Adobe Inc.

Patent Trials and Appeals Board

Apr 7, 2020

13739986 - (D) (P.T.A.B. Apr. 7, 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.
13/739,986 01/11/2013 Peter R. Fransen 2757US01 7342
108982 7590 04/07/2020
SBMC
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
HACKENBERG, RACHEL J
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
04/07/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@sbmc-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PETER R. FRANSEN
____________________

Appeal 2019-000918
Application 13/739,986
Technology Center 2400
____________________

Before JOSEPH L. DIXON, JOHN A. EVANS, and
JAMES W. DEJMEK, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 27–46. Appellant has canceled claims 1–26. See
Amendment 10 (filed Nov. 6, 2017) (“Amdt”). We have jurisdiction over
the remaining pending claims under 35 U.S.C. § 6(b). See Ex parte
Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994) (precedential).
We affirm.

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2017). Appellant identifies
Adobe Systems Incorporated as the real party in interest. Appeal Br. 3.
Appeal 2019-000918
Application 13/739,986

2
STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to the
generation of segments describing usage patterns of a plurality of webpages
of a website and tailoring content on the webpages to a visitor (i.e., user)
having a usage pattern that corresponds to the generated segment. Spec.
¶¶ 3, 14–15; see also Appeal Br. 21 (describing the invention as “generating
and using segments describing a particular usage pattern associated with a
website for digital marketing”).
Claim 27 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
27. A method of controlling web page content arrangement,
the method implemented at least partially in hardware of a
computing device including a processor and a memory device,
the method comprising:
monitoring, by the computing device automatically and
without user intervention, navigation through a plurality of web
pages of a website, the navigation defining a sequence of actions
involving a plurality of web pages;
generating, by the computing device automatically and
without user intervention, a usage pattern based on the navigated
sequence of actions involving the plurality of web pages;
generating, automatically and without user intervention, a
segment based on the usage pattern of the segment;
receiving, by the computing device, data describing a
usage pattern of a visitor to the website;
determining, by the computing device, the visitor
corresponds to the segment by comparing the usage pattern of
the segment to the usage pattern of the visitor; and
responsive to the determining that the visitor corresponds
to the segment, arranging content including adding to or
Appeal 2019-000918
Application 13/739,986

3
subtracting from a set of functional capabilities provided by at
least one of a plurality of web pages of the website to the visitor.

The Examiner’s Rejections
1. Claims 27–46 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. Non-Final Act. 2–4.
2. Claims 27–30, 33, 35, and 37–46 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Hellerman et al. (US
2011/0196821 A1; Aug. 11, 2011) (“Hellerman”) and Powell (US
2014/0189519 A1; July 3, 2014 (filed Feb. 22, 2013 and claiming priority to
provisional application no. 61/747,650; filed Dec. 31, 2012)). Non-Final
Act. 5–19.
3. Claims 31 and 32 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Hellerman, Powell, and Luff (US
2010/0015926 A1; Jan. 21, 2010). Non-Final Act. 19–20.
4. Claims 34 and 36 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Hellerman, Powell, and Hannan (US
2012/0123867 A1; May 17, 2012). Non-Final Act. 21–23.

ANALYSIS2
Rejection under 35 U.S.C. § 101
Appellant disputes the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. Appeal Br. 12–20; Reply

2 Throughout this Decision, we have considered the Appeal Brief, filed
July 16, 2018 (“Appeal Br.”); the Reply Brief, filed November 13, 2018
(“Reply Br.”); the Examiner’s Answer, mailed September 28, 2018 (“Ans.”);
and the Non-Final Office Action, mailed February 22, 2018 (“Non-Final
Act.”), from which this Appeal is taken.
Appeal 2019-000918
Application 13/739,986

4
Br. 2–7. In particular, Appellant argues the claimed invention provides a
technical solution, rooted in computer technology, to a technical problem.
Appeal Br. 13–19; Reply Br. 6–7. In addition, Appellant challenges the
Examiner’s findings that the claims recite generic computer components and
functions that are well-understood, routine, and conventional. Appeal
Br. 19–20; Reply Br. 2–6.
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 217 (2014). In addition, the Office has published revised guidance
for evaluating subject matter eligibility under 35 U.S.C. § 101, specifically
with respect to applying the Alice framework. USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Office
Guidance”). If a claim falls within one of the statutory categories of patent
eligibility (i.e., a process, machine, manufacture, or composition of matter)
then the first inquiry is whether the claim is directed to one of the judicially
recognized exceptions (i.e., a law of nature, a natural phenomenon, or an
abstract idea). Alice, 573 U.S. at 217. As part of this inquiry, we must “look
at the ‘focus of the claimed advance over the prior art’ to determine if the
claim’s ‘character as a whole’ is directed to excluded subject matter.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257–58 (Fed.
Cir. 2016) (internal citations omitted). Per Office Guidance, this first
inquiry has two prongs of analysis (i) does the claim recite a judicial
exception (e.g., an abstract idea), and (ii) if so, is the judicial exception
integrated into a practical application. 84 Fed. Reg. at 54. Under the Office
Guidance, if the judicial exception is integrated into a practical application,
see infra, the claim passes muster under § 101. 84 Fed. Reg. at 54–55. If
Appeal 2019-000918
Application 13/739,986

5
the claim is directed to a judicial exception (i.e., recites a judicial exception
and does not integrate the exception into a practical application), the next
step is to determine whether any element, or combination of elements,
amounts to significantly more than the judicial exception. Alice, 573 U.S. at
217; 84 Fed. Reg. at 56.
Here, we conclude Appellant’s claims recite an abstract idea.
Appellant’s claims are generally directed to customizing the content of a
webpage based on whether a usage pattern of a visitor to the webpage
corresponds to a segment based on previous usage patterns of the webpage.
This is consistent with how Appellant describes the claimed embodiment of
the invention. See, e.g., Spec. ¶¶ 3 (indicating the disclosed invention relates
to the “[g]eneration of segments describing usage patterns”); 14–15
(describing a segment may be generated to describe usage patterns and used
to target content); see also Appeal Br. 14 (stating the claims recite features
“directed to customizing a web page’s content for a visitor to a website if the
visitor corresponds to a particular segment that has been generated based on
a specific usage pattern of navigation through a plurality of web pages of a
website”); Amdt 10 (stating the disclosed invention “pertains to segment
generation describing usage patterns associated with a website” and, further,
that the “segment is . . . used to target content, such as advertisements or
custom web page configurations, to subsequent visitors to the
website”)(emphasis omitted).
Consistent with our Office Guidance and case law, we conclude that
customizing the content of a webpage based on whether a usage pattern of a
visitor to the webpage corresponds to a segment based on previous usage
patterns of the webpage is a certain method of organizing human activity
Appeal 2019-000918
Application 13/739,986

6
(e.g., a commercial interaction, such as marketing or sales activity)—i.e., an
abstract idea.3 See 84 Fed. Reg. at 52; see also Intellectual Ventures I LLC
v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (holding
that “tailoring content based on the viewer’s location” (i.e., a function of the
user’s personal characteristics) is the type of information tailoring that is a
fundamental practice long prevalent in our system and is an abstract idea);
Affinity Labs of Tex., LLC v. Amazon.com Inc., 838 F.3d 1266, 1271 (Fed.
Cir. 2016) (concluding “[l]ike the basic concept of tailoring content to a
user, as in Intellectual Ventures I, the basic concept of customizing a user
interface is an abstract idea”); Netflix, Inc. v. Rovi Corp., 114 F. Supp. 3d
927, 944 (N.D. Cal. 2015), aff’d, 670 F. App’x 704 (Fed. Cir. 2016)
(affirming district court ruling that claims for making viewing
recommendations based on a user’s viewing history recited an abstract idea);
Intellectual Ventures I LLC v. J. Crew Grp., Inc., No. 6:16-CV-196-JRG,
2016 WL 4591794, at *5 (E.D. Tex. Aug. 24, 2016), aff’d sub

3 Alternatively, customizing the content of a webpage based on whether a
usage pattern of a visitor to the webpage corresponds to a segment based on
previous usage patterns of the webpage may be considered a mental process
that is applied and performed in a computing environment. See Non-Final
Act. 2–4 (explaining the claims merely collect, analyze, organize, recognize
and manipulate information); see also Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1354 (Fed. Cir. 2016) (concluding that “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”); Smart Sys. Innovations, LLC v. Chicago Transit
Authority, 873 F.3d 1364, 1372 (Fed. Cir. 2017) (concluding “the collection,
storage, and recognition of data” to be abstract); Digitech Image Techs., LLC
v. Elec. for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (concluding
that “a process of organizing information through mathematical correlations
and is not tied to a specific structure or machine” to be abstract).
Appeal 2019-000918
Application 13/739,986

7
nom. Intellectual Ventures I LLC v. FTD Companies, Inc., 703 F. App’x 991
(Fed. Cir. 2017) (affirming district court ruling that claims directed to
recommending products to customers based on purchase history recited an
abstract idea); Personalized Media Commc’ns, LLC v. Amazon.Com, Inc.,
161 F. Supp. 3d 325, 338 (D. Del. 2015), aff’d sub nom. Personalized Media
Commc’ns, L.L.C. v. Amazon.com Inc., 671 F. App’x 777 (Fed. Cir. 2016)
(affirming district court ruling that claims directed to providing personalized
recommendations recited an abstract idea).4
Claim 27 is reproduced below and includes the following claim
limitations that recite customizing the content of a webpage based on
whether a usage pattern of a visitor to the webpage corresponds to a segment
based on previous usage patterns of the webpage, emphasized in italics:
27. A method of controlling web page content arrangement,
the method implemented at least partially in hardware of a
computing device including a processor and a memory device,
the method comprising:
monitoring, by the computing device automatically and
without user intervention, navigation through a plurality of web

4 Moreover, customizing the content of a webpage based on whether a usage
pattern of a visitor to the webpage corresponds to a segment based on
previous usage patterns of the webpage may also be considered a type of
targeted advertisement. See Spec. ¶¶ 13–15, 42. “[T]argeted advertising is
[a well-known] concept, insofar as matching consumers with a given product
or service ‘has been practiced as long as markets have been in operation.’”
Morsa v. Facebook, Inc., 77 F. Supp. 3d 1007, 1013 (C.D. Cal. 2014), aff’d,
622 F. App’x 915 (Fed. Cir. 2015) (quoting Tuxis Techs., LLC v.
Amazon.com, Inc., No. CV 13-1771-RGA, 2014 WL 4382446, at *5 (D. Del.
Sept. 3, 2014)). In other words, “[t]he concept of gathering information
about one’s intended market and attempting to customize the information
then provided is as old as the saying, ‘know your audience.’” Morsa, 77 F.
Supp. 3d at 1013 (quoting OpenTV, Inc. v. Netflix Inc., 76 F. Supp. 3d 886,
893 (N.D. Cal. 2014)).
Appeal 2019-000918
Application 13/739,986

8
pages of a website, the navigation defining a sequence of actions
involving a plurality of web pages;
generating, by the computing device automatically and
without user intervention, a usage pattern based on the navigated
sequence of actions involving the plurality of web pages;
generating, automatically and without user intervention, a
segment based on the usage pattern of the segment;
receiving, by the computing device, data describing a
usage pattern of a visitor to the website;
determining, by the computing device, the visitor
corresponds to the segment by comparing the usage pattern of
the segment to the usage pattern of the visitor; and
responsive to the determining that the visitor corresponds
to the segment, arranging content including adding to or
subtracting from a set of functional capabilities provided by at
least one of a plurality of web pages of the website to the visitor.
More particularly, customizing the content of a webpage based on
whether a usage pattern of a visitor to the webpage corresponds to a segment
based on previous usage patterns of the webpage comprises (i) generating a
usage pattern for a plurality of webpages of a website from past usage (i.e.,
the claimed step of generating a usage pattern based on the navigated
sequence of actions); (ii) generating a segment from the generated usage
pattern (i.e., the claimed step of generating a segment based on the usage
pattern); (iii) receiving a usage pattern of a visitor to a website (i.e., the
claimed step of receiving data describing a usage pattern of a visitor);
(iv) comparing the received usage pattern of the visitor to the generated
segment to determine whether the visitor corresponds to the generated
segment (i.e., the claimed step of determining the visitor corresponds to the
segment by comparing the usage pattern of the segment to the usage pattern
of the visitor); and (v) customizing the webpages of the website (i.e., the
Appeal 2019-000918
Application 13/739,986

9
claimed step of arranging content including adding to or subtracting from a
set of functional capabilities provided by the webpages).
Because the claim recites an abstract idea, we next determine whether
the claim integrates the abstract idea into a practical application. 84 Fed.
Reg. at 54. To determine whether the judicial exception is integrated into a
practical application, we identify whether there are “any additional elements
recited in the claim beyond the judicial exception(s)” and evaluate those
elements to determine whether they integrate the judicial exception into a
recognized practical application. 84 Fed. Reg. at 54–55 (emphasis added);
see also Manual of Patent Examining Procedure (“MPEP”) § 2106.05(a)–
(c), (e)–(h) (9th ed., Rev. 08.2017, Jan. 2018).
Here, we find the additional limitation(s) do not integrate the judicial
exception into a practical application. More particularly, the claims do not
recite (i) an improvement to the functionality of a computer or other
technology or technical field (see MPEP § 2106.05(a)); (ii) use a “particular
machine” to apply or use the judicial exception (see MPEP § 2106.05(b));
(iii) a particular transformation of an article to a different thing or state (see
MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP
§ 2106.05(e)). See also 84 Fed. Reg. at 55.
The additional limitation of monitoring navigation through a plurality
of web pages of a website is merely a pre-solution data gathering step to
provide the necessary data to generate a usage pattern. Such data gathering
does not confer patent eligibility. See MPEP § 2106.05(g); see also Bilski v.
Kappos, 561 U.S. 593, 612 (2010) (holding the use of well-known
techniques to establish inputs to the abstract idea as extra-solution activity
that fails to make the underlying concept patent eligible); Elec. Power,
Appeal 2019-000918
Application 13/739,986

10
830 F.3d at 1355 (explaining that “selecting information, by content or
source, for collection, analysis, and display does nothing significant to
differentiate a process from ordinary mental processes”).
Still further, the generic recitation that the steps are performed by a
“computing device including a processor and a memory device” does not
integrate the judicial exception into a practical application. Instead, the
claims merely use computers and computer devices that operate in their
normal, expected manner. See also DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1258–59 (Fed. Cir. 2014). Additionally, as the court in
Enfish explained, “the first step in the Alice inquiry . . . asks whether the
focus of the claims is on the specific asserted improvement in computer
capabilities . . . or, instead, on a process that qualifies as an ‘abstract idea’
for which computers are invoked merely as a tool.” Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016). As discussed
above, the focus of the pending claims is on customizing the content of a
webpage based on whether a usage pattern of a visitor to the webpage
corresponds to a segment based on previous usage patterns of the webpage
and the recited computing elements are invoked merely as a tool. See
Enfish, 822 F.3d at 1335–36.
Moreover, in DDR Holdings, the Federal Circuit determined “the
claimed solution amount[ed] to an inventive concept for resolving [a]
particular Internet-centric problem,” i.e., a challenge unique to the Internet.
DDR Holdings, 773 F.3d 1245, 1259 (Fed. Cir. 2014); see Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (noting that
“[i]n DDR Holdings, we held that claims ‘directed to systems and methods
of generating a composite web page that combines certain visual elements of
Appeal 2019-000918
Application 13/739,986

11
a ‘host’ website with content of a third-party merchant’ contained the
requisite inventive concept”). The Federal Circuit explained that the patent-
eligible claims specified “how interactions with the Internet are manipulated
to yield a desired result . . . that overrides the routine and conventional
sequence of events ordinarily triggered by the click of a hyperlink.” DDR
Holdings, 773 F.3d at 1258. The court reasoned that those claims recited a
technological solution “necessarily rooted in computer technology” that
addressed a “problem specifically arising in the realm of computer
networks.” DDR Holdings, 773 F.3d at 1257.
Rather than reciting a technical solution rooted in computer
technology as in DDR, the pending claims are more similar to those at issue
in Capital One. See Capital One, 792 F.3d at 1369. There, the pending
claims depicted portions of a website visited by a user as a function of
website navigation data and the user’s personal characteristics. Capital One,
792 F.3d at 1369. The court determined that the claims merely provide
tailored information based on a characteristic of a user (e.g., a geographic
location) and website navigation data. Capital One, 792 F.3d at 1369–70.
In addition, the court determined that information tailoring is a “practice
long prevalent in our system.” Capital One, 792 F.3d at 1369 (citation and
internal quotation marks omitted). The court also explained the addition of a
computer functionality to such a concept does not confer patent eligibility.
Capital One, 792 F.3d at 1370; see also Spec. ¶ 13 (explaining it was known
to analyze usage of a website “such as to determine user trends and
characteristics of users that may be used to target content to users”).
For at least the foregoing reasons, the claims do not integrate the
judicial exception into a practical application.
Appeal 2019-000918
Application 13/739,986

12
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to “significantly more” than
the abstract idea. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73, 77–79 (2012)). As
stated in the Office Guidance, many of the considerations to determine
whether the claims amount to “significantly more” under step two of the
Alice framework are already considered as part of determining whether the
judicial exception has been integrated into a practical application. 84 Fed.
Reg. at 56. Thus, at this point of our analysis, we determine if the claims
add a specific limitation, or combination of limitations, that is not well-
understood, routine, conventional activity in the field, or simply appends
well-understood, routine, conventional activities at a high level of generality.
84 Fed. Reg. at 56.
Here, Appellant’s claims do not recite specific limitations (or a
combination of limitations) that are not well-understood, routine, and
conventional. For example, when describing the computing device and
environment for practicing the claimed invention, Appellant describes the
components at a high level of generality and identifies exemplary well-
known devices and computer components such as personal computers,
mobile devices, or laptop devices. See Spec. ¶¶ 18–19 (Example
Environment), 52–65 (Example System and Device), Fig. 7. Consistent with
the Berkheimer Memorandum,5 we agree with the Examiner’s findings that

5 On April 19, 2018, the Deputy Commissioner for Patent Examination
Policy issued a memorandum entitled: Changes in Examination Procedure
Appeal 2019-000918
Application 13/739,986

13
the claims merely recite generic computer components (e.g., a computing
device comprising a processor and memory) performing generic computing
functions that are well-understood, routine, and conventional (e.g., receiving
data, processing data, and presenting the results of the data processing).
See Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314,
1324–25 (Fed. Cir. 2016) (generic computer components, such as an
“interface,” “network,” and “database,” fail to satisfy the inventive concept
requirement); Alice, 573 U.S. at 226 (“Nearly every computer will include a
‘communications controller’ and [a] ‘data storage unit’ capable of
performing the basic calculation, storage, and transmission functions
required by the method claims.” (citation omitted)); buySAFE, Inc. v.
Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer
receives and sends the information over a network—with no further
specification—is not even arguably inventive.”).
For the reasons discussed supra, we sustain the Examiner’s rejection
of claims 27–46 under 35 U.S.C. § 101. See 37 C.F.R. § 41.37(c)(1)(iv).

Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility
Decision (Berkheimer v. HP, Inc.) (i.e., “the Berkheimer Memorandum”)
(discussing the Berkheimer decision) (available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF). Support for a finding that an element was well-understood,
routine, or conventional may be shown by citation to one or more court
decisions noting the well-understood, routine, conventional nature of the
element(s). See Berkheimer Memorandum 3–4.
Appeal 2019-000918
Application 13/739,986

14
Rejections under pre-AIA 35 U.S.C. § 103(a)
Appellant argues that Hellerman fails to teach generating “a segment
based on the usage pattern of the segment,”6 as recited in claim 27. Appeal
Br. 24–27; Reply Br. 8–10. More particularly, Appellant asserts Hellerman
merely describes a target landing page selection as a statistical prediction of
which landing page may result in a favorable user action. Appeal Br. 25.
Appellant argues that Hellerman’s landing page is not equivalent to the
claimed “segment.” Appeal Br. 25. Moreover, Appellant argues Hellerman
is unrelated to navigation through a plurality of webpages to generate a
segment based on a usage pattern, and instead selects landing pages “based
on characteristics of a network request.” Appeal Br. 26; Reply Br. 8–10.
Contrary to Appellant’s assertions, the Examiner does not find that
Hellerman’s landing page teaches the claimed segment, but instead finds
Hellerman’s landing page selection rule teaches the claimed segment.
Ans. 8–9 (citing Hellerman ¶¶ 54–55); Non-Final Act. 5–6. Further,
Hellerman teaches the landing page selection rules are generated by
analyzing characterizing features and identifying common repeated patterns
in the previously received network requests. Hellerman ¶ 54. In addition,
Hellerman describes a “characterizing feature of a network request [as] a
feature which is indicative of the modus operandi and/or web surfing

6 In the event of further prosecution, we leave it to the Examiner to
determine whether the claim limitation of generating “a segment based on
the usage pattern of the segment” (emphasis added) comports with 35 U.S.C.
§ 112. But see Reply Br. 8 (referring to “generating a segment based on a
usage pattern of navigation through a plurality of web pages of a website”)
(emphasis altered). Although the Board is authorized to reject claims under
37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects
not to do so. See MPEP § 1213.02.
Appeal 2019-000918
Application 13/739,986

15
patterns of users.” Hellerman ¶ 49. Thus, the landing page selection rule is
generated based on web surfing patterns (i.e., navigation of web pages
sequences) of users and identifying common repeated patterns. We agree
with the Examiner that this teaches or reasonably suggests the claimed
segment.
Appellant also argues that Powell, as relied on by the Examiner, fails
to teach arranging content including adding to or subtracting from a set of
functional capabilities provided by at least one of a plurality of web pages of
the website to the visitor. Appeal Br. 27–29; Reply Br. 10–11. In particular,
Appellant argues that rather than generating a segment (based on a usage
pattern) and using the segment to arrange content for visitors of a website,
Powell “merely monitors a website session for one particular user, and uses
that recorded data for the next session of that particular user with that
website.” Appeal Br. 28 (emphases omitted); Reply Br. 10–11.
We are unpersuaded of Examiner error at least because Appellant’s
arguments are not responsive to the rejection as articulated by the Examiner.
Non-obviousness cannot be established by attacking references individually
where, as here, the ground of unpatentability is based upon the teachings of a
combination of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981).
Rather, the test for obviousness is whether the combination of references,
taken as a whole, would have suggested the patentee’s invention to a person
having ordinary skill in the art. In re Merck & Co., Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
Here, as discussed above, the Examiner relies on the combined
teachings of Hellerman and Powell. See Non-Final Act. 5–7. As discussed
above, Hellerman teaches, inter alia, generating a usage pattern based on the
Appeal 2019-000918
Application 13/739,986

16
web surfing patterns of users and analyzes these patterns and identifies
common repeated patterns to generate a landing page selection rule (i.e., the
claimed segment). See, e.g., Hellerman ¶¶ 49, 54–55; see also Non-Final
Act. 5–6. In addition, Hellerman teaches receiving a usage pattern of a
visitor and comparing it with the landing page selection rule to select a
particular landing page. See, e.g., Hellerman ¶¶ 47, 64; see also Non-Final
Act. 6. Thus, responsive to determining the usage pattern of the visitor
corresponds to the generated landing page selection rule, a landing page is
selected. The Examiner relies on the teachings of Powell to modify the mere
selection of a landing page with a modified web page. See Non-Final Act. 7;
Ans. 9. The Examiner explains, and we agree:
Powell teaches a visitor (user) and arranging content based on
the user’s previous actions. Powell teaches on a user’s action,
previous history of browsing webpages. Powell is brought in to
teach on the art of webpage modification based on a user's
interest. Hellerman teaches on a pattern matching of previous
users to provide the current user with a landing page (based on a
rule created by pattern matching). It would be obvious to take
the teachings of webpage personalization (adding links) in
Powell with predictable results in Hellerman with landing pages
that are based on a history of user actions.
Ans. 9–10.
Appellant also argues that the Examiner’s proffered motivation to
combine Hellerman and Powell is misplaced “because it is unclear how a
‘complete and personalized web service system’ would be provided by
simply combining Hellerman’s landing page selection rules with a system,
such as that described in Powell.” Appeal Br. 29–30. We disagree.
As explained above, the Examiner explains how Powell’s teaching of
modifying a webpage based on a user’s interest would be incorporated into
Appeal 2019-000918
Application 13/739,986

17
Hellerman’s system. See Ans. 9–10. In addition, the Examiner has set forth
articulated reasoning with rational underpinning in support of the proposed
combination. See Non-Final Act. 7; Ans. 10–11.
Appellant has not provided persuasive argument or evidence that the
proposed combination uses the elements of the references in a way other
than their established functions to achieve predictable results. “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007). Further, Appellant does not
provide persuasive evidence or reasoning that the proposed combination
would be “uniquely challenging or difficult for one of ordinary skill in the
art” or “represented an unobvious step over the prior art.” Leapfrog Enters.
Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR,
550 U.S. at 418–19).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
claim 27 under pre-AIA 35 U.S.C. § 103(a). Appellant advances similar
arguments with respect to independent claims 39 and 43. See Appeal
Br. 30–41. Thus, for similar reasons, we also sustain the Examiner’s
rejection of independent claims 39 and 43. In addition, we sustain the
Examiner’s rejection of claims 28–38, 40–42, and 44–46, which depend
directly or indirectly therefrom and were not argued separately with
particularity. See Appeal Br. 30, 36, and 41; see also 37 C.F.R.
§ 41.37(c)(1)(iv).

Appeal 2019-000918
Application 13/739,986

18
CONCLUSION
We affirm the Examiner’s decision rejecting claims 27–46 under
35 U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 27–46 under pre-
AIA 35 U.S.C. § 103(a).

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
27–46 101 Eligibility 27–46
27–30, 33,
35, 37–46
103(a) Hellerman, Powell 27–30, 33,
35, 37–46

31, 32 103(a) Hellerman, Powell,
Luff
31, 32
34, 36 103(a) Hellerman, Powell,
Hannan
34, 36
Overall
Outcome
27–46

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.
§ 41.50(f).

AFFIRMED