Adobe Inc.

Patent Trials and Appeals Board

Oct 1, 2020

14151300 - (D) (P.T.A.B. Oct. 1, 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.
14/151,300 01/09/2014 Mohit Garg AD01.3641US01 8756
111003 7590 10/01/2020
Adobe / Finch & Maloney PLLC
50 Commercial Street
Manchester, NH 03101
EXAMINER
SYROWIK, MATHEW RICHARD
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
10/01/2020 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):
docketing@finchmaloney.com
nmaloney@finchmaloney.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MOHIT GARG, VINEET GUPTA, PAWAN GOYAL, ANKUR
JAIN, and VIVEK KUMAR
Appeal 2020-003010
Application 14/151,300
Technology Center 3600
Before ROBERT E. NAPPI, ELENI MANTIS MERCADER, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. See Non-Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Adobe Inc.
Appeal Br. 3.
Appeal 2020-003010
Application 14/151,300

2
CLAIMED SUBJECT MATTER
The claims are directed to providing digital content publishing
guidance based on trending emotions. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A computer implemented method, comprising:
receiving, from a user, a first unpublished social
networking post designated for publishing in an online
community;
determining a topic of the first unpublished social
networking post;
determining an emotion associated with the first
unpublished social networking post;
identifying a plurality of trending entities that have
previously been published to the online community;
segmenting the trending entities to further identify a subset
of trending entities that relate to the topic of the first unpublished
social networking post, and that have previously been published
to the online community;
determining a trending emotion within the subset of
trending entities;
establishing a first emotion similarity measure based on a
first initial comparison of (a) the emotion associated with the first
unpublished social networking post and (b) the trending emotion;
generating a recommendation with respect to publication
of the first unpublished social networking post to the online
community based on a subsequent comparison of the first
emotion similarity measure to a pre-established similarity
threshold; and
causing display of the recommendation to the user while
the first unpublished social networking post remains
unpublished.
Appeal Br. 40 (Claims Appendix).
Appeal 2020-003010
Application 14/151,300

3
REJECTIONS
Claims 1–20 stand rejected under 35 U.S.C. § 112(a) as lacking
written description support. Non-Final Act. 5–12.
Claims 1–20 stand rejected under 35 U.S.C. § 112(b) for
indefiniteness. Non-Final Act. 12–13.
Claims 1–20 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to patent-ineligible subject matter. Non-Final
Act. 13–18.
Claims 1, 5–10, 14, 17, and 18 stand rejected under 35 U.S.C. § 103
as unpatentable over the combination of Meijer et al. (US 2010/0082751 A1,
published Apr. 1, 2010) (“Meijer”) and Goeldi (US 2010/0121707 A1,
published May 13, 2010) (“Goeldi”). Non-Final Act. 18–24.
Claims 2, 11–13, 15, and 19 stand rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Meijer, Goeldi, and Chen et al. (US
2013/0066716 A1, published Mar. 14, 2013) (“Chen”). Non-Final Act. 25–
29.
Claims 3 and 16 stand rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Meijer, Goeldi, and Moon et al. (US 8,401,248 B1,
issued Mar. 19, 2013) (“Moon”). Non-Final Act. 29.
Claim 4 stands rejected under 35 U.S.C. § 103 as unpatentable over
the combination of Meijer, Goeldi, Moon, and Oishi et al. (US
2015/0036930 A1, published Feb. 5, 2015) (“Oishi”). Non-Final Act. 30.
Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable over
the combination of Meijer, Goeldi, Chen, Pantel et al. (US 2013/0159219
A1, published June 20, 2013) (“Pantel”), and Oishi. Non-Final Act. 30–37.

Appeal 2020-003010
Application 14/151,300

4
ANALYSIS
Rejection of Claims 1–20 Under 35 U.S.C. § 112(a)
The Examiner rejected claims 1–20 as failing to comply with the
written-description requirement of § 112 because the originally filed
Specification lacks support for the limitations “determining an emotion
associated with the [first] unpublished [social networking] post,”
“segmenting the . . . trending entities to. . . identify,” and “determining a
trending emotion within . . . subset of trending entities.” Non-Final Act. 5–
12. According to the Examiner, with regard to the two limitations that
require determining an emotion, “Appellant’s disclosure fails to disclose
how to determine an emotion associated with purely non-textual posts.” Ans.
5. The Examiner also found the Specification does not disclose “how to
segment photos and videos based on ontological classification,
psychographic classification, or ‘any other suitable segmentation’” (id. at 8)
or “how one would segment such photos and videos as entities” (id. at 9).
Appellant argues that “the Specification expressly discloses
“information extraction . . . using, for instance, optical character recognition
(OCR) and/or other conventional image processing techniques to extract
information captured in . . . photo or video frames.” Reply Br. 3. Appellant
further states that “[i]ndependent Claim 1 is considered representative of
Claims 1-20.” Appeal Br. 7.
“The test for the sufficiency of the written description ‘is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.”’ Vasudevan Software, Inc, v. MicroStrategy, Inc., 782 F.3d
Appeal 2020-003010
Application 14/151,300

5
671, 682 (Fed. Cir. 2015) (citing Ariad Pharms., Inc, v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)).
Appellant has persuaded us that the Examiner erred. The Specification
reasonably conveys to those skilled in the art that the disclosed techniques
can be used to process both textual entities as well as entities that, on their
own, lack textual information. See Reply Br. 3 (citing Spec. ¶ 35). We are
persuaded that, at the time of the invention, the inventors possessed
techniques for determining an emotion associated with purely non-textual
posts and trending entities. We are also persuaded that, at the time of the
invention, the inventors possessed techniques for segmenting trending
entities using conventional image processing techniques to extract
information captured in photo or video frames. Id. at 4 (citing Spec. ¶ 35);
Appeal Br. 13 (citing Spec. ¶ 40).
For these reasons, on the record before us, we are persuaded the
Examiner erred, and we reverse the written description rejection under
35 U.S.C. § 112 (a) of claim 1 and grouped claims 2–20.

Rejection of Claims 1–20 Under 35 U.S.C. § 112(b)
The Examiner rejected claims 1–20 as indefinite for failing to
particularly point out and distinctly claim the subject matter which the
inventor or a joint inventor regards as the invention. Non-Final Act. 12.
According to the Examiner, “it is unclear as to what the phrase ‘determining
an emotion associated with the first unpublished ... post’ means in the
context of each independent claim receiving the ‘first unpublished ... post’
from a user. Id. In the Examiner’s view, “a question of law exists regarding
whether an emotion can be determined from an unpublished post received
Appeal 2020-003010
Application 14/151,300

6
from a user when the user chooses not to include any indicia (words)
associated with an emotion, such as when an unpublished post is purely
factual.” Id.
Appellant argues that the Specification describes multiple analytical
techniques for “determining an emotion,” and clarifies how to determine an
emotion of an unpublished social networking post. Reply Br. 5 (citing Spec.
¶ 36). With regard to a post that is devoid of emotion, Appellant argues that
such post can be represented by an emotion vector comprising a plurality of
bits, each indicating zero emotion associated with the designated emotions
of the given emotion model. Id.
The PTAB applies the indefiniteness test approved by In re Packard,
751 F.3d 1307 (Fed. Cir. 2014) (per curiam): “[a] claim is indefinite when it
contains words or phrases whose meaning is unclear,” and “claims are
required to be cast in clear–as opposed to ambiguous, vague, indefinite–
terms.” See Packard, 751 F.3d at 1310, 1313.
[W]hen the USPTO has initially issued a well-grounded
rejection that identifies ways in which language in a claim is
ambiguous, vague, incoherent, opaque, or otherwise unclear in
describing and defining the claimed invention, and thereafter
the applicant fails to provide a satisfactory response, the
USPTO can properly reject the claim as failing to meet the
statutory requirements of § 112(b).
Packard, 751 F.3d at 1311.
We agree with Appellant that the Examiner has not identified ways
that the language in representative claim 1 is ambiguous, vague, incoherent,
opaque, or otherwise unclear in describing and defining the claimed
invention. Appellant has persuaded us that making the determination that a
post is devoid of emotion is still “determining an emotion” of the post. See
Appeal 2020-003010
Application 14/151,300

7
Appeal Br. 17. We agree with Appellant that an ordinarily-skilled artisan
would have understood how to make a determination, using the specific
techniques disclosed in the Specification, that a post contains no emotion.
See Reply Br. 6.
For these reasons, on the record before us, we are persuaded the
Examiner erred, and we reverse the indefiniteness rejection under 35 U.S.C.
§ 112 (b) of independent claim 1 and grouped claims 2–20.

Rejection of Claims 1–20 Under 35 U.S.C. § 101
Appellant argues that the Examiner’s rejection of claim 1 under
35 U.S.C. § 101 as directed to patent-ineligible subject matter is in error. To
the extent Appellant has not advanced separate, substantive arguments for
particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv). Appellant argues claims 1–20 as a group, and designates
claim 1 as representative of the group. Appeal Br. 20. Thus, we decide the
§ 101 rejection of claims 1–20 based on representative claim 1.
Principles of Law
“Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n, 601
F.3d 1319, 1331 (Fed. Cir. 2010).
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
Appeal 2020-003010
Application 14/151,300

8
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See Alice, 573 U.S. at
219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
Appeal 2020-003010
Application 14/151,300

9
attempt to patent a mathematical formula.”). Having said that, the Court also
indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second part
of the Alice and Mayo framework, where “we must examine the elements of
the claim to determine whether it contains an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (quotation marks omitted). “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.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019),
incorporated in the Manual of Patent Examination Procedure (“MPEP”) in
sections 2103 through 2106.07(c) (“2019 Revised Guidance”).2

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
Appeal 2020-003010
Application 14/151,300

10
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).3
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
2019 Revised Guidance, 84 Fed. Reg. at 52–56; MPEP § 2106.04.

2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
3 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
Appeal 2020-003010
Application 14/151,300

11
Prima Facie Case
Appellant argues that the Examiner failed to make a prima facie case
of subject matter ineligibility by overgeneralizing and ignoring certain claim
elements. Appeal Br. 22.
We disagree. The procedural burden of establishing a prima facie case
is carried when the rejection satisfies the requirements of 35 U.S.C. § 132. In
re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). “Section 132 is violated
when a rejection is so uninformative that it prevents the applicant from
recognizing and seeking to counter the grounds for rejection.” Chester v.
Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990). That is, the Examiner must set
forth the rejection's statutory basis “in a sufficiently articulate and
informative manner as to meet the notice requirement of § 132.” Jung, 637
F.3d at 1363.
This is not a case where the “rejection is so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection.” Id. at 1362. Rather, the Examiner has provided a rationale that
identifies the abstract idea recited in the claim and why it is considered an
exception. See Non-Final Act. 13–18. And Appellant clearly identifies the
abstract idea identified by the Examiner. See, e.g., Appeal Br. 22.
Accordingly, we are not persuaded that the Examiner has failed to set
forth a prima facie case of patent ineligibility for representative claim 1.
Step 1
Claim 1, as a method claim, falls within the process category of
§ 101. See Office Guidance, 84 Fed. Reg. at 53–54 (citing MPEP
§§ 2106.03, 2106.06).
Appeal 2020-003010
Application 14/151,300

12
Step 2A(i): Does the Claim Recite a Judicial Exception?
The Examiner determined that claim 1 recites providing a user with
guidance or a recommendation for marketing purposes based on expressed
human/user emotions and, therefore, claim 1 recites a certain method of
organizing human activity. Non-Final Act. 14.
The Examiner identified all of the recited steps as part of the abstract
idea, except steps of “receiving” and “causing display, a memory device,
and a processor that is operatively coupled to the memory device, wherein
the processor is configured to execute instructions stored in the memory
device (Claims 14–19), and a non-transient computer program product
encoded with instructions executable by one or more processors to cause a
process to be carried out (Claim 20).” Id.
Consistent with Appellant’s description of the claims (Spec. ¶¶ 15–
20), we find that the limitations identified by the Examiner as abstract
describe marketing activities that are fairly characterized as commercial
interactions, which fall into the “certain methods of organizing human
activity” category of abstract ideas. See 84 Fed. Reg. at 52.
Claim 1 also recites steps that can be performed in the human mind or
with pen and paper. See Ans. 13–14. The 2019 Revised Guidance explains
that “mental processes” include acts that people can perform in their minds
or using pen and paper, even if the claim recites that a generic computer
component performs the acts. See Guidance, 84 Fed. Reg. at 52 n.14 (“If a
claim, under its broadest reasonable interpretation, covers performance in
the mind but for the recitation of generic computer components, then it is
still in the mental processes category unless the claim cannot practically be
performed in the mind.”); see also Intellectual Ventures I LLC v. Symantec
Appeal 2020-003010
Application 14/151,300

13
Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the exception of
generic computer-implemented steps, there is nothing in the claims
themselves that foreclose them from being performed by a human, mentally
or with pen and paper.”), quoted in 2019 Revised Guidance, 84 Fed. Reg. at
52 n.14.
In particular, under the 2019 Revised Guidance, mental processes
include concepts performed in the human mind or practically with pen and
paper. See 2019 Revised Guidance. Mental processes include observations,
evaluations, judgments, and opinions. Here, the “determining” steps recite at
a high level what is determined, but do not recite how the determinations are
made. Thus, the “determining” steps are broad enough to encompass mental
processes such as observations, evaluations, judgments, and opinions.
Similarly, “identifying a plurality of trending entities” involves observation,
evaluation, judgment, and/or opinions. The “segmenting” step recites at a
high level what is segmented, but does not recite how the segmenting is
achieved. Thus, the “segmenting” step is broad enough to encompass mental
processes such as observations, evaluations, judgments, and opinions.
“Establishing a first emotion similarity measure” and “generating a
recommendation” are also broad enough to encompass mental processes
such as observations, evaluations, judgments, and opinions.
Because we agree with the Examiner that the claim recites an abstract
idea, we proceed to Prong Two of Step 2A to determine if the idea is
integrated into a practical application, in which case the claim as a whole
would not be “directed to” merely an abstract idea.
Appeal 2020-003010
Application 14/151,300

14
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
We next determine whether the recited judicial exception is integrated
into a practical application of the exception by: (a) identifying whether there
are any additional elements recited in the claim beyond the judicial
exception(s); and (b) evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application.
We use the term “additional elements” for claim features, limitations,
or steps that the claim recites beyond the identified judicial exception. See
Revised Guidance at 55 n.24. In claim 1, the additional elements include the
“computer” recited in the preamble, the “receiving” step, and the “causing
display” step.
To integrate the exception into a practical application, the additional
claim elements must, for example, improve the functioning of a computer or
any other technology or technical field (see MPEP § 2106.05(a)), apply the
judicial exception with a particular machine (see MPEP § 2106.05(b)), affect
a transformation or reduction of a particular article to a different state or
thing (see MPEP § 2106.05(c)), or apply or use the judicial exception in
some other meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment (see MPEP
§ 2106.05(e)). See 2019 Revised Guidance.
The Examiner determined that none of the additional limitations is
sufficient to amount to significantly more than the judicial exception. Non-
Final Act 14. The Examiner determined that Appellant’s Specification
describes that “computing systems can be implemented with any typical
computing technology” and, therefore, the recited “computer” is not an
Appeal 2020-003010
Application 14/151,300

15
additional element sufficient to amount to “significantly more” than the
abstract idea. Ans. 14–15 (citing Spec. ¶ 23). The Examiner also determined
that the “receiving” and “causing display” steps do not integrate the abstract
mental processes into a practical application. See Ans. 12.
Appellant argues that “causing display of the recommendation to the
user while the first unpublished social networking post remains
unpublished” reflects an improvement in the functioning of a computer, or
an improvement to other technology or a technical field. Appeal Br. 24;
Reply Br. 7.
Appellant’s argument is not persuasive. The additional element
directed to causing display of a recommendation to the user while the first
unpublished social networking post remains unpublished amounts to
insignificant extra-solution activity. See 2019 Revised Guidance, 84 Fed.
Reg. 55 (citing MPEP § 2106.05(g)); see also Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1354–55 (Fed. Cir. 2016) (“merely presenting
the results of abstract processes of collecting and analyzing information,
without more . . . is abstract as an ancillary part of such collection and
analysis.”). The recited “causing display” step may be also be viewed as
insignificant extra-solution activity because no further details are recited
regarding how the display of the recommendation is caused. Moreover, the
improvement that Appellant describes is to the abstract idea, not to a
computer or other technology. See Ans. 13; Appeal Br. 25 (“[T]his provides
the author of the post with insight into how well the emotion of the
unpublished post matches the emotion within the community to which the
post may be published. This emotionally-tailored insight helps the publisher
connect with and/or otherwise impact the target audience.”)
Appeal 2020-003010
Application 14/151,300

16
Appellant’s claim 1 is unlike the technology-based integrations cited
by Appellant. See id. For example, in McRO, the patent-eligible claim
focused on a specific asserted improvement in computer animation. McRO,
Inc, v. Bandai Namco Games Am., 837 F.3d 1299 (Fed. Cir. 2016). The
claims in McRO recited a “specific . . . improvement in computer animation”
using “unconventional rules that relate[d] sub sequences of phonemes,
timings, and morph weight sets.” McRO, 837 F.3d at 1302–03, 1307–08,
1314–15. In McRO, “the incorporation of the claimed rules, not the use of
the computer,” improved an existing technological process. Id. at 1314.
Appellant does not direct us to any evidence that the claimed steps
correspond to unconventional rules. Nor does Appellant identify how claim
1 improves an existing technological process. See Alice, 134 S. Ct. at 2358
(explaining that “the claims in Diehr were patent eligible because they
improved an existing technological process”). Rather, claim 1 concerns a
“computer implemented method” for generating a recommendation with
respect to publication of a social networking post. Appeal Br. 23.
Appellant’s further argument that “[c]laim 1 describes a specific way
of providing content publication guidance” is not persuasive. See Appeal Br.
25 (citing McRO, 837 F.3d at 1315). Here, instead of incorporating specific,
limited rules or reciting particular, specific ways of displaying information,
claim 1 recites a series of broadly worded, result-oriented functions without
meaningfully limiting how the claimed invention performs those functions.
Considering claim 1 as a whole, then, Appellant’s invention lacks a
technical solution to a technical problem like the claims in McRO. Claim 1
as a whole merely uses instructions to implement the abstract idea on a
computer or, alternatively, merely uses a computer as a tool to perform the
Appeal 2020-003010
Application 14/151,300

17
abstract idea. Here, the additional limitation(s) do not integrate the judicial
exception into a practical application. More particularly, claim 1 does not
recite (i) an improvement to the functionality of a computer or other
technology or technical field; (ii) a “particular machine” to apply or use the
judicial exception; (iii) a particular transformation of an article to a different
thing or state; or (iv) any other meaningful limitation. See 84 Fed. Reg. at
55. Rather, claim 1 recites an abstract ideas as identified in Step 2A(i),
supra, and none of the limitations integrates the judicial exception into a
practical application.
Therefore, because the abstract idea is not integrated into a practical
application, we conclude that the claim is directed to the judicial exception.
Step 2B — “Inventive Concept” or “Significantly More”
If a claim is directed to a patent-ineligible concept, as we conclude
above, we proceed to the “inventive concept” step. For Step 2B we must
“look with more specificity at what the claim elements add, in order to
determine ‘whether they identify an “inventive concept” in the application of
the ineligible subject matter’ to which the claim is directed.” Affinity Labs of
Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016)
(quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir.
2016)). We look to see whether there are any “additional features” in the
claims that constitute an “inventive concept,” thereby rendering the claims
eligible for patenting even if they are directed to an abstract idea. Alice, 573
U.S. at 221. Those “additional features” must be more than “well-
understood, routine, conventional activity.” Mayo, 566 U.S. at 79.
The Examiner determined that the additional elements in claim 1 are
well-understood, routine, and conventional. For example, the Examiner
Appeal 2020-003010
Application 14/151,300

18
found that “receiving or transmitting data over a network, e.g., using the
Internet to gather data” has been recognized as well-understood, routine, and
conventional functions. Ans. 14.
We agree with the Examiner. Courts have held the receipt and display
of data, as recited in particular claims, to be steps that are well-understood,
routine, and conventional functions of a general purpose computer. See
MPEP § 2106(d) (citing Versata, 793 F.3d at 1334 and OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015)) (supporting that
courts have recognized the computer functions of storing and retrieving
information in memory as well-understood, routine, and conventional
functions of a computer); see also, e.g., Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (“[T]he claims’ invocation of
computers, networks, and displays does not transform the claimed subject
matter into patent-eligible applications. The claims at issue do not require
any nonconventional computer, network, or display components, or even a
‘non-conventional and non-generic arrangement of known, conventional
pieces,’ but merely call for performance of the claimed information
collection, analysis, and display functions ‘on a set of generic computer
components' and display devices. Bascom [Global Internet Servs., Inc. v.
AT&T Mobility, LLC], 827 F.3d [1341,] 1349-52 [Fed. Cir. 2016].”).
Thus, providing the would-be publisher/user with a recommendation
(see Spec. ¶ 24) is well-understood, routine, and conventional. While the
Specification describes the layout of information on a display (see Spec. Fig.
6b, ¶ 46), it provides no detail describing the technical manner in which the
recommendation is displayed. Because the Specification lacks any technical
details as to how such information is displayed, the Specification makes
Appeal 2020-003010
Application 14/151,300

19
clear that “causing display” of information, as recited in claim 1, is
conventional.
Appellant does not direct our attention to anything in the Specification
that indicates the computer components perform anything other than well-
understood, routine, and conventional functions, such as receiving data,
looking up data in a database, attempting to execute commands, and storing
data in a database. See 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”);
In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 614 (Fed. Cir. 2016)
(server that receives data, extracts classification information from the
received data, and stores the digital images insufficient to add an inventive
concept); Alice, 573 U.S. at 225–26 (receiving, storing, sending information
over networks insufficient to add an inventive concept).
Because the Specification describes the additional elements in general
terms, without describing the particulars, we conclude the claim limitations
may be broadly but reasonably construed as reciting conventional computer
components and techniques, particularly in light of Appellant’s’
Specification, as cited above. See Berkheimer Memo4 § III.A.1; Spec. ¶¶ 24–
46. We conclude claim 1 does not have an inventive concept because the

4 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.)” at 3 (Apr. 19, 2018) (explaining that a specification that describes
additional elements “in a manner that indicates that the additional elements
are sufficiently well-known that the specification does not need to describe
the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can
show that the elements are well understood, routine, and conventional).
Appeal 2020-003010
Application 14/151,300

20
claim, in essence, merely recites various computer-based elements along
with no more than mere instructions to implement the identified abstract idea
using the computer-based elements.
Because the claims are directed to an abstract idea, without
significantly more, we sustain the Examiner's § 101 rejection of independent
claim 1 and grouped claims 2–20, not argued separately with particularity.

Rejection of Claims 1–20 Under 35 U.S.C. § 103
We have reviewed the § 103 rejections of claims 1–20 in light of
Appellant’s arguments that the Examiner erred. We have considered in this
decision only those arguments Appellant actually raised in the Briefs. Any
other arguments Appellant could have made, but chose not to make, in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant’s arguments
are not persuasive of error. We agree with and adopt as our own the
Examiner’s findings of facts and conclusions as set forth in the Answer and
in the Action from which this appeal was taken. We provide the following
explanation for emphasis.
Claims 1–19
Appellant contends the cited portions of Meijer and Goeldi do not
teach or suggest segmenting trending entities, as recited in representative
claim 1. Appeal Br. 30. In particular, Appellant argues that Goeldi does not
teach segmenting trending entities to identify a subset of trending entities
“that relate to the topic of the first unpublished social networking post,” as
claim 1 requires. Id. at 32.
We are not persuaded that the Examiner erred. Appellant attacks
Goeldi individually, even though the Examiner relied on the combination of
Appeal 2020-003010
Application 14/151,300

21
Meijer and Goeldi in rejecting claim 1. In re Mouttet, 686 F.3d 1322, 1332
(Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)) (“The
test for obviousness is what the combined teachings of the references would
have suggested to those having ordinary skill in the art.”). The test for
obviousness is not whether the claimed invention is expressly suggested in
any one or all of the references, but whether the claimed subject matter
would have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981).
Here, the Examiner found that Meijer teaches a first unpublished
social networking post. Non-Final Act. 18 (citing Meijer ¶ 7 (“Message
compilation can be analyzed as a user enters text or other data into a
message.”)). The Examiner also found that Meijer teaches determining a
topic of, and an emotion associated with, the first unpublished social
networking post. Id. at 19 (citing Meijer ¶¶ 7, 31, 59–63, and 75)). The
Examiner relied on Goeldi as teaching segmenting the trending entities to
identify a subset of trending entities that relate to a topic of interest and that
have previously been published to the online community. Non-Final Act. 21
(citing Goeldi ¶¶ 50, 68, 73, 82); Ans. 16.
Appellant has not addressed the combined teachings of Meijer and
Goeldi. See Appeal Br. 32. Appellant, therefore, has not persuaded us that it
would not have been obvious to an artisan of ordinary skill to incorporate the
posted-message techniques for segmenting, taught in Goeldi, for use in
monitoring and analyzing unpublished messages, as taught in Meijer. See
Non-Final Act. 22. Moreover, the Examiner provided “articulated reasoning
with some rational underpinning to support the legal conclusion of
Appeal 2020-003010
Application 14/151,300

22
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006); Non-Final
Act. 22.
Accordingly, we sustain the Examiner’s § 103 rejection of
independent claim 1, as well as the Examiner’s § 103 rejection of claims 5–
10, 14, 17, and 18, argued as a group with claim 1. See Appeal Br. 29. We
also sustain the Examiner’s § 103 rejections of claims 2–4, 11–13, 15, 16,
and 19, which Appellant argues are patentable for the same reasons
discussed above for claim 1. See id. at 33–34.
Claim 20
Appellant argues that Pantel does not teach or suggest determining an
emotion associated with an unpublished post, as recited in independent claim
20. Appeal Br. 36. In Appellant’s view, “[t]he fact that Pantel uses feature
vectors to represent microblog posts does not constitute a teaching to
determine the emotion of an unpublished post based on the particular
distance measurements that are defined” in claim 20. Id. at 37.
We are persuaded that the Examiner erred. Nowhere has the Examiner
clearly identified where the prior art teaches or suggests “determining a
trending emotion within the subset of trending entities by (a) measuring a
distance between (i) each of the trending entities in the subset, and (ii) each
of the n primary emotions,” as recited in claim 20. See Appeal Br. 38. The
Examiner found that paragraphs 28, 49, and 57 of Pantel teach the disputed
limitation. Ans. 18. Although the Examiner explained Pantel’s teachings, the
Examiner did not clearly map those teachings to the disputed limitation. See
id.
Based on the record before us, we find that the Examiner has not
properly established factual determinations and articulated reasoning with a
Appeal 2020-003010
Application 14/151,300

23
rational underpinning to support the legal conclusion of obviousness for
claim 20. Because we find it dispositive that the Examiner has not shown by
a preponderance of evidence that the cited prior art teaches or reasonably
suggests the disputed “determining a trending emotion” limitation, we do not
address other issues raised by Appellant’s arguments related to these claims.
See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984)
(finding an administrative agency is at liberty to reach a decision based on “a
single dispositive issue”).
Accordingly, we do not sustain the Examiner’s § 103 rejection of
independent claim 20.
DECISION
We affirm the Examiner’s decision rejecting claims 1–20. Because we
affirm at least one ground of rejection with respect to each claim on appeal,
the Examiner's decision rejecting claims 1–20 is affirmed. See 37 C.F.R.
§ 41.50(a)(1).
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 112(a) Lack of Written
Description
1–20
1–20 112(b) Indefiniteness 1–20
1–20 101 Eligibility 1–20
1, 5–10, 14,
17, 18
103 Meijer, Goeldi 1, 5–10,
14, 17, 18

2, 11–13,
15, 19
103 Meijer, Goeldi, Chen 2, 11–13,
15, 19

3, 16 103 Meijer, Goeldi, Moon 3, 16
4 103 Meijer, Goeldi, Moon,
Oishi
4
Appeal 2020-003010
Application 14/151,300

24
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
20 103 Meijer, Goeldi, Chen,
Pantel, Oishi
20
Overall
Outcome:
1–20 1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED