Hayward, John et al.

Patent Trials and Appeals Board

Dec 30, 2019

12751832 - (D) (P.T.A.B. Dec. 30, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/751,832 03/31/2010 John Hayward 26147-16583 1342
758 7590 12/30/2019
FENWICK & WEST LLP
SILICON VALLEY CENTER
801 CALIFORNIA STREET
MOUNTAIN VIEW, CA 94041
EXAMINER
OSMAN BILAL AHMED, AFAF
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
12/30/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PTOC@Fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN HAYWARD and JONATHAN SABADOS
____________________

Appeal 2019-002424
Application 12/751,832
Technology Center 3600
____________________

Before CATHERINE SHIANG, JASON J. CHUNG, and
JAMES W. DEJMEK, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals from a Non-Final Rejection of claims 1–35. We
have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b).
See Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994) (precedential).
We affirm in part.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies Click
Sales Inc. as the real party in interest. Appeal Br. 2.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to
“providing an efficient vendor upsell purchase flow for offering products to
customers following an initial purchase of a product.” Spec. ¶ 1. As
described in the Specification, upselling is the practice of offering an
additional (oftentimes, related) product to a customer who is already
purchasing product. Spec. ¶ 2. As an example, if a customer is purchasing a
mobile phone, a possible product to suggest to the customer may be a case
for the mobile phone. Spec. ¶ 2. Upselling is a known commercial activity.
According to the Specification, a potential issue with conventional
upselling techniques is that, by suggesting additional products to a customer
as the original product is being purchased, the sale of the original product
may be risked. Spec. ¶ 3. Accordingly, the disclosed and claimed invention
presents suggested products for purchase to the customer after the original
product has already been purchased, but before the customer is able to take
possession of the product. Spec. ¶ 5. For example, if the customer is
purchasing a downloadable digital product (e.g., software or a movie), after
the product has been purchased, but before a link to access the downloadable
product is made available to the customer (e.g., as contained in a receipt
page), the customer is presented with suggested products. See Spec. ¶¶ 20–
25, 50.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics:
1. A computer-implemented method of providing upsells to
a customer device, the method executed by a computer and
comprising:
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receiving from the customer device a request for a pitch
page of a downloadable digital product;
transmitting the pitch page to the customer device;
receiving an indication from the customer device to
purchase the downloadable digital product;
responsive to the indication, transmitting an order form to
the customer device;
receiving the order form comprising the customer’s
payment information;
completing a transaction for the customer's purchase of the
downloadable digital product based on the payment information
included in the order form;
responsive to completing the transaction, providing, by the
computer, the customer device with one or more upsell pitch
pages that describe one or more additional upsell products, each
upsell pitch page including:
a mechanism for accepting to purchase an
additional upsell product, advertised on the upsell pitch
page, the mechanism for accepting to purchase the
additional upsell product displayed in the upsell pitch
page, and
a mechanism for declining to purchase the
additional upsell product advertised on the upsell pitch
page, the mechanism for declining to purchase the
additional upsell product displayed in the upsell pitch
page;
determining whether a selection of the mechanism
accepting to purchase the additional upsell product displayed in
at least one upsell pitch page, or a selection of the mechanism
declining the additional upsell product displayed in at least one
upsell pitch page is received from the customer device;
responsive to determining that a selection of the
mechanism accepting the purchase of the additional upsell
product displayed at least one upsell pitch page is received from
the customer device, or a selection of the mechanism declining
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to purchase the additional upsell product displayed in at least one
upsell pitch page has been received from the customer device is
received from the customer device, providing a receipt page
comprising a link to download the downloadable digital product;
and
responsive to determining that a selection of the
mechanism accepting to purchase the additional upsell product
displayed at least one upsell pitch page is not received from the
customer device, or a selection of the mechanism declining to
purchase the additional upsell product displayed in at least one
upsell pitch page is not received from the customer device,
refraining from sending the receipt page comprising the link to
download the downloadable digital product until at least one
interaction with the one or more upsell pitch pages is received.

The Examiner’s Rejections2
1. Claims 1–35 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. Non-Final Act. 8–9.
2. Claims 1–8, 11, 12, 15–18, 20–22, 24, 32, and 35 stand rejected
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Gray et al.
(US 2002/0156699 A1; Oct. 24, 2002) (“Gray”) and Bhambri et al. (US
2006/0167811 A1; July 27, 2006) (“Bhambri”). Non-Final Act. 11–15.
3. Claims 23 and 26 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Gray, Bhambri, and Utter et al. (US
7,418,405 B1; Aug. 26, 2008) (“Utter”). Non-Final Act. 15–16.

2 In addition to the rejections listed below, the Examiner had also rejected
claims 1 and 15 under pre-AIA 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement. See Non-Final Act. 9–10.
However, the Examiner has withdrawn this rejection and it is not before us.
See Ans. 3.
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4. Claims 9, 10, 13, 14, 25, 27, and 29–31 stand rejected under
pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Gray, Bhambri, and
Angell et al. (US 2008/0249870 A1; Oct. 9, 2008) (“Angell”).3 Non-Final
Act. 16–18.
5. Claim 28 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Gray, Bhambri, Angell, and Utter. Non-Final
Act. 18–19.
6. Claims 33 and 34 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Gray, Bhambri, Angell, and Otto et al.
(US 2009/0182677 A1; July 16, 2009) (“Otto”). Non-Final Act. 19–20.

ANALYSIS4
Rejection under 35 U.S.C. § 101
Appellant disputes the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. Appeal Br. 11–17; Reply

3 We note the Examiner does not include claim 19 in this rejection. See
Non-Final Act. 18–19. We further note that claim 19 recites commensurate
limitations to those recited by claim 10, which is rejected over Gray,
Bhambri, and Angell. See Non-Final Act. 16–18; also cf. claim 10, with
claim 19. In the event of further prosecution, the Examiner should consider
whether claim 19 should be rejected on a similar basis to that of claim 10.
Although the Board is authorized to reject claims under 37 C.F.R.
§ 41.50(b), no inference should be drawn when the Board elects not to do so.
See Manual of Patent Examining Procedure (MPEP) § 1213.02 (9th ed. Rev.
08.2017, Jan. 2018).
4 Throughout this Decision, we have considered the Appeal Brief, filed
August 23, 2018 (“Appeal Br.”); the Reply Brief, filed January 29, 2019
(“Reply Br.”); the Examiner’s Answer, mailed November 29, 2018 (“Ans.”);
and the Non-Final Office Action, mailed April 4, 2018 (“Non-Final Act.”),
from which this Appeal is taken.
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Br. 5–9. In particular, Appellant argues “the claimed invention improves the
technical field of electronic commerce or e-commerce by attempting to
improve user engagement with content items provided to the user.” Appeal
Br. 11–14 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016)); Reply Br. 5–6. In addition, Appellant asserts that similar to the
claims held patent eligible in DDR Holdings, LLC v. Hotels.com, 773 F.3d
1245 (Fed. Cir. 2014), “the claims solve a problem arising in the realm of
computer networks.” Appeal Br. 15–16; Reply Br. 6–7. More specifically,
Appellant explains that because the purchased products are claimed to be
downloadable products, the claimed solution allows for the upsell products
to be presented to the user after purchase of the original product has been
completed but before the downloadable product is made available to the
customer. Appeal Br. 16–17. Moreover, Appellant argues “the claims recite
an unconventional sequence of steps triggered when the user clicks a
purchase button,” which amounts to significantly more than the alleged
abstract idea of providing upsells to a customer device. Reply Br. 9.
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 217 (2014). In addition, the Office published revised guidance for
evaluating subject matter eligibility under 35 U.S.C. § 101, specifically with
respect to applying the Alice framework. USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Office
Guidance”). If a claim falls within one of the statutory categories of patent
eligibility (i.e., a process, machine, manufacture, or composition of matter)
then the first inquiry is whether the claim is directed to one of the judicially
recognized exceptions (i.e., a law of nature, a natural phenomenon, or an
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abstract idea). Alice, 573 U.S. at 217. As part of this inquiry, we must “look
at the ‘focus of the claimed advance over the prior art’ to determine if the
claim’s ‘character as a whole’ is directed to excluded subject matter.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016). Per Office Guidance, this first inquiry has two prongs of
analysis (i) does the claim recite a judicial exception (e.g., an abstract idea);
and (ii) if so, is the judicial exception integrated into a practical application.
84 Fed. Reg. at 54. Under the Office Guidance, if the judicial exception is
integrated into a practical application, see infra, the claim is patent eligible
under § 101. 84 Fed. Reg. at 54–55. If the claims are not directed to an
abstract idea, the inquiry ends. See McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016). However, if the claim is
directed to a judicial exception (i.e., recites a judicial exception and does not
integrate the exception into a practical application), the next step is to
determine whether any element, or combination of elements, amounts to
significantly more than the judicial exception. See Alice, 573 U.S. at 217;
see also 84 Fed. Reg. at 56.
The Examiner concludes the claims are directed to “providing upsells
to a customer device,” which the Examiner determines to be organizing
human activity and collecting and organizing data. Non-Final Act. 8–9; see
also Ans. 9 (concluding the claims “resemble a financial management
scheme with merely generic computer implementation, which better aligns
with a fundamental economic practice.” Moreover, the Examiner
determines the claims do not recite significantly more than the abstract idea.
Non-Final Act. 9; Ans. 6–7, 9. In particular, contrary to Appellant’s
assertions, the Examiner explains the pending claims differ from the patent-
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eligible claims in Enfish because in Enfish, the claims focused on an
improvement to the functioning of a computer, whereas the instant claims
are “at best improvements to the performance of the abstract idea.” Ans. 5.
In addition, the Examiner determines that rather than solving a technological
problem (as in DDR), the instant claims aim to solve a business problem
(i.e., user engagement with content items provided to the user). Ans. 9.
Although the claims involve commercial interactions (i.e., marketing
or sales activities), which fall within certain methods of organizing human
activities—an abstract idea (see, e.g., 84 Fed. Reg. at 52)—we are mindful
that “an invention is not rendered ineligible for patent simply because it
involves an abstract concept.” Alice, 573 U.S. at 217. As set forth in the
claims, after completing a transaction for the customer’s purchase of a
downloadable digital product, but before providing a receipt page
comprising a link to the downloadable digital product, the customer is
presented with one or more upsell pitch pages describing one or more
additional upsell products. As described in the Specification, by providing
the upsell after the initial product sale, “the upsell does not interfere with or
otherwise jeopardize that initial sale.” Spec. ¶ 5; see also Appeal Br. 12
(explaining the claims “include steps that provide an improved vendor
upsell purchase flow for offering products to customers following an initial
purchase of a product”) (citing Spec. ¶ 1). In other words, the customer is a
captive audience member for presentation of the upsell products.
Accordingly, we conclude that the focus of the claims (i.e., the
character of the claims as a whole) is more than merely providing upsells to
a customer device. Instead, we conclude the claims are directed to
improving the vendor upsell purchase flow for offering products to
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customers following an initial purchase of a downloadable product. See,
e.g., Spec. ¶¶ 1, 5.
In DDR, the court explained the claims “[did] not merely recite the
performance of some business practice known from the pre-Internet world
along with the requirement to perform it on the Internet. Instead, the
claimed solution is necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks.”
DDR, 773 F.3d at 1257. In distinguishing from claims that simply use the
Internet to perform an abstract business practice, the court explained the
claims “specify how interactions with the Internet are manipulated to yield a
desired result.” DDR, 773 F.3d at 1258. Thus, when the limitations are
considered together as an ordered combination, the court concluded the
claims “recite an invention that is not merely the routine or conventional use
of the Internet.” DDR, 773 F.3d at 1259. Accordingly, the court concluded
the claims were patent eligible. DDR, 773 F.3d at 1259.
We find the court’s reasoning in DDR applicable here. Similar to the
claims at issue in DDR, the pending claims set forth a solution rooted in
computer technology to address a business challenge particular to the
Internet—namely, providing a technique within an e-commerce transaction
to present upsell products to a customer as a requisite step for the customer
to receive a purchased downloadable product. The recited steps of
presenting the upsell products after the completion of a purchase transaction
for a downloadable product, but prior to the downloadable product being
available to the customer are not the routine and conventional sequence of
events ordinarily taken in an e-commerce transaction. Accordingly, we
conclude the claims are patent eligible under 35 U.S.C. § 101.
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Moreover, analysis under the Office Guidance does not alter our
conclusion. The Examiner finds the claims are directed to an abstract idea.
See Non-Final Act. 8–9; Ans. 5–10. In particular, the Examiner finds the
claims are directed to “providing upsells to a customer device” i.e., a certain
method of organizing human activity and, therefore an abstract idea. Non-
Final Act. 8–9; see also 84 Fed. Reg. at 52.
Claim 1 is reproduced below and includes the following claim
limitation(s) that recite providing upsells to a customer device, emphasized
in italics:
1. A computer-implemented method of providing upsells to
a customer device, the method executed by a computer and
comprising:
receiving from the customer device a request for a pitch
page of a downloadable digital product;
transmitting the pitch page to the customer device;
receiving an indication from the customer device to
purchase the downloadable digital product;
responsive to the indication, transmitting an order form to
the customer device;
receiving the order form comprising the customer’s
payment information;
completing a transaction for the customer’s purchase of
the downloadable digital product based on the payment
information included in the order form;
responsive to completing the transaction, providing, by the
computer, the customer device with one or more upsell pitch
pages that describe one or more additional upsell products, each
upsell pitch page including:
a mechanism for accepting to purchase an
additional upsell product, advertised on the upsell pitch
page, the mechanism for accepting to purchase the
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additional upsell product displayed in the upsell pitch
page, and
a mechanism for declining to purchase the
additional upsell product advertised on the upsell pitch
page, the mechanism for declining to purchase the
additional upsell product displayed in the upsell pitch
page;
determining whether a selection of the mechanism
accepting to purchase the additional upsell product displayed in
at least one upsell pitch page, or a selection of the mechanism
declining the additional upsell product displayed in at least one
upsell pitch page is received from the customer device;
responsive to determining that a selection of the
mechanism accepting the purchase of the additional upsell
product displayed at least one upsell pitch page is received from
the customer device, or a selection of the mechanism declining
to purchase the additional upsell product displayed in at least one
upsell pitch page has been received from the customer device is
received from the customer device, providing a receipt page
comprising a link to download the downloadable digital product;
and
responsive to determining that a selection of the
mechanism accepting to purchase the additional upsell product
displayed at least one upsell pitch page is not received from the
customer device, or a selection of the mechanism declining to
purchase the additional upsell product displayed in at least one
upsell pitch page is not received from the customer device,
refraining from sending the receipt page comprising the link to
download the downloadable digital product until at least one
interaction with the one or more upsell pitch pages is received.
Because the claim recites an abstract idea (i.e., generating a decrypted
image by decrypting the encrypted image using the cryptographic shader),
we next determine whether the claim integrates the abstract idea into a
practical application. 84 Fed. Reg. at 54. To determine whether the judicial
exception is integrated into a practical application, we identify whether there
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are “any additional elements recited in the claim beyond the judicial
exception(s)” and evaluate those elements to determine whether they
integrate the judicial exception into a recognized practical application. 84
Fed. Reg. at 54–55 (emphasis added); see also Manual of Patent Examining
Procedure (“MPEP”) § 2106.05(a)–(c), (e)–(h) (9th ed., Rev. 08.2017,
Jan. 2018).
As discussed above, we find the additional limitations integrate the
abstract idea (as identified by the Examiner) into a practical application—
specifically improving the vendor upsell purchase flow in e-commerce by
offering products to customers following the purchase of a downloadable
product, but prior to the downloadable product being available to the
customer. See Spec. ¶¶ 1, 5; see also MPEP § 2106.05(a).
Moreover, we find the court’s holding in BASCOM instructive.5 In
BASCOM, the court determined that although filtering Internet content is a
“longstanding, well-known method of organizing human behavior, similar to
concepts previously found to be abstract,” the inventors had recognized “a
filter implementation versatile enough that it could be adapted to many
different users’ preferences while also installed remotely in a single
location.” BASCOM, 827 F.3d at 1348–51. Thus, when considered as an
ordered combination, the court concluded the claims provided “an inventive
concept can be found in the non-conventional and non-generic arrangement
of known, conventional pieces.” BASCOM, 827 F.3d at 1350.
The court’s reasoning in BASCOM is applicable here. Appellant
describes that conventional upsell techniques may jeopardize the sale of the

5 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016).
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original product, create additional steps (e.g., web page jumps) before the
original product may be purchased, and inaccurately gauge a customer’s
spending budget. Spec. ¶¶ 3–4. By presenting the upsell products after the
original product has been purchased (but before the product is available to
the customer), the initial sale is not jeopardized by upsell products. Spec.
¶ 5. In addition, “[i]f multiple upsell opportunities are presented to the
customer, the flow may complete the purchase transaction for each upsell
opportunity before moving on to the next.” Spec. ¶ 5. Thus, each purchase
is “locked in” to capture maximum value from the customer. Spec. ¶ 5.
Accordingly, when considered as an ordered combination, we conclude the
pending claims provide an inventive concept by the unconventional
arrangement of generic components to yield a technological improvement.
For the reasons discussed supra, we are persuaded of Examiner error.
Accordingly, we do not sustain the Examiner’s rejection of claims 1–35
under 35 U.S.C. § 101.

Rejections under pre-AIA 35 U.S.C. § 103(a)
a. Claims 1–8, 11, 12, 15–18, 20–22, 24, 32, and 35
In rejecting independent claims 1 and 15, the Examiner finds Gray
teaches, inter alia, responsive to determining that a selection to either accept
or decline an upsell product purchase offer has not been received, refraining
from sending the receipt page until at least one interaction with the upsell
pitch page is received. Non-Final Act. 11–12 (citing Gray ¶¶ 37–38, 44, 48,
Figs. 6, 11); Ans. 4–5. Alternatively, the Examiner concludes that in light of
the Board’s precedential decision in Ex parte Schulhauser, Appeal No.
2013-007847, 2016 WL 6277792, at *3–6 (PTAB April 28, 2016), under a
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broadest reasonable interpretation, the disputed limitation is a conditional
step in the method claims and, as such, the method need not invoke the
conditional step. Ans. 3–4. Accordingly, the Examiner determines that
evidence of obviousness need not be presented for the conditional limitation.
Ans. 3–4; see also Schulhauser, 2016 WL 6277792, at *4 (“The Examiner
did not need to present evidence of the obviousness of the remaining method
steps of claim 1 that are not required to be performed under a broadest
reasonable interpretation of the claim.”).
As an initial matter, Appellant asserts the disputed limitation (i.e., the
last limitation of claim 1) is not conditional, but is always performed by the
claimed method. Reply Br. 2–3. More specifically, Appellant argues that
the step of refraining from sending the receipt page is always performed
after the upsell pitch pages are presented to the customer. Reply Br. 2–3. In
other words, after the upsell pitch pages have been presented to the
customer, the receipt page for the purchased downloadable product is not
sent to the customer (purchaser) until the customer interacts with the
mechanisms (i.e., accept or decline) on the upsell pitch page(s).
We find Appellant’s explanation persuasive that the receipt page is
not sent to the customer if the customer has not yet selected a mechanism on
the upsell pitch page(s) to either accept or decline purchase of the upsell
product. This step is not a conditional step and, therefore, the Examiner
must present evidence that it is taught or suggested by the prior art.
Regarding the teaching of Gray, Appellant asserts that Gray, as relied
on by the Examiner, fails to teach the last limitation of claim 1—i.e.,
responsive to determining that the customer has not accepted or declined
purchasing the additional upsell product to refrain from sending the receipt
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page (containing the link to download the downloadable product already
purchased by the customer). Appeal Br. 6–10; Reply Br. 3–5. Rather,
Appellant argues that Gray teaches treating inaction by the customer (i.e.,
not accepting or declining an offer to purchase an additional upsell product)
as if the customer affirmatively declined the upsell offer.
We are unpersuaded of Examiner error.
Gray generally relates to upselling products in a computer network
environment. See Gray, Title. In particular, Gray describes a multi-step
method of selling involving the sale of a base product and, thereafter, the
sale of one or more upsell products. Gray ¶ 12. As described in Gray, a
customer selects an item for purchase, provides the necessary payment and
shipping information, and completes the transaction to purchase the (base)
product. See Gray ¶¶ 31–37. After the sale of the base product has been
successfully completed, the system presents upsell products to the customer.
Gray ¶ 38. Gray further teaches that pages presenting the upsell products
(i.e., upsell product pitch pages) comprise mechanisms (e.g., buttons
indicating “Yes Please” or “No Thank You”) to allow the user to accept or
decline the purchase offer of the upsell products. Gray ¶ 38. Gray teaches
that until the customer accepts, declines, or does not respond to the upsell
product offer, a verification email message (i.e., receipt page) related to
purchase of the base product is not sent to the customer. Gray ¶¶ 39–44,
Figs. 1, 11. In other words, similar to Appellant’s explanation of the
operation of the claimed method, Gray also teaches the verification email
message (i.e., receipt page) is not sent to the customer until at least the
customer has indicated via the mechanisms on the upsell product pitch page,
or, additionally, until a timeout period has expired.
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For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claim 1 under
pre-AIA 35 U.S.C. § 103(a). For similar reasons, we also sustain the
Examiner’s rejection under pre-AIA 35 U.S.C. § 103(a) of independent
claim 15, which recites commensurate limitations and was not argued
separately with particularity. See Appeal Br. 10; see also 37 C.F.R.
§ 41.37(c)(1)(iv). Further, we sustain the Examiner’s rejection under pre-
AIA 35 U.S.C. § 103(a) of claims 2–8, 11, 12, 16–18, 20–22, 24, 32, and 35,
which depend directly or indirectly therefrom and were not argued
separately. See Appeal Br. 10; see also 37 C.F.R. § 41.37(c)(1)(iv).

b. Claims 9, 10, 13, 14, 23, 25, 26–31, 33, and 34
Appellant asserts that the additional references cited by the Examiner
(i.e., Utter, Angell, and Otto) fail to remedy the alleged deficiencies in the
base combination of Gray and Bhambri with respect to independent claims 1
and 15. Appeal Br. 10–11. As discussed above, we are unpersuaded of
Examiner error or deficiencies of Gray and Bhambri related to independent
claims 1 and 15. Accordingly, we sustain the Examiner’s rejections of
dependent claims 9, 10, 13, 14, 25, 27–31, 33, and 34, which were not
argued separately. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
We reverse the Examiner’s decision rejecting claims 1–35 under
35 U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 1–18 and 20–35
under pre-AIA 35 U.S.C. § 103(a).

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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–35 101 Eligibility 1–35
1–8, 11, 12,
15–18, 20–
22, 24, 32,
35
103(a) Gray, Bhambri 1–8, 11,
12, 15–18,
20–22, 24,
32, 35

23, 26 103(a) Gray, Bhambri,
Utter
23, 26
9, 10, 13,
14, 25, 27,
29–31
103(a) Gray, Bhambri,
Angell
9, 10, 13,
14, 25, 27,
29–31

28 103(a) Gray, Bhambri,
Angell, Utter
28
33, 34 103(a) Gray, Bhambri,
Angell, Otto
33, 34
Overall
Outcome
1–18, 20–
35
19

TIME PERIOD FOR 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). See 37 C.F.R.
§ 41.50(f).

AFFIRMED IN PART