Jeffrey Brandstetter

Patent Trials and Appeals Board

Sep 24, 2020

14694414 - (D) (P.T.A.B. Sep. 24, 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.
14/694,414 04/23/2015 Jeffrey D. Brandstetter 012810-0030-999 6462
20583 7590 09/24/2020
Jones Day
250 Vesey Street
New York, NY 10281-1047
EXAMINER
MACASIANO, MARILYN G
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
09/24/2020 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):
japarker@jonesday.com
ncgeorge@jonesday.com
wtokmakidis@jonesday.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY D. BRANDSTETTER
____________

Appeal 2020-003207
Application 14/694,414
Technology Center 3600
____________

Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW,
Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1, 2, 4, 5, 11, and 14 (Appeal Br. 1.)
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 the inventor,
Jeffrey D. Brandstetter. (See Appeal Br. 1.)
2 We consider the Specification dated April 23, 2015 (“Spec.”), Final Office
Action issued November 29, 2019 (“Final Act.”), the Appeal Brief filed
January 22, 2020 (“Appeal Br.”), the Examiner’s Answer issued March 18,
2020 (“Ans.”), and the Reply Brief filed March 26, 2020 (“Reply Br.”).
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INTRODUCTION
Appellant’s Specification provides a system for determining the
economic viability of creating media content by measuring and reporting
audience metrics related to the media content. (Spec. 4:10–14.) The
Specification explains that considerable time may pass between releasing a
first media content, e.g., film, television program, or video game, and a
second related media content, e.g., a sequel. (Id. at 1:5–10.) Due to waning
interest over time, the Specification states that it is difficult to predict the
economic viability of the second media content. (Id. at 1:8–2:4.)
The Specification describes using “interstitial” content of a different
media type to measure and evaluate interest in creating related media
content. (Id. at 4:17–5:1.) The Specification defines “interstitial” as
“content that is released/aired in between related content in a different
medium; it does not refer to the length or run time of any such interstitial/‘in
between’ content, and is not in any way limited to short content or
programming in between longer content segments.” (Id. at 5:2–5.) As an
example, the Specification explains that interstitial content may be video
games released in the time between a movie (first media content) and a later
sequel (second media content). (Id. at 6:5–21.) In this example, the video
games may include multiple storylines, wherein the audience popularity of a
particular storyline indicates economic potential for a film sequel based on
the storyline. (See id.)

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Appellant’s claim 1 recites:3
A system for automatically generating a second item of
media content after release of the first item of media content,
comprising:
[1] a computing platform configured to transmit an
interactive multi-path interstitial content item related to the first
item of media content over a computer network, wherein the
first item of media content is a video, a movie, a television
program, or a video game;
[2] one or more computer-readable mediums configured
for storage of:
[2a] a first item data record, wherein the first item
data record identifies the first item of media content and an
activity level associated with the first item of media content;
[2b] an interstitial content data record, wherein the
interstitial content data record identifies the first item of
media content, the interstitial content item, and an activity
level associated with each of a plurality of paths in the
interstitial content item;
[3] one or more data processors configured to:
[3a] distribute the interstitial content item over the
computer network;
[3b] snoop interactions with the interstitial content
item to extract data regarding traversals of different paths of
the interstitial content item across multiple interactions with
the interstitial content item by multiple users over a period
of time and storing snooped interaction data in the interstitial
content data record;
[3c] execute a second item generation model using the
activity level associated with the first item and the activity
level data associated with each of the plurality of paths;

3 The claim is annotated with bracketed numbers and letters to reference the
specific limitations discussed in this decision.
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[3d] automatically generate the second item of media
content based on output of the second item generation
model, wherein content of the second item of media content
is based on the activity levels associated with the plurality of
paths in the interstitial content item;
[4] wherein the second item of media content is produced
and stored in a non-transitory computer-readable medium for
distribution over a computer network based on the
recommendation.
(Appeal Br. 9–10.)
The Examiner rejects claims 1, 2, 4, 5, 11, and 14 under 35 U.S.C.
§ 101 as being directed to an abstract idea without significantly more. (Final
Act. 2–4.) The Examiner also rejects claims 1, 2, 4, 5, 11, and 14 under 35
U.S.C. § 102(a)(2) as anticipated by Ramer.4 (Final Act. 5–9.)
ANALYSIS
Claims 1, 2, 4, 5, 11, and 14 rejected under 35 U.S.C. § 101
The Examiner rejects claims 1, 2, 4, 5, 11, and 14 under § 101 as
being directed to patent-ineligible subject matter. (Final Act. 2–4.)
Appellant argues claims 1, 2, 4, 5, 11, and 14 together. (See Appeal Br. 4–
5.) We therefore analyze claim 1 as exemplary below.
Standard for Subject Matter Eligibility
For issues involving subject matter eligibility under § 101, we apply
the two-step test set forth in Alice Corp. v. CLS Bank Int’l, 573 U.S. 208
(2014). In the first step, we “determine whether the claims at issue are
directed to a patent-ineligible concept.” (Id. at 218.) If the initial threshold
is met, we move to the second step, in which we “consider the elements of

4 Ramer et al., U.S. Patent Application Publication 2009/0240586 A1,
published September 24, 2009.
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each claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” (Id. at 217) (quoting Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 78–79 (2012)). The second step is
“a search for an ‘inventive concept’—i.e., an element or combination of
elements that is ‘sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.’” (Id. at
217–18) (quoting Mayo, 566 U.S. at 72–73) (alteration in original).
The USPTO has published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Under the 2019 Revised
Guidance and the October 2019 Update, we first look to whether the claim
recites: 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 1”). If so, we next look to whether the claim recites any 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 2”).5
2019 Revised Guidance, 84 Fed. Reg. at 52–55.

5 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.
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Only if a claim: (1) recites a judicial exception; and (2) does not
integrate that exception into a practical application, do we then look,
inStep 2B, to 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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.
Step 2A, Prong 1
Under Step 2A, Prong 1, of the Revised Guidance, we determine
whether the claims recite any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity, or mental processes). 84 Fed. Reg. at 52, 54.
The Examiner finds the claimed functions of “distributing, snooping,
storing, [and] generating” data cover certain methods of organizing human
activity and thus, the claims recite an abstract idea. (Final Act. 3.)
Appellant contends that each of the functions “is technical in nature
[and] unrelated to commercial or legal interactions.” (Appeal Br. 5.)
Appellant argues that the functions are not methods of organizing human
activity, and therefore, the claims do not recite an abstract idea. (Id.)
We agree with the Examiner that the claims recite an abstract idea,
namely, the concept of market research for media content, which is a method
of certain method of organizing human activity, similar to advertising or
marketing activities. See 84 Fed. Reg. at 52; see also Cellspin Soft, Inc. v.
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Fitbit, Inc., 927 F.3d 1306, 1315 (Fed. Cir. 2019) (claimed distribution of
multimedia content was directed to an abstract idea).
To obtain the desired market research, the claims recite a system
configured to perform numerous data processing functions. For example,
the system transmits and distributes data in the form of an interstitial content
item to multiple users (limitations [1], [3a]). The system records data in the
form of activity levels associated with a first media content item and
“different paths” of the interstitial media content item (limitations 2[a], 2[b],
[3b]). The system evaluates activity level data and generates additional data,
in the form of a second item of media content, based on the evaluation
(limitations [3c], [3d], [f]). Each of these functions relate to the collection,
transfer, and publishing of data, which are abstract ideas in that they are
methods of organizing human activity. See, e.g., Intellectual Ventures I LLC
v. Capital One Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015) (holding
that “tracking financial transactions to determine whether they exceed a pre-
set spending limit (i.e., budgeting)” is an abstract idea that “is not
meaningfully different from the ideas found to be abstract in other cases …
involving methods of organizing human activity”); see also Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d
1343, 1347 (Fed. Cir. 2014) (finding that “1) collecting data, 2) recognizing
certain data within the collected data set, and 3) storing that recognized data
in a memory” was an abstract idea because “data collection, recognition, and
storage is undisputedly well-known” and “humans have always performed
these functions”); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc.,
758 F.3d 1344, 1350 (Fed. Cir. 2014) (finding that “a process of organizing
information through mathematical correlations” is an abstract idea).
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Accordingly, the claims recite multiple abstract ideas under Step 2A, Prong
1 of the Guidance.
Step 2A, Prong 2
Under Step 2A, Prong 2, of the Revised Guidance, we determine
whether the claims as a whole integrate the judicial exception into a practical
application. 84 Fed. Reg. at 54–55. The Examiner finds that the claimed
abstract ideas are not integrated into a practical application. (Final Act. 3)
The Examiner finds that the additional elements of the claim are generic
computer components performing generic computer functions. (Id.) The
Examiner concludes that the additional elements do not integrate the abstract
ideas into a practical application because the additional elements do not
impose any meaningful limitations on practicing the abstract idea. (Id.)
Appellant contends the alleged abstract idea is integrated into a
practical application because of: (1) “the express recitation of a particular
machine/manufacture (e.g., . . . content distributing computing platform,
data structures, and manipulations thereof)”; and (2) “a transformation of a
particular article to a different state or thing (e.g., . . . automatic generation
of the second item of media content).” (Appeal Br. 5.)
We are not persuaded by Appellant’s arguments. The additional
elements of the claims, namely, a computing platform (limitation [1]), one or
more computer readable medi[a] (limitations [2], [4]), and one or more data
processors (limitation [3]), are merely tools for data collection and analysis.
The focus of the claims is not any improved computer or technology, but
improved data collection and analysis, performed with off-the-shelf
computer technology as described by the Specification at pages 11–14. See
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018); see
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also Bascom Global Internet Servcs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341, 1348 (2016) (holding that “[a]n abstract idea on ‘an Internet computer
network’ or on a generic computer is still an abstract idea”). Accordingly,
the additional elements do not implement the abstract idea with a particular
machine that is integral to the claims. See 84 Fed. Reg. 55.
Likewise, automatically generating a second item of media content
does not involve the transformation of a particular article to a different state
or thing. Rather, the claim involves producing a new form of data, and
“information as such is an intangible.” Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (“[W]e have treated collecting
information, including when limited to particular content (which does not
change its character as information), as within the realm of abstract ideas.”).
Accordingly, the additional element of automatically generating more media
content is insignificant extra-solution activity to the abstract ideas of market
research using data collection and analysis. See 84 Fed. Reg. 55. Because
the claimed abstract ideas are not integrated into a practical application, we
find that the claims as a whole are directed to a judicial exception.
Step 2B
Under Step 2B of the Revised Guidance, we determine whether the
claims add a specific limitation beyond the judicial exception that is not
well-understood, routine, conventional activity in the field or simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. 84 Fed. Reg. at 56.
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The Examiner finds that the additional elements recited by the claims
amount to no more than instructions to apply the judicial exception using
generic computer components. (Final Act. 4.)
Appellant does not present arguments that the additional elements are
significantly more than the judicial exception and thus provide an inventive
concept. (See generally, Appeal Br.)
We agree with the Examiner that the claims simply append to the
judicial exception well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality. As
discussed above, the claimed additional elements recite generic computer
components that are used for implementing the abstract idea. (See Spec.
11:19–15:2.) Accordingly, the claims do not recite an inventive concept
sufficient to demonstrate patent eligibility and we sustain the Examiner’s
rejection of the claims as ineligible under 35 U.S.C. § 101.

Claims 1, 2, 4, 5, 11, and 14 rejected under 35 U.S.C. § 102
The Examiner rejects claims 1, 2, 4, 5, 11, and 14 under 35 U.S.C.
§ 102(a)(2) as being anticipated by Ramer. (Final Act. 5–9.) Appellant
argues claims 1, 2, 4, 5, 11, and 14 together. (Appeal Br. 5–7.) We
therefore analyze claim 1 as exemplary below.
Appellant argues that Ramer does not teach the limitation requiring a
data processor configured to “automatically generate the second item of
media content based on output of the second item generation model.”6
(Appeal Br. 7.) Appellant argues further that Ramer does not generate

6 Should prosecution continue in this application, we note for the Examiner’s
benefit that the Specification may not support this limitation.
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content based on activity levels associated with different paths in a multi-
path interstitial content item. (Id.) Appellant argues that the Examiner picks
and chooses among various paragraphs in Ramer throughout the disclosure,
and thus, the rejection does not meet the requirements for anticipation. (Id.)
We are persuaded by Appellant’s argument. The Examiner’s
anticipation rejection picks and chooses from Ramer’s various embodiments
of collecting user data, evaluating the data, and creating user
recommendations. (See Final Act. 5–7.) However, none of these separate
embodiments contain all of the claimed limitations arranged or combined in
the same way as claimed. See Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d
1359, 1371 (Fed. Cir. 2008)(“it is not enough that the prior art reference
discloses part of the claimed invention, which an ordinary artisan might
supplement to make the whole, or that it includes multiple, distinct teachings
that the artisan might somehow combine to achieve the claimed invention.”)
Accordingly, we do not sustain the Examiner’s anticipation rejection.
CONCLUSION
Upon consideration of the record and for the reasons given, we sustain
the Examiner’s rejection.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4, 5,
11, 14
101 Ineligible subject
matter
1, 2, 4, 5,
11, 14

1, 2, 4, 5,
11, 14
102(a)(2) Ramer 1, 2, 4, 5,
11, 14
Overall
Outcome
1, 2, 4, 5,
11, 14

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED