Facebook, Inc.

Patent Trials and Appeals Board

Dec 24, 2020

2020004089 (P.T.A.B. Dec. 24, 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.
14/678,897 04/03/2015 Anand Sumatilal Bhalgat 2006.042US1 4996
160546 7590 12/24/2020
Mannava & Kang, P. C.
3201 Jermantown Road
Suite 525
Fairfax, VA 22030
EXAMINER
TOKARCZYK, CHRISTOPHER B
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
12/24/2020 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):
docketing@mannavakang.com
fb-pdoc@fb.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANAND SUMATILAL BHALGAT,
CHINMAY DEEPAK KARANDE and
TANMOY CHAKRABORTY
___________

Appeal 2020-004089
Application 14/678,897
Technology Center 3600
____________

Before CARL W. WHITEHEAD JR., JEFFREY S. SMITH and
JASON V. MORGAN, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant2 is appealing the final rejection of claims 1–8 and 10–20
under 35 U.S.C. § 134(a). Appeal Brief 5. Claim 9 is cancelled. Final
Action 2. Claims 1, 11 and 16 are independent. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.

1 Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Brief (filed January 13, 2020), the
Reply Brief (filed May 13, 2020), the Final Action (mailed May 31, 2019)
and the Answer (mailed March 13, 2020), for the respective details.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Facebook, Inc., of Menlo Park,
California, as the real party in interest. Appeal Brief 2.
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Introduction
According to Appellant, the claimed subject matter “relates generally
presenting content via online systems, and more specifically to modifying
bid amounts associated with content items in a campaign to evenly present
the content items during a time interval.” Specification ¶ 1.
Representative Claim3
Claim 1 is reproduced below for reference (bracketed step lettering
added):
1. A method comprising:
[a] receiving a plurality of impression opportunities, wherein each
impression opportunity of the plurality of impression opportunities is
an opportunity to present an advertisement[4] to a user of an online
system via a client device; and
[b] for each impression opportunity to present an ad creative:
accessing information for an ad campaign, the ad campaign including
a plurality of ad creatives for presentation to one or more users
of an online system, the information specifying a budget for the
ad campaign, bid amounts associated with the plurality of ad
creatives included in the ad campaign, and an objective

3 Appellant argues claims 1–8 and 10–20 as a group. See Appeal Brief 6.
We select independent claim 1 as the representative claim for this rejection.
See 37 C.F.R. § 41.37(c)(1)(iv).
4 “Each ad request includes [one or more ad creatives], or ‘advertisement,’
that identifies content presented [to a social networking] system user when
the ad request is presented.” Specification ¶ 5.
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specifying a number of interactions associated with ad creatives
included in the ad campaign during a time interval;
[c] determining a bid adjustment for each ad creative of the
plurality of ad creatives, wherein each bid adjustment is
determined based on a number of prior impressions of the ad
creative, the bid adjustment being inversely related to the
number of prior impressions of the ad creative;
[d] determining a pacing multiplier associated with the ad campaign
based at least in part on a number of users of the online system
previously presented with at least one ad creative of the
plurality of ad creatives and the budget for the ad campaign;
[e] adjusting the bid amounts associated with the plurality of ad
creatives based on the determined bid adjustments;
[f] selecting an ad creative from the plurality of ad creatives based at
least in part on the adjusted bid amounts;
[g] modifying the adjusted bid amount based at least in part on the
pacing multiplier;
[h] including the selected ad creative in a selection process that selects
content for presentation to the user, wherein the selection
process selects from the selected ad creative and an additional
plurality of ad creatives from one or more other ad campaigns;
[i] selecting, via the selection process, a set of ad creatives to be
presented to the user based on the modified adjusted bid
amounts, wherein the selected set of ad creatives includes the
selected ad creative;
[j] transmitting the selected set of ad creatives to the client device
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operated by the user of the online system to be presented to the
user; and
[k] modifying the pacing multiplier and one or more of the bid
adjustments based at least in part on the selection of the set of
ad creatives, the objective, and the budget, where the pacing
multiplier and the one or more bid adjustments are modified at
different frequencies.
References
Name5 References Date
Silverman US 2010/0138291 A1 June 3, 2010
Benson US 8,175,914 B1 May 8, 2012
Hegeman US 2013/0124308 A1 May 16, 2013
Rejections on Appeal
Claims 1–8 and 10–20 stand rejected under 35 U.S.C. § 101 as being
directed to a judicial exception without significantly more. Final Action 2–
6.
Claims 1–8 and 10–20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Benson, Silverman and Hegeman. Final Action 6–22.
USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019)
(“2019 Revised Guidance”).6 “All USPTO personnel are, as a matter of

5 All reference citations are to the first named inventor only.
6 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
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internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 10.2019, June 2020)) (“Step 2A, Prong Two”).7
2019 Revised Guidance at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or

USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
7 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance at 54–55.
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
2019 Revised Guidance at 52–56.
ANALYSIS
35 U.S.C. § 101 Rejection
The Examiner determines claims 1–8 and 10–20 are patent ineligible
under 35 U.S.C. § 101. See Final Action 2–6; Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 217 (2014) (describing the two-step framework “for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts”).
We are not persuaded the Examiner’s rejection is in error. Unless
otherwise indicated, we adopt the Examiner’s findings and conclusions as
our own. We add the following primarily for emphasis and clarification
with respect to the Revised Guidance.
Step 2A—Prongs 1 and 2 identified in the 2019 Revised Guidance
Prong One
The Examiner determines, “claims 1–8 and 10–20 recite mathematical
concepts, mental processes, or certain methods of organizing human activity
without including additional elements that integrate the exception into a
practical application of the exception.” Final Action 5.
The Specification discloses:
An online system, such as a social networking system,
receives information describing an advertisement campaign (“ad
campaign”) including advertisement requests (“ad requests”)
from an advertiser for presentation to users of the online system.
Each ad request includes an ad creative, or “advertisement,” that
identifies content presented to an online system user when the ad
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request is presented. The information describing the ad campaign
specifies a budget for the ad campaign that specifies an amount
of compensation the advertiser will provide the online system for
presenting ad requests included in the ad campaign and an
objective for the ad campaign specifying a goal for presentation
of ad requests in the online system to online system users.
Additionally, the information describing the ad requests includes
information for determining bid amounts associated with ad
requests included in the ad campaign. A bid amount associated
with an ad request specifies an amount of compensation received
by the online system for presentation of the ad request. In some
embodiment, the information for determining bid amounts of
various ad requests includes instructions for allocating the
budget among ad requests in the ad campaign based at least in
part on prior interaction with various ad requests, the objective
of the ad campaign, and a time interval for completing the
objective.
Specification ¶ 5.
The online system adjusts bid amounts of ad requests included in
the ad campaign based on their corresponding bid adjustments
and selects ad requests from the ad campaign based on the
adjusted bid amounts. For example, the bid amount of an ad
request is adjusted by a bid adjustment specific to the ad request
by combining the bid amount and the bid adjustment via any
suitable mathematical operation.
Specification ¶ 9.
Claim 1 recites receiving a plurality of impression opportunities
where each impression opportunity is an opportunity to present an
advertisement or ad creative (e.g., text data, image data, audio data,
video data, or other suitable data) to an online user along with
accessing budget information for an ad campaign in limitations [a],
[b]. Claim 1 also recites determining a bid adjustment for each ad
creative where the bid adjustment is based upon prior impressions and
determing an ad campaign’s pacing multiplier based upon in part on a
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number of previous users of the online system in limitations [c], [d].
Claim 1 further recites adjusting ad creatives’ bid amounts, selecting
ad creatives based on part on adjusted bid amounts and modifying the
adjusted bid amount based in part on the pace multiplier in limitations
[e] – [g]. Claim 1 recites selecting content for the user that includes
the selected ad creative, as well as, other ad creatives from other ad
campaigns in limitation [h]. Claim 1 also recites selecting a set of ad
creatives, including the selective ad creative, to present to the user
based upon the modified adjusted bid amounts and sending them to
the clients device in limitations [i], [j]. Claim 1 further recites
modifying the pace multiplier and the bid adjustments at different
frequencies in limitation [k].
These steps recite commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations), as well as,
mathematical relationships, mathematical formulas or equations,
mathematical calculations and thus, the claim recites the judicial exceptions
of “[c]ertain methods of organizing human activity” and “[m]athematical
concepts.” 2019 Revised Guidance, Section I (Groupings of Abstract Ideas).
Further, our reviewing court has found claims to be directed to
abstract ideas when they recited similar subject matter. See Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014) (holding that claim
“describ[ing] only the abstract idea of showing an advertisement before
delivering free content” is patent ineligible); see also buySAFE, Inc. v.
Google, Inc., 765 F.3d. 1350, 1355 (Fed. Cir. 2014) (holding that concept of
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“creating a contractual relationship—a ‘transaction performance guaranty’”
is an abstract idea (citation omitted)).
Furthermore, our reviewing court has found claims to recite judicial
exceptions when they recited similar subject matter in regard to
mathematical concepts. See Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“The concept of hedging . . . reduced to a mathematical formula . . . is an
unpatentable abstract idea[.]”); Diamond v. Diehr, 450 U.S. 175, 191 (1981)
(“A mathematical formula as such is not accorded the protection of our
patent laws”) (citing Gottschalk v. Benson, 409 U.S. 63 (1972)); Parker v.
Flook, 437 U.S. 584, 594 (1978) (“[T]he discovery of [a mathematical
formula] cannot support a patent unless there is some other inventive
concept in its application.”); Benson, 409 U.S. at 71–72 (concluding that
permitting a patent on the claimed invention “would wholly pre-empt the
mathematical formula and in practical effect would be a patent on the
algorithm itself”); Mackay Radio & Telegraph Co. v. Radio Corp. of Am.,
306 U.S. 86, 94 (1939) (“[A] scientific truth, or the mathematical expression
of it, is not patentable invention[.”); SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018) (holding that claims to a “series of
mathematical calculations based on selected information” are directed to
abstract ideas); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758
F.3d 1344, 1350 (Fed. Cir. 2014) (holding that claims to “a process of
organizing information through mathematical correlations” are directed to an
abstract idea); Bancorp Servs., LLC v. Sun Life Assurance Co. of Can.
(U.S.), 687 F.3d 1266, 1280 (Fed. Cir. 2012) (identifying the concept of
“managing a stable value protected life insurance policy by performing
calculations and manipulating the results” as an abstract idea).
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Therefore, we conclude the claims recite an abstract idea pursuant to
Step 2A, Prong One, of the 2019 Revised Guidance. See 2019 Revised
Guidance, Section III(A)(1) (Prong One: Evaluate Whether the Claim
Recites a Judicial Exception).
Prong Two
Under Prong Two of the 2019 Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception into a
practical application of the exception.” 2019 Revised Guidance at 54. We
note that a “claim that integrates a judicial exception into a practical
application will 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 Revised Guidance at 54.
Appellant argues, “[w]hile the claimed method may operate in an
advertising context, the method is directed to solving a technical problem
where the system bias selection of ad creatives with less than a threshold
number of impressions to generate enough performance data for the trained
model to operate properly.” Appeal Brief 9.
We find Appellant’s claims are distinguished from those claims that
our reviewing court has found to be patent eligible by virtue of reciting
technological improvements to a computer system because Appellant’s
claims merely employ an online system and a client’s device to implement
the judicial exception wherein there is no improvement to the online system
or client’s device. See, e.g., Final Action 4 (addressing independent claims
1, 11, 16); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1249,
1257 (Fed. Cir. 2014) (holding that claims reciting computer processor for
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serving “composite web page” were patent eligible because “the claimed
solution is necessarily rooted in computer technology in order to overcome a
problem specifically arising in the realm of computer networks”); Visual
Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017)
(holding that claims directed to “an improved computer memory system”
having many benefits were patent eligible); see Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016) (distinguishing between
“claims are directed to an improvement to computer functionality versus
being directed to an abstract idea” or whether “the focus of the claims is on
the specific asserted improvement in computer capabilities . . . or, instead,
on a process that qualifies as an ‘abstract idea’ for which computers are
invoked merely as a tool”); see also Alice, 573 U.S. at 222 (“In holding that
the process was patent ineligible, we rejected the argument that
‘implement[ing] a principle in some specific fashion’ will ‘automatically
fal[l] within the patentable subject matter of § 101.’” (alterations in original)
(quoting Parker v. Flook, 437 U.S. at 593)).
We find claim 1 does not recite any improvement to the claimed
online system or client’s device; instead claim 1 only uses the computer
system to send advertisements to clients or users. See Specification ¶ 5.
Additionally, we detect no additional element (or combination of elements)
recited in Appellant’s representative claim 1 that integrates the judicial
exception into a practical application. See 2019 Revised Guidance, Section
III(A)(2). For example, Appellant’s claimed additional elements (e.g.,
online system, client’s device) do not: (1) improve the functioning of a
computer or other technology; (2) is not applied with any particular machine
(except for generic devices); (3) does not effect a transformation of a
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particular article to a different state; and (4) is not applied in any 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(a)–(c), (e)–(h).
Accordingly, we determine the claim does not integrate the recited
judicial exception into a practical application. See 2019 Revised Guidance,
Section III(A)(2).
Step 2B identified in the 2019 Revised Guidance
In Step 2B, we need to consider whether an additional or combination
of elements, “[a]dds a specific limitation or combination of limitations that
are not well-understood, routine, conventional activity in the field, which is
indicative that an inventive concept may be present” or “simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception,
which is indicative that an inventive concept may not be present.”
2019 Revised Guidance at 56.
Appellant contends:
The claims recite specific limitations describing how to
determine a score based on a prediction by a trained model for
user engagement, how to determine a score adjustment based on
a number of impressions for the ad creative, how to integrate the
ad creative into a selection process, and interaction of a user with
the selected ad creative.
Appeal Brief 9.
Appellant argues, “[t]ogether these result in an improvement to
conventional methods that have relegated potentially better performing ad
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creatives simply for those that have more impression data associated with
them, as recited in the specification.” Appeal Brief 9. Appellant surmises:
Thus, second ad creative that would otherwise not be selected
over a first ad creative of the same advertising campaign because
there is more performance data associated with the first ad
creative is selected in order to ensure that enough performance
data is collected for the second ad creative as well.
Appeal Brief 9–10.
Appellant argues:
As emphasized by the 2019 Guidance and Berkheimer
memorandum,[8] this must be evaluated even when a claim is
directed to an abstract idea and where there is no practical
application – a rejection cannot be supported without factual
evidence showing these additional concepts as a whole are well-
understood, routine, and conventional.
Appeal Brief 10.
The 2019 Revised Guidance states:
In accordance with existing guidance, an examiner’s
conclusion that an additional element (or combination of
elements) is well understood, routine, conventional activity must
be supported with a factual determination. For more information
concerning evaluation of well-understood, routine, conventional
activity, see MPEP 2106.05(d), as modified by the USPTO
Berkheimer Memorandum.
2019 Revised Guidance at 56 n.36 (Section III(B)) (emphasis added).
The Berkheimer Memorandum Section III(A) states when formulating
rejections, “[i]n a step 2B analysis, an additional element (or combination of

8 USPTO Commissioner for Patents Memorandum dated April 19, 2018,
“Changes in Examination Procedure Pertaining to Subject Matter Eligibility,
Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)”
available at https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF.
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elements) is not well-understood, routine or conventional unless the
examiner finds, and expressly supports a rejection in writing.” Berkheimer
Memorandum at 3. The Berkheimer Memorandum provides four criteria for
the Examiner to utilize to provide support for the additional elements to be
considered to be well-understood, routine or conventional.9
The Examiner finds:
Generic computer components recited as performing generic
computer functions that are well-understood, routine and
conventional activities amount to no more than implementing the
abstract idea with a computerized system. The use of
conventional computer elements to transmit an ad to a user
device is the well-known, conventional activities of transmitting
information over a network, e.g., the Internet, and does not
transform the identified abstract ideas into significantly more.
See M.P.E.P. § 2106.05(d)(II). Thus, taken alone, the additional
elements do not amount to significantly more than a judicial
exception.
Final Action 6.
Accordingly, the Examiner supports the determination by citing to
M.P.E.P. § 2106.05(d)(II). We do not find Appellant’s argument persuasive
because, in determining if the additional elements (or combination of
additional elements) represent well-understood, routine, conventional

9 Berkheimer Memorandum at 3–4 (Section III(A)) (“1. A citation to an
express statement in the specification or to a statement made by an applicant
during prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s). . . . 2. A citation to one or
more of the court decisions discussed in MPEP § 2106.05(d)(II) as noting
the well-understood, routine, conventional nature of the additional
element(s). 3. A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional element(s). . . .
4. A statement that the examiner is taking official notice of the well-
understood, routine, conventional nature of the additional element(s).”).
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activity, the Examiner supported the determination based upon a factual
determination as specified in the Berkheimer Memorandum. See
Berkheimer Memorandum at 3–4 (Section III(A)(2)).
Further in Bascom, our reviewing court found that while the claims of
the patent were directed to a judicial exception, the patentee alleged an
“inventive concept can be found in the ordered combination of claim
limitations that transform the abstract idea of filtering content into a
particular, practical application of that abstract idea.” Bascom Global
Internet Services, Inc., v. AT&T Mobility LLC, 827 F.3d 1341, 1352 (Fed.
Cir. 2016). In particular, the patent in Bascom claimed “a technology-based
solution (not an abstract-idea-based solution implemented with generic
technical components in a conventional way) to filter content on the Internet
that overcomes existing problems with other Internet filtering systems.”
Bascom at 1351.
Claim 1 is distinguishable, as it recites an abstract-idea-based
solution, that is, a method for to send advertisements to clients or users with
generic technical components (e.g., online system, client’s device), in a
conventional way. See generally Specification. Therefore, we are not
persuaded that ordered combination of limitations in representative claim 1
provides an inventive concept, and we find the claims simply append a well-
understood, routine and conventional activity to the judicial exception. See
2019 Revised Guidance at 56.
Accordingly, we conclude claims 1–8 and 10–20 are directed to
commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations), as well as, mathematical relationships,
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mathematical formulas or equations, mathematical calculations and thus, the
claim recites the judicial exceptions of “[c]ertain methods of organizing
human activity” and “[m]athematical concepts.” We sustain the Examiner’s
§ 101 rejection of claims 1–8 and 10–20.

35 U.S.C. § 103 Rejection
Appellant contends, neither Benson, Silverman, nor Hegeman teach or
suggest at least ‘selecting an ad creative from the plurality of ad creatives
based at least in part on the adjusted bid amounts’ or ‘modifying the pacing
multiplier and one or more of the bid adjustments . . . at different
frequencies,’ as claimed.” Appeal Brief 12.
Appellant further contends:
The content as described in Benson is different than the ad
creatives of an ad campaign as in the present claim, as the content
of Benson is not from a single ad campaign. Thus, the examiner
conflates two different processes described in the claims. The
claims recite a first selection process by which the online system
selects an ad creative to represent the ad campaign for a
particular impression and the second selection process selects an
ad to be presented in that impression.
Appeal Brief 12.
Appellant argues that Benson selection process is merely analogous to
the claimed second selection process and:
As such, the examiner ignores the specific criteria by which the
claimed method selects a particular ad creative, wherein each bid
adjustment is “inversely related to a number of prior impressions
of the ad creative,” and wherein an ad creative is selected from
the ad campaign based on bid amounts modified using the bid
adjustments. This specific criteria is used in order to ensure that
data is gathered for ad creatives within an ad campaign that have
insufficient data by artificially boosting scores for ad creatives
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with low numbers of prior impressions, and does not make sense
in the context of the cited references.
Appeal Brief 13.
Appellant presents multiple arguments as to why Benson fails to
disclose what the Examiner finds that Benson discloses. See Appeal Brief
13, 14. “Hegeman and Silverman do not cure the deficiencies of Benson,
nor does the Office Action allege they do.” Appeal Brief 14. However the
Examiner relied upon Silverman and Hegeman to address Benson’s
deficiencies. See Final Action 12, 13. The Examiner determines:
It would have been obvious to a person having ordinary skill in
the art before the effective filing date of the claimed invention to
apply the bid adjustment and throttling techniques taught by
Silverman in the bid adjustment system disclosed by Benson,
because Silverman teaches at ¶ [0030] that by using its bid
adjustment ratio, “any error introduced by a performance
prediction component is canceled out because the same error can
be assumed to be present in both the predicted performance
metric for the advertisement in the current advertising slot and
the baseline predicted performance metric for the
advertisement,” and teaches at ¶ [0043] that “throttling the
adjusted bid can reduce the average price paid while maintaining
a bias for the advertisement toward placements in which the bid
is expected to be more successful.”
Final Action 12.

It would have been obvious to a person having ordinary skill in
the art before the effective filing date of the claimed invention to
combine the bid adjustment techniques taught by Hegeman with
the bid adjustment system taught by the combination of Benson
and Silverman, because Hegeman teaches its “automated form of
bidding precludes the need for advertisers to manually submit

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bids for ads, instead allowing an advertiser to merely set an ad’s
budget, plus other goals and constraints.” Hegeman at ¶ [0019].
Final Action 13.
Contrary to Appellant’s contention, the Examiner did find that
Hegeman’s automated form of bidding cures the deficiencies of Benson.
Therefore, we do not find Appellant’s arguments persuasive of Examiner
error and we sustain the Examiner’s obviousness rejection because the test
for obviousness is what the combined teachings of the references would
have suggested to one of ordinary skill in the art. See In re Kahn, 441 F.3d
977, 987–88 (Fed. Cir. 2006), In re Young, 927 F.2d 588, 591 (Fed. Cir.
1991) and In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner can
satisfy this test by showing “some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” KSR Int’l. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d at 988).
We find that the Examiner has satisfied the test. Accordingly, we sustain the
Examiner’s obviousness rejection of claims 1–8 and 10–20 not argued
separately. See Appeal Brief 14.10

10 “For at least these reasons, claim 1 is patentable over Benson, Silverman,
and Hegeman, alone or in combination. Claims 11 and 16 recite similar
limitations as claim 1. Thus, claims 11, 16, and their dependent claims are
also patentable over Benson, Silverman, and Hegeman. The rejection of
claims 1–8 and 10–20 under § 103 should therefore be reversed.” Appeal
Brief 14.
Appeal 2020-004089
Application 14/678,897

19

CONCLUSION

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–8, 10–20 101 Eligibility 1–8, 10–20
1–8, 10–20 103 Benson, Silverman,
Hegeman
1–8, 10–20
Overall
Conclusion
1–8, 10–20
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). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED