LIvongo Heatlh, Inc.

Patent Trials and Appeals Board

Feb 11, 2020

14851675 - (D) (P.T.A.B. Feb. 11, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/851,675 09/11/2015 Kimon J. Angelides LVM-001US 5680
54004 7590 02/11/2020
MUIRHEAD AND SATURNELLI, LLC
200 FRIBERG PARKWAY
SUITE 1001
WESTBOROUGH, MA 01581
EXAMINER
SEREBOFF, NEAL
ART UNIT PAPER NUMBER
3626
MAIL DATE DELIVERY MODE
02/11/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KIMON J. ANGELIDES and ALEX BITOUN
____________

Appeal 2019-003925
Application 14/851,675
Technology Center 3600
____________

Before JEFFREY S. SMITH, TREVOR M. JEFFERSON, and
AMBER L. HAGY, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1–20, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Representative Claim
Claim 1 is illustrative of the claim on appeal, and is reproduced
below:
1. A process of increasing diabetic patient compliance with
a recommended diet and exercise regime, comprising:
providing a recommended diet and exercise regimen for
the patient to follow for a particular forthcoming period;
providing an interactive wireless link between a server
and a device carried by the patient;
the patient actuating the device to test a patient blood
sample for patient blood glucose level;
the device determining patient exertion level by
measuring patient movement or acceleration and actively
sending the determinations of the blood glucose level and
exertion level to the server;
the device or the server actively querying the patient
about prior food consumption and time of food consumption;
the server analyzing the blood glucose level test results,
exertion level and query responses;
the server determining an estimated HbA1c level for the
patient, and based on the results of analyzing and determining,
sending the-patient advisory messages about future food
consumption and timing of food consumption, about timing of
further testing, and also sending the patient advisory messages
about commencing, continuing or ceasing exertion, and also
sending the patient advisory messages about the benefits or
detriments of particular diet and exercise choices;
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weighting the advisory messages based on average
effectiveness thereof in moving patients to diet and exercise in a
manner which moves the estimated HbA1c level into a desired
range or maintains the estimated HbA1c levels in a desired
range, wherein averaged effectiveness is an effectiveness of
particular advisory messages in causing patients to take actions
which make estimated HbA1c levels of the patients move into a
desired range or which cause the patients to take actions which
maintain estimated HbA1c levels of the patients in a desired
range over a number of times the particular messages are
displayed on the device, wherein a library of message sets and
responses from patients that received the message sets during a
prior period are initially used for weighting the advisory
messages;
selecting frequency of display of particular messages on
the device in accordance with a weight corresponding to the
particular messages; and
repeating weighting the advisory messages based on
average effectiveness thereof and on selection of the advisory
messages for display in accordance with the weight
corresponding to the particular messages.
Prior Art
Name Reference Date
Lipsky et al. (“Lipsky”) US 2006/0184421A1 Aug. 17, 2006
Angelides (“Angelides ’640”) US 8,066,640 B2 Nov. 29, 2011
Angelides (“Angelides ’563”) US 2013/0035563 A1 Feb. 7, 2013
Angelides (Angelides ’780”) US 2013/0187780 A1 July 25, 2013

Examiner’s Rejections
Claims 1–20 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
Claims 1–20 stand rejected under 35 U.S.C. § 103 as unpatentable
over Angelides ’780 and Lipsky.
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ANALYSIS
I. Section 101 Rejection1
The Examiner rejects all of the pending claims under 35 U.S.C. § 101
as patent-ineligible because they are directed to a judicial exception without
significantly more. Final Act. 2–7. Appellant argues that the claims are not
directed to an abstract idea, are directed to patent-eligible subject matter, and
the Examiner’s rejection should be reversed. Appeal Br. 8–14. For the
reasons explained below, we are not persuaded of Examiner error in the
§ 101 rejection, and we, therefore, sustain that rejection.
A. Principles of Law
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The U.S. Supreme Court, however, has interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014) (citation omitted).
The Court, in Alice, reiterated the two-part framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66, 75–77 (2012), “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice, 573 U.S. at 217. The first
part in the analysis is to “determine whether the claims at issue are directed

1 With regard to the Examiner’s § 101 rejection, Appellant argues all claims
together with claim 1 (Appeal Br. 17), and we consider claim 1
representative of the claimed subject matter on appeal. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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to one of those patent-ineligible concepts.” Id. For example, abstract ideas
include, but are not limited to, fundamental economic practices, methods of
organizing human activities, an idea of itself, and mathematical formulas or
relationships. Id. at 218–20. The “directed to” inquiry asks not whether
“the claims involve a patent-ineligible concept,” but instead whether,
“considered in light of the specification, . . . ‘their character as a whole is
directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327, 1335 (Fed. Cir. 2016) (internal citations omitted). In that
regard, we determine whether the claims “focus on a specific means or
method that improves the relevant technology” or are “directed to a result or
effect that itself is the abstract idea and merely invoke generic processes and
machinery.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1314 (Fed. Cir. 2016).
If, in the first part of the Alice/Mayo analysis, we conclude that the
claims are not directed to a patent-ineligible concept, they are considered
patent eligible under § 101 and the inquiry ends. Rapid Litig. Mgmt. Ltd. v.
CellzDirect, Inc., 827 F.3d 1042, 1047 (Fed. Cir. 2016).
If the claims are directed to a patent-ineligible concept, the second
part in the Alice/Mayo analysis is to consider the elements of the claims
“individually and ‘as an ordered combination’” to determine whether there
are additional elements that “‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S.
at 79, 78). In other words, the second part is to “search for an “‘inventive
concept’”—i.e., an element or combination of elements that is ‘sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.’” Id. at 217–18 (brackets in original)
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(quoting Mayo, 566 U.S. at 72–73). The prohibition against patenting an
abstract idea “‘cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment’ or adding ‘insignificant
postsolution activity.’” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010)
(internal citation omitted).
The U.S. Patent and Trademark Office (the “Office”) has published
revised guidance on the application of 35 U.S.C. § 101. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50–57 (Jan. 7,
2019) (“2019 Guidance”). Under the 2019 Guidance, the Office first looks
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 2019 Guidance at 52, 54–55; see
also MPEP § 2106.05(a)–(c), (e)–(h).2
Only if a claim (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, does the Office then
look to whether the claim: (3) adds a specific limitation beyond the judicial
exception that are 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

2 Unless otherwise specified herein, all references to the MPEP are to Rev.
08.2017 (Jan. 2018).
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level of generality, to the judicial exception. See 2019 Guidance at 56. We
follow this guidance here.3
In reviewing the Examiner’s rejection under § 101, we group claims
1–20 together. 37 C.F.R. § 31.47(c)(1)(iv).
B. Application of Legal Principles
1. Step 2A of 2019 Guidance
Prong 1: Do Claims 1–20 Recite an Abstract Idea
In applying the framework set out in Alice/Mayo, and as the first part
of that analysis, the Examiner concludes the claims recite steps amounting to
“receiving a health parameter data from a patient and then sending to the
patient particular directives which have increased probability of motivating
the patient to take positive action,” which the Examiner determines are
analogous to “collection, storage, and recognition of data,” “collecting,
displaying, and manipulating data,” and “collecting information, analyzing
it, and displaying certain results of the collection and analysis.” Final Act. 2,
4. According to the Examiner, “the invention as a whole is directed to
organizing human activity through improving message delivery.” Ans. 5.
In challenging the Examiner’s determination that the claims recite an
abstract idea, Appellant argues that no case law or other relevant guidance
exists that characterizes a claim that recites improved message delivery as

3 “All USPTO personnel are, as a matter of internal agency management,
expected to follow the guidance.” 2019 Guidance at 51; see also October
2019 Update: Subject Matter Eligibility, 2 (Oct. 17, 2019) (“October 2019
Update”) (“Note, the feedback received was primarily directed to
examination procedures and, accordingly, this update focuses on clarifying
practice for patent examiners. However, all USPTO personnel are expected
to follow the guidance.”).
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organizing human activity. Reply Br. 3–4. According to Appellant,
“relevant case law characterizes organizing human activity as fundamental
economic principles or practices, commercial or legal interactions, or
managing personal behavior or relationships or interactions between
people.” Id. Appellant also contends that providing messages at a particular
frequency is a treatment step, and that treatment is not an abstract idea. Id.
at 4–5; Appeal Br. 13.
We evaluate the Examiner’s § 101 rejection by applying the 2019
Guidance, which uses enumerated groupings of abstract ideas that are rooted
in U.S. Supreme Court precedent, as well as Federal Circuit decisions
interpreting that precedent. See 2019 Guidance at 51–52. By grouping the
abstract ideas, the 2019 Guidance synthesizes the holdings of various court
decisions to facilitate examination. The 2019 Guidance describes one
category of abstract ideas as including “[c]ertain methods of organizing
human activity” such as “managing personal behavior or relationships or
interactions between people (including . . . following rules or instructions).”
Id. at 52.
We agree with the Examiner that the claims recite steps that fall
within the category of organizing human activity (see Ans. 3–6), consistent
with the 2019 Guidance. See 2019 Guidance at 52.
Appellant’s reasoning that the steps are not directed to organizing
human activity, such as managing personal behavior or relationships or
interactions between people, is not persuasive. As the 2019 Guidance states,
“managing personal behavior or relationships or interactions between
people” includes “following rules or instructions.” See 2019 Guidance at 52
n.13 (citing, inter alia, Interval Licensing LLC, v. AOL, Inc., 896 F.3d 1335,
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1344–45 (concluding that “[s]tanding alone, the act of providing someone an
additional set of information . . . is an abstract idea,” observing that the
district court “pointed to the nontechnical human activity of passing a note
to a person who is in the middle of a meeting or conversation as further
illustrating the basic, longstanding practice that is the focus of the [patent
ineligible] claimed invention.”)). Here, claim 1 recites steps of “providing a
recommended diet and exercise regimen for the patient to follow . . .;” and
“sending the patient advisory messages . . . weighting the advisory messages
. . . selecting the frequency of display of particular messages . . . and
repeating weighting the advisory messages,” which all fall within the
category of “managing personal behavior or relationships or interactions
between people” including “following rules or instructions.”
Thus, under Prong 1 of Step 2A in accordance with the 2019
Guidance, we conclude the claims recite a judicial exception of certain
methods of organizing human activity, and we, therefore, find that the
claims recite an abstract idea.
We also agree with the Examiner that the claims recite steps that fall
within the category of mental processes, concepts performed in the human
mind, including an observation, evaluation, judgment, or opinion (see Final
Act. 3-4), consistent with the 2019 Guidance. See 2019 Guidance at 52.
The October 2019 Update4 provides additional clarification on “mental
processes” by providing an example of claims that recite mental processes as
including “a claim to ‘collecting information, analyzing it, and displaying
certain results of the collection and analysis,’ where the data analysis steps

4 Available at https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf.
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are recited at a high level of generality such that they could practically be
performed in the human mind . . . .” October 2019 Update at 7 (citing
Electric Power Group5). The October 2019 Update also gives as an
example of a claim reciting a “mental process” as a “claim to collecting and
comparing known information . . . , which are steps that can be practically
performed in the human mind . . . .” Id. at 8 (citing Classen).
Here, claim 1 recites “analyzing the blood glucose level test results,
exertion level and query responses,” “determining an estimated HbA1c level
for the patient,” “based on the results of analyzing and determining, sending
the patient advisory messages,” “weighting the advisory messages,”
“selecting frequency of display of particular messages,” and “repeating
weighting the advisory messages,” which can be practically performed in the
human mind. Further, the steps of analyzing test results and determining an
estimated HbA1c level, similar to the determining step in Mayo, “tells
doctors to engage in well-understood, routine, conventional activity
previously engaged in by scientists who work in the field.” Mayo, 566 U.S.
at 79; see Final Act. 5–6 (citing Angelides ’563 ¶ 26). Thus, under Prong 1
of Step 2A in accordance with the 2019 Guidance, we agree with the
Examiner that the claims recite a judicial exception of mental processes (see
Ans. 4), and we, therefore, find that the claims recite an abstract idea.

5 Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed Cir. 2016).
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Prong 2: Do the Claims Integrate the Abstract
Idea Into a Practical Application6
In accordance with Prong 2 of Step 2A of the 2019 Guidance, we
evaluate the claims to determine whether they recite additional elements
beyond the abstract idea, and, if so, we evaluate the additional elements to
determine whether they integrate the abstract idea into a practical
application. 2019 Guidance at 54. The 2019 Guidance at page 55 provides
exemplary considerations, including whether an additional element:
• “reflects an improvement in the functioning of a computer, or
an improvement to other technology or technical field”;
• “implements a judicial exception with, or uses a judicial
exception in conjunction with, a particular machine or
manufacture that is integral to the claim”;
• “effects a transformation or reduction of a particular article [or
thing] to a different state or thing”; or
• “applies or uses the judicial exception in some other meaningful
way beyond generally linking the use of the judicial exception
to a particular technological environment.”
The 2019 Guidance also highlights certain examples in which courts
have held that “a judicial exception has not been integrated into a practical
application,” such as where the claims “merely use[] a computer as a tool to
perform an abstract idea” or the additional element adds “insignificant extra-

6 We acknowledge that some of these considerations may be properly
evaluated under the second part of the Alice/Mayo analysis (Step 2B of the
2019 Guidance). For purposes of maintaining consistent treatment within
the Office, we evaluate them under the first part of the Alice/Mayo analysis
(Step 2A of the 2019 Guidance). See 2019 Guidance at 54–55.
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solution activity” to the abstract idea. 2019 Guidance at 55 (emphasis
added); see also October 2019 Update at 11–15.
The Examiner determines that the “claim recites the additional
limitations of a device for providing test results, and a server for analyzing
the results,” where the “device and server are recited at a high level of
generality and are recited as performing generic computer functions
routinely used in computer applications.” Final Act. 5.
Appellant argues that the claims are not directed to an abstract idea
because they are analogous to claims determined to be patent-eligible in
Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals, 887 F.3d 1117
(Fed. Cir. 2018). Appeal Br. 10–11; Reply Br. 3–5. In particular, Appellant
argues,
Just as in the Vanda case, where the treatment (quantity of
drug) to be provided was determined based on the recited
genotyping assay, the present claims recite that the treatment
(quantity of particular messages) is determined based on
estimated HbAlc levels. Administering iloperidone at a
particular dosage was held to be a treatment step in the Vanda
case. Thus, it seems reasonable that, by analogy, providing
(administering) messages at a particular frequency (dosage) is a
treatment step.
Reply Br. 4–5.
We disagree that Appellant’s claims are analogous to those deemed
patent eligible in Vanda. As the Examiner notes, in Vanda, the Court
determined
the ’610 patent claims recite the steps of carrying out a dosage
regimen based on the results of genetic testing. The claims
require doctors to “internally administer[] iloperidone to the
patient in an amount of 12 mg/day or less” if the patient has a
CYP2D6 poor metabolizer genotype; and “internally
administer[] iloperidone to the patient in an amount that is
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greater than 12 mg/day, up to 24 mg/day” if the patient does not
have a CYP2D6 poor metabolizer genotype. ’610 patent col.
17 11. 13-20. These are treatment steps. In contrast, as shown
above, the claim in Mayo stated that the metabolite level in
blood simply “indicates” a need to increase or decrease dosage,
without prescribing a specific dosage regimen or other added
steps to take as a result of that indication. Mayo, 566 U.S. at
75. Here, the claims do not broadly “tie up the doctor’s
subsequent treatment decision.” Id. at 86.
Ans. 3–4 (citing Vanda, 887 F.3d at 1131). Here, as in Mayo, the advisory
message simply indicates a need to do something; in this case, modify future
food consumption and exertion.
Claim 1’s data-gathering steps (“test a patient blood sample . . .
determining patient exertion level . . . querying the patient about prior food
consumption”) reasonably can be characterized as merely constituting
insignificant extra-solution activity:
An example of pre-solution activity is a step of gathering data
for use in a claimed process, e.g., a step of obtaining
information about credit card transactions [that] is recited as
part of a claimed process of analyzing and manipulating the
gathered information by a series of steps in order to detect
whether the transactions were fraudulent.
MPEP § 2106.05(g). As our reviewing court has explained, such data
gathering and transmissions simply provide data for other method steps.
See, e.g., CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370
(Fed. Cir. 2011) (“We have held that mere ‘[data-gathering] step[s] cannot
make an otherwise nonstatutory claim statutory.”’ (alterations in original)
(quoting In re Grams, 888 F.2d 835, 840 (Fed. Cir. 1989))); see also 2019
Guidance at 55 (identifying “add[ing] insignificant extrasolution activity to
the” abstract idea as an example of when an abstract idea has not been
integrated into a practical application).
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Claim 1’s other steps entail “the server analyzing the blood glucose
level test results, exertion level and query responses” and “the server
determining an estimated HbA1c level for the patient,” which can be
practically performed in the human mind, and also tell doctors to engage in
well-understood, routine, conventional activity previously engaged in by
scientists who work in the field, as discussed in our analysis of prong 1
above. We agree with the Examiner that the claimed “server” is a general
purpose computer that performs the well-understood, routine, and
conventional steps, and merely provides conventional computer
implementation. Final Act. 6–7 (citing Spec. 10–11). As the U.S. Supreme
Court has explained, “if a patent’s recitation of a computer amounts to a
mere instruction to ‘implemen[t]’ an abstract idea ‘on . . . a computer,’ that
addition cannot impart patent eligibility.” Alice, 573 U.S. at 223 (quoting
Mayo, 566 U.S. at 84).
Consistent with the Examiner’s determination, we determine claims
1–20 do not include an improvement to another technology or technical field
or an improvement to the functioning of the computer itself; we also find
claims 1–20 do not include a transformation of an article or meaningful
limitations beyond generally linking the use of an abstract idea to a
particular technological environment. See Ans. 3–6.
In summary, we conclude the claims do not integrate the abstract idea
into a practical application so as to remove them from the realm of reciting
patent-ineligible abstract ideas. Accordingly, in the first part of the
Alice/Mayo analysis, we conclude that the claims are directed to an abstract
idea.
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2. Step 2B of 2019 Guidance – Do Claims 1–20 Recite Significantly More
Than the Abstract Idea
Regarding the second part of the Alice/Mayo analysis, the Examiner
finds the elements of the claims, when considered individually or as an
ordered combination, do not recite significantly more than the abstract idea.
Final Act. 7. In particular, the Examiner finds
that the server is a general purpose computer. [G]eneric
computer components recited as performing generic computer
functions that are well-understood, routine and conventional
activities amount to no more than implementing the abstract
idea with a computer system. [T]hus, taken alone, the
additional elements do not amount to significantly more than
the above-identified judicial exception (the abstract idea).
Looking at the limitations as an ordered combination adds
nothing that is not already present when looking at the elements
taken individually. There is no indication that the combination
of elements improves the functioning of a computer or
improves any other technology. Their collective functions
merely provide conventional computer implementation.
Ans. 9. We agree.
Here, the claim elements beyond the abstract idea, “providing an
interactive wireless link between and server and a device,” where the device
or the server perform “test[ing],” “determining,” “querying,” “analyzing,”
“determining,” “sending,” “weighting,” “selecting,” and “repeating
weighting,” recite only generic computer functions and components that are
well-understood, routine, and conventional, and do not convey an inventive
concept. See Alice, 573 U.S. at 217. Appellant is reminded that in most
cases, “relying on a computer to perform routine tasks more quickly or more
accurately is insufficient to render a claim patent eligible.” OIP Techs., Inc.
v. Amazon.com, Inc., 788 F.3d 1359, 1363 (citing Alice, 573 U.S. at 224
(holding that “use of a computer to create electronic records, track multiple
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transactions, and issue simultaneous instructions” is not an inventive
concept)); Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d 1363,
1370 (“[M]erely adding computer functionality to increase the speed or
efficiency of the process does not confer patent eligibility on an otherwise
abstract idea.”).
To the extent Appellant relies on the particular manipulation of data
recited as indicative of an inventive concept, we have determined above that
such steps amount to organizing human activity and mental processes, which
are categorized in the 2019 Guidance as abstract ideas. Appellant is
reminded that “the ‘inventive concept’ [under the second part of the
Mayo/Alice test] cannot be the abstract idea itself” and “Berkheimer . . .
leave[s] untouched the numerous cases from this court which have held
claims ineligible because the only alleged ‘inventive concept’ is the abstract
idea.” Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore,
J., concurring). “It has been clear since Alice that a claimed invention’s use
of the ineligible concept to which it is directed cannot supply the inventive
concept that renders the invention ‘significantly more’ than that ineligible
concept.” BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed.
Cir. 2018).
We determine that the components and functions recited in
Appellant’s claims do not add any meaningful limitations beyond generally
linking the abstract idea to the particular technological environment.
Accordingly, we sustain the Examiner’s rejection of claims 1–20
under 35 U.S.C. § 101 as patent-ineligible.

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II. Section 103 Rejection
We adopt the findings of fact made by the Examiner in the Final
Action and Examiner’s Answer as our own. We agree with the conclusions
reached by the Examiner for the reasons given by the Examiner in the Final
Action and the Examiner’s Answer. We address the following from
Appellant’s Reply Brief to complete the record.
Claim 1 recites “weighting the advisory messages based on the
average effectiveness thereof . . . wherein a library of message sets and
responses from patients that received the message sets during a prior period
are initially used for weighting the advisory message.” Appellant contends
that Lipsky teaches using initial weightings without applying the rating
function until a minimum number of advertising message presentations is
reached. Reply Br. 9 (citing Lipsky ¶ 27).
Paragraph 27 of Lipsky discloses
In some embodiments, the facility retains the initial weightings
without applying the rating function until a minimum number
of advertising message presentations is reached. For example,
the facility may defer re-weighting until a minimum number of
total presentations of any of the advertising messages within
the group at any of the publishers is reached. In additional
embodiments, re-weighting is deferred until each advertising
message, each publisher, or each combination of an advertising
message and a publisher has a certain number of presentations.
Paragraph 27 of Lipsky does not require retaining the initial weightings until
a minimum number of presentations is reached. Rather, it teaches that in
some embodiments re-weighting may be deferred, which suggests that in
other embodiments re-weighting may not be deferred. This suggestion is
consistent with Paragraph 25 of Lipsky, which discloses that in “various
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embodiments, the rating function is applied to update the weights . . .
continuously.” We do not agree with Appellant’s contention.
Appellant also contends that combining the teachings of Angelides
’421 and Lipsky would cause messages in Lipsky to not be presented, thus
destroying the purpose of Lipsky. Reply Br. 9–10. Appellant’s contention
is attorney argument, unsupported by evidence. Attorney argument is not
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can it
take the place of evidence lacking in the record. Meitzner v. Mindick, 549
F.2d 775, 782 (CCPA 1977). Appellant has not provided persuasive
evidence to show that the messages of Lipsky would not be presented.
We sustain the rejection of claims 1–20 under 35 U.S.C. § 103.

DECISION
The rejection of claims 1–20 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter is affirmed.
The rejection of claims 1–20 under 35 U.S.C. § 103 as unpatentable
over Angelides ’780 and Lipsky is affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 eligibility 1–20
1–20 103 Angelides ’780, Lipsky 1–20
Overall Outcome:

1–20

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED