Ex Parte Isaacs

Patent Trials and Appeals Board

Apr 24, 2019

12239748 - (D) (P.T.A.B. Apr. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/239,748 09/27/2008
146568 7590
ENTIT SOFTWARE LLC
500 Westover Drive
#12603
Sanford, NC 27330
04/26/2019
FIRST NAMED INVENTOR
Malcolm Isaacs
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
82239371 4046
EXAMINER
MILLER, ALAN S
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
04/26/2019 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):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MALCOLM ISAACS
Appeal2017-009763
Application 12/239,748
Technology Center 3600
Before ANTON W. PETTING, JOSEPH A. FISCHETTI, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Malcolm Isaacs (Appellant) seeks review under 35 U.S.C. § 134 of a
final rejection of claims 1, 4---6, 9-11, 14--16 and 19, 20, and 22-29, the only
claims pending in the application on appeal. We have jurisdiction over the
appeal pursuant to 35 U.S.C. § 6(b).
1 Our decision will make reference to the Appellant's Appeal Brief ("Br.,"
filed January 17, 2017) and the Examiner's Answer ("Ans.," mailed April
21, 2017), and Final Action ("Final Act.," mailed August 18, 2016).
Appeal2017-009763
Application 12/239,748
The Appellant invented a way of analysis of business operations.
Specification para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method for optimizing business processes comprising:
[ 1] retrieving, via an analyzer component, testing data on a
business application from a database,
wherein the testing data is generated before deployment
of the business application;
[2] retrieving, via the analyzer component, actual data on the
business application from a deployed business process system,
wherein the actual data is generated during deployment
of the business application and represents resource usage
and an application-specific parameter of the business
app li cation;
[3] analyzing, via the analyzer component, the actual data and
the testing data to identify at least one business process from
the actual data,
wherein the analyzing comprises matching an identified
business process from the actual data with a baseline
business process defined during testing,
and
wherein matching the identified business process
comprises generating a fingerprint of the baseline
business process and determining a measure of deviation
comprising a degree of correlation between the identified
business process and the baseline business process,
wherein the determined degree of correlation indicates a
match,
2
Appeal2017-009763
Application 12/239,748
and
wherein the fingerprint comprises reactions of a database,
server, and client of the identified business process, the
reactions being related to resource usage;
[ 4] generating a report that includes differences between the
identified business process and the business process defined
during testing.
Claims 1, 4--6, 9-11, 14--16 and 19, 20, and 22-29 stand rejected under
35 U.S.C. § 101 as directed to non-statutory subject matter.
ISSUES
The issues of eligible subject matter tum primarily on whether the claims
recite more than abstract conceptual advice of what a computer is to provide
without implementation details.
ANALYSIS
We begin by construing the term "fingerprint" in claim 1 limitation 3.
The claim itself recites that "the fingerprint comprises reactions of a
database, server, and client of the identified business process, the reactions
being related to resource usage." Claim 1. The Specification describes a
fingerprint by stating
an important part of the testing process is the creation of
repeatable tests that exercise specific functionality within an
application. These tests can be chained together to exercise
larger parts of the functionality, such as business processes ....
The combination of reactions of all the components of the
business process is unique to each test, and can be represented
as a 'fingerprint' to a given stimulus.
3
Appeal2017-009763
Application 12/239,748
Specification para. 29. We construe a fingerprint as a data representation of
a combination of reactions. The manner of representation is undefined and
unlimited in scope.
STEP 1i
Claim 1, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP2
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, ...
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, "[w]hat
else is there in the claims before us? To answer that question, .
. . consider the elements of each claim both individually and "as
an ordered combination" to determine whether the additional
elements "transform the nature of the claim" into a patent-
eligible application. [The Court] described step two of this
analysis as a search for an "'inventive concept'"-i.e., an
element or combination of elements that is "sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself."
Alice Corp., Pty. Ltd. v CLS Bank Intl, 573 U.S. 208, 217-18 (2014)
(citations omitted) (citing Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012)). To perform this test, we must first
2 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 FR 50 (Jan. 7, 2019).
4
Appeal2017-009763
Application 12/239,748
determine what the claims are directed to. This begins by determining
whether the claims recite one of the judicial exceptions ( a law of nature, a
natural phenomenon, or an abstract idea). Then, if claims recite a judicial
exception, determining whether the claims at issue are directed to the recited
judicial exception, or whether the recited judicial exception is integrated into
a practical application of that exception, i.e., that the claims "apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception." 2019 Guidance at 54. If the
claims are directed to a judicial exception, then finally determining whether
the claims provide an inventive concept because the additional elements
recited in the claims provide significantly more than the recited judicial
exception.
STEP 2A Prong 1
Method claim 1 recites retrieving test and actual data, identifying a
business process from the actual data by matching against baseline data, and
generating a report. Thus, claim 1 recites retrieving, analyzing, and
displaying data. None of the limitations recite technological implementation
details for any of these steps, but instead recite only results desired by any
and all possible means.
From this we see that claim 1 does not recite the judicial exceptions of
either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
5
Appeal2017-009763
Application 12/239,748
include (1) mathematical concepts3, (2) certain methods of organizing
human activity4, and (3) mental processes 5. Among those certain methods
of organizing human activity listed in the Revised Guidance are managing
personal behavior or relationships or interactions between people. Like
those concepts claim 1 recites a way of measuring how well behavior
management may be expected to succeed. Specifically, claim 1 recites
operations that would ordinarily take place in creating business routines by
identifying a process by its reactions and computing statistics as to how well
the process meets expectations. The advice to create business routines by
identifying a process (business routine) by its reactions and compute
statistics as to how well the process meets expectations involves creating
business routines, which is economic commerce act, and calibrating business
routine effectiveness, which is a practice ordinarily performed in the stream
of commerce. For example, claim 1 recites "retrieving ... actual data on
the business application from a deployed business process system,
3 See, e.g., Gottschalkv. Benson, 409 U.S. 63, 71-72 (1972); Bilski v.
Kappas, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163 (Fed. Cir. 2018).
4 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B. V., 911 F.3d 1157, 1160-61 (Fed.
Cir. 2018).
5 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371-72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
6
Appeal2017-009763
Application 12/239,748
wherein the actual data is generated during deployment of the business
application and represents resource usage," which is an activity that would
take place whenever one is recording data on how a business practice
operates. Similarly, claim 1 recites "analyzing, via the analyzer
component, the actual data and the testing data to identify at least one
business process from the actual data," which is also characteristic of
calibrating such a business practice.
The Examiner determines the claims to be directed to "optimizing
business processes by outputting reports, based on data that is analyzed
using mathematical algorithms that a user can interpret and use to make
changes .... [These are] mental processes of collecting information, and
analyzing information by steps people go through in their minds." Final
Act. 10.
The preamble to claim 1 recites that it is a method for optimizing
business processes. The steps in claim 1 result in generating a report that
includes differences between an identified business process and the business
process defined during testing absent any technological mechanism other
than a conventional computer for doing so.
As to the specific limitations, limitations 1, 2, and 4 recite insignificant
retrieving, analyzing, and displaying of actual and test data, which advise
one to apply generic functions to get to these results. Limitation 3 is the
only step associated with performing what the claim produces and recites
analyzing data by matching actual and baseline data and determining a
measure of deviation comprising a degree of correlation between the
identified business process and the baseline business process, which is
7
Appeal2017-009763
Application 12/239,748
simply identifying a data match and performing some generic statistical
analysis. The limitations thus recite advice for identifying a process by its
reactions and computing statistics as to how well the process meets
expectations. To advocate identifying a process by its reactions and
computing statistics as to how well the process meets expectations is
conceptual advice for results desired and not technological operations.
The Specification at paragraph 1 describes the invention as relating to
analysis of business operations. Thus, all this intrinsic evidence shows that
claim 1 is directed to reporting how well a business process matches its
baseline, i.e. creating business routines. This is consistent with the
Examiner's determination.
This in tum is an example of managing personal behavior or relationships
or interactions between people as a certain method of organizing human
activity because a business routine (process) is a formal manner of managing
organizational behavior.
The concept of creating business routines by identifying a process by its
reactions and computing statistics as to how well the process meets
expectations is a way of measuring how well such behavior management
may be expected to succeed. The steps recited in claim 1 are part of
producing such measurement.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Digitech Image Technologies, LLC
v. Electronics for Imaging, Inc., 758 F.3d 1344, 1351 (2014)(organizing data
sets).
8
Appeal2017-009763
Application 12/239,748
Alternately, this is an example of concepts performed in the human mind
as mental processes because the steps of retrieving, analyzing, and
displaying data mimic human thought processes of observation, evaluation,
judgment, and opinion, perhaps with paper and pencil, where the data
interpretation is perceptible only in the human mind. See In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data retrieval, analysis, and display
and does not recite an improvement to a particular computer technology.
See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1314--15 (Fed. Cir. 2016) (finding claims not abstract because they "focused
on a specific asserted improvement in computer animation"). As such, claim
1 is directed to retrieving, analyzing, and displaying data, and not a
technological implementation or application of that idea.
From this we conclude that at least to this degree, claim 1 is directed to
creating business routines by identifying a process by its reactions and
computing statistics as to how well the process meets expectations.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more precisely
directed to this concept itself or whether it is instead directed to some
9
Appeal2017-009763
Application 12/239,748
technological implementation or application of, or improvement to, this
concept i.e. integrated into a practical application. 6
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, "all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas."
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. "[A]pplication[s]" of
such concepts " 'to a new and useful end,' " we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the " 'buildin[g] block[ s]' " of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 ( citations omitted).
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it"' is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implement[t]" an abstract
idea "on ... a computer," that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly genenc computer
6 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
10
Appeal2017-009763
Application 12/239,748
implementation is not generally the sort of "additional
feature[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
Alice, 573 U.S. at 223-24 (citations omitted).
"[T]he relevant question is whether the claims here do more than simply
instruct the practitioner to implement the abstract idea [] on a generic
computer." Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Steps 1 and 2 are pure data gathering
steps. Limitations describing the nature of the data do not alter this. . Step
4 is insignificant post solution activity, such as storing, transmitting, or
displaying the results. Step 3 recites generic computer processing expressed
in terms of results desired by any and all possible means and so present no
more than conceptual advice. All purported inventive aspects reside in how
the data is interpreted and the results desired, and not in how the process
physically enforces such a data interpretation or in how the processing
technologically achieves those results.
Viewed as a whole, Appellant's claim 1 simply recites the concept of
creating business routines by identifying a process by its reactions and
computing statistics as to how well the process meets expectations as
performed by a generic computer. This is no more than conceptual advice
on the parameters for this concept and the generic computer processes
necessary to process those parameters, and do not recite any particular
implementation.
11
Appeal2017-009763
Application 12/239,748
Claim 1 does not, for example, purport to improve the functioning of the
computer itself. Nor does it effect an improvement in any other technology
or technical field. The 17 pages of specification do not bulge with
disclosure, but only spell out different generic equipment 7 and parameters
that might be applied using this concept and the particular steps such
conventional processing would entail based on the concept of creating
business routines by identifying a process by its reactions and computing
statistics as to how well the process meets expectations under different
scenarios. They do not describe any particular improvement in the manner a
computer functions. Instead, claim 1 at issue amounts to nothing
significantly more than an instruction to apply creating business routines by
identifying a process by its reactions and computing statistics as to how well
the process meets expectations using some unspecified, generic computer.
Under our precedents, that is not enough to transform an abstract idea into a
patent-eligible invention. See Alice, 573 U.S. at 225-26.
None of the limitations reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for
a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or applies or uses the judicial
7 The Specification describes a general-purpose computer. Spec. para. 4 7.
12
Appeal2017-009763
Application 12/239,748
exception in some other meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception.
We conclude that claim 1 is directed to achieving the result of creating
business routines by advising one to identifying a process by its reactions
and computing statistics as to how well the process meets expectations as
distinguished from a technological improvement for achieving or applying
that result. This amounts to managing personal behavior or relationships or
interactions between people, which fall within certain methods of organizing
human activity that constitute abstract ideas. The claim does not integrate
the judicial exception into a practical application.
STEP 2B
The next issue is whether claim 1 provides an inventive concept because
the additional elements recited in the claim provide significantly more than
the recited judicial exception. Taking the claim elements separately, the
function performed by the computer at each step of the process is purely
conventional. Using a computer for retrieving, analyzing, and displaying
data amounts to electronic data query and retrieval----one of the most basic
functions of a computer. All of these computer functions are generic,
routine, conventional computer activities that are performed only for their
conventional uses. See TL! Commc 'ns, 823 F.3d at 612. Also see In re Katz
Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1316 (Fed.
Cir. 2011) ("Absent a possible narrower construction of the terms
'processing,' 'receiving,' and 'storing,' ... those functions can be achieved
13
Appeal2017-009763
Application 12/239,748
by any general purpose computer without special programming"). None of
these activities are used in some unconventional manner nor do any produce
some unexpected result. Appellant does not contend they invented any of
these activities. In short, each step does no more than require a generic
computer to perform generic computer functions. As to the data operated
upon, "even if a process of collecting and analyzing information is 'limited
to particular content' or a particular 'source,' that limitation does not make
the collection and analysis other than abstract." SAP America, Inc. v.
InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant's claim 1 add nothing that is not already present when the steps
are considered separately. The sequence of data retrieval-analysis-display is
equally generic and conventional. See Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for
exchange, display, allowing access, and receiving payment recited an
abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis,
modification, generation, display, and transmission), Two-Way Media Ltd. v.
Comcast Cable Communications, LLC, 874 F.3d 1329, 1339 (Fed. Cir.
2017) (sequence of processing, routing, controlling, and monitoring). The
ordering of the steps is therefore ordinary and conventional.
We conclude that claim 1 does not provide an inventive concept because
the additional elements recited in the claim do not provide significantly more
than the recited judicial exception.
14
Appeal2017-009763
Application 12/239,748
REMAINING CLAIMS
Claim 1 is representative. The remaining method claims merely describe
process parameters. We conclude that the method claims at issue are
directed to a patent-ineligible concept itself, and not to the practical
application of that concept.
As to the structural claims, they
are no different from the method claims m substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long "warn[ ed] ... against" interpreting § 101 "in
ways that make patent eligibility 'depend simply on the
draftsman's art. '
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by creating business
routines by advising one to identifying a process by its reactions and
computing statistics as to how well the process meets expectations, without
significantly more.
15
Appeal2017-009763
Application 12/239,748
APPELLANT'S ARGUMENTS
As to Appellant's Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action 10-12 and Answer 2-17 and
reach similar legal conclusions. In particular, we note the following.
We are not persuaded by Appellant's argument that "[t]he claims are not
directed to an abstract idea, as they are necessarily rooted in ( and
inextricably tied to) computer technology in order to overcome a problem
specifically arising in the realm of server performance." Br. 13. The claims
recite a fairly generic feedback procedure applicable to a broad range of
contexts. Rather than the claims being necessarily rooted in (and
inextricably tied to) computer technology, they are merely applied in such a
context. "The Supreme Court and this court have repeatedly made clear that
merely limiting the field of use of the abstract idea to a particular existing
technological environment does not render the claims any less abstract."
Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed.
Cir. 2016).
We are not persuaded by Appellant's argument that the claims are
analogous to those in Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed.
Cir. 2016). Br. 14. The claims differ from those found patent eligible in
Enfzsh, where the claims were "specifically directed to a self-referential
table for a computer database." 822 F.3d 1327, 1337 (Fed. Cir. 2016).
The claims thus were "directed to a specific improvement to the way
computers operate" rather than an abstract idea implemented on a
computer. Id. at 1336. Here, by contrast, the claims are not directed to
an improvement in the way computers operate. Though the claims
16
Appeal2017-009763
Application 12/239,748
purport to accelerate the process of reviewing a process, our rev1ewmg
court has held that speed and accuracy increases stemming from the
ordinary capabilities of a general purpose computer "do[] not materially
alter the patent eligibility of the claimed subject matter." Bancorp Servs.,
L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278
(Fed. Cir. 2012). Instead, the claims are more analogous to those in
FairWarning, 839 F.3d 1089 (Fed. Cir. 2016), wherein claims reciting "a
few possible rules to analyze audit log data" were found directed an
abstract idea because they asked "the same questions (though perhaps
phrased with different words) that humans in analogous situations
detecting fraud have asked for decades." 839 F.3d at 1094, 1095.
Appellant also attempts to analogize the claims to those involved in
McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed.
Cir. 2016). Br. 15. In McRO, the court held that, although the processes
were previously performed by humans, "the traditional process and newly
claimed method ... produced ... results in fundamentally different ways."
Fair Warning v. Iatric Systems, 839 F.3d at 1094 (differentiating the
claims at issue from those in McRO). In McRO, "it was the incorporation
of the claimed rules not the use of the computer, that improved the
existing technology process," because the prior process performed by
humans "was driven by subjective determinations rather than specific,
limited mathematical rules." 837 F.3d at 1314 (internal quotation marks,
citation, and alterations omitted). In contrast, the claims of the instant
application merely implement an old practice of using test data to test a new
process in a new environment. Appellant has not argued that the claimed
17
Appeal2017-009763
Application 12/239,748
processes of using statistics measures deviation of results in a manner
technologically different from those which humans used, albeit with less
efficiency, before the invention was claimed. Merely using some fingerprint
that is no more than some unidentified data representation of a combination
of reactions to aid decision making is itself abstract.
The claims in McRO were not directed to "a specific asserted
improvement in computer animation, i.e., the automatic use of
rules of a particular type." We explained that "the claimed
improvement [was] allowing computers to produce 'accurate
and realistic lip synchronization and facial expressions in
animated characters' that previously could only be produced by
human animators." The claimed rules in McRO transformed a
traditionally subjective process performed by human artists into
a mathematically automated process executed on computers.
FairWarning, 839 F.3d 1089, 1094 (Fed. Cir, 2016)(differentiating the
claims at issue from those in McRO).
CONCLUSIONS OF LAW
The rejection of claims 1, 4---6, 9-11, 14--16 and 19, 20, and 22-29 under
35 U.S.C. § 101 as directed to non-statutory subject matter is proper.
DECISION
The rejection of claims 1, 4---6, 9-11, 14--16, and 19, 20, and 22-29 is
affirmed.
18
Appeal2017-009763
Application 12/239,748
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)(l)(iv) (2011).
AFFIRMED
19