Ex Parte Berstis

Patent Trial and Appeal Board

Mar 12, 2018

12366951 (P.T.A.B. Mar. 12, 2018)

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.
12/366,951 02/06/2009 Viktors Berstis AUS920030848US2 8890
87220 7590 03/13/2018
Walder Intellectual Property Law (END)
C/O Walder Intellectual Property Law, P.C.
17304 Preston Road
Suite 200
Dallas, TX 75252
EXAMINER
HUANG, TSAN-YU J
ART UNIT PAPER NUMBER
3685
MAIL DATE DELIVERY MODE
03/13/2018 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 VIKTORS BERSTIS
____________

Appeal 2016-0070501
Application 12/366,951
Technology Center 3600
____________

Before ST. JOHN COURTENAY III, JOHN HAMANN, and
JOYCE CRAIG, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 16–18, 22–24, and 28–39, which are all the claims pending in this
application. Claims 1–15, 19–21, and 25–27 are cancelled. We have
jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We reverse.

1 The Appellant identifies International Business Machines Corporation as
the real party in interest. App. Br. 2.
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STATEMENT OF THE CASE
Introduction
Appellant’s invention relates to:
horology and, in particular, to methods and devices for time
measurement using an electrical time base. More particularly,
the present invention relies on the operation of a device, which
may be a solid-state device, with methods and systems
pertaining thereto, for measuring time without an oscillator,
oscillating element, or oscillating circuit and without a
continuous power source. Still more particularly, the present
invention is directed to accomplishing commercial
transactions in manners that employ said device for its unique
horological characteristics.
(Spec. 2, ll. 5–15) (emphasis added).

Exemplary Claim
16. A method for processing a commercial transaction using
data processing devices, the method comprising:
determining a state of a time cell that is associated with a
commercial transaction that has been at least partially
performed on a first data processing device at a time prior to a
current time;
generating, at a second data processing device, a first time
value that represents when the time cell was programmed at the
time prior to the current time, based on the determined state
of the time cell; and
processing information about the commercial transaction using
the first time value to represent when the commercial
transaction occurred at the time prior to the current time,
wherein:
the time cell is an electrical device having an insulating
medium and an electrostatic charge storage element that is
programmed by giving the electrostatic charge storage element
a desired electrical potential,
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the time cell discharges electrostatic charge from the
electrostatic charge storage element through the insulating
medium at a predetermined rate of discharge, and
determining the state of the time cell comprises detecting a
current electrostatic charge stored in the electrostatic charge
storage element.

(Emphasis added in bold and italics).

Prosecution History Regarding Withdrawn Rejections
In the Final Office Action, the Examiner withdraws: (i) the 35 U.S.C.
§ 101 rejection of independent claim 22 and its dependent claims 23 and 24;
(ii) previous rejections under 35 U.S.C. § 112, second paragraph, and (iii)
the rejection under pre-AIA 35 U.S.C. § 103(a) of claims 16–18, 22–24, and
28–39.2 Final Act. 4. The Examiner confuses the status of this § 103(a)
rejection, however, by inexplicably including in the Final Action a detailed
statement of rejection under § 103(a) for claims 16–18, 22–24, and 28–39.
Final Act. 7–15.
Appellant (App. Br. 24) refers to a July 14, 2015 phone interview with
the Examiner in which the Examiner clarifies that the rejection under
35 U.S.C. § 103(a) for claims 16–18, 22–24, and 28–39 was in fact
withdrawn. However, a summary of this telephone interview was never
made of record by the Examiner. Nevertheless, in the Answer (2), the

2 See 37 C.F.R. § 41.39(a)(1):
An examiner’s answer is deemed to incorporate all of the
grounds of rejection set forth in the Office action from which
the appeal is taken (as modified by any advisory action and pre-
appeal brief conference decision), unless the examiner’s answer
expressly indicates that a ground of rejection has been
withdrawn. (emphasis added).
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Examiner clarifies that the rejection under 35 U.S.C. § 103(a) for claims
16–18, 22–24, and 28–39 is withdrawn.
Therefore, only claims 16–18 and 28–39 are before us on appeal, as
rejected under 35 U.S.C. § 101 for being directed to patent-ineligible subject
matter. Although claims 16–18, 22–24, and 28–39 are pending, there is no
rejection of claims 22–24 before us on appeal, because it was withdrawn
on page 4 of the Final Action, paragraph one. See n.2, supra.

Rejection
Claims 16–18 and 28–39 are rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter.

Issue on Appeal
Did the Examiner err in rejecting claims 16–18 and 28–39 under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter?

ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.

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Rejection of Claims 16–18 and 28–39 under 35 U.S.C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” The Supreme Court has “long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. Pty.
Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014) (quoting Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116
(2013)). The Supreme Court in Alice reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 82–84 (2012), “for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts.” Alice, 134 S. Ct.
at 2355.
The first step in that analysis is to determine whether the claims at
issue are directed to one of those patent-ineligible concepts, such as an
abstract idea. Abstract ideas may include, but are not limited to,
fundamental economic practices, methods of organizing human
activities, an idea of itself, and mathematical formulas or relationships.
Id. at 2355–57.
If the claims are not directed to a patent-ineligible concept, the
inquiry ends. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253,
1262 (Fed. Cir. 2017).
Otherwise, the inquiry proceeds to the second step where the
elements of the claims are considered “individually and ‘as an ordered
combination’ to determine whether the additional elements ‘transform the
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nature of the claim’ into a patent-eligible application,” Alice, 134 S. Ct. at
2355 (quoting Mayo, 566 U.S. at 78–79), so as to ensure the claims amount
to “significantly more” than the abstract idea. Alice, 134 S. Ct. at 2357.
We consider the question of whether the claims are directed to a
specific improvement in the capabilities of the computing devices, or,
instead, “a process that qualifies as an ‘abstract idea’ for which computers
are invoked merely as a tool.” Enfish, LLC v. Microsoft Corp., 822 F.3d
1327, 1336 (Fed. Cir. 2016).
We, therefore, decide under step two whether the claims: (a) set forth
an inventive concept that provides a specific means or method that
improves the relevant technology, or (b) are directed to a result or effect
that itself is the abstract idea, in which the claims merely invoke generic
processes and machinery. See Enfish, 822 F.3d at 1336. (See TABLE 1
above, last two rows).

The Examiner’s Rejection of Claims 16–18 and 28–39 under § 101 3
Regarding the first prong of the Mayo/Alice analysis, the Examiner
concludes that claims 16–18 and 28–39 on appeal are:
directed to the abstract idea of processing information
about a commercial transaction based on the timing of the
commercial transaction. Analyzing a commercial transaction
is a certain method of organization human activity related to
commercial activity, an example of an abstract idea
referenced in Alice Corp.

3 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).

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(Final Act. 5.) (emphasis added).

Regarding the second prong of the Mayo/Alice analysis, the
Examiner concludes:
The additional element(s) or combination of elements in
the claim(s) other than the abstract idea per se amount(s) to no
more than a mere instruction to apply the abstract idea to a
time cell that uses electrostatic physics. Viewed as a whole,
these additional claim element(s) do not provide meaningful
limitation(s) to transform the abstract idea into a patent
eligible application of the abstract idea such that the claim(s)
amounts to significantly more than the abstract idea itself.

(Final Act. 5.) (emphasis added).
Thus, the Examiner concludes that all claims 16–18 and 28–39 on
appeal are not patent-eligible under 35 U.S.C. § 101.

Mayo/Alice Analysis — Step 1
Regarding Alice Step 1, Appellant contends, inter alia:
Thus, while Appellant acknowledges that the claims include the
concept of processing information about a commercial
transaction, the claims are not "directed to" only this concept
and instead recite a specific mechanism for processing
information about the commercial transaction that amounts to
significantly more than just an abstract idea, contrary to the
allegations made by the Examiner.
(App. Br. 11).
We note Appellant’s independent claim 16 is directed, inter alia, to a
method of performing the recited steps or acts of determining, generating,
and processing, followed by a “wherein” clause in which a structural
element (“a time cell”) is defined in the claim as an “electrostatic storage
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element” that is given a “desired electrical potential” (i.e., is charged), and
then, over time, it discharges “through the insulating medium at a
predetermined rate of discharge,” whereupon the “state of the time cell” is
determined to indicate the passage of a (predetermined) interval of time.4
Thus, claim 16 is directed to a “method for processing a commercial
transaction using [generic] data processing devices.” However, for the
reasons discussed below, we conclude method claim 16 also recites the use
of a particular type of machine (“a time cell”) that has its state transformed
by “giving the electrostatic charge storage element a desired electrical
potential.” See n.3 supra.
Our reviewing court guides that fundamental economic and
conventional business practices are often found to be abstract ideas, even if
performed on a computer. See, e.g., OIP Techs. Inc. v. Amazon.com, Inc.,

4 In the event of further prosecution, we leave it to the Examiner to consider
whether method claim 16 is a hybrid claim because the claim recites steps in
a method that use a “time cell” and an apparatus (time cell) that
independently performs a recited function of discharging an electrostatic
charge. “A single claim which claims both an apparatus and the method
steps of using the apparatus is indefinite under 35 U.S.C. § 112, second
paragraph.” MPEP § 2173.05(p)(II) (citing In re Katz Interactive Call
Processing Patent Litigation, 639 F.3d 1303, 1318 (Fed. Cir. 2011) (citing
IPXL Holdings v. Amazon.com, Inc., 430 F.3d 1377, 1384 (Fed. Cir. 2005)).
See IPXL Holdings, 430 F.3d at 1384 (holding invalid a claim covering both
a system and a method as a “hybrid” claim). In both Katz and IPXL
Holdings, the Federal Circuit held claims indefinite for combining two
classes of invention. We leave it to the Examiner to consider a rejection
under § 112, second paragraph, of independent claim 16 and its associated
dependent claims. Although the Board is authorized to reject claims under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See Manual of Patent Examining Procedure (MPEP)
§ 1213.02.

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788 F.3d 1359, 1362–63 (Fed. Cir. 2015). In particular, “[t]he abstract idea
exception prevents patenting a result where ‘it matters not by what process
or machinery the result is accomplished.’” McRO, Inc. v. Bandai Namco
Games America Inc., 837 F.3d 1299, 1312 (2016) (emphasis added) (quoting
O'Reilly v. Morse, 56 U.S. 62, 113 (1854)).
Here, Appellant emphasizes that the “time cell” of independent claim
16 is directed to an improvement in the technology:
recites that the time cell is an electrical device having an
insulating medium and an electrostatic charge storage
element that is programmed by giving the electrostatic charge
storage element a desired electrical potential. The claim
further states that the time cell discharges electrostatic charge
from the electrostatic charge storage element through the
insulating medium at a predetermined rate of discharge.
Moreover, and as further definition of the way in which the
operation for determining the state of the time cell is performed,
the claim recites that determining the state of the time cell
comprises detecting a current electrostatic charge stored in
the electrostatic charge storage element. The other
independent claims recite similar features. This is clearly
directed to an improvement to technology and is clearly not
attempting to "tie up" or preempt the alleged abstract idea of
"processing information about a commercial transaction based
on the timing of the commercial transaction" but rather a
specific mechanism for processing information about a
commercial transaction that involves the programming of a
time cell at the time the commercial transaction was at least
partially performed, and detecting the state of the time cell at a
second data processing device to thereby process information
about the commercial transaction.
(App. Br. 12–13).

Turning to the Specification (20–21) for context, we find a description
of exemplary embodiments of the recited “time cell:”
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An insulated, charge storage element, e.g., as
discussed above with respect in FIG. 2A, can be implemented
in many different forms. One implementation of an
insulated, charge storage element is a modified non-volatile
memory cell, which is termed a “time cell”; more
specifically, a particular embodiment of a time cell
comprises a modified non-volatile memory cell that contains
a charge storage element. In contrast to a typical
non-volatile memory cell in which one attempts to hold a
programmed charge as long as possible to accurately
represent a programmed memory state, a time cell can be
configured or constructed by modifying or configuring the
structures of a non-volatile memory cell such that its
programmed charge storage element loses, discharges, emits,
or leaks its electrostatic charge through its insulating
medium in a known, controllable, measurable, manner. The
phrase “to program a time cell” is used in the same manner
as the phrase “to program a non-volatile memory cell”; in
other words, the phrase “to program a time cell” is used to
describe the process by which an insulated charge storage
element within a time cell receives its charge.
A time cell can be configured or constructed to lose,
discharge, emit, or leak a programmed electrostatic charge
at a known, controllable, measurable, rate; different time
cells can be configured or constructed to lose, discharge,
emit, or leak electrostatic charge at different but known,
controllable, measurable, rates. A read operation can be
performed on a time cell in order to obtain a measurement of
the remaining charge within the time cell’s charge storage
element; in other words, the read operation provides an
indirect observation of the electric potential of the charge
storage element in the time cell that is caused its retained
electrostatic charge. The time cell’s structure determines
the amount of time that should elapse before the charge
storage element loses enough charge to reach a particular
electric potential; in other words, by knowing the amount of
time that should elapse before the time cell’s charge
storage element reaches a particular voltage, the read
operation can determine whether or not a predetermined time
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period has elapsed. A predetermined time period that a time
cell is configured to measure may be termed the time cell’s
time period or the time cell’s expiration period; a time
cell that has reached its expiration period may be termed an
expired time cell.
(emphasis added in italics and bold).

Given the aforementioned context from the Specification (id.), we
conclude the recited “time cell” of claim 16 performs a quantitative
measurement of time that cannot reasonably be performed as a mental
process, or by a person with the aid of pen and paper. Moreover, we find
using a non-volatile memory cell (as described above) which does not
require a battery to measure time is an inventive concept that provides a
specific means or method that improves the relevant technology. (See
further discussion under Mayo/Alice step two, infra).
See also Specification page 4, lines 15–26:
In contrast to typical horological technology, a time cell
provides electronic time measurement without a continuous
energy source, such as a battery or an AC or DC power supply,
particularly without use of chemical reactions or radioactive
materials. Moreover, a time cell provides electronic time
measurement without an oscillator, an oscillating circuit, a beat
or pulse counter, or any other type of electric time base
oscillator. Hence, a time cell is a small timekeeping
device that is hermetically sealed and essentially impervious to
external physical effects except extreme temperatures and
extreme radiation. As such, a time cell has a small size, a
simple fabrication, and a low unit cost.

Thus, in considering Appellant’s claims as a whole in light of the
Specification, the principal issue before us under § 101 is whether it matters
what machinery by which the result is accomplished, because the “time cell”
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of claim 16 is arguably not a generic machine, such as a generic computer
which can be programmed to perform many different functions.
Accordingly, even if we assume arguendo under step one of the
Mayo/Alice analysis that claim 16 is directed to an abstract idea of
“processing a commercial transaction” using (generic) “data processing
devices,” we must further consider under step two whether the positively
recited “time cell” renders the claimed process patent-eligible, because the
recited “time cell” is arguably a particular machine, which is only capable
of performing a single dedicated function, unlike a generic computer,
which is capable of performing many different functions when appropriately
programmed. (See independent method claim 16).

Mayo/Alice Analysis — Step 2
Under step two of the Mayo/Alice analysis, we analyze the claims 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, 134 S. Ct. at 2357.

The “Machine-or-Transformation” (MoT) Test
As recognized by the Federal Circuit in Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709, 715–16 (Fed. Cir. 2014), the “machine-or-
transformation” (MoT) test, as outlined in In re Bilski, 545 F.3d 943, 954
(Fed. Cir. 2008), can provide a “useful clue” in the second step of the Alice
framework.

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Under Bilski’s MoT test, a claimed process can be patent-eligible
under § 101 if:
(1) it is tied to a particular machine or apparatus; or
(2) the process transforms a particular article into a different
state or thing. Bilski, 545 F.3d at 954 (citing Gottschalk v. Benson, 409
U.S. 63, 70 (1972)).
Applying the machine-or-transformation test here, and for essentially
the same reasons argued by Appellant in the Appeal Brief (12–13), we
conclude that Appellant’s claim 16 (and associated dependent claims 17, 18,
and 31) are sufficiently tied to a particular machine or apparatus: i.e., “a
time cell.” We conclude the “time cell” recited in Appellant’s independent
claim 16 is not a generic machine, because, unlike a generic computer,
which can perform many different functions when programmed, the recited
“time cell” can only be used for a single, dedicated purpose (measuring a
predetermined passage of time as a function of the decay over time of an
electrical charge). Thus, we conclude the claimed “time cell” is a
particular machine under Bilski’s MoT test.5
Further, under the second prong of the Bilski MoT test, we conclude
the process of claim 16 transforms a particular article (“time cell”) into a
different state, because we find the state of the time cell is changed
(transformed) to a different state when it is given an electrostatic charge
of a desired electrical potential, so as to discharge at “a predetermined rate

5 We need not reach and do not decide the issue of whether a dedicated
special-purpose programmed computer is, or is not, a “particular machine”
under the Bilski machine-or-transformation test.

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of discharge” to effect a measurement that a predetermined time period has
elapsed. (Claim 16).
Therefore, Bilski’s MoT test provides a useful clue that the claimed
process of claim 16 is patent-eligible under § 101, because we find prongs
one and two of the MoT test are satisfied.
Moreover, we conclude a person cannot reasonably and accurately
measure longer intervals of time (e.g., an expiration time) as a mental step.6
Nor are the generic “data processing devices” of claim 16 used to perform
the recited timing function that is positively recited as being performed by
the “time cell.” 7
For the aforementioned reasons, we conclude the additional “time
cell” element recited in method claims 16–18 and 31 individually provides a
sufficient inventive concept, so as to ensure the claims amount to
“significantly more” than the abstract idea. Alice, 134 S. Ct. at 2357
(emphasis added).8

6 See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375
(Fed. Cir. 2011) (“That purely mental processes can be unpatentable, even
when performed by a computer, was precisely the holding of the Supreme
Court in Gottschalk v. Benson”).

7 As held by the Supreme Court, “although the machine-or-transformation
test is reliable in most cases, it is not the exclusive test . . . rather it is a
critical clue.” Bilski v. Kappos, 561 U.S. 593, 613–14 (2010) (Justices
Stevens, Ginsburg, Breyer, and Sotomayor concurring).

8 We emphasize that even if time measurement devices are notoriously well
known in the art, this has no bearing upon our analysis under § 101. The
Supreme Court guides: “[t]he ‘novelty’ of any element or steps in a process,
or even of the process itself, is of no relevance in determining whether the
subject matter of a claim falls within the § 101 categories of possibly
patentable subject matter.” Diamond v. Diehr, 450 U.S. 175, 188–89 (1981)
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Therefore, on this record, we are persuaded of error regarding the
Examiner’s legal conclusion that method claims 16–18 and 31 on appeal are
directed to patent-ineligible subject matter.9

Independent System Claim 28
Independent claim 28 is directed to a “system” (i.e., apparatus) and
not to a method. The Biliski MoT test is inapplicable to system (apparatus)
claim 28. However, the recited “article of manufacture” of claim 28
comprises additional limitations, including, inter alia:
a time cell state detector that determines a state of a time cell
that is associated with a commercial transaction that has been at
least partially performed on a data processing device different
from the apparatus at a time prior to a current time; and

a time converter that generates a first time value that
represents when the time cell was programmed, at the time
prior to the current time, based on the determined state of the
time cell; and
. . .

(emphasis added). Our reviewing court further emphasizes: “[e]ligibility
and novelty are separate inquiries.” Two-Way Media Ltd. v. Comcast
Cable Commc’ns, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017) (emphasis
added).

9 “Patent eligibility under § 101 presents an issue of law.” Accenture Glob.
Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1340 (Fed. Cir.
2013). The patent eligibility inquiry may contain underlying issues of fact.
Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325
(Fed. Cir. 2016). In particular, “[t]he question of whether a claim element or
combination of elements is well-understood, routine and conventional to a
skilled artisan in the relevant field is a question of fact.” Berkheimer v. HP
Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018).

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wherein:

the time cell is an electrical device having an insulating
medium and an electrostatic charge storage element that is
programmed by giving the electrostatic charge storage element
a desired electrical potential,

the time cell discharges electrostatic charge from the
electrostatic charge storage element through the insulating
medium at a predetermined rate of discharge, and

determining the state of the time cell comprises detecting a
current electrostatic charge stored in the electrostatic charge
storage element.
(Independent Claim 28) (emphasis added).
Thus, we consider claim 28 as a whole and emphasize that the recited
“system for supporting a commercial transaction that is processed using
data processing devices comprising: an article of manufacture
comprising . . . ” includes the recited “time cell” (machine) as an essential
part of the claimed “system” under the transitional term “comprising.” See
Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
(“‘Comprising’ is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still
form a construct within the scope of the claim.”).
Similar to our discussion above regarding method claim 16, we
conclude the system of claim 28 transforms the recited “time cell” to a
different state. We find the state of the time cell is changed (transformed)
to a different state when it is given an electrostatic charge of a desired
electrical potential, so as to discharge at “a predetermined rate of discharge”
to effect a measurement that a (predetermined) time period has elapsed.
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Thus, it is our view that the additional individual element of the recited
“time cell” is sufficient to transform the nature of the claim into a patent-
eligible application.
Therefore, we conclude at least the additional limitation of the
recited “time cell” as an essential part of the claimed “system” ensures that
independent claim 28 amounts to significantly more than the abstract idea
of merely using generic data processing devices to perform the recited
“commercial transaction.” See Alice, 134 S. Ct. at 2357. We therefore
conclude the claimed “time cell” feature provides an inventive concept as
an improvement sufficient to ensure that the invention in practice amounts
to significantly more than a patent upon the abstract idea of a commercial
transaction.
Remaining system claims 29–30 and 32–39 depend directly or
indirectly from independent system claim 28.

Remaining Claims 22–24
We note again that the Examiner withdrew the rejection under 35
U.S.C. § 101 for remaining computer program product claims 22–24,
including independent claim 22. See Final Action 4. Therefore, there is no
rejection before us on appeal for claims 22–24. See 37 C.F.R. § 41.39(a)(1).

CONCLUSION
The Examiner erred in rejecting claims 16–18 and 28–39 under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter.

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DECISION
We reverse the Examiner’s decision rejecting claims 16–18 and 28–39
under 35 U.S.C. § 101.

REVERSED