THE TORONTO-DOMINION BANK

Patent Trials and Appeals Board

Dec 22, 2021

2021005460 (P.T.A.B. Dec. 22, 2021)

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.
16/546,134 08/20/2019 Ga Wu 32850-43730/US 4579
758 7590 12/22/2021
FENWICK & WEST LLP
SILICON VALLEY CENTER
801 CALIFORNIA STREET
MOUNTAIN VIEW, CA 94041
EXAMINER
VAUGHN, RYAN C
ART UNIT PAPER NUMBER
2125
NOTIFICATION DATE DELIVERY MODE
12/22/2021 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):
PTOC@Fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GA WU, MAKSIMS VOLKOVS, and HIMANSHU RAI
Appeal 2021-005460
Application 16/546,134
Technology Center 2100
Before JOSEPH L. DIXON, ELENI MANTIS MERCADER, and
BETH Z. SHAW, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–8, 10–15, and 17–20. 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 The Toronto-
Dominion Bank of Toronto, Canada. Appeal Br. 2.
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Application 16/546,134

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CLAIMED SUBJECT MATTER
The claims are directed to noise contrastive estimation for linear
models for one-class collaborative filtering. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A system comprising:
a processor configured to execute instructions; and
a non-transitory computer-readable medium containing the
instructions for execution on the processor, the instructions causing
the processor to perform steps of:
obtaining a ratings matrix representing a plurality of ratings
between a set of users and a set of items, wherein an entry in the
ratings matrix for a user and an item indicates whether the user
interacted with the item, and is represented as a Boolean value, in
which the entry is zero if a preference of the user for the item is
unknown, or a non-zero value if the user interacted with the item;
scaling the ratings matrix to generate a depopularized matrix
including a set of scaled ratings, wherein the non-zero values of the
ratings matrix is scaled by multiplying a non-zero rating for the user
and the item by a value inverse to a number of users who interacted
with the item;
performing singular value decomposition (SVD) on the
depopularized matrix to generate a set of latent user representations
and a set of latent item representations from the depopularized matrix,
a latent user vector in the set of latent user representations
representing the user in the set of users in a latent space, and a latent
item vector in the set of latent item representations representing the
item in the set of items in the latent space;
generating the rating predictions for items for which
preferences of a user are unknown from the set of latent user
representations or the set of latent item representations; and
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providing a subset of items having rating predictions above a
threshold value or proportion to the user.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Gronow US 2012/0136750 A1 May 31, 2002
Nice US 2015/0278907 A1 Oct. 1, 2015
Volkovs US 2017/0185894 A1 June 29, 2017
Ribeiro Pereira US 2019/0066187 A1 Feb. 28, 2019
Forgeat WO 2017/0178870 A1 Oct. 19, 2017

Medium, ALS Implicit Collaborative Filtering-Rn Engineering,
https://medium.com/radon-dev/als-implicit-collaborative-filtering-
5ed653ba39fe (Nov. 7, 2019).

Collaborative Filtering - Wikipedia,
https://web.archive.org/web/20171023194640/https://en.wikipedia.org/wiki/
Collaborative_filtering (Apr. 14, 2020).
REJECTIONS
Claims 1, 3–8, 10–15, and 17–20 stand rejected under 35 U.S.C.
§ 101.
Claims 1, 4, 8, 11, 15, and 18 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Nice, Volkovs, and Ribeiro Pereira. Final Act. 8.
Claims 3, 10, and 17 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nice, Volkovs, Ribeiro Pereira, and Gronow.
Claims 5, 12, and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nice, Volkovs, Ribeiro Pereira, and Forgeat.
Claims 6, 13, and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nice, Volkovs, Ribeiro Pereira, Forgeat, and Medium.
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Claims 7 and 14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Nice, Volkovs, Ribeiro Pereira, and Collaborative
Filtering.

OPINION

On this record, we see no error in the Examiner’s findings and
conclusions. We adopt as our own the findings and conclusions set forth by
the Examiner in the Final Rejection and Answer. See Final Act. 2–21; Ans.
18–31. We highlight the following for emphasis.

Section 101 Rejection
Appellant argues the rejection of the pending claims under 35 U.S.C.
§ 101 as a group. See Appeal Br. 4–11. Given our discretion under 37 C.F.R.
§ 41.37(c)(1)(iv), we select claim 1 as representative of the pending claims,
and we decide the § 101 rejection of claims 1, 3–8, 10–15, and 17–20 based
on representative claim 1.
Principles of Law
“Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n, 601
F.3d 1319, 1331 (Fed. Cir. 2010).
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 U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
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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-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219
(“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second part
of the Alice and Mayo framework, where “we must examine the elements of
the claim to determine whether it contains an ‘inventive concept’ sufficient
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to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (citation omitted). “A claim that recites an abstract
idea must include ‘additional features’ to ensure ‘that the [claim] is more
than a drafting effort designed to monopolize the [abstract idea].’” Id.
(alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
In January 2019, the U.S. Patent and Trademark Office (“USPTO”)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019), now
incorporated in the Manual of Patent Examination Procedure (9th Ed., Rev.
10.2019, June 2020) (“MPEP”) in sections 2103 through 2106.07(c)
(“2019 Revised Guidance”).2
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One”); and

(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(“Step 2A, Prong Two”).3

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
3 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
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2019 Revised 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, under
Step 2B, 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 Revised Guidance, 84 Fed. Reg. at 52–56; MPEP § 2106.04.
Abstract idea
Turning to Step 2A, Prong 1, the claimed invention is for generating
recommendations for users of online systems. See Spec. ¶ 2. Claim 1 (with
emphasis added) includes the following limitations:
obtaining a ratings matrix representing a plurality of ratings
between a set of users and a set of items, wherein an entry in the
ratings matrix for a user and an item indicates whether the user
interacted with the item, and is represented as a Boolean value, in
which the entry is zero if a preference of the user for the item is
unknown, or a non-zero value if the user interacted with the item;
scaling the ratings matrix to generate a depopularized matrix
including a set of scaled ratings, wherein the non-zero values of the
ratings matrix is scaled by multiplying a non-zero rating for the user

(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. at 54–55.
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and the item by a value inverse to a number of users who interacted
with the item;
performing singular value decomposition (SVD) on the
depopularized matrix to generate a set of latent user representations
and a set of latent item representations from the depopularized
matrix, a latent user vector in the set of latent user representations
representing the user in the set of users in a latent space, and a latent
item vector in the set of latent item representations representing the
item in the set of items in the latent space;
generating the rating predictions for items for which
preferences of a user are unknown from the set of latent user
representations or the set of latent item representations; and
providing a subset of items having rating predictions above a
threshold value or proportion to the user.
Claim 1 recites an abstract idea grouping listed in the 2019 Eligibility
Guidance: “mental processes.” See MPEP § 2106.04 (listing mental
processes—concepts performed in the human mind (including an
observation, evaluation, judgment, opinion) as one of the “enumerated
groupings of abstract ideas”). “Mental processes” include acts that people
can perform in their minds or using pen and paper, even if the claim recites
that a generic computer component performs the acts. Id.; see also
Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed.
Cir. 2016) (“[W]ith the exception of generic computer-implemented steps,
there is nothing in the claims themselves that foreclose them from being
performed by a human, mentally or with pen and paper.”); Mortg. Grader,
Inc. v. First Choice Loan Servs. Inc., 811 F.3d. 1314, 1324 (Fed. Cir. 2016)
(holding that computer-implemented method for “anonymous loan
shopping” was an abstract idea because it could be “performed by humans
without a computer”).
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The method recited in claim 1 executes steps that people can
practically perform in their minds or using pen and paper. For example, a
person can perform the “obtaining a ratings matrix representing a plurality
of ratings between a set of users and a set of items” step of claim 1 by using
his or her mind (or pen and paper) in the claimed manner. A person can
perform the “scaling the ratings matrix to generate a depopularized matrix
including a set of scaled ratings, wherein the non-zero values of the ratings
matrix is scaled by multiplying a non-zero rating for the user and the item by
a value inverse to a number of users who interacted with the item,” step by
using his or her mind (or pen and paper) in the claimed manner. A person
can perform the “generating the rating predictions for items for which
preferences of a user are unknown from the set of latent user representations
or the set of latent item representations” step, using his or her mind (or pen
and paper). A person can perform the “providing a subset of items having
rating predictions above a threshold value or proportion to the user” step,
using his or her mind (or pen and paper).
Accordingly, claim 1 recites a mental process, and thus an abstract
idea.
We also agree with the Examiner that claim 1 recites mathematical
calculations. Ans. 19–21. As the Examiner determines, and we agree,
“scaling the ratings matrix to generate a depopularized matrix including a
set of scaled ratings, wherein the non-zero values of the ratings matrix is
scaled by multiplying a non-zero rating for the user and the item by a value
inverse to a number of users who interacted with the item,” explicitly recites
multiplying each element of a matrix by a scalar value, which is a
mathematical calculation, and thus an abstract idea.
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To the extent, Appellant contends that the claimed invention is rooted
in technology because it is ostensibly directed to a technical solution (see
Appeal Br. 7–8), we disagree. Even assuming, without deciding, that
claimed invention can provide a subset of items having ratings predictions
faster than doing so manually, any speed increase comes from the
capabilities of the generic computer components—not the recited process
itself. See FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1095
(Fed. Cir. 2016) (citing Bancorp Services, LLC v. Sun Life Assurance Co.,
687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required
calculations could be performed more efficiently via a computer does not
materially alter the patent eligibility of the claimed subject matter.”)); see
also Intellectual Ventures I LLC v. Erie Indemnity Co., 711 F. App’x 1012,
1017 (Fed. Cir. 2017) (unpublished) (“Though the claims purport to
accelerate the process of finding errant files and to reduce error, we have
held that speed and accuracy increases stemming from the ordinary
capabilities of a general-purpose computer do not materially alter the patent
eligibility of the claimed subject matter.”). Like the claims in FairWarning,
the focus of claim 1 is not on an improvement in computer processors as
tools, but on certain independently abstract ideas that use generic computing
components as tools. See FairWarning, 839 F.3d at 1095 (citations and
quotation marks omitted).
Turning to Step 2A, Prong 2, the remaining elements recited in claim
1 do not integrate the abstract idea into a practical application.
In addition to the steps discussed above, claim 1 recites “a processor
configured to execute instructions” and “a non-transitory computer-readable
medium containing the instructions for execution on the processor.” The
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processor and non-transitory readable medium encompass generic
components. See Spec. ¶¶ 76–79. Simply programming a general-purpose
computer to perform abstract ideas does not integrate those ideas into a
practical application. See MPEP § 2106.04 (identifying merely including
instructions to implement an abstract idea on a computer as an example of
when an abstract idea has not been integrated into a practical application).
Thus, we conclude that the claims do not integrate the judicial
exception into a practical application. The claims do not (1) improve the
functioning of a computer or other technology, (2) are not applied with any
particular machine (except for a generic computer), (3) do not effect a
transformation of a particular article to a different state, and (4) are not
applied in any meaningful way beyond generally linking the use of the
judicial exception to a particular technological environment, such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP §§ 2106.05(a)–(c), (e)–(h). We, therefore, agree with
the Examiner that claim 1 is directed to an abstract idea.
Inventive Concept
Because we determine claim 1 is “directed to” an abstract idea, we
consider whether claim 1 recites an “inventive concept.” The Examiner
determined claim 1 does not recite an inventive concept. We agree with the
Examiner’s determination. As noted above, the claimed invention merely
uses generic computing components to implement the recited abstract idea.
The additional elements recited in the claim include the processor and non-
transitory computer readable medium. The claim recites these elements at a
high level of generality, and the written description indicates that these
elements are generic computer components. See Spec. ¶¶ 76–79. Using
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generic computer components to perform abstract ideas does not provide the
necessary inventive concept. See Alice, 573 U.S. at 223 (“[T]he mere
recitation of a generic computer cannot transform a patent-ineligible abstract
idea into a patent-eligible invention.”). Thus, these elements, taken
individually or together, do not amount to “significantly more” than the
abstract ideas themselves.
Appellant contends that various elements recited in the claim provide
the necessary inventive concept. See Appeal Br. 8–11. But these elements
form part of the recited abstract ideas and thus are not “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 78); see also BSG Tech
LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (explaining
the Alice “Court only assessed whether the claim limitations other than the
invention’s use of the ineligible concept to which it was directed were well-
understood, routine and conventional” and “did not consider whether it was
well-understood, routine, and conventional to execute the claimed
intermediated settlement method on a generic computer”) (emphasis added).
Rather, the recited (1) processor; and (2) non-transitory computer readable
medium are the elements whose generic computing functionality is well-
understood, routine, and conventional. See Intellectual Ventures I LLC v.
Capital One Bank (USA), 792 F.3d 1363, 1368 (Fed. Cir. 2015) (noting that
a recited user profile, database, and communication medium are generic
computer elements); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc.,
811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (noting that components such an
“interface,” “network,” and “database” are generic computer components
that do not satisfy the inventive concept requirement). Accord Ans. 5.
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Appellant’s arguments do not persuade us claim 1 is “directed to” a patent-
eligible concept.
Nor is this invention analogous to that which the court held eligible in
McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299 (Fed.
Cir. 2016) despite Appellant’s arguments to the contrary. Appeal. Br. 9–10;
Reply Br. 5–6. There, the claimed process used a combined order of specific
rules that rendered information in a specific format that was applied to create
a sequence of synchronized, animated characters. McRO, 837 F.3d at 1315.
Notably, the recited process automatically animated characters using
particular information and techniques—an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses generic computing components to generate rating
predictions. This generic computer implementation is not only directed to
mental processes, but also does not improve a display mechanism, as was
the case in McRO. See SAP Am. v. InvestPic, LLC, 898 F.3d 1161, 1167
(Fed. Cir. 2018) (distinguishing McRO).
Accordingly, we sustain the § 101 rejection of representative claim 1,
as well as claims 2–8, 10, and 12–20, grouped therewith.

Section 103 Rejections
We agree with and adopt the Examiner’s findings and conclusions
regarding the § 103 rejections. We find unavailing Appellant’s arguments
against Nice, Volkovs, Ribeiro Pereira, and their combination, for the
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reasons stated in the Final Rejection, as well as in the thorough and logical
Answer. See Ans. 24–31. For example, we agree with the Examiner’s
findings and conclusions that:
Appellant’s argument that the claim does not recite that each
matrix element is divided by a value that is sometimes inverse
to the number of users who interacted with the item, Br. at 15,
misses the mark. Examiner would note that Appellant also did
not claim that each matrix element is divided by a number that
is always inverse to the number of users who interacted with the
item. Nor did Appellant claim that there must be a linear, one-
to-one, or monotonic relationship between the number of users
who interacted with the item and the scaling factor. As long as
the scaling factor is, in general, inverse to the number of users
who interacted with the item, that is all that is required by the
claim.

Ans. 26–27.
In addition, an explicit teaching, suggestion, or motivation in the
references is not necessary to support a conclusion of obviousness. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 415–16 (2007); In re Ethicon, Appeal
2015-1696 (Fed. Cir. Jan. 3, 2017) (Order). The Supreme Court has
instructed that “a court must ask whether the improvement is more than the
predictable use of prior art elements according to their established functions”
(KSR, 550 U.S. at 417), and apply “an expansive and flexible approach” to
obviousness (id. at 415).
Besides the reasons stated in the Final Rejection and Answer (see
Final Act. 11–12; Ans. 28–30), with which we agree, we note that the
ordinarily-skilled artisan, being “a person of ordinary creativity, not an
automaton,” would be able to fit the teachings of Nice, Volkovs, and Ribiero
Periera together like pieces of a puzzle to predictably result in the claimed
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system. Id. at 420–21. Because Appellant has not demonstrated that the
proposed combination would have been “uniquely challenging or difficult
for one of ordinary skill in the art,” the proposed modification would have
been well within the purview of the ordinarily skilled artisan. Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 418).
Accordingly, we sustain the rejection of claim 1. Because Appellant
has not presented separate patentability arguments or have reiterated
substantially the same patentability arguments as those previously discussed
for claim 1, we also sustain the rejections of the remaining pending claims.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
We affirm the rejections.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–8, 10–
15, 17–20
101 Eligibility 1, 3–8, 10–
15, 17–20

1, 4, 8, 11,
15, 18
103 Nice, Volkovs,
Ribeiro Pereira
1, 4, 8, 11,
15, 18

3, 10, 17 103 Nice, Volkovs,
Ribeiro Pereira,
Gronow
3, 10, 17
5, 12, 19 103 Nice, Volkovs,
Ribeiro Pereira,
Forgeat
5, 12, 19
6, 13, 20 103 Nice, Volkovs,
Ribeiro Pereira,
Forgeat, Medium
6, 13, 20
7, 14 103 Nice, Volkovs,
Ribeiro Pereira,
Collaborative
Filtering
7, 14
Overall
Outcome
1, 3–8, 10–
15, 17–20

TIME PERIOD FOR RESPONSE
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