iHeartMedia Management Services, Inc.

Patent Trials and Appeals Board

Nov 25, 2020

2020002864 (P.T.A.B. Nov. 25, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/509,861 10/08/2014 Mikhail Lisovich 327-OMR-07-2009 9271
86548 7590 11/25/2020
Garlick & Markison (IH)
100 Congress Avenue, Suite 2000
Austin, TX 78701
EXAMINER
FEACHER, LORENA R
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
11/25/2020 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):
MMurdock@TEXASPATENTS.COM
bpierotti@texaspatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MIKHAIL LISOVICH, CHRISTOPHER KEUNE,
PHILIPPE GENERALI, JOAQUIN TORSIELLO,
JOHN FULBRIGHT, and DAVID C. JELLISON JR.
____________

Appeal 2020-002864
Application 14/509,861
Technology Center 3600
____________

Before EDWARD A. BROWN, BRETT C. MARTIN, and
WILLIAM A. CAPP, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
decision rejecting claims 1–12, 14–20, 22, and 23.2 We have jurisdiction
under 35 U.S.C. § 6(b).
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 iHeartMedia
Management Services, Inc. Appeal Br. 1.
2 Claims 13 and 21 have been cancelled. Final Act. 2.
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CLAIMED SUBJECT MATTER
Claims 1, 12, and 20 are independent. Claim 1, reproduced below
with reference letters added in brackets, illustrates the claimed subject matter
on appeal.
1. A method for digital-media content broadcast
comprising:
apportioning processing overhead associated with calculation of
audience metrics among a plurality of devices involved in
playback of digital-media content, wherein the processing
overhead is apportioned by:
[A] transmitting, to a plurality of digital-media content
playback devices, at predetermined time intervals, digital-media
content information indicating playback duration of each of a
plurality of digital-media content provided by at least one
digital-media content service via a broadcast digital-media
content stream broadcast by at least one of a real-time basis
through a network and locally through a local memory source,
the digital-media content information includes user
identification information associated with playback of at least
one digital-media content and the at least one digital-media
content service;
[B] receiving, at a processing system from individual
digital-media content playback devices, at the predetermined
time intervals, audience data identifying audience member
characteristics relating to the user identification information and
a number of a plurality of audience members that playback the
plurality of the digital-media content, the audience data
including a churn rate at least partially determined by each
individual digital-media content playback device;
[C] determining, at the processing system, a churn rate
based on a number of digital-media content switches for each of
the plurality of digital-media content by the plurality of
audience members;
[D] identifying, at the processing system, a digital media
content-of-interest of the plurality of digital-media content
relating to the plurality of audience members;
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[E] factoring, at the processing system, the chum rate of
the digital media content-of-interest based on chum rates of a
plurality of digital-media content adjacent to the digital media
content-of-interest to produce a factored chum rate for the
digital media content-of-interest;
[F] determining, at the processing system, audience
metrics based upon the factored churn rate and the audience
member characteristics for the digital media content-of-interest
to produce an audience member retention relating to the digital
media content-of-interest; and
[G] providing, from the processing system, the audience
metrics relating to the digital media content-of-interest for
basing subsequent broadcast of the digital media content-of
interest.
Appeal Br. (Claims App.).

REJECTION ON APPEAL
Claims 1–12, 14–20, 22, and 23 are rejected under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter.

ANALYSIS
2019 Guidance
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 Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
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Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219.
Concepts that have been determined to be abstract ideas, and thus
patent-ineligible, include certain methods of organizing human activity
(Alice, 573 U.S. at 219–20; Bilski v. Kappos, 561 U.S. 593 (2010));
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
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.
Under the 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (issued January 7, 2019) (hereinafter “Guidance”), Step 2A,
Prong 1, of the Guidance involves first determining whether the claim
recites any judicial exception, including certain groupings of abstract ideas
(i.e., mathematical concepts, certain methods of organizing human activities,
or mental processes). See id. at 52.
If the claim is determined to recite a judicial exception, Step 2A,
Prong 2, of the Guidance involves next determining whether the claim
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recites additional elements that integrate the judicial exception into a
practical application. See 84 Fed. Reg. 52; see also MPEP § 2106.05(a)–(c),
(e)–(h).
Only if the claim both recites a judicial exception and fails to integrate
the judicial exception into a practical application, do we proceed to Step 2B
of the Guidance. At Step 2B, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or
simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception. See 84 Fed. Reg. 56.

Claim Grouping
Appellant argues claims 1–12, 14–20, 22, and 23 as a group. Appeal
Br. 6–12. Appellant also states what claims 12 and 20 recite. Id. at 10, 12–
13. We do not consider Appellant’s statements for claims 12 and 20 as an
argument for separate patentability. Accordingly, we select claim 1 as
representative of the group to decide the appeal of the rejection, with claims
2–12, 14–20, 22, and 23 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv)(“Under each heading identifying the ground of rejection
being contested, any claim(s) argued separately or as a subgroup shall be
argued under a separate subheading that identifies the claim(s) by number.
A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”).

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Step 1— Statutory Category
Claim 1 and dependent claims 2–11 recite “[a] method for digital-
media content broadcast,” claim 12 and dependent claims 14–19 recite “[a]
method for execution in a digital-media content playback device,” and claim
20 and dependent claims 22 and 23 recite “[a] digital-media content
playback device.” Appeal Br. (Claims App.). Thus, all claims on appeal are
directed to one of the statutory classes of subject matter eligible for
patenting under 35 U.S.C. § 101.

Step 2A, Prong 1—Recitation of Judicial Exception
The Examiner determines that claim 1 recites a judicial exception;
namely, an abstract idea. Final Act. 5. First, limitation D recites
“determining . . . a churn rate based on a number of digital-media content
switches for each of the plurality of digital-media content by the plurality of
audience members,” and limitation F recites “factoring . . . the churn rate of
the digital media content-of-interest based on churn rates of a plurality of
digital-media content adjacent to the digital media content-of-interest to
produce a factored churn rate for the digital media content-of-interest.”
Appeal Br. 13 (emphasis added). The Examiner construes “determining a
churn rate” and “factoring the churn rate,” as recited in limitations D and F,
as mathematical relationships/operations. Final Act. 5. The Examiner
determines that these limitations within the mathematical concepts grouping
of abstract ideas, which includes mathematical relationships, mathematical
formulas or equations, and mathematical calculations. Id.; See 84 Fed. Reg.
52; MPEP § 2106.04(a)(2)(I).
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Second, limitation E of claim 1 recites “identifying . . . a digital media
content-of-interest of the plurality of digital-media content relating to the
plurality of audience members,” and limitation G recites “determining . . .
audience metrics based upon the factored churn rate and the audience
member characteristics for the digital media content-of-interest to produce
an audience member retention relating to the digital media content-of-
interest.” Appeal Br. 13 (emphasis added). The Examiner construes
“identifying a digital media content of interest” and “determining audience
metrics,” as recited in limitations E and G, respectively, as covering the
performance of the limitations in the mind, but for the recitation of generic
computer components (e.g., “a processing system”).3 Final Act. 5. The
Examiner explains, “in identifying content of interest a user is analyzing the
digital media content which can be performed in the mind.” Id. The
Examiner determines that limitations E and G fall within the mental
processes grouping of abstract ideas—concepts performed in the human
mind, including an observation, evaluation, judgment, or opinion. Id.;
see 84 Fed. Reg. 52; MPEP § 2106.04(a)(2)(III).4

3 Although limitations D and F of claim 1 recite “determining” and
“factoring” “at the processing system,” this alone does not establish that
these limitations do not recite mental steps. See, e.g., Versata Dev. Grp. v.
SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have
examined claims that required the use of a computer and still found that the
underlying, patent-ineligible invention could be performed via pen and paper
or in a person’s mind.”); see also MPEP § 2106.04(a)(2)(III)(C).
4 Claims have been determined to recite more than one judicial exception.
See Genetic Techs. Ltd. v. Merial LLC, 818 F.3d 1369, 1374–75, 1378 (Fed.
Cir. 2016) (Claim to a method for analyzing DNA recited both a law of
nature and a mental process.); Planet Bingo, LLC v. VKGS LLC, 576 F.
App’x 1005, 1007–08 (Fed. Cir. 2014) (Claims to methods and systems of
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Appellant acknowledges that the Examiner has determined that
claim 1 recites “multiple judicial exceptions.” Appeal Br. 10. Appellant
does not, however, contest the Examiner’s determination that claim 1 recites
the abstract ideas discussed above, and thus, does not apprise us of Examiner
error for Step 2A, Prong 1.5

Step 2A, Prong 2—Practical Application of Judicial Exception
Under the Guidance, the next determination is whether claim 1, as a
whole, integrates the recited judicial exception into a practical application.
This determination involves: (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception; and
(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
See 84 Fed. Reg. 54–55. An exemplary consideration indicative of an
additional element (or a combination of elements) that may integrate the
exception into a practical application is an additional element that reflects an
improvement in the functioning of a computer, or an improvement to other
technology or technical field. See id. at 55.
The Examiner determines that claim 1 does not integrate the recited
judicial exception into a practical application. Final Act. 5. The Examiner

managing a game of bingo recited mental processes and methods of
organizing human activity.)
5 Only those arguments actually made by Appellant have been considered in
this decision. Arguments that Appellant could have made, but chose not to
make in the Appeal Brief, have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv); see also In re Jung, 637 F.3d 1356,
1365 (Fed. Cir. 2011); Ex Parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI
2010, precedential).
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determines that claim 1 recites the additional elements of “transmitting to a
plurality of digital-media content playback devices” (limitation B),
“receiving, at a processing system from individual digital-media content
playback devices” (limitation C), and “providing from the processing device
[sic]” (limitation H). Id. Additionally, the Examiner indicates that “a
plurality of digital-media content playback devices” and “a processing
system” are additional elements. Ans. 3. The Examiner determines that the
recited additional elements do not add meaningful limits to practicing the
abstract ideas. Final Act. 5–6.
Appellant contends that the Examiner has misapplied the procedures
for determining patent eligibility as set forth in the Guidance. Appeal Br. 9.
Particularly, Appellant notes that “revised Step 2A specifically excludes
consideration of whether the additional elements represent well-understood,
routine, conventional activity. Instead, analysis of well-understood, routine,
conventional activity is done in Step 2B.” Id. (citing 84 Fed. Reg. 55).
Appellant also notes that the Examiner determined that the recited additional
elements are “generic computer components” “performing generic computer
functions.” Id. (citing Final Act. 3–4). According to Appellant, the
Guidance “explicitly exclude[s] consideration of whether recited elements
are generic - i.e. well-understood, routine, or conventional, when whether
[sic] the claims integrate the abstract concept into a practical application.”
Id. (emphasis added).
In response, the Examiner denies that the Final Action provides any
statement as to whether the additional elements were well-understood,
routine or conventional under Step 2A, Prong 2 or Step 2B. Ans. 3. Rather,
the Examiner explains, claim 1 recites generic computer components as
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performing generic computer functions, where the components “are merely
used as a tool to implement the abstract concepts and generally link the use
of the judicial exception to a particular technological environment.” Id. at 4.
Appellant replies that the term “‘generic’ is a synonym for ‘well-understood,
routine, or conventional.’” Reply Br. 3.
We are unpersuaded by Appellant that the Examiner determined that
the computer components recited in claim 1 are well-understood, routine, or
conventional, much less that the Examiner relied on such determination in
determining that claim 1 does not integrate the judicial exception into a
practical application, for Step 2A, Prong 2, of the analysis. Rather, the
Examiner refers to these computer components as “generic.” As for these
computer components, the Specification discloses that the digital-media
content playback devices may be provided, for example, as a desktop
computer (Spec. ¶ 99), a standalone high-definition monitor (id. ¶100), or a
handheld media unit (id. ¶ 103). The Specification also discloses that “any
of a wide variety of digital-media content playback capable devices may
incorporate various embodiments presented herein.” Id. ¶ 106. The
description of the digital-media content playback devices that may be used
does not appear to indicate that these devices be more than generic
components. The description of the processing system that may be used
likewise does not appear to indicate that the system requires more than
generic components. See, e.g., Spec. ¶ 90. Appellant does not persuade us
that claim 1 calls for more than generic components.
Appellant also contends that limitation A, which recites “apportioning
processing overhead associated with calculation of audience metrics among
a plurality of devices involved in playback of digital-media content”
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(“apportioning step”), integrates the identified judicial exception into a
practical application. Appeal Br. 10. According to Appellant, the claimed
invention apportions the steps of “determin[ing] a churn rate, identify[ing] a
digital media content-of-interest, and factor[ing] the churn rate and
determining audience metrics” “among multiple devices, and in so doing
provides a media delivery system having improved functionality.” Id.
These steps correspond to limitations D–G, which the Examiner has
determined recite abstract ideas.
Appellant notes that paragraph 141 of the Specification discloses that
“[t]he division of the processing further expedites the retrieval of audience
metrics, bringing the evaluation of the information to a near real-time
evaluation.” Appeal Br. 10–11 (emphasis omitted).
The Examiner submits that the apportioning step of claim 1 is for
“calculation of audience metrics,” which is part of the abstract idea. Ans. 4.
The Examiner further submits that limitations B–F recite at least two devices
(i.e., “individual digital-media content playback devices”) involved in
calculating metrics and reporting data, which merely utilizes the devices to
apply/implement the abstract idea. Id. at 4–5. Thus, the Examiner maintains
that the judicial exception is not integrated into a practical application. Id.
at 5. Appellant replies, “[a]pportioning processing overhead cannot be part
of the abstract idea, because apportioning processing overhead is not
included in the list of judicial exceptions.” Reply Br. 4 (citing 84 Fed.
Reg. 54).
As understood, it is Appellant’s position that “apportioning processing
overhead” is not, itself, explicitly identified as one of the certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods of organizing
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human activities, or mental processes) set forth in the Guidance, and thus
cannot be part of the abstract idea. However, claim 1 recites in limitation A
that “the processing overhead is apportioned by” limitations B–H following
limitation A, which recite how the “apportioning” is done. The Examiner
has determined that limitations D–G recite abstract ideas, and thus,
“apportioning processing overhead” involves a judicial exception. Appellant
has not explained persuasively why the Examiner’s determination regarding
limitations D–G is incorrect.
The Examiner disagrees that the claimed method provides improved
functionality of a media delivery system. Ans. 5; Appeal Br. 10–11 (quoting
Spec. ¶ 141). The Examiner states, “[t]he apportioning covers all the steps
in the claim. The claim covers multiple devices reporting back metrics that
are ‘received’. Merely receiving metrics from multiple devices does not
improve the technology.” Ans. 5. The Examiner submits that each of the
digital-media content playback devices performs its own calculations (e.g.,
churn rate), and transmits (audience data) to the processing system for
further analysis such that the processing is apportioned among the plurality
of devices. Id. at 6. The Examiner determines that generic computer
components perform the recited transmitting, receiving, determining,
identifying, factoring, and providing, and thus, determines that the claim
utilizes client devices/computers (e.g., generic computer components) to
apply/implement the abstract idea. Id.
Accordingly, the Examiner’s position is that the additional elements
recited in claim 1: (a) merely use generic computer components as a tool to
perform the identified abstract ideas and (b) merely generally link the use of
the abstract ideas to a particular technological environment or field of use.
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Ans. 6–7. The Examiner does not state or imply that the generic computer
components are “well-understood, routine, or conventional” components, as
asserted by Appellant. According to the Guidance, determinations (a) and
(b) correspond to two examples that courts have identified as not integrating
a judicial exception into a practical application. See 84 Fed. Reg. 55.
Additionally, the Examiner determines that limitations C and H of
claim 1 are insignificant extra-solution activity. Final Act. 3. Limitation C
recites, in part, “receiving at a processing system from individual digital-
media content playback devices, at the predetermined time intervals,
audience data . . . the audience data including a chum rate at least partially
determined by each individual digital-media content playback device”; and
limitation H recites “providing, from the processing system, the audience
metrics relating to the digital media content-of-interest for basing subsequent
broadcast of the digital media content-of-interest.” Appeal Br. 13–14.
Accordingly, limitation C involves receiving data at the processing system
from individual digital-media content playback devices, and limitation H
involves providing audience metrics, as determined by limitation G, from
the processing system. As explained in the Guidance, an additional element
that adds insignificant extra-solution activity to a judicial exception
corresponds to another example that courts have identified as not integrating
a judicial exception into a practical application. See 84 Fed. Reg. 55.
Appellant does not provide any persuasive argument why the Examiner’s
determination regarding limitations C and H is incorrect. We agree with the
Examiner that performing insignificant extra-solution activities using the
recited generic components fails to integrate the judicial exception into a
practical application. See 84 Fed. Reg. 55 n.31.
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Claim 1 recites “a plurality of digital-media content playback
devices.” The Examiner determines that limitations B–F of claim 1 require
using at least two individual digital-media content playback devices. Ans.
4–5. As for Appellant’s contention that limitation A integrates the identified
judicial exception into a practical application, in that apportioning
limitations D, E, and F among multiple devices “provides a media delivery
system having improved functionality,” we are unpersuaded for several
reasons. First, claim 1 recites that each of limitations D, E, F is executed “at
the processing system.” Second, limitation C recites, “the audience data
including a churn rate at least partially determined by each individual
digital-media content playback device.” Appeal Br. 13 (emphasis added).
This language of limitation C does not require the individual digital-media
content playback devices to be more than minimally involved in the
determination of the churn rate. Third, the method as recited in claim 1 does
not require the use of more than two digital-media content playback devices,
as noted by the Examiner. We also are unpersuaded that paragraph 141 of
the Specification cited by Appellant sets forth an improvement in technology
with sufficient detail that one of ordinary skill in the art would recognize the
method, as recited in claim 1, as providing the purported improvement.
Accordingly, we are unpersuaded that the additional elements recited
in claim 1 necessarily reflect an improvement in the functioning of a
computer, or an improvement to other technology, or that claim 1, as a
whole, integrates the judicial exception into a practical application of the
exception. That is, we determine that the claim 1 “directed to” the judicial
exception. See 2019 Guidance at 54.

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Step 2B – Inventive Concept
The next consideration is whether claim 1 adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field. See 84 Fed. Reg. 56. The Examiner determines
that the claim does not recite additional elements that are sufficient to
amount to significantly more than the judicial exception. Final Act. 6. The
Examiner reiterates that the additional elements are generic components
performing generic computer functions, thus amounting to no more than
instructions to apply/implement the judicial exception using generic
computer components. Id.
Appellant contends that because the claims are not directed to an
abstract concept, no additional analysis under Step 2B is required. Appeal
Br. 11. This contention is unpersuasive for the reasons discussed above.
Appellant also contends that limitation A of claim 1 is not addressed by the
Examiner. Id. Appellant again contends that the claim “recite[s] an
improvement in the functioning of a media delivery system, that is achieved
by apportioning the processing overhead.” Id. at 12 (citing Spec. ¶ 141).
Appellant does not persuasively argue that the additional claim
elements, as determined by the Examiner, are sufficient to amount to
significantly more than the abstract idea itself. Rather, Appellant is
effectively relying on the application of the abstract ideas recited in the
claimed method, as determined by the Examiner, as the alleged inventive
concept. Appellant does not show persuasively that the abstract ideas
recited in claim 1 are applied using techniques that are not conventional and
well-understood. To the extent Appellant is relying on the claim limitations
that recite the abstract idea as providing significantly more, “[i]t has been
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clear since Alice that a claimed invention’s use of the ineligible concept to
which it is directed cannot supply the inventive concept that renders the
invention ‘significantly more’ than that ineligible concept.” BSG Tech LLC
v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018); Synopsys, 839
F.3d at 1151 (“[A] claim for a new abstract idea is still an abstract idea.”).
We agree with the Examiner that, as disclosed, the claimed method can use
generic components as a tool to perform the abstract idea, which use does
not transform the claim into a patent-eligible application of the abstract idea.
Alice, 573 U.S. at 212.
Thus, we sustain the rejection of claim 1 under 35 U.S.C. § 101.
Claims 2–12, 14–20, 22, and 23 fall with claim 1.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–12, 14–20,
22, 23
101 Eligibility 1–12, 14–
20, 22, 23

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.
§ 1.136(a)(1)(iv).

AFFIRMED