David Moran et al.

Patent Trials and Appeals Board

Mar 5, 2021

2021000053 (P.T.A.B. Mar. 5, 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.
14/311,249 06/21/2014 David Moran EVS-1408 2033
36088 7590 03/05/2021
KANG LIM
3494 Camino Tassajara #444
Danville, CA 94506
EXAMINER
GARCIA-GUERRA, DARLENE
ART UNIT PAPER NUMBER
3683
MAIL DATE DELIVERY MODE
03/05/2021 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID MORAN and MICHAEL MONTERO

Appeal 2021-000053
Application 14/311,249
Technology Center 3600

Before HUBERT C. LORIN, CYNTHIA L. MURPHY, and
BRADLEY B. BAYAT, Administrative Patent Judges.

LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s final decision to reject claims 1–11.1 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). Appellant identifies Eversight, Inc. as the real party in interest.
Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claimed subject matter “relates to promotion optimization
methods and apparatus therefor. More particularly, the present invention
relates to computer implemented-methods and computer-implemented
apparatus for optimizing promotions.” (Spec. para. 9). “Promotion refers to
various practices designed to increase sales of a particular product or
services and/or the profit associated with such sales.” (Id., para. 10).
Claim 1, reproduced below with emphasis added, is illustrative of the
claimed subject matter:
1. A computer-implemented method for generating
optimized promotions using different online platforms,
comprising:
receiving a theme, a layout, a plurality of variable values
and a set of platforms from a user;
generating, on a server, permutations for combinations of
the variable values for each platform of the set of platforms
according to the theme and layout;
validating the permutations by requirements for each
platform to generate a plurality of test promotions, wherein the
validating adapts layout, transport means and variable values to
meet the platform requirements, and wherein the requirements
for each platform are provided as modifiable file;
gathering social media chatter for a population of
consumers, wherein the population of consumers comprises
people with friends;
analyzing the chatter using machine learning to determine
characteristics of the friends for each person of the population
of consumers;
segmenting the population of consumers by the
characteristics of their friends to form a plurality of segmented
subpopulations of consumers;
administering, via the server, the plurality of test
promotions to the plurality of segmented subpopulations of
consumers;
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obtaining responses from said segmented subpopulations
of consumers to determine which variable values are effective for
the characteristics of friends; and
generating a general population promotion for a given
friend characteristic using the variable values determined to be
effective for the given friend characteristic to improve
effectiveness of the general population promotion.
Appeal Br. 12–13 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Aaltonen US 2010/0274661 A1 Oct. 28, 2010
Spivack US 2012/0278164 A1 Nov. 1, 2012
England US 2012/0290399 A1 Nov. 15, 2012
Pavlidis US 2014/0143405 A1 May 22, 2014
REJECTIONS
Claims 1–11 are rejected under 35 U.S.C. § 101 as being directed to
judicially-excepted subject matter.
Claims 1–3, 5, 6, and 11 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Aaltonen, England, and Spivack.
Claims 4 and 7–10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Aaltonen, England, Spivack, and Pavlidis.
OPINION
The rejection of claims 1–11 under 35 U.S.C. § 101 as being directed to
judicially-excepted subject matter.
Appellant argues these claims as a group. Appeal Br. 7–9. We address
claim 1 as the representative claim for this group. The remaining claims 2–
11 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
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35 U.S.C. § 101 provides that “[w]hoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent therefor.”
In that regard, claim 1 covers a “process” and is thus statutory subject
matter for which a patent may be obtained.2 This is not in dispute.
However, the 35 U.S.C. § 101 “provision contains an important
implicit exception: Laws of nature, natural phenomena, and abstract ideas
are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)).
In that regard, notwithstanding claim 1 covers statutory subject
matter, the Examiner has raised a question of patent eligibility on the ground
that claim 1 is directed to an abstract idea.
Alice identifies a two-step framework for determining whether
claimed subject matter is directed to an abstract idea. Alice, 573 U.S. at 217.
Alice step one — the “directed to” inquiry
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S.
at 218 (emphasis added).
The Examiner determined that claim 1 is “directed to a method for
generating optimized promotions.” Final Act. 9.

2 This corresponds to Step 1 of the 2019 Revised 101 Guidance which
requires determining whether “the claim is to a statutory category.” 84 Fed.
Reg. at 53. See also id. at 53–54 (“consider[] whether the claimed subject
matter falls within the four statutory categories of patentable subject matter
identified by 35 U.S.C. 101.”).
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The Examiner further determined that the claimed subject matter falls
within both the enumerated “[c]ertain methods of organizing human
activity” groupings of abstract ideas set forth in the 2019 Revised 101
Guidance.3
Accordingly, the Examiner determined that claim 1 is directed to an
abstract idea.
Appellant disagrees with the Examiner’s characterization of what the
claim is directed to.
Appellant argues, inter alia, that the claim is directed to “the
generation of a better promotion.” Appeal Br. 8. According to Appellant,
“[g]enerating a promotion is not managing people’s relationships” and thus
does not fall within the “[c]ertain methods of organizing human activity”
grouping of abstract ideas defined in the 2019 Revised 101 Guidance, i.e.,
fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or
relationships or interactions between people (including social
activities, teaching, and following rules or instructions).
Id., quoting 84 Fed. Reg. at 52. According to Appellant, “[g]enerating a
promotion is not advertising. It is not marketing.” Id. at 9.

3 This corresponds to Prong One [“Evaluate Whether the Claim Recites a
Judicial Exception”] (b) of Step 2A of the 2019 Revised 101 Guidance. “To
determine whether a claim recites an abstract idea in Prong One, examiners
are now to: . . . (b) determine whether the identified limitation(s) falls within
the subject matter groupings of abstract ideas enumerated in Section I of the
[2019 Revised 101 Guidance].” 84 Fed. Reg. at 54.

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Appellant’s argument is unpersuasive. The Specification explains that
“promotion” refers, inter alia, to marketing and advertising. See Spec., para.
11. Thus, “promotion” as used in the claim is reasonably broadly construed
as covering such activities. Since such activities (i.e., marketing and
advertising) fall in said grouping of abstract ideas (Guidance, 84 Fed. Reg. at
54 (“advertising, marketing”)), it follows that “promotion” falls in that
grouping as well.
To the extent Appellant is arguing that the “generating” is not an
abstract idea, notwithstanding the claimed method is directed to generating a
promotion, such an argument is unpersuasive. Appellant “agree[s that],
merely collecting info, analyzing it and displaying results is indeed abstract
per court decisions.” Appeal Br. 8. But Appellant does not further explain
what the claimed “generating” includes in terms of technical details that
would render it, by contrast, directed to an improvement in the functioning
of a computer. Cf. Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343,
1347 (Fed. Cir. 2018) (“We have several times held claims to pass muster
under Alice step one when sufficiently focused on such improvements.”).
No other arguments are presented.

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The Abstract Idea4
Above, where we reproduce claim 1, we identify in italics the
limitations we believe recite an abstract idea.5
We agree with the Examiner that the identified limitations describe a
scheme for generating optimized promotions. For the reasons just discussed
said scheme falls within the enumerated “[c]ertain methods of organizing
human activity” grouping of abstract ideas set forth in the 2019 Revised 101
Guidance.6 2019 Revised 101 Guidance, 84 Fed. Reg. at 52.

4 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A
determines “whether a claim is ‘directed to’ a judicial exception,” such as an
abstract idea. Step 2A is two prong inquiry. Guidance, 84 Fed. Reg. at 53.

5 This corresponds to Prong One (a) of Step 2A of the 2019 Revised 101
Guidance. “To determine whether a claim recites an abstract idea in Prong
One, examiners are now to: (a) Identify the specific limitation(s) in the
claim under examination (individually or in combination) that the examiner
believes recites an abstract idea.” 84 Fed. Reg. at 54.

6 This corresponds to Prong One [“Evaluate Whether the Claim Recites a
Judicial Exception”] (b) of Step 2A of the 2019 Revised 101 Guidance. “To
determine whether a claim recites an abstract idea in Prong One, examiners
are now to: . . . (b) determine whether the identified limitation(s) falls within
the subject matter groupings of abstract ideas enumerated in Section I of the
[2019 Revised 101 Guidance].” 84 Fed. Reg. at 54. This case implicates
subject matter grouping “(b):” “(b) Certain methods of organizing human
activity—fundamental economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations); managing
personal behavior or relationships or interactions between people (including
social activities, teaching, and following rules or instructions).” Id. at 52.

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Technical Improvement7 (Appellant’s Argument)
We have reviewed the record and are unpersuaded as to error in our or
the Examiner’s characterization of what claim 1 is directed to.
Appellant does not argue that the claim presents a technical-
improvement solution. Rather, according to Appellant, the improvement is
the generating of “better” promotions. Appeal Br. 8. Thus the focus is on
improving customer reception to increase sales rather than improving
technology. Cf. Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384
(Fed. Cir. 2019) (“The claims are focused on providing information to
traders in a way that helps them process information more quickly, ’556
patent at 2:26–39, not on improving computers or technology.”).
For the foregoing reasons, the record supports the Examiner’s
determination that claim 1 is directed to an abstract idea.

7 This corresponds to Prong Two [“If the Claim Recites a Judicial
Exception, Evaluate Whether the Judicial Exception Is Integrated Into a
Practical Application”] of Step 2A of the 2019 Revised 101 Guidance. “A
claim that integrates a judicial exception into a practical application will
apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” 84 Fed. Reg.
at 54. One consideration, implicated here, that is “indicative that an
additional element (or combination of elements) may have integrated the
exception into a practical application” is if “[a]n additional element reflects
an improvement in the functioning of a computer, or an improvement to
other technology or technical field.” Id. at 55 (footnotes omitted).

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Alice step two — Does the Claim Provide an Inventive Concept?8
Step two is “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, 573 U.S. at 217–18 (brackets in original) (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 73
(2012)).
In that regard, the Examiner determined, inter alia, that
the claim does not amount to significantly more than the abstract
idea itself or more than a mere instruction to apply the abstract
idea. While the claims recite hardware and software elements,
such as “a computer,” “machine learning”, “a server,” these
limitations are not sufficient to qualify as being “significantly
more” than the abstract idea.
Final Act. 11.
Appellant does challenge the Examiner’s determination under step
two of the Alice framework. See generally Appeal Br. 7–9.
No persuasive arguments having been presented; we conclude that no
error has been committed in the determination under Alice step two that
claim 1 does not include an element or combination of elements
circumscribing the patent-ineligible concept it is directed to so as to
transform the concept into a patent-eligible invention.

8 This corresponds to Step 2B, of the 2019 Revised 101 Guidance, 84 Fed.
Reg. at 56 “if a claim has been determined to be directed to a judicial
exception under revised Step 2A, examiners should then evaluate the
additional elements individually and in combination under Step 2B to
determine whether they provide an inventive concept (i.e., whether the
additional elements amount to significantly more than the exception itself).”
(Emphasis added).
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Accordingly, because we are not persuaded as to error in the
determinations that representative claim 1, and claims 2–11, which fall with
claim 1, are directed to an abstract idea and do not present an “inventive
concept,” we sustain the Examiner’s conclusion that they are directed to
patent-ineligible subject matter for being judicially-excepted from 35 U.S.C.
§ 101.
The rejection of claims 1–3, 5, 6, and 11 under 35 U.S.C. § 103(a) as being
unpatentable over Aaltonen, England, and Spivack.
We have reviewed the positions taken by the Examiner and Appellant
and find the record favors the Examiner.
Appellant’s entire argument is this:
Spivack discloses that messages can be customized for
individuals based upon interests, and that these messages may be
provided to sets of people dependent upon interests, affiliation or
location. See paragraphs 88, 94 and 121. Generating a message
for a set of people is not the same as segmenting them. Further,
the "sets" of people in Spivack are selected by location,
affiliation or interest in a topic. None of these are the same as
identification of characteristics in a person's friends, and
segmenting the individuals by these characteristics.
Appeal Br. 10 (emphasis omitted).
To the extent the argument is that the claimed “generating” is
segmented, it is not commensurate in scope with what is claimed, which
simply calls for “segmenting the population of consumers.” Id. at 12.
In that regard, as the Examiner explained, Spivack discloses, inter
alia, applying its advertisement–placement recommending method to “a
group of users or based on some other context.” Spivack para. 205; Final
Act. 23 and Ans. 8–9. The Examiner points out that Spivack more
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particularly discloses that “the targeting engine can provide advertisers and
marketers with analytics to help create and target campaigns to user
segments (by interests, demographics, geography, user behavior statistics,
time slots, industry or affiliations to organizations, political affiliations,
sentiment on various topics, or relevance to clusters of attributes or
particular topics).” Ans. 8, discussing Spec., para. 220. In our view,
providing a targeting engine that creates campaigns to “user segments”
satisfies that claim limitation “segmenting the population of consumers.”
In response to Appellant’s argument that Spivack does not segment
via characteristics of a person's friends, the Examiner points out that the
Specification states: “In one or more embodiments, the number and type of
friends or characteristics of friends of the participants may be analyzed and
employed as indicators.” Ans. 9, citing Spec., para. 173 (emphasis omitted).
We agree with the Examiner, that Spivack’s disclosure of generating
likestreams “for all people who share specific attributes,” e.g., “just for all
people tagged as ‘friends’ or ‘family,’” meets the claimed segmenting via
characteristics of a person's friends because, in light of the Specification’s
statement, it discloses generating likestreams using characteristics of a
person's friends as indicators. Id.
No other arguments having been presented, the rejection is sustained.
The rejection of claims 4 and 7–10 under 35 U.S.C. § 103(a) as being
unpatentable over Aaltonen, England, Spivack, and Pavlidis.
Appellant has not specifically addressed this rejection. Accordingly, it
is sustained.

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CONCLUSION
The decision of the Examiner to reject claims 1–11 is affirmed.
More specifically:
The rejection of claims 1–11 under 35 U.S.C. § 101 as being directed
to judicially-excepted subject matter is affirmed.
The rejection of claims 1–3, 5, 6, and 11 under 35 U.S.C. § 103(a) as
being unpatentable over Aaltonen, England, and Spivack is affirmed.
The rejection of claims 4 and 7–10 under 35 U.S.C. § 103(a) as being
unpatentable over Aaltonen, England, Spivack, and Pavlidis is affirmed.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11 101 Eligibility 1–11
1–3, 5, 6,
11
103(a) Aaltonen, England,
Spivack
1–3, 5, 6,
11

4, 7–10 103(a) Aaltonen, England,
Spivack, Pavlidis
4, 7–10
Overall
Outcome
1–11

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