Epicenter Experience, LLC

Patent Trials and Appeals Board

Sep 1, 2020

15853081 - (D) (P.T.A.B. Sep. 1, 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.
15/853,081 12/22/2017 Paul E. Krasinski EPICENTER-001 1021
50086 7590 09/01/2020
Law Office of David H. Judson
7244 N. Janmar Drive
Dallas, TX 75230
EXAMINER
EL-HAGE HASSAN, ABDALLAH A
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
09/01/2020 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):
mail@davidjudson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PAUL E. KRASINSKI and CARLTON K. LO
____________________

Appeal 2020-005670
Application 15/853,081
Technology Center 3600
____________________

Before ST. JOHN COURTENY, III, JAMES W. DEJMEK, and
MICHAEL T. CYGAN, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1–18. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We reverse and enter a new ground of rejection pursuant to our
authority under 37 C.F.R. § 41.50(b).

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies
Epicenter Experience, LLC as the real party in interest. Appeal Br. 1.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to
“consumer behavioral research and related measurement techniques.”
Spec. 1 (describing the technical field of the invention); see also Spec. 3, 6
(describing the invention as a method and apparatus “to facilitate consumer
behavioral research from mobile device end users”). In a disclosed
embodiment, a plurality of potential end users are identified based on
various parameters (e.g., presence at a defined location during a given time
period). Spec. 2–3. End users are selected by applying a probability
sampling methodology to the set of identified end users. Spec. 2–3. After
the end users have been selected, the system presents the selected end users
with an end user opportunity (e.g., a survey). Spec. 3, 11.
Claims 1, 15, and 18 are independent claims. Claim 1 is exemplary
and is reproduced below:
1. A method to improve a computational efficiency of a
computing system that generates behavioral research from end
users, wherein an end user has an associated mobile device
having a device identifier, comprising:
for each of a set of behavioral research projects executing
concurrently:
receiving and storing a data set with respect to the
behavioral research project, the data set comprising an audience
segment, a physical location, and an end user experience;
receiving first party data associated with each of a plurality
of end users, the first party data for a given end user being one
of: user-provided profile data, and third party-supplied profile
data that the third party has obtained from the end user, wherein
the profile data includes the device identifier for the mobile
device associated with the end user;
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receiving location data from a location-based data source,
the location data identifying, for each of the one or more physical
locations, a device identifier associated with a mobile device that
is or has been present in the physical location;
for a given time period, and with respect to any device
identifier received from the location-based data source that
matches a device identifier in the first party data, issuing a query
that includes the device identifier to one or more third party data
sources, thereby obtaining information that any of the one or
more third party data sources possesses with respect to an end
user associated with that device identifier, the information
comprising the device identifier and one or more demographic
attributes associated with the end user associated with the device
identifier;
with respect to the given time period, and as responses to
queries to the one or more third party data sources are received,
filtering a given response against a probability sample
representing a stable, randomly-selected set of respondents
having demographic attributes that are consistent with the
audience segment and census population to determine whether
an actual end user associated with the given response and that is
or was present in the physical location during the given time
period should be included in the set of respondents to engage the
end user experience; and
upon a determination that the actual end user should be
included in the set of respondents at least in part because the
actual end user is still present in the physical location or a given
post-visit time period has not yet expired, issuing an end user
experience opportunity to the mobile device associated with the
device identifier returned in the given response;
wherein the set of behavioral research projects are
executed concurrently with respect to different audience
segments, different physical locations and different sets of
mobile device users;
wherein improved computational efficiency of the
computing system is obtained based at least in part upon the
issuing and filtering operations being carried out for each
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behavioral research project as the set of behavioral research
projects are being executed concurrently.

The Examiner’s Rejection2
Claims 1–18 stand rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter. Final Act. 6–10.

ANALYSIS3
Appellant disputes the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. Appeal Br. 8–14; Reply
Br. 1–8. In particular, Appellant argues the claims are not directed to a
certain method of organizing human activity, but rather set forth a process
(as well as an apparatus and computer program) to process “a significant
amount of distinct types of data sets” in a computationally efficient manner.
Appeal Br. 9–12; Reply Br. 7–8. Thus, Appellant argues that even if the
claims recite a judicial exception (which Appellant does not concede), the
claims are patent eligible because they integrate the alleged judicial
exception into a practical application by improving the functioning of the
computer platform itself. Appeal Br. 11–12; Reply Br. 7–8. Moreover,
Appellant asserts the Examiner committed reversible error by failing to

2 The Examiner had also rejected claims 1–18 under 35 U.S.C. § 103. See
Final Act. 11–43. The Examiner has withdrawn these rejections. See
Ans. 3.
3 Throughout this Decision, we have considered the Appeal Brief, filed
May 11, 2020 (“Appeal Br.”); the Reply Brief, filed July 30, 2020 (“Reply
Br.”); the Examiner’s Answer, mailed July 17, 2020 (“Ans.”); and the Final
Office Action, mailed October 10, 2019 (“Final Act.”), from which this
Appeal is taken.
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conduct an analysis of whether any additional elements (beyond those that
recite the alleged judicial exception) or combination of elements are well-
understood, routine, and conventional activities in the field, consistent with
the requirements under the Office’s Berkheimer Memorandum.4 Appeal
Br. 12–14; Reply Br. 1–5.
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 217 (2014). In addition, the Office has published revised guidance
for evaluating subject matter eligibility under 35 U.S.C. § 101, specifically
with respect to applying the Alice framework. USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Office
Guidance”).5 If a claim falls within one of the statutory categories of patent
eligibility (i.e., a process, machine, manufacture, or composition of matter)
then the first inquiry is whether the claim is directed to one of the judicially
recognized exceptions (i.e., a law of nature, a natural phenomenon, or an

4 On April 19, 2018, the Deputy Commissioner for Patent Examination
Policy issued a memorandum entitled: Changes in Examination Procedure
Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility
Decision (Berkheimer v. HP, Inc.) (i.e., “the Berkheimer Memorandum”)
(discussing the Berkheimer decision) (available at https://www.uspto.gov/
sites/default/files/documents/memo-berkheimer-20180419.PDF). Support
for a finding that an element was well-understood, routine, or conventional
may be shown, for example, by citation to one or more court decisions
noting the well-understood, routine, conventional nature of the element(s).
See Berkheimer Memorandum 3–4.

5 The Office Guidance, as well as guidance set forth in the Berkheimer
Memorandum, have been incorporated into the latest revision of the Manual
of Patent Examination Procedure (“MPEP”) §§ 2103–2106.07(c) (9th ed.,
Rev. 10.2019, June 2020).
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abstract idea). Alice, 573 U.S. at 217. As part of this inquiry, we must “look
at the ‘focus of the claimed advance over the prior art’ to determine if the
claim’s ‘character as a whole’ is directed to excluded subject matter.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257–58 (Fed.
Cir. 2016). Per the Office Guidance, this first inquiry (“Step 2A”) has two
prongs of analysis: (i) does the claim set forth or describe a judicial
exception (e.g., an abstract idea such as a mental process), and (ii) if so, is
the judicial exception integrated into a practical application. Office
Guidance, 84 Fed. Reg. at 54; see also MPEP § 2106.04(II)(A). Under the
Office Guidance, if the judicial exception is integrated into a practical
application, see infra, the claim is patent eligible under § 101. Office
Guidance, 84 Fed. Reg. at 54–55; see also MPEP § 2106.04(d). If the claim
is directed to a judicial exception (i.e., recites a judicial exception and does
not integrate the exception into a practical application), the next step (“Step
2B”) is to determine whether any element, or combination of elements,
amounts to significantly more than the judicial exception. Alice, 573 U.S. at
217; Office Guidance, 84 Fed. Reg. at 56; see also MPEP § 2106.05.
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
concludes the claims are directed to “selecting qualified users to receive [a]
survey based on end user, physical location, and time.” Final Act. 6–7. The
Examiner determines that selecting qualified users to receive a survey based
on end user, physical location, and time is a certain method of organizing
human activity (such as a commercial or legal interaction (e.g., advertising,
marketing, sales activities or behaviors, or business relations) or managing
personal behavior or relationships) and is, therefore, an abstract idea. Final
Act. 8. The Examiner finds the only “additional elements” recited in claim
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1, i.e., those that are not part of the identified abstract idea, are “a computing
system,” “a device identifier associated with a mobile device,” and
“improved computational efficiency of the system.” Final Act. 8–9. The
Examiner finds these elements are recited at a high level of generality “such
that it amounts to no more than mere instructions to apply the exception
using computer component[s], or merely uses a computer as a tool to
perform an abstract idea.” Final Act. 9. Accordingly, the Examiner finds
these elements fail to integrate the abstract idea into a practical application.
Final Act. 9. Further, the Examiner finds the additional limitations do not
add significantly more than the abstract idea. Final Act. 9–10. In response
to Appellant’s assertion that the Examiner failed to provide the requisite
Berkheimer evidence that the additional limitations are well-understood,
routine, and conventional, the Examiner states “that he is not required to
provide evidence under the Berkheimer Memorandum because in the
previous office action the Examiner did not classify the additional elements
in the claims as well-understood routine and conventional elements.”
Ans. 8.
As set forth in our Office Guidance, at Step 2B, the Examiner “should
continue to consider” whether any identified additional elements or
combination of elements adds a specific limitation or combination of
limitations that are not well-understood, routine, conventional activity in the
field, or simply appends well-understood, routine, conventional activities
previously known to the industry specified at a high level of generality. See
Office Guidance, 84 Fed. Reg. at 56; see also MPEP § 2106.05(II).
“Whether something is well-understood, routine, and conventional to a
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skilled artisan at the time of the patent is a factual determination.”
Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018).
Although the Examiner determined that the additional elements
recited in the claim did not integrate into a practical application the
identified abstract idea (i.e., the commercial interaction of “selecting
qualified users to receive [a] survey based on end user, physical location,
and time,” which is a certain method of organizing human activity), the
Examiner did not expressly consider whether the identified additional
elements or combination of elements were merely well-understood, routine,
conventional activities, consistent with the requirements of the Berkheimer
Memorandum. More particularly, in responding to Appellant’s assertion
that the “‘projects executing concurrently’ claim elements” were not well-
understood, routine, or conventional (see Appeal Br. 12–13), the Examiner
responds that “any computer processor is able to execute multiple tasks
concurrently” (see Ans. 9), but does not set forth the requisite evidence
consistent with the Berkheimer Memorandum.
Thus, constrained by the record before us, we do not sustain the
Examiner’s rejection of claims 1–18 under 35 U.S.C. § 101.

NEW GROUND OF REJECTION
We enter a new ground of rejection pursuant to our authority under
37 C.F.R. § 41.50(b). We reject claims 1–18 under 35 U.S.C. § 101.
“Whether a patent claim is drawn to patent-eligible subject matter is
an issue of law that is reviewed de novo.” SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010).
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We conclude that Appellant’s claims recite an abstract idea. More
specifically, Appellant’s claims are generally directed to identifying end
users for inclusion in consumer behavioral research activities. This is
consistent with how Appellant describes the claimed invention. See Spec. 1
(stating the application relates to consumer behavioral research and related
measurement techniques), 3 (describing the invention as facilitating
consumer behavioral research from mobile end users selected based on
various parameters and probabilistic sampling), 19 (“the approach herein
preferably identifies actual people (versus clicks or impressions that do not
represent people) to include in the research project based on the combination
of device identifier, location, time and random selection of population,
preferably based on census data”); see also Appeal Br. 9–10 (explaining the
claims are directed to receiving and processing a significant amount of data
with respect to a behavioral research project (and processing the data in an
efficient manner)). Moreover, it is consistent with the Examiner’s
characterization of the claims as a whole. Cf. Final Act. 6–7 (concluding the
claims are directed to “selecting qualified users to receive [a] survey based
end user, physical location, and time”).6

6 Although we describe the abstract idea slightly differently than the
Examiner, the Examiner’s characterization of the idea is not erroneous. “An
abstract idea can generally be described at different levels of abstraction.”
Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). The
level of abstraction an examiner uses to describe an abstract idea need not
“impact the patentability analysis.” Apple, 842 F.3d at 1241. That is true
here. Regardless of the level of generality used to describe the abstract idea
recited, the claims are directed to an abstract idea. Cf. Accenture Glob.
Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344–45 (Fed.
Cir. 2013) (“Although not as broad as the district court’s abstract idea of
organizing data, it is nonetheless an abstract concept.”).
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Consistent with our Office Guidance and case law, we conclude that
the concept of identifying end users for inclusion in consumer behavioral
research activities is a certain method of organizing human activity (e.g.,
managing personal behavior or interactions, or a commercial interaction,
such as marketing or sales activity)—i.e., an abstract idea. See Office
Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(II) see also
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369 (Fed. Cir. 2015) (holding that “tailoring content based on the viewer’s
location” (i.e., a function of the user’s personal characteristics) is the type of
information tailoring that is a fundamental practice long prevalent in our
system and is an abstract idea); Affinity Labs of Tex., LLC v. Amazon.com
Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016) (concluding that using
demographic information about a user for purposes of targeted advertising to
be an abstract idea); British Telecomms. PLC v. IAC/InterActiveCorp, 813 F.
App’x 584, 587 (Fed. Cir. 2020) (unpublished) (concluding the claims were
directed to an abstract idea of “providing lists of location-specific
information sources to users based on their location” and that despite
Appellant’s contentions, were not directed to an improvement in how a
computer functions, but instead used a computer as a tool to implement the
abstract idea); In re Jobin, 811 F. App’x 633, 637 (Fed. Cir. 2020)
(unpublished) (concluding the claims were “directed to the collection,
organization, grouping, and storage of data using techniques such as
conducting a survey or crowdsourcing. . . . a method of organizing human
activity—a hallmark of claims directed to abstract ideas”).

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Claim 1 is reproduced below and includes the following claim
limitations that recite the concept of identifying end users for inclusion in
consumer behavioral research activities, emphasized in italics (bracketed
romanettes added):
1. A method to improve a computational efficiency of a
computing system that generates behavioral research from end
users, wherein an end user has an associated mobile device
having a device identifier, comprising:
for each of a set of behavioral research projects executing
concurrently:
[i] receiving and storing a data set with respect to the
behavioral research project, the data set comprising an audience
segment, a physical location, and an end user experience;
[ii] receiving first party data associated with each of a
plurality of end users, the first party data for a given end user
being one of: user-provided profile data, and third party-
supplied profile data that the third party has obtained from the
end user, wherein the profile data includes the device identifier
for the mobile device associated with the end user;
[iii] receiving location data from a location-based data
source, the location data identifying, for each of the one or more
physical locations, a device identifier associated with a mobile
device that is or has been present in the physical location;
[iv] for a given time period, and with respect to any device
identifier received from the location-based data source that
matches a device identifier in the first party data, issuing a query
that includes the device identifier to one or more third party data
sources, thereby obtaining information that any of the one or
more third party data sources possesses with respect to an end
user associated with that device identifier, the information
comprising the device identifier and one or more demographic
attributes associated with the end user associated with the device
identifier;
[v] with respect to the given time period, and as responses
to queries to the one or more third party data sources are
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received, filtering a given response against a probability sample
representing a stable, randomly-selected set of respondents
having demographic attributes that are consistent with the
audience segment and census population to determine whether
an actual end user associated with the given response and that is
or was present in the physical location during the given time
period should be included in the set of respondents to engage the
end user experience; and
[vi] upon a determination that the actual end user should
be included in the set of respondents at least in part because the
actual end user is still present in the physical location or a given
post-visit time period has not yet expired, issuing an end user
experience opportunity to the mobile device associated with the
device identifier returned in the given response;
wherein the set of behavioral research projects are
executed concurrently with respect to different audience
segments, different physical locations and different sets of
mobile device users;
wherein improved computational efficiency of the
computing system is obtained based at least in part upon the
issuing and filtering operations being carried out for each
behavioral research project as the set of behavioral research
projects are being executed concurrently.
More specifically, the concept of identifying end users for inclusion in
consumer behavioral research activities comprises (i) receiving a data set of
parameters and attributes related to a behavioral research project (i.e., the
claimed step identified as [i]); (ii) receiving device identifier information for
a mobile device associated with a plurality of end users (i.e., the claimed
step identified as [ii]); (iii) for a plurality of physical locations associated
with the behavioral research project, receiving an indication of device
identifiers that have been or are present in the physical location (i.e., the
claimed step identified as [iii]); (iv) receiving demographic information for
those end users who are or were present in the specified physical location for
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a given time period, as determined by the location data comprising device
identifiers associated with mobile (i.e., the claimed step identified as [iv]);
(v) filtering the set of qualified end users (i.e., those that were at a particular
location within a particular time period) using the demographic attribute
information associated with the users (i.e., the claimed step identified as
[v]); and (vi) providing an end user experience opportunity (i.e., behavioral
research activity) to the filtered set of end users (i.e., the claimed step
identified as [vi]).
Because the claim recites a judicial exception, we next determine
whether the claim integrates the judicial exception into a practical
application. Office Guidance, 84 Fed. Reg. at 54; see also MPEP
§ 2106.04(d). To determine whether the judicial exception is integrated into
a practical application, we identify whether there are “any additional
elements recited in the claim beyond the judicial exception(s)” and evaluate
those elements to determine whether they integrate the judicial exception
into a recognized practical application. Office Guidance, 84 Fed. Reg. at
54–55 (emphasis added); see also MPEP § 2106.05(a)–(c), (e)–(h).
Here, we find the additional limitations (i.e., a computing system and
mobile device (independent claims 1 and 18); and an apparatus comprising
one or more hardware processors and computer memory (independent claim
15)) 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 (see MPEP
§ 2106.05(a)); (ii) a “particular machine” to apply or use the judicial
exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an
article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other
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meaningful limitation (see MPEP § 2106.05(e)). See Office Guidance, 84
Fed. Reg. at 55.
For example, the additional limitations merely recite that the set of
steps [i]–[vi], which are associated with a single behavioral research project,
are executed concurrently (in parallel) for a plurality of behavioral research
projects and, therefore, do not result in an “improved computational
efficiency.”
We disagree with Appellant that the additional limitations integrate
the judicial exception (i.e., of identifying end users for inclusion in
consumer behavioral research activities) into a practical application by
improving the functioning of a computing system.
“To be a patent-eligible improvement to computer functionality, we
have required the claims to be directed to an improvement in the
functionality of the computer or network platform itself.” Customedia
Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1363–63 (Fed. Cir.
2020) (discussing the claims in cases such as Enfish,7 Visual Memory,8
Gemalto,9 Ancora,10 Finjan,11 and Data Engine12 were all directed to

7 Enfish, LLC v. Microsoft Corp., 822 F3d 1327, 1337–39 (Fed. Cir. 2016).
8 Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259–60 (Fed. Cir.
2017).
9 Koninklijke KPN N.V. v. Gemalto M2M GmbH, 942 F.3d 1143, 1151 (Fed.
Cir. 2019).
10 Ancora Techs. Inc. v. HTC Am., Inc., 908 F.3d 1343, 1347–49 (Fed. Cir.
2018).
11 Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1304–06 (Fed. Cir.
2018).
12 Data Engine Techs. LLC v. Google LLC, 906 F.3d 999, 1007–08 (Fed.
Cir. 2018).
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improvements in computer functionality). As discussed above, the claims
are not directed to an improvement in computer functionality, but rather are
directed to identifying end users for inclusion in consumer behavioral
research activities that is facilitated by a generically claimed and generically
described computer system.
Moreover, “claiming the improved speed or efficiency inherent with
applying the abstract idea on a computer [is] insufficient to render the claims
patent eligible as an improvement to computer functionality.” Customedia,
951 F.3d at 1364 (internal quotation and citation omitted); see also In re
Rosenberg, 813 F. App’x 594, 597 (Fed. Cir. 2020) (unpublished)
(determining “[t]he ability to make assessments more quickly to provide
instructions on whether to modify a clinical trial is at best an improvement
on an abstract process itself and not a technical improvement”); Interval
Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1346 (Fed. Cir. 2018) (“It is
well-settled that placing an abstract idea in the context of a computer does
not ‘improve’ the computer or convert the idea into a patent-eligible
application of that idea.”) (internal citation omitted).
Here, merely reciting an “improved computational efficiency” is
insufficient to integrate the judicial exception into a practical application.
The claims recite that an improved computational efficiency is achieved by
concurrently performing the issuing and filtering operations for different
behavioral research projects. However, using a computer to perform tasks
more quickly or efficiently does not confer patent eligibility on an otherwise
ineligible abstract idea. See, e.g., Bancorp Servs., L.L.C. v. Sun Life Assur.
Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that
the required calculations could be performed more efficiently via a computer
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does not materially alter the patent eligibility of the claimed subject
matter.”); see also Two-Way Media Ltd v. Comcast Cable Comms., LLC,
874 F.3d 1329, 1337–38 (Fed. Cir. 2017) (explaining that the pending
claims failed to describe how the claimed architecture led to an improvement
in the functioning of the system). As the court noted in Capital One,
information tailoring (such as to support advertising planning, buying, and
selling) is a “practice long prevalent in our system.” Capital One, 792 F.3d
at 1369 (citation and internal quotation marks omitted). The court also
explained the addition of a computer functionality to such a concept does not
confer patent eligibility. Capital One, 792 F.3d at 1370.
In addition, as provided for in the October 2019 Update: Subject
Matter Eligibility (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf) (“October Update”), the
“specification should be evaluated to determine if the disclosure provides
sufficient details such that one of ordinary skill in the art would recognize
the claimed invention as providing the improvement.” October Update at
12; see also MPEP § 2106.04(d)(1). “[I]f the specification explicitly sets
forth an improvement but in a conclusory manner (i.e., a bare assertion of an
improvement without the detail necessary to be apparent to a person of
ordinary skill in the art), the examiner should not determine the claim
improves technology.” October Update at 12; see also MPEP
§ 2106.04(d)(1).
Here, it is not until the penultimate paragraph that the Specification
states an improvement to computational and infrastructure efficiencies is
provided due to performing queries on a filtered set of data (i.e., the result of
a device identifier-specific query). We do not find that one of ordinary skill
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in the art would recognize performing computations only on a data set of
interest to be an improvement to the functioning of the computer.
As the court in Enfish explained, “the first step in the Alice inquiry . . .
asks whether the focus of the claims is on the specific asserted improvement
in computer capabilities . . . or, instead, on a process that qualifies as an
‘abstract idea’ for which computers are invoked merely as a tool.” Enfish,
822 F.3d at 1335–36. As discussed above, the focus of the pending claims is
on identifying end users for inclusion in consumer behavioral research
activities and the recited computing elements are invoked merely as a tool.
See Enfish, 822 F.3d at 1335–36.
The additional elements of a computing system (which, for example,
executes the plurality of behavioral research projects concurrently) and
mobile device (independent claims 1 and 18); and an apparatus comprising
one or more hardware processors and computer memory (independent claim
15) merely perform the judicial exception. The Specification describes the
computing platforms as “commodity hardware,” may use the “well-known”
model of cloud computing of service delivery, and use a “conventional” web
site front end and “conventional” access controls. Spec. 7–8, 20–21. Thus
the claims do not apply or use a particular machine in the context of a
method claim. See Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306,
1335 (Fed. Cir. 2015) (explaining that in order for a machine to add
significantly more, it must “play a significant part in permitting the claimed
method to be performed, rather than function solely as an obvious
mechanism for permitting a solution to be achieved more quickly”); see also
MPEP § 2106.05(b).
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In addition, the limitations recited in the dependent claims are
insufficient to confer patent eligibility. Rather, the additional limitations
merely refine the abstract idea itself, append extra-solution activities to the
abstract idea, or provide additional detail to the type of data/information
being processed. Specifically, dependent claim 2 refines the weights in
probability sample used to filter the number of qualified end users;
dependent claims 3–7, 11, 12, 16, and 17 relate to the end user experience—
i.e., defining the types of experience, the content of the experience, and the
processing of experience responses/results; dependent claims 8, 9, and 14
describe the source of different data and types of data sources; dependent
claim 10 further defines information contained in the location data, and
dependent claim 13 defines the initial set of end users. These limitations are
insufficient to transform judicially excepted subject matter into a patent-
eligible application. See MPEP § 2106.05(f)–(h).
For at least the foregoing reasons, the claims do not integrate the
judicial exception into a practical application.
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
(i.e., step 2B of the Office Guidance) to determine if there are additional
limitations that individually, or as an ordered combination, ensure the claims
amount to “significantly more” than the abstract idea. Alice, 573 U.S. at
217–18 (citing Mayo, 566 U.S. at 77–79). As stated in the Office Guidance,
many of the considerations to determine whether the claims amount to
“significantly more” under step two of the Alice framework are already
considered as part of determining whether the judicial exception has been
integrated into a practical application. Office Guidance, 84 Fed. Reg. at 56;
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see also MPEP § 2106.04(d)(I). Thus, at this point of our analysis, we
determine if the claims add a specific limitation, or combination of
limitations, that is not well-understood, routine, conventional activity in the
field, or simply append well-understood, routine, conventional activities at a
high level of generality. Office Guidance, 84 Fed. Reg. at 56; MPEP
§ 2106.05(II). “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.
Here, Appellant’s claims do not recite specific limitations (alone or
when considered as an ordered combination) that are not well-understood,
routine, and conventional. As described above, Appellant describes the
components and functions (i.e., concurrent execution of issuing a query and
end user experience and filtering operations for multiple behavioral projects)
performed by the components at a high level of generality and notes that
components comprise “commodity hardware” running off-the shelf
operating systems, webserver applications, and database management
packages. Spec. 6–7. Appellant describes the machines comprise
“sufficient disk and memory, as well as input and output device.” Spec. 7.
In describing that the functions may be implement in a could-based
architecture approach, Appellant notes that such a model is “well-known.”
Spec. 7. Appellant describes the mobile device may be a smartphone, tablet,
wearable device, or a similar device. Spec. 8 (identifying example devices
from Apple, Google, Microsoft, and Amazon). Further, Appellant states
“the mobile device is any wireless client device.” Spec. 9. In addition,
companion devices to the mobile device are identified as “a conventional
desktop, laptop, or other Internet-accessible machine.” Spec. 10; see also
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Figs. 1, 2. In addition, Appellant expressly states “[t]here is no limitation on
the type of computing entity that may implement the functionality described
herein. Any computing entity (system, machine, device, program, process,
utility, or the like) may be used.” Spec. 21. Conventional computer
components operating to collect, manipulate, and display data are well
understood, routine, and conventional to a skilled artisan. See Mortg.
Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324–25 (Fed.
Cir. 2016) (generic computer components, such as an “interface,”
“network,” and “database,” fail to satisfy the inventive concept
requirement); Alice, 573 U.S. at 226 (“Nearly every computer will include a
‘communications controller’ and [a] ‘data storage unit’ capable of
performing the basic calculation, storage, and transmission functions
required by the method claims.”); Intellectual Ventures I LLC v. Erie Indem.
Co., 850 F.3d 1315, 1327 (Fed. Cir. 2017) (explaining that receiving a
request to execute a database search and delivering records are routine
computer functions that can only be described as generic or conventional);
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.”).
Additionally, contrary to Appellant’s assertion (see Reply Br. 8), we
are unpersuaded that consideration of BASCOM13 alters our determination.
For example, in BASCOM, the court found “the patent describes how its
particular arrangement of elements is a technical improvement,” and, when

13 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016).
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construed in favor of BASCOM,14 the claims may be read to improve an
existing technological process. BASCOM, 827 F.3d at 1350. As discussed
above, the claims do not improve an existing technological process, but
rather use the existing components to perform the abstract idea. Unlike the
arrangement of elements (i.e., installation of a filtering tool at a specific
location) in BASCOM, 827 F.3d at 1349–50 (or the distributed architecture
described in Amdocs, 841 F.3d at 1300), Appellant’s claims do not recite a
non-conventional and non-routine arrangement of known elements. Instead,
Figure 1 illustrates a plurality of application servers to manage the basic
functions of the service. See Spec. 7, Fig. 1.
For the reasons discussed supra, we conclude the claims 1–18 are not
patent eligible under 35 U.S.C. § 101.

CONCLUSION
We reverse the Examiner’s decision rejecting claims 1–18 under
35 U.S.C. § 101.
We enter a new ground of rejection rejecting claims 1–18 under
35 U.S.C. § 101.

DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
1–18 101 Eligibility 1–18 1–18

14 In BASCOM, BASCOM appealed the district court’s granting of a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). BASCOM, 827 F.3d at 1341.
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TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, Appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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).
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REVERSED; NEW GROUND 37 C.F.R. § 41.50(b)