Kevin Scott. Lester

Patent Trials and Appeals Board

Oct 3, 2019

14037128 - (D) (P.T.A.B. Oct. 3, 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.
14/037,128 09/25/2013 Kevin Scott Lester ADBLE.089A 1004
79502 7590 10/03/2019
Knobbe, Martens, Olson & Bear, LLP
AMAZON TECHNOLOGIES, INC.
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
EXAMINER
HU, JENSEN
ART UNIT PAPER NUMBER
2169
NOTIFICATION DATE DELIVERY MODE
10/03/2019 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):
SEAZN.Admin@knobbe.com
efiling@knobbe.com
jayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN SCOTT LESTER
____________

Appeal 2018-005590
Application 14/037,128
Technology Center 2100
____________

Before JOSEPH L. DIXON, ERIC S. FRAHM, and JOHNNY A. KUMAR,
Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–23. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
Appellant’s invention relates to determining relevance of reviews,
such as reviews for an item, based at least in part on similarities between
users submitting reviews and a user viewing the reviews. Spec. ¶¶ 8–9.

Claim 3 is illustrative:

1 Appellant identifies the real party in interest as Audible, Inc., a subsidiary
of Amazon.com, Inc. App. Br. 3.
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3. A system comprising:
an electronic data store configured to store item reviews;
and
a computing system comprising one or more computing
devices, said computing system in communication with the
electronic data store and configured to at least:
receive an indication of an item of interest to a
user;
determine one or more environment attributes of a
geographic location associated with the user;
retrieve, from the electronic data store, review
information associated with each of a plurality of reviews
of the item;
for each of the plurality of reviews of the item:
determine one or more environment attributes of a
geographic location associated with a reviewer that
submitted the review; and
determine an environment similarity score
associated with the review, wherein the environment
similarity score is determined based at least in part by
comparing the one or more environment attributes
associated with the geographic location of the user and
the one or more environment attributes associated with
the geographic location of the reviewer; and
generate a weighted rating for the item, wherein
the weighted rating is generated based at least in part by
assigning a weight to each of the plurality of reviews,
wherein the weight assigned to each review is based at
least in part on the environment similarity score
determined for the review.

REJECTIONS
A. Claims 1–23 are rejected under 35 U.S.C. § 101, as being directed to a
judicial exception, without significantly more. Ans. 3–18.2

2 Throughout this Opinion, we refer to (1) the Non–Final Office Action
delivered April 10, 2017 (Act.); (2) the Appeal Brief filed September 8,
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B. Claims 3–8, and 11 are rejected under 35 U.S.C. § 102(a) as being
anticipated by U.S. Patent Application Publication No. 2013/0124449
A1, to Pinckney et al. (hereinafter “Pinckney”). Act. 2–7.
C. Claims 1 and 2 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pinckney in view of U.S. Patent Publication No.
2009/0088967 A1, to Lerner et al. (hereinafter “Lerner”). Act. 19–24.
D. Claims 9, 10, and 12–23 were rejected under 35 U.S.C. § 103 as
allegedly being unpatentable over Pinckney in view of U.S. Patent
No. 8,676,596 B1, to Franson et al. (hereinafter “Franson”). Act. 8–
19.

THE INELIGIBILITY REJECTION
The Examiner determines the claims “correspond to concepts
identified as abstract ideas by the courts, such as tailoring content based on
information about the user.” Ans. 4–5, 7–9, 11–13 and 15–16. The
Examiner further determines that the claims do not include additional
elements that add significantly more than the abstract idea, but merely recite
generic computing components. Id. at 5–7, 9–11, and 13–17.
Appellant argues the claims are not directed to an abstract idea, but
rather, similar to Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880
F.3d 1356 (Fed. Cir. 2018) and Enfish, LLC v. Microsoft Corp., 822 F.3d
1327 (Fed. Cir. 2016), the claimed invention recites an improvement in
efficiencies of computer related technology. Reply Br. 3–4, 7–8, 11–13, and

2017 (“App. Br.”); (3) the Examiner’s Answer delivered March 9, 2018
(“Ans.”); and (4) the Reply Brief filed May 8, 2018 (“Reply Br.”).
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15–16. Specifically, the invention is said to improve “the speed and
efficiency with which users can navigate to desired information”, such as
locating reviews relevant to the user. Reply Br. 4, 11–13. Appellant adds,
the claimed invention as a whole amounts to significantly more to the
purported abstract idea for at least the reason the claimed invention recites
how a result is to be achieved. Reply Br. 5–10, 13–14 and 17.

ISSUE
Under § 101, has the Examiner erred in rejecting claims 1–23 as
directed to ineligible subject matter? This issue turns on whether the claims
are directed to an abstract idea and, if so, whether additional elements
recited—considered individually and as an ordered combination—transform
the nature of the claims into a patent-eligible application of that abstract
idea.

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 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, 573 U.S. at 216 (citation omitted).
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
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
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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 water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267–68 (1854))); 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
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; 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.”). That
said, the Supreme 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
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environment.” Id. (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 (citation 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.
In January 2019, the USPTO published revised guidance on the
application of § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Under that
guidance, 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); and
(2) additional elements that integrate the judicial exception into a
practical application (see MANUAL OF PATENT EXAMINING PROCEDURE
(MPEP) §§ 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08. 2017, Jan.
2018)).
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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 to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Revised Guidance, 84 Fed. Reg. at 56.

INELIGIBILITY ANALYSIS
Claims 1–11 recite a system. Claims 12–17 recite a method. Claims
18–23 recite a computer readable medium. Each of the claims, therefore,
falls within a statutory category of 35 U.S.C. § 101. But despite each of the
claims falling within a statutory category, we must still determine whether
the claimed invention is directed to a judicial exception, namely an abstract
idea. See Alice, 573 U.S. at 217. To this end, we determine (1) whether
claimed invention recites a judicial exception (Revised Guidance Step 2A –
Prong 1) and, if so, (2) whether the identified judicial exception is integrated
into a practical application (Revised Guidance Step 2A – Prong 2). See
Revised Guidance, 84 Fed. Reg. at 52–55.

Revised Guidance Step 2A – Prong 1
To determine whether a claim recites an abstract idea, we (1) identify
the claim’s specific limitations that recite an abstract idea, and (2) determine
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whether the identified limitations fall within certain subject matter
groupings, namely (a) mathematical concepts;3 (b) certain methods of
organizing human activity4; or (c) mental processes.5
Here, apart from (1) an electronic data store, recited in independent
claims 1, 3, 12 and 18 (App. Br. 29–33 (Claims Appendix)); (2) a computing
system comprising one or more computing devices, recited in independent
claims 1, 3 and 12 (App. Br. 29–31 (Claims Appendix)); and (3) a computer-
readable non-transitory storage medium recited in independent claim 18
(App. Br. 33, Claims Appendix), the claimed invention’s recited limitations,
which collectively recites gathering and filtering or tailoring data based on
relevance to an individual, fit squarely within at least one of the above
categories of the agency’s guidelines.
First, the claimed invention recites steps of data gathering in
furtherance of organizing human activity, such as organizing human written
reviews of goods or services. The case law establishes the claim limitations
reciting gathering and filtering or tailoring data based on relevance to an

3 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Revised
Guidance, 84 Fed. Reg. at 52.
4 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Revised Guidance, 84 Fed. Reg. at 52.
5 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Revised Guidance, 84
Fed. Reg. at 52.
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individual is a certain method of organizing human activity. Cf. Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307 at 1313 (Fed. Cir. 2016)
(“receiving e-mail (and other data file) identifiers, characterizing email
based on the identifiers, and communicating the characterization – in other
words, filtering files/e-mail –is an abstract idea”); see also M.P.E.P.
2106.04(a)(2), II (“Certain Methods of Organizing Human Activity”,
Section D, example v, citing Symantec); Dealertrack v. Huber, 674 F.3d
1315 at 1333 (Fed. Cir. 2012) (“receiving data from one source, selectively
forwarding the data, and forwarding reply data to the first source”
constituted an abstract idea); M.P.E.P. 2106.04(a)(2), II (“Certain Methods
of Organizing Human Activity”, Section A, citing Dealertrack).
For example, claim 1 and exemplary claim 3 recite steps to (1)
“receive an indication of an item of interest to a user”; (2) “determine one or
more environment attributes of a geographic location associated with the
user”; (3) “retrieve . . . review information associated with each of a
plurality of reviews of the item”; and (4) “determine one or more
environment attributes of a geographic location associated with a reviewer
that submitted the review” which involve certain methods of organizing
human activity, such as managing personal behavior, relationships or
interactions between people by facilitating data collection using rules or
instructions.
Independent claim 1 identically recites quoted limitations (1)–(4) and
additionally recites in limitation (3) “wherein the one or more environment
attributes relate to at least one of: average weather conditions in the
geographic location, altitude or population density”. App. Br. 29 (Claims
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Appendix). This additional limitation further involves certain methods of
organizing human activity by facilitating data collection.
Independent claims 12 and 18 recite steps similar to (3) “retrieving,
from an electronic data store, review information associated with each of a
plurality of reviews of an item, wherein the review information associated
with each review comprises information identifying a reviewer that
submitted the review and a geographic location associated with the
reviewer” and (4) “for each of the plurality of reviews of the item,
determining one or more environment attributes of the geographic location
associated with the reviewer that submitted the review” (App Br. 31–33
(Claims Appendix)). Accordingly, each of steps (1)–(4) in the independent
recite certain methods of organizing human activity, such as managing
personal behavior, relationships or interactions between people by
facilitating data collection using rules or instructions. Cf. Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d
1343, 1345–49 (Fed. Cir. 2014) (holding ineligible claims reciting (1)
receiving output representing diverse types of hard copy documents from an
automated digitizing unit, and (2) storing information from those documents
into memory); see also CyberSource, 654 F.3d at 1372 (noting that
limitation reciting obtaining information about transactions that have used an
Internet address identified with a credit card transaction can be performed by
a human who simply reads records of Internet credit card transactions from a
pre-existing database); In re Salwan, 681 F. App’x 938, 939–41 (Fed. Cir.
2017) (unpublished) (holding ineligible claims reciting, among other things,
receiving medical records information and transmitting reports where the
claimed invention’s objective was to enable electronic communication of
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tasks that were otherwise done manually using paper, phone, and facsimile
machine); Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344 (Fed.
Cir. 2018) (noting that a nontechnical human activity of passing a note to a
person who is in a meeting or conversation as illustrating the invention’s
focus, namely providing information to a person without interfering with the
person’s primary activity); LendingTree, LLC v. Zillow, Inc., 656 F. App’x
991, 993–94, 996 (Fed. Cir. 2016) (unpublished) (holding ineligible claims
reciting, among other things, receiving selection criteria from lending
institutions and credit data from a computer user, and forwarding the credit
data to selected lending institutions as directed to an abstract idea).
Specifically, limitations (1)–(4) recite gathering sender and reviewer
related data in furtherance of organizing human activity, namely, managing
an interaction between a sender and a recipient in furtherance of organizing
human activity. In Symantec, our reviewing court found claim limitations
reciting
identifying characteristics of data files comprising: receiving,
on a processing system, file content identifiers for data files
from a plurality of file content identifier generator agents
(emphasis added) constitute an abstract idea related to retrieving data
using data file identifiers. See Syamntec, 838 F.3d 1307 at 1313.
Second, the claimed invention recites steps (5)–(7) of using the data
gathered in steps (1)–(4), to filter or tailor data based on data comparisons in
furtherance of organizing human activity, such as organizing human written
reviews of goods or services.
For example, exemplary claim 3 recites steps to (5) “determine an
environment similarity score associated with the review . . . based at least in
part by comparing the one or more environment attributes associated with
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the geographic location of the user and the one or more environment
attributes associated with the geographic location of the reviewer” and (6)
“generate a weighted rating for the item . . . based at least in part by
assigning a weight to each of the plurality of reviews, wherein the weight
assigned to each review is based at least in part on the environment
similarity score determined for the review” which are certain methods of
organizing human activity, such as managing personal behavior,
relationships or interactions between people by filtering or tailoring gathered
data to an individual using rules or instructions.
Independent claim 1 recites step (5) identically and similarly
manipulates review data on the basis of an environment similarity score with
respect to step (6), reciting “select one or more of the plurality of reviews as
relevant to an environment of the user, wherein the one or more reviews are
selected as relevant based at least in part on the determined environment
similarity scores” (App. Br. 29 (Claims Appendix)), which also are certain
methods of organizing human activity, such as managing personal behavior,
relationships or interactions between people by filtering or tailoring gathered
data to an individual using rules or instructions.
Independent claim 12 similarly organizes review data based on an
environmental attribute comparison with respect to step (5), reciting
“determining . . . a relevance score with respect to at least one environment
attribute, wherein the relevance score for each review is determined based
at least in part by comparing the at least one environment attribute and the
determined one or more environment attributes of the geographic location
associated with the reviewer that submitted the review” and identically
recites step (6) (App. Br. 31–32 (Claims Appendix)). Independent claim 12
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additionally recites (7) “determining a sort order for presenting at least a
subset of the plurality of reviews, wherein the sort order is determined based
at least in part on the determined relevance score for each of the plurality of
reviews with respect to the at least one environment attribute” (App. Br. 32
(Claims Appendix)) which also are certain methods of organizing human
activity, such as managing personal behavior, relationships or interactions
between people by filtering or tailoring gathered data to an individual using
rules or instructions.
Independent claim 18 recites steps similar to (5), reciting “comparing
the at least one environment attribute and the determined one or more
environment attributes of the geographic location associated with the
reviewer that submitted the review” and (6), reciting “generating a weighted
average review for the item with respect to at least one environment
attribute . . . based at least in part by applying a weight to each of the
plurality of reviews, wherein the weight applied to each review is based at
least in part by comparing the at least one environment attribute and the
determined one or more environment attributes” (App. Br. 33 (Claims
Appendix)) which also which are certain methods of organizing human
activity, such as managing personal behavior, relationships or interactions
between people by filtering or tailoring gathered data to an individual using
rules or instructions.
The relevant case law establishes steps (5)–(7) recite certain methods
of organizing human activities, which is a type of abstract idea. Specifically,
our reviewing court found that email filtering with user–set criteria was
directed to certain methods of organizing human activities, which is a type
of abstract idea. See Intellectual Ventures I LLC v. Symantec Corp., 838
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F.3d 1307 at 1313 (Fed. Cir. 2016) (“receiving e-mail (and other data file)
identifiers, characterizing email based on the identifiers, and communicating
the characterization – in other words, filtering files/e-mail –is an abstract
idea”); see also M.P.E.P. 2106.04(a)(2), II (“Certain Methods of Organizing
Human Activity”, Section D, example v, citing Symantec). Also, our
reviewing court found user customizable content filtering of information
retrieved from the Internet to constitute certain methods of organizing
human activities, which is a type of abstract idea. See BASCOM Global
Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1345–1346
(Fed. Cir. 2016); see also M.P.E.P. 2106.04(a)(2), II (“Certain Methods of
Organizing Human Activity”, Section C, example i, citing BASCOM).
These cases are relevant because user–customization means that wanted and
unwanted content may be defined according to user related data. Retrieval
of information defining the wanted and unwanted content in a multi-user
environment requires use of the user related data. See, e.g., BASCOM, supra.
Although the claimed invention involves organizing review content, rather
than blocking or allowing access to requested content like these cases, the
use of user and/or reviewer information to retrieve information such as
information including “geographic location”, “environment attributes”, i.e.,
steps (1)–(4), for taking action with respect to the content of reviews, such as
to organize review content, i.e., “generating a weighted review” (Claims 12
and 18); “determining a sort order for presenting” (Claim 12); “generating a
weighted rating” (Claim 3); and “selecting one or more of the plurality of
reviews as relevant” (Claim 1), i.e., steps (5)–(7), is similar.
Furthermore, similar to the data gathering (1)–(4) and selective
transmission of content based on user characteristics (5)–(7) shown above,
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our reviewing court in Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363 (Fed. Cir. 2017) found that retrieving data from a user
profile and tailoring content transmitted to the user based on the “the user’s
personal characteristics” constituted certain methods of organizing human
activity, which is type of abstract idea. 792 F.3d 1363, 1369–1370; see also
M.P.E.P. 2106.04(a)(2), II (“Certain Methods of Organizing Human
Activity”, Section C, citing Capital One Bank (USA)).
Accordingly, steps (1)–(7) reciting receiving or retrieving data related
to an individual (i.e., a user or reviewer) in order to filter or tailor review
data to an individual falls squarely within the certain methods of
organizing human activity category of the agency’s guidelines and,
therefore, recite an abstract idea. See Revised Guidance, 84 Fed. Reg. at 52
(listing exemplary certain methods of organizing human activity, including
managing personal behavior or relationships following rules or instructions).
Third, as discussed infra, steps (5)–(7) recited in independent claims
1, 3, 12, and 18 recite an additional category of abstract idea, namely a
mental process, since steps (5)–(7) can also be performed mentally or by
using pen and paper. For example, claim 3 recites steps to (5) “determine an
environment similarity score associated with the review . . . based at least in
part by comparing the one or more environment attributes associated with
the geographic location of the user and the one or more environment
attributes associated with the geographic location of the reviewer” and (6)
“generate a weighted rating for the item . . . based at least in part by
assigning a weight to each of the plurality of reviews, wherein the weight
assigned to each review is based at least in part on the environment
similarity score determined for the review”.
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Independent claim 1 recites step (5) identically and similarly
manipulates review data on the basis of an environment similarity score with
respect to step (6), reciting “select one or more of the plurality of reviews as
relevant to an environment of the user, wherein the one or more reviews are
selected as relevant based at least in part on the determined environment
similarity scores” (App. Br. 29 (Claims Appendix)).
Independent claim 12 similarly organizes review data based on an
environmental attribute comparison with respect to step (5), reciting
“determining . . . a relevance score with respect to at least one environment
attribute, wherein the relevance score for each review is determined based
at least in part by comparing the at least one environment attribute and the
determined one or more environment attributes of the geographic location
associated with the reviewer that submitted the review” (App. Br. 31–32
(Claims Appendix)) and identically recites step (6). Independent claim 12
additionally recites (7) “determining a sort order for presenting at least a
subset of the plurality of reviews, wherein the sort order is determined based
at least in part on the determined relevance score for each of the plurality of
reviews with respect to the at least one environment attribute” (App. Br. 32
(Claims Appendix)).
Independent claim 18 recites steps similar to (5), reciting “comparing
the at least one environment attribute and the determined one or more
environment attributes of the geographic location associated with the
reviewer that submitted the review” and (6), reciting “generating a weighted
average review for the item with respect to at least one environment
attribute . . . based at least in part by applying a weight to each of the
plurality of reviews, wherein the weight applied to each review is based at
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least in part by comparing the at least one environment attribute and the
determined one or more environment attributes” (App. Br. 33 (Claims
Appendix)).
Alternatively, steps (5)–(7) recited in italics above could be carried
out as a mental process, or by a human mind using a pen and paper by (5)
reading a print out of two data sets (i.e., a user data set and a review data set)
containing data for a variable (i.e., an environmental attribute such as
altitude or average yearly rainfall), and mentally determine or annotate the
print out to indicate which variables in the respective data sets are the closest
by assigning a high number to relatively similar numbers and a low number
to relatively dissimilar numbers; (6) using the assigned number, mentally
selecting higher numbers (claim 1) or mentally multiplying the number with
a respective item rating6 associated with the variable, such as a 1–5 rating,
contained in the review data set (claims 3, 12, and 18); and (7) annotating
the print out to rearrange the reviews in an order going from highest number
to lowest number.
This conclusion follows from CyberSource Corp. v. Retail Decisions,
Inc., where our reviewing court held that section 101 did not embrace a
process defined simply as using a computer to perform a series of mental
steps that people, aware of each step, can and regularly do perform in their
heads. 654 F.3d 1366, 1373 (Fed. Cir. 2011); see also In re Grams, 888
F.2d 835, 840–41 (Fed. Cir. 1989); In re Meyer, 688 F.2d 789, 794–95
(CCPA 1982); Elec. Power Group, LLC v. Alstom S.A., 830 F. 3d 1350,
1354–1354 (Fed. Cir. 2016) (“we have treated analyzing information by

6 See Spec. ¶ 13 (“Item review information may include, for example . . .
numeric ratings (such as rating an item from one to five stars”).
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steps people go through in their minds, or by mathematical algorithms,
without more, as essentially mental processes within the abstract-idea
category”).
Additionally, mental processes remain unpatentable even when
automated to reduce the burden on the user of what once could have been
done with pen and paper. See CyberSource, 654 F.3d at 1375 (“That purely
mental processes can be unpatentable, even when performed by a computer,
was precisely the holding of the Supreme Court in Gottschalk v. Benson.”).
Accordingly, steps (5)–(7) may alternatively be viewed to recite a
mental process that can be performed in the human mind or with the aid of
pen and paper. For the above reasons, we determine the claimed invention
recites (1) certain methods of organizing human activity or (2) mental
processes, identified as abstract ideas in the Revised Guidance, as addressed
above. See 84 Fed. Reg. at 52.

Revised Guidance Step 2A – Prong 2
Although the claimed invention recites an abstract idea including
methods of organizing human activity or mental processes, we nevertheless
must still determine whether the abstract idea is integrated into a practical
application, namely whether the claim applies, relies on, or uses the abstract
idea in a manner that imposes a meaningful limit on the abstract idea, such
that the claim is more than a drafting effort designed to monopolize the
abstract idea. See Revised Guidance, 84 Fed. Reg. at 54–55. To this end,
we (1) identify whether there are any additional recited elements beyond the
abstract idea, and (2) evaluate those elements individually and collectively to
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determine whether they integrate the exception into a practical application.
See Id.
Here, (1) an electronic data store; (2) a computing system comprising
one or more computing devices; and (3) a computer-readable non-transitory
storage medium are the only recited elements beyond the abstract idea, but
these additional elements do not integrate the abstract idea into a practical
application when reading the claimed invention as a whole.
First, we are not persuaded that the claimed invention improves the
computers or its components’ functionality or efficiency, or otherwise
changes the way those devices function, at least in the sense contemplated
by the Federal Circuit in Enfish LLC v. Microsoft Corp., and Core Wireless
Licensing S.A.R.L. v. LG Elecs., Inc., despite Appellant’s arguments to the
contrary (Reply Br. 3–4, 7–8, 11–13, and 15–16). The claimed self-
referential table in Enfish was a specific type of data structure designed to
improve the way a computer stores and retrieves data in memory. Enfish,
822 F.3d at 1339. To the extent Appellant contends that the claimed
invention uses such a data structure to improve a computer’s functionality or
efficiency, or otherwise change the way that device functions, there is no
persuasive evidence on this record to substantiate such a contention. Rather,
the additional elements (1) a data store, (2) a computer system comprising
one or more computing devise and (3) a computer readable medium are
merely a tools used to implement the abstract idea. Spec. ¶17 (“item data
store 112 . . . conventional electronic commerce systems”); ¶¶ 18–19 (“FIG.
2 depicts . . . general architecture of an item review server 120 . . . includes .
. . computer hardware . . . components . . . generally conventional
components . . . processing unit 204 . . . computer readable medium drive
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207 . . . memory 210 . . . data store 116 . . . data store 114”), FIG. 2 (204
“processing unit”, 120 “server”, 114 “review data store”, 116, “user data
store”, 207 “computer readable medium drive”).
Furthermore, in Core Wireless, the recited user interface was
“directed to an improved user interface for computing devices” because the
claims required that the device applications exist in a particular state, “rather
than using conventional user interface methods to display a generic index on
a computer” (emphasis added). Id. at 1362–1363. Unlike the claimed
invention in Core Wireless, the claimed invention does not recite an
interface that is required to exist in a particular state. Rather, the claimed
invention merely use a generic computing system to generate tailored data.
Appellant further argues dependent claims 11 and 16 recite an
improvement in speed and efficiency of a computer related technology for
the same reasons presented for claim 1, citing Core Wireless, discussed
supra. Reply Br. 11, 15. Appellant argues additionally recited steps of
“presenting information identifying at least a subset of the plurality of items
that match the search request” (claim 11) and “generating a user interface for
display, wherein the user interface includes (a) an indication of the weighted
average review for the item, and (b) a relevant review of the item, wherein
the relevant review is identified based on the determined sort order” (claim
16) results in an improvement to computer related technology. Id.
However, these limitations are insignificant post-solution activity that
merely outputs the results of the abstract idea. See Flook, 437 U.S. at 590
(insignificant post-solution activity held insufficient to impart patentability);
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354–55
(“merely presenting the results of abstract processes of collecting and
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analyzing information, without more . . . is abstract as an ancillary part of
such collection and analysis”); see also CyberSource, 654 F.3d at 1371
(discussing Flook). Accord Revised Guidance, 84 Fed. Reg. at 55 (citing
MPEP § 2106.05(g)). Furthermore, unlike Core Wireless, these limitations
fail to recite a physical display screen in an electronic device that presents
applications required to “exist in a particular state” on the display screen, as
was required in the claimed invention in Core Wireless. 880 F.3d at 1362–
1363.
Additionally, dependent claims 2 (depending from claim 1), 4–10
(depending from claim 3), 13–15 and 17 (depending from claim 12) and 19–
23 (depending from claim 18) do not include further additional elements
outside of the abstract idea beyond the additional elements recited in the
independent. For the above-stated reasons, we determine the additional
elements recited in the claimed invention, beyond the judicial exceptions,
whether considered alone or in combination, do not integrate the abstract
idea into a practical application. See Reply Br. 10, 14, and 18; see also 37
C.F.R. § 41.37(c)(1)(iv).
Revised Guidance, Step 2B
Under the Revised Guidance, if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, we then look 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.
See Revised Guidance, 84 Fed. Reg. at 56.
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Appellant argues the Examiner failed to provide a factual finding that
additional elements outside of the judicial exception are well understood,
routine or conventional, required under Berkheimer v. HP Inc., 881 F.3d
1360 (Fed. Cir. 2018). Reply Br. 5–6, 8–9, 13, and 17. A Berkheimer
factual finding is required for additional elements or a combination of
additional elements outside of the identified abstract idea. See Berkheimer
Memo7, p. 2 (“the Berkheimer decision . . . does provide clarification as to
the inquiry into whether an additional element (or combination of additional
elements) represents well-understood, routine, conventional activity”
(emphasis added)).
Here, the Examiner found that the additional elements outside of the
abstract idea were an “electronic data store” and a “computing system
comprising one or more computing devices”. Ans. 5, 9, 13, and 16–17.
Additionally, Appellant argues “determining a weighted rating” is an
additional element. Reply Br. 6. However, the Examiner made a
determination that the weighted rating limitation was part of the abstract
idea. Ans. 7–8, 12–13, 15–16. We agree with the Examiner that a weighted
rating determination is part of the abstract idea, as discussed supra. The
Examiner further found these additional elements were generic, and recited
at a high level of generality. Id. We further determine the “computer-
readable non-transitory storage medium”, recited in claims 18–23, are
additional elements outside of the abstract idea.

7 Memorandum on Changes in Examination Procedure Pertaining to Subject
Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v.
HP, Inc.) (Apr. 19, 2018) available at:
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF
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As noted supra, we determine that the additional elements are generic
computer components and that the remaining claim limitations fail to recite a
technological improvement. With respect to the additional elements,
Appellant admits in the Specification that these additional elements are
“conventional”. Spec. ¶¶ 17–19, FIG. 2. As noted in Berkheimer:
[N]ot every § 101 determination contains genuine disputes over
the underlying facts material to the § 101 inquiry. See, e.g.,
Content Extraction, 776 F.3d at 1349 (patent owner conceded the
argued inventive concept "was a routine function of scanning
technology at the time the claims were filed"); Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370
(Fed. Cir. 2015) (patent owner argued an "interactive interface"
is "a specific application of the abstract idea that provides an
inventive concept" and did not dispute that the computer
interface was generic)
Berkheimer, 881 F.3d 1360, 1368.
Accordingly, on the record before us, we disagree with Appellant that
the claims add a specific limitation beyond the judicial exception that is not
“well-understood, routine, [and] conventional” in the field (see MPEP
§ 2106.05(d)). We find no reversible error in the Examiner’s determination
that the additional element reciting a processor executing automated process
steps is nothing more than a generic element. See Ans. 5, 9, 13, and 16–17.
In fact, as noted supra, the Specification supports the Examiner’s finding
that additionally recited elements are generic computer elements performing
generic computer functions, by admitting the conventional nature of such
elements. Spec. ¶¶ 17–19, FIG. 2.
Furthermore, the claims do not sufficiently recite how additional
elements reciting an “electronic data store”, a “computing system
comprising one or more computing devices” and a “computer-readable non-
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transitory storage medium” leads to an improvement in computer database
technology through some “non-conventional and non-generic arrangement
of known, conventional pieces.” BASCOM, 827 F.3d at 1349–52.
Appellant does not argue dependent claims 4–10, 13–15, 17, and 19–
23 separately with particularity, but assert the rejection of those claims
should be withdrawn for at least the same reasons as argued for the
independent claims. Reply Br. 10, 14, and 18. In light of the foregoing, we
conclude that each of claims 1–23, considered as a whole, are directed to a
patent-ineligible abstract idea that is not integrated into a practical
application, and does not include an inventive concept.
Accordingly, for the reasons discussed above, we sustain the
Examiner’s rejection under 35 U.S.C. § 101 of claims 1–23.8

ANTICIPATION AND OBVIOUSNESS REJECTIONS
ISSUE
Under 35 U.S.C. § 102(a), has the Examiner erred in (1) rejecting
independent claim 3 by finding Pinckney discloses the disputed limitations
“determine an environment similarity score associated with the review,
wherein the environment similarity score is determined based at least in part
by comparing the one or more environment attributes associated with the
geographic location of the user and the one or more environment attributes
associated with the geographic location of the reviewer” (hereinafter “L1”);
and “generate a weighted rating for the item, wherein the weighted rating is

8 To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. See
37 C.F.R. § 41.37(c)(1)(iv).
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generated based at least in part by assigning a weight to each of the
plurality of reviews, wherein the weight assigned to each review is based at
least in part on the environment similarity score determined for the review”
(hereinafter “L2”); under 35 U.S.C. § 103(a), has the Examiner erred in (2)
rejecting independent claim 1 by finding the combined teachings of
Pinckney in view of Lerner teach or suggest limitation L1 and limitations
similar to L2?; (3) rejecting independent claims 12 by finding the combined
teachings of Pinckney in view of Franson teach or suggest limitations
substantially similar to L1 and L2?; and (4) rejecting independent claims 12
and 18 by finding the combined teachings of Pinckney in view of Franson
teach or suggest limitations substantially similar to L1 and L2?

ANALYSIS
Rejection B of claims 3–8 and 11 under 102(a)
In rejecting claims 3–8 and 11, the Examiner finds Pinckney discloses
determining an environment similarity score based on a comparison of
respective environment attributes associated with a geographic location of a
user and a geographic location associated with a reviewer, which the
Examiner maps to the limitation
[L1] determine an environment similarity score associated with
the review, wherein the environment similarity score is
determined based at least in part by comparing the one or more
environment attributes associated with the geographic location
of the user and the one or more environment attributes associated
with the geographic location of the reviewer
recited in independent claim 3 (bracketed indicator added). Act. 3–6, 26;
Ans. 21–22 (citing Pinckney ¶¶ 82, 131, 141, 152–155, 168, 199–202, 209,
214–218, 237, 249, 259, 271, and 273).
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The Examiner further finds Pinckney discloses generating a weighted
rating for an item by assigning a weight to each of a plurality of reviews,
wherein assigning weight is based on the environment similarity score
recited in L1, which the Examiner maps to the limitation
[L2] generate a weighted rating for the item, wherein the
weighted rating is generated based at least in part by assigning a
weight to each of the plurality of reviews, wherein the weight
assigned to each review is based at least in part on the
environment similarity score determined for the review
recited in independent claim 3 (bracketed indicator added). Act. 5–6, 25;
Ans. 19–22 (citing Pinckney ¶¶ 141, 152–155, 168, 199–202, 208, 209, 214–
216, 222–223, 249, and 273). We agree with the Examiner.
First, Appellant argues Pinckney fails to disclose limitation L1,
because, although Pinckney does disclose “weather”, Pinckney fails to
disclose using weather in the context of an environmental similarity score.
App. Br. 13. Appellant further argues that although Pinckney suggests
determining a similarity between a user and other users based on a number
of factors, “there is no suggestion that this takes into account similarities in
weather or other environment attributes between a geographic location of a
user and a geographic location of a reviewer.” Id. We disagree with the
Appellant.
As noted by the Examiner (Ans. 21–22, citing i.e., ¶¶ 168, 199–202 of
Pinckney), Pinckney discloses matching users according to a degree of
similarity between them, which can be “computed” or “ranked” based on
contextual information of the users, wherein one of the users can be a
reviewer of a product:
the present invention may facilitate matching by user similarity .
. . [f]or example . . . provide a ranked list of other . . . users who
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have similar tastes over all or in some specific way . . . user
similarity may be computed via asking a user questions about
themselves, looking at their social graph, using context like their
location, IP address, time, and the like . . . [f]or example . . .
users who have written reviews on Amazon to find users . . . who
are most like me . . . in order to give me a laptop recommendation.
[T]he present invention may facilitate real-time personalization,
such as making recommendations that immediately reflect new
information from a user . . . their context such as changing
location etc. to re-rank recommendations or otherwise improve
results. [T]he present invention may match based on context,
such as location, time, weather, social graph, and the like . . . this
process may then be used in a mobile application that has access
to location data via GPS.
Pinckney ¶¶ 199–202 (italics added).

Pinckney further discloses the contextual information used to
determine a degree of similarity between users, referred to above, includes
“the weather at the user’s location”. Pinckney ¶ 168. Accordingly,
Pinckney discloses determining “environment similarity” (i.e., computed
and ranked similarity) based on a comparison of “environment attributes”
(i.e., weather) associated with a geographic location of a user and a
geographic location associated with a reviewer (i.e., weather at the users
location), recited in L1. Additionally, we find Appellant’s contention that ¶
202 of Pinckney does “not select[] a similar user” (App. Br. 13) unavailing
since Pinckney refers to matching based on context to refer to the matching
of users based on similarity rather than “selecting a recommendation” (i.e.,
Pinckney ¶¶ 168, 199–201). Furthermore, ¶ 202 of Pinckney states “the
present invention may match based on context, such as location, time,
weather, social graph, and the like” (emphasis added). Pinckney explicitly
discloses that contextual matching, based on social graphs for example,
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occurs between users rather than a selectable recommendation and a user.
Pinckney ¶ 199.
Second, with respect to L2, we find Appellant’s argument (App. Br.
10–12, Reply Br. 19) that Pinckney does not weight different reviews for the
same item, but rather, only discloses recommending different things to do
(i.e. go to a museum or some other activity) unpersuasive. We agree with
the Examiner (Act. 19–20, citing i.e., ¶¶ 209, 214–216 of Pinckney) that
Pinckney provides multiple disclosures of weighting different reviews for
the same item. For example, Pinckney discloses a response provided to a
user recommending a product, includes a list of reviews, wherein the
reviews are sorted by each review author’s similarity to the user:
The response may provide a recommendation for a product . . .
the response provides information to the user that shows the
second user as a similar person . . . the query may be a search
request, and the response may be a search result ranked
according to the search result selections of the at least second
user . . . information may consist of at least one of product
information . . . a review, comments, and ratings . . . [t]he
response may be a list of reviews sorted by a review author's
similarity to the user reading the reviews.
Pinckney ¶ 209 (italics added).
Pinckney provides further support for the Examiner’s findings that
multiple reviews from similar users are generated with respect to a single
item. “[A] user . . . may want to know what other similar users thought of
some product, service, person, event, and the like . . . provide reviews . . .
from similar users”. Appellant argues that “ranking” a set of items or search
results does not teach or suggest generating a “weighted rating” for a single
item. As discussed supra, Pinckney discloses generating a weighted set of
reviews for an item based a user’s environmental attribute similarity to a
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reviewer (i.e., Pinckney ¶¶ 209, 214–216). Furthermore, Appellant does not
provide a limiting definition for “rating” that would exclude such the
disclosure in Pinckney from anticipating a “weighted rating”. For example,
the Specification indicates a “rating” could be a “numeric rating”, a number
of users that have found a review helpful, a date the review was submitted
by a reviewer or “other information” (Spec. ¶ 13) and that the process of
generating a “weight” for a review encompasses determining relative
similarity scores for each review. Spec. ¶ 34 (“ranking module 125 may
determine a given environment attribute as having a relatively high weight in
determining a similarity score for a review”). Accordingly, Pinckney’s
disclosure of a ranked, sorted and weighted reviews (i.e., Pinckney ¶¶ 141,
201, 209, 214–216, 249) anticipates the limitation “weighted rating”.
Additionally, Appellant cites Kennametal, Inc. v. Ingersoll Cutting
Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015) to argue that because the
Examiner uses “citations to different aspects or embodiments of Pinckney”,
the anticipation rejection is improper. Reply Br. 20. However, the authority
cited by Appellant does not support the conclusion citing to different aspects
in a single reference results in an improper anticipation rejection. Rather,
Kennametal upheld an anticipation rejection where there was “no evidence”
in the reference of actual performance of combining two elements required
in the rejected claim because a reference disclosure can anticipate a claim
even if the reference does not describe “the limitations arranged or combined
as in the claim, if a person of skill in the art, reading the reference, would ‘at
once envisage’ the claimed arrangement or combination.” 780 F.3d at 1381;
Accord MPEP 2132.02, Section III.
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For the above-stated reasons, we are not persuaded by Appellant’s
arguments that the Examiner erred in finding the disclosure of Pinckney
anticipates the disputed features of claim 3. Therefore, we sustain the
35 U.S.C. § 102(a) rejection of independent claim 3 and dependent claims
4–8 and 11, which are not argued separately with sufficient particularity.
See App. Br. 14.9

Rejection C of claims 1–2 under 103(a)
With respect to independent claim 1, Appellant repeats the same
arguments discussed in Rejection B with respect to disputed limitations L1
and L2. App. Br. 25–26. Accordingly, we find this argument unpersuasive
for the reasons discussed supra.
Additionally, we find Appellant’s argument (App. Br. 26) that Lerner
does not disclose reviews of an item unavailing since the Examiner cites
Pinckney, rather than Lerner as disclosing this limitation. Act. 20–21.
Additionally, Appellant does not argue the Examiner’s modification of
Pinckney by Lerner in the obviousness rejection is improper.
Accordingly, we are not persuaded by Appellant’s arguments that the
Examiner erred in finding the combined teachings and suggestions of
Pinckney and Lerner render obvious the disputed features of claim 1.
Therefore, we sustain the 35 U.S.C. § 103(a) rejection of independent claim
1 and dependent claim 2, which is not argued separately with sufficient
particularity. See App. Br. 27.

9 To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. See
37 C.F.R. § 41.37(c)(1)(iv).
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Rejection D of claims 9, 10, and 12–23 under 103(a)
With respect to dependent claim 9, Appellant repeats the same
arguments discussed in Rejection B with respect to disputed limitations L1
and L2. App. Br. 15–16. With respect to dependent claim 10, Appellant
repeats the same arguments discussed in Rejection B with respect to disputed
limitation L1 and L2. App. Br. 16. With respect to independent claim 12,
Appellant repeats the same arguments discussed in Rejection B with respect
to disputed limitation L2. App. Br. 17–18 (“as discussed above with
reference to Claim 3, the various recommendations in Pinckney are not
indicated as being a plurality of recommendations for a single item, but
instead as each being a recommendation for a user to do a different activity
or go to a different place”). With respect to independent claim 18, Appellant
repeats the same arguments discussed in Rejection B with respect to disputed
limitation L1 (App. Br. 22–23) and L2 (App. Br. 19–22). Accordingly, we
find these arguments unpersuasive for the reasons discussed supra.
Additionally, we disagree with Appellant’s arguments that although
Franson may disclose a weighted average rating (App. Br. 15–16), Franson
fails to teach: (1) relating the weighted average rating to a geographic
location (App. Br. 15–16, arguing claim 9); (2) a relevance scores for
reviews (App. Br. 18–19, arguing claim 12); (3) one or more environmental
attributes of the geographic location associated with the reviewer (App. Br.
23–24, arguing claim 18) because for each of arguments (1)–(3), the
Examiner cites Pinckney, rather than Franson as disclosing the disputed
limitations. Act. 8–9 (disputed features of argument (1)); 9–11 (disputed
features of argument (2)); 14–16 (disputed features of argument (3)).
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Furthermore, for each of claims 9, 10, 12 and 18, Appellant does not
argue the Examiner’s modification of Pinckney by Franson in the
obviousness rejection is improper. See generally, App. Br.
Accordingly, we are not persuaded by Appellant’s arguments that the
Examiner erred in finding the combined teachings and suggestions of
Pinckney and Franson render obvious the disputed features of claims 9, 10,
12, or 18. Therefore, we sustain the 35 U.S.C. § 103(a) rejection of
dependent claims 9 and 10 and the 35 U.S.C. § 103(a) rejection of
independent claims 12 and 18.
Therefore, we sustain the 35 U.S.C. § 103(a) rejection of claims 9, 10,
12, and 18 and dependent claims 13–17 and 19–23, which are not argued
separately with sufficient particularity.10 See App. Br. 19, 24.

DECISION
We affirm the Examiner’s rejection of claims 1–23 under 35 U.S.C.
§ 101.
We affirm the Examiner’s anticipation rejection of claims 3–8 and 11
under 35 U.S.C. § 102(a).
We affirm the Examiner’s obviousness rejection of claims 1–2, 9, 10,
and 12–23 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with

10 To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. See 37
C.F.R. § 41.37(c)(1)(iv).
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this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED