1B3Y, LLC

Patent Trials and Appeals Board

May 12, 2020

13781744 - (D) (P.T.A.B. May. 12, 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.
13/781,744 02/28/2013 Keith Rinzler 4I05-1-010 5901
35725 7590 05/12/2020
MEHRMAN LAW OFFICE, P.C.
P.O. Box 420797
ATLANTA, GA 30342
EXAMINER
LOFTIS, JOHNNA RONEE
ART UNIT PAPER NUMBER
3683
MAIL DATE DELIVERY MODE
05/12/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEITH RINZLER
____________

Appeal 2019-000503
Application 13/781,744
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–20. We have jurisdiction under 35 U.S.C.
§ 6(b). An oral hearing was held on April 27, 2020.2

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief
(“Appeal Br.,” filed June 5, 2018) and Reply Brief (“Reply Br.,” filed
October 16, 2018), and the Examiner’s Answer (“Ans.,” mailed September
5, 2018) and Final Office Action (“Final Act.,” mailed November 14, 2017).
Appellant identifies the real party in interest as “1Q, LLC” (Appeal Br. 1).
2 Appellant submitted an Exhibit after Notice of Appeal, on April 8, 2020,
for the hearing.
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We AFFIRM.
CLAIMED INVENTION
Appellant’s claims relate “to electronic data collection systems and,
more particularly, to a dynamic permission-based market polling and
research system incorporating per-response member survey compensation,
social media interfacing, and dynamic polling to produce desired
demographic results with the minimum number of member requests.”
Spec. 1, ll. 9–13.
Claims 1, 13, and 18 are the independent claims on appeal. Claim 1,
reproduced below, with bracketed notations and some paragraphing added,
is illustrative of the claimed subject matter:
1. A dynamic permission-based market polling and research
system, comprising:
[a] a plurality of computer-implemented customer systems
associated with a plurality of customers;
[b] a plurality of computer-implemented member systems
associated with a plurality of members;
[c] a computer-implemented direct response controller
operative to electronically interact with the plurality of
computer-implemented customer systems and the plurality of
computer-implemented member systems;
[d] the direct response controller further operative to
maintain membership relationships with the members providing
the direct response controller with permission-based access to
member demographic data for the purpose of directing electronic
surveys to the members and further providing electronic payment
to the members;
[e] the direct response controller further operative to
maintain paying customer relationships with the members
providing for the delivery of surveys to the members and
providing for receipt of payment from the customers based on
survey responses received from the members;
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[f] the direct response controller further operative to
receive authorization from the member systems to receive
location tracking data associated with the member systems;
[g] the direct response controller is further operative to
automatically receive the location tracking data associated with
the member systems;
[h] the direct response controller further operative to
receive a survey request from a customer system identifying a
target demographic objective for the survey, automatically
identify an initial portion of a target audience of the member
systems corresponding to the target demographic objective based
in part on the member location tracking data;
[i] automatically direct the survey request to the initial
portion of a target audience of the member systems in a priority
order, and receive responses to the survey from the member
systems comprising partial survey results;
[j] wherein the direct response controller is further
operative to apply a dynamic polling algorithm to automatically
adjust the number and demographic distribution of the member
systems participating in the survey by determining a residual
demographic objective based on the target demographic
objective, the location tracking data, and the partial survey
results, adjust the priority order of the target audience of member
systems to meet the residual demographic objective through
subsequent survey requests, and direct the survey request to a
residual portion of the target audience of member systems in the
adjusted priority order, based at least in part on the location
tracking data.

REJECTION
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.

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ANALYSIS
Patent-Ineligible Subject Matter
Appellant argues independent claims 1, 13, and 18 as a group. Appeal
Br. 7; Reply Br. 2–14. We select independent claim 1 as representative.
The remaining independent claims stand or fall with independent claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).
A. Section 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-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);
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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 waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula 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).
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“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.
B. USPTO Section 101 Guidance
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)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
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

3 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.p
df).
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(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
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.
C. Step One and 2A-Prong 1 of the Mayo/Alice Framework
With regard to the first step of the Mayo/Alice framework and Step 2A,
Prong One of the 2019 Revised Guidelines, 84 Fed. Reg. at 54, the Examiner
determines that exemplary independent claim 1 broadly recites the
“determination of a residual demographic objective based on a comparison
with a target demographic objective and survey results, resulting in how the
priority order of the target audience is adjusted and how the survey is

4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(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. 54–55.
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directed” (Final Act. 6), and as such, is “directed towards methods of
organizing human activities, which is an example identified by the courts as
an abstract idea.” Id. The Examiner considers this to be an abstract idea,
inasmuch as it is similar to abstract ideas identified by the Federal Circuit,
including the abstract idea of “collecting information, analyzing it, and
displaying certain results of the collection and analysis” in Electric Power
Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016). Final Act. 6.
The Examiner further notes that the
additional steps of providing permission-based access to
demographic data and maintaining customer relationships is
similar to the concept in Cyberfone Sys. v. CNN Interactive Grp.,
558 Fed. Appx. 988 (Fed. Cir. 2014) wherein using categories to
organize, store and transmit information was found to be an
abstract idea by the Courts.
Final Act. 6.
In response, Appellant argues that “[t]here is no prior decision or
Office guidance holding that electronic polling systems or similar systems
are considered to be abstract ideas under Section 101.” Appeal Br. 11.
More particularly, Appellant argues that
the Final Rejection incorrectly over-generalizes the claimed
invention in the Step 2A analysis with a conclusory
determination that the entire claim is “abstract” despite the
presence of very specific and concrete claim language describing
“the improvement” — a dynamic polling algorithm using
location tracking data to produce electronic poll results that meet
a specified target demographic objective.
Appeal Br. 18; see also Reply Br. 2. According to Appellant, “[a]ttempting
to shunt the claimed invention into allegedly ineligible categories of ‘non-
technology’ such as business improvements, algorithms, and/or methods of
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organizing human activities as a way of finding the invention to be an
‘abstract idea’ is legal error.” Appeal Br. 14.
We are not persuaded that the Examiner erred in determining that
independent claim 1 is directed to an abstract idea. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the specification, based on whether ‘their character as
a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp.
v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks
whether the focus of the claims is on a specific improvement in relevant
technology or on a process that itself qualifies as an “abstract idea” for
which computers are invoked merely as a tool. See id. at 1335–36. Here, it
is clear from the Specification (including the claim language) that the claims
focus on an abstract idea, and not on any improvement to technology and/or
a technical field.
In making this determination, we note that the Specification is entitled
“DYNAMIC MARKET POLLING AND RESEARCH SYSTEM,” and
states that the disclosure
relates to electronic data collection systems and, more
particularly, to a dynamic permission-based market polling and
research system incorporating per-response member survey
compensation, social media interfacing, and dynamic polling to
produce desired demographic results with the minimum number
of member requests.
Spec. 1, ll. 9–13. According to the Specification, “[e]xisting technology for
incorporating social media into market research and polling remains
cumbersome and inaccurate.” Id. at 1, l. 35–2, l. 1. The Specification
discloses that “the current lack of affordable or effective direct marketing
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and research platforms presents a major barrier to entry for many companies,
especially small and medium-sized businesses, which cannot afford to
expend the vast sums necessary to reach their target audiences.” Id. at 2, ll.
2–5. The Specification subsequently identifies “a continuing need for
improved online market research and polling systems and, more specifically,
market research and polling systems that more effectively utilize social
media and other techniques to increase the effectiveness and decrease the
cost of market research and customer polling.” Id. at 2, ll. 6–9.
To address these drawbacks, the present invention employs “a
compensation driven permission marketing and polling system referred to as
an instant response system” that “directly targets market polling
communications to precise demographic, geographic, psychographic and/or
keyword-associated audiences to empower businesses with sophisticated,
immediate and effective targeted marketing and research at a fraction of the
traditional expense.” Id. at 2, ll. 12–17. The Specification further notes that
the instant response system may “self-generate in a viral manner to create a
large scale, easily searchable, ever improving demographic database of
highly relevant market research information,” thereby “improve[ing] market
polling and research.” Id. at 3, ll. 11–13; 3, l. 26.
Consistent with this disclosure, exemplary independent claim 1 recites
“[a] dynamic permission-based market polling and research system”
comprising functions operative to: (1) “interact with a customer” and
“member systems” (limitations [a]–[c]); (2) maintain member relationships
and paying customer relationships in order to provide access to demographic
data, provide and receive electronic payments, and deliver surveys, i.e.,
“maintain membership relationships with the members providing . . .
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permission-based access to member demographic data for the purpose of
directing electronic surveys to the members and further providing electronic
payment to the members” and “maintain paying customer relationships with
the members providing for the delivery of surveys to the members and
providing for receipt of payment from the customers based on survey
responses received from the members” (limitations [d], [e]); (3) receive
authorization to receive location tracking data and receive the location
tracking data, i.e., “receive authorization from the member system to receive
location tracking data” and “automatically receive the location tracking
data” (limitations [f], [g]); (4) receive a survey request, identify an initial
portion of a target audience, direct the survey request to the initial portion of
the target audience, and receive responses to the survey, i.e., “receive a
survey request from a computer system identifying a target demographic
objective for the survey” and “automatically direct the survey request to the
initial portion of the target audience . . . and receive responses to the survey
from the member systems comprising partial survey results” (limitations [h],
[i]); and (5) adjust the number and demographic distribution of the
participants, adjust the priority order of the target audience, and direct the
survey request to a residual portion of the target audience, i.e., “apply a
dynamic polling algorithm to adjust the number of demographic
distribution . . . adjust the priority order . . . and direct the survey request”
(limitation [j]).
Upon reviewing the Specification and independent claim 1, as
summarized above, we agree with the Examiner that independent claim 1
recites broadly the “determination of a residual demographic objective based
on a comparison with a target demographic objective and survey results,
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resulting in how the priority order of the target audience is adjusted and how
the survey is directed” (Final Act. 6), which can be characterized as a certain
method of organizing human activity. Here, independent claim 1 maintains
membership and customer relationships for the delivery of surveys
(limitations [d], [e]), receives authorization and location tracking data
(limitations [f], [g]), identifies a target audience, directs a survey request to a
target audience, and receives responses (limitations [h], [i]), and adjusts the
number and demographic distribution of participating members, adjusts the
priority order of the target audience, and directs the survey to a residual
portion of the target audience (step [j]). In other words, claim 1 broadly
recites a system for directing market polling surveys using functionality
operative receive information (e.g., authorization data, location data, target
demographic data), identify information (e.g., target demographic), send
information (i.e., direct information), receive additional information (e.g.,
location data, survey information), and analyze data via polling algorithm.
Cf. Ans. 13–14.
Thus, it is clear that independent claim 1 recites a form of marketing
that, under the 2019 Revised Guidance, falls under the category of “[c]ertain
methods of organizing human activity” and more specifically “commercial
or legal interactions (including agreements in the form of … advertising,
marketing or sales activities or behaviors; business relations).”
2019 Revised Guidance, 84 Fed. Reg. at 52. Accordingly, independent
claim 1 recites an abstract idea. Cf. Ultramercial, Inc. v. Hulu, LLC, 772
F.3d 709, 715 (Fed. Cir. 2014) (claim for distributing copyrighted media
over the Internet to consumers in exchange for viewing an advertisement
was directed to the abstract idea of “displaying an advertisement for access
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to a copyrighted media”); Intellectual Ventures I LLC v. Capital One Fin.
Corp., 850 F.3d 1332, 1339–40 (Fed. Cir. 2017) (claim for manipulating
XML documents by organizing, identifying, mapping, defining, and
modifying data was directed to the abstract idea of “collecting, displaying,
and manipulating data”); and Electric Power Grp., LLC v. Alstom S.A., 830
F.3d 1350, 1351–54 (Fed. Cir. 2016) (claim for detecting events by
receiving, detecting, analyzing, displaying, accumulating, and updating data,
and deriving a composite indicator from that data was directed to the
abstract idea of “collecting information, analyzing it, and displaying certain
results of the collection and analysis”).
D. Step 2A-Prong 2 of the Mayo/Alice Framework
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, we turn to the Step 2A, Prong Two of the 2019 Revised
Guidance and determine whether the claim integrates the recited judicial
exception into a practical application of the judicial exception. Here we look
to see if, for example, any additional elements of the claim (i) reflect an
improvement in the functioning of a computer or to another technological
field, (ii) implement the judicial exception with, or by use of, a particular
machine, (iii) effect a transformation or reduction of a particular article to a
different state or thing, or (iv) use the judicial exception in some other
meaningful way beyond generally linking the use of the judicial exception to
a particular technological environment. See 2019 Revised Guidance, 84
Fed. Reg. at 55; see also MPEP §§ 2106.05(a)–(c), (e)–(h).
Here, the only additional elements recited in claim 1 beyond the
abstract idea are “a plurality of computer-implemented customer systems,”
“a plurality of computer-implemented member systems,” and “a computer-
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implemented direct response controller operative to electronically interact
with the plurality of computer implemented customer systems and the
plurality of computer-implemented member systems” and operative to
perform the claimed functions. However, these additional elements are
described generically in the Specification (see, e.g., Spec. 11:16–24). We
find no indication in the Specification, nor does Appellant direct us to any
indication, that the operative functions recited in claim 1 invoke any
assertedly inventive programming, require any specialized computer
hardware or other inventive computer components, i.e., a particular machine,
or that the claimed invention is implemented using other than generic
computer components to perform generic computer functions. See DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)
(“[A]fter Alice, there can remain no doubt: recitation of generic computer
limitations does not make an otherwise ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record that attributes an
improvement in computer technology and/or functionality to the claimed
invention or that otherwise indicates that the claimed invention integrates the
abstract idea into a “practical application,” as that phrase is used in the
2019 Revised Guidance.5

5 The 2019 Revised Guidance references MPEP § 2106.05(a)–(c) and (e) in
describing the considerations that are indicative that an additional element or
combination of elements integrates the judicial exception, e.g., the abstract
idea, into a practical application. 2019 Revised Guidance, 84 Fed. Reg.
at 55. If the recited judicial exception is integrated into a practical
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Appellant argues that “the claimed invention is very similar to a large
number of inventions found to be eligible because they claim improvements
in technology in the physical realm.” Appeal Br. 13. According to
Appellant,
[t]he claims are directed to “technology” because they
improve the efficiency of the computer and telecommunication
systems by saving communication air time and computer
resources in the conduct of online polls. Reducing the number
of poll requests, reducing the number electronic
communications, and reducing the computer resource utilization
required to complete an electronic survey that meets a specified
target demographic objective are, in fact, improvements to the
technology of electronic polling systems sufficient to ensure that
the patent in practice amounts to significantly more than a patent
upon an abstract idea itself, such as “electronic polling.”
Id. at 16. Appellant’s argument is not persuasive.
Here, the focus of independent claim 1 is not on any technological
advancement, but rather on the implementation of the abstract idea, “for
which computers are invoked merely as a tool.” See Enfish, 822 F.3d at
1336. In this regard, the Appellant notes that “the claimed invention is very
similar to a large number of inventions found to be eligible because they
claim improvements in technology in the physical realm even though the
improvement resides in an algorithm running on a general-purpose
computer.” Appeal Br. 13. However, independent claim 1, unlike the claims
found non-abstract in prior cases, uses generic computer technology to
receive information, identify or parse information, send information, and
analyze data related to survey requests, and does not recite an improvement

application, as determined under one or more of these MPEP sections, the
claim is not “directed to” the judicial exception.
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to a particular computer technology. See McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims
not abstract because they “focused on a specific asserted improvement in
computer animation”). Instead, as noted by Appellant, the claimed
“improvement resides in an algorithm running on a general-purpose
computer.” Appeal Br. 13.
Appellant contends that the claims on appeal are similar to “Enfish,
McRO and RCT–in which the claims are directed to specific improvements
to physical-realm systems arising from software running on general-purpose
computers.” Appeal Br. 10–16, 18–19, 22–26; Reply Br. 6–7, 9–11. More
particularly, Appellant argues that the present claims provides an improve to
“technology” in the same way as a great many inventions found
to be patent eligible under the current Section 101 eligibility
guidelines, such as the algorithm improving the rubber curing
system in Diamond v. Diehr, the algorithm improving the motion
tracking system in Thales, the algorithm improving the pivot
table database in Enfish, the algorithm improving the lip-sync
animation system in McRO, and the algorithm improving the
“blue noise” halftone digital image processing system in RCT.
Appeal Br. 16. We disagree with Appellant.
In Diehr, the claim was directed to the use of the Arrhenius equation
(an abstract idea or law of nature) in an automated process for operating a
rubber-molding press. Diehr, 450 U.S. at 177–78. The Court evaluated
additional elements such as the steps of installing rubber in a press, closing
the mold, constantly measuring the temperature in the mold, and
automatically opening the press at the proper time, and found them to be
meaningful because they sufficiently limited the use of the mathematical
equation to the practical application of molding rubber products. Id. at 184,
187.
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In Thales Visionix Inc. v. United States, 840 F.3d 1343, 1348–49 (Fed.
Cir. 2017), the claims were directed to a physical tracking system that used
mathematical equations that were “dictated by the placement of the inertial
sensors and application of laws of physics” to determine the orientation of a
tracked object relative to a moving platform. Id. at 1348. In other words,
the improvement was to the technology in a physical tracking system.
In Enfish, the Federal Circuit rejected a § 101 challenge at step one
stage of the Mayo/Alice analysis because the claims focused on “a specific
type of data structure [i.e., a self-referential table for a computer database]
designed to improve the way a computer stores and retrieves data in
memory.” Enfish, 822 F.3d at 1339. The court emphasized that the claims
were not directed to any form of storing tabular data, but were instead
directed to a self-referential table for a computer database. Id. at 1337.
And, the court explained that the table stored information related to each
column in rows of the table, such that new columns could be added by
simply creating new rows. Id. at 1338. Based on the “plain focus of the
claims,” the court, thus, held that the claims were directed to “a specific
improvement to the way computers operate, embodied in the self-referential
table,” and, as such, were more than a mere abstract idea. Id. at 1336.
In McRO, the Federal Circuit premised its determination that the
claims were patent-eligible, not merely on the specificity of the claimed
animation scheme, but rather on the fact that the claims, when considered as
a whole, were directed to a technological improvement over the existing,
manual 3-D animation techniques and used limited rules in a process
specifically designed to achieve an improved technological result in
conventional industry practice. See McRO, 837 F.3d at 1314–15.
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And, in Research Corporation Technologies Inc. v. Microsoft Corp.,
627 F.3d 859 (Fed. Cir. 2010), the Federal Circuit noted that the invention in
that case “present[ed] functional and palpable applications in the field of
computer technology” with “specific applications or improvements to
technologies in the marketplace.”
After considering Appellant’s arguments regarding Diehr, Thales,
Enfish, McRO, and Research Corp., we are not persuaded that a comparable
situation is presented here. There is a fundamental difference between
technological or computer functionality improvements, on the one hand, and
uses of existing computers as tools to perform a particular task, on the other.
Here, the Specification generically describes the technical environment (see,
e.g., Spec. 11) and does not disclose any related technical improvements.
Indeed, the Federal Circuit applied this distinction in Enfish because the
claims in Enfish focused on a specific type of data structure, i.e., a self-
referential table for a computer database, designed to improve the way a
computer carries out its basic functions of storing and retrieving data, and
not on asserted advances in uses to which existing computer capabilities
could be put. Enfish, 822 F.3d at 1335–36.
Here, there is no such improvement to technology or a technological
process. The Appellant does not assert an improvement in the technical or
technological aspects operative to receive information (e.g., authorization
data, location data, target demographic data), identify information (e.g.,
target demographic), send information (i.e., direct information), receive
additional information (e.g., location data, survey information), and analyze
data via polling algorithm. As discussed above, any improvement to market
polling lies in the algorithm itself, not to any technological improvement.
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See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287–88 (Fed. Cir.
2018). The Appellant also does not direct our attention to anything in the
Specification to indicate that the invention provides a technical improvement
or that exemplary independent claim 1 incorporates technical improvements,
such as, rules to automate a subjective task of humans, similar to those in
McRO or to a physical tracking system as in Thales.
Here, to the extent the claimed invention provides an improvement,
that improvement does not concern an improvement to computer
capabilities, but instead relates to an alleged improvement in the application
of the dynamic polling algorithm — a process in which a computer is used
as a tool in its ordinary capacity. See Bancorp Services v. Sun Life, 687 F.3d
1266, 1278, (Fed. Cir. 2012) (“The computer required by some of Bancorp’s
claims is employed only for its most basic function, the performance of
repetitive calculations, and as such does not impose meaningful limits on the
scope of those claims.”).
Step 2B of the Mayo/Alice FrameworkHaving determined under step
one of the Mayo/Alice framework that independent claim 1 is directed to an
abstract idea, we next consider under Step 2B of the 2019 Revised
Guidance, the second step of the Mayo/Alice framework, whether claim 1
includes additional elements or a combination of elements that provides an
“inventive concept,” i.e., whether the additional elements amount to
“significantly more” than the judicial exception itself. 2019 Revised
Guidance, 84 Fed. Reg. at 56.
Appellant argues that the Examiner’s contention “that the location
tracking and dynamic polling features are conventional and well-
understood” fails to comply with the requirements set forth in Berkheimer v.
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HP Inc., 881 F.3d 1360 (Fed. Cir. 2018). Appeal Br. 20–22; Reply Br. 12.
However, “the relevant inquiry is not whether the claimed invention as a
whole is unconventional or non-routine.” BSG Tech, 899 F.3d at 1290.
Instead, the question is whether the claim includes additional elements, i.e.,
elements other than the abstract idea itself, that “‘transform the nature of the
claim’ into a patent-eligible application.” Alice Corp., 573 U.S. at 217
(quoting Mayo, 566 U.S. at 79, 78).
Here, the Examiner determined that “[t]he additional elements of the
claim are directed to the computer elements, which are not described in the
[S]pecification in such a way to distinguish them from routine or
conventional computer elements.” Ans. 6. The Examiner further
determined that
the computer functions involved in the claims include receiving
or transmitting data over a network (directing electronic surveys,
receive authoriziation, receive location data, receive survey
request), performing repetitive calculations (apply the polling
algorithm to the data to adjust the number and the demographic
distribution of the members participating in the survey), storing
and retrieving information in memory. Each of these computer
functions have been deemed conventional by the courts, thus
satisfying the requirement set forth in the Berkheimer memo.
Id. at 13–14.
We agree with the Examiner that the steps performed by the computer
components are well-understood, routine, or conventional. As discussed
above, there is nothing in the Specification to indicate that the steps recited
in claim 1 require any specialized hardware or inventive computer
components or that the claimed invention is implemented using anything
other than generic computer components to perform generic computer
functions, e.g., receive information, identify information, send information,
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and analyze data. Instead, as noted by Appellant, the claimed “improvement
resides in an algorithm running on a general-purpose computer.” Appeal Br.
13.
Viewed as a whole, exemplary independent claim 1 simply recites a
series of operations instructing how to direct market polling surveys. See
Ultramercial, 772 F.3d at 716 (“[T]he claimed sequence of steps comprises
only ‘conventional steps, specified at a high level of generality,’ which is
insufficient to supply an ‘inventive concept.’”) (Citing Alice, 134 S. Ct. at
2357). Here, independent claim 1 does not, for example, purport to improve
the functioning of the computer itself. Nor does it effect an improvement in
any other technology or technical field, as discussed above with respect to
prong two of step 2A. Instead, independent claim 1 amounts to nothing
significantly more than an instruction to apply the abstract idea using generic
computing elements, which under our precedents, is not enough to transform
an abstract idea into a patent-eligible invention. See Alice, 134 S. Ct. at
2360.
E. Remaining Arguments
To the extent the Appellant argues that the invention is not directed to
an abstract idea and effects an improvement to technology because it is
novel over the prior art (see Appeal Br. 25–26; Reply Br. 12), an abstract
idea does not transform into an inventive concept just because the prior art
does not disclose or suggest it. See Mayo, 566 U.S. at 78. Further,
“[g]roundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 591 (2013). Indeed, “[t]he ‘novelty’ of any
element or steps in a process, or even of the process itself, is of no relevance
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in determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.” Diehr, 450 U.S. at 188–89;
see also Mayo, 566 U.S. at 91 (rejecting “the Government’s invitation to
substitute §§ 102, 103, and 112 inquiries for the better established inquiry
under § 101”).
We also are not persuaded of Examiner error to the extent Appellant
maintains that independent claim 1 is patent eligible because there is no risk
of preemption. Reply Br. 4–9. Although the Supreme Court has described
“the concern that drives [the exclusion of abstract ideas from patent-eligible
subject matter] as one of pre-emption,” Alice Corp., 573 U.S. at 216,
characterizing preemption as a driving concern for patent eligibility is not
the same as characterizing preemption as the sole test for patent eligibility.
“The Supreme Court has made clear that the principle of preemption is the
basis for the judicial exceptions to patentability” and “[f]or this reason,
questions on preemption are inherent in and resolved by the § 101 analysis.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015) (citing Alice Corp., 573 U.S. at 216). “[P]reemption may signal
patent ineligible subject matter, [but] the absence of complete preemption
does not demonstrate patent eligibility.” Id.
Appellant’s other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-
related guidance issued prior to the Ninth Edition, R-08.2017, of the MPEP
(published Jan. 2018) should not be relied upon.”))).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
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sustain the Examiner’s rejection of independent claim 1, and independent
claims 13 and 18, which fall with independent claim 1.
We also are not persuaded, on the present record, that the Examiner
erred in rejecting dependent claims 2–12, 14–17, 19, and 20. With respect to
dependent claims 2–12, 14–17, 19, and 20, Appellant simply reproduces the
language of the claims, and asserts that each of these claims includes
“additional technical claim features [that] define more than a mere abstract
idea . . . and amount to significantly more than a patent upon an abstract idea
itself.” Appeal Br. 29–32. However, we find that the argued dependent
claims merely describe further characteristics of the underlying concept and
lack additional elements that would render the claim patent-eligible. And, in
the absence of any substantive arguments in support of the separate patent
eligibility of the dependent claims, we agree with the Examiner that the
dependent claims are abstract idea themselves and fail to transform the
abstract into something patent-eligible. See Ans. 17–19.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED