Kevin Willeitner et al.

Patent Trials and Appeals Board

Oct 30, 2019

12572727 - (D) (P.T.A.B. Oct. 30, 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.
12/572,727 10/02/2009 Kevin Willeitner 058083-0857808 (O0092) 4511
72058 7590 10/30/2019
Kilpatrick Townsend & Stockton LLP
Adobe Systems, Inc. 58083
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
EXAMINER
KUCAB, JAMIE R
ART UNIT PAPER NUMBER
3685
NOTIFICATION DATE DELIVERY MODE
10/30/2019 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN WILLEITNER and MATT BELKIN
____________

Appeal 2018-005081
Application 12/572,727
Technology Center 3600
____________

Before, JENNIFER L. McKEOWN, JASON J. CHUNG, and CARL L.
SILVERMAN, Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–15, 18–21, and 24–27, which constitute all
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Adobe
Systems Incorporated as the real party in interest. Appeal Br. 3.

Appeal 2018-005081
Application 12/572,727

2
STATEMENT OF THE CASE
The invention relates to analysis of marketing campaigns. Abstract;
Spec. ¶¶ 3–7, Figs. 1, 2. Claim 1, reproduced below, is exemplary of the
subject matter on appeal (emphases added):

1. A computer-implemented method for dynamically
updating information in a report displayed on a graphical user
interface, comprising:
executing, by one or more computing devices, computer-
executable instructions, which, when executed by one or more
processors, cause the one or more computing devices to
perform
a method comprising:
receiving from a data analytics server, for each of a
plurality of online consumers, data describing one or more
paths taken by the online consumer through one or more
internet marketing items to a website, wherein each path is a
sequence of consumer exposures to one or more of the internet
marketing items, and wherein the internet marketing items
comprise internet marketing channels and internet marketing
campaigns;
measuring past revenue events generated through the
website, each revenue event being associated with at least one
consumer exposure to at least one of the internet marketing
items;
generating, based on the received data describing the
paths taken by each online consumer and based on the
measured past revenue events, an interactive report specifying
at least one allocation of at least one measured past revenue
event to each of the internet marketing items in the paths taken
by the plurality of online consumers, the at least one allocation
being based on an initial value of an allocation parameter,
wherein each allocation specifies a respective contribution of
each of the internet marketing items to the at least one
measured past revenue event;
Appeal 2018-005081
Application 12/572,727

3
displaying on a display device the generated interactive
report and a user interface element for adjusting the allocation
parameter;
responsive to user input received from a user input
device manipulating the user interface element, determining a
revised value of the allocation parameter; and
in response to determining the revised value of the
allocation parameter, updating the generated interactive report
to specify at least one revised allocation of the at least one
measured past revenue event to each of the internet marketing
items, the at least one revised allocation being based on the
revised value of the allocation parameter, wherein each revised
allocation specifies a respective updated contribution of each of
the internet marketing items to the at least one measured past
revenue event.

Appeal Br. 19–20 (Claims Appendix).

THE REJECTIONS
Claims 1–15, 18–21, and 24–27 are rejected under 35 U.S.C. § 101
because the claimed invention is directed to patent-ineligible subject matter.
Final Act. 2–4.
Claims 18–21 are additionally rejected under 35 U.S.C. § 101 because
the claims cover transitory propagating signals. Final Act. 4.

ANALYSIS
PRINCIPLES OF LAW
Patent-eligible subject matter is defined in 35 U.S.C. § 101 of the
Patent Act, which recites:
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new and
Appeal 2018-005081
Application 12/572,727

4
useful improvement thereof, may obtain a patent therefor, subject
to the conditions and requirements of this title.
There are, however, three judicially created exceptions to the broad
categories of patent-eligible subject matter in 35 U.S.C. § 101: “‘[l]aws of
nature, natural phenomena, and abstract ideas.’” Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quotation marks and citation
omitted); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
70 (2012) (brackets in original).
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. See Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–77).
In accordance with that framework, we first determine what concept the
claim is “directed to.” See id. 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, 69 (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.
Appeal 2018-005081
Application 12/572,727

5
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 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 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
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). “A claim that
recites an abstract idea must include ‘additional features’ to ensure ‘that the
[claim] is more than a drafting effort designed to monopolize the [abstract
idea].’” Id. (quoting Mayo, 566 U.S. at 77, (alteration in original)).
Appeal 2018-005081
Application 12/572,727

6
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The United States Patent and Trademark Office (“USPTO”) recently
published revised guidance on the application of § 101. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Guidance”). Under that guidance, we first determine 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 MPEP § 2106.05(a)–(c), (e)–(h)).
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, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 54–56.
A claim that integrates a judicial exception into a practical application
applies, relies on, or uses 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. See Guidance,
84 Fed. Reg. at 54. When the judicial exception is so integrated, then the
claim is not directed to a judicial exception and is patent eligible under
§ 101. Id.
Appeal 2018-005081
Application 12/572,727

7
The § 101 Rejection of claims 1–15, 18–21, and 24–27
The Examiner determines claim 1,
is directed to receiving data describing consumers paths
through marketing items to a destination, measuring revenue
events at the destination and associated with at least one exposure
to one of the marketing items, generating a report specifying an
allocation of the contribution of the marketing items to the past
revenue events, displaying the report, and updating the report
based on a user altering an allocation parameters. This is
considered an abstract idea of attributing revenue to marketing
events.

This is similar to other concepts that have been identified
as abstract by the courts, such as using categories to organize,
store and transmit information in Cyberfone Sys., LLC v. CNN
Interactive Grp., Inc., 558 F.App’x 988 (Fed. Cir. 2014),
computerized meal planning in DietGoal Innovations LLC v.
Bravo Media LLC, 599 Fed. Appx. 956 (Fed. Cir. 2015),
cataloging labor data in Shortridge v. Foundation Construction
Payroll Service, LLC, 655 Fed.Appx. 848 (Fed. Cir. 2016), and
offer-based price optimization in OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015). Therefore,
an abstract idea is present in the claims.

The claims do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the additional limitations, such as the internet,
a website, computing devices, processors, a user input device, a
display device, and a user interface element, are not positively
claimed, represent insignificant data-gathering steps,
insignificant extra-solution activity, generic/routine computer
technology, and/or merely limit the use of the idea to a particular
technological environment. Specifica[]lly regarding the
interactive report and user interface elements, Applicant
discloses these as conventionally implement[]ed via Microsoft
Excel at [0024] of the PGPub of the instant application. Viewing
Appeal 2018-005081
Application 12/572,727

8
the additional elements as a combination does not add anything
further than the individual elements. Therefore, the additional
elements in the claim are not sufficient to amount to significantly
more than the abstract idea.

Final Act. 2–4.
The Examiner applies the same reasoning to the rejection of
independent claims 18 and 24. Id. at 3.
Appellant argues the claims2 recite a particular solution to a problem
or a particular way to achieve a desired outcome, similar to McRO in which
the Federal Circuit found that claims are not directed to an abstract idea
when they recite “a specific means or method that improves the relevant
technology,” rather than being “instead directed to a result or effect that
itself is the abstract idea and merely invoke[s] generic processes and
machinery.” Appeal Br. 9 (citing McRO, Inc. v. Bandai Namco Games Am.
Inc., 837 F.3d 1299, (Fed. Cir. 2016)). According to Appellant, the
Specification describes technical problems associated with determining the
effects of different allocations of value to various marketing items and
describes that prior art processes are manual and cumbersome. Id. (citing
Spec. ¶¶ 5, 6). The desired outcome is to create a single, automated, and
dynamic method for generating, visualizing, and comparing the different
allocations of values to marketing items. Id. (citing Spec. ¶¶ 3, 4). The
Specification describes a particular way to solve this problem and achieve

2 Appellant groups claims 1, 18, and 24, all of which recite limitations
commensurate in scope, together for argument, and we choose claim 1 as
representative. 37 C.F.R. § 41.37(c)(iv).
Appeal 2018-005081
Application 12/572,727

9
the desired outcome. Id. (citing Spec. ¶¶ 19, 20, 65, 75). In particular,
Appellant argues claim 1 captures the disclosed solution by reciting:
receiving from a data analytics server, for each of a
plurality of online consumers, data describing one or more paths
taken by the online consumer through one or more internet
marketing items to a website, wherein each path is a sequence of
consumer exposures to one or more of the internet marketing
items, and wherein the internet marketing items comprise
internet marketing channels and internet marketing campaigns;
measuring past revenue events generated through the
website, each revenue event being associated with at least one
consumer exposure to at least one of the internet marketing
items;
generating, based on the received data describing the paths
taken by each online consumer and based on the measured past
revenue events, an interactive report specifying at least one
allocation of at least one measured past revenue event to each of
the internet marketing items in the paths taken by the plurality of
online consumers, the at least one allocation being based on an
initial value of an allocation parameter, wherein each allocation
specifies a respective contribution of each of the internet
marketing items to the at least one measured past revenue event;
displaying on a display device the generated interactive
report and a user interface element for adjusting the allocation
parameter;
responsive to user input received from a user input device
manipulating the user interface element, determining a revised
value of the allocation parameter; and
in response to determining the revised value of the
allocation parameter, updating the generated interactive report to
specify at least one revised allocation of the at least one measured
past revenue event to each of the internet marketing items, the at
least one revised allocation being based on the revised value of
the allocation parameter, wherein each revised allocation
specifies a respective updated contribution of each of the internet
marketing items to the at least one measured past revenue event.

Appeal 2018-005081
Application 12/572,727

10
Id. at 10–11.
According to Appellant, the above combination of features, similar to
McRO, resolves problems found in the prior art in a particular way and
achieves the desired outcome of allowing “an analyst to see the effect of
changing allocations in a dynamic real-time manner that avoids the
inconvenience and limitations of prior art techniques.” Id. at 11 (citing
McRO; Spec. ¶ 6). Appellant asserts that in “prior art methods the analyst is
unable to see and react to relevant data in real-time and instead must rely on
ex post facto reports to determine whether to adjust allocations of measured
past revenue events to internet marketing item. Thus Appellant's claims
recite specific ways to achieve a desired outcome that improves over the
prior art, not merely generic recitations of computer operations.” Id.
Appellant argues the “claims are not directed to an abstract idea because
they are directed to an improvement in computer-related Technology.” Id. at
13.
Appellant argues the cases cited by the Examiner are inapplicable
because several are non precedential and others are inapplicable. Id. at 12–
13. Appellant argues the claims are not directed to an abstract idea because
they do not preempt other means for practicing the alleged abstract idea. Id.
at 13.
Appellant argues, even if the claims are directed to an abstract idea,
the claims amount to significantly more than the abstract idea. Id. at 14.
According to Appellant, the claims “include meaningful features that go
beyond generally linking the use of an abstract idea to an abstract
technological environment. The claims also add specific limitations other
Appeal 2018-005081
Application 12/572,727

11
than what is well-understood, routine and conventional in the field or
unconventional steps that confine the claims to a particular useful
application.” Appellant asserts that “the claims” recite additional elements:
receiving from a data analytics server, for each of a
plurality of online consumers, data describing one or more paths
taken by the online consumer through one or more internet
marketing items to a website, wherein each path is a sequence of
consumer exposures to one or more of the internet marketing
items, and wherein the internet marketing items comprise
internet marketing channels and internet marketing campaigns;
measuring past revenue events generated through the
website, each revenue event being associated with at least one
consumer exposure to at least one of the internet marketing
items;
generating, by an allocation adjuster, an interactive report
based on the received data describing customer exposures to
marketing items and data describing the revenue events
associated with the customer exposures, together with an initial
allocation parameter value;
responding, by an allocation adjuster, to user input for
adjusting the allocation parameter value;
in response to determining the revised value of the
allocation parameter, updating, by an allocation adjuster, the
generated interactive report to specify at least one revised
allocation of the at least one measured past revenue event to each
of the internet marketing items.

Id. at 14.
Appellant argues these additional elements are directed to more than
simply “attributing revenue to marketing events” and “[t]he additional
elements are significantly more because (a) the claimed solution is
necessarily rooted in computer technology and (b) the combination of the
claim elements is a non-conventional and non-generic arrangement.” Id.
Appeal 2018-005081
Application 12/572,727

12
Appellant argues, like the claims in DDR, “the claims overcome a
problem of allocation of values to different internet marketing items, a
problem that did not exist before the pre-Internet world. It improves upon
prior art with a technology centric solution. The claims do not simply
take an abstract business method from the pre-Internet world and implement
it on a computer.” Id. at 15 (citing DDR Holdings, LLC v. Hotels.com, LP
773 F.3d 1257 (Fed. Cir. 2014).
Appellant argues the combination of the claim elements is a non-
conventional and non-generic arrangement and the Examiner errs in finding
“the interactive report and user interface elements, are disclosed
conventionally [implemented] via Microsoft Excel at paragraph 24 of the
Specification and that viewing the additional elements as a combination does
not add anything further than the individual elements.” Id. at 16 (citing
Final Act. 3). According to Appellant, under Bascom:
It is not the recitation of a generic computer that improves
the underlying computer-related technology. Instead, the
invention measures past revenue events that are associated with
previous internet marketing events, attributing value to those
internet marketing events based on an allocation parameters,
generates a visual report for attributing value to marketing items,
and dynamically updates them based on a user interface element
in order to provide a technologically method for users to achieve
this result.

Id. at 16.
Appellant further argues, even if these claim elements are known or
conventional if considered individually, the claims recite an inventive
concept when their elements are considered as an ordered combination
Appeal 2018-005081
Application 12/572,727

13
because they result in non-conventional and non-generic arrangement of
elements. Id. at 17. Appellant notes that the only rejection of the claims is
under 35 U.S.C. § 101. Id.
In the Answer, the Examiner finds that McRO solves a technical
problem whereas the claims solves a business problem by replacing the
manual task of running multiple reports with a process automated with
conventional GUI elements. Ans. 5. The Examiner reasons that, because
this is a business problem overcome with conventional technology, McRO is
not an apt analogy to the instant invention. Id. The Examiner cites
Maggioncalda (US 7,062,458) as evidence that such elements are
conventional, and also refers to the description of implementation via
Microsoft Excel at paragraph 24 of the Specification as further evidence that
this is conventional technology applied to a known business problem. Id.
(citing Spec. ¶ 24).
The Examiner provides reasoning why, although non-precedential,
Cyberfone, DietGoal, and Shortridge are applicable because the “facts of the
cited case(s) uniquely match the facts of the present situation.” Id. at 5–6.
Regarding OIP Techs, the Examiner determines “broadly claimed
automation and extra-solution activity have both been found to be
conventional” and “those aspects of the invention that Appellant points to
beyond the abstract idea are simply conventional or extra solution
activity.” Id. at 6. The Examiner states that preemption is not a standalone
test for patent eligibility. Id. at 6–7.
The Examiner refers to the limitations asserted by Appellant as
showing “significantly more” and provides rebuttal (italicized):
Appeal 2018-005081
Application 12/572,727

14
“receiving ... data ... ” This is extrasolution activity.
“measuring past revenue events ... ” This reads on
logging data, which is again extrasolution activity.
“generating ... an interactive report ... ” This is
extrasolution activity. It is also part of the identified abstract
idea.
“responding, by an allocation adjuster, to user input for
adjusting the allocation parameter.” This reads on changing a
value with a slider, which is conventional and nearly as old as
graphical user interfaces. See DietGoal and Maggioncalda. It
is also part of the identified abstract idea.
“responding, by an allocation adjuster, to user input for
adjusting the allocation parameter value.” Here again, the
aspects of this limitation that go beyond the abstract idea of
attributing revenue are simply conventional graphical user
interface components.
“in response to determining the revised value .. updating
... the generated interactive report ... ” This is central to the
abstract idea. It is the attribution of the revenue. And, again,
that which is not the attribution itself is simply conventional
graphical user interface technology.

Id. at 7.
Regarding “necessarily rooted in computer technology,” the Examiner
determines that the claim is directed to the abstract idea of attributing
revenue to marketing events and “[t]his abstract idea is limited by
the claims to the particular field of graphical user interfaces, but such
limitations do not confer eligibility to the claims.” Id. at 8. Regarding
Bascom, the Examiner disagrees with Appellant’s argument that there is a
technical solution in the claims and an inventive concept. Id. In particular,
the Examiner determines:
Regarding the specificity of the technical solution, it
appears that Appellant's claimed GUI ("user interface element")
Appeal 2018-005081
Application 12/572,727

15
is so broad as to preempt any GUI capable of adjusting a single
parameter. Therefore, this does not amount to a specific technical
solution. Regarding the inventive concept, the Examiner again
refers to Maggioncalda (US 7,062,458) and Appellant's own
specification at [0024] as evidence that the elements used to
implement the abstract idea are conventional. Additionally,
regarding the arrangement of the individual limitations, their
arrangement appears to be a straightforward implementation of
the identified abstract idea in order to address a business
problem.

Id. (Emphasis added).
In the Reply Brief, Appellant argues, in Berkheimer, “[w]hether a
particular technology is well-understood, routine, and conventional goes
beyond what was simply known in the prior art. The mere fact that
something is disclosed in a piece of prior art, for example, does not mean it
was well-understood, routine, and conventional.” Reply Br. 2 (citing
Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018)). According to
Appellant, the Examiner's citation to the existence of prior art containing a
similar technology is insufficient to show that the claims implement a
solution using only conventional technology. Id. Appellant argues the
Examiner provides no other evidence or rationale to support his conclusion
and nor does the Examiner otherwise refute that the Specification shows
how the invention improves internet marketing technology. Id.
Appellant argues the Examiner improperly cites non-precedential
decisions in finding the claims to be directed to an abstract idea and does not
present sufficient facts that the claims “uniquely match” these cases. Id. at
2–3.
Appeal 2018-005081
Application 12/572,727

16
Regarding “significantly more than an abstract idea,” Appellant
reiterates the Appeal Brief argument that the claims address “a technological
problem ‘particular to the internet’ by implementing a solution specific to
that technological environment” and that the “combination of the claim
elements is a non-conventional and non-generic arrangement.” Id. at 4–5
(citing Appeal Br. 14–16). Appellant reiterates that Berkheimer clearly
holds that the existence of prior art is not determinative as to whether a
technology is conventional, and the Examiner has failed to provide sufficient
rationale for why each claim, as an ordered combination, is a “understood,
routine, conventional activity.” Id. at 5.
Regarding the dependent claims, Appellant argues the Examiner errs
because the rejection of claim 2 is conclusory and is insufficient to support
the rejection of claim 2 as well as the other dependent claims. Appeal Br. 7–
9; Reply Br. 5–6. In the Answer, the Examiner explains that the same
reasoning applied to the independent claim, discussed supra, also applies to
the dependent claims. Ans. 4–5. In particular, the Examiner determines:
The dependent claims add elements that are not positively
claimed, represent insignificant data-gathering steps,
insignificant extra-solution activity, generic/routine computer
technology, and/or merely limit the use of the idea to a particular
technological environment. For example, claim 2 adds
“displaying a control for specifying the revised value of the
allocation parameter along a continuum of allocation parameter
values.” This is simply a more specific form of extrasolution
activity and such display of data has been [determined] to not be
“significantly more.”

Id. at 5.
Appeal 2018-005081
Application 12/572,727

17
Below, pursuant to the Guidelines, claim 1 is reviewed with regard to
reciting the abstract ideas of mental processes and organizing human
activity. The claim 1 limitations may be parsed as set forth below wherein
elements that reflect recitation of these abstract ideas are italicized:
1. A computer-implemented method for dynamically updating
information in a report displayed on a graphical user
interface, comprising:
executing, by one or more computing devices, computer-
executable instructions, which, when executed by one or more
processors, cause the one or more computing devices to perform
a method comprising:

receiving from a data analytics server, for each of a
plurality of online consumers, data describing one or more
paths taken by the online consumer through one or more
internet marketing items to a website, wherein each path is a
sequence of consumer exposures to one or more of the internet
marketing items, and wherein the internet marketing items
comprise internet marketing channels and internet marketing
campaigns;
measuring past revenue events generated through the
website, each revenue event being associated with at least one
consumer exposure to at least one of the internet marketing
items;
generating, based on the received data describing the
paths taken by each online consumer and based on the
measured past revenue events, an interactive report specifying
at least one allocation of at least one measured past revenue
event to each of the internet marketing items in the paths taken
by the plurality of online consumers, the at least one allocation
being based on an initial value of an allocation parameter,
wherein each allocation specifies a respective contribution of
each of the internet marketing items to the at least one
measured past revenue event;
Appeal 2018-005081
Application 12/572,727

18
displaying on a display device the generated interactive
report and a user interface element for adjusting the allocation
parameter;
responsive to user input received from a user input
device manipulating the user interface element, determining a
revised value of the allocation parameter; and
in response to determining the revised value of the
allocation parameter, updating the generated interactive report
to specify at least one revised allocation of the at least one
measured past revenue event to each of the internet marketing
items, the at least one revised allocation being based on the
revised value of the allocation parameter, wherein each revised
allocation specifies a respective updated contribution of each of
the internet marketing items to the at least one measured past
revenue event.

Each of the italicized limitations can be performed as mental
processes. If a method can be performed by human thought alone, or by a
human using pen and paper, it is merely an abstract idea and is not patent
eligible under § 101. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1372–73 (Fed. Cir. 2011); “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.” Id. at 1375. See
also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146–47
(Fed. Cir. 2016).
Here, the claim is broadly written and recites attributing revenue to
marketing events. In particular, receiving . . . data describing one or more
paths taken by the . . . consumer wherein each path is a sequence of
consumer exposure to marketing items can be done by an observer of
marketing activity which results in revenue and can be accomplished
Appeal 2018-005081
Application 12/572,727

19
mentally and by pen and paper. Measuring past revenue events . . . can be
done similarly. Similarly, generating . . . and interactive report . . . is a
mental process that can be done mentally and by pen and paper. Regarding
determining a revised value of the allocation parameter and updating the
generated interactive report, this is a mental process that can be done
mentally and by pen and paper. Likewise, the use of an allocation
parameter, and its adjustment, can be done mentally and by a human with
pen and paper.
In view of the above, we determine that claim 1 recites the abstract
idea of mental processes. Additionally, we note that the italicized
limitations also recite the abstract idea of organizing human activity, such as
“managing personal behavior or relationships or interactions between
people,” such as “social activities, teaching, and following rules or
instructions.” See Guidance, 84 Fed. Reg. at 52.
Even if claim 1 recites an abstract idea, the Federal Circuit explains
the “directed to” inquiry is not simply asking whether the claims involve a
patent-ineligible concept:
The “directed to” inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural
phenomenon—after all, they take place in the physical world.
See Mayo, 132 S.Ct. at 1293 (“For all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas.”). Rather, the “directed to”
inquiry applies a stage-one filter to claims, considered in light of
the specification, based on whether “their character as a whole is
directed to excluded subject matter.”
Appeal 2018-005081
Application 12/572,727

20
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016); see
also Diehr, 450 U.S. at 188 (“In determining the eligibility of respondents’
claimed process for patent protection under § 101, their claims must be
considered as a whole.”); McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314 (Fed. Cir. 2016) (the question is whether the claims as a
whole “focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery”).
Therefore, we proceed to Step 2A, Prong 2, of the Guidance to
determine whether additional elements recited in the claims beyond the
judicial exception of claim 1 integrate the abstract idea into a practical
application. Such additional elements may reflect an improvement to a
technology or technical field. See Guidance, 84 Fed. Reg. at 55.
As discussed below, there are no additional limitations recited beyond
the judicial exception itself that integrate the exception into a practical
application. More particularly, the claims do not recite: (i) an improvement
to the functionality of a computer or other technology or technical field (see
MPEP § 2106.05(a)); (ii) a “particular machine” to apply or use the judicial
exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an
article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other
meaningful limitation (see MPEP § 2106.05(e)). See also 84 Fed. Reg.
at 55.
We determine the additional elements of claim 1 do not integrate the
abstract idea into a practical application. We refer to the claim 1 limitations
in the preamble, in an information handling system comprising a processor
Appeal 2018-005081
Application 12/572,727

21
and a memory and the additional elements: computing devices, computer-
executable instructions, data analytics server, online, website, internet,
display device are also conventional elements. These additional elements
merely perform, or apply the abstract idea.
The claim is broadly written and the improvement, if any, of the claim
is in the abstract idea itself, not in the functionality of a computer or other
technology or technical field. No particular machine, no transformation, no
other meaningful limitation is persuasively argued by Appellant.
Additionally, the additional elements do not use the alleged abstract idea
in a meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment, such that the claim
as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP § 2106.05(e).
The additional elements merely include instructions to implement
an abstract idea on a computer and merely use a computer as a tool to
perform the abstract idea. See MPEP § 2106.05(f). As determined by the
Examiner, the limitations add insignificant extra-solution activity to the
abstract idea. See MPEP § 2106.05(g). The limitations merely use the
abstract idea by linking it to a particular technological environment. See
MPEP § 2106.05(e).
Because the additional elements of claim 1 do not integrate the
abstract idea into a practical application, we determine claim 1, and
independent claims 18 and 24, which are commensurate in scope with claim
1, are directed to an abstract idea. See Guidance, Step 2A, Prong 2.
Appeal 2018-005081
Application 12/572,727

22
Regarding the dependent claims, we are not persuaded by Appellant’s
arguments as the Examiner provides sufficient notice, and this is not
persuasively rebutted by Appellant. Here, the Examiner’s rejection is
sufficient and does not prevent the applicant from recognizing and seeking
to counter the grounds for rejection. Our reviewing court, regarding the
notice requirement as set forth by 35 U.S.C. § 132, explains:
[T]he PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
“notify[ing] the applicant ... [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application.” 35
U.S.C. § 132. That section “is violated when a rejection is so
uninformative that it prevents the applicant from recognizing and
seeking to counter the grounds for rejection.” Chester v. Miller,
906 F.2d 1574, 1578 (Fed.Cir.1990).
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
Therefore, dependent claims 2, 3–15, and 19–21 are directed to an
abstract idea.
Because we determine the claims are directed to an abstract idea, we
analyze the claims under step two of Alice to determine whether there are
additional limitations that individually, or as an ordered combination, ensure
the claims amount to “significantly more” than the abstract idea. Alice, 573
U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 72–73, 77–79 (2012)). As stated in the Guidance, many of the
considerations to determine whether the claims amount to “significantly
more” under step two of the Alice framework are already considered as part
of determining whether the judicial exception has been integrated into a
Appeal 2018-005081
Application 12/572,727

23
practical application. 84 Fed. Reg. at 56. Thus, at this point of our analysis,
we determine if the claims add a specific limitation, or combination of
limitations, that is not well-understood, routine, conventional activity in the
field, or simply appends well-understood, routine, conventional activities at
a high level of generality. Id.
As with the integration into a practical application analysis discussed
above, an inventive concept “cannot be furnished by the unpatentable law of
nature (or natural phenomenon or abstract idea) itself.” Genetic Techs. Ltd.
v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016); see also 84 Fed.
Reg. at 56; Alice, 573 U.S. at 217 (explaining that, after determining a claim
is directed to a judicial exception, “we then ask, ‘[w]hat else is there in the
claims before us?’” (emphasis added, brackets in original)
(quoting Mayo, 566 U.S. at 78)). Instead, an “inventive concept” is
furnished by an element or combination of elements that is recited in the
claim in addition to the judicial exception and sufficient to ensure the claim
as a whole amounts to significantly more than the judicial exception
itself. Alice, 573 U.S. at 218–19 (citing Mayo, 566 U.S. at 72–73); see BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018)
(explaining that the Supreme Court in Alice “only assessed whether the
claim limitations other than the invention’s use of the ineligible concept to
which it was directed were well-understood, routine and conventional,”
(emphasis added)).
On the record before us, the claims fail to recite specific limitations
(or a combination of limitations) that are not well-understood, routine, and
conventional. Rather, the additional elements (i.e., the “computer-
Appeal 2018-005081
Application 12/572,727

24
implemented, computing devices, processors, website, internet, display
device, user input device” ) are generic computer components recited at a
high level of generality or basic computer functions, none of which
Appellant argues is beyond what was well-understood, routine, and
conventional in the art. See Spec. ¶¶ 80–84, 86; see also Mortgage Grader,
Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir.
2016) (generic computer components such as an “interface,” “network,” and
“database” fail to satisfy the inventive concept requirement).
Regarding Berkheimer, we note that the Examiner’s rejection is based
on the combination of Maggioncalda and the Microsoft Excel discussion of
paragraph 24 of the Specification. See Final Act. 3 (referring to Spec. ¶ 24);
Ans. (referring to Maggioncalda and Spec. ¶ 24). Appellant presents no
persuasive arguments that the Examiner’s findings are incorrect. Mere
attorney arguments and conclusory statements that are unsupported by
factual evidence are entitled to little probative value. See In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984); Ex parte Belinne, Appeal 2009-004693, 2009 WL 2477843, at
*3–4 (BPAI Aug. 10, 2009) (informative). 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).
To the extent Appellant argues the claim recites a solution to a
problem in computer technology that adds significantly more, we note that
these steps are part of the ineligible abstract idea. “If a claim’s only
‘inventive concept’ is the application of an abstract idea using conventional
Appeal 2018-005081
Application 12/572,727

25
and well-understood techniques, the claim has not been transformed into a
patent-eligible application of an abstract idea.” BSG Tech, 899 F.3d at
1290–91 (citing Berkheimer v. HP Inc., 881 F.3d 1360, 1370 (Fed. Cir.
2018)). “[I]t is irrelevant whether [the claimed abstract idea] may have been
non-routine or unconventional as a factual matter . . . narrowing or
reformulating an abstract idea does not add ‘significantly more’ to it.” BSG
Tech, 899 F.3d at 1291.
Regarding case law cited by the Examiner and Appellant, we are not
persuaded by Appellant’s arguments. The claims here are unlike Enfish and
DDR as the claims before us are broadly written and do not recite an
improvement to a computer. As discussed supra, the claims at best recite an
improvement to an abstract idea. Because the claim does not solve a
problem in the software arts, claim 1 is unlike the technology-based
integrations cited by Appellant. For example in Enfish, the patent-eligible
claim was directed to a self-referential table to improve computer databases.
822 F.3d at 1337. Likewise, in McRO, the patent-eligible claim focused on a
specific asserted improvement in computer animation. By contrast, the
claims are, at best, an improvement to analyzing marketing campaigns.
Abstract; Spec. ¶¶ 2–7. Considering the claim as a whole, Appellant’s
invention lacks a technical solution to a technical problem like the claims in
these cases.
Regarding preemption, our reviewing court provides applicable
guidance: “While preemption may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate patent eligibility.”
Appeal 2018-005081
Application 12/572,727

26
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015); Ultramercial, 722 F.3d at 1346.
For the above reasons, Appellant has not persuaded us of Examiner
error, and we sustain the Examiner’s rejection of claims 1–15, 18–21, and
24–27 under 35 U.S.C. § 101.
The additional § 101 rejection of claims 18–21 (transitory
propagating signals)

Appellant argues that recitation of a storage medium indicates that the
recited computer program code is stored in a non-transitory manner. Appeal
Br. 17. The Examiner determines that claims 18–21 recite “computer-
readable storage medium” and interprets this phrase to include patent
ineligible transitory signals. Final Act 4; Ans. 8–9; Spec. ¶¶ 26, 27).
According to the Examiner, claims drawn to a “computer storage medium”
encompasses transitory signals, unless the specification explicitly discloses
otherwise. Ans. 9 (citing Ex parte Mewherter, 107 USPQ2d 1857, 1859-64
(PTAB 2013) (precedential). The Examiner finds that the Specification is
silent regarding whether the term “computer-readable storage medium”
excludes transitory media and, therefore, under the broadest reasonable
interpretation of claims 18–21, these claims encompass signals, and their
rejection should be sustained. Id.
We are not persuaded by Appellant’s arguments and agree, instead,
with the findings and conclusion of the Examiner. Additionally, here,
Appellant does not cite where the Specification explicitly excludes transitory
signals. We note, however, the Specification describes exemplary
“computer readable storage medium” utilizing non limiting language (i.e.,
Appeal 2018-005081
Application 12/572,727

27
“such as, but is not limited to . . .”). See Spec. ¶ 82. Neither the claims nor
the Specification defines “computer-readable storage medium” so as to
exclude transitory media. Consequently, the claimed medium encompasses
transitory media, which is not patent eligible. See Ex parte Mewherter, 107
USPQ2d 1857 (PTAB 2013) (precedential); see also In re Nuijten, 500 F.3d
1346, 1356–57 (Fed. Cir. 2007); and U.S. Patent & Trademark Office,
Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat.
Office 212 (Feb. 23, 2010).
In view of the above, we sustain the rejection of claims 18–21.

DECISION
Claims Rejected Basis Affirmed Reversed
1–15, 18–21, and
24–27
35 U.S.C. § 101

1–15, 18–
21, and 24–27

18–21 35 U.S.C. § 101 18–21
Overall Outcome 1–15, 18–21,
and 24–27

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