Sean Bruich

Patent Trials and Appeals Board

Jul 15, 2019

13626129 - (D) (P.T.A.B. Jul. 15, 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.
13/626,129 09/25/2012 Sean Bruich 26295-20053 5858
87851 7590 07/15/2019
Facebook/Fenwick
Silicon Valley Center
801 California Street
Mountain View, CA 94041
EXAMINER
HATCHER, DEIRDRE D
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
07/15/2019 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):
fwfacebookpatents@fenwick.com
ptoc@fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SEAN BRUICH
____________

Appeal 2018-004307
Application 13/626,129
Technology Center 3600
____________

Before KEVIN F. TURNER, DENISE M. POTHIER, and
MATTHEW J. MCNEILL, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1,2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–3, 5–11, 23, 25–32, and 36–38. Appeal Br. 7. Claims
4, 12–22, 24, and 33–35 have been canceled. Id. at 24–26, 31 (Claims
App’x). We affirm.

1 Throughout this opinion, we refer to the Non-Final Action (Non-Final
Act.) mailed May 25, 2017, the Appeal Brief (Appeal Br.) filed October 17,
2017, the Examiner’s Answer (Ans.) mailed February 13, 2018, and the
Reply Brief (Reply Br.) filed March 15, 2018.
2 Appellant identifies the real party in interest as Facebook, Inc. Appeal Br.
2.
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THE CLAIMED SUBJECT MATTER
Advertisers use metrics to gauge advertising effectiveness to groups.
See Spec. ¶¶ 3, 10. Appellant’s invention relates “to determining metrics for
groups of users defined by social signals of a social networking system.” Id.
¶ 1. User groups may include fans of a target brand (e.g., people having an
affinity for Lady Gaga’s album, “Born This Way”), friends connected to the
fans (“FoF group”), and a control group. See id. ¶¶ 5, 7, 33, 36. The group
metrics can be used to develop more effective marketing strategies for
different groups. See id. ¶ 10, 55–56.
Independent claim 1 reads as follows:
1. A computer-implemented method comprising:
maintaining a plurality of connections in a social
networking system between a plurality of users of the social
networking system, the plurality of connections stored in a
social graph including nodes connected by one or more edges,
the nodes representing users or objects of the social networking
system;
storing, as one or more edges in the social graph, actions
performed by the plurality of users of the social networking
system with regard to users or objects represented by the nodes
maintained by the social networking system;
determining, by a processor, a group of fans for a target
brand from the plurality of users of the social networking
system, the group of fans including users of the social
networking system who have an affinity for the target brand
exceeding an affinity threshold, a user's affinity for the target
brand computed based on an aggregation of sentiments
expressed by the user across historical actions of a plurality of
action types designating the target brand that were performed
by the user on the social networking system, the affinity
threshold being adjustable to allow control over which users are
included in the group of fans, the determining of the group of
fans comprising:
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identifying objects in the social graph that
correspond to the target brand;
identifying users who are connected to the
identified objects, via edges, by virtue of performing
actions with respect to the identified objects;
computing affinity values for the edges between
the identified users and the identified objects based on
types of actions associated with the identified edges; and
identifying, as the group of fans, users who are
connected to at least one of the identified objects by at
least one edge that has an affinity value greater than the
affinity threshold;
identifying, by the processor, a control group from the
plurality of users of the social networking system, the control
group including users who have social networking profile
characteristics that are statistically similar to social networking
profile characteristics of the group of fans;
determining a first set of purchase data for users in the
group of fans based on actions indicating purchases of products
performed by the users in the group of fans via the social
networking system and corresponding to a first set of edges of
the one or more edges in the social graph;
determining a second set of purchase data for users in the
control group based on actions indicating purchases of products
performed by the users in the control group via the social
networking system and corresponding to a second set of edges
of the one or more edges in the social graph; and
calculating, by the processor, a metric for the group of
fans using at least (i) an average value for products purchased
by the users in the group of fans based on the first set of
purchase data and (ii) the second set of purchase data, wherein
the metric measures an incremental value for the group of fans
relative to the control group.

Appeal Br. 22–23 (Claims App’x).

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RELATED APPEALS
The Specification incorporates by reference Application No.
12/978,265. Spec. ¶ 33. Application No. 12/978,265 has been assigned
Appeal No. 2018-006220, and in this appeal, another panel affirmed the
rejection under 35 U.S.C. § 101. The Appeal No. 2018-006220 decision
also indicates Appeal No. 2018-006220 is related to Appeal No. 2017-
001536. See Ex parte Hua, No. 2018-006220, slip op. at 3 (PTAB July 1,
2019).3
THE PATENT-INELIGIBILITY REJECTION
Appellant argues all the pending claims as a group. Appeal Br. 7–20.
We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Claims 1–3, 5–11, 23, 25–32, and 36–384 are rejected under 35 U.S.C.
101. Non-Final Act. 3–7. The Examiner determined claim 1 is “directed
toward the abstract idea of comparing the behavior of segments of social
network users” (id. at 4) and most of the limitations in steps [a], [c]–[g] are
part of the identified abstract idea (see id. at 4–5). The Examiner determined
a computer, a processor, step [b], and “[p]urchasing products via the social
network” are additional element in claim 1. Id. at 6. The Examiner found
the additional elements (e.g., the computer and processor) are recited “at a
high level of generality,” are used to perform the basic functions, and merely
carry out the abstract idea. Id. at 6–7. The Examiner further determined the
additional elements do not constitute meaningful limitations amounting to

3 Available at https://e-
foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018006220-06-
27-2019-1
4 The Examiner mistakenly included canceled claim 24 in the rejection’s
heading. Non-Final Act. 3. We hold this error harmless.
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significantly more than identified abstract idea and improve a technology or
technical field. See id.
Appellant argues: (1) the Examiner has not met the prima facie burden
for rejecting claim 1 under § 101, (2) claim 1 is similar to the patent-eligible
claims in McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299
(Fed. Cir. 2016), (3) claim 1 recites significantly more than the proposed
abstract idea, including providing a technical-based solution to a technical
problem faced by businesses that advertise online, and (4) step [g] is not
conventional in the advertising field. Appeal Br. 8–20; Reply Br. 2–9.
PRINCIPLES OF LAW
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[L]aws of nature, natural phenomena, and abstract
ideas” are not patentable. Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (brackets in original) (citing Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
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. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014)
(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 218–19 (“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
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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 of rubber products” (Diamond v. Diehr, 450 U.S. 175, 193
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “a claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 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.”). That
said, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
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
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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 (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.
In January 2019, the USPTO published revised guidance on the
application of § 101. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”)5. Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic
practice, or mental processes) (Guidance, 84 Fed. Reg. 50, 52–
54) (“Revised Step 2A - Prong 1”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h))

5 Available at https://www.govinfo.gov/content/pkg/FR-2019-01-
07/pdf/2018-28282.pdf.
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(Guidance, 84 Fed. Reg. 50, 53–55) (“Revised Step 2A - Prong
2”).
Only if a claim (1) recites a judicial exception, and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not well-understood, routine, and conventional in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance, 84 Fed. Reg. 50, 56 (“Step 2B”).

ANALYSIS
Based on the record before us, we agree with the Examiner that claim
1 is not patent eligible under 35 U.S.C. § 101. Preliminarily, we note
Appellant raises several arguments related to petitionable matters. See, e.g.,
Appeal Br. 8–11 (relating to allegedly failing to follow the July 30, 2015
Updated Guidance (referred to as “July Update” (Appeal Br. 8)) and the
Manual of Patent Examining Procedure (MPEP) § 2106(III)). These issues
are not within the jurisdiction of the Board and will not be addressed. See
MPEP §§ 1002 and 1201, 9th ed. (Oct. and Nov. 2015 respectively); see also
In re Hengehold, 440 F.2d 1395, 1403 (CCPA 1971). Additionally, the
Office has published more current guidance related to subject matter
eligibility on January 7, 2019. See Guidance, 84 Fed. Reg. 50.
Regarding whether the Examiner has established a prima facie under
35 U.S.C. § 101 (see Appeal Br. 8–10), we disagree. Alice identifies a two-
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part framework that requires one to (1) determine whether the claims at issue
are directed to a patent-ineligible concept and (2) if so, consider the elements
of each claim both individually and “as an ordered combination” to
determine whether the additional elements “transform the nature of the
claim” into a patent-eligible application. Alice, 573 U.S. at 217 (quoting
Mayo, 566 U.S. at 78–79). As explained more below, the Examiner
performed the above analysis.
Claim 1 falls within one of the four categories of patentable subject
matter identified in 35 U.S.C. § 101. In this case, claim 1 recites a “method”
(Appeal Br. 22–23 (Claims App’x) or a process under § 101. See Non-Final
Act. 3 (indicating claim 1 is a method). Thus, we must determine whether
claim 1 is directed to a judicial exception, namely an abstract idea. See
Alice, 573 U.S. at 217. To this end, we must determine whether (1) claim 1
recites a judicial exception, and (2) fails to integrate the exception into a
practical application. See Guidance, 84 Fed. Reg. 50, 52–55. If both
elements are satisfied, claim 1 is directed to a judicial exception under the
first step of the Alice/Mayo test. See id.
Alice Step One, Revised Step 2A - Prong 1
Appellant argues claim 1 is not directed to an abstract idea. Appeal
Br. 10–12. We disagree.
To determine whether a claim recites an abstract idea, we (1) identify
the claim’s specific limitations that recite an abstract idea, and (2) determine
whether the identified limitations fall within certain subject matter
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groupings, namely (a) mathematical concepts6; (b) certain methods of
organizing human activity7; or (c) mental processes.8
The Examiner found claim 1 is “directed toward the abstract idea of
comparing the behavior of segments of social network users.” Non-Final
Act. 4. Claim 1’s limitations are as follows:
[a] maintaining a plurality of connections in a social
networking system between a plurality of users of the social
networking system, the plurality of connections stored in a
social graph including nodes connected by one or more edges,
the nodes representing users or objects of the social networking
system;
[b] storing, as one or more edges in the social graph,
actions performed by the plurality of users of the social
networking system with regard to users or objects represented
by the nodes maintained by the social networking system;
[c] determining . . . a group of fans for a target brand
from the plurality of users of the social networking system, the
group of fans including users of the social networking system
who have an affinity for the target brand exceeding an affinity
threshold, a user's affinity for the target brand computed based
on an aggregation of sentiments expressed by the user across
historical actions of a plurality of action types designating the
target brand that were performed by the user on the social

6 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. 50, 52.
7 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See id.
8 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See id.
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networking system, the affinity threshold being adjustable to
allow control over which users are included in the group of
fans, the determining of the group of fans comprising:
[i] identifying objects in the social graph that
correspond to the target brand;
[ii] identifying users who are connected to the
identified objects, via edges, by virtue of performing
actions with respect to the identified objects;
[iii] computing affinity values for the edges
between the identified users and the identified objects
based on types of actions associated with the identified
edges; and
[iv] identifying, as the group of fans, users who are
connected to at least one of the identified objects by at
least one edge that has an affinity value greater than the
affinity threshold;
[d] identifying . . . a control group from the plurality of
users of the social networking system, the control group
including users who have social networking profile
characteristics that are statistically similar to social networking
profile characteristics of the group of fans;
[e] determining a first set of purchase data for users in the
group of fans based on actions indicating purchases of products
performed by the users in the group of fans via the social
networking system and corresponding to a first set of edges of
the one or more edges in the social graph;
[f] determining a second set of purchase data for users in
the control group based on actions indicating purchases of
products performed by the users in the control group via the
social networking system and corresponding to a second set of
edges of the one or more edges in the social graph; and
[g] calculating . . . a metric for the group of fans using at
least (i) an average value for products purchased by the users in
the group of fans based on the first set of purchase data and (ii)
the second set of purchase data, wherein the metric measures an
incremental value for the group of fans relative to the control
group.

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Appeal Br. 22–23 (Claims App’x) (lettering, numbering, bracketing and
indenting added for clarity). 9
Under their broadest reasonable interpretation, steps [a]–[g] recite a
process of observing and judging social network users and product data to
evaluate advertising impact on certain groups. See id. These observations
and judgements include determining (1) users’ behaviors within a social
network and (2) a comparative metric for a certain group (e.g., fans) related
to the users’ behaviors. See Non-Final Act. 4 (discussing “comparing the
behavior of segments of social network users”), 6 (discussing “maintaining a
social network”); Ans. 12 (discussing “calculating an incremental value for a
group of fans as compared to a control group are drawn to comparing known
information about groups of users” and “comparing known information
about groups of users”); Appeal Br. 16 (stating claim 1 as reciting “steps of
determining a group of fans . . . in a social graph, and determining a metric
based on actions stored” in the graph.). Additionally, although the Examiner
excluded step [b] from the identified judicial exception (see Non-Final Act.
6), we determine step [b] is part of the exception.
To illustrate, “calculating . . . a metric for the group of fans” based on
different social network users’ behaviors as step [g] recites (Appeal Br. 23
(Claims App’x)) is a necessary activity in evaluating advertising impact on a
fan group, including determining a metric related to the fan group based on
comparative social network users’ behaviors. Additionally, integral parts of
this metric determination involve “determining . . . a group of fans for a
target brand” as step [c] (id. at 22 (Claims App’x)) recites and “identifying”
other user group as step [d] recites (id. at 23 (Claims App’x)) to identify the

9 We refer to these limitations as steps [a]–[g] throughout this Opinion.
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fan group and the other group within the social network whose behaviors
will be observed, judged, and compared. See id. at 22–23 (Claims App.).
Similarly, “maintaining a plurality of connections in a social networking
system between a plurality of users of the social networking system” as step
[a] recites (id. at 22 (Claims App’x)) and “storing . . . actions performed by
the plurality of users” as step [b] recites (id.) are integral parts of identifying
fan and control groups within the social network and the activities that are to
be observed. Additionally, steps [e] and [f] recite (id. at 23 (Claims App’x))
activities that need to be performed in order to compare the fan group’s
behavior with another group’s behavior and to base the resulting metric on
comparative social network users’ behaviors. See Ans. 14 (discussing steps
[e]–[g] are a part of comparing social network users’ behaviors).
The Specification supports our characterization of claim 1’s focus.
See Spec. ¶¶ 1 (stating the “invention relates . . . to determining metrics for
groups of users defined by social signals of a social networking system.”), 4
(further stating “one embodiment” of the invention includes “a social
networking system generates metrics for one or more groups of users
defined by various social signals”), Abstract (stating the same); see id. ¶ 3
(stating “advertisers often need metrics related to various groups of the
social networking systems . . . [T]o effectively gauge advertising impact, an
advertiser may require the overall value of fans of an associated target brand
over social networking systems.”), 10 (discussing “allow[ing] the advertiser
to more effectively assess the effectiveness of content associated with a
target brand presented to different groups” and “advertisers may gain
insights to develop effective marketing strategies for different groups.”).
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See Appeal Br. 18 (indicating calculating a metric “provides [a] useful
mechanism for an advertiser to effectively gauge advertising impact.”).
Thus, contrary to Appellant’s assertions (see Appeal Br. 9–11; see
Reply Br. 2–4), claim 1’s focus is directed to a judicial exception under
§ 101. Moreover, this characterization of what claim is directed to is not
overly broad as asserted. See id. at 10.
The above steps recite processes that can occur in the human’s mind
(or through pen and paper). See id. at 22–23 (Claims App.). For example,
“maintaining a plurality of connections in a social networking system
between a plurality of users” as claim [a] recites and “storing . . . actions
performed by the plurality of users” as step [b] recites can involve a person
observing and evaluating mentally users and objects within a social network
and the users’ actions and then memorizing (or with pen and paper) these
users, objects, and observations/actions as a graph. Likewise, “determining .
. . a group of fans for a target brand” based on user’s affinity as step [c]
recites and “identifying” the control group as step [d] recites can involve
evaluating or judging mentally (or with pen and paper) social networking
characteristics of a fan group (e.g., a fan group’s affinity for a brand as
recited in step [c]) and a control group (e.g., those statistically similar to fan
group as recited in step [d]) within the stored social graph. Even more so,
“determining a . . . set of purchase data for users in” the fan group and the
control group as steps [e] and [f] recite can involve observing and evaluating
mentally (or with pen and paper) data performed by these user groups within
the social networking system. Lastly, “calculating . . . a metric for the group
of fans” as step [g] recites can involve evaluating data for the fan group and
the control group mentally (or with pen and paper).
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We therefore disagree with Appellant that steps [a]–[b] and [e]–[g]
could not have been performed by a human. Reply Br. 6–7. Moreover,
although steps [e] and [g] relate to purchases made “via the social
networking system” (Appeal Br. 23 (Claims App.)), there is no requirement
in the claim that this feature (see id.) or limitations related to the “social
networking system” in other steps be performed over the Internet or in an
online environment as argued. Reply Br. 7; see Appeal Br. 20. To be sure,
steps [e] and [f] determine purchase data based on actions indicative of
products purchased through the social networking system, but these steps do
not positively recite performing purchases through the social networking
system. Appeal Br. 23 (Claims App.).
Thus, similar to the Examiner, we determine steps [a]–[g] recite
mental processes. Ans. 12 (citing CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011)); see Non-Final Act. 10–11
(discussing mental processes). With the exception of generic computer-
implementation recited in claim 1, there is nothing in steps [a]–[g] that
forecloses the steps from being performed mentally or with pen and paper.
See Benson, 409 U.S. at 67 (indicating converting BCD numbers to pure
binary numbers can be done mentally and that “mental processes . . . are not
patentable, as they are the basics tools of scientific and technological
work”); see CyberSource, 654 F.3d at 1372–73 (stating “[a]ll of claim 3’s
method steps can be performed in the human mind, or by a human using a
pen and paper. . . . Such a method that can be performed by human thought
alone is merely an abstract idea and is not patent-eligible under § 101.”);
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146 (Fed. Cir.
2016) (stating “we continue to ‘treat[ ] analyzing information by steps
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people go through in their minds, or by mathematical algorithms, without
more, as essentially mental processes within the abstract-idea category.’”)
(citation omitted).
Steps [a]–[g] also involve commercial interactions, such as
advertising or marketing activities that gauge an advertising impact as
previously described. See Morsa v. Facebook, Inc., 77 F. Supp. 3d 1007,
1013 (C.D. Cal. 2014), aff'd, 622 F. App’x 915 (Fed. Cir. 2015) (“targeted
advertising is [a well-known] concept, insofar as matching consumers with a
given product or service has been practiced as long as markets have been in
operation.”) (internal quotation omitted); see Bancorp Servs., LLC v. Sun
Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1280 (Fed. Cir.
2012) (identifying the concept of “managing a stable value protected life
insurance policy by performing calculations and manipulating the results” as
an abstract idea); see Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (holding that “tailoring content
based on the viewer's location” is an information tailoring technique that is a
fundamental practice long prevalent in our system and is an abstract
idea); cf. SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir.
2018) (concluding that claims to a “series of mathematical calculations
based on selected information” are directed to abstract ideas). Thus, we
agree with the Examiner that claim 1’s limitations are directed a judicial
exception, which “can be considered to be drawn to methods of organizing
human activity,” including to those related to advertising and marketing
activities/behaviors. See Non-Final Act. 5–6.
Appellant contends that claim 1 is not directed to an abstract idea
because the claim “describes a new type of information and new techniques
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for analyzing [the new type of information.]” Appeal Br. 12; see id. at
12–13. We are not persuaded. “A claim for a new abstract idea is still an
abstract idea” (Synopsys, 839 F.3d at 1151 (Fed. Cir. 2016)), including a
new technique for analyzing data by calculating a specific metric. See SAP,
898 F.3d at 1163 (quoting Synopsys); see Ans. 17. Also, limiting claim 1 to
particular content or source (e.g., purchase data of a fan group) does not
make claim 1’s method other than abstract. See SAP America, Inc. v.
Investpic, LLC, 890 F.3d 1016, 1022 (Fed. Cir. 2018) (citing Electric Power
Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353, 1355 (Fed. Cir. 2016));
see Praxair Distribution, Inc. v. Mallinckrodt Hospital Products IP Ltd., 890
F.3d 1024, 1032 (Fed. Cir. 2018) (stating “[c]laim limitations directed to the
content of information and lacking a requisite functional relationship are not
entitled to patentable weight because such information is not patent eligible
subject matter under 35 U.S.C. § 101.”).
Accordingly, we determine claim 1’s recited judicial exception can be
categorized as a certain method of organizing human activity and mental
processes, and thus recites an abstract idea.
Alice Step One, Revised Step 2A - Prong 2
Although claim 1 recites an abstract idea, we must still determine
whether the abstract idea is integrated into a practical application, namely
whether the claim applies, relies on, or uses the abstract idea in a manner
that imposes a meaningful limit on the abstract idea, such that the claim is
more than a drafting effort designed to monopolize the abstract idea. See
Guidance, 84 Fed. Reg. 50, 53. To this end, we (1) identify whether there
are any additional, recited elements beyond the judicial exception in claim 1,
and (2) evaluate those elements individually and collectively to determine
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whether they integrate the exception into a practical application. See id., 84
Fed. Reg. 50, 54–55.
For claim 1, the Examiner identified a computer, a processor, and step
[b] as additional elements. Final Act. 6; Ans. 18. Steps [c], [d], and [g]
recite using a “processor,” and claim 1’s preamble recites “[a] computer-
implemented method.” Appeal Br. 22–23 (Claims App.). Notably, claim
1’s body does not recite a computer. However, to the extent the preamble
implies a computer, separate from the recited “processor,” is used to perform
any of steps [a]–[g], a computer is an additional element of claim 1 beyond
the identified judicial exception. See id. Claim 1 further recites “a social
networking system.” Id. As broadly as recited in light of the Specification,
this system need not be an online system and the recited purchases in steps
[e] and [f] need not use the Internet. Compare Spec. ¶¶ 1, 3 with id. ¶ 2
(describing both a “social networking system” and an “online social
networking system.”). In any event, to the extent the recited “social
networking system” is an additional element beyond the judicial exception,
we discuss this element below. Also, for reasons previously discussed, step
[b] is part of the judicial exception rather than an additional element.
For the above reasons, we disagree with Appellant that “the additional
elements [in claim 1] may include” steps [a]-[d] and [e]-[g] in their entirety.
Appeal Br. 16; see id. at 16–17.
Next, we evaluate the identified additional elements (e.g., a computer
and processor) individually and collectively to determine whether they
integrate the judicial exception into a practical application. Appellant argues
claim 1 has features (e.g., step [g]) that “achieve[] a technological
improvement.” Appeal Br. 14–15. We are not persuaded.
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Appellant argues claim 1’s additional element reflect a technical
improvement by requiring user actions be rendered “in a specific way”
(Appeal Br. 14)— the “first and second sets of purchase data based on stored
edges in a social graph corresponding to purchases of products performed by
users via a social networking system” and
the first set is for a group of fans identified based on affinity
values of the edges of the social graph, and the second set is for
a control group identified based on ‘users who have social
networking profile characteristics that are statistically similar to
[those] of the group of fans,’ as recited in claim 1.

Id.
Appellant’s purported technical improvement (i.e., “reducing time and
resource consumption by advertisers in selecting advertisements for
displaying to users of the social networking system” (Appeal Br. 14)) or
solution to a technical problem faced by online advertisers (i.e.,
“advertisements directed to a large audience of users (e.g., potential
customers) are not an efficient use of resources because different groups of
users of social networking systems have different types of interests” (Appeal
Br. 17)) is not commensurate in scope with claim 1. See In re Hiniker Co.,
150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts . . . are not
commensurate with the claim scope and are therefore unpersuasive.”).
Similarly, Appellant further discusses problems faced by online advertisers,
including “designing the look and feel of advertisements” on a GUI or those
related to “which online platforms to distribute advertisements” (Appeal Br.
20), which are not recited in claim 1. That is, claim 1 does not recite a
technique for selecting, displaying, or distributing advertisements. Appeal
Br. 22–23 (Claims App’x).
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Nor does the Specification address that claim 1’s method reduces time
and resource consumption, improves the “look and feel” of advertisements,
or concerns distributing advertisements. See generally Spec. Rather, as
discussed above, claim 1 addresses improving the identified abstract idea of
evaluating advertising impact on a certain group by observing and judging
social network users’ behaviors. See Appeal Br. 22–23 (Claims App’x); see
Spec. ¶¶ 1–4, 10, Abstract; see Ans. 19 (stating the Specification “discloses
an improved way to analyze data for improved marketing strategies.”), 27
(same). We thus disagree with Appellant that the Specification describe a
technical problem. See Appeal Br. 18.
Also, the additional elements in claim 1 (e.g., a computer, a processor,
and a social networking system) are merely used as the tools to implement
this abstract idea. Appeal Br. 22–23 (Claims App’x); see Ans. 19 (stating
the Specification “the claims are not directed toward the improvements in
computers as tools, but on and abstract idea . . . that use[s] computers as
tools.”); see Non-Final Act. 7. This is not enough to constitute patentable
eligible claim under § 101. See Alice, 573 U.S. at 225–26 (holding patent
ineligible claims that “amount to ‘nothing significantly more’ than an
instruction to apply the abstract idea . . . using some unspecified, generic
computer” and in which “each step does no more than require a generic
computer to perform generic computer functions”).
As the Examiner indicates (Final Act. 6–7; Ans. 18), the additional
elements (e.g., the computer and processor) are computing devices
performing generic computing functions, such as obtaining and evaluating
data in steps [c], [d], and [g]. But, using computer devices generically “is
not ‘enough’ to transform an abstract idea into a patent-eligible invention.”
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Alice, 573 U.S. at 226 (quoting Mayo, 566 U.S. at 77) see id. at 225–26
(holding patent ineligible claims that “amount to ‘nothing significantly
more’ than an instruction to apply the abstract idea . . . using some
unspecified, generic computer” and in which “each step does no more than
require a generic computer to perform generic computer functions”). The
additional elements in claim 1 merely automate the above-identified method
of organizing human activity and mental processes using generic computer
elements and are used as tools to perform the identified abstract idea without
reflecting an improvement in a computer’s or processor’s functioning.
See Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055 (Fed.
Cir. 2017).
Also, limiting the claims to recognizing and storing particular
information using generic computer devices and to a particular environment
(e.g., social networking system) does not circumvent the claim being
directed to an abstract idea. See Content Extraction and Transmission LLC
v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014); see
Alice, 573 U.S. at 223 (quoting Bilski, 561 U.S. at 610–11); see Intellectual
Ventures I, 792 F.3d at 1366 (“An abstract idea does not become nonabstract
by limiting the invention to a particular field of use or technological
environment, such as the Internet.”). Although claim 1 recites “a social
networking system” element, this limitation at best directs claim 1 “to
nothing more than the performance of an abstract business practice on the
Internet.” DDR Holdings LLC v. Hotelscom LP, 773 F.3d 1235, 1256 (Fed.
Cir. 2014). Thus, even assuming without agreeing that claim 1 is limited to
Internet-based advertisement (see Appeal Br. 20), we are not persuaded that
this amounts to more than an attempt to limit the abstract idea to a computer
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implementation and to a specific industry. See Accenture Global Servs.,
GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Circ.2013
(stating “attempts to limit the abstract concept to a computer implementation
and to a specific industry . . . do not provide additional substantive
limitations to avoid preempting the abstract idea.”).
The Specification further supports the recited processor, computer,
and social networking system are used generically. Spec. ¶ 26 (describing
user device 202 in Figure 2 generically as “a conventional computer system,
such as a desktop computer or laptop computer” as well as “having
computer functionality, such as a personal digital assistant (PDA), mobile
telephone, smartphone, etc.”), 67–68 (describing the processor generically as
a “computer processor,” “a single processor,” or “multiple processor
designs”), 26 (describing social networking system 100 generically), Fig. 2
(showing the same). Thus, the above recited steps are being applied using
general computer elements. See Alice, 573 U.S. at 221.
Also, although we disagree step [b] is an additional element, we note
Alice indicates nearly every computer will include data storage elements that
are capable of performing basic and generic storage functions, such as those
required by step [b]. See Alice, 573 U.S. at 226; see Ans. 13. Storing data is
also an insignificant extra-solution activity akin to mere data gathering. See
Alice, 573 U.S. at 226.
Furthermore, even when considering the additional elements in claim
1, these elements are still collectively are used as tools to implement the
identified abstract and perform their generic functions.
Appellant contends claim 1 recites a
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particular implementation of each specific feature that then
achieves a specific structure. For example, claim 1 recites
calculating “a metric for the group of fans using at least (i) an
average value for products purchased by the users in the group
of fans based on the first set of purchase data and (ii) the second
set of purchase data.”

Appeal Br. 14. However, the above-noted step [g] in claim 1 is drawn to the
judicial exception and is not an additional elements beyond the judicial
exception. Instead, we identified the additional elements in the claim
beyond the judicial exception (e.g., the computer, processor, social
networking system) and evaluated the additional elements individually and
in combination to determine whether they integrate the exception into a
practical application (id., 84 Fed. Reg. at 54–55). See id., 84 Fed. Reg. at 55
n.24.
Appellant contends claim 1 is similar to McRO, 837 F.3d 1299
(Appeal Br. 13–15; Reply Br. 4, 6–7) and Finjan, Inc. v. Blue Coat Systems.,
Inc, 879 F.3d 1299 (Fed. Cir. 2018) (Reply Br. 4–5). In particular, when
addressing McRO, Appellant contends claim 1
is not simply reciting typical steps performed by a human in the
way a human would perform them, and then adding a computer
to the claim to implement the steps. Instead, the claim is
reciting a specific steps that computer would perform to provide
a better experience for users and to solve a technical problem in
the field.

Appeal Br. 15. We are not persuaded.
Unlike the claims in McRO, claim 1 does not concern computer
animation. See Appeal Br. 22–23 (Claims App.); see Ans. 21, 28 (stating
“the claims here are not similar to the claims at issue in McRO.”). Also, as
previous noted, claim 1 does not recite or allow a computer (or any of the
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additional elements, such as a processor or a social networking system, for
that matter) to realize Appellant’s alleged improvement (e.g., providing a
better user experience, reducing time and resources in selecting
advertisements for display in a social network, using resources more
efficiently). See Appeal Br. 15; see id. at 14, 17. Moreover, the fact that the
required determinations in claim 1 “could be performed more efficiently via
a computer does not materially alter the patent eligibility of the claimed
subject matter.” FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d
1089, 1095
In contrast with Finjan, claim 1 (1) is not directed to a technique for
analyzing information in a downloadable code or performing a behavior-
based virus scan, (2) does not recite a downloadable code or newly
generated file, and (3) does not relate to computer security. Compare Appeal
Br. 22–23 (Claims App’x), with Finjan, 879 F.3d at 1303–05. We therefore
disagree claim 1 is similar to the claims in Finjan as argued. Reply Br. 5.
In summary, we determine the additional elements beyond the judicial
exception in claim 1, whether considered alone or in combination, are not
integrated into a practical application.
Alice/Mayo Step Two, Step 2B
Because we determine claim 1 does not integrate the recited judicial
exception into a practical application, we need to consider whether the
additional elements add a specific limitation or combination of limitations
that are not well-understood, routine, or conventional activity in the field.
Guidance, 84 Fed. Reg. 50, 56. If so, this indicates that an inventive concept
may be present. If, instead, the additional elements simply append well-
understood, routine, and conventional activities previously known to the
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industry, specified at a high level of generality, to the judicial exceptions,
this indicates that an inventive concept may not be present.
The Examiner determined claim 1 and therefore claim 1’s additional
elements “when considered as a whole, are nothing more than the instruction
to implement the abstract idea in a particular, albeit well-understood, routine
and conventional technological environment.” Non-Final Act. 7; see Ans.
17–18. Appellant disagrees, asserting step [g] addressing calculating a
metric based on purchase tracking on the social networking system is “not
conventional.” Appeal Br. 20. Upon review, we determine this argument
unavailing.
Similar to our discussion under the “Revised Step 2A, Prong 2”
section, we emphasize that this inquiry considers whether the additional
elements in claim 1 add a specific limitation or combination of limitations
that are not well-understood, routine, or conventional activity in the field.
As previously, noted step [g] is part of the judicial exception and thus is not
an additional element for this inquiry.
To the extent “a social networking system” is an additional element,
we note that components such an “interface” or a “network” have been
found to be generic computer components that do not satisfy the inventive
concept requirement. See Mortgage Grader, Inc. v. First Choice Loans
Servs. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016). Moreover, as the
Examiner indicates (Ans. 23 (quoting Spec. ¶¶ 2–3)), the Specification states
advertisers need metrics related to various groups within a social networking
system and “conventional social networking systems lack mechanism for
delivering useful metrics.” Spec. ¶ 3 (emphasis added). We underscore
“useful” here to highlight that the Specification implies that determining a
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metric—albeit not a “useful” one as alleged—for a fan group within a social
networking system like step [g] recites is conventional. See id.
As to the additional elements (e.g., the computer, the processor, and
the social networking system), we determine as claimed these elements
perform well-understood, routine, or conventional activity in the field. For
example, Alice indicates computer functions, such as obtaining and adjusting
data and issuing instructions, are “‘well-understood, routine, conventional
activit[ies]’ previously known to the industry.” Alice, 573 U.S. at 225
(quoting Mayo, 566 U.S. at 73). The functions performed the claimed
processor in steps [c], [d], and [g] or, to the extent recited, a computer in
steps [a], [e] and [f] are similar to obtaining data and adjusting data are thus
can be considered well-understood, routine, and conventional activities. See
Appeal Br. 22–23 (Claims App’x).
Regarding step [b] and to the extent step [b] is considered an
additional element, Alice indicates computers have storage units capable of
performing basic storage functions (e.g., are routine and conventional). See
Alice, 573 U.S. at 226. Similarly, step [b] as broadly as recited requires
basic storage functions that are routine and conventional similar to Alice.
See Appeal Br. 22–23 (Claims App’x). We additionally refer above to our
discussion related to the Specification and the generic disclosure of the
functions these additional elements perform.
We conclude the additional elements in claim 1 alone or in
combination are specified at a high level of generality to the judicial
exception and simply append well-understood, routine, and conventional
activities previously known to the industry. As such, we determine the
additional elements do not provide an inventive concept in claim 1.
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For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claim 1 and claims 2, 3, 5–11, 23, 25–32, and
36–38, which are not argued separately.

DECISION
We affirm the Examiner’s rejection of claims 1–3, 5–11, 23, 25–32,
and 36–38 under § 101.
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).

AFFIRMED