Adobe Inc.

Patent Trials and Appeals Board

Apr 17, 2020

14047503 - (D) (P.T.A.B. Apr. 17, 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.
14/047,503 10/07/2013 Alexander Klimetschek 058083-0877048
(3228US01)
5070
72058 7590 04/17/2020
Kilpatrick Townsend & Stockton LLP/Adobe
Adobe Systems, Inc. 58083
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
EXAMINER
JESSEN, DEREK
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
04/17/2020 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte ALEXANDER KLIMETSCHEK,
ALEXANDRU ROBERT MUNTEANU, and LARS TRIELOFF1
Appeal 2019-000831
Application 14/047,503
Technology Center 3600
Before DONALD E. ADAMS, ERIC B. GRIMES, and
RYAN H. FLAX, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
“method for modifying, targeting, and testing website components,” which
have been rejected as obvious and ineligible for patenting. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Appellant identifies the real party in interest as Adobe Systems
Incorporated. Appeal Br. 4. We use the word Appellant to refer to
“applicant” as defined in 37 C.F.R. § 1.42(a).
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STATEMENT OF THE CASE
“In order to operate commercial web sites successfully, it is desirable
to measure and track the ways visitors interact with the web site, so that
metrics such as usability, effectiveness and conversion rate of the web site
can be analyzed.” Spec. ¶ 2. To do so, “two separate systems are typically
employed: a web content management system, and a targeting system.” Id.
“Existing content management and targeting systems are external with
respect to each other and are not completely integrated, forcing content
authors to use multiple applications instead of a unified user interface.” Id.
¶ 3.
The Specification discloses “[c]omputer-implemented systems and
methods for testing and targeting a web site component directly in a user
interface (UI) of a content management system.” Id. ¶ 7. “Such systems and
methods may facilitate content authors being able to dynamically switch
between and preview different variants of a component, such as, for
example, an image banner on a web page, . . . add new variants for new
target audiences, and to change or remove existing components.” Id.
Variants of a website component are also referred to as “instances” of a
component. See id. ¶ 17.
Claims 1–3, 5–19, and 21–23 are on appeal. Claim 1, reproduced
below, is illustrative:
1. A computer-implemented method for modifying,
targeting, and testing website components, the method
comprising:
receiving, at a content editing device, an indication of an
on-line promotional campaign including a website component
and multiple instances of the website component, wherein:
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the website component comprises events and properties
mapped to corresponding data elements to be tracked by an
analytics service device and further comprises a template for
the multiple instances, and each instance of the multiple
instances is associated with targeting rules and digital assets;
displaying, in a user interface (UI) of the content editing
device, visual indications of the multiple instances of the
website component, wherein:
the UI is configured to receive input specifying
modifications to one or more of the website component, the
associated digital assets, or the associated targeting rules, and
the UI is further configured to display analytic
information associated with one or more of the multiple
instances;
receiving, via the UI, the input specifying
modifications to one or more of the website component, the
associated targeting rules, or the associated digital assets;
synchronizing, by a content synchronization service on
the content editing device, the modifications to multiple remote
computing devices responsive to receiving the input, wherein
the synchronization includes:
providing, by the content editing device and to a first
computing device hosting a live platform, website content
comprising the on-line promotional campaign and the website
component, wherein the website content is configured to send
analytics data measuring visitor interactions with the mapped
events and properties of the website component to the analytics
service device during use of the website content, and
providing the website content to a second
computing device hosting a test-and-target service, the test-and-
target service being configured to display the website content
and simulate the on-line promotional campaign and visitor
interactions with the website component; and
displaying, in the UI, at least a portion of the analytic
data, the analytics data indicating a performance of the website
content provided to the first computing device.
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Claims 17 and 21 are the other independent claims. Claim 17 is
directed to a system and claim 21 is directed to a computer readable storage
medium, but both claims also recite the limitations of claim 1, as instructions
for a processor or computing device.
The claims stand rejected as follows:
Claims 1–3, 5–19, and 21–23 under 35 U.S.C. § 101 as being directed
to non-statutory subject matter (Final Action2 2) and
Claims 1–3, 5–19, and 21–23 under 35 U.S.C. § 103 as obvious in
view of Javangula,3 Hansen,4 and O’Malley5 (Final Action 7).
OPINION
Patent Eligibility
Claims 1–3, 5–19, and 21–23 stand rejected under 35 U.S.C. § 101.
The Examiner finds that claim 1 is “directed toward a method of
determining a value for a user interaction with a content item.” Final Action
2. The Examiner thus finds that “the claim appears to be directed toward a
judicial exception, namely the abstract idea of collecting information,
analyzing it and displaying certain results of the collection and analysis.” Id.,
citing Electric Power Group, LLC v. Alstom SA, 830 F.3d 1350 (Fed. Cir.
2016). More specifically, “the claims are directed toward a method of
modifying, targeting and testing advertisement components for display

2 Office Action mailed Dec. 4, 2017.
3 Javangula et al., US 2011/0119125 A1, published May 19, 2011.
4 Hansen, US 2008/0275980 A1, published Nov. 6, 2008.
5 O’Malley et al., US 2011/0213657 A1, published Sept. 1, 2011.
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which has been found by the court[] in Electric Power Group to be an
abstract idea.” Final Action 4.
The Examiner also finds that “[t]he claim recites the additional
limitations of a computing device and live platform that perform the online
generic functions of displaying and executing instructions and website
components that are content.” Id. at 5. The Examiner concludes that these
additional elements are merely generic computer components performing
generic computer functions, and therefore do not provide significantly more
than the abstract idea. Id.
Appellant argues that the Examiner has overgeneralized the claims,
which are actually directed to “synchronizing modifications to both a live
platform and a test-and-target service that simulates visitor interactions.”
Appeal Br. 12. Appellant argues that, “rather than being directed to an
abstract idea, the claims describe a patent-eligible improvement of a user
interface for electronic devices.” Id. at 14. Appellant argues that “no cited
court decision, including Electric Power Group, establishes that
synchronizing content across multiple computing devices that are configured
to perform different operations (e.g., a live platform, a test-and-target
service) is an abstract idea.” Id. at 15–16.
Appellant argues that, instead, the claims are similar to those that
were held to be patent-eligible in Core Wireless Licensing S.A.R.L v. LG
Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018). Id. at 17–18. Appellant argues
that, “[l]ike Core Wireless, the claimed invention improves a user interface
that is used in electronic devices.” Id. at 19. Appellant concludes that “all
pending claims are patent-eligible at least because they are directed to the
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same type of technical improvement that the Federal Circuit recognized as
patent-eligible in Core Wireless.” Id. at 20.
Principles of Law
A. Section 101
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219
(“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
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,
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such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.” Diehr,
450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court also
indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
“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,
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566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. See 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”).6 “All USPTO personnel are, as a matter of internal
agency management, expected to follow the guidance.” Id. at 51; see also
October 2019 Update at 1.
Under the 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”).7

6 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the Revised Guidance. USPTO,
October 2019 Update: Subject Matter Eligibility (the “October 2019
Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
7 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
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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.
Revised Guidance, 84 Fed. Reg. at 52–56.
Revised Guidance Step 2(A), Prong 1
Following the Revised Guidance, we first consider whether the claims
recite a judicial exception. Claim 1 recites “receiving, at a content editing
device, an indication of an on-line promotional campaign including a
website component and multiple instances of the website component.”
The Revised Guidance identifies three groupings of subject matter,
including “[c]ertain methods of organizing human activity,” such as
“commercial or legal interactions(including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations).” 84 Fed. Reg. at 52 (emphasis added).
Here, the step of “receiving, at a content editing device, an indication
of an on-line promotional campaign” recites marketing activity, because an
effort to influence people’s opinions can be referred to as either a

practical application. See Revised Guidance - Section III(A)(2), 84 Fed. Reg.
54–55.
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promotional campaign or a marketing campaign. See Spec. ¶ 8 (“assets for a
promotional or marketing campaign”). Thus, we agree with the Examiner
that claim 1 recites an abstract idea.
Revised Guidance Step 2(A), Prong 2
Although claim 1 recites an abstract idea, it would still be patent-
eligible if “the claim as a whole integrates the recited judicial exception into
a practical application of the exception.” 84 Fed. Reg. at 53. “A claim that
integrates a judicial exception into a practical application will apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception.” Id. The analysis of whether the claim integrates the
judicial exception into a practical application includes “[i]dentifying whether
there are any additional elements recited in the claim beyond the judicial
exception(s)” and “evaluating those additional elements individually and in
combination to determine whether they integrate the exception into a
practical application.” Id. at 54–55.
The exemplary considerations indicating that an additional element
may integrate an exception into a practical application include “[a]n
additional element [that] reflects an improvement in the functioning of a
computer, or an improvement to other technology or technical field.” Id. at
55. However, “[a]n additional element . . . [that] merely includes instructions
to implement an abstract idea on a computer, or merely uses a computer as a
tool to perform an abstract idea” is an indication that “a judicial exception
has not been integrated into a practical application.” Id.
Here, claim 1 recites a user interface (UI) that is configured both to
“receive input specifying modifications to one or more of the website
component, the associated digital assets, or the associated targeting rules”
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and to “display analytic information associated with one or more of the
multiple instances.” Claim 1 also recites synchronizing the provision of a
modified website component to “a first computing device hosting a live
platform” and to “a second computing device hosting a test-and-target
service, the test-and-target service being configured to display the website
content and simulate the on-line promotional campaign and visitor
interactions with the website component.” Finally, claim 1 recites
“displaying, in the UI, at least a portion of the analytic data, the analytics
data indicating a performance of the website content provided to the first
computing device.”
The Specification states that the claimed method improves the
systems used to create, modify, and evaluate website content. Specifically,
“[e]xisting content management and targeting systems are external with
respect to each other and are not completely integrated, forcing content
authors to use multiple applications instead of a unified user interface.”
Spec. ¶ 3. By contrast, the claimed “systems and methods provide these
features in a unified authoring UI so that content authors are not required to
leave the authoring UI in order to modify, target, preview, add, and remove
components.” Id. ¶ 7.
The Specification also states:
Analytics data for live, published electronic content associated
with marketing and promotional campaigns can be displayed in
a test and targeting environment so that a content author can
readily evaluate measurements of effectiveness of targeted
components. The time needed to create, target, test and publish
components, as well as the time needed to track complex web
sites may also be reduced significantly.
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Id. ¶ 15. In addition, by using a unified interface, “because testing, targeting
and measuring of web site components can be done mostly visually in an
integrated environment, the level of technical expertise needed, and the
reliance on generally overloaded software engineers in large organizations
and companies, may be greatly reduced.” Id.
We agree with Appellant that the facts of this case make it similar to
Core Wireless, where the invention concerned “improved display interfaces,
particularly for electronic devices with small screens like mobile
telephones.” Core Wireless, 880 F.3d at 1359. Specifically, “[a]n application
summary window displays ‘a limited list of common functions and
commonly accessed stored data.’” Id. “The application summary window
can be reached in two steps: ‘first, launch a main view which shows various
applications; then, launch the appropriate summary window for the
application of interest.’” Id. This method was disclosed to be “‘far faster and
easier than conventional navigation approaches,’ particularly for devices
with small screens.” Id.
The court held that “[t]he asserted claims in this case are directed to
an improved user interface for computing devices, not to the abstract idea of
an index. . . . [T]hese claims are directed to a particular manner of
summarizing and presenting information in electronic devices.” Id. at 1362.
The court pointed out that the claims “specif[ied] a particular manner by
which the summary window must be accessed”; i.e., directly from the menu.
Id. The claim also “restrain[ed] the type of data that can be displayed in the
summary window.” Id. at 1362–63. “Finally, the claim recites that the
summary window ‘is displayed while the one or more applications are in an
un-launched state,’ a requirement that the device applications exist in a
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particular state.” Id. at 1363. The court concluded that “these claims recite a
specific improvement over prior systems, resulting in an improved user
interface for electronic devices.” Id.
Similarly, instant claim 1 requires using a single user interface (UI)
for modifying, targeting, and evaluating website components; i.e., a
particular manner of carrying out these processes. Claim 1 also requires
synchronizing the provision of modified content to both a live platform and
a test-and-target service for simulating a campaign and visitor interactions.
This requires that the website component in a particular (i.e., modified) state
is provided at the same time to two different devices carrying out different
functions with that same website component.
The Specification states that these specific features of the claims
provide specific advantages over conventional systems, by reducing both the
time and the technical expertise needed to create, target, test, and publish
website components. Like the claims in Core Wireless, the claims here are
not directed to the abstract idea of “modifying, targeting and testing
advertisement components for display” (Final Action 4), but rather to a
specific improvement in the technical process of modifying and evaluating
components for use in a website.
Therefore, the claims are not directed to an abstract idea. We reverse
the rejection of claims 1–3, 5–19, and 21–23 under 35 U.S.C. § 101.
Obviousness
Claims 1–3, 5–19, and 21–23 stand rejected as obvious based on
Javangula, Hansen, and O’Malley. The Examiner finds that Javangula
teaches most, but not all, of the limitations of claim 1. Final Action 7–12.
However, the Examiner finds that Hansen or O’Malley teach the limitations
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that are missing from Javangula, and concludes that it would have been
obvious to a person of ordinary skill in the art to combine them in the
manner claimed. See id.
In part, the Examiner finds:
Javangula fails to expressly teach the following feature which is
taught by Hansen (Hansen: para. 57–59):
providing the website content to a second computing device
hosting a test-and-target service, the test-and-target service
configured to display the website content and simulate the on-
line promotional campaign and visitor interactions with the
website component (Hansen: para. 57–59); and
displaying, in the UI, at least a portion of the analytic data, the
analytics data indicating a performance of the website content
provided to the first computing device (Hansen: para. 57–59).
Id. at 12.
Appellant argues, among other things, that “Hansen . . . fails to
disclose or suggest a test-and-target service configured to simulate visitor
interactions with a website component, as required by claims 1, 17, and 21.”
Appeal Br. 28–29. Appellant argues that “Hansen appears to disclose that
advertising campaigns are tested on live users. This disclosure of testing
campaigns on live users is different from simulating an on-line
promotional campaign, as required by the independent claims.” Id. at 29.
Appellant argues, therefore, that the cited reference fail to disclose all of the
limitations of the claims. Id.
We agree with Appellant that the Examiner has not established a
prima facie case of obviousness. “An examiner bears the initial burden of
presenting a prima facie case of obviousness.” In re Huai-Hung Kao, 639
F.3d 1057, 1066 (Fed. Cir. 2011).
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Here, the disputed limitation is “providing the website content to a
second computing device hosting a test-and-target service, the test-and-
target service being configured to display the website content and simulate
the on-line promotional campaign and visitor interactions with the website
component.” Claim 1. The Examiner finds that this limitation is disclosed by
Hansen, in the paragraphs that read:
The web server website operator creates test campaigns
to measure the impact of variations of copy, headlines,
positioning, layout, imagery, price, etc. The modification
module includes a user interface for allowing the website
operator to create site variations using a WYSIWYG (what-
you-see-is-what-you-get) visual editor. This eliminates the need
to modify the web server content and saves time and cost
otherwise spent on web designers and programmers. The
operator can also target optimization efforts by segmenting
visitors by specific criteria. The operator can stipulate that one
or more visitor segments are assigned or not assigned to a test
group based on operator-controlled parameters, assignment
criteria, and test campaign parameters.
The testing is then automated through the reverse proxy
server system. Testing includes use of A/B testing, split path
(i.e., split run) testing, and multivariate testing. During the test
campaign, the modification module collects data for each
response point (action) that the website operator desires to
measure. Some measurable actions include: adding an item to a
shopping cart, registering for an account, and completing a
sale.
At any time during a test campaign, the website operator
can run a report to see how variations are impacting visitor
conversions. The report is customizable and can show how
visitors responded during a visit as well as across repeated
visits to show if a variation affected the likelihood of a
conversion on a return visit. Reports can include charts and
graphs with statistical summaries supporting the results. The
modification module provides the ability to track, correlate, and
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measure visitor actions on a web server to one or more test
groups.
Hansen ¶¶ 57–59 (emphasis added).
We agree with Appellant that the cited disclosure does not appear to
describe simulating an on-line promotional campaign and visitor
interactions. Hansen does not refer to “simulating” but instead describes
testing a test campaign on visitors to a website and tracking actions such as
adding an item to a shopping cart or completing a sale to determine how
visitors responded. Thus, we agree with Appellant that “Hansen appears to
disclose that advertising campaigns are tested on live users.” Appeal Br. 29.
The Examiner responds that “in para. 17 of Appellant’s specification
the simulated campaign is based on a real authored campaign having
targeting rules and content. The Examiner considers that the broadest
reasonable interpretation of the claims includes a live dynamic testing of
campaigns using different website components for the website as in
Hansen.” Ans. 11.
We do not agree with the Examiner’s claim interpretation. The
Specification does not refer to simulating a campaign at paragraph 17, but it
does discuss it at paragraph 20. However, that paragraph refers to selecting a
profile of a sample user and states that “[t]he simulation can commence
when a campaign is set to an ‘auto’ mode so that authored instances of
components for a campaign are automatically selected. . . . In auto mode, the
electronic content is displayed as it would be to an actual user having a
profile matching the sample user profile.” Spec. ¶ 20 (emphasis added).
Thus, the discussion of a simulation in the Specification refers to
simulating the display of website content to an actual user, not displaying it
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to actual users in live testing of a campaign. The Specification therefore does
not support the Examiner’s claim interpretation.
In summary, the Examiner has acknowledged that the disputed
limitation is not taught by Javangula. We conclude that it is not disclosed at
the cited portion of Hansen, and the Examiner has not pointed to any
disclosure in O’Malley that would make up for this deficiency. We therefore
reverse the rejection of claims 1–3, 5–19, and 21–23 under 35 U.S.C. § 103
based on Javangula, Hansen, and O’Malley.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5–19,
21–23
101 Eligibility 1–3, 5–19,
21–23
1–3, 5–19,
21–23
103 Javangula, Hansen,
O’Malley
1–3, 5–19,
21–23
Overall
Outcome
1–3, 5–19,
21–23

REVERSED