Adobe Inc.Download PDFPatent Trials and Appeals BoardApr 7, 202013739986 - (D) (P.T.A.B. Apr. 7, 2020) Copy Citation 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 Copy with citationCopy as parenthetical citation