INTERNATIONAL BUSINESS MACHINES CORPORATION

Patent Trials and Appeals Board

Apr 15, 2020

14037720 - (D) (P.T.A.B. Apr. 15, 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.
14/037,720 09/26/2013 Shiwan Zhao CN920120076US1
(163-744)
8907
49267 7590 04/15/2020
Tutunjian & Bitetto, P.C.
401 Broadhollow Road
Suite 402
Melville, NY 11747
EXAMINER
POINVIL, FRANTZY
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
04/15/2020 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):
docketing@tb-iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte SHIWAN ZHAO, XIAN WU, and QUAN YUAN
________________

Appeal 2019-002188
Application 14/037,720
Technology Center 3600
________________

Before JOHN A. EVANS, JASON J. CHUNG, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–10. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
INVENTION
The invention relates to data analysis. Spec. ¶ 1. Claim 1 is
illustrative of the invention and is reproduced below:
1. A computer implemented data analysis method,
comprising:
acquiring, by an acquisition module with a user input
device, a user's sample data, wherein the user's sample data
contains positive sample data and negative sample data, the

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, International Business Machines
Corporation is the real party in interest. Appeal Br. 3.
Appeal 2019-002188
Application 14/037,720

2
positive sample data includes user preferred items and the
negative sample data includes user disliked items;
selecting, by a selection module, discriminative features
from the user's sample data, wherein the discriminative features
include features having discrimination capability for
discriminating items as the user preferred items and as the user
disliked items;
determining, by a determination module, for at least one
target analysis item, whether it has at least one discriminative
feature;
correlating, by a correlation module, the at least one
target analysis item with the at least one discriminative feature
in response to having the at least one discriminative feature in
the user preferred items; and
generating, by one or more processors, the correlated at
least one target analysis item with the at least one descriptive
feature for displaying the correlated at least one target analysis
item with the at least one descriptive feature to the user.

Appeal Br. 28 (Claims Appendix) (emphases added).

REJECTION
Claims 1–10 stand rejected under 35 U.S.C. § 101 as being directed to
patent ineligible subject matter. Final Act. 4–6.

ANALYSIS
I. Claims 1–10 Rejected Under 35 U.S.C. § 101
A. Principles of Law
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
Appeal 2019-002188
Application 14/037,720

3
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
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 is “directed to.” See Alice, 573 U.S. at
219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Appeal 2019-002188
Application 14/037,720

4
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
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. (alterations in original) (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.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
Appeal 2019-002188
Application 14/037,720

5
(“2019 Revised Guidance”).2 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).3
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “Update”)
(available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
3 This evaluation is performed by (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 the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
Appeal 2019-002188
Application 14/037,720

6
(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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.
C. The Examiner’s Conclusions and Appellant’s Arguments
The Examiner concludes the present claims recite certain methods of
organizing human activity or mental processes. Final Act. 5; Ans. 5–6, 8.
The Examiner also determines the present claims do not amount to
significantly more than an abstract idea itself because the abstract idea is
implemented on additional elements that are well-understood, routine, and
conventional. Ans. 14–15 (citing Bancorp Servs., LLC v. Sun Life
Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir. 2012)).
Appellant argues that the present claims recite an unconventional
solution to a technical problem by taking descriptive features preferred by
the user and target analysis items that may include the descriptive features
and combining, correlating, and publishing the target analysis items and
descriptive features as a correlated target analysis item. Id. at 7, 11–13, 16
(citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed.
Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016);
Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299 (Fed. Cir. 2018); Spec.
¶¶ 57, 61); Reply Br. 4. Appellant argues the target analysis item is
transformed into a user specific target analysis item that includes the
descriptive feature on the display. Appeal Br. 17, 19 (citing Diehr, 450 U.S.
Appeal 2019-002188
Application 14/037,720

7
at 191). Appellant argues the present claims do not preempt any abstract
idea. Appeal Br. 7, 11, 12, 16. Appellant argues there is no prior art
rejection and, therefore, the claims are an improvement over computer-
related technology. Appeal Br. 13. Appellant further contends that the
Examiner fails to provide clear and convincing evidence to support the
finding that the additional elements implementing the abstract idea are well-
understood, routine, and conventional. Appeal Br. 21–25 (citing Berkheimer
v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)); Reply Br. 7. We disagree with
Appellant.
D. Discussion
1. Step 2A, Prong 1
We conclude the emphasized portions of claim 1,4 reproduced above
(see supra at 1–2), recite commercial interactions (including advertising,
marketing, sales activities, or behaviors) because claim 1 requires taking
descriptive features preferred by the user and target analysis items that may
include the descriptive features and combining, correlating, and publishing
the target analysis items and descriptive features as a correlated target
analysis item, as acknowledged by Appellant (see Appeal Br. 7, 11–13).
According to the 2019 Revised Guidance, commercial interactions
(including advertising, marketing, sales activities, or behaviors) fall into the
category of certain methods of organizing human activity. See 2019 Revised
Guidance, 84 Fed. Reg. at 52. Moreover, those certain methods of
organizing human activity are a type of abstract idea. See id.
We also conclude the emphasized portions of the present claims

4 Claim 1 is reproduced above with emphases. We group claims 1–10
together and refer to those claims as the “present claims.”
Appeal 2019-002188
Application 14/037,720

8
reproduced above (see supra at 1–2), recite concepts performed in the
human mind (including an observation, evaluation, judgement, or opinion)
because the present claims require taking descriptive features preferred by
the user and target analysis items that may include the descriptive features
and combining, correlating, and publishing the target analysis items and
descriptive features as a correlated target analysis item, as acknowledged by
Appellant (see Appeal Br. 7, 11–13). That is, the present claims recite steps
that can be performed using the human mind, pen, and paper. According to
the 2019 Revised Guidance, concepts performed in the human mind
(including an observation, evaluation, judgement, or opinion) fall into the
category of mental processes. See 2019 Revised Guidance, 84 Fed. Reg. at
52. Moreover, those mental processes are a type of abstract idea. See id.
Because the present claims recite certain methods of organizing
human activity or mental processes, which fall into the category of an
abstract idea, we proceed to prong 2.
2. Step 2A, Prong 2
The additional elements of the present claims do not integrate the
abstract idea into a practical application because they do not impose any
meaningful limits on practicing the abstract idea for the following reasons.
Appellant does not identify persuasively how the Specification sets forth an
improvement in technology. The Update addresses how we consider
evidence of improvement that is presented to us. The Update states:
the evaluation of Prong Two requires the use of the
considerations (e.g. improving technology, effecting a particular
change treatment or prophylaxis, implementing with a particular
machine, etc.) identified by the Supreme Court and the Federal
Circuit, to ensure that the claim as a whole “integrates [the]
judicial exception into a practical application [that] will apply,
Appeal 2019-002188
Application 14/037,720

9
rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is
more than a drafting effort designed to monopolize the judicial
exception.”
Update, 11 (emphases added). The Update further states:
[d]uring examination, the examiner should analyze the
“improvements” consideration by evaluating the specification
and the claims to ensure that a technical explanation of the
asserted improvement is present in the specification, and that the
claim reflects the asserted improvement. Generally, examiners
are not expected to make a qualitative judgment on the merits of
the asserted improvement. If the examiner concludes the
disclosed invention does not improve technology, the burden
shifts to applicant to provide persuasive arguments supported by
any necessary evidence to demonstrate that one of ordinary skill
in the art would understand that the disclosed invention improves
technology. Any such evidence submitted under 37 C.F.R.
§ 1.132 must establish what the specification would convey to
one of ordinary skill in the art and cannot be used to supplement
the specification. For example, in response to a rejection under
35 U.S.C. § 101, an applicant could submit a declaration under
§ 1.132 providing testimony on how one of ordinary skill in the
art would interpret the disclosed invention as improving
technology and the underlying factual basis for that conclusion.
Id. at 13 (emphasis added).
We disagree with Appellant’s argument that the present claims recite
an unconventional solution to a technical problem. Appeal Br. 7, 11–13, 16
(citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed.
Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016);
Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299 (Fed. Cir. 2018); Spec.
¶¶ 57, 61); Reply Br. 4. In this case, the Examiner concludes that the
present claims do not recite an improvement to technology, but rather are
improvements to a business or financial problem. Ans. 9–10, 12–14.
Appeal 2019-002188
Application 14/037,720

10
Consequently, we focus on any evidence Appellant cites as discussed in the
Update.
Here, Appellant argues that the present claims recite an
unconventional solution to a technical problem by taking descriptive features
preferred by the user and target analysis items that may include the
descriptive features and combining, correlating, and publishing the target
analysis items and descriptive features as a correlated target analysis item.
Appeal Br. 7, 11–13, 16 (citing Spec. ¶¶ 57, 61); Reply Br. 4. However,
paragraphs 57 and 61 in the Specification merely discuss the formula used to
calculate a target analysis item. Moreover, this alleged improvement is an
improvement in certain methods of organizing human activity or mental
processes, which falls within the category of an abstract idea, as discussed
supra, not an improvement to technology.
We are not persuaded by Appellant’s citation to McRO to demonstrate
that the present claims set forth an improvement in technology. Appeal Br.
7, 11–13, 16; Reply Br. 4. The subject claim considered by the McRO court
concerned a method for automatically animating lip synchronization and
facial expressions. McRO, 837 F.3d at 1303. The McRO court concluded
the subject claims did not recite an abstract idea because the computer
animation used a structure of limited rules that reflected a specific
implementation which an animator would not likely have utilized. Id. at
1316. Thus, the claimed invention in McRO used “limited rules in a process
specifically designed to achieve an improved technological result” over
“existing, manual 3-D animation techniques.” Id. Unlike the claims of
McRO, Appellant has not explained persuasively how the present claims
recite a specific implementation of rules that a human performing valuation
Appeal 2019-002188
Application 14/037,720

11
of a private entity would not have utilized, and the present claims instead
focus on an improvement to the abstract idea itself.
Similar to Appellant’s citation to McRO, we are not persuaded by
Appellant’s citation to Enfish. Appeal Br. 7, 11–13, 16; Reply Br. 4. In
Enfish, the Federal Circuit considered how the invention in Enfish was
superior to the technology in the prior art. That is, the court considered “the
specification’s emphasis that ‘the present invention comprises a flexible,
self-referential table that stores data,’” “[t]he specification also teaches that
the self-referential table functions differently than conventional database
structures,” and “traditional databases, such as ‘those that follow the
relational model and those that follow the object oriented model’ are inferior
to the claimed invention.” Enfish, LLC v. Microsoft Corp., 822 F.3d at 1337
(interior citations omitted). Moreover, in Enfish “‘[t]he structural
requirements of current databases require a programmer to predefine a
structure and subsequent [data] entry must conform to that structure,’ [and]
the ‘database of the present invention does not require a programmer to
preconfigure a structure to which a user must adapt data entry.’” Id. Based
on the foregoing, the court determined the claims “achieve[d] other benefits
over conventional databases, such as increased flexibility, faster search
times, and smaller memory requirements.” Id. Unlike the claims of Enfish,
the present claims do not recite “a specific improvement to the way
computers operate, embodied in the self-referential table.” Id. at 1336.
For reasons similar to our analysis of McRO, we are not persuaded by
Appellant’s citation to Finjan. Appeal Br. 7, 11–13, 16; Reply Br. 4. In
Finjan, the Federal Circuit considered how the invention in Finjan was
superior to the technology in the prior art. That is, the court considered the
Appeal 2019-002188
Application 14/037,720

12
“behavior-based” approach to virus scanning. Finjan, Inc. v. Blue Coat Sys.,
Inc., 879 F.3d at 1304. The court reasoned unlike traditional “code-
matching” systems that merely search for known viruses, “‘behavior-based’
scans can analyze a downloadable’s code and determine whether it performs
potentially dangerous or unwanted operations––such as renaming or deleting
files.” Id. The court further reasoned since security profiles communicate
granular information pertaining to potentially suspicious code from
behavior-based scans, security profiles “can be used to protect against
previously unknown viruses as well as ‘obfuscated code’––known viruses
that have been cosmetically modified to avoid detection by code-matching
virus scans.” Id. Based on the foregoing, the court determined the claims
“are therefore directed to a non-abstract improvement in computer
functionality.” Id. Unlike the claims of Finjan, the present claims do not
recite a specific improvement to the way computers operate, embodied in
virus scanning.
Instead, the present claims recite an abstract idea as discussed supra,
in § D.1. or at best, improving an abstract idea—not a technological
improvement. The Specification indicates the additional elements (i.e.,
“acquisition module,” “input device,” “selection module,” “determination
module,” “correlation module,” and “processors”) recited in the present
claims are merely generic computer components used to implement the
abstract idea. Spec. ¶¶ 24, 28, 33, 34, 47, 71, 72, 79, 81. Further, the
generic computer components, individually or in combination, do not
integrate the judicial exception into a practical application.
Additionally, “a claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
Appeal 2019-002188
Application 14/037,720

13
2016) (emphasis added). “[U]nder the Mayo/Alice framework, a claim
directed to a newly discovered law of nature (or natural phenomenon or
abstract idea) cannot rely on the novelty of that discovery for the inventive
concept necessary for patent eligibility . . . .” Genetic Techs. Ltd. v. Merial
L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016) (citations omitted).
We disagree with Appellant’s argument that the target analysis item is
transformed into a user specific target analysis item that includes the
descriptive feature on the display. Appeal Br. 17 (citing Diehr, 450 U.S. at
191). In Diehr, the Court focused on the production of molded articles that
are properly cured. Id. at 177. Further, the Court noted that achieving the
perfect cure depended upon numerous factors such as the temperature of the
molding process, the thickness of the article to be molded, and the amount of
time the article is allowed to remain in a press. Id. at 177–78. The Court
also noted the industry was not able to obtain uniformly accurate cures
because the temperature of the molding press could not be precisely
measured, which made it difficult to do any necessary computations to
determine cure time. The Court held that a physical and chemical process
for molding precision synthetic uncured rubber implementing the Arrhenius
equation was a transformation of an article. Unlike the claims of Diehr, the
present claims and claim 7 recite a transformation of data and do not recite a
physical transformation for molding precision synthetic uncured rubber
implementing the Arrhenius equation.
Appellant’s argument that the present claims do not preempt any
abstract idea does not persuade us that the claims are eligible. Appeal Br. 7,
11, 12, 16. Although preemption may denote patent ineligibility, its absence
does not demonstrate patent eligibility. See FairWarning, IP, LLC v. Iatric
Appeal 2019-002188
Application 14/037,720

14
Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016). For claims covering a
patent-ineligible concept, preemption concerns “are fully addressed and
made moot” by an analysis under the Mayo/Alice framework. Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
With regard to Appellant’s argument that the present claims recite
features that were not known previously because there is no prior art
rejection (Appeal Br. 13), Appellant improperly conflates the requirements
for eligible subject matter (§ 101) with the independent requirements of
novelty (§ 102) and non-obviousness (§ 103). “The ‘novelty’ of any element
or steps in a process, or even of the process itself, is of no relevance in
determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.” Diehr, 450 U.S. at 188–
89; see also Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed.
Cir. 2016) (stating that, “under the Mayo/Alice framework, a claim directed
to a newly discovered law of nature (or natural phenomenon or abstract idea)
cannot rely on the novelty of that discovery for the inventive concept
necessary for patent eligibility”).
Appellant does not make any other arguments pertaining to step 2A,
prong 2. Because the present claims recite an abstract idea that is not
integrated into a practical application, we proceed to Step 2B.
3. Step 2B
We agree with the Examiner’s determination that the abstract idea is
implemented with additional elements that are well-understood, routine, and
conventional. Ans. 14–15 (citing Bancorp Servs., LLC v. Sun Life
Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir. 2012)); see also USPTO
Commissioner for Patents Memorandum dated Apr. 9, 2018, “Changes in
Appeal 2019-002188
Application 14/037,720

15
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision” (Berkheimer v. HP, Inc.) (explaining
that citing relevant cases is one way to support this finding). The
Specification supports the Examiner’s determination in this regard because it
explains that “acquisition module,” “input device,” “selection module,”
“determination module,” “correlation module,” and “processors” recited in
the present claims are generic computer components. Spec. ¶¶ 24, 28, 33,
34, 47, 71, 72, 79, 81. Appellant’s Specification indicates these additional
elements were well-understood, routine, and conventional components
because it describes them at a high level of generality and in a manner that
indicates that they are sufficiently well-known. Id. Moreover, the additional
elements recited in the present claims, analyzed individually or in
combination, do not result in the claims, as a whole, amounting to
significantly more than the judicial exception.
We, therefore, disagree with Appellant’s argument that the Examiner
fails to provide clear and convincing evidence to support the finding that the
additional elements implementing the abstract idea are well-understood,
routine, and conventional. Appeal Br. 21–25 (citing Berkheimer v. HP Inc.,
881 F.3d 1360 (Fed. Cir. 2018)); Reply Br. 7.
Furthermore, the present claims recite an abstract idea using
additional elements that are generic computer components as discussed
supra, in §§ D.1. and D.2. or at best, improving an abstract idea—not an
inventive concept for the reasons discussed in § D.2. Accordingly,
Appellant’s assertion fails to identify error in the Examiner's findings.
Appellant does not argue claims 2–6 and 8–10 separately. Appeal Br.
6–27. Accordingly, we sustain the Examiner’s rejection of: (1) independent
Appeal 2019-002188
Application 14/037,720

16
claim 1; and (2) dependent claims 2–10 under 35 U.S.C. § 101.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION

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

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–10 101 Eligibility 1–10