24/7 Customer, Inc.

Patent Trials and Appeals Board

Apr 22, 2021

2020003500 (P.T.A.B. Apr. 22, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/621,172 06/13/2017 Pallipuram V. KANNAN 110524-8125.US01 4753
22918 7590 04/22/2021
PERKINS COIE LLP - PAO General
P.O. BOX 1247
SEATTLE, WA 98111-1247
EXAMINER
SITTNER, MICHAEL J
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
04/22/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte PALLIPURAM V. KANNAN, BHUPINDER SINGH,
and R. MATHANGI SRI
________________

Appeal 2020-003500
Application 15/621,172
Technology Center 3600
________________

Before BRADLEY W. BAUMEISTER, DAVID J. CUTITTA II, and
MICHAEL J. ENGLE, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 5–9, and 13–20, which constitute all of the pending
claims.1 Appeal Br. 15. We have jurisdiction under 35 U.S.C. § 6(b). The
Board conducts a limited de novo review of the appealed rejections for error
based upon the issues identified by Appellant, and in light of the arguments
and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075
(BPAI 2010) (precedential).
We AFFIRM.

1 Appellant identifies the real party in interest as 24/7 Customer, Inc.
Appeal Brief 3, filed Nov. 26, 2019 (“Appeal Br.”).
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CLAIMED SUBJECT MATTER
Appellant describes the present invention as follows:
A computer-implemented method and apparatus for
facilitating a provisioning of advertisements to customers effects
display of one or more advertisements on a Web domain. Each
displayed advertisement is configured to offer advertisement
related assistance to customers visiting the Web domain. A
selection input provided by a customer on an advertisement is
received. In response to the receipt of the selection input, the
system facilitates customer engagement with a customer support
representative associated with an enterprise related to the
advertisement. The customer engagement facilitated through the
advertisement is configured to provide the advertisement related
assistance to the customer.
Spec., Abstr.

STATEMENT OF THE REJECTIONS
Claims 1, 5–9, and 13–20 stand rejected under 35 U.S.C. § 112(b) as
being indefinite for failing to particularly point out and distinctly claim the
subject matter that Appellant regards as the invention. Final Action 3,
mailed June 20, 2019 (“Final Act.”).
Claims 1, 5–9, and 13–20 stand rejected under 35 U.S.C. § 101 as
being directed to a judicial exception to patent-eligible subject matter (an
abstract idea) without reciting significantly more. Final Act. 3–7.
Claims 1, 8, 9, 16, and 18–20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Gonguet (US 2016/0358183 A1; published Dec. 8,
2016) and Vijayaraghavan (US 014/0156383 A1; published June 5, 2014).
Final Act. 7–17.
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Claims 5–7 and 13–15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Gonguet, Vijayaraghavan, and Bhalgat
(US 2016/0292717 A1; published Oct. 6, 2016). Final Act. 18–19.
Claims 17 and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Gonguet, Vijayaraghavan, and Dimperio
(US 2014/0349610 A1; published Nov. 27, 2014). Final Act. 19–20.

THE SECTION 112(b) REJECTION
The Examiner rejects all of the claims because independent claims 1,
9, and 18 lack adequate antecedent basis for the claim language “the
customer support representative.” Final Act. 3. Appellant does not
challenge this rejection. Reply Brief, 2, filed Apr. 7, 2020 (“Reply Br.”).
Accordingly we summarily affirm this rejection.

THE SECTION 101 REJECTION
The Claimed Subject Matter
Independent claim 1 is representative of the appealed claims.2
Claim 1 is reproduced below with paragraph designators added for clarity
and with emphasis added to the claim language that recites an abstract idea:

2 Appellant asserts that the claims do not stand or fall together. Appeal
Br. 16. But Appellant argues all of claims 1, 5–9, and 13–20 together as a
group. Id. at 16–21. Accordingly, we select independent claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims
subject to the same ground of rejection are argued as a group or subgroup by
appellant, the Board may select a single claim from the group or subgroup
and may decide the appeal as to the ground of rejection with respect to the
group or subgroup on the basis of the selected claim alone.”).
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1. A computer-implemented method, comprising:
[(a)] effecting, by a processor, a display of at least one
advertisement on a Web domain, each advertisement from
among the at least one advertisement offering respective
advertisement related assistance to a customer visiting the Web
domain;
[(b)] receiving, by the processor, a selection input provided by
the customer in relation to an advertisement from among the at
least one advertisement;
[(c)] receiving, by the processor, a textual input provided by the
customer visiting the Web domain;
[(d)] effecting the display of the at least one advertisement at
least in part based on the textual input;
[(e)] predicting, by the processor, at least one persona for the
customer based, at least in part, on the textual input, said
persona comprising characteristics reflecting behavioral
patterns, goals, motives, and personal values of the customer,
said persona further comprising a persona type that reflects
behavioral similarity, or similarity in goals and motives with
other customers within one or more customer persona
classification frameworks or taxonomies that facilitate a
segregation of customers based on customer personas types;
[(f)] predicting, by the processor, a likelihood of the customer
to interact with the customer support representative based on the
predicted at least one persona; and
[(g)] in response to the selection input provided by the
customer, facilitating, by the processor, a customer engagement
with a customer support representative associated with an
enterprise related to the advertisement, the customer
engagement configured to provide the advertisement related
assistance to the customer.3

3 We understand that the step of receiving the textual input, as recited in
limitation (c), can take place before the steps of effecting a display with an
advertisement, as recited in limitations (a) and (d). Appeal Br. 7–8 (citing
Spec. ¶¶ 5, 16, 18, 24, 25; Figs. 1, 3).
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The Examiner’s Determinations
The Examiner determines that although claims 1, 5–9, and 13–20 are
directed towards a process, machine, or manufacture, the limitations of
claim 1 recite a judicial exception to patent-eligible subject matter—an
abstract idea. Final Act. 3–5. More specifically, the Examiner determines
that the abstract idea entails certain methods of organizing human activity,
and in particular, commercial or legal interactions and advertising,
marketing, or sales activities or behaviors. Id.
The Examiner determines that the claims do not include any
additional elements that integrate the abstract idea into a practical
application, but instead the claim steps entail carrying out the abstract idea
using generic computer components. Appeal Br. 5–7. The Examiner further
determines that the additional elements, considered individually and in
combination, do not amount to significantly more than the judicial
exception. Id. at 6–7.
Appellant’s arguments are addressed in the Analysis section, below.
Principles of Law
A. SECTION 101:
Inventions for a “new and useful process, machine, manufacture, or
composition of matter” generally constitute patent-eligible subject 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. 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-step framework, described in Mayo
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Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), and Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–77). In
accordance with that framework, we first determine what concept the claim
is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims
before us are drawn to the concept of intermediated settlement, i.e., the use
of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561
U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the
basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1877))).
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
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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. at 191 (citing
Benson and Flook); see also, 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 (internal quotation marks
omitted). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
B. USPTO SECTION 101 GUIDANCE:
In January 2019, the U.S. Patent and Trademark Office (“USPTO”)
published revised guidance on the application of 35 U.S.C. § 101. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Guidance”), updated by USPTO, October 2019
Update: Subject Matter Eligibility (available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) (“October 2019
Guidance Update”); see also October 2019 Patent Eligibility Guidance
Update, 84 Fed. Reg. 55942 (Oct. 18, 2019) (notifying the public of the
availability of the October 2019 Guidance Update). “All USPTO personnel
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are, as a matter of internal agency management, expected to follow the
guidance.” 2019 Guidance, 84 Fed. Reg. at 51; see also October 2019
Guidance Update at 1. The Manual of Patent Examining Procedure
(“MPEP”) now incorporates this revised guidance and subsequent updates at
Section 2106 (9th ed. Rev. 10.2019, rev. June 2020).4
Under MPEP § 2106, we first look to whether the claim recites the
following:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application.5
MPEP §§ 2106.04(a), (d).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, [and] conventional activity” in the field; or

4 All references to the MPEP are to the Ninth Edition, Revision 10.2019
(Last Revised June 2020), unless otherwise indicated.
5 “Examiners evaluate integration into a practical application by
(1) identifying whether there are any additional elements recited in the claim
beyond the judicial exception(s), and (2) evaluating those additional
elements individually and in combination to determine whether the claim as
a whole integrates the exception into a practical application.” MPEP
§ 2106.04(d)II.
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(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
MPEP § 2106.05(d).
Analysis
STEP 2A, PRONG 1:
Under step 2A, prong 1, of the 2019 Guidance, we first look to
whether the claim recites any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic practice, or
mental processes). MPEP § 2106.04(a).
Limitation (a) recites, in relevant part, “effecting . . . a display of at
least one advertisement . . . , each advertisement from among the at least one
advertisement offering respective advertisement-related assistance to a
customer.” Limitation (b) recites, in relevant part, “receiving . . . a selection
. . . provided by the customer in relation to an advertisement from among the
at least one advertisement.”
A seller displaying advertisements and a customer selecting
advertisement offerings constitute certain methods of organizing human
activity. More specifically, these acts constitute commercial or legal
interactions including advertising, marketing, or sales activities. The
2019 Guidance expressly recognizes advertising, marketing, and sales
activities as constituting a patent-ineligible abstract idea. MPEP
§ 2106.04(a). Accordingly, limitations (a) and (b) recite patent-ineligible
abstract ideas.
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Limitations (e) and (f) of claim 1 read, in relevant part, as follows:
(e) predicting . . . at least one persona for the customer based,
at least in part, on the textual input, said persona comprising
characteristics reflecting behavioral patterns, goals, motives, and
personal values of the customer, said persona further comprising
a persona type that reflects behavioral similarity, or similarity in
goals and motives with other customers within one or more
customer persona classification frameworks or taxonomies that
facilitate a segregation of customers based on customer personas
types;
(f) predicting . . . a likelihood of the customer to interact with
the customer support representative based on the predicted at
least one persona.
Making predictions of personas and the likelihood of customers to
interact with a customer support representative entail mental processes, such
as evaluations and judgments that can be performed in the human mind. The
2019 Guidance recognizes these sorts of mental processes as constituting
patent-ineligible abstract ideas. MPEP § 2106.04(a). Accordingly,
limitations (e) and (f) recite a patent-ineligible abstract idea.
Appellant argues,
the Examiner incorrectly characterizes the invention as
concerning a method of organizing human activity (Step 2A,
prong 1). Rather, the invention is an improved computer user
interface that predicts a customer persona and automatically
directs the user to an agent when assistance is determined to be
needed by the system. As taught by Appellant, the claimed
invention addresses the fact that ‘currently there is no mechanism
to get assistance with . . . [a] purchase through . . . [an]
advertisement.
Appeal Br. 16–17 (citing Spec. ¶ 4).
Appellant’s argument is unpersuasive for two reasons. First,
predicting a customer persona constitutes an abstract idea, as explained
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above. Second, Appellant’s arguments regarding how these recited abstract
ideas are carried out on a computer relate to the claim’s additional
elements—not to the language that the Examiner determines constitutes the
underlying abstract idea. As such, Appellant’s arguments do not address the
question of whether claim 1 recites abstract ideas. The arguments, instead,
address inquiries under prong 2 of the 2019 Guidance—whether additional
elements integrate the abstract ideas into a practical application, and as such,
whether the claim is directed to an abstract idea.
For these reasons, each of limitations (a), (b), (e), and (f) recite a
judicial exception to patent-eligible subject matter under step 2A, prong 1, of
the 2019 Guidance. See RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322,
1327 (Fed. Cir. 2017) (“Adding one abstract idea . . . to another abstract idea
. . . does not render the claim non-abstract.”).
STEP 2A, PRONG 2:
Under step 2A, prong 2, of the 2019 Guidance, we next analyze
whether claim 1 recites additional elements that individually or in
combination integrate the judicial exception into a practical application.
2019 Guidance, 84 Fed. Reg. at 53–55. The 2019 Guidance identifies
considerations indicative of whether an additional element or combination of
elements integrate the judicial exception into a practical application, such as
an additional element reflecting an improvement in the functioning of a
computer or an improvement to other technology or technical field. Id. at
55; MPEP § 2106.05(a).
Appellant argues that even if the claimed invention does incorporate a
judicial exception, the claims integrate the judicial exception in a practical
application by imposing a meaningful limit on the judicial exception.
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Appeal Br. 17–18. More specifically, Appellant acknowledges that
limitations (a) through (d) “may be construed as a judicial exception, i.e, a
Web browsing session in which an advertisement is received based upon
user interaction.” Id. at 18. But Appellant argues, “the putative judicial
exception is clearly integrated into a practical application, i.e., predicting a
customer persona and persona type where the persona type segregates the
customer and where the persona predicts the likelihood of the customer
interacting with a customer support representative to provide advertisement
related assistance to the customer.” Id. at 18–19 (citing claim 1,
limitations (e) through (g)).
Appellant’s arguments are unpersuasive. First, and as explained
above, at least limitations (a) and (b) of limitations (a) through (d) do
include recitations of abstract ideas. And further, read in their entirety,
including the additionally recited elements (e.g., a display, a Web domain, a
processor, a selection input, and a textual input), the four steps—
(c) receiving a textual input, (a & d) effecting a display, including a display
of an advertisement, and (b) receiving a selection input—more accurately
can be characterized as reciting insignificant extra solution activity:
An example of pre-solution activity is a step of gathering data for
use in a claimed process, e.g., a step of obtaining information
about credit card transactions, which is recited as part of a
claimed process of analyzing and manipulating the gathered
information by a series of steps in order to detect whether the
transactions were fraudulent.
MPEP § 2106.05(g).
Furthermore, the predicting steps of limitations (e) and (f) entail
carrying out abstract ideas (mental steps) more efficiently with the aid of
“the processor.” “It has been clear since Alice that a claimed invention’s use
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of the ineligible concept to which it is directed cannot supply the inventive
concept that renders the invention ‘significantly more’ than that ineligible
concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed.
Cir. 2018). “[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 omitted). “What is needed is an inventive concept in the
non-abstract application realm.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d
1161, 1168 (Fed. Cir. 2018).
Moreover, the term “processor” describes a generic computer
component that amounts to mere instructions to implement the abstract idea
on a computer, and therefore is not sufficient to make the claim patent
eligible. See Alice, 573 U.S. at 226 (determining that the claim limitations
“data processing system,” “communications controller,” and “data storage
unit” were generic computer components that amounted to mere instructions
to implement the abstract idea on a computer); October 2019 Guidance
Update at 11–12 (recitation of generic computer limitations for
implementing the abstract idea “would not be sufficient to demonstrate
integration of a judicial exception into a practical application”).
Appellant argues,
the claimed invention solves the problem of providing customer
assistance during customer interaction with an advertisement
while engaged in a Web browsing session. This assistance is
provided based upon a prediction resulting from a machine
(processor) determination of the customer persona and persona
type and is made entirely by a machine implemented process and
without a customer request for assistance.
Appeal Br. 19–20 (emphasis added).
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This argument is unpersuasive because it is not commensurate in
scope with the invention, as claimed. Claim 1 does not recite that the final
step of facilitating customer engagement is based on or in response to either
of the predicting steps—whether entirely by a machine or otherwise.
Limitation (g) recites, “in response to the selection input provided by the
customer, facilitating, by the processor, a customer engagement with a
customer support representative associated with an enterprise related to the
advertisement, the customer engagement configured to provide the
advertisement related assistance to the customer.” That is, limitation (g)
only requires that assistance be provided in engaging with a customer
support representative in response to the customer clicking—and the
processor receiving—a selection input, as recited in limitation (b).
To be sure, Appellant additionally argues, “currently there is no
mechanism to get assistance with . . . [a] purchase through . . . [an]
advertisement.” Appeal Br. 16–17 (citing Spec. ¶ 4). And Appellant’s
Specification does disclose a display button 410 that is capable of
connecting the customer to a customer support representative in response to
receiving a selection input by a customer. Spec. ¶ 39. Appellant may be
able to demonstrate that such a feature integrates the abstract idea into a
practical application if persuasive evidence were made of record to
demonstrate that it constitutes a technological improvement to provide such
a display button specifically within a displayed advertisement—as opposed
to being provided within a destination website that is reached by clicking on
a conventional advertisement.
However, the record does not provide persuasive evidence that such a
modification entails a technical improvement—as opposed to a business or
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convenience improvement. And in fact, cited prior art reference Gonguet
provides evidence that providing such display buttons specifically in
webpage advertisements was a known generic computer technology:
In another example, while accessing a website, the user may be
presented with content that is associated with an object (e.g., a
button). In this example, the user can select the object to initiate
a communication with an entity associated with the content. For
example, the user may be browsing a social networking website
that includes an electronic advertisement for carpet cleaning
services. The electronic advertisement may include a button
(e.g., “Click to Speak with a Sales Representative”) that the user
can select to initiate a voice call with a sales representative of
the carpet cleaning company.
Gonguet ¶ 26 (emphasis added); see also, e.g., id. ¶ 27 (explaining that
providing a voice-call initiation button in an advertisement was not
Gonguet’s invention, but was, instead, a previously-known technology).
Based on the record before us then, limitation (g) does not add any
meaningful limitations to the abstract ideas because it merely constitutes the
insignificant post-solution activity of transmitting data. See, e.g., Apple, Inc.
v. Ameranth, Inc., 842 F.3d 1229, 1241–42 (Fed. Cir. 2016) (holding that
printing or downloading generated menus constituted insignificant extra-
solution activity); see also Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d
1084, 1090 (Fed. Cir. 2019) (holding that where an “invention makes the
trader faster and more efficient, not the computer,” it is “not a technical
solution to a technical problem”); id. at 1093 (claims are abstract where
“they recite a purportedly new arrangement of generic information that
assists traders in processing information more quickly”).
For these reasons, Appellant does not persuade us that claim 1 is
directed to an improvement in the function of a computer or to any other
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technology or technical field. MPEP § 2106.05(a). Nor does Appellant
persuasively demonstrate that claim 1 is directed to a particular machine or
transformation, or that claim 1 adds any other meaningful limitations for the
purposes of the analysis under § 101. MPEP §§ 2106.05(b), (c), (e).
Accordingly, Appellant does not persuade us that claim 1 integrates the
recited abstract ideas into a practical application within the meaning of the
2019 Guidance. See 2019 Guidance, 84 Fed. Reg. at 52–55.
STEP 2B:
Under step 2B of the 2019 Guidance, we next analyze whether
claim 1 adds any specific limitations beyond the judicial exception that,
either alone or as an ordered combination, amount to more than “well-
understood, routine, conventional” activity in the field. 2019 Guidance,
84 Fed. Reg. at 56; MPEP § 2106.05(d).
Appellant argues again that the step of predicting at least one person
and a persona type requires something more than the practice of an abstract
idea. Appeal Br. 20. According to Appellant,
This process yields a prediction of likelihood of customer
interaction with a customer support representative and,
ultimately, facilitates customer interaction with a support
representative. While the invention provides customer support
to a customer from within an advertisement, the manner in which
this is done, by determining a customer persona and persona type
and using this determination to predict the customer’s need for
assistance, and then provide such assistance, amounts to
something more than the abstract idea itself.
Id.
This argument is unpersuasive because, as explained above, the
predicting steps entail the abstract idea of performing an evaluation or
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judgment. And as such, forming a prediction of customer interaction with a
customer support representative cannot constitute significantly more than an
abstract idea. “The abstract idea itself cannot supply the inventive concept,
no matter how groundbreaking the advance.” Trading Techs., 921 F.3d
at 1093 (quotation omitted).
For these reasons, we determine that claim 1 does not recite additional
elements that, either individually or as an ordered combination, amount to
significantly more than the judicial exception within the meaning of the
2019 Guidance. 2019 Guidance, 84 Fed. Reg. at 52–55; MPEP
§ 2106.05(d).
Accordingly, we sustain the Examiner’s rejection of claim 1 under
35 U.S.C. § 101 as being directed to an exception to patent-eligible subject
matter without reciting significantly more. We, likewise, sustain the § 101
rejection of claims 5 through 9 and 13 through 20, which Appellant does not
argue separately. Appeal Br. 16–21.

THE SECTION 103 REJECTIONS
The Examiner’s Determinations
The Examiner finds that Gonguet discloses most of the limitations of
the independent claims, and further teaches an electronic advertisement that
includes a button (e.g., “Click to Speak with a Sales Representative”), which
the user can select to initiate a voice call with a sales representative. Final
Act. 7–9 (citing Gonguet ¶¶ 25–26). The Examiner finds that Gonguet does
not adequately disclose, inter alia:
receiving . . . a textual input provided by the customer
visiting the web domain;
. . . [and]
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predicting . . . at least one persona for the customer based,
at least in part, on the textual input, said persona comprising
characteristics reflecting behavioral patterns, goals, motives, and
personal values of the customer, said persona further comprising
a persona type that reflects behavioral similarity, or similarity in
goals and motives with other customers within one or more
customer persona classification frameworks or taxonomies that
facilitate a segregation of customers based on customer personas
types (emphases added).
Id. at 9–10.
The Examiner finds, however, that Vijayaraghavan discloses the first
limitation because Vijayaraghavan teaches a user performing a keyword
search (“textual input”). Final Act. 9 (citing Vijayaraghavan ¶¶ 21–23).
The Examiner further finds that Vijayaraghavan also discloses the second
limitation because Vijayaraghavan teaches the following: the processor
predicting a user intent (“persona”) based on analysis of the keyword search
(id. at 10 (citing Vijayaraghavan ¶¶ 82–83)); the user intent being exhibited
in regard to understanding sales and discounts around a specific product
(“behavioral patterns, goals, motives, and personal values of the customer”)
(id. (citing Vijayaraghavan ¶¶ 85–90)); and the user intent reflecting an
intent of serious customers, an intent of conversion, or a purchase propensity
(“persona type”) (id. (citing Vijayaraghavan ¶¶ 59, 85, 103)).
The Examiner interprets the intent of serious customers or a purchase
propensity as being “another type of intent related to a user segment [other
customers] used to classify customers.” Id. at 11. The Examiner further
finds that motivation existed to combine the teachings of Gonguet and
Vijayaraghavan. Id.
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Appellant’s Contentions and Analysis
I.
Appellant argues that Vijayaraghavan is concerned with predicting
user intent based on user interactions, whereas the argued limitation recites a
persona. Appeal Br. 22. Appellant argues that it “defines a ‘persona’ as
‘comprising characteristics reflecting behavioral patterns, goals, motives,
and personal values of the customer.’” Id. at 23; see also Spec. ¶ 53.
Appellant argues that Vijayaraghavan’s user intent cannot be interpreted as
corresponding to the claimed “persona” because Vijayaraghavan’s intent
“does not consider behavioral patterns, goals, motives, and personal values
of the customer, but merely considers interactions with the customer.” Id.
at 23.
This argument is unpersuasive. Vijayaraghavan teaches that customer
intent can include, for example, seriousness and interest in price reduction.
Vijayaraghavan ¶ 87, cited in Final Act. 10. Appellant fails to explain why
such intents cannot reasonably be interpreted as constituting a goal, motive,
or personal value. Furthermore, Vijayaraghavan teaches considering
behavioral patterns because the user’s search patterns are analyzed to
determine the dominant set of intents. Vijayaraghavan ¶ 83.
There is no ipsissimis verbis test for determining whether a reference
discloses a claim element, i.e., identity of terminology is not required. In re
Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
II.
Appellant next argues that the claims recite both a “persona” and a
“persona type,” but that the Examiner improperly fails to distinguish
between these terms, as claimed:
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In the Examiner’s analysis, the persona and the persona type are
one and the same, even though Appellant defines a persona as
“comprising characteristics reflecting behavioral patterns, goals,
motives, and personal values of the customer” and defines a
persona type as reflecting “behavioral similarity, or similarity in
goals and motives with other customers[.]” Further, the persona
type exists within “one or more customer persona classification
frameworks or taxonomies that facilitate a segregation of
customers based on customer personas types.”
Id. at 23–24.
Appellant further argues,
An intent is not a persona, nor is it also at the same time a
person[a] and a persona type as suggested by the Examiner.
Note that the Examiner’s analysis is entirely silent with regard to
persona classification frameworks or taxonomies. Nothing in
[Vijayaraghavan] teaches or suggests a persona, a persona type,
or persona classification frameworks or taxonomies.
Id. at 24 (emphasis added).
Before considering the rejections, we must first determine the scope
of the claims. In re Geerdes, 491 F.2d 1260, 1262 (CCPA 1974). We,
therefore, first address Appellant’s contention that the meanings of the claim
terms “persona” and “persona type” are distinct. We find that they are not.
The Examiner finds, and we agree, that Appellant’s Specification
expressly states that these terms are synonymous: “The term ‘persona type’
or ‘persona’ as used interchangeably hereinafter refers to characteristics
reflecting behavioral patterns, goals, motives, and personal values of the
customer.” Spec. ¶ 53 (emphasis added), cited in Ans. 4.
We next must determine, then, the proper meaning of claim 1’s
language,
predicting, by the processor, at least one persona for the
customer based, at least in part, on the textual input, said persona
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comprising characteristics reflecting behavioral patterns, goals,
motives, and personal values of the customer, said persona
further comprising a persona type that reflects behavioral
similarity, or similarity in goals and motives with other
customers within one or more customer persona classification
frameworks or taxonomies that facilitate a segregation of
customers based on customer personas types.
Appeal Br. 26 (emphasis added).
Based on the Specification’s explanation that “persona” and “persona
type” are synonymous, the emphasized claim language raises questions
regarding the clarity of the metes and bounds of claim protection being
sought. Read literally, this limitation sets forth that the “persona” comprises
various characteristics and further comprises itself—“a persona type.”
For purposes of this appeal, then, we understand this limitation of
claim 1 to recite,
predicting, by the processor, at least one persona for the customer
based, at least in part, on the textual input, said persona
comprising characteristics reflecting behavioral patterns, goals,
motives, and personal values of the customer, said persona
further comprising a [persona] that reflects behavioral similarity,
or similarity in goals and motives with other customers within
one or more customer persona classification frameworks or
taxonomies that facilitate a segregation of customers based on
customer personas types.
Arguments by Appellant to the contrary potentially may raise issues
of indefiniteness under 35 U.S.C. § 112(b) and further potentially may raise
questions of whether the claim possesses adequate written description under
35 U.S.C. § 112(a). See AMENDMENT IN RESPONSE TO NON-FINAL
OFFICE ACTION UNDER 37 C.F.R. 1.111, filed May 22, 2019 (adding
this non-original claim language via claim amendment).
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Based on this interpretation, we turn to Appellant’s arguments that
Vijayaraghavan does not teach or suggest persona classification frameworks
or taxonomies. Appeal Br. 24. We find this argument unpersuasive.
The Examiner explains that the association of an intent with a serious
customer reflects a type of intent and/or a type of customer:
Furthermore, [Vijayaraghavan] teaches at least . . . that his
“Intent” [persona] may reflect an “Intent of serious [a type]
customers”, etc. . . . ; i.e. the intent may also reflects [sic] types
of intent and/or types of customers; i.e. “serious customers” have
different types of intentions than non-serious customers.
Appeal Br. 6 (citing Vijayaraghavan ¶¶ 82–90).
The Examiner further explains that Vijayaraghavan’s purchasing
propensity is associated with user segments and, thus, discloses “one or
more customer persona classification frameworks or taxonomies that
facilitate a segregation of customers based on customer personas types”:
[Vijayaraghavan teaches]: “ . . . ‘purchase propensity’ means the
propensity of user segments to purchase a particular product
. . .”; [Vijayaraghavan’s] purchase propensity is another type of
intent and it is related to user segments [classification framework
or taxonomies that facilitate a segregation of customers based on
customer personas types].
Appeal Br. 6 (citing Vijayaraghavan ¶ 59).
We agree with the Examiner that Vijayaraghavan’s creation of
characteristic categories for analyzing customers’ patterns, goals, motives, or
intents, by definition, establishes a classification framework or taxonomy
that facilitates a segregation of customers, as claimed. Ipsissimis verbis
identity of terminology in the prior art is not required. In re Bond, 910 F.2d
at 832.
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III.
Finally, in Appellant’s Reply Brief, Appellant argues that, even
assuming that the terms “persona” and “persona type” are interchangeable,
Vijayaraghavan still does not render obvious the limitation in question.
Reply Br. 6. According to Appellant, Vijayaraghavan’s intent cannot be
equated with “persona” because the claimed invention “makes immediate
use of this information to effect a customer engagement with a customer
support representative.” Id. at 7. Appellant asserts that Vijayaraghavan, on
the other hand, “is concerned with optimizing advertising after the fact, not
predicting a customer’s immediate need of assistance as claimed, and, as
such, the examiner’s reference to ¶ [0085]–[0090] is taken out of context.”
Id.
Appellant’s arguments do not persuade us of reversible error because
the arguments are not commensurate in scope with the claim language.
The last limitation of claim 1—the customer engagement step—reads
as follows: “in response to the selection input provided by the customer,
facilitating…a customer engagement with a customer support representative
associated with an enterprise related to the advertisement, the customer
engagement configured to provide the advertisement related assistance to the
customer.” Appeal Br. 26–27 (emphasis added).
This claim language does not set forth that the customer engagement
step is performed in response to predicting the persona and persona type—
only in response to the selection input. That is, claim 1 does not actually
require or make use of the previously predicted “persona” or “persona types”
to facilitate the customer engagement.
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Reading the customer-engagement step to require or make use of the
predicted persona/persona types would be improper.
Though understanding the claim language may be aided by
explanations contained in the written description, it is important
not to import into a claim limitations that are not part of the
claim. For example, a particular embodiment appearing in the
written description may not be read into a claim when the claim
language is broader than the embodiment.
SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir.
2004).
Conclusions
For the foregoing reasons, Appellant does not persuade us of error in
the Examiner’s finding that Vijayaraghavan discloses a persona and persona
type, as claimed, or error in the Examiner’s conclusion that Vijayaraghavan
renders the argued claim obvious. As such, Appellant does not demonstrate
error in the Examiner’s conclusion regarding the obviousness of independent
claim 1.
Accordingly, we affirm the Examiner’s obviousness rejection of
claim 1 and of claims 8, 9, 16, and 18–20, which Appellant does not argue
separately. Appeal Br. 21–24; see 37 C.F.R. § 41.37(c)(1)(iv) (“When
multiple claims subject to the same ground of rejection are argued as a group
or subgroup by appellant, the Board may select a single claim from the
group or subgroup and may decide the appeal as to the ground of rejection
with respect to the group or subgroup on the basis of the selected claim
alone.”).
We, likewise, affirm the remaining obviousness rejections of
dependent claims 5–7, 13–15, 17, and 19. Appellant does not argue the
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obviousness rejections of these claims separately from the rejection of
claim 1. See Appeal Br. 21–24.

DECISION SUMMARY
In summary:

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)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 5–9, 13–20 112(b) Indefiniteness 1, 5–9, 13–20
1, 5–9, 13–20 101 Eligibility 1, 5–9, 13–20
1, 8, 9, 16,
18–20
103 Gonguet,
Vijayaraghavan
1, 8, 9, 16,
18–20

5–7, 13–15 103 Gonguet,
Vijayaraghavan,
Bhalgat
5–7, 13–15
17, 19 103 Gonguet,
Vijayaraghavan,
Dimperio
17, 19
Overall
Outcome
1, 5–9, 13–20