using at least one processor, a first collection of
consumer motivations of the group of consumers, wherein
motivations in the first collection of consumer motivations are
based on associations between possible consumer motivations
and the one or more personality traits from the group of
consumers
lacks sufficient written description support. Final Act. 5–7; Ans. 19–27.
Appellant argues the Examiner fails to provide a prima facie case
because the Examiner does not provide evidence and adequate reasoning.
Appeal Br. 16–19. Appellant refers to specific paragraphs of the
Specification and the originally filed claim limitations and alleges these
provide adequate written description support for the limitation at issue in
Ground 1. Id. at 19 (citing Spec. ¶¶ 33, 40–43, and 49); Reply Br. 15–18
(Spec. ¶¶ 32–49, 52–53, 68, 73–79, 82).
We disagree with Appellant’s argument that the Examiner fails to
provide a prima facie case because the Examiner does not provide evidence
and adequate reasoning. Appeal Br. 16–19. In this case, the Examiner finds
the limitation
Determin[ing], using at least one processor, a first collection of
consumer motivations of the group of consumers, wherein
motivations in the first collection of consumer motivations are
based on associations between possible consumer motivations
and the one or more personality traits from the group of
consumers
(emphasis added) lacks sufficient written description support. Final Act. 5–
7; Ans. 19–27. The Examiner’s supporting explanation that the
Specification does not describe an algorithm in sufficient detail to
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demonstrate to one of ordinary skill in the art that the inventor was in
possession of the claimed subject matter was adequate to put Appellant on
notice of the grounds for rejection. Final Act. 5–7; see In re Jung, 637 F.3d
1356, 1362 (Fed. Cir. 2011).
Moreover, to resolve this written description issue, we turn to
Vasudevan v. MicroStrategy, Inc., 782 F.3d 671, 682–83 (Fed. Cir. 2015).
In Vasudevan, the Federal Circuit stated that “[t]he written description
requirement is not met if the specification merely describes a ‘desired
result’” and “[t]he more telling question is whether the specification shows
possession by the inventor of how [the claimed function] is achieved.” Id.
It is not enough that one skilled in the art could theoretically write a program
to achieve the claimed function; rather the specification itself must explain
how the claimed function is achieved to demonstrate that the applicant had
possession of it. See, e.g., id. It is well settled that a description that merely
renders the invention obvious does not satisfy the written description
requirement. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336,
1352 (Fed. Cir. 2010) (en banc).
Here, the italicized limitation “based on associations” is illustrated by
element 13 in Figure 1 and described in paragraphs 33, 42, and 49 of the
Specification. Spec. ¶¶ 33, 42, 49, Fig. 1. Although Figure 1 and
paragraphs 33, 42, and 49 state the word “associations,” these excerpts
merely describe a result (i.e., “associations”) and do not disclose sufficiently
“how the claimed function is achieved.” Vasudevan Software, Inc. v.
MicroStrategy, Inc., 782 F.3d at 682–83. Stated another way, the
Specification’s disclosure of the word and element number “associations 13”
is insufficient to show possession because it does not describe an underlying
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algorithm in sufficient detail to demonstrate to one of ordinary skill in the art
that the inventor was in possession of the claimed “associations.”
Additionally, the paragraphs Appellant cites in its Reply Brief do not
provide adequate written description support because they lack sufficient
details in the form of underlying algorithms. Reply Br. 15–18 (Spec. ¶¶ 32–
49, 52–53, 68, 73–79, 82). At best, these paragraphs discuss using a survey
in which respondents answer on a scale of 1 to 7 questions about a product,
then using generic “statistical relationships” to determine “associations 13.”
See e.g., Spec. ¶¶ 49, 82. However, these generic “statistical relationships”
described in these paragraphs do not disclose in sufficient detail the
underlying statistical algorithms used to calculate the claimed
“associations.” Id.
Accordingly, Appellant has not persuaded us of error in the
Examiner’s Ground 1 finding.
B. Ground 2
The Examiner finds the limitation
deriving, using at least one processor, a second collection of
consumer motivations from the first collection of consumer
motivations, wherein the second collection of consumer
motivations is based on a first correlation between the first
collection of consumer motivations and one or more brand or
product, and each consumer motivation of the second collection
has a correlation with the one or more brand or product; the
second collection of consumer motivations connect all relevant
motivations to specific aspects of the one or more brand or
product;
lacks sufficient written description support. Final Act. 7–9; Ans. 19–27.
Appellant refers to specific paragraphs of the Specification and the
originally filed claim limitations and alleges these provide adequate written
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description support for the limitation at issue in Ground 2. Appeal Br. 19
(citing Spec. ¶¶ 34, 40–43, and 46–49); Reply Br. 18 (Spec. ¶ 34). We
disagree with Appellant.
The limitation at issue in Ground 2 recites “based on a first
correlation.” Although Figure 1 and paragraphs 34 and 49 state the word
and number “correlation 17,” these excerpts merely describe a result (i.e.,
“correlation 17”) and do not disclose sufficiently “how the claimed function
is achieved.” Vasudevan, 782 F.3d at 682–83. Stated another way, the
Specification’s disclosure of the word and element number “correlation 17”
is insufficient to show possession because it does not describe an underlying
algorithm in sufficient detail to demonstrate to one of ordinary skill in the art
that the inventor was in possession of the claimed “correlation.”
Accordingly, Appellant has not persuaded us of error in the
Examiner’s Ground 2 finding.4
C. Ground 3
The Examiner finds the limitation “determining, using at least one
processor, a second correlation between the one or more personality traits of
the group of consumers and the second collection of consumer motivations”
lacks sufficient written description support. Final Act. 9–11; Ans. 19–27.
Appellant refers to specific paragraphs of the Specification and the
originally filed claim limitations and alleges that these provide adequate
written description support for the limitation at issue in Ground 3. Appeal
Br. 19 (citing Spec. ¶¶ 35, 41–45, and 49); Reply Br. 18 (Spec. ¶ 35). We

4 As noted above in § II.A., the limitation in Ground 1 fails to meet the
written description requirement. Because the limitation at issue in Ground 2
takes the limitation at issue in Ground 1 as an input, the limitation in Ground
2 fails to meet the written description requirement for this additional reason.
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disagree with Appellant.
The limitation at issue in Ground 3 recites “a second correlation.”
Although Figure 1 and paragraphs 35, 44, and 49 state the word and number
“correlation 21,” these excerpts merely describe a result (i.e., “correlation
21”) and do not disclose sufficiently “how the claimed function is achieved.”
Vasudevan, 782 F.3d at 682–83. Stated another way, the Specification’s
disclosure of the word and element number “correlation 24” is insufficient to
show possession because it does not describe an underlying algorithm in
sufficient detail to demonstrate to one of ordinary skill in the art that the
inventor was in possession of the claimed “correlation.”
Accordingly, Appellant has not persuaded us of error in the
Examiner’s Ground 3 finding.5
D. Ground 4
The Examiner finds the limitation
deriving, using at least one processor, a third correlation
between the one or more personality traits of the group of
consumers and the one or more brand or product by identifying
which of the one or more personality traits contributed to each
of the consumer motivations of the second collection of
consumer motivations based on the second correlation
lacks sufficient written description support. Final Act. 11–12; Ans. 19–27.
Appellant refers to specific paragraphs of the Specification and the
originally filed claim limitations and alleges that these provide adequate
written description support for the limitation at issue in Ground 4. Appeal

5 As noted above in §§ II.A. and II.B., the limitations in Ground 1 and
Ground 2 fail to meet the written description requirement. Because the
limitation at issue in Ground 3 takes the limitations at issue in Ground 1 and
Ground 2 as inputs, the limitation in Ground 3 fails to meet the written
description requirement for this additional reason.
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Br. 19–20 (citing Spec. ¶¶ 35, 42–45, and 49); Reply Br. 19 (Spec. ¶ 35).
We disagree with Appellant.
The limitation at issue in Ground 4 recites “a third correlation.”
Although Figure 1 and paragraphs 35, 36, 44, and 49 state the word and
number “correlation 24,” these excerpts merely describe a result (i.e.,
“correlation 24”) and do not disclose sufficiently “how the claimed function
is achieved.” Vasudevan, 782 F.3d at 682–83. Stated another way, the
Specification’s disclosure of the word and element number “correlation 24”
is insufficient to show possession because it does not describe an underlying
algorithm in sufficient detail to demonstrate to one of ordinary skill in the art
that the inventor was in possession of the claimed “correlation.”
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).
Accordingly, Appellant has not persuaded us of error in the
Examiner’s Ground 4 finding.6 We, therefore, sustain the Examiner’s
rejection of: (1) independent claim 1; and (2) dependent claims 2–23 under
35 U.S.C. § 112 ¶ 1.

6 As noted above in §§ II.A., II.B., and II.C., the limitations in Ground 1,
Ground 2, and Ground 3 fail to meet the written description requirement.
Because the limitation at issue in Ground 4 takes the limitations at issue in
Ground 1, Ground 2, and Ground 3 as inputs, the limitation in Ground 4 fails
to meet the written description requirement for this additional reason.
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III. Rejection of Claims 1–23 Under 35 U.S.C. § 112 ¶ 2
A. Ground 1
The Examiner concludes that the limitation “all relevant motivations”
is indefinite because “the [S]pecification does not provide a standard for
ascertaining the requisite degree.” Final Act. 12–13; Ans. 28–31.
Appellant argues a person having ordinary skill in the art at the time
of the invention would have understood the scope of “all relevant
motivations” when reading the claims in light of the Specification such as
demonstrating how a correlation of -0.4