eBay Inc.

Patent Trials and Appeals Board

Oct 26, 2020

2020001034 (P.T.A.B. Oct. 26, 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.
14/874,676 10/05/2015 Shu Li 2043.J18US1 4305
49845 7590 10/26/2020
SCHWEGMAN LUNDBERG & WOESSNER/EBAY
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
LI, SUN M
ART UNIT PAPER NUMBER
3681
NOTIFICATION DATE DELIVERY MODE
10/26/2020 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):
SLW@blackhillsip.com
USPTO@SLWIP.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHU LI
Appeal 2020-001034
Application 14/874,676
Technology Center 3600
Before JOSEPH L. DIXON, MARC S. HOFF, and JOYCE CRAIG,
Administrative Patent Judges.
CRAIG, 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 and 3–19. See Non-Final Act. 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. Appellant identifies the real party in interest as eBay Inc.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a notification machine with dynamic
messaging interval. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
l. A method comprising:
by one or more processors of a machine, accessing stored
data that specifies a time interval to be inserted between
consecutive messages to be sent to a user, the consecutive
messages to reference a purchasable product;
by one or more processors of the machine, accessing social
media servers that each provide a different social media service
and that each provide a different application programming
interface (API), the accessing including requesting and obtaining
counts of communications that each referenced the purchasable
product during a query time span, each of the counts of
communications being obtained from a different social media
server among the social media servers via its corresponding API;
by one or more processors of the machine, accessing
threshold values from a database, each threshold value among
the threshold values corresponding to a different social media
server among the social media servers and its corresponding API;
by one or more processors of the machine, determining a
subset of the counts of communications, each count in the subset
transgressing a corresponding threshold value among the
threshold values, the determining of the subset including
comparing each of the counts to its corresponding threshold
value;
by one or more processors of the machine, calculating a
popularity score of the purchasable product based on the subset
of the counts of communications and comparing the calculated
popularity score to a threshold popularity score; and
by one or more processors of the machine, modifying the
time interval to be inserted between the consecutive messages
based on the calculated popularity score transgressing the
threshold popularity score, the modifying of the time interval
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causes the consecutive messages that reference the purchasable
product to be communicated to a device of the user with a
modified frequency of communication.
Appeal Br. 28 (Claims Appendix).
REJECTION
Claims 1 and 3–19 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to a judicial exception without significantly
more. Non-Final Act. 11.
ANALYSIS
Appellant argues that the Examiner’s rejection of claim 1 under
35 U.S.C. § 101 as directed to patent-ineligible subject matter is in error.
Appeal Br. 8–26. To the extent Appellant has not advanced separate,
substantive arguments for particular claims, or other issues, such arguments
are waived. 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues claims 1 and 3–19
as a group. Appeal Br. 8. Given our discretion under 37 C.F.R.
§ 41.37(c)(1)(iv), we decide the § 101 rejection of claims 1 and 3–19 based
on representative claim 1.
Principles of Law
“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).
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
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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
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 (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,
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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 part
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. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019), now
incorporated in the Manual of Patent Examination Procedure (“MPEP”) in
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sections 2103 through 2106.07(c) (“2019 Revised Guidance”).2 “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”).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

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 “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
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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(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; MPEP § 2106.04.
Step 1
Claim 1, as a method claim, falls within the process category of
§ 101. See Office Guidance, 84 Fed. Reg. at 53–54 (citing MPEP
§§ 2106.03, 2106.06).
Step 2A(i): Does the Claim Recite a Judicial Exception?
The Examiner determined that claim 1 recites certain methods of
organizing human activity (Non-Final Act. 12–13), mental processes (id. at
13), and mathematical relationships (id. at 13–14). In particular, the
Examiner determined that the first seven steps recited in claim 1 describe
commercial or legal interactions, such as advertising and marketing, and
managing personal behavior or relationships or relationships between
people, including following rules and/or instructions, which are certain
methods of organizing human activity. Id. at 12–13. With regard to abstract
mental processes, the Examiner determined that “a human being can access
stored data/values from a database, can access different servers/computers[,]
can request and obtain counts of communications, can determine a subset of
the counts of communication, can calculate score, can compare the
calculated score to the threshold, can modify the time interval.” Id. The
Examiner also determined that claim 1 recites mathematical relationships
because “there are mathematic algorithm operators, mathematical
correlations involve[d] in order to calculate a popularity score, threshold
value etc.” Id. at 13–14.
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Appellant argues that the Examiner erred in determining that claim 1
recites certain methods of organizing human activity and mathematical
relationships, but does not persuasively address the Examiner’s
determination that claim 1 recites mental processes. See Appeal Br. 8–13.
We are not persuaded that the Examiner erred. Consistent with
Appellant’s description of the claims (Spec. ¶¶ 1, 2, 10–21), we find that the
“determining,” “calculating,” and “modifying” steps, as recited in claim 1,
describe processing collected data to modify a time interval to be inserted
between consecutive messages based on a calculated popularity score
transgressing a threshold popularity score, which falls into the “mental
processes” category of abstract ideas. See 84 Fed. Reg. at 52.
Such tasks can be performed by the human mind or with pen and
paper. The Office Guidance explains that “mental processes” include acts
that people can perform in their minds or using pen and paper, even if the
claim recites that a generic computer component performs the acts. See
Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable
interpretation, covers performance in the mind but for the recitation of
generic computer components, then it is still in the mental processes
category unless the claim cannot practically be performed in the mind.”); see
also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318
(Fed. Cir. 2016) (“[W]ith the exception of generic computer-implemented
steps, there is nothing in the claims themselves that foreclose them from
being performed by a human, mentally or with pen and paper.”), quoted in
Office Guidance, 84 Fed. Reg. at 52 n.14.
Because we agree with the Examiner that the claim recites an abstract
idea, we proceed to Prong Two of Step 2A to determine if the idea is
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integrated into a practical application, in which case the claim as a whole
would not be “directed to” merely an abstract idea.
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
We next determine whether the recited judicial exception is integrated
into a practical application of that exception by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception(s); and (b) evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application.
We use the term “additional elements” for claim features, limitations,
or steps that the claim recites beyond the identified judicial exception. See
Revised Guidance at 55 n.24. In claim 1, the additional elements include the
“accessing” limitations and “one or more processors of a machine.”
To integrate the exception into a practical application, the additional
claim 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)). See 2019 Revised Guidance.
The Examiner determined that none of the additional limitations is
sufficient to amount to significantly more than the judicial exception
because the additional computer elements are “recited at a high-level of
generality” such that they amount to “no more than mere instructions to
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apply the judicial exception(s) . . . using a generic computer component (i.e.,
one hardware processor of a machine/computer, social media server, a
database).” Non-Final Act. 14. The Examiner further determined that
“nowhere [does] the claim recite any action perform[ed] by ‘API’
distinctly,” and the claim “simply uses the computer as a tool to implement
abstract idea [and] automate mental task[s].” Id.
Appellant argues that the Examiner failed to take into account the
limitation “each of the counts of communications being obtained from a
different social media server among the social media servers via its
corresponding API,” as recited in claim 1. Appeal Br. 14.
Appellant has not persuaded us that obtaining data from a social
media server via its API involves more than using a generic computer to
collect or gather data. The three “accessing” steps, as recited in claim 1, are
data gathering steps because they merely provide input for the recited data
processing steps. Thus, the “accessing” steps constitute insignificant extra-
solution activity. Tying a claimed mental process to specific data cannot turn
an abstract idea into patent-eligible subject matter because “mere ‘[data-
gathering] step[s] cannot make an otherwise nonstatutory claim statutory.”
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir.
2011) (internal citations omitted); OIP Techs., Inc. v. Amazon.com, Inc., 788
F.3d 1359, 1363 (Fed. Cir. 2015) (collecting and analyzing data amounted to
mere data gathering); In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en
banc), aff’d sub nom Bilski v. Kappos, 561 U.S. 593 (2010) (characterizing
data gathering steps as insignificant extra-solution activity).
Appellant next argues that claim 1 reflects an improvement in the
technical field of online advertising. Appeal Br. 15. Appellant cites
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paragraphs 12–16, 52–54, 56, 85, 86, and 89 of the Specification as
describing the improvements. Id. at 16. Appellant has not, however,
identified an additional element that applies or uses the judicial exception in
a manner that imposes a meaningful limit on the judicial exception, such that
it is more than a drafting effort designed to monopolize the exception. See
Alice, 573 U.S. at 221–24 (citing Mayo, 566 U.S. at 78–85). Rather,
Appellant’s claim recites generic computer elements (e.g., the processor of
the machine, database, API) that are used as tools to carry out the collection
of information and information analysis to modify a time interval to be
inserted between consecutive messages based on a calculated popularity
score transgressing a threshold popularity score. Using computers as tools to
perform common data information analysis and data collection functions that
can be mental processes (an abstract idea) does not impose a meaningful
limit on the abstract idea. See MPEP § 2106.05(f); see also Alice, 573 U.S.
at 223 (Finding “if [the] recitation of a computer amounts to a mere
instruction to implement an abstract idea on a computer, that addition cannot
impart patent eligibility.”) (internal quotation marks, alteration, and citations
omitted).
Appellant further argues that claim 1 represents a practical application
of an abstract idea because it is tied to a particular machine. Appeal Br. 18.
In particular, Appellant argues that the “accessing social media servers”
step, as recited in claim 1, “describes a feature that is not simply a ‘long
standing’ practice with the words ‘apply it’ to a computer,” but rather “may
only be practiced within an electronic computer environment.” Id.
Appellant’s argument is not persuasive because claim 1 only
generically requires “social media servers.” These components are described
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in the Specification at a high level of generality. See, e.g., Spec. ¶¶ 15–17.
We fail to see how the generic recitation of this basic computer component
integrates the judicial exception so as to “impose[] a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at
53. We find no indication in the Specification, nor does the Appellant direct
us to any indication, that the operations recited in independent claim 1
invoke any assertedly inventive programming, require any specialized
computer hardware or other inventive computer components, i.e., a
particular machine, or that the claimed invention is implemented using other
than generic computer components to perform generic computer functions.
See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (“[A]fter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible.”). Because no more than a generic computer is required, the claim
also does not define, or rely on, a “particular machine.” MPEP § 2106.05(b).
Further, the method does not transform matter. MPEP § § 2106.05(c).
Appellant also argues that the recited “modifying of the time interval
[based on the counts] causes the consecutive messages that reference the
purchasable product to be communicated to a device of the user with a
modified frequency of communication” imposes a meaningful limit on any
properly alleged judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception. Appeal Br. 19.
Appellant’s argument is not persuasive. Communicating messages to
a user device with a modified frequency of communication as a result of
applying the abstract idea does not impose a meaningful limit on the abstract
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idea itself. See MPEP § 2106.05(f). Nothing in the claims indicates what
specific steps are undertaken other than merely using the abstract idea in the
context of sending messages to user devices. Because the “causes” limitation
provides only a result-oriented solution and lacks details as to how the
computer performed the communications, the limitation is equivalent to
using the words “apply it.” See Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015) (The recitation of maintaining the
state of data in an online form without restriction on how the state is
maintained and with no description of the mechanism for maintaining the
state describes “the effect or result dissociated from any method by which
maintaining the state is accomplished” and does not provide a meaningful
limitation because it merely states that the abstract idea should be applied to
achieve a desired result).
Considering claim 1 as a whole, then, Appellant’s invention lacks a
technical solution to a technical problem like the claims in these cases.
Claim 1 as a whole merely uses instructions to implement the abstract idea
on a computer or, alternatively, merely uses a computer as a tool to perform
the abstract idea. Here, the additional limitation(s) do not integrate the
judicial exception into a practical application. More particularly, the claims
do not recite (i) an improvement to the functionality of a computer or other
technology or technical field; (ii) a “particular machine” to apply or use the
judicial exception; (iii) a particular transformation of an article to a different
thing or state; or (iv) any other meaningful limitation. See 84 Fed. Reg. at
55. Rather, claim 1 recites an abstract ideas as identified in Step 2A(i),
supra, and none of the additional elements integrates the judicial exception
into a practical application.
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Therefore, because the abstract idea is not integrated into a practical
application, we conclude that the claim is directed to the judicial exception.
Step 2B — “Inventive Concept” or “Significantly More”
If the claims are directed to a patent-ineligible concept, as we
conclude above, we proceed to the “inventive concept” step. In Step 2B we
must “look with more specificity at what the claim elements add, in order to
determine ‘whether they identify an “inventive concept” in the application of
the ineligible subject matter’ to which the claim is directed.” Affinity Labs of
Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016)
(quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir.
2016)). We look to see whether there are any “additional features” in the
claims that constitute an “inventive concept,” thereby rendering the claims
eligible for patenting even if they are directed to an abstract idea. Alice, 573
U.S. at 221. Those “additional features” must be more than “well-
understood, routine, conventional activity.” Mayo, 566 U.S. at 79.
Appellant does not direct our attention to anything in the Specification
that indicates the computer components perform anything other than well-
understood, routine, and conventional functions, such as receiving data,
looking up data in a database, processing data, and using data (time interval)
when sending messages. See Appeal Br. 23–26; buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and
sends the information over a network—with no further specification—is not
even arguably inventive”); In re TLI Commc’ns LLC Patent Litig., 823 F.3d
607, 614 (Fed. Cir. 2016) (server that receives data, extracts classification
information from the received data, and stores the digital images insufficient
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to add an inventive concept); Alice, 573 U.S. at 225–26 (receiving, storing,
sending information over networks insufficient to add an inventive concept).
We agree with the Examiner that, because the Specification describes
the additional elements in general terms, without describing the particulars,
the claim limitations may be broadly but reasonably construed as reciting
conventional computer components and techniques, particularly in light of
Appellant’s Specification, as cited above. See Non-Final Act. 16 (citing
Berkheimer Memo4 § III.A.1); see, e.g., Spec. ¶¶ 15–17, 91–93. We
conclude that claim 1 does not have an inventive concept because the claim,
in essence, merely recites various computer-based elements along with no
more than mere instructions to implement the identified abstract idea using
the computer-based elements.
Because claim 1 is directed to a judicial exception, without
significantly more, we sustain the Examiner’s § 101 rejection of independent
claim 1 and grouped claims 3–19, not argued separately with particularity.

DECISION
We affirm the Examiner’s decision rejecting claims 1 and 3–19.

4 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.)” at 3 (Apr. 19, 2018) (explaining that a specification that describes
additional elements “in a manner that indicates that the additional elements
are sufficiently well-known that the specification does not need to describe
the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can
show that the elements are well understood, routine, and conventional).
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–19 101 Eligibility 1, 3–19

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