FanCommand, LLC

Patent Trials and Appeals Board

Oct 23, 2020

2019002984 (P.T.A.B. Oct. 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.
14/296,058 06/04/2014 Beth Burrows 73453.002 1426
136130 7590 10/23/2020
Karr Tuttle Campbell
701 Fifth Avenue
Suite 3300
Seattle, WA 98104
EXAMINER
RIAZ, SAHAR AQIL
ART UNIT PAPER NUMBER
2424
NOTIFICATION DATE DELIVERY MODE
10/23/2020 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):
kstraughan@karrtuttle.com
patents@karrtuttle.com
pbh@pbhpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BETH BURROWS, KEVIN BURROWS, and
AARON ETHINGTON

Appeal 2019-002984
Application 14/296,058
Technology Center 2400

Before JEAN R. HOMERE, ADAM J. PYONIN, and
NABEEL U. KHAN, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s rejection of claims 93, 94, 98, 101, 104, 108, 111, 115, 117, 119,
127, 128, 132, 136, 138, 148, 149, 153, 155, 159, 163, 166, 170, 172, 174,
182, 183, 187, 191, 194, and 203, which constitute all of the pending claims.
Appeal Br. 4. Claims 1–92, 95–97, 99, 100, 102, 103, 105–107, 109, 110,

1 We refer to the Specification, filed Aug. 18, 2014 (“Spec.”); Final Office
Action, mailed June 18, 2018 (“Final Act.”); Appeal Brief, filed Aug. 28,
2018 (“Appeal Br.”); and Examiner’s Answer, mailed Dec. 14, 2018
(“Ans.”).
2 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
FanCommand LLC Corporation. Appeal Br. 4.
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112–114, 116, 118, 120–126, and 204–454 have been canceled. Claims App.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm
II. CLAIMED SUBJECT MATTER
According to Appellant, the claimed subject matter relates to a
method for displaying on user interface (104) fantasy league information
according to profiles of players selected from non-broadcast fantasy sport
information (112) and broadcast content (116) by participant (102) for
inclusion in a fantasy team. Fig. 1, Spec. ¶¶ 45–50.
Figures 1 and 12, reproduced below, are useful for understanding the
claimed subject matter:

Figure 1 depicts fantasy league information system (100) including user
interface (104) for facilitating participant (102) to select non-broadcast
information (112) along with broadcast content (116) regarding players for
inclusion in a fantasy team subsequently displayed on display device (106).
Spec. ¶¶ 45–48.
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Figure 12 depicts display device (1200) including display portion (1202)
showcasing broadcast content (1204), and display portion (1206) displaying
non-broadcast information (1208, 1210, 1212, 1214, 1216) as an overlay
display. Spec. ¶ 273.

As depicted in Figures and 1 and 12 above, upon receiving from
fantasy league participant (102) information representing a player selected
for inclusion in fantasy team (1208), a processing device retrieves non-
broadcast fantasy sport information (1208, 1210, 1212, 1214, 1216)
associated with the selected player along with real-time broadcast
information (1204) obtained from a game involving the player, and displays
the collected information as an overlay to track the player’s performance on
the fantasy team. Spec. ¶ 273.
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Claims 93, 148, and 203 are independent. Claim 93, reproduced
below with disputed limitations emphasized in italics, is illustrative of the
claimed subject matter:
93. A method implemented using a computer
processor, the method comprising:
receiving information associated with one or more
players or a representation of the one or more players selected
by at least one participant in a fantasy league for inclusion in a
fantasy team associated with the at one least one participant,
including one or more selected events associated with the one
or more players or the representation of the one or more players
to display one or more indicators in association with the one or
more players or the representation of the one or more players;
retrieving non-broadcast fantasy-sport information
associated with the one or more players selected by the at least
one participant for inclusion in the fantasy team associated with
the at least one participant;
determining (i) that the one or more selected events
associated with the one or more players has occurred based on
real-time broadcast information or a game with the
representation of the one or more players associated with the
one or more players and (ii) determining a location on a real-
time broadcast of the one or more players at a time of the one or
more selected events; and
displaying (i) the one or more indicators and non-
broadcast fantasy-sport information associated with the one or
more players on the real-time broadcast of the one or more
players or the game with the representation of the one or more
players, in response to a determination that the one or more
selected events associated with the one or more players or the
representation of the one or more players has occurred and (ii) a
indicium around or on the one or more players or the
representation of the one or more players that tracks the one or
more players or the representation of the one or more players
within a field of view of the real-time broadcast.

Appeal Br. 35, Claims App.

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III. REFERENCES
The Examiner relies upon the following references.3
Name Reference Date
Logan US 2007/0113250 A1 May 17, 2007
Belton US 2008/0005775 A1 Jan. 3, 2008
Dukes US 7,458,093 B2 Nov. 25, 2008
Thompson US 2014/0349750 A1 Nov. 27, 2014

IV. REJECTIONS
The Examiner rejects claims 93, 94, 98, 101, 104, 108, 111, 115, 117,
119, 127, 128, 132, 136, 138, 148, 149, 153, 155, 159, 163, 166, 170, 172,
174, 182, 183, 187, 191, 194, and 203 as follows:
1. Claims 93, 94, 98, 101, 104, 108, 111, 115, 117, 119, 127, 128, 132, 136,
138, 148, 149, 153, 155, 159, 163, 166, 170, 172, 174, 182, 183, 187,
191, 194, and 203 are rejected under 35 U.S.C. § 101 as being directed to
patent ineligible subject matter without significantly more. Final Act. 3–
5.
2. Claims 93, 94, 98, 101, 111, 119, 136, 138, 148, 149, 153, 155, 166, 174,
191, 194, and 203 are rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Dukes, Belton, and Thompson.
Final Act. 6–10.
3. Claims 104, 108, 115, 117, 127, 128, 132, 159, 163, 170, 172, 182, 183,
and 187 are rejected under 35 U.S.C. § 103 as being unpatentable over

3 All reference citations are to the first named inventor only.
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the combination of Dukes, Belton, Thompson, and Logan. Final Act.
11–14.4
V. ANALYSIS
We consider Appellant’s arguments in the order they are presented in the
Appeal Brief, pages 12–33.5
1. Patent Eligibility Rejection
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
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. 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-step 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.”).

4 The statement of the rejection inadvertently includes canceled claim 204.
Final Act. 11.
5 We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Arguments not made are waived. See
37 C.F.R. § 41.37(c)(1)(iv) (2018).
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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” (Diehr, 450 U.S. at 182 n.7 (quoting Corning v.
Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson,
409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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 176; 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 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. (citation omitted)
(citing Benson and Flook), 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
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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. “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.
The Office published revised guidance on the application of
Section 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019) (“2019 PEG”). The Office additionally
published an update to that guidance. October 2019 Patent Eligibility
Guidance Update, 84 Fed. Reg. 55,942 (hereinafter “PEG Update”). Under
the 2019 PEG and PEG 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); and

(2) additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c),
(e)–(h)).6

See 2019 PEG, 84 Fed. Reg. at 52, 55–56. Only if a claim: (1) recites a
judicial exception; and (2) does not integrate that exception into a practical
application, does the office 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

6 All references to the MPEP are to 9th Ed., Rev. 08.2017 (Jan. 2018).
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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.
See 2019 PEG, 84 Fed. Reg. at 56.
We analyze the patent-eligibility rejection with the principles
identified above in mind.
Examiner’s Findings and Conclusions
In the first part of the Alice inquiry, the Examiner determines that
claims 93, 94, 98, 101, 104, 108, 111, 115, 117, 119, 127, 127, 128, 132,
136, 138, 148, 149, 153, 155, 159, 163, 166, 170, 172, 174, 182, 183, 187,
191, 194, and 203 are directed to the abstract idea of “presenting team
information to a user in an overlay display”, which can be performed in the
human mind or with pen and paper. Final Act. 3–5. According to the
Examiner, the cited abstract idea is similar in concept with those of
collecting, analyzing, and displaying information as in Electric Power
Group.7 Id. at 4.
In the second part of the Alice inquiry, the Examiner determines the
claims do not recite additional elements sufficient to amount to significantly
more than the abstract idea. Id. 5. According to the Examiner, the claims
merely recite a generic computer component that performs the functions of
receiving and transmitting information, which are tantamount to the well-
understood, routine, and conventional activities of obtaining data and
automating information previously known to the industry. Id. (citing Dukes,
US 7,458,093 4:1–34, Figs. 1B, 1C).

7 Electric Power Group, LLC v. Alstom S.A. (Fed. Cir. 2016).
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Appellant’s Arguments and Contentions
In the first part of the Alice inquiry, Appellant argues that the
Examiner’s prima facie case of patent ineligibility is in error because the
Examiner overgeneralizes the claimed subject matter, and does not tie the
facts thereof to the cited case law. Appeal. Br. 22–24.
In the second part of the Alice inquiry, Appellant argues that the
Examiner has not determined whether the combination of the claimed
elements as a whole amounts to significantly more than the alleged abstract
idea. Id. at 25. According to Appellant, the Examiner has not presented any
evidence to support the proposition that “obtaining data, and issuing
automated instructions” are performed by generic computer, and are
tantamount is well understood, routine, and conventional functions. Id. at
25–27.
Our Review
Applying the guidance set forth in the 2019 PEG Update, and
controlling case law, we determine whether the Examiner has erred in
rejecting the claims as directed to patent ineligible subject matter.
In revised step 1 of the 2019 PEG, we consider whether the claimed
subject matter falls within the four statutory categories of patent-eligible
subject matter identified by 35 U.S.C. § 101: process, machine, manufacture,
or composition of matter. Because independent claim 93 recites a “method”
including a number of steps, claim 93 falls within the “process” category of
patent-eligible subject matter. Because independent claims 148 and 203
recite a “system” including a processor for performing various functions,
these claims fall within the “machine” category of patent-eligible subject
matter.
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In prong 1 of revised step 2A of the 2019 PEG, we determine whether
any judicial exception to patent eligibility is recited in the claims. The
guidance identifies three judicially-excepted groupings of abstract ideas:
(1) mathematical concepts; (2) certain methods of organizing human
activity, such as fundamental economic practices; and (3) mental processes.
Independent claim 93 recites, inter alia, a method including computer
processor, in response to receiving information associated with a player in a
fantasy league, retrieving non-broadcasting fantasy sport information
associated with a player selected for inclusion in a fantasy team to thereby
display a representation of the player that tracks the player’s performance in
a real-time broadcast. In particular, the cited claims steps involve a
processor, which:
1. receives player information selected for inclusion in a fantasy
team;
2. retrieves non-broadcast fantasy-sport information associated
with the selected player;
3. determines a real-time broadcast information associated with
the selected player;
4. displays indicators of sport fantasy information associated
with the selected player along with an indicium that tracks
the player’s performance in a real-time broadcast.
As an initial matter, we note that steps 1 through 4 above of
independent claim 93 are tantamount to retrieving and displaying for a
selected player fantasy team information that tracks the player’s real-time
performance. Such a manipulation of the player performance information
relates to the pre-Internet activity of collecting player information and
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displaying it in fantasy game activities. As drafted, these claim limitations,
under their broadest reasonable interpretation, recite a mental process for
collecting and displaying data that can be performed in the human mind or
using a pen and paper. See, e.g., CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011) (determining that a claim
whose “steps can be performed in the human mind, or by a human using a
pen and paper” is directed to an unpatentable mental process). We thus
agree with the Examiner that the claimed subject matter merely relates to the
basic concept of “presenting [fantasy] team information to a user in an
overlay display”, which can be implemented as a mental process. Final Act.
3–5. Consequently, we find the record before us adequately supports the
Examiner’s finding that claim 93 recites the mental process of “presenting
[fantasy] team information to a user in an overlay display.”. Id.
Accordingly, we find that independent claim 93 recites the judicial exception
of a mental process.
Having determined that the claim recites a judicial exception, our
analysis under the 2019 PEG turns now to determining whether there are
“additional elements that integrate the judicial exception into a practical
application.” See MPEP § 2106.05(a)–(c), (e)–(h).8 “Integration into a

8 Specifically, we determine whether the claims recite:
(i) an improvement to the functioning of a computer [(or a mobile
device)];
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a particular
machine;
(iv) a transformation or reduction of a particular article to a different
state or thing; or
(v) other meaningful limitations beyond generally linking the use of
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practical application” requires an additional element or a combination of
additional elements in the claim to 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 exception. 84 Fed. Reg. at 53.
Appellant’s claim 93 recites a computer-related limitation (e.g.,
computer processor). We do not find the recited computer-related limitation
is sufficient to integrate the judicial exception into a practical application.
Although the claim nominally requires steps 1–4 to be performed by a
computer processor, this computer implementation of a mental process is
insufficient to take the invention out of the realm of abstract ideas. Versata
Dev. Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts
have examined claims that required the use of a computer and still found that
the underlying, patent-ineligible invention could be performed via pen and
paper or in a person’s mind.”); Alice, 573 U.S. at 223 (“Stating an abstract
idea while adding the words ‘apply it with a computer’” is insufficient to
confer eligibility.). Further, the Specification does not provide additional
details about the computer processor that would distinguish it from any
generic processing devices to convert the collected player data from one type
to another. Although we do not dispute that the computer processor includes
specific instructions for performing the recited functions, Appellant has not
explained persuasively how the displayed data transforms the collected data
into a new state or thing. See MPEP § 2106.05(a). Rather, the claim merely
adapts the mental process of presenting collected fantasy team information

the abstract idea to a particular technological environment.
Id.
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to a user in an overlay display. See Credit Acceptance Corp. v. Westlake
Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017) (“Our prior cases have made
clear that mere automation of manual processes using generic computers
does not constitute a patentable improvement in computer technology.”); see
also Bancorp Services, L.L.C. v. Sun Life Assurance Co. of Canada (U.S.),
687 F.3d 1266, 1278 (Fed. Cir. 2012) (A computer “employed only for its
most basic function . . . does not impose meaningful limits on the scope of
those claims.”).
Further, Appellant has not identified any recited improvements
beyond the abstract idea itself, let alone improvements to a technology or
computer functionality. That is, the cited claim limitations do not improve
the functionality of the processing device by presenting collected fantasy
team information to a user in an overlay display, nor do they achieve an
improved technological result in conventional industry practice. See McRO,
Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299, 1316 (Fed. Cir.
2016). Thus, we agree with the Examiner that the claim does not recite an
additional element reflecting an improvement in the functioning of a
computer, or an improvement to other technology or technical field. Ans.
14–15. As correctly noted by the Examiner, the claim does not recite an
additional element that implements the abstract idea with a particular
machine or manufacture that is integral to the claim. Id. Instead, the claim
limitations only recite result-based functional steps that do not describe how
to achieve the data transformation in a non-abstract way. Prior to the
Internet, such activities were widely practiced, and became computerized to
facilitate the display of collected fantasy team information. See OIP
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Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364 (Fed. Cir.
2015).
Because the claimed subject matter outlined above does not (1)
provide any technical solution to a technical problem as required by DDR
Holdings;9 (2) provide any particular practical application as required by
BASCOM; or (3) entail an unconventional technological solution to a
technological problem as required by Amdocs,10 we agree with the
Examiner’s determination that Appellant’s claim 93 is directed to an abstract
idea that is not integrated into a practical application.
Alice/Mayo—Step 2B (Inventive Concept)
Turning to step 2B of the 2019 PEG, we look to whether the claim:
(a) recites a specific limitation or combination of limitations that are not
well-understood, routine, conventional activity in the field; or (b) simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. 84 Fed. Reg. 56; see Alice, 573 U.S. at 217 (“[W]e consider the
elements of each claim both individually and ‘as an ordered combination’”
to determine whether the claim includes “significantly more” than the
ineligible concept); see also BASCOM, 827 F.3d at 1350 (“[A]n inventive

9 The Federal Circuit found DDR’s claims are patent-eligible under
35 U.S.C. § 101 because DDR’s claims: (1) do not merely recite “the
performance of some business practice known from the pre-Internet world”
previously disclosed in Bilski and Alice; but instead (2) provide a technical
solution to a technical problem unique to the Internet, i.e., a “solution . . .
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks.” DDR Holdings, 773
F.3d at 1257.
10 See Amdocs Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016).
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concept can be found in the non-conventional and non-generic arrangement
of known, conventional pieces.”).
We discern no additional element or combination of elements recited
in Appellant’s independent claim 93 that contain any “inventive concept” or
add anything “significantly more” to transform the abstract concept into a
patent-eligible application. Alice, 573 U.S. at 221. We are not persuaded by
Appellant’s remarks, noted above, alleging the claims are directed to a non-
routine and unconventional system. Appellant has failed to establish on this
record how the claimed method of presenting collected fantasy team
information to a user in an overlay display is distinguished from the
conventional processor-implemented method of collecting data and
displaying the collected data.
Further, Appellant does not direct our attention to any portion of the
Specification indicating that the claimed computer processor performs
anything other than well-understood, routine, and conventional functions,
such as receiving data, retrieving/collecting data, and displaying data. See
Elec. Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir.
2016) (“Nothing in the claims, understood in light of the [S]pecification,
requires anything other than off-the-shelf, conventional computer, network,
and display technology for gathering, sending, and presenting the desired
information.”); see also Alice, 573 U.S. at 224–26 (receiving, storing,
sending information over networks insufficient to add an inventive concept);
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.”). Instead,
Appellant’s claimed subject matter simply uses a generic computer
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processor to perform the abstract idea of presenting collected fantasy team
information to a user in an overlay display. As noted above, the use of a
generic computer does not alone transform an otherwise abstract idea into
patent-eligible subject matter. As our reviewing court has observed, “after
Alice, there can remain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible.” DDR, 773
F.3d at 1256 (citing Alice, 573 U.S. at 223).
Because Appellant has failed to rebut the aforementioned evidence
presented by the Examiner to substantiate that claim elements 1–4 only
recite generic computer functions that are well-understood, routine, and
conventional, individually and in combination, claim 93 is devoid of an
inventive concept. Final Act. 5, See Alice, 573 U.S. at 217. “[T]he
‘inventive concept’ [under the second part of the Mayo/Alice test] cannot be
the abstract idea itself” and “Berkheimer . . . leave[s] untouched the
numerous cases from [the Federal Circuit] which have held claims ineligible
because the only alleged ‘inventive concept’ is the abstract idea.”
Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring). “It has been clear since Alice that a claimed invention’s use of
the ineligible concept to which it is directed cannot supply the inventive
concept that renders the invention ‘significantly more’ than that ineligible
concept.” BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed.
Cir. 2018). Therefore, the computer functions recited in claim 93 are, in
fact, generic, and are met by numerous precedent establishing that using a
generic computer to expedite and automate processes traditionally
performed manually, or that are otherwise abstract, is a well-understood,
routine, and conventional use of such computers. See also, e.g., Intellectual
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Ventures I LLC v. Symantec Corp., 838 F.3d at 1321 (utilizing an
intermediary computer to forward information); Bancorp Services,
L.L.C., 687 F.3d at 1278 (“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.”).
Therefore, we conclude that claim 93’s elements, both individually
and as an ordered combination, do not provide an inventive concept. See 84
Fed. Reg. 56; see also Berkheimer, 881 F.3d at 1370 (“The limitations
amount to no more than performing the abstract idea of parsing and
comparing data with conventional computer components.”); Bancorp, 687
F.3d at 1278 (“[T]he use of a computer in an otherwise patent-ineligible
process for no more than its most basic function—making calculations or
computations—fails to circumvent the prohibition against patenting abstract
ideas and mental processes.”).
To the extent Appellant argues claim 93 necessarily contains an
“inventive concept” based on its alleged novelty or non-obviousness over
the cited references, Appellant misapprehends the controlling precedent.
Although the second part in the Alice/Mayo framework is termed a search
for an “inventive concept,” the analysis is not an evaluation of novelty or
non-obviousness, but, rather, a search for “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,
573 U.S. at 217–218 (quoting Mayo, 566 U.S. 72–73). A novel and
nonobvious claim directed to a purely abstract idea is, nonetheless, patent-
ineligible. See Mayo, 566 U.S. at 90.
Appeal 2019-002984
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In many cases, “relying on a computer to perform routine tasks more
quickly or more accurately is insufficient to render a claim patent eligible.”
OIP Techs., 788 F.3d at 1363 (citing Alice, 573 U.S. at 224) (“[U]se of a
computer to create electronic records, track multiple transactions, and issue
simultaneous instructions” is not an inventive concept.); see also, e.g.,
Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d at 1370
(“[M]erely adding computer functionality to increase the speed or efficiency
of the process does not confer patent eligibility on an otherwise abstract
idea.”). Therefore, the functions recited in independent claim 93 do not add
meaningful limitations beyond generally linking the abstract idea to the
particular technological environment.
Because Appellant’s claim 93 is directed to a patent-ineligible abstract
concept and do not recite something “significantly more” under the second
prong of the Alice analysis, we sustain the Examiner’s rejection of
independent claim 93 under 35 U.S.C. § 101. Because independent claims
148 and 203 likewise recite steps 1–4 set forth above, we likewise sustain
the Examiner’s rejection of these claims for the foregoing reasons.
Regarding dependent claims 94, 98, 101, 104, 108, 111, 115, 117,
119, 127, 127, 128, 132, 136, 138, 149, 153, 155, 159, 163, 166, 170, 172,
174, 182, 183, 187, 191, and 194, Appellant argues that the Examiner has
not offered any individual analysis to notify Appellant as to why the
additional limitations in the cited claims do not render these claims patent
eligible. Appeal Br. 27. This argument is not persuasive. The Examiner
explains that because the additional limitations recited in the dependent
claims further pertain to the processor circuitry performing conventional
operations to execute steps 1 through 4 discussed above in the rejection of
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independent claims 93, 148, and 203, they do not take the claims out of the
realm of patent ineligible subject matter. Final Act. 5. We agree with the
Examiner. Accordingly, we sustain the Examiner’s 35 U.S.C. § 101
rejection of dependent claims 94, 98, 101, 104, 108, 111, 115, 117, 119, 127,
127, 128, 132, 136, 138, 149, 153, 155, 159, 163, 166, 170, 172, 174, 182,
183, 187, 191, and 194.
2. Obviousness Rejections
Regarding the rejection of claim 93, Appellant argues that the
Examiner’s proposed combination of Dukes, Belton, and Thompson does
not teach or suggest “displaying … a indicium around or on the one or
more players or the representation of the one or more players that
tracks the one or more players or the representation of the one or more
players within a field of view of the real-time broadcast.” Appeal Br. 29–
30. In particular, Appellant argues that the Examiner’s reliance on
paragraph 28 of Thompson with no further analysis or explanation is
insufficient to teach the disputed claim limitations. Id. at 30–31 (citing
Thompson ¶ 28).
Appellant’s arguments are unpersuasive of reversible Examiner error.
The Examiner relies upon paragraphs 28, 37, and 11 of Thompson to teach
the disputed limitations. Final Act. 7–8, Ans. 16. As correctly noted by the
Examiner, the cited paragraphs of Thompson disclose selectively displaying
clips including a player’s real-time performance in broadcast games along
with other performance statistics associated with the player. Ans. 16.
Appellant has not provided a meaningful analysis to rebut the specific
findings made by the Examiner. Instead, Appellant’s arguments merely
parrot the claim language, and the cited portion of Thompson without
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comparing and contrasting the two. We remind Appellant that merely
repeating the claim language, and the teachings relied upon by the Examiner
in the rejection are not tantamount to a responsive argument. Such a
response to the Examiner’s findings is insufficient to persuade us of
Examiner error, as mere attorney arguments and conclusory statements that
are unsupported by factual evidence are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984); Ex parte Belinne, No. 2009-004693, slip
op. at 7–8 (BPAI Aug. 10, 2009) (informative); see also In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”); cf. In re
Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the
function of this court to examine the claims in greater detail than argued by
an appellant, looking for [patentable] distinctions over the prior art.”). Our
rules require that an Appeal Brief include “arguments” that “shall explain
why the examiner erred.” 37 C.F.R. § 41.37(c)(1)(iv). “[M]ere statements
of disagreement . . . do not amount to a developed argument.” SmithKline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).
Accordingly, we are not persuaded of error in the Examiner’s obviousness
rejection of claim 93. For the foregoing reasons, we sustain the Examiner’s
obviousness rejection of claim 93.
Regarding the rejections of claims 94, 98, 101, 104, 108, 111, 115,
117, 119, 127, 128, 132, 136, 138, 148, 149, 153, 155, 159, 163, 166, 170,
172, 174, 182, 183, 187, 191, 194, and 203, Appellant has not presented
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separate patentability arguments or has reiterated substantially the same
arguments as those previously discussed for the patentability of claim 1. As
such, claims 94, 98, 101, 104, 108, 111, 115, 117, 119, 127, 128, 132, 136,
138, 148, 149, 153, 155, 159, 163, 166, 170, 172, 174, 182, 183, 187, 191,
194, and 203 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv).
VI. CONCLUSION
We affirm the Examiner’s patent eligibility rejection of claims 93, 94,
98, 101, 104, 108, 111, 115, 117, 119, 127, 128, 132, 136, 138, 148, 149,
153, 155, 159, 163, 166, 170, 172, 174, 182, 183, 187, 191, 194, and 203
under 35 U.S.C. § 101. We likewise affirm the Examiner’s obviousness
rejections of claims 93, 94, 98, 101, 104, 108, 111, 115, 117, 119, 127, 128,
132, 136, 138, 148, 149, 153, 155, 159, 163, 166, 170, 172, 174, 182, 183,
187, 191, 194, and 203 under 35 U.S.C. § 103.

DECISION SUMMARY
In summary:
Appeal 2019-002984
Application 14/296,058
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Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
93, 94, 98,
101, 104,
108, 111,
115, 117,
119, 127,
128, 132,
136, 138,
148, 149,
153, 155,
159, 163,
166, 170,
172, 174,
182, 183,
187, 191,
194, 203
101 Eligibility
93, 94, 98,
101, 104,
108, 111,
115, 117,
119, 127,
128, 132,
136, 138,
148, 149,
153, 155,
159, 163,
166, 170,
172, 174,
182, 183,
187, 191,
194, 203

93, 94, 98,
101, 111,
119, 136,
138, 148,
149, 153,
155, 166,
174, 191,
194, 203
103 Dukes, Belton, Thompson,
93, 94, 98,
101, 111,
119, 136,
138, 148,
149, 153,
155, 166,
174, 191,
194, 203

104, 108,
115, 117,
127, 128,
132, 159,
163, 170,
172, 182,
183, 187
103 Dukes, Belton, Thompson, Logan
104, 108,
115, 117,
127, 128,
132, 159,
163, 170,
172, 182,
183, 187

Appeal 2019-002984
Application 14/296,058
24
Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
Overall
Outcome
93, 94, 98,
101, 104,
108, 111,
115, 117,
119, 127,
128, 132,
136, 138,
148, 149,
153, 155,
159, 163,
166, 170,
172, 174,
182, 183,
187, 191,
194, 203

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)(iv).
AFFIRMED