Timothy Choe et al.

Patent Trials and Appeals Board

Feb 4, 2020

14920569 - (D) (P.T.A.B. Feb. 4, 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.
14/920,569 10/22/2015 Timothy Choe NUDGI.001P1 7044
20995 7590 02/04/2020
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
EXAMINER
KIM, PATRICK
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
02/04/2020 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):
efiling@knobbe.com
jayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte TIMOTHY CHOE, ALAIN RAPPAPORT,
LIKUO LIN, JUSTIN LIN, and JOSHUA BROWN
________________

Appeal 2018-009201
Application 14/920,569
Technology Center 3600
________________

Before DENISE M. POTHIER, JASON J. CHUNG, and
MATTHEW J. McNEILL, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 3–18.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
INVENTION
The invention relates to generating offers for expressions of interest
automatically. Abstract. Claim 3 is illustrative of the invention and is
reproduced below:

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Nudgit, Inc. is the real party in
interest. Br. 2.
2 According to the Advisory Action filed on April 17, 2018, the Examiner
entered Appellant’s Amendment cancelling claims 1, 2, 19, and 20.
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3. A consumer-driven method for initiating
transactions, the method comprising:
by a computer system comprising computer hardware:
receiving expressions of interest from consumers for one
or more of a good, a service, a desire to engage in an activity, or
a demand, the expressions of interest comprising a plurality of
demand attributes, each expression of interest being associated
with more than one good or service;
programmatically organizing the expressions of interest
based on the demand attributes to produce aggregated
expressions of interest determining relationships between the
aggregated expressions of interest;
modifying an ontology based on the relationships such
that the ontology is adapted to identify an intent of a user and
one or more related intents that are related to the intent of the
user based on an expression of interest of the user;
receiving the expression of interest from the user;
determining the intent of the user and at least one related
intent of the user using the expression of interest of the user and
the ontology;
identifying one or more suppliers associated with the
intent of the user and the at least one related intent of the user,
wherein the identified suppliers are capable of providing goods
or services associated with the expression of interest of the user;
and
enabling the identified suppliers to contact the user
regarding the expression of interest of the user by at least
performing the following:
outputting the expression of interest of the user for
presentation to said identified suppliers; and
providing functionality for the identified suppliers
to contact the user regarding the expression of interest of
the user.

Br. 26 (Claims Appendix) (emphases added).

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REJECTIONS
Claims 3–183 stand rejected under 35 U.S.C. § 101 as being directed
to patent ineligible subject matter. Final Act. 8–10.
Claims 3–18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Petersen (US 2009/0327034 A1;
published Dec. 31, 2009) and de Rubertis (US 2010/0153209 A1; published
June 17, 2010). Final Act. 10–18.

ANALYSIS
I. Claims 3–18 Rejected Under 35 U.S.C. § 101
A. Legal Principles
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. 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 Supreme Court’s two-step 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

3 The Examiner refers to claims 1–20 as being rejected, under 35 U.S.C.
§ 101. Final Act. 8. However, claims 1, 2, 19, and 20 are cancelled. See
n.2. We, therefore, denote the rejections as claims 3–18 being rejected.
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intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
(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 192 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
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commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (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. (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.
The PTO published revised guidance on the application of § 101.
USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent Subject
Matter Eligibility Guidance (“Memorandum”). 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 activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not
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“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
B. The Examiner’s Conclusions and Appellant’s Arguments
The Examiner concludes the present claims recite certain methods of
organizing human activity. Ans. 4, 12. The Examiner also determines the
present claims do not amount to significantly more than an abstract idea
itself because the abstract idea is implemented on additional elements that
are well-understood, routine, and conventional. Final Act. 4, 9 (citing Spec.
¶¶ 184, 187).
Appellant argues that, similar to the claims in Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016), the present claims recite a
specific implementation of a solution to a problem with demand-driven
assisted transaction technologies. Br. 9–12 (citing Spec. ¶¶ 44, 53, 55, 62).
Appellant argues that, similar to the claims in McRO, Inc. v. Bandai Namco
Games America Inc., 837 F.3d 1299, 1308–14 (Fed. Cir. 2016), the present
claims recite an improvement to demand-driven assisted transaction
methods. Br. 12–15. Appellant further argues that, similar to DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), the
present claims recite the demand-driven assisted transaction methods that
address a business challenge particular to the Internet and that are
necessarily rooted in technology. Br. 15–16. Appellant argues the present
claims do not preempt any abstract idea. Id. at 16. Appellant argues the
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Examiner’s conclusory analysis threatens to swallow all consumer lead
selecting and vendor matching technology. Id. at 17. Appellant argues the
present claims recite individual elements or elements taken as a whole that
provide an improvement to demand-driven assisted transaction methods. Id.
at 17–20. Appellant argues the present claims add specific limitations other
than what is well-understood, routine, and conventional activities in the
field. Id. at 20–21. We disagree with Appellant.
C. Discussion
1. Step 2A, Prong 1
The emphasized portions of claim 3, reproduced above (see supra at
2), recite commercial interactions including marketing or sales behaviors,
because they require receiving expressions of interest from the consumers,
receiving the expression of interest from the users, determining the intent of
the user, and identifying one or more suppliers associated with the intent of
the user to facilitate a transaction of a good or service. According to the
Memorandum, commercial interactions, including marketing/sales behavior,
fall into the category of certain methods of organizing human activity. See
Memorandum, 84 Fed. Reg. at 52. Moreover, those certain methods of
organizing human activity are a type of an abstract idea. See id.
We disagree with Appellant’s argument that the Examiner’s
conclusory analysis threatens to swallow all consumer lead selecting and
vendor matching technology. Br. 17. As an initial matter, the Examiner’s
analysis is not “conclusory” because the Examiner’s analysis addresses the
limitations and provides an adequate explanation as to why each limitation is
abstract. Final Act. 8–9; Ans. 4–8 (identifying the recited “receiving,”
“organizing,” “modifying,” second “receiving,” “determining,”
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“identifying,” and “enabling” steps in claim 3 as part of an abstract idea).
Moreover, the Examiner’s analysis does not threaten to swallow all
consumer lead selecting and vendor matching technology because the
Examiner’s analysis pertains to the present claims only. See id.
Because the present claims recite commercial interactions, which fall
into the category of certain methods of organizing human activity (i.e., an
abstract idea), we proceed to prong 2.
2. Step 2A, Prong 2
The present claims do not integrate the abstract idea into a practical
application because they do not impose any meaningful limits on practicing
the abstract idea. In particular, we disagree with Appellant’s argument that,
similar to Enfish, claim 3 recites a specific implementation of a solution to a
problem with demand-driven assisted transaction technologies. Br. 9–12
(citing Spec. ¶¶ 44, 53, 55, 62).
Appellant does not identify persuasively how the Specification sets
forth an improvement in technology. The USPTO’s October 2019 Update:
Subject Matter Eligibility Guidance (“Update”) addresses how we consider
any evidence that is presented to us. The Update states:
[d]uring examination, the examiner should analyze the
“improvements” consideration by evaluating the specification
and the claims to ensure that a technical explanation of the
asserted improvement is present in the specification, and that the
claim reflects the asserted improvement. Generally, examiners
are not expected to make a qualitative judgment on the merits of
the asserted improvement. If the examiner concludes the
disclosed invention does not improve technology, the burden
shifts to applicant to provide persuasive arguments supported by
any necessary evidence to demonstrate that one of ordinary skill
in the art would understand that the disclosed invention improves
technology. Any such evidence submitted under 37 C.F.R.
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§ 1.132 must establish what the specification would convey to
one of ordinary skill in the art and cannot be used to supplement
the specification.[] For example, in response to a rejection under
35 U.S.C. § 101, an applicant could submit a declaration under
§ 1.132 providing testimony on how one of ordinary skill in the
art would interpret the disclosed invention as improving
technology and the underlying factual basis for that conclusion.
Update, 13 (emphasis added).
In this case, the Examiner concludes the present claims do not recite
an improvement to technology. Final Act. 4, 6, 9; Ans. 9–17.
Consequently, we focus on evidence Appellant cites as discussed in the
Update. Here, although Appellant identifies paragraphs 44, 53, 55, and 62
of the Specification, those paragraphs merely discuss demand-driven
assisted transaction methods (i.e., certain methods of organizing human
activity), which fall within a category of an abstract idea, not an
improvement to technology. Br. 9–12 (citing Spec. ¶¶ 44, 53, 55, 62).
Paragraphs 44, 53, 55, and 62 of the Specification are unlike the
technological improvements in Enfish.
In Enfish, the Federal Circuit considered how the present invention
was superior to the technology in the prior art. That is, the court considered
“the specification’s emphasis that ‘the present invention comprises a
flexible, self-referential table that stores data,’” “[t]he specification also
teaches that the self-referential table functions differently than conventional
database structures,” and “traditional databases, such as ‘those that follow
the relational model and those that follow the object oriented model[,]’ are
inferior to the claimed invention.” Enfish, LLC v. Microsoft Corp., 822 F.3d
at 1337 (internal citations omitted). Moreover, in Enfish, “‘[t]he structural
requirements of current databases require a programmer to predefine a
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structure and subsequent [data] entry must conform to that structure,’ [and]
the ‘database of the present invention does not require a programmer to
preconfigure a structure to which a user must adapt data entry.’” Id.
(internal citation omitted). Based on the foregoing, the court determined the
claims “achieve[d] other benefits over conventional databases, such as
increased flexibility, faster search times, and smaller memory requirements.”
Unlike the claims of Enfish, the present claims do not recite “a specific
improvement to the way computers operate,” instead focusing on an
improvement to the abstract idea itself. Id. at 1336.
We disagree with Appellant’s argument that, similar to the claims in
McRO, the present claims recite an improvement to demand-driven assisted
transaction methods. Br. 12–15. Similar to our reasoning in responding to
Appellant’s Enfish argument, Appellant does not identify persuasively how
paragraphs 44, 53, 55, and 62 of the Specification sets forth an improvement
in technology. Moreover, the subject claim considered by the McRO court
concerned a method for automatically animating lip synchronization and
facial expressions. McRO, 837 F.3d at 1303. The McRO court concluded
the subject claims did not recite an abstract idea because the computer
animation improved the prior art through the use of rules, rather than artists,
to set morph weights and transitions between phonemes. Id. at 1308. Thus,
the claimed invention in McRO allowed for computer performance of
animation steps that previously had to be performed by human animators.
Id. at 1313. The subject claims in McRO used “limited rules in a process
specifically designed to achieve an improved technological result” over
“existing, manual 3-D animation techniques.” Id. at 1316 (emphasis added).
Unlike the claims of McRO, the present claims do not recite improvement in
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computer technology, instead focusing on an improvement to the abstract
idea itself.
Instead, the present claims recite an abstract idea as discussed supra,
in § I.C.1. or at best, improving an abstract idea—not a technological
improvement. The Specification indicates the additional elements beyond
the above-identified abstract idea (i.e., “computer system” and “computer
hardware” in claim 3) recited in the present claims are merely generic
computer components used to implement the abstract idea. Spec. ¶¶ 184,
186, 187. To the extent that the limitation “programmatically organizing”
requires an additional element, the Specification indicates that this additional
element is a merely generic computer component used to implement the
abstract idea. Id. Further, the generic computer components individually
and in combination, do not integrate the judicial exception into a practical
application.
Additionally, “a claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016) (emphasis added). “[U]nder the Mayo/Alice framework, a claim
directed to a newly discovered law of nature (or natural phenomenon or
abstract idea) cannot rely on the novelty of that discovery for the inventive
concept necessary for patent eligibility . . . .” Genetic Techs. Ltd. v. Merial
L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016) (citations omitted).
We further disagree with Appellant’s argument that, similar to DDR,
the present claims recite the demand-driven assisted transaction methods that
address a business challenge particular to the Internet and that are
necessarily rooted in technology. Br. 15–16. The subject claim considered
by the DDR court pertained to clicking on an advertisement for a third-party
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product displayed on a host’s website, the visitor is no longer being
transported to the third party’s website. DDR Holdings, 773 F.3d at 1257.
In DDR, instead of losing visitors to the third-party’s website, the host
website can send its visitors to a web page on an outsource provider’s server
that (1) incorporates “look and feel” elements from the host website and
(2) provides visitors with the opportunity to purchase products from the
third-party merchant without actually entering that merchant’s website. Id.
at 1257–58. In contrast to the claims of DDR, the present claims do not
recite incorporating “look and feel elements” from a host website and
providing visitors with the opportunity to purchase products from a third-
party merchant without actually entering the merchant’s website.
Appellant’s argument that the present claims not preempt any abstract
idea does not persuade us that the claims are eligible. Br. 16. Although
preemption may denote patent ineligibility, its absence does not demonstrate
patent eligibility. See FairWarning, IP, LLC v. Iatric Sys., Inc., 839 F.3d
1089, 1098 (Fed. Cir. 2016). For claims covering a patent-ineligible
concept, preemption concerns “are fully addressed and made moot” by an
analysis under the Mayo/Alice framework. Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Appellant does not make any other arguments pertaining to step 2A,
prong 2. Because the present claims recite an abstract idea that is not
integrated into a practical application, we proceed to Step 2B.
3. Step 2B
We agree with the Examiner’s determination that the abstract idea is
implemented on additional elements that are well-understood, routine, and
conventional. Final Act. 4, 9 (citing Spec. ¶¶ 184, 187). The Specification
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supports the Examiner’s determination in this regard because it explains that
“computer system” and “computer hardware” (and to the extent that
“programmatically organizing” requires an additional element, this is a
generic component) are generic components. Spec. ¶¶ 184, 186, 187.
Appellant’s Specification indicates these elements were well-understood,
routine, and conventional components because it describes them at a high
level of generality and in a manner that indicates that they are sufficiently
well-known. Id. Moreover, the additional elements recited in the present
claims, analyzed individually or in combination, do not result in the claim,
as a whole, amounting to significantly more than the judicial exception.
We, therefore, disagree with Appellant’s argument that the present
claims recite individual elements or elements taken as a whole that provide
an improvement to demand-driven assisted transaction methods. Br. 17–20.
And we, therefore, disagree with Appellant’s argument that the present
claims add specific limitations other than what is well-understood, routine,
and conventional activities in the field. Id. at 20–21. Here, the present
claims recite an abstract idea using additional elements that are generic as
discussed supra, in §§ I.C.1. and I.C.2. or at best, improving an abstract
idea—not an inventive concept for the reasons discussed in § I.C.2.
Appellant does not argue claims 4–18 separately, but asserts the § 101
rejection of those claims should be withdrawn for at least the same reasons
as argued for independent claim 3. Br. 6–21. Accordingly, we sustain the
Examiner’s rejection of: (1) independent claim 3; and (2) dependent claims
4–18 under 35 U.S.C. § 101.

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II. Claims 3–18 Rejected Under 35 U.S.C. § 103
The Examiner finds Petersen teaches consumers selecting items that
they may consider buying for the right price and aggregating consumer
interest, which the Examiner maps to the limitation “programmatically
organizing the expressions of interest based on the demand attributes to
produce aggregated expressions of interest determining relationships
between the aggregated expressions of interest” recited in claim 3. Ans. 18–
19 (citing Petersen ¶¶ 19, 26). The Examiner finds de Rubertis teaches the
limitations “modifying an ontology based on the relationships such that the
ontology is adapted to identify an intent of a user and one or more related
intents that are related to the intent of the user based on an expression of
interest of the user” and “determining the intent of the user and at least one
related intent of the user using the expression of interest of the user and the
ontology” recited in claim 3. Ans. 19–20 (citing de Rubertis ¶¶ 27, 28, 35).
Appellant argues Petersen merely calculates the sum of all quantities
of an item received from consumers, but fails to teach “programmatically
organizing the expressions of interest based on the demand attributes to
produce aggregated expressions of interest determining relationships
between the aggregated expressions of interest” recited in claim 3. Br. 24.
Appellant argues the Examiner finds Petersen does not teach the limitations
“modifying an ontology based on the relationships such that the ontology is
adapted to identify an intent of a user and one or more related intents that are
related to the intent of the user based on an expression of interest of the
user” and “determining the intent of the user and at least one related intent of
the user using the expression of interest of the user and the ontology” recited
in claim 3 and de Rubertis fails to cure Petersen’s deficiencies. Id. at 23–24.
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We disagree with Appellant.
Petersen teaches consumers selecting items that they may consider
buying for the right price (i.e., expressions of interest) and aggregating the
consumer interest (e.g., item 107 shown in user interface 101 in Fig. 3A),
which teaches the limitation “programmatically organizing the expressions
of interest based on the demand attributes to produce aggregated expressions
of interest determining relationships between the aggregated expressions of
interest” recited in claim 3. Petersen ¶¶ 19, 26 (cited at Ans. 18–19).
We disagree with Appellant’s remaining argument that the Examiner
finds Petersen does not teach the limitations “modifying an ontology based
on the relationships such that the ontology is adapted to identify an intent of
a user and one or more related intents that are related to the intent of the user
based on an expression of interest of the user” and “determining the intent of
the user and at least one related intent of the user using the expression of
interest of the user and the ontology” recited in claim 3 and de Rubertis fails
to cure Petersen’s deficiencies. Br. 23–24.
In order to rebut a prima facie case of unpatentability, Appellant must
point out the supposed Examiner errors distinctly and specifically, and the
specific distinctions believed to render the claims patentable over the applied
references. See 37 C.F.R. § 41.37(c)(vii) (2017) (“A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”); see also In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”); cf. In re
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Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the
function of this court to examine the claims in greater detail than argued by
an appellant, looking for [patentable] distinctions over the prior art.”). In
this case, the Examiner finds de Rubertis teaches the limitations “modifying
an ontology based on the relationships such that the ontology is adapted to
identify an intent of a user and one or more related intents that are related to
the intent of the user based on an expression of interest of the user” and
“determining the intent of the user and at least one related intent of the user
using the expression of interest of the user and the ontology” recited in claim
3. Ans. 19–20 (citing de Rubertis ¶¶ 27, 28, 35). We find these unrebutted
findings reasonable. However, although Appellant broadly argues de
Rubertis fails to cure the deficiencies of Petersen, Appellant does not
address de Rubertis specifically. See Br. 23–24 (citing Peterson ¶¶ 16–17,
26, 30 and discussing these features in Peterson only). As a result,
Appellant does not rebut sufficiently the Examiner’s finding pertaining to de
Rubertis.
Appellant does not argue claims 4–18 separately with particularity,
but asserts the § 103 rejection of those claims should be withdrawn for at
least the same reasons as argued for independent claim 3. Br. 23–24.
Accordingly, we sustain the Examiner’s rejection of: (1) independent claim
3; and (2) dependent claims 4–18 under 35 U.S.C. § 103.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

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CONCLUSION

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

AFFIRMED

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
3–18 101 Eligibility 3–18
3–18 103 Petersen, de
Rubertis
3–18
Overall
Outcome
3–18