USA LIFE NUTRITION LLC

Patent Trials and Appeals Board

Dec 27, 2021

2021002236 (P.T.A.B. Dec. 27, 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.
14/939,483 11/12/2015 Patrick John Leddy Leddy.P005.U 8414
66842 7590 12/27/2021
Law Office of Ronald Shea
P.O. Box 2544
Napa, CA 94558
EXAMINER
PRESTON, JOHN O
ART UNIT PAPER NUMBER
3698
NOTIFICATION DATE DELIVERY MODE
12/27/2021 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):
ron@rshealaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PATRICK JOHN LEDDY
__________________

Appeal 2021-002236
Application 14/939,483
Technology Center 3600
____________________

Before MURRIEL E. CRAWFORD, JAMES P. CALVE, and
AMEE A. SHAH, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1, 6, 17, 23, 26, 31, 33, and 36–52, which
are all the pending claims.2 See Appeal Br. 6. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies USA Life Nutrition LLC and Ronald R. Shea as the real parties in
interest. Appeal Br. 4.
2 Claims 2–5, 7–16, 18–22, 24, 25, 27–30, 32, 34, and 35 are cancelled. See
Appeal Br. Claims App. 2–4.
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CLAIMED SUBJECT MATTER
The claims relate to the field of computer based learning, specifically,
a web- or internet-based incentivization of students and automated control of
digital flashcards and lessons to optimize learning in a digital environment.
Spec. ¶ 5. Funds are pledged to incentivize students to meet learning goals
so that they can receive the funds. Id. ¶¶ 16, 61, 63, 130, 134.
Claims 1, 47, and 51 are independent. Claim 1 recites:
1. A method of managing and distributing funds pledged to
students for the purpose of incentivizing improved study
habits, the method comprising the steps:
a) pledging, by an incentivizer, in an internet
environment, a pledge of an incentive for a benefit
of a student;
b) reviewing, by the student, a plurality of digital
flashcards digitally related to a respective plurality
of digital histograms, including a first digital
flashcard digitally related to a first digital
histogram, wherein the first digital flashcard is
reviewed across a plurality of review cycles,
including a first review cycle that comprises the
steps of
i) presenting, to the student, a question associated
with the first digital flashcard, and
ii) providing, by the student, a proposed answer to
the question;
c) recording, in a first digital histogram logically related
to the first digital flashcard, a plurality of
timestamps, each timestamp corresponding to a
time of a respective review cycle, including a first
timestamp stored in a first histogram entry
corresponding to the first review cycle, and further
recording, in said first digital histogram, a plurality
of accuracy values, each accuracy value in logical
relationship with a corresponding timestamp, and
representing an accuracy of a proposed answer that
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was advanced by the student in a respective review
cycle; including a first accuracy value stored in
logical relationship with the first timestamp;
d) analyzing, by a digital computing device, histogram
data within the first digital histogram, an analysis
of said histogram data including,
i) selecting a future time;
ii) calculating a length of time between a
timestamp stored in a digital histogram, and
the future time; and,
iii) generating a coefficient that is inversely
proportional to the length of time between
the timestamp and a future time;
e) confirming, by a process that includes an analysis of
said histogram data, that the student has satisfied a
first performance objective; and,
f) releasing, to an account of the student, funds related to
the first performance objective.
Appeal Br. Claims App. 1–2.
REJECTIONS
Claims 1, 6, 17, 23, 26, 31, 33, and 36–52 are rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
Claims 1, 6, 17, 23, 26, 31, 33, and 36–52 are rejected under
35 U.S.C. § 103 as unpatentable over Tan,3 Etuk,4 Tucci,5 and Draper.6

3 US 2014/0257954 A1, published September 11, 2014.
4 US 2004/0073488 A1, published April 15, 2004.
5 US 2009/0077479 A1, published March 19, 2009.
6 US 2007/0174633 A1, published July 26, 2007. Draper is cited in the
caption but no findings are provided in the rejection. See Final Act. 19–31.
Thus, we understand that Draper is not relied on in this rejection. See also
Appeal Br. 61.
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ANALYSIS
Eligibility of Claims 1, 6, 17, 23, 26, 31, 33, and 36–52
The Examiner determines that the claims recite pledging an incentive
for a benefit of a student, reviewing by the student a plurality of flashcards
to include presenting a question and providing an answer, recording in a first
histogram a plurality of timestamps for each review cycle with accuracy
values for answers, analyzing histogram data for a future time, confirming
that the student satisfied a first performance objective, and releasing funds
related to the first performance objective to the account of the student. Final
Act. 2, 15–16. The Examiner determines that the steps relate to managing
personal behavior, relationships, and interactions between people including
social activities, teaching, and following rules or instructions and thus fall
within the certain methods of organizing human activity grouping of abstract
ideas. Id. at 2, 16; Ans. 5.
The Examiner determines that the claims recite an additional element
of a generic computing device that links the use of the judicial exception to a
particular environment but does not integrate the judicial exception into a
practical application. Final Act. 16. According to the Examiner, carrying
out the process by a machine merely provides a computer environment in
which to carry out the process. Ans. 3, 6.
The Examiner determines that the additional elements do not amount
to significantly more than the judicial exception because they link the use of
the judicial exception to a particular technological environment or a field of
use. Final Act. 17–18; Ans. 3, 6. The Examiner determines that processing
information from real-world machine inputs to govern real-world outputs
does not make the claims patent eligible. Ans. 6.
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Principles of Law
Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of this title.
35 U.S.C. § 101. Laws of nature, natural phenomena, and abstract ideas are
not patentable. See Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the claim elements, individually and as an
ordered combination, to determine if any additional elements provide an
inventive concept sufficient to ensure that the claims in practice amount to
significantly more than a patent on the ineligible concept. Id. at 217–18.
The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). To determine if a claim is “directed to” an abstract
idea, we evaluate whether the claim recites: (1) any judicial exceptions,
including certain groupings of abstract ideas listed in the Revised Guidance
(i.e., mathematical concepts, certain methods of organizing human activities
such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a practical
application.7 Id. at 52–55.

7 “A claim that integrates a judicial exception into a practical application
will apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” Revised
Guidance, 84 Fed. Reg. at 54.
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If a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, we consider whether the claim
(3) provides an inventive concept such as by adding a limitation beyond a
judicial exception that is not “well-understood, routine, conventional” in the
field or (4) appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. Revised Guidance, 84 Fed. Reg. at 56.
Step 1
We agree with the Examiner that the claims recite methods, which are
a statutory category, namely, a process. See 35 U.S.C. § 101; Final Act. 14.
Alice Step One
Revised Guidance Step 2A, Prong One:
Do the Claims Recite a Judicial Exception?
We agree with the Examiner that the claims recite steps of managing
personal behavior, relationships, and interactions including social activities,
teaching, and following rules or instructions that fall within the grouping of
certain methods of organizing human activity. See Revised Guidance, 84
Fed. Reg. at 52; Final Act. 2, 15–16. Some steps also are performable as
mental processes.
The claims focus on computer based learning and distributing funds to
incentivize students to achieve learning goals. Spec. ¶¶ 2, 3, 61, 63, 130.
The application title reflects this focus on a METHOD AND APPARATUS
FOR INCENTIVIZATION OF LEARNING. The claims recite this focus as
“managing and distributing funds pledged to students for the purpose of
incentivizing improved study habits” (claim 1), “managing and distributing
funds pledged for a benefit of a student” (claim 47), and improving study
habits by students” (claim 51). Appeal Br. Claims App. 1, 6, 8.
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The claims do so through steps that organize and manage the activities
of students who learn subjects by reviewing and answering questions in
flashcards. Upon determining that a student satisfied a learning objective to
be entitled to receive an incentive as a reward for successful completion of
instruction, funds are released to a student account. The claims organize this
activity through steps that recite basic data collection and analysis that can
be performed as mental processes in the human mind or with pen and paper.
Claims 1, 47, and 51 recite the steps as reviewing digital flashcards
that present questions to answer and recording the time and accuracy of a
student’s answers each time a question is presented and answered. A record
of the student’s learning is organized in a histogram. The histogram collects
and organizes the learning data with a timestamp and accuracy value each
time a question is answered. The data is analyzed to determine if a student
satisfied a first performance objective. In claim 1, the analysis includes
selecting a future time, calculating a length between a timestamp and the
future time, and generating a coefficient that is inversely proportional to the
length of time. Successful completion of a performance objective results in
release of funds that were pledged to incentivize the student’s learning to a
student account. See Spec. ¶¶ 61–71, 105, 213, 383–401, 698.
These steps collect and analyze learning data and “display” results by
releasing funds to accounts of students who successfully complete a learning
performance objective. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1355 (Fed. Cir. 2016) (“[S]electing information, by content or source,
for collection, analysis, and display does nothing significant to differentiate
a process from ordinary mental processes, whose implicit exclusion from
§ 101 undergirds the information-based category of abstract ideas.”).
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Presenting questions to students and receiving answers provided by
students presents and collects data similar to mental processes. Storing this
data in histograms with timestamps and accuracy values for later analysis
and mathematical calculations organizes this human activity at a high level
of generality as an abstract idea. See In re TLI Commc’ns LLC Patent Litig.,
823 F.3d 607, 613 (Fed. Cir. 2016) (classifying and storing digital images in
an organized manner by attaching dates and times to the images is a method
of organizing human activity); Content Extraction & Transmission LLC v.
Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (steps
of collecting data, recognizing data in the collection, and storing recognized
data recite steps humans always have performed to organize such data and
activity); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359,
1361, 1363–64 (Fed. Cir. 2015) (pricing products by sending test prices to
customers, receiving offers from customers, gathering statistics about how
customers responded to each price, and determining an estimated outcome at
each price recited price optimization as a fundamental economic concept).
Organizing this activity in a histogram does not make the claims any
less abstract where a histogram is a table used to record and organize data by
timestamps, accuracy values, and metadata. See Spec. ¶¶ 105, 213, 341–43,
383–401, Tables 1, 2; BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281,
1286–87 (Fed. Cir. 2018) (considering historical usage data while inputting
data and parameters into a database slightly more detailed than a generic
database did not make the claims non-abstract); Intellectual Ventures I LLC
v. Erie Indemnity Co., 850 F.3d 1315, 1327 (Fed. Cir. 2017) (organizing
records in a database with an index of tags and metafiles is a longstanding
practice that existed well before the advent of computers and the Internet).
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Here, the claimed methods collect, record, and organize learning data
by patterns of how students answer flashcard questions with timestamps and
accuracy values that create a history of student answers to questions. This
method can be performed as a mental process or with pen and paper to store
student learning patterns that provide a full picture of a student’s progress.
See Spec. ¶¶ 105, 213, 341–43, 383–401, Tables 1, 2. Such steps recite the
abstract idea identified above even when performed with analytic steps that
determine accuracy values and calculate lengths of time and coefficients as
claimed. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed.
Cir. 2018) (“[S]electing certain information, analyzing it using mathematical
techniques, and reporting or displaying the results of the analysis. That is all
abstract.”); Intellectual Ventures I LLC v. Cap. One Fin. Corp., 850 F.3d
1332, 1341 (Fed. Cir. 2017) (“Although these data structures [PRTs and
MRTs] add a degree of particularity to the claims, the underlying concept
. . . merely encompasses the abstract idea of organizing, displaying, and
manipulating data of particular documents.”); FairWarning IP, LLC v. Iatric
Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (analyzing log files and
audit log data of human activity to get a full picture of user activity recites
an abstract ideas even though limited to information of a particular content);
Elec. Power, 830 F.3d at 1353–54 (“Information as such is an intangible. . . .
[W]e have treated analyzing information by steps people go through in their
minds, or by mathematical algorithms, without more, as essentially mental
processes within the abstract-idea category.”); In re Gale, 856 F. App’x 887,
889 (Fed. Cir. 2021) (collecting and analyzing information and metadata to
calculate a usage pattern and determine its compliance with a predetermined
usage pattern, and reporting the results recited an abstract idea).
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Here, the methods collect and record learning data in histograms and
analyze the collected data to determine learning patterns that indicate, or not,
student achievement of learning performance objectives. Claims to similar
computer-based learning methods were held to recite abstract ideas because
they gathered and analyzed learning data and displayed results of a student’s
learning process. See Ubisoft Entm’t, S.A. v. Yousician Oy, 814 F. App’x
588, 591 (Fed. Cir. 2020) (“[T]he claims recite nothing more than a process
of gathering, analyzing, and displaying certain results.”). Ubisoft’s program
instructions presented fingering notations for a song, received from a guitar
input device audio signals played by a user, assessed user performance of the
song played by the user, determined a portion that should be improved, and
selectively changed a difficulty level of fingering notations for the song to
include generating different games for the song to improve the user’s skills.
Id. at 589–90. Here, claim 1 presents flashcard questions to users, receives
user answers, records and analyzes answers to assess the user’s performance
of a learning objective, and releases funds to a user’s account if the analysis
indicates satisfaction of a performance objective. In Ubisoft, the mini-game
generation used to improve student performance was “no different from the
ordinary mental processes of a guitar instructor teaching a student how to
play the guitar.” Id. at 592 (citing Elec. Power, 830 F.3d at 1355). Here, the
claims recite methods that instructors similarly would perform by presenting
questions to students, recording student answers by time and accuracy (i.e., a
correct or an incorrect answer), and measuring a student’s performance in
achieving a learning objective. See Spec. ¶¶ 14–17, 126, 145, 804–06.
Appellant also asserts that managing and distributing funds pledged to
incentivize students to study is not an abstract idea. Appeal Br. 44–49.
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Managing and distributing funds to benefit a student who achieves a
learning performance objective to incentivize the student to study, without
more in terms of technological improvements to computers or technology
being used to achieve this result, recites an abstract idea as identified above.
Managing and authorizing financial transactions is a fundamental
economic practice, which is a certain method of organizing human activity.
See Revised Guidance, 84 Fed. Reg. at 52; Inventor Holdings, LLC v. Bed
Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (local processing
of payments for goods purchased from a remote seller is a fundamental
business practice and abstract idea when implemented on generic computer
technology); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir.
2014) (contractual relationships and a transaction performance guaranty are
long-standing commercial transactions and an abstract idea); see also
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1367 (Fed. Cir. 2015) (tracking financial transactions to determine if they
exceed a pre-set spending limit is a method of organizing human activity).
Here, the methods track a student’s performance and release funds when a
student’s performance meets or exceeds a pre-set performance objective.
Essentially, the methods provide a “transaction performance guaranty” to
establish that a student has, in fact, satisfied a performance objective.
Such management and distribution of funds also provides a payment
escrow, which is a fundamental economic practice. See Boom! Payments,
Inc. v. Stripe, Inc., 839 F. App’x 528, 532 (Fed. Cir. 2021) (“We agree with
Stripe that the claims are directed to the abstract idea of payment escrow . . .
[by] verifying consummation of a transaction before releasing payment by a
third party, which is the definition of escrow.”).
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Nor does payment of funds held in escrow to incentivize a student to
study better remove the claims from the abstract realm. See cxLoyalty, Inc.
v. Maritz Holdings Inc., 986 F.3d 1367, 1376–77 (Fed. Cir. 2021) (using
rewards program points to complete a commercial transaction relates to a
longstanding commercial practice and abstract idea). Points were awarded
to customers through a loyalty program to reward customers for certain
activities and to “encourage the customer to continue a desired behavior.”
Id. at 1370. Here, the methods similarly reward students who engage in a
desired behavior of answering flashcard questions correctly by transferring
funds to a student’s account to encourage students to continue to improve
study habits and learning. See Spec. ¶¶ 16, 63, 145, 375.
Accordingly, we determine that the claims recite the abstract idea
identified above.
Alice Step One
Revised Guidance Step 2A, Prong Two:
Is There an Integration into a Practical Application?
We next consider whether the claims recite additional elements that
integrate the abstract idea into a practical application. Revised Guidance,
84 Fed. Reg. at 54. We agree with the Examiner that the implementation of
the abstract ideas in a generic computer environment only serves to link the
use of the judicial exception to a particular environment and providing real-
world inputs and real-world outputs tied to a computer system and algorithm
does not integrate the abstract idea into a practical application. See Final
Act. 16–17; Ans. 5–6. Such a generic application of the abstract idea does
not improve computer technology, use a particular machine that is integral to
the claim, or transform or reduce a particular article to a different state or
thing. See Revised Guidance, 84 Fed. Reg. at 55.
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Appellant argues that claims 1, 47, and 51 recite methods that collect
real-world inputs that are processed to govern real-world outputs. Appeal
Br. 50–52. Appellant also contends that the transfer of funds is not a mental
exercise, law of nature, or abstract, but “constitutes a real-world output of a
machine function, and is therefore patent-eligible under § 101.” Id. at 52.
Appellant asserts that the claims are similar to claims that were held to be
patent-eligible in Diamond v. Diehr, 450 U.S. 175, 187 (1981) because it
used a thermocouple to measure temperature as a machine input and such
temperature data provided a more accurate use of Arrhenius’s equation to
adjust temperature in real time as a patent-eligible application. Id. at 53–56.
The “digital computing device” recited in claims 1 and 47 is claimed
as a generic computing element that performs generic functions of analyzing
histogram data by steps that recite the abstract idea identified above. It is
used as a tool to perform the abstract idea without improving computers.
Even if the Specification describes improvements for this process, no details
are claimed. See Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., 955
F.3d 1317, 1325 (Fed. Cir. 2020) (“[T]he specification may be ‘helpful in
illuminating what a claim is directed to . . . [but] the specification must
always yield to the claim language’ when identifying the ‘true focus of a
claim.’”); Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728
F.3d 1336, 1345 (Fed. Cir. 2013) (“[T]he complexity of the implementing
software or the level of detail in the specification does not transform a claim
reciting only an abstract concept into a patent-eligible system or method.”);
see also Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.),
687 F.3d 1266, 1279 (Fed. Cir. 2012) (“Using a computer to accelerate an
ineligible mental process does not make that process patent-eligible.”).
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“[T]he claims here do not ‘ha[ve] the specificity required to transform
a claim from one claiming only a result to one claiming a way of achieving
it.’” Ericsson, 955 F.3d at 1328 (“Merely claiming ‘those functions in
general terms, without limiting them to technical means for performing the
functions that are arguably an advance,’ does not make a claim eligible at
step one.”) (citations omitted)); see also SAP, 898 F.3d at 1167–68 (to avoid
ineligibility, a claim must have the specificity that transforms it from one
claiming only a result to one claiming a way of achieving a result); Interval
Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344 (Fed. Cir. 2018) (software
can make non-abstract improvements to computer technology but software-
based inventions that did not pass § 101 muster failed because “they did not
recite any assertedly inventive technology for improving computers as tools
and/or because the elements of the asserted invention were so result-based
that they amounted to patenting the patent-ineligible concept itself.”); Elec.
Power, 830 F.3d at 1356 (the essentially result-focused, functional character
of the claim language at issue is a frequent feature of claims that are held to
be ineligible under § 101).
Here, the description of the digital computing device confirms it is a
generic device used to perform generic functions of receiving, presenting,
recording, and analyzing data. “Digital computers are well known in the art,
and typically comprise one or more digital input / output (“I/O”) ports and/or
receivers for receiving input signals from a keyboard.” Spec. ¶ 7. “Most of
the information processing described herein is therefore understood in terms
of digital functions performed by a digital computer.” Id., see also id. ¶ 8.
“The computer 137 may be a ‘smart phone,’ laptop, tablet, or any other
computing device, and preferably, a mobile computing device.” Id. ¶ 63.
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The use of such generic computers does not transform an abstract idea
into a patent eligible application. 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. Stating an abstract idea ‘while adding
the words “apply it”’ is not enough for patent eligibility.”); Bozeman Fin.
LLC v. Fed. Reserve Bank of Atl., 955 F.3d 971, 979–80 (Fed. Cir. 2020)
(the use of well-known, off-the-shelf computer components to collect and
analyze financial transaction information to detect errors or fraud is an
abstract idea not a patent-eligible improvement to computers or technology).
The functions cited by Appellant as patent-eligible improvements are
features of the abstract idea. Therefore, they are not additional elements to
the abstract idea. See Revised Guidance, 84 Fed. Reg. at 55 n.24 (additional
elements refer to claim features, limitations, and/or steps that are recited in a
claim beyond the identified judicial exception); Alice, 573 U.S. at 221 (a
claim that recites an abstract idea must include additional features to ensure
that it does not monopolize the abstract idea).
Even if we consider these features as additional elements, they do not
recite patent eligible subject matter, and Diehr illustrates the distinction. Cf.
Appeal Br. 53–58. The claims in Diehr involved a physical transformation
of matter to a different state or thing that is lacking here.
Analyzing respondents’ claims according to the above
statements from our cases, we think that a physical and
chemical process for molding precision synthetic rubber
products falls within the § 101 categories of possibly
patentable subject matter. That respondents’ claims involve
the transformation of an article, in this case raw, uncured
synthetic rubber, into a different state or thing cannot be
disputed.
Diehr, 450 U.S. at 184.
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The Supreme Court in Diehr further explained its holding as follows:
The respondents’ claims describe in detail a step-by-step
method for accomplishing such, beginning with the loading of a
mold with raw, uncured rubber and ending with the eventual
opening of the press at the conclusion of the cure. Industrial
processes such as this are the types which have historically
been eligible to receive the protection of our patent laws.
Id.
Here, the claims do not recite a physical transformation of an article
or matter to another state or thing to support a patent-eligible application.
See Revised Guidance, 84 Fed. Reg. at 55. The methods process data. See
Elec. Power, 830 F.3d at 1353 (“Information as such is an intangible.”);
Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351
(Fed. Cir. 2014) (“Without additional limitations, a process that employs
mathematical algorithms to manipulate existing information to generate
additional information is not patent eligible. ‘If a claim is directed
essentially to a method of calculating, using a mathematical formula, even if
the solution is for a specific purpose, the claimed method is nonstatutory.’”)
(quoting Parker v. Flook, 437 U.S. 584, 595 (1978)).
The claims here are similar to those found patent-ineligible in Parker.
In Parker, the method computed an alarm limit, which “is simply a number”
so that “the application sought to protect a formula for computing this
number” without “any disclosure relating to the chemical processes at work,
the monitoring of process variables, or the means of setting off an alarm or
adjusting an alarm system [beyond] a formula for computing an updated
alarm limit.” Diehr, 450 U.S. at 186–87.
Here, the claims seek to patent analytical steps based on mathematical
formulas that are not even claimed to generate a coefficient or a probability.
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Calculating a length of time between a timestamp stored in a digital
histogram and a future time is a mathematical operation. See Spec. ¶ 509.
Generating coefficients and determining a probability involve mathematical
formulas, which are not recited. See id. ¶¶ 348, 390–401, 416–433.
Claims to similar methods that collect real-world input, analyze that
collected data, and transmit real-world output recite abstract ideas absent an
improvement to computers or technology to make them patent eligible. See
Univ. of Fla. Research Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363, 1367
(Fed. Cir. 2019) (“[T]he ’251 patent proposes replacing the ‘pen and paper
methodologies’ with ‘data synthesis technology’ in the form of ‘device
drivers written for the various bedside machines’ that allow the bedside
device to present data from various bedside machines ‘in a configurable
fashion within a single interface.’ . . . This is the quintessential ‘do it on a
computer’ patent: it acknowledges that data from bedside machines was
previously collected, analyzed, manipulated, and displayed manually, and it
simply proposes doing so with a computer. We have held such claims are
directed to abstract ideas.”); Elec. Power, 830 F.3d at 1354–55 (“Most
obviously, limiting the claims to the particular technological environment of
power-grid monitoring is, without more, insufficient to transform them into
patent-eligible applications of the abstract idea at their core. . . . More
particularly, a large portion of the lengthy claims is devoted to enumerating
types of information and information sources available within the power-
grid environment.”). The method in Electric Power analyzed time stamped
data streams from electric power grids based on limits, sensitivities, and
dynamic stability metrics and output the results with diagnoses. See Elec.
Power, 830 F.3d at 1351–52.
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The method in Electric Power also displayed results of the analysis
and diagnoses based on metrics from different categories of data and derived
metrics in visuals, tables, charts, and combinations where the data comprised
monitoring, tracking, historical, prediction, and summary data. Elec. Power,
830 F.3d at 1352. Furthermore, the method derived a composite indicator of
reliability that indicated power grid vulnerability and was derived from a
combination of real time measurements and computations from data streams
and the dynamic stability metrics. Id. Here, the claimed methods similarly
determine student learning metrics from time stamped answers to questions
and also determine coefficients and probabilities, all recited at a high level of
generality as abstract ideas rather than as improvements to computers or
technology. They do not require an inventive set of components or methods
such as measurement devices or techniques that would generate new data.
See id. at 1355; see also SAP, 898 F.3d at 1163 (“The claims here are
ineligible because their innovation is an innovation in ineligible subject
matter. Their subject is nothing but a series of mathematical calculations
based on selected information and the presentation of the results of those
calculations (in the plot of a probability distribution function).”).
Appellant also argues that a novel collection of real-world inputs are
processed by a novel computer algorithm to control real-world outputs in a
novel manner that integrates the process as a whole. Appeal Br. 58–59. We
are not persuaded. See Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240
(Fed. Cir. 2016) (“An abstract idea can generally be described at different
levels of abstraction.”); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an
abstract idea.”).
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Even assuming that the claimed techniques are “[g]roundbreaking,
innovative, or even brilliant,” “that is not enough for eligibility.” SAP, 898
F.3d at 1163 (“Nor is it enough for subject-matter eligibility that claimed
techniques be novel and nonobvious in light of prior art, passing muster
under 35 U.S.C. §§ 102 and 103.”) (citation omitted). Here, as in SAP, any
advance “lies entirely in the realm of abstract ideas, with no plausibly
alleged innovation in the non-abstract application realm.” See id.
Thus, we determine that the claims do not recite additional elements
that are sufficient to integrate the abstract idea into a practical application.
Alice, Step Two and Revised Guidance Step 2B:
Do the Claims Include an Inventive Concept?
We next consider whether the claims recite any additional elements,
individually or as an ordered combination, to provide an inventive concept.
Alice, 573 U.S. at 217–18. This step is satisfied when limitations involve
more than well-understood, routine, and conventional activities known in the
industry. See Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018).
Individually, a “digital computing device” is a conventional computer
that performs conventional functions of receiving and analyzing data as part
of the abstract idea. As an ordered combination, it recites no more than it
does when it is considered individually. See BSG, 899 F.3d at 1290–91 (“If
a claim’s only ‘inventive concept’ is the application of an abstract idea using
conventional and well-understood techniques, the claim has not been
transformed into a patent-eligible application of an abstract idea.”); see also
Bozeman, 955 F.3d at 980–81 (using well-known computer components to
collect and analyze data, present data, and send notifications recites a logical
sequence without an inventive concept).
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Essentially, the claims recite methods of electronic recordkeeping that
obtain and record answers to questions and adjust student account balances
by releasing funds when a student satisfies a performance objective. Such
activity is conventional. See Alice, 573 U.S. at 225 (steps of obtaining data,
adjusting account balances, and issuing automated instructions amounts to
electronic recordkeeping by computer functions that are well-understood,
routine, and conventional activities that do not improve the functioning of
the computer); OIP, 788 F.3d at 1363–64 (presenting offers to customers
and gathering statistics about how customers responded to offers are well-
understood, routine, and conventional data-gathering activities); see also
Inventor Holdings, 876 F.3d at 1378 (sequence of data retrieval, analysis,
modification, generation, display and transmission amounts to instructions to
apply the abstract idea using generic computer technology with no inventive
concept); Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d
1329, 1339 (Fed. Cir. 2017) (“Two-Way Media asserts that the claim solves
various technical problems, including excessive loads on a source server,
network congestion, unwelcome variations in delivery times, scalability of
networks, and lack of precise recordkeeping. But claim 1 here only uses
generic functional language to achieve these purported solutions.”); Smart
Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1374 (Fed.
Cir. 2017) (a generic computer implementation of an abstract idea is not
inventive); Elec. Power, 830 F.3d at 1355 (using off-the-shelf conventional
computer, network, and display technology to gather, analyze, and display
data is not inventive); RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322,
1327 (Fed. Cir. 2017) (“Adding one abstract idea (math) to another abstract
idea (encoding and decoding) does not render the claim non-abstract.”).
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Releasing funds to a student account after confirming satisfaction of a
performance objective based on the claimed data collection and analysis is
extra-solution activity. See Elec. Power, 830 F.3d at 1354 (“[P]resenting the
results of abstract processes of collecting and analyzing information, without
more (such as identifying a particular tool for presentation) is abstract as an
ancillary part of such collection and analysis.”).
The Specification’s description of the mathematical concepts used to
analyze student answers confirms that they are well-understood, routine, and
conventional mathematical concepts. See Spec. ¶¶ 372–401; SAP, 898 F.3d
at 1170 (the asserted advance in mathematical techniques in finance is in the
realm of abstract ideas); OIP, 788 F.3d at 1363–64 (the offer-based price
optimization method used well-understood, routine, and conventional data-
gathering activities that presented offers to customers and gathered statistics
generating during testing of how customers responded to offers to determine
an estimated outcome at each of plural prices did not provide an inventive
concept); Ubisoft, 814 F. App’x at 592 (“[T]he patent itself makes clear that
the claimed invention involves merely the application of conventional
computer technology to common guitar instruction techniques. This cannot
transform the nature of the asserted claims into patent-eligible applications
of the abstract idea.”); see also Spec. ¶ 14 (flashcards are a primary tool for
learning through repetition and memorizing facts including digitally).
Accordingly, we sustain the rejection of claims 1, 6, 17, 23, 26, 31,
33, and 36–52 as directed to an abstract idea without significantly more. See
Appeal Br. 60 (arguing the eligibility of the dependent claims based on their
dependency from independent claims).

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Claims 1, 6, 17, 23, 26, 31, 33, and 36–52
Rejected Over Tan, Etuk, Tucci, and Draper
The Examiner finds that Tan manages and distributes funds pledged
by an incentivizer to students to incentivize improved study habits. Final
Act. 19. The Examiner finds that Etuk records in a first digital histogram
logically related to a first digital flashcard a plurality of timestamps that
correspond to a time of a review cycle and accuracy values that correspond
to a timestamp and represent an accuracy of a proposed answer advanced by
a student in a review cycle, and Etuk analyzes histogram data by selecting a
future time, calculating a length of time between a timestamp and the future
time, and generating a coefficient inversely proportional to the length of
time between the timestamp and future time. Id. at 19–20. The Examiner
cites Tucci to teach students reviewing plural digital flashcards related to a
respective digital histogram. Id. at 20.
Appellant argues that none of the references teaches or suggests
“recording, in a first digital histogram logically related to the first digital
flashcard, a plurality of timestamps” and “storing a plurality of accuracy
values” stored in a logical relationship with the plurality of timestamps of
review cycles as claimed. Appeal Br. 65–66.
The Examiner responds that Etuk measures a student’s performance
with statistics, which suggests the use of histograms, and Etuk measures and
stores the time it takes a student to complete an activity such as a flashcard,
which suggests the use of timestamps in relation to an attempted answer to a
flashcard in digital relation to a recording of the accuracy of the attempted
answer. Ans. 7. The Examiner explains that Etuk and Tan are repeatable,
which suggests repeatedly posing questions to a student. Id. at 8.
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Each of independent claims 1, 47, and 51 recites a method in which a
student reviews a plurality of digital flashcards, each of which flashcards is
related digitally to a respective digital histogram, and a timestamp for each
review cycle of a student is recorded with an accuracy value in logical
relation to each timestamp to represent an accuracy of a student’s proposed
answer to a particular question. See Appeal Br. Claims App. 1–2, 6–9.
The Examiner relies on Etuk to teach these features in claims 1 and 51
and Tucci to teach such features in claim 47. See Final Act. 19 (citing Etuk
¶¶ 33–35), 27–28 (citing Tucci ¶¶ 8–10), 30 (citing Etuk ¶¶ 29–35). The
Examiner also reasons that Etuk’s measurement of student performance with
statistics suggests the use of histograms, and Etuk’s measurement of the time
it takes a student to complete a flashcard suggests the use of timestamps in
relation to an attempted answer and in digital relation to the accuracy of the
attempted answer. Ans. 7.
The claimed histogram is described as a table that records attempts by
a student to answer a question on a flashcard by recording a date/time stamp
of each attempt to answer a particular question with an accuracy value rating
the accuracy of an answer each time a student answers a particular question.
See Spec. ¶¶ 105, 383–401, Tables 1, 2.
Etuk rewards students with points for answering questions correctly a
certain percentage of time such as 80%. Etuk ¶ 29. Etuk tracks points that
students accumulate for answering questions correctly so that students can
redeem these points for purchases, and monetary awards can be credited to
student accounts based on their achievements. Id. ¶¶ 29–35. First party 10
“preferably keeps a record of the total points that user 30 accumulates.” Id.
¶ 29. Other parties update user accounts to reflect points earned. Id. ¶ 35.
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Even if such accounts and recordings teach or suggest the use of a
histogram to record student performance, we find no teaching to record the
student’s answers to each question with a digital timestamp for the time of
the student’s review and an accuracy value representing an accuracy of a
proposed answer linked to the timestamp in a histogram. See Appeal Br.
62–63. The Examiner has not explained sufficiently how measuring a
student’s overall performance with statistics teaches or suggests recording
answers to individual questions with related timestamps and accuracy values
for each answer as claimed.
Tucci teaches a method of displaying electronic flashcards on a user
interface that can be accessed by a user. Tucci ¶¶ 8–10. However, we find
no teaching in Tucci to record answers to questions of digital flashcards in a
histogram with timestamps and accuracy values as claimed. See Appeal Br.
64–65. Tucci’s teaching to sort electronic flashcards into stacks based on
user-confidence levels with the subject matter of the flashcards does not
teach accuracy values based on actual answers of a user to a question on a
particular flashcard as claimed. See Tucci ¶ 8; Appeal Br. 69–70.
Acordingly, we do not sustain the rejection of claims 1, 47, and 51 or
their dependent claims 6, 17, 23, 26, 31, 33, and 36–46, 48–50, and 52.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1, 6, 17, 23,
26, 31, 33,
36–52
101 Eligibility 1, 6, 17,
23, 26, 31,
33, 36–52

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Claim(s)
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1, 6, 17, 23,
26, 31, 33,
36–52
103 Tan, Etuk, Tucci,
Draper
1, 6, 17, 23,
26, 31, 33,
36–52
Overall
Outcome
1, 6, 17,
23, 26, 31,
33, 36–52

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