Adobe Inc.

Patent Trials and Appeals Board

Nov 12, 2020

2020004528 (P.T.A.B. Nov. 12, 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.
14/945,265 11/18/2015 Sheng Li P5718-US 8157
108982 7590 11/12/2020
SBMC
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
RETTA, YEHDEGA
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
11/12/2020 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 SHENG LI, NIKOLAOS VLASSIS, and
JAYA B. KAWALE
____________

Appeal 2020-004528
Application 14/945,265
Technology Center 3600
____________

Before ANTON W. FETTING, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–7, 10–14, 16, 17, 19–21, and 25–27. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed January 28, 2020) and Reply Brief (“Reply Br.,” filed May 28, 2020),
and the Examiner’s Answer (“Ans.,” mailed April 10, 2020) and Final
Office Action (“Final Act.,” mailed October 9, 2019). Appellant identifies
Adobe, Inc. as the real party in interest (Appeal Br. 3).
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CLAIMED INVENTION
The claimed invention relates to techniques and systems for
determining campaign effectiveness (Spec. ¶ 3).
Claims 1, 11, and 16 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. In a digital medium environment to determine
campaign effectiveness with improved accuracy and computing
performance by reduction of confounding bias through
dimension reduction, a method implemented by at least one
computing device, the method comprising:
[(a)] characterizing campaign data, by a characterization
module implemented at least partially in hardware of the at least
one computing device, that pertains to first and second campaign
groups, the characterizing employing a plurality of features to
describe subjects included in the first and second campaign
groups;
[(b)] mapping the characterized campaign data, by a
dimension reduction projection module implemented at least
partially in the hardware of the at least one computing device
automatically and without user intervention, for the first and
second campaign groups into a reduced dimension space by
reducing a number of the plurality of features;
[(c)] generating, by the dimension reduction projection
module implemented at least partially in the hardware of the at
least one computing device, an enhanced common support region
of the mapped campaign data in the reduced dimension space by
reducing a distance between a subject of the first campaign group
and a first subject of the second campaign group and maintaining
a distance between the first subject and a second subject of the
second campaign group;
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[(d)] generating, by a campaign matching module
implemented at least partially in the hardware of the at least one
computing device, associations between the subjects in the first
and second campaign groups, one to another by performing a
nearest neighbor search from the mapped campaign data having
the enhanced common support region such that a number of the
subjects in the first campaign group is matched against a number
of the subjects in the second campaign group and a neighborhood
structure of the first campaign group is maintained; and
[(e)] controlling generation of a campaign effectiveness
result, by a result generation module implemented at least
partially in the hardware of the at least one computing device,
using the associated subjects in the first and second campaign
groups.
REJECTIONS
Claims 1–7, 10–14, 16, 17, 19–21, and 25–27 are rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more.
Claims 1–7, 11–14, 16, 17, 19–21, 25, and 27 are rejected under
35 U.S.C. § 103 as unpatentable over Wang et al. (US 2016/0055320 A1,
published Feb. 25, 2016) (“Wang”), Cox et al. (US 2003/0225749 A1,
published Dec. 4, 2003) (“Cox”), and Laurens van der Maaten et al.,
Visualizing Data using t-SNE, JOURNAL OF MACHINE LEARNING RESEARCH
(November 2008) (“van der Maaten”).
Claims 10 and 26 are rejected under 35 U.S.C. § 103 as unpatentable
over Wang, Cox, van der Maaten, and Gui et al. (US 2016/0253696 A1,
published Sept. 1, 2016) (“Gui”).
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ANALYSIS
Patent-Ineligible Subject Matter
Appellant argues the pending claims as a group (Appeal Br. 15–26).
We select independent claim 1 as representative. The remaining claims
stand or fall with claim 1. See 37 C.F.R. §41.37(c)(1)(iv).
Under 35 U.S.C. § 101, a claim is patent eligible if it claims a “new
and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., an
element or combination of elements that is ‘sufficient to ensure that the
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patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. at 217–18 (alteration in original).
The U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance on January 7, 2019 for use by USPTO personnel in
evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED
PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57
(Jan. 7, 2019) (the “2019 Revised Guidance”).2 That guidance revised the
USPTO’s examination procedure with respect to the first step of the
Mayo/Alice framework by (1) “[p]roviding groupings of subject matter that
[are] considered an abstract idea”; and (2) clarifying that a claim is not
“directed to” a judicial exception if the judicial exception is integrated into a
practical application of that exception. Id. at 50.
The first step, as set forth in the 2019 Revised Guidance (i.e.,
Step 2A), is, thus, a two-prong test. In Step 2A, Prong One, we look to
whether the claim recites a judicial exception, e.g., one of the following
three groupings of abstract ideas: (1) mathematical concepts; (2) certain
methods of organizing human activity, e.g., fundamental economic
principles or practices, commercial or legal interactions; and (3) mental
processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next
determine, in Step 2A, Prong Two, whether the claim as a whole integrates
the recited judicial exception into a practical application, i.e., whether the
additional elements recited in the claim beyond the judicial exception, apply,

2 The USPTO issued an update on October 17, 2019 (the “October 2019
Update: Subject Matter Eligibility,” available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) clarifying the
2019 Revised Guidance in response to public comments.
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rely on, or use the judicial exception in a manner that imposes a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the judicial exception. Id. at 54–55. Only if
the claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea. Id.
If the claim is determined to be directed to a judicial exception under
revised Step 2A, we next evaluate the additional elements, individually and
in combination, in Step 2B, to determine whether they provide an inventive
concept, i.e., whether the additional elements or combination of elements
amounts to significantly more than the judicial exception itself. Only then,
is the claim patent eligible. 2019 Revised Guidance, 84 Fed. Reg. at 56.
The Examiner determined here that the claims recite “characterizing
campaign data, projecting in a reduced space, associating subjects, [and]
controlling generation of campaign effectiveness,” i.e., a method of
organizing human activity, and, therefore, an abstract idea (Final Act. 2),
and that the abstract idea is not integrated into a practical application (id.).
The Examiner also determined that the claims do not include additional
elements sufficient to amount to significantly more than the abstract idea
itself (id. at 3).
Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A)
We are not persuaded by Appellant’s argument that the Examiner
erred in determining that independent claim 1 is directed to an abstract idea
(Appeal Br. 17–25). The Federal Circuit has explained that “the ‘directed
to’ inquiry applies a stage-one filter to claims, considered in light of the
specification, based on whether ‘their character as a whole is directed to
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excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the
claims is on a specific improvement in relevant technology or on a process
that itself qualifies as an “abstract idea” for which computers are invoked
merely as a tool. See id. at 1335–36. Here, it is clear from the Specification
(including the claim language) that claim 1 focuses on an abstract idea, and
not on any improvement to technology and/or a technical field.
The Specification is titled “Campaign Effectiveness Determination
using Dimension Reduction,” and describes, in the Background section, that
campaigns may involve a variety of different actions and associated
outcomes; for example, a digital marketing campaign may be configured to
convert potential customers to purchase a good or service, a treatment
campaign may be configured to treat illnesses, and a political campaign may
target voters (Spec. ¶ 1). Yet, regardless of the different actions and
associated outcomes, “users directing these campaigns desire knowledge as
to the effectiveness of the campaign in reaching a desired outcome and may
use this knowledge to make modifications if warranted” (id.).
The Specification describes that one way of estimating effectiveness
involves randomization tests in which subjects of the campaign are divided
into groups, e.g., a treatment group and a control group; a causal effect of
the campaign (i.e., the effectiveness of a desired result of the campaign) is
then estimated by comparing outcomes between the two groups (Spec. ¶ 19).
The Specification explains that in a randomized test, each of the subjects in
the groups has the same probability of receiving treatment, and, therefore,
the distributions of the features in the control and treatment groups are
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identical — a circumstance that “permits a direct inference of the causal
effects from raw campaign data that describes these two groups, i.e., an
estimation of the effectiveness of the campaign” (id.).
In other instances involving “so-called observational data,” the
assignment of subjects into groups is not randomized but rather is performed
systemically, e.g., through use of an external procedure; “this may introduce
a confounding bias in the selection of subjects to form the groups” and
“unbalanced groupings in the feature space, whereby a number of subjects in
the groups varies greatly” (Spec. ¶ 20). Use of these unbalanced groupings
may then result in inaccuracies in estimating campaign effectiveness (id.).
The Specification describes that although techniques have been
developed to address confounding bias by attempting to balance the groups
used to estimate campaign effectiveness, these techniques often result in
inaccuracies in how the groups are balanced (Spec. ¶ 20).
The claimed invention is ostensibly intended to improve on these prior
techniques by providing techniques and systems in which “a determination
of campaign effectiveness leverages dimension reduction that preserves a
neighborhood structure of campaign data and thus promotes accuracy and
computational efficiency in the determination” (Spec. ¶ 21). The
Specification, thus, describes that campaign data, pertaining to first and
second campaign groups, are characterized using a plurality of features
(e.g., age, education, marital status, etc.) that describe subjects included in
the two campaign groups (id. ¶ 22). The characterized campaign data are
projected into a reduced dimension space, e.g., using linear or non-linear
techniques (id. ¶ 23). And subjects in the first and second campaign groups
are associated, one to another, using the projected campaign data, such that a
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number of subjects in the first campaign group approximates, and in some
instances, matches a number of subjects in the second campaign group (id.
¶¶ 24, 36). “The balanced groups are then used to determine campaign
effectiveness . . . without confounding bias” (id.).
Consistent with this disclosure, claim 1 recites a method for
determining campaign effectiveness comprising: (1) characterizing
campaign data using a plurality of features that describe subjects in a first
and second campaign group, i.e., “characterizing campaign data, by a
characterization module implemented at least partially in hardware of the at
least one computing device, that pertains to first and second campaign
groups, the characterizing employing a plurality of features to describe
subjects included in the first and second campaign groups” (step (a));
(2) mapping the characterized campaign data into a reduced dimension space
to reduce the number of features, i.e.,
mapping the characterized campaign data, by a dimension
reduction projection module implemented at least partially in the
hardware of the at least one computing device automatically and
without user intervention, for the first and second campaign
groups into a reduced dimension space by reducing a number of
the plurality of features
(step (b)); (3) associating subjects in the first and second campaign groups,
one to another, using the mapped campaign data, and employing a nearest
neighbor technique such that a number of subjects in the first campaign
group matches a number of subjects in the second campaign group, i.e.,
generating, by the dimension reduction projection module
implemented at least partially in the hardware of the at least one
computing device, an enhanced common support region of the
mapped campaign data in the reduced dimension space by
reducing a distance between a subject of the first campaign group
and a first subject of the second campaign group and maintaining
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a distance between the first subject and a second subject of the
second campaign group; [and]
generating, by a campaign matching module implemented
at least partially in the hardware of the at least one computing
device, associations between the subjects in the first and second
campaign groups, one to another by performing a nearest
neighbor search from the mapped campaign data having the
enhanced common support region such that a number of the
subjects in the first campaign group is matched against a number
of the subjects in the second campaign group and a neighborhood
structure of the first campaign group is maintained
(steps (c) and (d)); and (4) determining campaign effectiveness using the
associated subjects in the first and second campaign groups, i.e., “controlling
generation of a campaign effectiveness result, by a result generation module
implemented at least partially in the hardware of the at least one computing
device, using the associated subjects in the first and second campaign
groups” (step (e)).
Appellant argues that the rejection of claim 1 cannot be sustained at
least because the claim does not recite subject matter that falls within any of
the three enumerated groupings of abstract ideas (Appeal Br. 17–20). But,
Appellant cannot reasonably deny that claim 1 recites determining the
effectiveness of a campaign, e.g., a marketing or advertising campaign,
based on the extent to which the campaign results in a desired outcome, e.g.,
the purchase of the advertised good or service — i.e., a fundamental
economic practice. As such, we agree with the Examiner that the claim
limitations, when given their broadest reasonable interpretation, recite a
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method of organizing human activity and, therefore, an abstract idea. See
2019 Revised Guidance, 84 Fed. Reg. at 52.3
We also are not persuaded by Appellant’s argument that claim 1
recites additional elements that integrate the judicial exception, i.e., the
recited abstract idea, into a practical application under Step 2A, Prong Two
(Appeal Br. 6).
The 2019 Revised Guidance references MANUAL OF PATENT
EXAMINING PROCEDURE, Ninth Edition (rev. Jan 2018) (available at
https://mpep.uspto.gov/RDMS/MPEP/E9_R-08.2017.) § 2106.05(a)–(c) and
(e) in non-exhaustively listing considerations indicative that an additional
element or combination of elements may have integrated the recited judicial
exception into a practical application. 2019 Revised Guidance, 84 Fed. Reg.
at 55. In particular, the Guidance describes that an additional element may
have integrated the judicial exception into a practical application if the
additional element (1) reflects an improvement in the functioning of a
computer or an improvement to other technology or technical field;
(2) applies or uses the judicial exception to effect a particular treatment or

3 Claim 1, specifically steps (c) and (d), also can characterized reasonably as
reciting mathematical concepts. The Specification explains that “estimation
of campaign effectiveness using conventional approaches on observational
data may be strongly biased if a covariate distribution of subjects between
groups used to perform the estimation is unbalanced” (Spec. ¶ 40), and
describes that non-linear dimensionality reduction techniques are used to
balance data distribution (id.). The Specification, thus, sets forth a
“manifold embedding algorithm, t-SNE,” which the Specification describes
is used for “dimensionality reduction and visualization” (id. ¶¶ 40–48). That
this algorithm is not actually reproduced in claim 1 is not controlling and
does negate that claim 1 recites a mathematical concept, i.e., an abstract
idea. See 2019 Revised Guidance, 84 Fed. Reg. at 52.
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prophylaxis for a disease or medical condition; (3) implements the judicial
exception with, or uses the judicial exception with, a particular machine or
manufacture integral to the claim; (4) effects a transformation or reduction
of an article to a different state or thing; or applies; or (5) applies or uses the
judicial exception in some other meaningful way beyond generally linking
the use of the judicial exception to a particular technological environment,
such that the claim as a whole is more than a drafting effort designed to
monopolize the exception. Id.
Appellant ostensibly maintains here that claim 1 meets the first
exemplary consideration (Appeal Br. 20 (“An example consideration that
indicates the claims as a whole are integrated into a practical application is
an element that reflects an improvement in the functioning of a computer, or
an improvement to other technology or technical field.”)), i.e., that the claim
represents an improvement to “computer-based campaign analysis
technology” (id. at 22).
Appellant describes that the claimed invention involves characterizing
campaign data using a plurality of features that describe subjects in a first
and second campaign group; projecting the features of the characterized
campaign data into a dimension space to thereby reduce the effective
number of the features needed to characterize the subjects in the two groups;
implementing a matching technique to associate the subjects in the first and
second groups using this reduced dimension space, to thereby balance the
data distribution in the groups, one to another; and then using the balanced
groups to determine campaign effectiveness “without confounding bias”
(Appeal Br. 21). Appellant asserts that this “achieves improved accuracy in
determination of the campaign effectiveness result and also increased
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computational efficiency and accuracy” (id.). Yet, there is a fundamental
difference between computer functionality improvements, on the one hand,
and uses of existing computers as tools to perform a particular task, on the
other — a distinction that the Federal Circuit applied in Enfish, in rejecting a
§ 101 challenge at the first stage of the Mayo/Alice framework because the
claims at issue focused on a specific type of data structure, i.e., a self-
referential table, designed to improve the way a computer stores and
retrieves data in memory, and not merely on asserted advances in uses to
which existing computer capabilities could be put. See Enfish, 822 F.3d
at 1335–36.
The alleged improvement that Appellant touts, i.e., determining
campaign effectiveness with improved accuracy by reducing confounding
bias, does not concern an improvement to computer capabilities or an
improvement to technology or a technical field. Instead, it, at best, relates to
an improvement to the abstract idea of determining campaign effectiveness
— a process in which a computer is used as a tool in its ordinary capacity.
This is not enough for patent eligibility. See SAP Am., Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1170 (Fed. Cir. 2018) (“[P]atent law does not protect
such claims[, i.e., claims to an asserted advance in the realm of abstract
ideas], without more, no matter how groundbreaking the advance.”).
We also note for the record that the relevant question under Step 2A,
Prong 2 is not whether the claimed invention itself is a practical application;
instead, the question is whether the claim includes additional elements
beyond the judicial exception that integrate the judicial exception into a
practical application. The Examiner determined here, and we agree, that the
only additional element recited in claim 1 beyond the abstract idea is “at
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least one computing device,” an element that, as the Examiner observes, is
recited at a high level of generality, i.e., as a generic computer component
(Final Act. 3). We find no indication in the Specification, nor does
Appellant direct us to any indication, that the operations recited in claim 1
require any specialized computer hardware or other inventive computer
components, i.e., a particular machine, invoke any allegedly inventive
programming, or that the claimed invention is implemented using other than
generic computer components to perform generic computer functions. See
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (“[A]fter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible.”).
We also are not persuaded of Examiner error to the extent Appellant
maintains that claim 1 is patent eligible because the claim poses no risk of
preemption (see Appeal Br. 22 (arguing that the claim elements reflect
meaningful limitations such that the claim as a whole is more than a drafting
effort to monopolize a judicial exception)). Although the Supreme Court
has described “the concern that drives [the exclusion of abstract ideas from
patent-eligible subject matter] as one of pre-emption,” Alice Corp., 573 U.S.
at 216, characterizing preemption as a driving concern for patent eligibility
is not the same as characterizing preemption as the sole test for patent
eligibility. “The Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to patentability” and “[f]or
this reason, questions on preemption are inherent in and resolved by the
§ 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice Corp., 573 U.S. at 216). “[P]reemption
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may signal patent ineligible subject matter, [but] the absence of complete
preemption does not demonstrate patent eligibility.” Id.
Appellant attempts to draw an analogy between claim 1 and
hypothetical claim 1 of Example 40 of the USPTO’s “Subject Matter
Eligibility Examples: Abstract Ideas” (“Eligibility Examples”)4 (Appeal
Br. 23). Yet, we can find no parallel between hypothetical claim 1 in
Example 40 and claim 1 here at issue.
The USPTO describes in the “Background” section of Example 40
that network visibility tools enable close monitoring of computer network
traffic, applications, performance, and resources, and that the data acquired
through these network visibility tools are useful in optimizing network
performance, resolving network issues, and improving network security.
Eligibility Examples 10.
One industry standard network visibility protocol is NetFlow. Id. In a
typical setup, a NetFlow exporter generates and exports network traffic
statistics (in the form of NetFlow records) to at least one NetFlow collector
that analyzes the statistics. Id. However, because NetFlow records are
large, the continual generation and export of NetFlow records substantially
increases the traffic volume on the network, which hinders network
performance. Id. The hypothetical appellant’s invention addresses this issue
by varying the amount of network data collected based on monitored events
in the network. The system, thus, collects NetFlow protocol data and
exports a NetFlow record only when an abnormal network condition is
detected. Id.

4 Available at https://www.uspto.gov/sites/default/files/documents/
101_examples_37to42_20190107.pdf.
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Applying the 2019 Revised Guidance, the Office determines that
hypothetical claim 1 recites a mental process and, therefore, an abstract idea,
i.e., that, other than the nominal recitation of a generic network appliance,
nothing precludes the step of “comparing . . . at least one of the collected
traffic data to a predefined threshold” from practically being performed in
the mind.5 Id. at 11. Nonetheless, the Office determines that claim 1 is
patent eligible because it integrates the recited abstract idea into a practical
application, i.e.,
the method limits collection of additional Netflow protocol data
to when the initially collected data reflects an abnormal
condition, which avoids excess traffic volume on the network
and hindrance of network performance. The collected data can
then be used to analyze the cause of the abnormal condition. This
provides a specific improvement over prior systems, resulting in
improved network monitoring.
Id. at 11 (emphasis added).
Appellant asserts here that “‘collecting, by the network appliance,
traffic data’ of Example 40 is similar to ‘generating . . . associations between

5 Claim 1 of Example 40 recites:
A method for adaptive monitoring of traffic data through a network
appliance connected between computing devices in a network, the method
comprising:
collecting, by the network appliance, traffic data relating to the network
traffic passing through the network appliance, the traffic data comprising at
least one of network delay, packet loss, or jitter;
comparing, by the network appliance, at least one of the collected traffic
data to a predefined threshold; and
collecting additional traffic data relating to the network traffic when the
collected traffic data is greater than the predefined threshold, the additional
traffic data comprising Netflow protocol data.
Eligibility Examples 10.
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the subjects’ in that the data/associations are usable to implement a
particular improvement in a technological area” and that “like Example 40,
‘controlling generation of a campaign effectiveness result . . . using the
associated subjects’ leverages the previously collected/generated
data/associations to improve a computer-based technology” (Appeal Br. 23).
Appellant’s argument is not persuasive. Although Appellant
ostensibly suggests otherwise, the USPTO did not conclude that hypothetical
claim 1 in Example 40 is patent eligible because the claimed method collects
traffic data for use in analyzing the cause of an abnormal condition. Instead,
the Office concluded that hypothetical claim 1 is patent eligible because the
combination of additional elements integrates the judicial exception (i.e., the
mental process of comparing collected traffic data to a predetermined
threshold) into a practical application — improved network monitoring.
Appellant has not demonstrated that pending claim 1 provides a comparable
technological improvement.
Finally, we are not persuaded by Appellant’s argument that claim 1 is
patent eligible, i.e., that any alleged abstract idea is integrated into a
practical application, because the claim language is specific regarding how
the claimed functionality is achieved (Appeal Br. 24 (arguing that, in claim1,
“‘mapping the characterized campaign data . . . automatically and without
user intervention’ . . . is specific as to how the functionality is accomplished
automatically” and that dependent claim 25–27 recite “outputting the
campaign effectiveness result in a display device,” and, therefore, “a specific
manner of displaying a result”)).
Appellant points to Example 37 of the USPTO’s “Subject Matter
Eligibility Examples: Abstract Ideas” as supporting its position (id.). But,
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the Office did not determine that hypothetical claim 1 in Example 37 is
patent eligible merely because the claim recites a specific manner of
displaying icons on a graphical user interface. Instead, the Office concluded
that hypothetical claim 1 is patent eligible because the claimed method
results in an improved interface for electronic devices. Eligibility
Examples 2–3. No comparable improvement is presented here.
We conclude, for the reasons outlined above, that claim 1 recites a
method of organizing human activity, i.e., an abstract idea, and that the
additional element recited in the claim beyond the abstract idea is no more
than a generic computer component used as a tool to perform the recited
abstract idea. As such, it does not integrate the abstract idea into a practical
application. See Alice Corp., 573 U.S. at 223–24 (“[W]holly generic
computer implementation is not generally the sort of ‘additional featur[e]’
that provides any ‘practical assurance that the process is more than a drafting
effort designed to monopolize the [abstract idea] itself.’” (quoting Mayo,
566 U.S. at 77)). Accordingly, we agree with the Examiner that claim 1 is
directed to an abstract idea.
Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 1 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether an additional element or
combination of elements adds specific limitations beyond the judicial
exception that are not “well-understood, routine, conventional activity” in
the field (which is indicative that an inventive concept is present) or simply
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appends well-understood, routine, conventional activities previously known
to the industry to the judicial exception. 2019 Revised Guidance,
84 Fed. Reg. at 56.
Appellant argues that “the claims specifically recite how campaign
data is [sic] characterized and mapped to achieve a desirable campaign
effectiveness result” and further that “the claimed solution is necessarily
rooted in computer technology because the claims cannot be performed
without the computing technology,” i.e., the recited “at least one computing
device” (Appeal Br. 26). Appellant maintains that the claims, therefore,
recite significantly more than an abstract idea and are directed to patent
eligible subject matter (id.). Yet, there is no indication in the Specification,
nor does Appellant point to any indication, that specialized hardware or
“inventive” computer components are required or that the claimed method is
implemented using other than a generic computer. And, as the Supreme
Court made clear in Alice, the recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible.” See Alice
Corp., 134 S. Ct. at 2358 (holding that if a patent’s recitation of a computer
amounts to a mere instruction to implement an abstract idea on a computer,
that addition cannot impart patent eligibility).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of claim 1, and claims 2–7, 10–14, 16, 17,
19–21, and 25–27, which fall with claim 1.
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Obviousness
Independent Claims 1, 11, and 16 and Dependent Claims 2–7, 12–14, 17,
19–21, 25, and 27
We are persuaded by Appellant’s argument that the obviousness
rejection cannot be sustained at least the Examiner has not established that
Wang, Cox, and van der Maaten, individually or in combination, disclose or
suggest
generating . . . an enhanced common support region of the
mapped campaign data in the reduced dimension space by
reducing a distance between a subject of the first campaign group
and a first subject of the second campaign group and maintaining
a distance between the first subject and a second subject of the
second campaign group[,]
i.e., limitation (c), as recited in independent claim 1, and similarly recited in
independent claims 11 and 16 (Appeal Br. 27–29).
“[T]he test for obviousness is what the combined teachings of the
[cited] references would have suggested to those having ordinary skill in the
art.” In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012) (citing In re
Keller, 642 F.2d 413, 425 (CCPA 1981)). Here, the Examiner not only has
failed to explain why the features of limitation (c) would have been obvious
to a person of ordinary skill in the art at the time of Appellant’s invention,
but, as Appellant points out, the Examiner’s rejection is completely silent as
to this feature (id. at 28). It, thus, clearly appears that the Examiner has not
considered this claim language at all.
On this record, we are constrained to find that the Examiner erred in
rejecting independent claims 1, 11, and 16 under 35 U.S.C. § 103.
Therefore, we do not sustain the Examiner’s rejection of claims 1, 11, and
16. For the same reasons, we also do not sustain the Examiner’s rejection of
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dependent claims 2–7, 12–14, 17, 19–21, 25, and 27. Cf. In re Fritch, 972
F.2d 1260, 1266 (Fed. Cir. 1992) (“dependent claims are nonobvious if the
independent claims from which they depend are nonobvious”).
Dependent Claims 10 and 26
Claims 10 and 26 depend, directly or indirectly, from independent
claim 1. The rejection of these dependent claims does not cure the
deficiency in the Examiner’s rejection of independent claim 1. Therefore,
we do not sustain the Examiner’s rejection of dependent claims 10 and 26
for the same reason set forth above with respect to claim 1.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 10–
14, 16, 17,
19–21, 25–
27
101 Eligibility 1–7, 10–14,
16, 17, 19–
21, 25–27

1–7, 11–
14, 16, 17,
19–21, 25,
27
103 Wang, Cox,
van der Maaten
1–7, 11–14,
16, 17, 19–
21, 25, 27
10, 26 103 Wang, Cox,
van der Maaten,
Gui
10, 26
Overall
Outcome
1–7, 10–14,
16, 17, 19–
21, 25–27

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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