Facebook, Inc.

Patent Trials and Appeals Board

Apr 23, 2020

14527151 - (D) (P.T.A.B. Apr. 23, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/527,151 10/29/2014 Patrick James Kemp 26295-27099/US 2332
87851 7590 04/23/2020
Facebook/Fenwick
Silicon Valley Center
801 California Street
Mountain View, CA 94041
EXAMINER
ELCHANTI, TAREK
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
04/23/2020 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):
fwfacebookpatents@fenwick.com
ptoc@fenwick.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PATRICK JAMES KEMP and FREDERICK ROSS LEACH
____________

Appeal 2019-004967
Application 14/527,151
Technology Center 3600
____________

Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP BENNETT, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–20. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). According to Appellant, the real party in interest is
Facebook, Inc. See Appeal Br. 2.

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STATEMENT OF THE CASE
Introduction
Embodiments of Appellant’s invention relates generally to “measuring
advertising effectiveness, and in particular to measuring user responses to
polling data based on advertising exposure.” Spec. ¶ 1.
Rejection
Claims 1–20 are rejected under 35 U.S.C. § 101, as being directed to a
judicial exception, without significantly more. See Final Act. 2–4.2
Issue on Appeal
Did the Examiner err in rejecting claims 1–20 under 35 U.S.C. § 101,
as being directed to a judicial exception, without significantly more?
ANALYSIS
We reproduce infra independent claim 1 in Table One. 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.
Rejection under 35 U.S.C. § 101
Principles of Law
A. Section 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.

2 We note the Examiner only lists claims 1–19 as being rejected on the
“Office Action Summary” page of the Final Action. Claim 20 is not listed as
being objected to or allowed. We treat this as a typographical error by the
Examiner, because claims 1–20 are before us on appeal and stand rejected
under 35 U.S.C. § 101 in a detailed statement of rejection, as shown on page 2
of the Final Action.
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However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank
Int’l, 573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Supreme
Court also indicated that a claim “seeking patent protection for that formula
in the abstract . . . is not accorded the protection of our patent laws, . . . and
this principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citing Benson and
Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a
law of nature or mathematical formula to a known structure or process may
well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
“A claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
B. USPTO § 101 Guidance
The U.S. Patent and Trademark Office (“USPTO”) published revised
guidance on the application of § 101. USPTO’s January 7, 2019
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Memorandum, 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (“2019 Memorandum”).3 Under that guidance, we first look to
whether the claim recites:
(1) (see 2019 Memorandum Step 2A – Prong One) any judicial
exceptions, including certain groupings of abstract ideas (i.e.,
mathematical concepts, certain methods of organizing human activity
such as a fundamental economic practice, or mental processes); and
(2) (see 2019 Memorandum Step 2A – Prong Two) additional
elements that integrate the judicial exception into a practical
application (see MPEP § 2106.05(a)–(c), (e)–(h)).4
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See 2019 Memorandum Step 2B.

3 The Office issued a further memorandum on October 17, 2019 (October
2019 Update: Subject Matter Eligibility, the “October 2019 Memorandum”)
clarifying guidance of the January 2019 Memorandum in response to
received public comments. See
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_
update.pdf. Moreover, “[a]ll USPTO personnel are, as a matter of internal
agency management, expected to follow the guidance.” 2019 Memorandum,
84 Fed. Reg. at 51; see also October 2019 Memorandum at 1.
4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Memorandum - Section III(A)(2).
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Because there is no single definition of an “abstract idea” under Alice
step 1, the PTO has recently synthesized, for purposes of clarity,
predictability, and consistency, key concepts identified by the courts as
abstract ideas to explain that the “abstract idea” exception includes the
following three groupings:
1. Mathematical concepts—mathematical relationships,
mathematical formulas or equations, mathematical
calculations;
2. Mental processes—concepts performed in the human mind
(including an observation, evaluation, judgment, opinion);
and
3. Certain methods of organizing human activity—fundamental
economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions
(including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior
or relationships or interactions between people (including
social activities, teaching, and following rules or
instructions).
See 2019 Memorandum, 84 Fed. Reg. at 52.
According to the 2019 Memorandum, “[c]laims that do not recite
[subject] matter that falls within these enumerated groupings of abstract
ideas should not be treated as reciting abstract ideas,” except in rare
circumstances. Even if the claims recite any one of these three groupings of
abstract ideas, these claims are still not “directed to” a judicial exception
(abstract idea), and thus are patent eligible, if “the claim as a whole
integrates the recited judicial exception into a practical application of that
exception.” See 2019 Memorandum, 84 Fed. Reg. at 53.
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For example, limitations that are indicative of integration into a
practical application include:
1. Improvements to the functioning of a computer, or to any
other technology or technical field — see MPEP
§ 2106.05(a);
2. Applying the judicial exception with, or by use of, a
particular machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular
article to a different state or thing — see MPEP
§ 2106.05(c); and
4. Applying or using the judicial 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 —
see MPEP § 2106.05(e).
In contrast, limitations that are not indicative of integration into a
practical application include:
1. Adding the words “apply it” (or an equivalent) with the
judicial exception, or merely include instructions to
implement an abstract idea on a computer, or merely uses a
computer as a tool to perform an abstract idea — see MPEP
§ 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use — see
MPEP § 2106.05(h).
See 2019 Memorandum, 84 Fed. Reg. at 54–55 (“Prong Two”).
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2019 Memorandum, Step 2A, Prong One 5
The Judicial Exception
Under the 2019 Memorandum, we begin our analysis by first
considering whether the claims recite any judicial exceptions, including
certain groupings of abstract ideas, in particular: (a) mathematical concepts,
(b) mental steps, and (c) certain methods of organizing human activities.
The Examiner concludes the claims recite the abstract idea of
“measuring the impact of advertisement and providing a common
comparison metric by calculating a lift metric for the advertisement.” Final
Act. 2.
We apply the Director’s 2019 Memorandum de novo. In Table One
below, we identify in italics the specific claim limitations that we conclude
recite an abstract idea. We also identify in bold the additional (non-abstract)
claim elements that we find are generic computer components:

5 Throughout this opinion, we give the claim limitations the broadest
reasonable interpretation consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
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TABLE ONE
Independent Claim 1 2019 Memorandum
[a] A method
comprising:6
receiving, at a polling
system, an advertisement
identifier of an advertising
impression on a mobile
device of an advertisement
provided by a third party
system and a device
identification of the mobile
device on which the
advertising impression was
displayed.
Receiving identification information of a
mobile device and an advertisement
identifier of an advertisement impression are
insignificant extra-solution activities (i.e.,
data gathering). See 2019 Memorandum, 84
Fed. Reg. at 55 n.31; see also MPEP §
2106.05(g).
Abstract Idea: Advertising is a method of
organizing human activity, i.e., a commercial
interaction including, advertising and sales
activities or behaviors and business relations.
See 2019 Memorandum, 84 Fed. Reg. at 52.
[b] identifying, by the
polling system, a target
user associated with a
stored device identification
that matches the received
device identification;
Abstract Idea: Identifying a target user
associated with a matched identification
could be performed alternatively as a mental
process. See 2019 Memorandum, 84 Fed.
Reg. at 52.
[c] associating, by the
polling system, the target
user with the advertisement
identifier, the associating
indicating that the target
user has viewed the
advertisement;
Abstract Idea: associating the target user
with the advertisement identifier is a method
of organizing human activity, i.e., a
commercial interaction including,
advertising and sales activities or behaviors
and business relations.
The associating could also be performed
alternatively as a mental process. See 2019
Memorandum, 84 Fed. Reg. at 52.

6 A method falls under the statutory subject matter class of a process. See
35 U.S.C. § 101 (“Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.”).
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Independent Claim 1 2019 Memorandum
[d] identifying, by the
polling system, a first set of
users who are not
associated with the
advertisement identifier, the
first set of users having not
viewed the advertisement;
Abstract Idea: identifying a first set of users
who are not associated with the
advertisement identifier is a method of
organizing human activity, i.e., a commercial
interaction including, advertising and sales
activities or behaviors and business relations.
The identifying could also be performed
alternatively as a mental process.
See 2019 Memorandum, 84 Fed. Reg. at 52.
[e] identifying, by the
polling system, a second
set of users comprising
users who are associated
with the advertisement
identifier, the second set of
users having viewed the
advertisement, wherein the
second set of users includes
the target user;
Abstract Idea: identifying a second set of
users who are associated with the
advertisement identifier is a method of
organizing human activity, i.e., a commercial
interaction including, advertising and sales
activities or behaviors and business relations.
The identifying could also be performed
alternatively as a mental process.
See 2019 Memorandum, 84 Fed. Reg. at 52.
[f] receiving, at the polling
system, poll results for a
poll provided to the first set
of users and the second set
of users, the poll querying
users about a subject matter
of the advertisement; and
Receiving poll results is an insignificant
extra-solution activity (i.e., data gathering).
See 2019 Memorandum, 84 Fed. Reg. at 55
n.31; see also MPEP § 2106.05(g).
[g] calculating, by the
polling system, a lift metric
for the advertisement by
comparing the poll results
of the first set of users to the
poll results of the second set
of users, the lift metric
describing the comparative
poll results of the first set of
Abstract Idea: Calculating a lift
metric for the advertisement by
comparing the poll results is a
mathematical calculation that could be
performed alternatively as a mental
process. See 2019 Memorandum, 84
Fed. Reg. at 52.
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Independent Claim 1 2019 Memorandum
users to the poll results of
the second set of users.
Abstract Idea
As detailed above in Table One, e.g., step “c” (associating the target
user with the advertisement identifier) recites a method of organizing human
activity, i.e., a commercial interaction including, advertising and sales
activities or behaviors and business relations. See 2019 Memorandum, 84
Fed. Reg. at 52.
Additionally, step “g” recites a mathematical calculation: “calculating
. . . a lift metric for the advertisement by comparing the poll results of the
first set of users to the poll results of the second set of users.” Claim 1. See
2019 Memorandum, 84 Fed. Reg. at 52.
“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). Merely combining several abstract ideas does not render the
combination any less abstract. See RecogniCorp, LLC v. Nintendo Co., Ltd.,
855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea (math) to
another abstract idea . . . does not render the claim non-abstract.”);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir.
2016) (determining the pending claims were directed to a combination of
abstract ideas).
Because we conclude all of claims 1–20 on appeal recite an abstract
idea, as identified above, under Step 2A, Prong One, we proceed to Step 2A,
Prong Two.
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2019 Memorandum, Step 2A, Prong Two
Integration of the Judicial Exception into a Practical Application

Pursuant to the 2019 Memorandum, we consider whether there are
additional elements set forth in the claims that integrate the judicial
exception into a practical application. See 2019 Memorandum, 84 Fed. Reg.
at 54–55.
Additional Generic Computer Limitations
As emphasized in bold in Table One, supra, we note the additional
generic computer components recited in independent claim 1, for example:
“a polling system,” “third party system,” and “a mobile device.”
(emphases added). The mobile device is not described in the Specification
as anything other than a generic mobile device. See Spec. Pars. 4–6, Fig. 1.
We further note the polling system is an online polling system permitting
users to log into the polling system. See Spec. pars. 4, 42, Fig. 1. The
polling system also receives advertising impressions. See Spec. par. 5.
We emphasize that McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299 (Fed. Cir. 2016), guides: “[t]he abstract idea exception
prevents patenting a result where ‘it matters not by what process or
machinery the result is accomplished.’” 837 F.3d at 1312 (quoting O’Reilly
v. Morse, 56 U.S. 62, 113 (1854)) (emphasis added). See supra Table One.
MPEP § 2106.05(a)
Improvements to the Functioning of a Computer or
to Any Other Technology or Technical Field

Appellant contends claim 1 recites a method of providing a polling
system that can effectively identify and measure responses of groups of
users that have had different online exposures. See Appeal Br. 12.
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Appellant contends Claim 1:
[I]mproves the technical field of polling systems, and
accordingly includes significantly more than any abstract idea. It
does so by identifying device identifiers associated with an
advertisement identifier. It also does so by identifying a device
identifier with a user identifier. It also does so by associating the
advertisement identifier with a user identifier in order to
effectively categorize users into groups of users who have
viewed an advertisement with users have not viewed an
advertisement.
Appeal Br. 17–18.
MPEP § 2106.05(a) provides applicable guidance:
To show that the involvement of a computer assists in
improving the technology, the claims must recite the details
regarding how a computer aids the method, the extent to which
the computer aids the method, or the significance of a computer
to the performance of the method. Merely adding generic
computer components to perform the method is not sufficient.
Thus, the claim must include more than mere instructions to
perform the method on a generic component or machinery to
qualify as an improvement to an existing technology.
Id. (emphasis added).
Here, the argued improvement that overcomes problems arising from
advances in the technology of polling systems is not claimed. The claims are
silent regarding any mention of polling system technology.
Our reviewing court guides that the “‘mere automation of manual
processes using generic computers’ . . . ‘does not constitute a patentable
improvement in computer technology,’” Trading Techs. Int’l v. IBG LLC,
921 F.3d 1378, 1384 (Fed. Cir. 2019) (quoting Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017).
Appellant has not sufficiently explained how the recited mobile
device or polling system components include more than mere instructions to
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perform the recited steps to demonstrate an improvement to an existing
technology. See claim 1.
DDR Holdings
Appellant also argues:

As in DDR, the methods recited in the claims do not merely claim
“the performance of some business practice known from the pre-
Internet world along with the requirement to perform it on the
Internet.” DDR at 1264. The claims instead recite a specific,
discrete implementation of receiving an advertisement identifier,
identifying a target user, associating the target user with the
advertisement identifier, identifying a first set of users not
associated with the advertisement identifier, identifying a second
set of users associated with the advertisement identifier,
receiving polling results for a poll provided to the first set of
users and second set of users, and calculating a lift metric for the
advertisement by comparing the poll results.

Appeal Br. 12–13.
We do not agree with Appellant that this is a case involving eligible
subject matter, as was the case in DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245 (Fed. Cir. 2014). See Appeal Br. 14.
In DDR, instead of a computer network operating in its normal,
expected manner by sending a website visitor to a third-party website via a
clicked advertisement, the claimed invention generated and directed the
visitor to a hybrid page that presented: (1) product information from the
third party, and (2) the visual “look and feel” elements from the host
website, thus retaining the visitor at the original website. DDR, 773 F.3d at
125859. Given this particular Internet-based solution, the court held that the
claimed invention did not merely use the Internet to perform a business
practice known from the pre-Internet world, but rather was necessarily
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rooted in computer technology to overcome a problem specifically arising in
computer networks. Id. at 1257.
That is not the case here. Although Appellant's claimed invention
results in the last recited step “g” of “calculating, by the polling system a lift
metric for the advertisement by comparing the poll results of the first set of
users to the poll results of the second set of users, the lift metric describing
the comparative poll results of the first set of users to the poll results of the
second set of users” (claim 1 (emphasis added)), there is no recitation of
solving a problem unique to the Internet or a website, as was the case in
DDR.
To the extent that Appellant has invented an improved method of “a
polling system” (claim 1), we note an improved abstract idea is still an
abstract idea. See Mayo, 566 U.S. at 90 (holding that a novel and nonobvious
claim directed to a purely abstract idea is, nonetheless, patent-ineligible).
Therefore, it is our view that Appellant’s claimed invention is not
rooted in computer technology in the sense contemplated by DDR, in which
the claimed invention solved a challenge particular to the Internet. Thus, we
agree with the Examiner’s response in the Answer: “In contrast with the
claims in DDR, Applicant’s claims are not necessarily rooted in computer
technology. Notably, the invention aims to solve an entrepreneurial problem
rather than a technological one.” Ans. 3.
Accordingly, on this record, we conclude representative claim 1 does
not recite an improvement to the functionality of the polling system, mobile
device, third party system, or other technology or technical field. See MPEP
§ 2106.05(a).

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MPEP §§ 2106.05(b), 2106.05(c), 2106.05(e)
Appellant advances no arguments that any of the method claims on
appeal are tied to a particular machine, or transform an article to a different
state or thing. See MPEP §§ 2106.05(b), 2106.05(c). Nor does Appellant
advance further substantive, persuasive arguments as to any particular
“meaningful” claim limitations, such as those of the types addressed under
MPEP § 2106.05(e), that impose meaningful limits on the judicial
exception.7
MPEP § 2106.05(f)
Merely including instructions to implement
an abstract idea on a computer, or
Merely using a computer as a tool
to perform an abstract idea
We conclude Appellant’s claimed invention merely implements the
abstract idea using instructions executed on generic mobile device and
computer components, as depicted in bold type in Table One. Thus, we
conclude Appellant’s claims merely use a programmed computer as a tool to
perform an abstract idea.
MPEP § 2106.05(g)
Adding insignificant extra-solution activity
to the judicial exception

As mapped in the right column of Table One, supra, we conclude that
representative independent claim 1 recites extra-solution activities that

7 See 2019 Memorandum, 84 Fed. Reg. at 55, citing MPEP § 2106.05(e):
“[A]pply[ing] or us[ing] the judicial 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.” (emphasis added).
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courts have determined to be insufficient to transform judicially excepted
subject matter into a patent-eligible application. See MPEP § 2106.05(g);
2019 Memorandum, 84 Fed. Reg. at 55 n.31.
We conclude these limitations use generic computer components in an
ordinary capacity to perform a generic computer task: e.g., receiving data,
i.e., receiving an advertisement identifier of an advertising impression on a
mobile device, and receiving poll results. See claim 1, Table One. See
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.”). That is, these
limitations use a generic computer component that performs a generic
computer function as a tool to perform an abstract idea. Thus, these
limitations do not integrate the abstract idea into a practical application. See
Alice, 573 U.S. at 223–24. Instead, these limitations perform insignificant
extra-solution activities. Cf. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229,
1242 (Fed. Cir. 2016) (agreeing with the Board that printing and
downloading generated menus are insignificant post-solution activities).

MPEP § 2106.05(h)
Generally linking the use of the judicial exception to a particular
technological environment or field of use

The Supreme Court guides: “the prohibition against patenting
abstract ideas ‘cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment’ or [by] adding
‘insignificant postsolution activity.’” Bilski, 561 U.S. at 610–12 (quoting
Diehr, 450 U.S. at 191–92).
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To the extent Appellant contends there is an absence of preemption
(Appeal Br. 15), our reviewing court provides applicable guidance: “While
preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Nor do claims 1–20 on appeal present any other issues as set forth in
the 2019 Memorandum regarding a determination of whether the additional
generic elements integrate the judicial exception into a practical application.
See 2019 Memorandum, 84 Fed. Reg. at 55.
Thus, under Step 2A, Prong Two (MPEP §§ 2106.05(a)–(c) and (e)–
(h)), we conclude claims 1–20 do not integrate the judicial exception into a
practical application. Therefore, we proceed to Step 2B, The Inventive
Concept.
The Inventive Concept – Step 2B
Under the 2019 Memorandum, only if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, do we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)
We note that Berkheimer was decided by the Federal Circuit on
February 8, 2018. On April 19, 2018, the PTO issued the Memorandum
titled: “Changes in Examination Procedure Pertaining to Subject Matter
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Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.)” (hereinafter “Berkheimer Memorandum”).8 The Berkheimer
Memorandum provided specific requirements for an Examiner to support
with evidence any finding that claim elements (or a combination of elements)
are well-understood, routine, or conventional.
Under Step 2B, the Examiner finds:
the claimed invention is conventional because it complies with
the Berkheimer memorandum. As for Step 2b the claim
limitations do not include additional elements that are sufficient
to amount to significantly more than the abstract idea. For
example "polling system as found in Claim(s) 1, and 9, third
party system as found in Claim(s) 1, and 9, mobile device as
found in Claim(s) 1, and 9, computer readable medium as found
in Claim(s) 9, and a processor as found in Claim(s) 9 are generic
computer components that perform function of “receiving and
identifying data over network, and calculating values”, which are
well understood, routine, and conventional activities
previously known to the industry, see receiving or transmitting
data over a network, e.g., buySAFE, Inc. v. Google, Inc., 765 F.3d
1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer
receives and sends information over a network; and performing
a calculating values, e.g. Flook, 437 U.S. at 594, 198 USPQ2d at
199 (re-computing or readjusting alarm limit values); Bancorp
Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425,
1433 (Fed. Cir. 2012) (“The computer required by some of
Bancorp's claims is employed only for its most basic function,
the performance of repetitive calculations, and as such does not
impose meaningful limits on the scope of those claims.”)”, see
MPEP 2106.05. Examples of well-understood, routine, and
conventional computer functions include receiving, identifying,
associating, and calculating, see MPEP 2106.05d.
Final Act. 4 (emphasis added).

8 Available at https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF.
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Appellant does not raise a Berkheimer challenge in the Briefs nor
rebut or otherwise persuasively traverse the Examiner specific findings
regarding Step 2B, in the Appeal Brief or in the Reply Brief. Arguments not
made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
BASCOM
We note the Federal Circuit held in BASCOM that the claimed
Internet content filtering, which featured an implementation “versatile
enough that it could be adapted to many different users’ preferences while
also installed remotely in a single location,” expressed an inventive concept
in “the non-conventional and non-generic arrangement of known,
conventional pieces.” BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016).
Appellant cites BASCOM as a case authority in support, and
analogizes the claimed polling system to Bascom’s “particular arrangement
of elements [that] is a technical improvement over prior art ways of filtering
[] content.” Appeal Br. 15.
We are not persuaded by Appellant’s argument analogizing the claims
on appeal to the subject claim considered by the BASCOM court. In
particular, Appellant has not persuasively shown an unconventional, non-
generic arrangement regarding the non-abstract limitations of generic
computer components in any of the claims on appeal, as was held by the
court in BASCOM. See 2019 Memorandum, 84 Fed. Reg. at 52. Arguments
not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Further, regarding the use of the recited mobile device and generic
computer components identified above in Table One, the Supreme Court has
held that “the mere recitation of a generic computer cannot transform a
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patent-ineligible abstract idea into a patent-eligible invention.” Alice, 573
U.S. at 223. Our reviewing court provides additional guidance: See
FairWarning, 839 F.3d at 1096 (“[T]he use of generic computer elements
like a microprocessor or user interface do not alone transform an otherwise
abstract idea into patent-eligible subject matter.”); OIP Techs., 788 F.3d at
1363 (claims reciting, inter alia, sending messages over a network, gathering
statistics, using a computerized system to automatically determine an
estimated outcome, and presenting offers to potential customers found to
merely recite “‘well-understood, routine conventional activit[ies],’ either by
requiring conventional computer activities or routine data-gathering steps”).
This reasoning is applicable here. Therefore, on the record before us,
Appellant has not shown that the claims on appeal add a specific limitation
beyond the judicial exception that is not well-understood, routine, and
conventional, when the claim limitations are considered both individually
and as an ordered combination. See MPEP § 2106.05(d).
In light of the foregoing, we conclude, under the 2019 Memorandum,
that each of Appellant’s claims 1–20, considered as a whole, is directed to a
patent-ineligible abstract idea that is not integrated into a practical
application, and does not include an inventive concept.9 Therefore, we
sustain the Examiner’s Rejection under 35 U.S.C. § 101 of claims 1–20.

9 For the reasons discussed above, grouped claims 2–20 fall with
representative independent claim 1 under 35 U.S.C. § 101. See 37 C.F.R.
§ 41.37(c)(1)(iv).

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CONCLUSION
Under the Director’s 2019 Memorandum, as governed by relevant
case law, we conclude that all claims 1–20, rejected under 35 U.S.C. § 101,
are directed to patent-ineligible subject matter.

DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20

FINALITY AND RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED