Hoffberg, Steven M.

Patent Trials and Appeals Board

Jul 31, 2020

15095565 - (D) (P.T.A.B. Jul. 31, 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.
15/095,565 04/11/2016 Steven M. Hoffberg SMH 205.2/P-5793-88 8021
90150 7590 07/31/2020
Hoffberg & Associates
29 Buckout Road
West Harrison, NY 10604
EXAMINER
APPLE, KIRSTEN SACHWITZ
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
07/31/2020 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):
roberta@hoffberglaw.com
steve@hoffberglaw.com
uspto@dockettrak.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN M. HOFFBERG
____________

Appeal 2019-001309
Application 15/095,565
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
AMANDA F. WIEKER, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 6–13, 21–30, 32, and 33. We have jurisdiction
under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as “The
application is assigned to The Hoffberg Family Trust 2, a defective trust
whose grantor is Steven M. Hoffberg (inventor), by way of mesne
assignment to The Hoffberg GRAT-2.” Appeal Br. 1.
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THE INVENTION
Appellant claims game theoretic prioritization systems and methods.
The present invention seeks to apply aspects of game theory to the
enhancement or optimization of communities. (Spec., 12, Title).
Claim 6 is representative of the subject matter on appeal.
6. An apparatus, comprising:
an interface to an automated digital communication network;
a memory configured to store parameters of a delegable wealth
generation function for
generating a virtual cryptocurrency, received from the
automated digital communication network, and a representation
of the generated virtual cryptocurrency; and
an automated processor configured to:
process the stored parameters of the delegable wealth
generation function;
generate the virtual cryptocurrency based on at least the
processing of the delegable wealth generation function;
store the representation of the generated virtual
cryptocurrency in the memory;
and
control a transfer of the representation of the virtual
cryptocurrency generated by the delegable wealth
generation function through the automated digital
communication network.

THE REJECTIONS
Claims 6–13, 21–30, 32, and 33 are rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as the invention.
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Claims 6–13, 21–30, 32, and 33 are rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
Claims 6–13, 21–30, 32, and 33 are rejected under the judicially-
created doctrine of obviousness-type double patenting as being unpatentable
over claims of U.S. Patent 7,590,589.
Claims 6–13, 21–30, and 32 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wu (US 2004/0210529 A1; pub. Oct. 21, 2004) in
view of Keiser (US 2004/0049447 A1; pub. Mar. 11, 2004) in further view
of Schirripa (US 6,275,807 B1, iss. Aug. 14, 2001).

ANALYSIS
35 U.S.C. § 112, SECOND PARAGRAPH, REJECTION
The Examiner finds that the phrase “delegable wealth generation
function” is unclear. The Examiner states that an example of a formula,
steps or flowchart of this function would make it possible to replicate, and
until this is described in more detail it will hold little patentable weight. As
such, the Examiner reads the term “function” to be a formula or some kind
of mathematical function. (Final Act. 3; Ans. 4).
Appellant argues that the “delegable wealth generation function” is
clear from a reading of the Specification. Appellant argues that the
delegable wealth function is a computational process that creates valid and
verifiable units of virtual cryptocurrency dependent on a defined algorithm,
the capacity of which is received under authority of another. A
cryptocurrency provides an ability to prevent or deter double spending, and
must have a restriction in supply, significant cost or detriment involved in its
production in order to serve as a valuable medium or exchange. (Appeal
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Br. 20).
We agree with Appellant that the meaning of this phrase is clear from
a reading of the Specification. The Specification discloses that in
accordance with the proposed artificial economy, each node has a generator
function for generating economic units. (Spec. 13, ll. 18–19). A typical
peer-to-peer network may be extended to the hierarchical case by treating
each branch within the chain of command as an economic unit with respect
to the generator function. A commander, for example, retains a portion of
the wealth generation capacity, and delegates the remainder to subordinates.
(Spec. 14, ll. 7–9). The Specification also discloses that each node must
analyze its expected circumstances to retain or delegate the generator
function and optimally allocate wealth between competing subordinates.
The Specification also discloses that in one scheme the hierarchical
deference is to organize the economy itself into hierarchy in which a node
has one parent and possibly multiple children. At each level, a node receives
an allocation of wealth from its parent and distributes all or a portion of its
wealth to children. (Spec. 21, ll. 1–5). The Specification also discloses that
one node may loan a portion of its generator function or accumulated wealth
to another node. (Spec. 33, ll. 26–27). Each node has a generator function
for generating economic units. At any level of the hierarchy, the
commander retains a portion of the wealth generation capacity, and
delegates the remainder to its subordinates. (Spec. 36, ll. 30-32). Therefore,
we find that the wealth generation function is the capacity to generate wealth
and this is clear from a reading of the Specification.
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35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 6–13, 21–30, 32, and 33 under
35 U.S.C. § 101.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of those
patent-ineligible concepts. If so, . . . then ask, “[w]hat else is there
in the claims before us?” To answer that question, . . . consider
the elements of each claim both individually and “as an ordered
combination” to determine whether the additional elements
“transform the nature of the claim” into a patent-eligible
application. [The Court] described step two of this analysis as a
search for an “‘inventive concept’”—i.e., an element or
combination of elements that is “sufficient to ensure that the
patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.”
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–218 (citing
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73
(2012)) (citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the [S]pecification, based on whether ‘their character
as a whole is directed to excluded subject matter.’” See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the
focus of the claims is on a specific improvement in relevant technology or
on a process that itself qualifies as an “abstract idea” for which computers
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are invoked merely as a tool. See id. at 1335–36.
In so doing we apply a “directed to” two-prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).
The Examiner determines that the claims are directed to a method for
brokering data products including the steps of “receiving parameters, storing
and processing the parameters of delegable wealth generation function and
controlling a transfer of the representation of virtual cryptocurrency. The
Examiner determines that this is a fundamental economic practice. (Final
Act. 4). The Examiner also determines that the claims relate to processing
or organizing, storing, and transmitting information. (Id. at 7). The
Examiner finds the claims do not include limitations amounting to
significantly more than the abstract idea. (Id. at 4–5).
The Specification discloses, as discussed above, that the invention
relates to an artificial economy in which each node has a wealth generator
function for generating economic units used in an auction with other nodes.
(Spec. 13, ll. 18–19). This disclosure relates to a commercial interactions
and sales activities, and as such relates to a fundamental economic practice.
See Revised Guidance, 84 Fed. Reg. at 52.
Consistent with this disclosure, the recitations in claim 6 also relate to
commercial and sales activities by reciting “store parameters of a delegable
wealth generation function,” “store parameters of the delegable wealth
generation function,” “generate the virtual cryptocurrency,” and “store the
representation of the generated virtual cryptocurrency.”
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We thus agree with the Examiner’s findings that the claims are
directed to a fundamental economic practice, which is a judicial exception.
Revised Guidance, 84 Fed. Reg.
Also, we agree with the Examiner that the steps of claim 6 constitute
analyzing and transmitting information by steps people go through in their
minds, or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category. Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016); see also buySAFE, Inc.
v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (claims directed to
certain arrangements involving contractual relations are directed to abstract
ideas). Thus, we find that claim 6 recites the judicial exception of a method
of organizing human activity, and in the alternative, a mental process.
Turning to the second prong of the “directed to” test, claim 6 requires
“an automated digital communication network,” “a memory,” and “an
automated processor.” The recitation of these network and computer
components does not impose “a meaningful limit on the judicial exception,
such that the claim is more than a drafting effort designed to monopolize the
judicial exception.” Revised Guidance 84 Fed. Reg. at 52. We find no
indication in the Specification, nor does Appellant direct us to any
indication, that the operations recited in independent claim 6 invoke any
inventive programming, require any specialized computer hardware or other
inventive computer components, i.e., a particular machine, or that the
claimed invention is implemented using something other than generic
computer components to perform generic computer functions. See DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)
(“[A]fter Alice, there can remain no doubt: recitation of generic computer
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limitations does not make an otherwise ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention, or that otherwise indicates that the
claimed invention integrates the abstract idea into a “practical application,”
as that phrase is used in the revised Guidance. See Revised Guidance, 84
Fed. Reg. at 55.
In this regard, the recitation does not affect an improvement in the
functioning of the communication network, memory or processor or other
technology, does not recite a particular machine or manufacture that is
integral to the claims, and does not transform or reduce a particular article to
a different state or thing. Id. Thus, claim 6 is directed to a judicial
exception that is not integrated into a practical application and thus is an
“abstract idea.”
Turning to the second step of the Alice analysis, because we find that
claim 6 is directed to an abstract idea, the claims must include an “inventive
concept” in order to be patent-eligible, i.e., there must be an element or
combination of elements that is sufficient to ensure that the claim in practice
amounts to significantly more than the abstract idea itself. See Alice, 573
U.S. at 217–18 (alteration in original) (quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
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The introduction of computer and network components into the claims
does not alter the analysis at Alice step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly generic computer implementation is not
generally the sort of “additional featur[e]” that provides any
“practical assurance that the process is more than a drafting effort
designed to monopolize the [abstract idea] itself.”
Alice, 573 U.S. at 223 (alterations in original) (citations omitted).
Instead, the relevant question is whether claim 6 here does more than
simply instruct the practitioner to implement the abstract idea on a generic
computer. Id. at 225. It does not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
trading industry. See Elec. Power Grp., 830 F.3d at 1354; see also In re
Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.
Cir. 2011) (“Absent a possible narrower construction of the terms
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‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming”). In fact,
Appellant’s Specification discloses that the functions performed by the
claims can be done by general-purpose hardware (Spec. 43, ll. 9–10). In
short, each step does no more than require a generic computer to perform
generic computer functions. As to the data operated upon, “even if a process
of collecting and analyzing information is ‘limited to particular content’ or a
particular ‘source,’ that limitation does not make the collection and analysis
other than abstract.” SAP Am. Inc. v. InvestPic, LLC, 890 F.3d 1016, 1022
(Fed. Cir. 2018).
Considered as an ordered combination, the computer and network
components of Appellant’s claim 6 add nothing that is not already present
when the steps are considered separately. The sequence of data reception-
analysis-access/display is equally generic and conventional or otherwise
held to be abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715
(Fed. Cir. 2014) (sequence of receiving, selecting, offering for exchange,
display, allowing access, and receiving payment recited an abstraction),
Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378
(Fed. Cir. 2017) (holding that sequence of data retrieval, analysis,
modification, generation, display, and transmission was abstract), Two-Way
Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed.
Cir. 2017) (holding sequence of processing, routing, controlling, and
monitoring was abstract). The ordering of the steps is, therefore, ordinary
and conventional.
Claim 6 does not, for example, purport to improve the functioning of
the computer itself. As we stated above, claim 6 does not affect an
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improvement in any other technology or technical field. The Specification
spells out different generic equipment and parameters that might be applied
using this concept, and the particular steps such conventional processing
would entail based on the concept of information access under different
scenarios. (See, e.g., Spec. 43, l. 9; 106, ll. 20–24). Thus, claim 6 amounts
to nothing significantly more than instructions to apply the abstract ideas
using some unspecified, generic computer. Under our precedents, that is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 226.
We have reviewed all the arguments (Appeal Br. 34–66; Reply
Br. 12–21) Appellant has submitted concerning the patent eligibility of the
claims before us that stand rejected under 35 U.S.C. § 101. We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of emphasis and completeness, we will
address various arguments in order to make individual rebuttals of same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the present claims clearly represent an
improvement on both cryptocurrency generating devices and control systems
for distributed systems. (Appeal Br. 34). This argument fails because
Appellant does not explain what these improvements are, and because what
Appellant refers to as the “cryptocurrency generating devices and control
systems” according to claim 6 is a processor, which as discussed above and
found by the Examiner may be any generic computer.
Appellant argues that the claims are directed to a specific apparatus or
method comprising an ordered sequence that is distinct from prior methods
or apparatuses, and is non-preemptive of alternate methods and
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implementation. (Appeal Br. 48). In addition, Appellant argues that the
concept of delegation is absent in the prior art and represents a material
advance in the technology. (Appeal Br. 64).
To the extent Appellant maintains that the limitations of claim 6
necessarily amount to “significantly more” than any abstract idea because
the claimed apparatus is distinct from prior apparatuses and is allegedly
patentable over the prior art, Appellant misapprehends the controlling
precedent. Although the second step 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. A novel and non-obvious claim directed to
a purely abstract idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S.
at 90.
In regard to the preemption argument, we note that while preemption
may signal patent ineligible subject matter, “the absence of complete
preemption does not demonstrate patent eligibility.” Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015),
cert. denied, 136 S. Ct. 701, 193 (2015) (“[T]hat the claims do not preempt
all price optimization or may be limited to price optimization in the e-
commerce setting do not make them any less abstract.”). And, “[w]here a
patent’s claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework, as they are in this case, preemption concerns are
fully addressed and made moot.” Ariosa, 788 F.3d at 1379.
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Appellant argues that the appealed claims are patent-eligible in view
of BASCOM Global Internet Services v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016). (Appeal Br. 58). However, Appellant does not explain
how the claims at issue are similar to those in BASCOM. Therefore this
argument is not persuasive.
Appellant argues that the generation of cryptocurrency that is
distributed and need not be centralized is not well-understood, routine and
conventional to a person of ordinary skill in the art. In addition, Appellant
argues that the Examiner has not cited a body of literature that makes it clear
that the technology which is embedded in the claims are well-understood,
routine and conventional. (Appeal. Br. 60). The Appellant directs our
attention to claim 6’s recitation of “a delegable wealth generation function
for generating a virtual cryptocurrency, received from the automated digital
communication network.” In the Reply Brief, Appellant also argues that the
Examiner has failed to comply with the requirements of Berkheimer v. HP,
Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018). (Reply Br. 14).
However, the inquiry as to whether a claim element or combination is
well-understood, routine, and conventional falls under step two in the § 101
framework. As such, there is no genuine issue of material fact when the
only alleged “inventive concept” is the abstract idea. Id. (“Berkheimer and
Aatrix leave untouched the numerous cases from this court which have held
claims ineligible because the only alleged ‘inventive concept’ is the abstract
idea.”) (citation omitted). The language relied on by the Appellant above,
relates to the abstract ideas of brokering data products and processing or
organizing, storing and transmitting information. But “[i]t has been clear
since Alice that a claimed invention’s use of the ineligible concept to which
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it is directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.” BSG Tech LLC, 899 F.3d
at 1290. Moreover, “[n]o matter how much of an advance in the
cryptocurrency field the claims recite, the advance lies entirely in the realm
of abstract ideas, with no plausibly alleged innovation in the non-abstract
application realm.” SAP America, Inc., 898 F.3d at 1163; see also id.
at 1168.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that a human could not generate a virtual
cryptocurrency, and thus claim 6 does not recite a method of organizing
humans. (Appeal Br. 62). As we find above, claim 6 relates to an artificial
economy in which each node has a wealth generation function for generating
economic units used in an auction with other nodes to create a market
economy, and thus relates to commercial interactions and sales activities.
Specifically, claim 6 is directed to generating, storing, and transferring
wealth in the form of cryptocurrency between users, and thus is related to a
commercial process, which is a fundamental economic practice, which is a
form of a method of organizing human activity. The activity that is
organized in the claims is the generation and transfer of wealth between
users which is clearly a commercial process. See Revised Guidance, 84 Fed.
Reg. at 52.
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 6 under 35 U.S.C. §101. We will also sustain the rejection as it is
directed to claims 7–13, 21–30 and 32 because Appellant has not argued the
separate eligibility of these claims.
In regard to claim 33, Appellant argues that the generation of wealth
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results from or is contingent upon a competition and thus is not abstract.
(Appeal Br. 63). Appellant explains that the competition requires a real-
world interaction between different members of the community. However,
the interaction between different members of a community is an interaction
between people, and thus as with claim 6, claim 33 also recites a judicial
exception of a method of organizing human activity i.e. a fundamental
economic process. Revised Guidance, 84 Fed. Reg. at 52. Therefore, we
will sustain the rejection as it is directed to claim 33 as well.

DOUBLE-PATENTING REJECTION
We will not sustain the Examiner’s rejection of all claims under the
judicially created doctrine of obviousness-type double patenting as being
unpatentable over the claims in U.S. Patent 7,590,589. In explaining this
rejection, the Examiner states that although the conflicting claims are not
identical, they are not patentably distinct from each other because both sets
of claims speak to “transferring. . . currency or cryptocurrency and claim 1
of the ‘589 patent’s recitation of ‘synthetic economic value’ reads on ‘wealth
generation function.’”
In evaluating obviousness-type double patenting, the Federal Circuit
has “endorsed an obviousness determination similar to, but not necessarily
the same as, that undertaken under 35 U.S.C. § 103 in determining the
propriety of a rejection for double patenting.” In re Braat, 937 F.2d 589,
592-93 (Fed. Cir. 1991). Thus, in making an obviousness-type double
patenting rejection, the Examiner must show that a claimed invention is “a
mere variation of [the patented invention] . . . which would have been
obvious to those of ordinary skill in the relevant art . . . [and] there must be
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some clear evidence to establish why the variation would have been obvious
which can properly qualify as ‘prior art.”’ In re Kaplan, 789 F.2d 1574,
157–80 (Fed. Cir. 1986). Accordingly, in Kaplan, the Federal Circuit
reversed an obviousness-type double patenting rejection “because there
[was] no proper evidence to show that the claim [was] for a mere obvious
variation of what is claimed in the Kaplan patent relied on to support the
rejection.” Id. at 1581.
Here, the Examiner has not established that the claimed invention is a
mere variation of the ’589 patent. In this regard, the Examiner has not
established by clear evidence that the variation recited in the appealed claims
would have been obvious in view of the claims of the ’589 patent. In fact,
the Examiner has not addressed the differences between the instant claims
and the ‘589 patent. Therefore, this rejection cannot stand.

35 U.S.C. §103 REJECTION
We will not sustain this rejection because we agree with Appellant
that the prior art does not disclose a virtual cryptocurrency or a wealth
generation function. The Examiner relies on Wu at Figure 2 items s5–s9 for
teaching this subject matter. (Final Act. 8). Although this portion of Wu
discloses generation of virtual currency, there is not disclosure of virtual
cryptocurrency nor is there a disclosure of a wealth generation function. As
such, Wu does not disclose generating the virtual cryptocurrency based on at
least the processing of parameters of the delegable wealth generation
function. Therefore we will not sustain this rejection as it is directed to
claim 6 and claims 7–13, 21, and 22 dependent therefrom. We will also not
sustain this rejection as it is directed to claims 23–30, and 32 because each
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of these claims requires the subject matter which we have found lacking in
Wu.
CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting all the claims under
35 U.S.C. § 101.
We conclude the Examiner did err in rejecting all the claims under the
judicially created doctrine of obvious-type double patenting.
We conclude the Examiner did err in rejecting all the claims under 35
U.S.C. §112, second paragraph.
We conclude that Examiner did err in rejecting claims 6-13, 21-30 and
32 under 35 U.S.C. §103(a).

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
6–13, 21–
30, 32, 33
101 Eligibility 6–13, 21–
30, 32, 33

6–13, 21–
30, 32, 33
112(a) Written description 6–13, 21–
30, 32, 33
6–13, 21–
30, 32, 33
N/A Non-statutory
double patenting
6–13, 21–
30, 32, 33
6–13, 21–
30, and 32
103(a) Wu, Keiser,
Schirripa
6–13, 21–30
and 32
Overall
Outcome
6–13, 21–
30, 32, 33

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