Howard Locker et al.

Patent Trials and Appeals Board

Aug 26, 2019

13961542 - (D) (P.T.A.B. Aug. 26, 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.
13/961,542 08/07/2013 Howard Locker RPS920130064USNP(710.246) 4167
58127 7590 08/26/2019
FERENCE & ASSOCIATES LLC
409 BROAD STREET
PITTSBURGH, PA 15143
EXAMINER
LAMARDO, VIKER ALEJANDRO
ART UNIT PAPER NUMBER
2124
MAIL DATE DELIVERY MODE
08/26/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HOWARD LOCKER,
RICHARD WAYNE CHESTON, GORAN HANS WIBRAN, and
JOHN WELDON NICHOLSON
___________

Appeal 2018-0085651
Application 13/961,5422
Technology Center 2100
_________________

Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–20 (all pending claims). Final Act. 1; App. Br. 14. We
have jurisdiction under 35 U.S.C. § 6.
We affirm.

1 In this Decision, we refer to Appellants’ Appeal Brief (“App. Br.,” filed
February 6, 2018) and Reply Brief (“Reply Br.,” filed August 20, 2018); the
Final Office Action (“Final Act.,” mailed September 6, 2017); the
Examiner’s Answer (“Ans.,” mailed June 20, 2018); and the originally filed
Specification (“Spec.,” filed August 7, 2013).
2 Appellants assert Lenovo (Singapore) PTE. LTD. is the real party-in-
interest. App. Br. 3.
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STATEMENT OF THE CASE
Introduction
Appellants’ recited method, computer-readable medium, and
apparatus relate to “Device Implemented Learning Validation.” Spec. 1
(title). According to Appellants, when testing in a learning environment, it
is common that a human proctor monitors students to ensure no student is
gaining an unfair advantage. Id. ¶ 1. More recent learning environments
may use computing devices (workstations and mobile devices) to provide
distance learning environments. Id. ¶ 2. In such distance learning
environments verification of a person’s identity and validation that the
person is not receiving extraneous coaching from an unauthorized source
presents problems. Id. ¶ 3.
Appellants claim to address such problems by collecting input from
one or more audio and/or video sensors and processing the collected inputs
to detect unauthorized behavior patterns of the person. Id. ¶ 4. For example,
detecting audio inputs may suggest a person is being coached by another
person. Id. ¶ 26. According to Appellants, in response to detecting such
unauthorized behavior, an appropriate responsive action may be selected.
Id. ¶ 4. For example, responsive to detecting an unauthorized behavior
pattern, the person may be flagged as suspicious and/or video inputs may be
reviewed by a proctor to watch the person. Id. ¶ 26.
As noted above, claims 1–20 are pending of which claims 1, 11, and
20 are independent. Claim 1, reproduced below, is representative.
1. A method, comprising:
collecting, at one or more device sensors, one or more
inputs selected from the group of inputs consisting of audio
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inputs from a testing environment and visual inputs from a
testing environment;
identifying, based upon the one or more inputs and using
one or more processors, that the one or more inputs is associated
with an unauthorized user behavior pattern associated with the
testing environment and a confidence level that the one or more
inputs is associated with an unauthorized user behavior pattern;
mapping, using the one or more processors, the
unauthorized user behavior pattern to a predetermined action,
wherein the predetermined action is selected based upon the
unauthorized user behavior pattern and the confidence level; and
executing the predetermined action.
App. Br. 33. Independent claim 10 recites an information handling device,
including a processor and memory, operable to perform functions similar to
the steps of claim 1. Id. at 35. Independent claim 20 recites a storage
medium embodying software operable to perform functions similar to the
steps of claim 1. Id. at 37.

Rejections
The Examiner rejects all claims (1–20) under 35 U.S.C. § 101 as
reciting patent ineligible subject matter. Final Act. 2–4.
The Examiner rejects claims 1, 5, 7, 9, 11, 15, 17, and 20 under
35 U.S.C. § 103 as obvious over Angell et al. (U.S. Patent No. 7,908,237
B2) (“Angell”), Xie et al. (U.S. Patent No. 8,595,834 B2) (“Xie”), Noble et
al. (U.S. Patent No. 8,706,827 B1) (“Noble”) and Kaufman et al. (U.S.
Patent Publication No. 2014/0272882 A1) (“Kaufman”). Id. at 4–10.
The Examiner rejects claims 2–4 and 12–14 under 35 U.S.C. § 103 as
obvious over Angell, Xie, Noble, Kaufman, and Bakis et al. (U.S. Patent No.
6,959,095 B2) (“Bakis”). Id. at 10–13.
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The Examiner rejects claims 6, 10, 16, and 19 under 35 U.S.C. § 103
as obvious over Angell, Xie, Noble, Kaufman, and Flaks et al. (U.S. Patent
No. 8,676,581 B2) (“Flaks”). Id. at 13–16.
The Examiner rejects claims 8 and 18 under 35 U.S.C. § 103 as
obvious over Angell, Xie, Noble, Kaufman, and Lee et al. (U.S. Patent
Publication No. 2014/0341473 A1) (“Lee”). Id. at 17–18.

ANALYSIS
We review the appealed rejection for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). Arguments not made are waived. See 37 C.F.R.
§ 41.37(c)(1)(iv). Unless otherwise indicated, we adopt the Examiner’s
findings in the Final Office Action and the Answer as our own and add any
additional findings of fact appearing below for emphasis.
We address the rejections below.

1. Section 101 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. See, 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 Alice and Mayo.
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Id. 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 recites. 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.”).
If the claim recites an abstract idea, we turn to the second step of the
Alice and Mayo framework, in which “we must examine the elements of the
claim to determine whether it contains an ‘inventive concept’ sufficient to
‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an
abstract idea must include ‘additional features’ to ensure ‘that the [claim] is
more than a drafting effort designed to monopolize the [abstract idea].’” Id.
(quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer
implementation[] fail[s] to transform that abstract idea into a patent-eligible
invention.” Id.
The Office recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (hereinafter “Guidance”).3 Under the Guidance, in
determining whether a claim falls within an excluded category, we first look
to whether the claim recites:

3 This Guidance supersedes previous guidance memoranda. Guidance, 84
Fed. Reg. at 51 (“All USPTO personnel are, as a matter of internal agency
management, expected to follow the guidance.”).
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(1) Step 2A — Prong One: any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain
methods of organizing human activity, such as a fundamental
economic practice, or mental processes); and
(2) Step 2A — Prong Two: additional elements that integrate the
judicial exception into a practical application (see MPEP4
§ 2106.05(a)–(c), (e)–(h)).
See Guidance, 84 Fed. Reg. at 54–55 (“Revised Step 2A”). Only if a claim
(1) recites a judicial exception and (2) does not integrate that exception into
a practical application, do we then look to whether the claim (Step 2B):
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See id. at 56 (“Step 2B: If the Claim Is Directed to a Judicial Exception,
Evaluate Whether the Claim Provides an Inventive Concept.”).
Appellants do not separately argue the claims with respect to the
§ 101 rejection. See App. Br. 15–25. We select claim 1 as representative.
As an initial matter, the claims must recite at least one of four
recognized statutory categories, namely, machine, process, article of
manufacture, or composition of matter. MPEP § 2106(I); see 35 U.S.C.
§ 101. Here, independent claims 1, 11, and 20 recite a method (i.e., a
“process”), an information handling system (i.e., a “machine”), and a
computer-readable medium (i.e., an “article of manufacture”), respectively.
Thus, the pending claims recite recognized statutory categories of § 101 and

4 All Manual of Patent Examining Procedure (“MPEP”) citations herein are
to MPEP, Rev. 08.2017, January 2018.
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we turn to the two-step Alice/Mayo analysis applied in accordance with the
Office Guidance.

A. Step 2A
Applying the first step of the Alice/Mayo analysis, the Examiner finds
“[c]laims 1–20 are directed to ‘An Idea “Of Itself.”’ Final Act 2. The
Examiner analogizes the claims to “collecting and analyzing information to
detect misuse and notifying a user when misuse is detected.” Id. at 3 (citing
Fairwarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 (Fed. Cir. 2016)).
Appellants argue the Examiner’s characterization of the claims “is a
broad overgeneralization” (App. Br. 155) and the Examiner does not identify
any particular abstract idea defined by the courts (id. at 16–17). Appellants
argue the claims are not “directed to a concept which the courts have found
to be abstract ideas.” App. Br. 19.
Rather, Applicant respectfully submits that the claims are
directed to a technique for validating user behavior in a
testing environment using devices using input collected
from devices within a testing environment and identifying
whether those inputs are associated with an unauthorized
user behavior pattern and a confidence level associated
with this identification and then performing an action
based upon an action mapped to the unauthorized user
behavior pattern.
App. Br. 19. Appellants further argue the claims are directed to
“technological improvements to the technological field of learning

5 Substantively, Appellants’ Reply Brief repeats the arguments presented in
its Appeal Brief. See Reply Br. 17. Therefore, although we have reviewed
Appellants’ Reply Brief, we address Appellants’ arguments as presented in
its Appeal Brief.
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validation.” Id. Appellants contend “the claims are directed to an
improvement in existing computer technology, as the specification identifies
benefits of the currently claimed limitations over conventional techniques
for learning validation.” Id. at 20–21 (citing Spec. ¶¶ 1–3, 15, 16).
Appellants further contend that the “claims provide a technological
improvement over existing techniques for learning validation” (id. at 21) and
that the claims do not cover all types of learning but are “delimited to a
particular improvement” (id. at 22). Still further, Appellants argue “the
claims are directed to a specific solution to a problem and are thus directed
to improvements in a technological field, specifically, the technological field
of learning validation.” Id. at 22–23.
We are not persuaded by Appellants’ arguments.

Prong One
Independent method claim 1 recites the following steps:
(1) “collecting . . . one or more inputs selected from the group of inputs
consisting of audio inputs . . . and visual inputs” (the inputs from a testing
environment); (2) “identifying . . . that the one or more inputs is associated
with an unauthorized user behavior pattern . . . and a confidence level that
the one or more inputs is associated with an unauthorized user behavior
pattern”; (3) “mapping . . . the unauthorized user behavior pattern to a
predetermined action, wherein the predetermined action is selected based
upon the unauthorized user behavior pattern and the confidence level”; and
(4) “executing the predetermined action.” The identifying and mapping
steps are expressly recited as using “one or more processors” whereas the
collecting and executing steps do not expressly recite use of processors.
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First, we agree with the Examiner that the steps recite “an idea of
itself” (Final Act. 2), which, in context, we discern is a mental process that
may be performed by a human with or without pen and paper. The recited
steps may be performed by a human proctor physically present in a testing
environment. Collecting audio and/or video inputs may be performed by a
human proctor listening and watching the test takers. The human proctor
may identify unauthorized user behavior pattern from those inputs by
determining, for example, that a test taker is improperly speaking to others,
improperly listening to others, or improperly looking away from a test
material. The human proctor may then determine an appropriate action such
as warning the test taker about the unauthorized user behavior or other
appropriate action, and take that action.
To the extent claim 1 refers to use of a computer (“one or more
processors”), the claim does not require any particular, innovative use of a
computer. The use of a processor to identify an unauthorized use behavior
pattern may simply refer to a processor, attached to cameras and
microphones, used by a human proctor physically present at the testing
environment to assist the proctor in listening and viewing the test takers—
generic components used in a known manner. Even if the human proctor
uses the processor to listen to and watch the test takers from a remote
location, a potential limitation not recited by claim 1, such remote use of a
computer via a network uses generic components in a known manner—i.e.,
computer networks.
Therefore, disregarding the generic use of a processor in the method
steps, the entire process may be performed by a human mentally with or
without pen and paper. Undoubtedly, performing the claimed method using
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a processor enables the monitoring of test takers to proceed faster and to
analyze a larger volume of information. However, “[i]f a claim, under its
broadest reasonable interpretation, covers performance in the mind but for
the recitation of generic computer components, then it is still in the mental
processes category unless the claim cannot practically be performed in the
mind.” Guidance, 84 Fed. Reg. at 52 n.14 (citing Intellectual Ventures I
LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (‘‘[W]ith the
exception of generic computer implemented steps, there is nothing in the
claims themselves that foreclose them from being performed by a human,
mentally or with pen and paper.’’)).
As discussed supra, the recited steps of collecting information (an
observation), identifying (evaluation); mapping (judgment about what to
do), are mental processes determined to be abstract ideas such that claim 1
recites an abstract idea. Thus, in accordance with the Guidance, claim 1
falls within the judicial exception category of a mental process and,
therefore, recites an abstract idea.

Prong Two
In Prong Two, we determine whether the claim recites “additional
elements that integrate the exception into a practical application.” Guidance,
84 Fed. Reg. at 54. Our Guidance identifies exemplary practical
applications as including:
1) Improvement in the functioning of a computer, or an improvement
to other technology or technical field;
2) Uses a judicial exception to effect a particular treatment or
prophylaxis for a disease or medical condition;
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3) Uses a judicial exception in conjunction with, a particular machine
or manufacture that is integral to the claim;
4) Transformation or reduction of a particular article to a different
state or thing; and
5) Uses a judicial exception in some other meaningful way beyond
generally linking the use of the judicial exception to a particular
technological environment.
Id. Our Guidance further identifies exemplary additional elements that are
not practical applications of a judicial exception as including:
1) An additional element that merely recites “apply it” or similar
language, or that merely includes instructions to implement tan
abstract idea on a computer, or that merely uses a computer as a
tool to perform an abstract idea;
2) An additional element that adds insignificant extra-solution
activity to the judicial exception; and
3) An additional element that does no more than generally link the
use of a judicial exception to a technological environment or
field of use.
Id.
Appellants argue the claims as a whole “represent an improvement to
the technical field of learning validation.” App. Br. 17; see also id. at 19,
21, 22. Appellants further argue the claims require more than a generic
computer “by determining whether a user is engaged in unauthorized
behavior [in] order to determine whether an action should be taken in
response to the user behavior.” Id. at 23.
The Examiner responds, noting that none of the claims even recite the
phrase “learning validation” and further argues the claims merely recite a
generic computer implementation of an abstract idea and do not improve the
functioning of a computer or improve another technology field. Ans. 20–21;
see also id. at 23, 24, 25.
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We agree with the Examiner. We discern nothing in the claims that
improves functionality of a computer or improves the purported technology
field of “learning validation.” The Specification makes clear that the
computing system (“one or more processors”) and other components (audio
and video sensors) used in steps of method claim 1 are generic computing
systems and components. See Spec. ¶¶ 18–23, Fig. 1. In like manner, the
components of independent apparatus claim 11 and independent product
claim 20 (storage device storing instructions) recite only generic
components. Neither the claims nor the Specification states that any of the
described embodiments necessarily invokes particular hardware or software
or, as discussed above, results in improvements in computer technology or
functions.
Initially, we are not persuaded that “learning validation” is a field of
technology. Furthermore, assuming, arguendo, that “learning validation” is
a technology field, we are not persuaded that claims improve that, or
another, technology field. As noted by the Examiner, none of the claims
recite “learning validation.” See, e.g., Ans. 20. Appellants describe existing
techniques for “learning validation” based on a human proctor performing
such validation in a testing environment and suggest problems with such a
human approach especially in a “distance learning” scenario. Spec. ¶¶ 1–3.
Thus, learning validation by a human proctor in a testing environment is
admitted as known by Appellants. The resolution to the alleged problems in
the “distance learning” environment is to apply generic computing and
sensor components, used in their normal modes of operation, to replace a
human proctor physically overseeing the testing environment. For example,
claim 1 does not require any particular, non-standard computing or sensor
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devices, used in a non-standard manner, to achieve a technological
improvement to the testing environment.
Thus, the claims do not provide meaningful limitations beyond
generally linking the use of the identified abstract idea to a particular
technological environment, i.e., learning validation. See MPEP
§ 2106.05(h).
Appellants’ claimed methods, apparatus, and storage device only use
the recited components (sensor(s), processor(s), and memory) to perform the
abstract idea of monitoring user activity for unauthorized user behavior
patterns. That is, the additional components “merely include[] instructions
to implement an abstract idea on a computer, or merely uses a computer as a
tool to perform an abstract idea.” Guidance, 84 Fed. Reg. at 55; see also
MPEP § 2016.05(f); Credit Acceptance Corp. v. Westlake Services, 859 F.3d
1044 (Fed. Cir. 2017) (using a computer as a tool to process an application
for financing a purchase).
In view of Appellants’ Specification, claims, and contentions, and
consistent with the Examiner’s determinations, we conclude the pending
claims do not recite:
(i) an improvement to the functioning of a computer;
(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 the abstract idea to a particular technological
environment.
See MPEP §§ 2106.05(a)–(c), (e)–(h). Thus, we conclude that the pending
claims do not integrate the judicial exception into a practical application.
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C. Step 2B
Having determined that the claims are directed to an abstract idea, we
apply the second step of the Alice/Mayo analysis. The Examiner finds the
claims do not include additional elements that are sufficient to amount to
significantly more than the abstract idea. Final Act. 3. In particular, the
Examiner finds the recited sensors, processors, and memory are insufficient
“to amount to significantly more than the judicial exception because the
additional elements when considered both individually and as an ordered
combination do not amount to significantly more than the abstract idea.” Id.
Appellants argue that, even if the claims include an abstract idea, they
represent significantly more than a claim to the abstract idea.” App. Br. 23.
In particular, Appellants argue claim 1 “requires something more than a
generic computer by determining whether a user is engaged in unauthorized
behavior in order to determine whether an action should be taken in response
to the user behavior.” Id. Appellants further argue, “if the elements as
claimed are considered known elements, Applicant respectfully submits that
these known elements are combined in a manner that is unconventional and
non-generic, and are, thus, directed to substantially more than any abstract
idea.” Id. at 24.
The Examiner responds:
Examiner respectfully disagrees, the additional
elements are one or more device sensors, one or more
processors, one or more of an audio sensor and a visual
sensor, a memory accessible to the one or more processors
storing instructions executable by the one or more
processors, and a storage device that is not a signal and
that stores code. All of these claimed elements are merely
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directed to a generic computer implementation that does
not amount to significantly more. Looking at the
limitations as an ordered combination adds nothing that is
not already present when looking at the elements taken
individually. There is no indication that the combination
of elements improves the functioning of a computer or
improves another technology. Their collective functions
merely provide conventional computer implementations.
Ans. 25–26.
For essentially the same reasons as discussed above in Prong Two of
Step 2A of the analysis, we agree with the Examiner and are unpersuaded by
Appellants’ arguments asserting the elements amount to significantly more
than a generic computer implementation. As the Federal Circuit has held,
“the use of conventional computer components, such as a database and
processors, operating in a conventional manner” “do[es] not confer patent
eligibility.” Intellectual Ventures I LLC v. Capital One Bank (USA), 792
F.3d 1363, 1371 (Fed. Cir. 2015). This is because “mere automation of
manual processes using generic computers does not constitute a patentable
improvement in computer technology.” Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017); see also Berkheimer
v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018).
Appellants do not identify and we do not discern where the
Specification or claims assert that any of the recited components, alone or in
combination, are not generic. To the contrary, as discussed above, the
Specification makes clear that only generic components (e.g., standard
computer system) perform the recited functions in Appellants’ claimed
invention. See Spec. ¶¶ 18–23, Fig. 1. Appellants’ arguments are devoid of
evidence that the claims change the operation of any recited technology or
technical field or improve the functioning of the computer itself. Instead,
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the recited sensors and one or more processors of claim 1 are merely tools to
collect and analyze data. In like manner, the instructions stored on a
memory or storage device as in claims 11 and 20 are merely generic tools
for collection and analysis of data.
Furthermore, Appellants do not show that the recited combinations of
these claimed elements operate in any way that is unconventional, non-
routine, or non-generic. See Alice, 573 U.S. at 222 (“In holding that the
process was patent ineligible, we rejected the argument that ‘implement[ing]
a principle in some specific fashion’ will ‘automatically fal[l] within the
patentable subject matter of § 101.’”) (quoting Parker v. Flook, 437 U.S.
584, 593 (1978)). Appellants’ argument merely recites or paraphrases the
claimed method steps as evidence that the combination of elements “is
unconventional and non-generic.” App. Br. 24.
Still further, Appellants argue, in essence, that the claims do not
preempt an entire field. App. Br. 22. However, the Examiner does not assert
that the claims preempt a field of technology. Furthermore, even if the
claims were understood to not preempt an entire field, as Appellants assert,
the courts do not use the absence of preemption as a stand-alone test for
patent eligibility. Although preemption “‘might tend to impede innovation
more than it would tend to promote it,’ thereby thwarting the primary object
of the patent laws” (Alice, 573 U.S. at 216 (quoting Mayo, 566 U.S. at 71)),
“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) (“[T]hat the claims do not preempt all price
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optimization or may be limited to price optimization in the e-commerce
setting do not make them any less abstract.”).

D. Conclusion Regarding § 101 Rejection
As noted supra, because Appellants do not argue independent claims
11 and 20 separate from arguments addressing independent claim 1, we
selected claim 1 as representative. On this record, we agree with the
Examiner that independent claims 1, 11, and 20 recite a mental process (an
idea of itself) as identified in the Guidance and, thus, recite an abstract idea.
Furthermore, we determine the claims do not recite limitations that amount
to significantly more than the abstract idea itself. Therefore, we are not
persuaded that the Examiner erred in determining that the independent
claims (1, 11, and 20) are patent ineligible, and we sustain the rejection of
those claims.
Appellants do not argue the eligibility of the dependent claims
separately and, therefore, we find that the dependent claims fall with their
respective base claims as reciting patent ineligible subject matter. Thus, we
sustain the rejection of the dependent claims as patent ineligible.

2. Section 103 Rejection
Appellants argue the obviousness rejection with respect to the
rejection of claim 1 and do not separately argue with particularity the
obviousness rejection of claims 2–20. See App. Br. 25–31. We select claim
1 as representative.
The Examiner finds Angell teaches the steps of collecting inputs from
sensors and identifying unauthorized user behavior from the collected
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inputs. Final Act. 5 (citing Angell 4:65–5:3, 5:42–48, 23:9–19, Figs. 1–3).
Further, the Examiner finds Angell does not expressly teach the mapping
and executing steps but Xie discloses these features. Id. at 5–6 (citing Xie
10:30–52). The Examiner argues the ordinarily skilled artisan would have
been motivated to combine Angell and Xie “because a more enhanced
learning system can be implemented to learn user-application profiles for
different users.” Id. at 6 (citing Xie 20:13–15).
The Examiner further relies on Noble, in combination with Angell and
Xie, to teach determining a confidence level in determining the user’s
behavior and finds the ordinarily skilled artisan would have been motivated
to combine Noble with Angel and Xie “because the ability to automatically
generate communications according to various patterns for various recipients
and/or contexts can provide various advantages over conventional
communication approaches.” Id. at 6–7 (citing Noble 2:53–56).
Lastly, the Examiner relies on Kaufman, in combination with Angell,
Xie, and Noble, to teach that the detected user behavior is associated with a
“testing environment” as claimed. Id. at 7–8 (citing Kaufman Abstract).
The Examiner further finds the ordinarily skilled artisan would have been
motivated to add Kaufman to the combination “because it allows for
improved proctoring of secure, web-based, examinations through the use of
a detection device and, among other things, object-recognition software.”
Id. at 8 (citing Kaufman ¶ 24).
A. Motivation
Appellants repeat the Examiner’s reasons ordinarily skilled artisans
would have been motivated to the combine the references and then argue,
Applicant respectfully submits that one skilled in the art
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would not be compelled to combine the teachings of
references that teach a system for detecting “unauthorized
use of a computing system” in the context of “detection of
malicious software,” Xie at Col. 4, Lns. 16 - 38, a system
for detecting unexpected behavioral patterns in a retail
environment, see Angell at Col. 2, Lns. 30 - 42, a system
for automatic communication generation with no
reference to a learning or testing environment, see Noble
at Abstract, and a system for detecting aberrant behavior
in an exam-taking environment, see Kaufman at [0010], in
order to create a system for device implemented learning
validation.
App. Br. 25–26. Appellants further argue the Examiner’s reasons for the
proposed combination are conclusory—devoid of evidentiary support. Id. at
26–27. Appellants contend the ordinarily skilled artisan would not have
been motivated to make the proposed combination “to address problems
related to device implemented learning validation.” Id. at 27 (citing Spec.
¶ 3 as discussing problems solved by the claims).
We are not persuaded by Appellants’ argument. The Examiner
identifies a reason for each proposed combination and cites a teaching in
each reference as support for the identified reason. Final Act. 6–8 (citing
Xie 20:13–15; Noble 2:53–56; Kaufman ¶ 25). A reason to combine
teachings from the prior art “may be found in explicit or implicit teachings
within the references themselves, from the ordinary knowledge of those
skilled in the art, or from the nature of the problem to be solved.” WMS
Gaming, Inc. v. Int'l Game Tech., 184 F.3d 1339, 1355 (Fed. Cir. 1999)
(citing Rouffet, 149 F.3d at 1355). Here, the Examiner has articulated a
reason to combine the references based on rational underpinnings—i.e.,
specific teachings in each of Xie, Noble, and Kaufman that the Examiner
argues would have motivated an ordinarily skilled artisan to make the
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combination. Appellants have not persuaded us the Examiner’s reasons are
in error. Contrary to Appellants’ argument, it is the Appellants, not the
Examiner, that presents us with an unsupported conclusory assertion that the
Examiner has failed to establish a motivation to combine the references.

B. No Missing Elements In Combination
Appellants argue “Rang in view of Bradford fails to teach, or even
suggest” the identifying step of claim 1. App. Br. 28. As noted by the
Examiner, there are no Rang or Bradford references relied upon by the
Examiner in this appeal. Ans. 28.
C. Analogous Art
Appellants argue Angell, Xie, and Noble art non-analogous art and,
thus, not properly prior art and only Kaufman relates to a testing
environment as claimed. App. Br. 28–30. In particular, Appellants argue
Angell, Xie, and Noble “cannot be considered analogous to a ‘device
implemented learning validation.’” Id. at 29.
The Examiner finds all the references are analogous in that they
“measure behavioral patterns of users.” Ans. 29.
We are not persuaded by Appellants’ argument that the references are
non-analogous. Appellants apparently understand the field of endeavor to be
“device implemented learning validation.” App. Br. 29. There are two
separate tests for determining whether a prior art reference is analogous: (1)
whether the art is from the same field of endeavor, regardless of the problem
addressed; and (2) if the reference is not within the inventor’s endeavor,
whether the reference is reasonably pertinent to the particular problem with
which the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
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2004). “A reference is reasonably pertinent if, even though it may be in a
different field from that of the inventor’s endeavor, it is one which, because
of the matter with which it deals, logically would have commended itself to
an inventor’s attention in considering his problem.” In re ICON Health and
Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007) (quotation marks and
citation omitted).
We disagree with Appellants’ narrow expression of the field of
endeavor and agree with the Examiner that the field of endeavor is more
broadly understood as measuring or monitoring patterns of user behavior.
Under this broader understanding of the field of endeavor, we determine
Angell, Xie, Noble, and Kaufman are all in the same field of endeavor as the
claimed invention. Appellants’ invention relates to identifying unauthorized
user behavior based on audio/video sensor inputs. Spec. Abstract. In like
manner, Angell relates to “[a] computer implemented method, apparatus,
and computer usable program product for identifying unexpected behavioral
patterns.” Angell Abstract. In like manner, Xie discloses [t]echniques for
detecting unauthorized use . . . of the computing systems.” Xie Abstract.
Noble discusses “a computing device can monitor behavior of a user to
determine patterns of communication behavior in certain situations.” Noble
Abstract. Kaufman discloses “[s]ystems and methods for detecting aberrant
behavior in a testing environment.” Kaufman Abstract.
Even if it is determined that the references are not in the same field of
endeavor as the claimed invention, the applied references are reasonably
pertinent to the particular problem with which the inventor is involved. The
particular problem inventors are addressing is automating the detection of
unauthorized user behavior based on audio and/or video sensor inputs. At
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least the above citations to the Abstract of each reference indicates that each
reference “would have commended itself to an inventor’s attention in
considering his problem.”
Thus, we determine Angell, Xie, Noble, and Kaufman are analogous
art and, therefore, qualified as prior art.

D. The Combination Teaches The Recited Confidence Level
Appellants argue the Examiner erred by relying on Noble for teaching
the recited confidence level but ignored the recitation that the confidence
level is associated with an unauthorized user behavior pattern. App. Br. 30–
31. Therefore, Appellants argue the Examiner ignored the unauthorized
recitation relating to the confidence level “because Noble is not even
remotely related to unauthorized user behavior patterns . . . [and] does not
look for unauthorized user behavior patterns.” Id. at 31. Thus, Appellants
argue the proposed combination fails to teach the claimed invention. Id.
The Examiner responds,
Examiner notes that Noble is relied upon for teaching “a
confidence level that the one or more inputs is associated
with an user behavior pattern”, and Angell is relied upon
for the “inputs is associated with an unauthorized user
behavior pattern associated with the environment”, the
combination of these references teach “confidence level
that the one or more inputs is associated with an
unauthorized user behavior pattern”.
Ans. 30. We agree with the Examiner and we are not persuaded by
Appellants’ argument that the Examiner erred. Appellants improperly attack
the references individually rather than addressing what the combined
references teach. See In re Keller, 642 F.2d 413 (CCPA 1981) and In re
Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986).
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E. Conclusion Regarding § 103 Rejections
In view of the above discussion, we sustain the Examiner’s rejection
of claim 1 under 35 U.S.C. § 103. For the same reasons, we sustain the
Examiner’s rejection of independent claims 11 and 20 and dependent claims
5, 7, 9, 15, and 17, dependent variously from claims 1 and 11.
Appellants do not argue the rejections of other dependent claims.
Accordingly, for the same reasons as claims 1 and 11 from which they
variously depend, we sustain the Examiner’s rejections of dependent claims
2–4, 6, 8, 10, 12–14, 16, 18, and 19.
DECISION
We affirm the Examiner’s decision rejecting claims 1–20 as ineligible
subject matter under 35 U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 1–20 as under
35 U.S.C. ¶ 103.
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