Oracle International Corporation

Patent Trials and Appeals Board

Dec 16, 2020

2019002590 (P.T.A.B. Dec. 16, 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.
14/062,140 10/24/2013 Catalin POPESCU 2011-0321US01 6668
74739 7590 12/16/2020
Potomac Law Group, PLLC (Oracle International)
8229 Boone Boulevard
Suite 430
Vienna, VA 22182
EXAMINER
LOFTIS, JOHNNA RONEE
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
12/16/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
bgoldsmith@potomaclaw.com
eofficeaction@appcoll.com
patents@potomaclaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CATALIN POPESCU, LIN HE, MING LEI, and CHUN TANG
Appeal 2019-002590
Application 14/062,140
Technology Center 3600
Before JEAN R. HOMERE, PHILLIP A. BENNETT, and
RUSSELL E. CASS, Administrative Patent Judges.
CASS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20 under 35 U.S.C. §§ 101 and 103.
Appeal Br. 2, 11.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Oracle
International Corporation. Appeal Brief filed June 28, 2018 (“Appeal Br.”)
2.
2 Throughout this Opinion, we refer to the above-noted Appeal Brief, as well
as the following documents for their respective details: the Final Action
mailed November 30, 2017 (“Final Act.”); the Examiner’s Answer mailed
December 13, 2018 (“Ans.”); and the Reply Brief filed February 13, 2019
(“Reply Br.”).
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BACKGROUND
According to Appellant, the claimed subject matter relates to a
computer system that forecasts sales of retail items. Spec. ¶ 1. The system
receives the sales history for prior sales periods, including at least one stand-
alone time period when a single promotion event is active, and at least one
overlapping time period when two or more promotion events are active and
overlapping. Id., Abstr. Examples of overlapping promotion events include
placing an item in front of the store and also advertising the item in a flyer,
or discounting an item and also advertising it in an email ‘blast.’ Id. ¶ 20.
For each stand-alone time period, the system determines a stand-alone lift
for each promotion event active during that stand-alone time period. Id. For
each overlapping time period, the system determines a combined overlap lift
of promotion events that are overlapping using a p-norm. Id.
The Specification explains that “[a] ‘p-norm’ or ‘p’ is a special type of
‘norm’ that in general is a mathematical function that assigns a positive
length or size to each space, other than the zero vector.” Id. ¶ 9. The p-
norm may be optimized using an optimization routine to find the value of p
that minimizes the Mean Absolute Percentage Error (“MAPE”). Id. ¶ 44.
Claim 1 is illustrative of the claims at issue:
1. A non-transitory computer-readable medium having
instructions stored thereon that, when executed by a processor,
cause the processor to generate a sales forecast for an item, the
generating the sales forecast comprising:
receiving sales history for prior sales periods that
comprises a plurality of discrete sales periods and a set of
different types of promotion events that are each active during
one or more of the discrete sales periods, the sales history
comprising at least one discrete first time period when only one
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of the plurality of promotion events is active, and at least one
discrete second time period when two or more different types of
promotion events of the plurality of promotion events are active
simultaneously and overlapping;
for each of the promotion events, determining a stand-
alone lift using linear stepwise regression;
generating a baseline sales forecast using the determined
stand-alone lifts; and
for each discrete second time period, determining a
combined overlap lift of the promotion events that are
overlapping using a p-norm.
Appeal Br. 16 (Claims App.).
PRINCIPLES OF LAW RELATING TO
PATENT ELIGIBILITY UNDER 35 U.S.C. § 101
I. SECTION 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 (2012).
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-step framework, described in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), and Alice. 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 Alice, 573 U.S. at 219 (“On their face, the
claims before us are drawn to the concept of intermediated settlement, i.e.,
the use of a third party to mitigate settlement risk.”); see also Bilski v.
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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.
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
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 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
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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 (internal quotation marks
omitted). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
II. USPTO SECTION 101 GUIDANCE
In January of 2019, the United States Patent and Trademark Office
(“USPTO”) published revised guidance on the application of § 101, which
was updated in October 2019. USPTO, 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Guidance”);
October 2019 Update on Patent Subject Matter Eligibility, 84 Fed. Reg.
55942 (available at https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf) (“October 2019 PEG Update”). Under the 2019
Guidance, we first look to whether the claim recites the following:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic
practice, or mental processes); and
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(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)).
2019 Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look 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.
2019 Guidance, 84 Fed. Reg. at 56.
ANALYSIS
I. THE 101 REJECTION
A. The Examiner’s Rejection and Appellant’s Contentions
In the Final Office Action, the Examiner rejects claims 1–20 under 35
U.S.C. § 101 as directed to non-statutory subject matter. Final Act. 17–18.
The Examiner determines that “[t]he claims in combination are directed to
mental tasks that may be performed in the mind or on paper.” Id. at 18; see
Ans. 4–5. The Examiner further determines that the computer-related
limitations of the claims are “generic computer components as routinely
used in computer applications such that (1) the claim merely amounts to the
application or instructions to apply the abstract idea on a computer; or (ii)
the claim amounts to nothing more than requiring a generic computer to
perform generic computer functions that are well-understood, routine and
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conventional activities previously known in the industry.” Final Act. 20
(citing Spec. ¶¶ 14–15).
Appellant argues that the Examiner has failed to identify a court
decision with an abstract idea that corresponds to the alleged abstract idea.
Appeal Br. 3–6. Appellant further argues that the claims amount to
significantly more than the alleged abstract idea because “very specific steps
are recited as a series of mathematical relationships and rules to determine a
sales forecast for a retail item,” including “creating two different time
periods, depending on whether a time period includes overlapping
promotions, and then determining an optimized value of p (see claims 6–8
and 14–16) that is used to determine an overlap lift using a p-norm for those
time periods with overlapping promotions.” Id. at 8. Appellant also argues
that dependent claims 2, 3, 7, and 8 recite even more specific steps,
including “determining whether the demand model is additive (claim 2) or
multiplicative (claim 3) and still more specificity in the form of algorithms
depending on the determination (claims 7 and 8). Appellant additionally
argues that the claims do not preempt an abstract idea. Id. at 10.
B. Analysis under Step 2A, Prong 1, of the 2019 Guidance
Under Step 2A, Prong 1, of the 2019 Guidance, we must first
determine whether any judicial exception to patent eligibility is recited in the
claim. The 2019 Guidance identifies three judicially excepted groupings:
(1) mathematical concepts, (2) certain methods of organizing human
activity, and (3) mental processes. 2019 Guidance, 84 Fed. Reg. at 52–53.
Based on existing Supreme Court and Federal Circuit precedent, the
2019 Guidance identifies “[m]ental processes” that may constitute an
abstract idea as including “concepts performed in the human mind
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(including an observation, evaluation, judgment, opinion).” Id. at 53
(footnote omitted). The “mental processes” judicial exception includes
concepts that can be performed by a human with a pen and paper as well as
those that can be performed entirely in the mind. See October 2019 PEG
Update at 9 (“a claim that encompasses a human performing the step(s)
mentally with the aid of a pen and paper recites a mental process”).
Appellant’s claims recite steps for generating a sales forecast for an
item (or a sales forecasting system) that includes a series of steps that can be
performed by humans in the mind or using pen and paper. We discuss these
steps in more detail below.
Claim 1 includes the step of “receiving sales history for prior sales
periods that comprises a plurality of discrete sales periods and a set of
different types of promotion events that are each active during one or more
of the discrete sales periods, the sales history comprising at least one discrete
first time period when only one of the promotion events is active, and at
least one discrete second time period when two or more different types of
promotion events of the plurality of promotion events are active
simultaneously and overlapping.” This step can be carried out by a human
that receives the sales history information in paper form.3
Next, claim 1 recites the step of, “for each of the promotion events,
determining a stand-alone lift using linear stepwise regression.” Linear

3 Alternatively, this step can be considered to be an additional element that
adds only insignificant extra-solution activity to the judicial exception. See
2019 Guidance at 55 & n.31 (“insignificant extra-solution activity” includes
“a mere data gathering such as a step of obtaining information about credit
card transactions so that the information can be analyzed in order to detect
whether the transactions were fraudulent”).
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stepwise regression is an algorithm that can be performed by a human in the
mind or with pen and paper. Alternatively, this claim element recites a
mathematical concept, specifically a mathematical calculation using
mathematical formulas or equations. See 2019 Guidance at 52 & n.12.
Next, claim 1 recites the step of “generating a baseline sales forecast
using the determined stand-alone lifts.” The Specification states that the
baseline forecast is “generated using known methods.” Spec. ¶¶ 32, 39.
This step can be carried out by a human either in the mind or using pen and
paper, and therefore qualifies as a mental step.
Finally, claim 1 recites the step of, “for each discrete second time
period, determining a combined overlap lift of the promotion events that are
overlapping using a p-norm.” The Specification provides a mathematical
formula for determining the combined lift for overlapping promotions using
the p-norm in paragraph 33, and paragraph 34 provides a calculation for an
example using particular values. As shown by paragraph 34 of the
Specification, this equation can be calculated by a human in the mind or
using pen and paper.
Dependent claims 2 and 3 recite that the demand model for the sales
forecast is additive (claim 2) or multiplicative (claim 3), and the step of
generating the sales forecast by combining the baseline sales forecast and the
overlap lifts (claim 2) or multiplying the baseline sales forecast and the
overlap lifts. Claims 7–8 include specific equations for calculating MAPE
using either the additive model (claim 7) or the multiplicative model (claim
8). See Spec. ¶ 46 (describing equations and explaining that they are for the
additive or multiplicative models). These claims simply describe the
calculation of the sales forecast and MAPE in additional detail, and do not
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change the conclusion that they are calculations that can be performed by a
human in the mind or with pen and paper, and are therefore mental steps.
For these reasons we determine that claims 1, 2–3, and 6–8 recite a
recognized judicial exception to patent eligibility. See 2019 Guidance at 52–
53. We reach the same conclusion as to claims 4–5 and 9–20, which are not
separately argued.
C. Analysis under Step 2A, Prong 2, of the 2019 Guidance
Having determined that the claims recite a judicial exception, we next
consider whether they recite “additional elements that integrate the [judicial]
exception into a practical application.” See 2019 Guidance, 84 Fed. Reg. at
54; MPEP §§ 2106.05(a)–(c), (e)–(h). In making this determination, we
consider whether “the additional limitations reflect an improvement in the
functioning of a computer, or an improvement to another technology or
technical field.” October 2019 PEG Update at 11; see 2019 Guidance at 53.
As the Guidance explains, “not all claims that recite computer
components . . . integrate a judicial exception into a practical application,”
and limitations that merely recite “generic computer components that
amount[] to mere instructions to implement the abstract idea on a computer
. . . . [w]ould not be sufficient.” Id. at 11–12; see Alice, 573 U.S. at 223 (one
“cannot transform a patent-ineligible abstract idea into a patent-eligible
invention” by “the mere recitation of a generic computer” or by “limiting the
use of [the] abstract idea to a particular technological environment”).
Returning our attention to claim 1, in addition to the steps discussed
above that can be performed by a human in the mind or with pen and paper,
claim 1 also recites “a non-transitory computer-readable medium having
instructions stored thereon that, when executed by a processor, cause the
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processor” to carry out the steps that comprise the judicial exception
discussed above with respect to Step 2A, Prong 1. This language4 describes
generic computer components that amount to mere instructions to implement
the abstract idea on a generic computer. At most, these generic components
automate the process of having a person determine a sales forecast using
sales history and particular calculations.
As a result, the use of these generic components is insufficient to
transform the claim into patent-eligible subject matter under Step 2A, Prong
2. See October 2019 PEG Update at 11–12 (recitation of “generic computer
components that amounted to mere instructions to implement the abstract
idea on a computer . . . [w]ould not be sufficient to demonstrate integration
of a judicial exception into a practical application”); Alice, 573 U.S. at 226
(determining that the claim limitations “data processing system,”
“communications controller,” and “data storage unit” were generic computer
components that amounted to mere instructions to implement the abstract
idea on a computer).
Consequently, the additional language in claim 1 beyond the judicial
exception does not serve to integrate the judicial exception into a practical
application within the meaning of step 2A, Prong 2, of the 2019 Guidance.
2019 Guidance, 84 Fed. Reg. at 52–55. We reach the same conclusion
regarding the remaining claims, which do not include additional elements
beyond the abstract idea other than generic computer components, and are
not separately argued on this basis.

4 Although this language is in the preamble, we will treat it as limiting for
purposes of this decision. We express no opinion on whether the preamble
should be treated as a claim limitation.
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D. Analysis under Step 2B
Under Step 2B, we determine whether the claims include additional
elements individually or in combination that provide an inventive concept
and, therefore, amount to significantly more than the exception itself. See
2019 Guidance, 84 Fed. Reg. at 56; Alice, 573 U.S. at 221. We agree with
the Examiner that the claims do not include additional elements, considered
either individually or as an ordered combination, that provide any such
“inventive concept,” and that the additional elements in the claims are well-
understood, routine, or conventional in the field. See Final Act. 20–22; Ans.
5–7.
As discussed above with respect to Step 2A, Prong 2, the additional
elements in claim 1 beyond the judicial exception are “a non-transitory
computer-readable medium having instructions stored thereon that, when
executed by a processor, cause the processor” to carry out the steps that
comprise the judicial exception discussed above with respect to Step 2A,
Prong 1. As we explained above, these are simple generic computer
elements. As such, we agree with the Examiner that the computer elements
of the claims are well-understood, routine and conventional activities
previously known in the industry, and are thus insufficient to provide an
“inventive concept that amounts to significantly more than the abstract idea
itself.” See Final Act. 20.
Appellant argues that “the Examiner improperly focuses only on the
hardware elements as the additional elements,” instead of “the functional
elements beyond the mere hardware components.” Reply Br. 3 (emphasis
omitted). This argument is not persuasive. As discussed with respect to
Step 2A, Prong 1 above, the functional elements are part of the abstract idea,
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and therefore cannot be considered “additional elements” that provide
significantly more than the abstract idea. See 2019 Guidance at 56 (Under
step 2B, the Federal Circuit has evaluated whether “the additional elements
provided ‘significantly more’ than the recited judicial exception. Therefore,
if a claim has been determined to be directed to a judicial exception under
revised Step 2A, [one] should then evaluate the additional elements . . .
under step 2B to determine whether they provide an inventive concept (i.e.,
whether the additional elements amount to significantly more than the
exception itself.”)
Finally, Appellant’s arguments regarding preemption are
unpersuasive. See Appeal Br. 27–28. We recognize that the Supreme Court
has described “the concern that drives this exclusionary principle [i.e., the
exclusion of abstract ideas from patent eligible subject matter] as one of pre-
emption.” Alice, 573 U.S. at 216. However, characterizing preemption as a
driving concern for patent eligibility is not the same as characterizing
preemption as the sole test for patent eligibility. As our reviewing court has
explained: “The Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to patentability” and “[f]or
this reason, questions on preemption are inherent in and resolved by the
§ 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice, 573 U.S. at 216). Although “preemption
may signal patent ineligible subject matter, the absence of complete
preemption does not demonstrate patent eligibility.” Id.
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E. Conclusion as to Section 101
Consequently, we agree with the Examiner that the claims are directed
to patent-ineligible subject matter without reciting significantly more. We,
therefore, sustain the rejection of claim 1–20.
II. THE 103 REJECTION
In the Final Office Action, the Examiner rejects the claims under
35 U.S.C. § 103 based on the following references:
Name Reference Date
Myr US 2005/0096963 A1 May 05, 2005
Wu US 8,010,404 B1 Aug. 30, 2011
Mulukutla US 2011/0238467 A1 Sept. 29, 2011
Abe US 2012/0116850 A1 May 10, 2012
Brzezicki US 2013/0024173 A1 Jan. 24, 2013
Final Act. 23–40.
In the Final Office Action, the Examiner rejects claims 1, 4–5, 9, 12–
13, 17, and 20 under § 103 as being unpatentable over Wu in view of Abe
and Myr. Id. at 23. The Examiner also rejects claims 2–3, 10–11, and 18–
19 under § 103 as being unpatentable over Wu in view of Abe, Myr, and
Mulukutla. Id. at 30. The Examiner further rejects claims 6–8 and 14–16
under § 103 as being unpatentable over Wu in view of Abe, Myr, and
Brzezicki. Id. at 33.
A. Claim 1
With respect to claim 1, the Examiner relies on Wu to teach, inter
alia, receiving sales history for a plurality of discrete sales periods and
different promotion events active during each sales period, including at least
one discrete first time period when only one promotion event is active and at
least one second time period when two or more promotion events are active,
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determining a stand-alone lift for each promotion event using linear
regression, generating a baseline sales forecast using the determined stand-
alone lifts and, for each overlapping time period, determining a combined
overlap lift of the promotion events that are overlapping. Final Act. 23–25.
The Examiner states that, although Wu “teaches using normalization and
other techniques conducive to implementation of a p-norm” (citing Wu,
30:34–42, 24:3–8, 30:54–58), Wu “does not expressly teach using a p-
norm.” Id. at 25–26. The Examiner finds, however, that Abe does teach
using a p-norm. Id. at 26 (citing Abe ¶ 54). The Examiner determines that it
would have been obvious to one of ordinary skill to modify Wu based on
Abe because “both are inventions directed to determining relationships in
modeling sales factors.” Id. (citing Wu 1:14–21; Abe ¶¶ 52–54). The
Examiner further relies on Myr to teach linear stepwise regression. Id. at
26–27 (citing Myr ¶¶ 100–101, 141).
Appellant makes two arguments in response. Appeal Br. 12–13. First
Appellant argues that the p-norm in Abe cannot properly be combined with
Wu. Id. at 13. Appellant states that it is not claiming that the existence of a
p-norm is novel, and the existence of a p-norm is all that Abe discloses. Id.
Rather, Appellant argues, the invention claims “determining a combined
overlap lift of the promotion events that are overlapping using a p-norm.”
Id. Appellant contends that one of ordinary skill “would not know how to
combine the disclosure of Wu with the p-norm in Abe to determine a
combined lift, and would not think to combine the two concepts.” Id.
The Examiner responds that a p-norm is a known mathematical
concept represented by an equation well-known by one of ordinary skill in
the art as a tool for statistical analysis of promotion forecasting, and for
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evaluating performance of such forecasting, in the exact fashion a person of
ordinary skill would expect. Ans. 8. The Examiner determines that, because
Wu discloses statistical analysis using known techniques and equations to
evaluate combined lift of promotional events, using a p-norm (as disclosed
in Abe) in Wu’s statistical analysis is merely an obvious substitution of
known tools and techniques. Id. at 8–9. The Examiner further determines
that Appellant has not persuasively demonstrated that using the p-norm
equation in the claimed invention produces unexpected results or functions
in a manner different than how one would expect it to function for the
statistical analysis purpose it was designed to perform. Id. at 10. The
Examiner further notes that Abe is directed to causal modeling with respect
to forecasting and evaluating sales performance, and thus would be readily
available to one of skill to augment the statistical analysis techniques of Wu.
Id. at 11.
We do not find error in the Examiner’s findings or reasoning. Wu
discloses the use of statistical analysis in the determination of the combined
lift from multiple promotional events. See Wu 64:42–55 (“[E]ach curve
displayed by the PRA is the forecasted lift across a range of price changes
. . . discounts . . . or a promotion flag . . . in combination with a range of
TPRs. The base price change increments, TPR increments, and promotional
lifts reported in the PRA may be configured by a user or the statistician
responsible for creating the reports” (emphasis added)), 67:43–50
(“Confidence Analyzer 5010 generates indices of accuracy, known as
confidence matrices, for the forecasts generated by Forecaster 5006.”); see
also id. at 30:34–42 (referring to “a type of normalization”), 24:3–8
(referring to “[t]he average of normalized estimates”). Appellant admits that
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using a p-norm is a known technique for statistical analysis (Appeal Br. 13),
and Abe discloses the use of a p-norm to determine the strength of causal
relationships between data and sales. See Abe ¶¶ 52–54. Additionally, we
do not discern error in the Examiner’s finding that both Wu and Abe involve
inventions directed to determining relationships in modeling sales factors,
and are therefore in the same field of endeavor. See Final Act. 62. Based on
the teachings of Wu and Abe, we find that the Examiner has sufficiently
shown that using the known p-norm technique as one of the statistical
analysis methods used in Wu’s determination of combined overlap lift
would have been no more than the predictable use of prior art methods
according to their established functions and, consequently, would have been
obvious to a person of ordinary skill in the art. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007).
Appellant’s second argument is that Wu fails to disclose “separating
out discrete second time periods (e.g., individual weeks) ‘when two or more
different types of promotion events of the plurality of promotion events are
active simultaneously and overlapping.’” Appeal Br. 13. “In contrast,”
Appellant argues, “the only disclosure of ‘discrete time periods’ in Wu is in
connection with the type of data records received. Id. at 14. According to
Appellant, “Wu fails to disclose ANY type of different lifts applied to
different discrete time periods once the data is received.” Id.
The Examiner responds that “Wu repeatedly demonstrates that a
person of ordinary skill in the art would have been well acquainted with the
use of time periods” (citing 12:60–13:5, 11:28–45), and would have also
been well acquainted with using “analysis, including lift, of overlapping
promotions within said time periods” (citing 64:42–55, 66:5–11, 73:29–60).
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We do not discern error in the Examiner’s findings or conclusions.
Wu teaches receiving and analyzing sales data over discrete time periods.
See Wu 9:15–25 (receiving econometric data for a product collected over a
particular time period for analysis); 11:39–42 (“Analysis is performed . . .
such that . . . causal information for a particular time period is recorded.”);
12:60–13:5 (“data collected over a modeled time interval is analyzed by
introducing the data into a data grid divided into a set of time periods,” after
which “[t]he data grid so constructed is analyzed”); 15:5–23 (“The time
frame may be user selected or computer selected. The time window includes
T Time periods and the time period for the selected data point.”).
Wu also teaches determining combined overlap lifts for overlapping
promotion events, such as temporary price reductions, displays, ads, etc. See
Wu 2:24–25 (“Promotions include at least one of temporary price
reductions, displays, ads and multiples.”); 41:62–67 (“The production
models use historical POS to determine typical lifts for each type of
promotional event (e.g. Temporary Price Reduction, In-store display, Ad,
Mail-in-rebate, buy-one-get-one, etc). Using the lifts seen in the point-of-
sales data, the models estimate coefficients for each of the promotional
vehicles included in the model.”); 64:42–55 (“In some embodiments, each
curve displayed by the PRA is the forecasted lift across a range of price
changes . . . Temporary Price Reductions (TPRs), or discounts, . . . or a
promotion flag (Ad, Display, Multiples) in combination with a range of
TPRs.” (emphasis added)); 66:5-11 (“the PRA curves may include a
combination of effects (i.e. TPR+Ad, TPR+Ad+Display) to generalize,
any combination of promotion effects” (emphasis added)); 66:5–7 (“the
PRA curves may include a combination of effects (i.e. TPR+Ad,
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TPR+Ad+Display) to generalize any combination of promotion effects”);
see also id at 67:34–40; 73:29–60; 74:30–59. Wu also teaches determining a
forecast where only one promotion is active. See 73:29–33 (forecasts
generated based on only TPR); 74:46–50 (same).
We agree with the Examiner that these disclosures would have
suggested to a person of ordinary skill that each of the lift forecasts can be
determined for a particular time period. Therefore, we find that Wu would
have suggested to a person of ordinary skill forecasting lift for one
promotion during one time period, and forecasting lifts for overlapping
promotions during a second time period. Consequently, we are not
persuaded that the Examiner’s rejection of claim 1 is in error.
B. Claims 6–8 and 14–16
Appellant argues that dependent claims 6–8 and 14–16 are
independently allowable. Claim 6–8 and claims 14–16 include the same
limitations, but claims 6–8 ultimately depend from independent claim 1
while claims 14–16 ultimately depend from independent claim 9.
Claims 6 and 14 recite that optimizing of the p-norm “comprises
finding the value of the p-norm that minimizes Mean Absolute Percentage
Error” (MAPE). The Examiner finds that the combination of Wu, Abe, and
Myr already teaches optimizing that includes “finding the value of the p-
norm and further explains use of percentage error to minimize model
deviations similar to Appellant’s use of Mean Absolute Percentage Error.”
Ans. 12 (citing Wu 76:34–39). The Examiner finds that Brzezicki teaches
the use of MAPE in paragraph 86, and “describes the use of MAPE in a
forecasting system to provide an indication of the error of the forecast.”
Ans. 13; see Final Act. 34. The Examiner determines that it would have
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been “a conventional step to include MAPE to measure the prediction
accuracy of a forecasting method in statistics.” Ans. 13. Thus, the
Examiner determines, because “Wu et al discloses the features of the
forecasting methodology as well as minimizing deviations using percentage
error, [the] Examiner asserts that the known technique of MAPE, as
described by Brzezicki et al, is applicable to the method and system of Wu et
al as they both share characteristics and capabilities, namely, they are
directed to forecasting and optimization.” Id.
Claims 7–8 and 15–16 further include specific equations for
determining MAPE. The Specification explains that the equation in claims 7
and 15 is for the additive case (demand equals baseline demand plus
promotion effects) and the equation in claims 8 and 16 is for the
multiplicative case (demand equals baseline demand times the product of
promotion effects). Spec. ¶ 46; see also id. ¶ 21 (describing the additive and
multiplicative models). The Examiner finds that the equations in these
claims simply disclose a MAPE equation with variables inserted to treat the
overlapping promotion events previously disclosed, so that the combination
of Wu, Abe, and Brzezicki teach all of the terms that comprise the equation
and perform the equivalent function. Final Act. 34–35.
Appellant argues that claims 6 and 14 are allowable because the
combination of Wu, Abe, and Brzezicki would not result in a disclosure of
how to determine an “optimized value of p that minimizes a Mean Absolute
Percentage Error,” and that “the Examiner has not cited to any disclosure of
optimizing the p-norm itself using a Mean Absolute Percentage Error, which
is a specific and novel type of optimization.” Appeal Br. 14–15. Appellant
further argues that the algorithms set forth in claims 7–8 and 15–16 “are
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clearly not disclosed in the cited prior art, and the combination of elements
to form those algorithms would not be obvious to one of ordinary skill in the
art.” Id. at 15.
We agree with the Examiner that Brzezicki discloses MAPE as one of
several known statistics that “indicate average errors between actual and
forecasted data” in order to “provide an indication that the combined model
is forecasting with required accuracy.” Brzezicki ¶ 81. We also find that the
Examiner has articulated sufficient reasoning with rational underpinning to
make out a prima facie case of obviousness for claims 6–8 and 14–16. See
KSR, 555 U.S. at 418. We are not persuaded by Appellant’s cursory
arguments in response, because they are conclusory and fail to provide
sufficient explanation or reasoning to overcome the Examiner’s showing.
See Ex parte Belinne, 2009 WL 2477843 (BPAI 2009) (informative)
(“Appellants’ argument . . . repeatedly restates elements of the claim
language and simply argues that the elements are missing from the
reference. However, Appellants do not present any arguments to explain
why the Examiner’s explicit fact finding is in error.”). Additionally,
Appellant’s argument that none of the references individually shows
optimizing the p-norm using MAPE (or the specific variables used in the
equations in claims 7–8 and 15–16) fails because one cannot show
nonobviousness by attacking references individually when the rejection is
based on a combination of references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981). Consequently, we are not persuaded that the Examiner’s
rejection of claims 6–8 and 14–16 is in error.
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C. Conclusion as to § 103
Based on the above findings and determinations, we sustain the
Examiner’s rejection of claim 1 and dependent claims 6–8 and 14–16 under
§ 103. We also sustain the Examiner’s § 103 rejections of claims 2–5, 9–13,
and 17–20, which are not separately argued.
DECISION
We affirm the Examiner’s rejection of claims 1–20.

In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1, 4–5, 9,
12–13, 17,
20
103 Wu, Abe, Myr 1, 4–5, 9,
12–13,
17, 20

2–3, 10–11,
18–19
103 Wu, Abe, Myr,
Mulukutla
2–3, 10–
11, 18–19

6–8, 14–16 103 Wu, Abe, Myr,
Brzezicki
6–8, 14–
16

Overall
Outcome
1–20

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