Adobe Inc.

Patent Trials and Appeals Board

Mar 2, 2021

2020003319 (P.T.A.B. Mar. 2, 2021)

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.
14/539,636 11/12/2014 Ashish Duggal 4523US01 9545
108982 7590 03/02/2021
FIG. 1 Patents
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
HENRY, MATTHEW D
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
03/02/2021 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):
Fig1Docket@fig1patents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ASHISH DUGGAL, ANMOL DHAWAN,
WALTER WEI-TUH CHANG, and SACHIN SONI
____________

Appeal 2020-003319
Application 14/539,636
Technology Center 3600
____________

Before BIBHU R. MOHANTY, TARA L. HUTCHINGS, and
AMEE A. SHAH, Administrative Patent Judges.

HUTCHINGS, 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 1–20. 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 the Specification (“Spec.,” filed Nov. 12,
2014), Final Office Action (“Final Act.,” mailed Mar. 6, 2019), Appeal Brief
(“Appeal Br.,” filed Nov. 25, 2019), Response to Notification of Non-
Compliant Appeal Brief (“Claims Appendix,” filed Jan. 13, 2020), Answer
(“Ans.,” mailed Feb. 4, 2020), and Reply Brief (“Reply Br.,” filed Mar. 30,
2020). Appellant identifies Adobe Inc. as the real party in interest. Appeal
Br. 3.
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CLAIMED INVENTION
Claims 1, 13, and 19 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A method implemented by at least one computing
device comprising:
[(a)] obtaining, by the at least one computing device,
keywords from content of a Web page;
[(b)] extracting, by the at least one computing device,
source content from a referring source that includes a selectable
link to the Web page;
[(c)] identifying, by the at least one computing device,
the keywords from the content of the Web page that also occur
in the source content of the referring source;
[(d)] determining a sentiment associated with each
keyword or phrase from the content of the Web page that also
occurs in the source content of the referring source;
[(e)] generating an overall sentiment value of the source
content of the referring source based on the sentiment associated
with each of the keywords occurring in the Web page and in the
source content;
[(f)] correlating the overall sentiment value of the source
content of the referring source with a bounce rate of Web page
visits to the Web site generated from the referring source; and
[(g)] displaying, in a user interface, an indication of the
referring source along with the overall sentiment value of the
source content of the referring source and the correlated bounce
rate of Web page visits to the Web site generated from the
referring source.
Claims Appendix 2.

REJECTIONS
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
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Claim 12 is rejected under 35 U.S.C. § 112(a) as failing to comply
with the written description requirement.
Claims 1–20 are rejected under 35 U.S.C. § 112(b) as indefinite.
ANALYSIS
Patent-Ineligible Subject Matter
Principles of Law
35 U.S.C. § 101
An invention is patent eligible if it is a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted § 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)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012)
and Alice, “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 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,” such as an abstract idea. Id. According to
Supreme Court precedent, concepts determined to be abstract ideas include
certain methods of organizing human activity, such as fundamental
economic practices (id. at 219–20; Bilski v. Kappos, 561 U.S. 593, 611
(2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
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(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)).
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.” Alice, 573 U.S. at 217 (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 patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Id. at 217–18 (alteration in original).
USPTO Guidance
We are also guided by U.S. Patent and Trademark Office (“USPTO”)
guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”), incorporated into
the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104–06, Rev. 10.2019
(“MPEP”) in June 2020. “The guidance sets out agency policy with respect
to the USPTO’s interpretation of the subject matter eligibility requirements
of 35 U.S.C. § 101 in view of decisions by the Supreme Court and the
Federal Circuit.” Guidance, 84 Fed. Reg. at 51. However, the “guidance . . .
does not create any right or benefit, substantive or procedural, enforceable
by any party against the USPTO” and “[r]ejections will continue to be based
upon the substantive law.” Id.
Under the Guidance, the first step of the Mayo/Alice framework is a
two-prong inquiry. MPEP § 2106.04(II)(A); see also Guidance, 84 Fed.
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Reg. at 54 (“Step 2A of the 2019 Revised Patent Subject Matter Eligibility
Guidance is a two-prong inquiry.”). “Prong One asks does the claim recite
an abstract idea, law of nature, or natural phenomenon?” MPEP
§ 2106.04(II)(A)(1); see also Guidance, 84 Fed. Reg. at 54. For determining
whether a claim recites an abstract idea, the guidance defines enumerated
groupings of abstract ideas, distilled from precedent. MPEP § 2106.04(a);
see also id. at § 2106.04(a)(2) (defining abstract idea groupings); Guidance,
84 Fed. Reg. at 52. If the claim recites a judicial exception, then the claim
requires further analysis at Prong Two. MPEP § 2106.04(II)(A)(1);
Guidance, 84 Fed. Reg. at 54. “Prong Two asks does the claim recite
additional elements that integrate the judicial exception into a practical
application?” MPEP § 2106.04(II)(A)(2); see also id. § 2106.04(d),
Guidance, 84 Fed. Reg. at 54–55. 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 additional
elements, individually or in combination, provide an inventive concept. See
MPEP §§ 2106(III), 2106.05.
“An inventive concept ‘cannot be furnished by the unpatentable law
of nature (or natural phenomenon or abstract idea) itself.’” Id. at
§ 2106.05(I) (quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376
(Fed. Cir. 2016)). Among the considerations in determining whether the
additional elements, individually or in combination, amount to significantly
more than the exception itself, we look to whether they add a specific
limitation beyond the judicial exception that is not “well-understood,
routine, conventional” in the field or simply append well-understood,
routine, conventional activities previously known to the industry, specified
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at a high level of generality, to the judicial exception. MPEP § 2106.05(II);
Guidance, 84 Fed. Reg. at 56.
Rejection
The Examiner determined that the claims analyze keywords from the
web page and source content to determine sentiment of a user; correlates that
sentiment to a bounce rate of a web; and displays the results of the analysis.
Finial Act. 10. The Examiner determined that this concept is an abstract
idea in the form of a certain method of organizing human activity. Final
Act. 10. The Examiner further determined that the claims do not recite
additional elements that integrate the abstract idea into a practical
application and do not include additional elements sufficient to amount to
significantly more than the abstract idea itself. Final Act. 10–13.
Step One of the Mayo/Alice Framework (Guidance, Step 2A)
We are not persuaded by Appellant’s argument that the Examiner
unjustly simplifies claim 1, fails to identify specific limitations of claim 1
that recite an abstract idea, or otherwise errs in determining that claim 1 is
directed to an abstract idea. See Appeal Br. 14–28; see also Reply Br. 2–8.
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 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
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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 “INFORMATIVE BOUNCE RATE,” and
describes, in the Background section, that marketers seek to attract visitors
to a Web page and keep visitors engaged with the Web page. Spec. ¶ 1. A
bounce rate for a Web page reflects the percentage of users who navigate to
a Web page and leave without viewing another page or associated content.
Id. ¶¶ 3, 10. Conventional analytics solutions determine a bounce rate for a
Web page as a basis for deciding whether to redesign a Web page. Id. ¶¶ 3,
12. For example, for two Web pages having bounce rates of 30% and 20%,
a marketer typically would prioritize improving the Web page with the
higher bounce rate of 30%. Id. ¶ 12.
However, poor design (e.g., content, color scheme, arrangement) is
not the only factor explaining a high bounce rate. See id. ¶¶ 13–16. A
visitor’s mind set at the time of visiting the Web page may impact a visitor’s
likelihood of engagement. See id. This mind set can be discerned by a
sentiment imparted by the referring source. Id. ¶ 13, 15–16. For example, a
social media site describing a tablet positively (e.g., big screen, great display
quality) imparts a positive source sentiment when it refers a visitor to the
tablet company’s Web page. Id. ¶ 15. In contrast, when the social media
site disparages the tablet (e.g., cumbersome size, poor battery life), it imparts
an overall negative source sentiment when it refers the user to the tablet
company’s Web page. Id. ¶ 16. A user receiving negative source sentiment
may be more likely to bounce from the visited web site. Id.
The Specification provides that a variety of referring sources make it
“difficult to discern how to improve or redesign the Web page in an effort to
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better engage and keep visitors interested in the marketing content on the
Web page.” Id. ¶ 3. The present invention seeks to provide a marketer of a
Web page feedback in the form of a correspondence determined between a
bounce rate associated with a Web page and a sentiment associated with
keywords that occur in content on the Web page and in source content from
a referring source. Id. ¶ 10. In this way, a marketer can focus on improving
Web pages having an overall positive sentiment, even if the bounce rate is
lower than another Web page, in order to keep more positive-minded visitors
engaged with the Web page. See id. at ¶¶ 14–16.
Consistent with this disclosure, claim 1 recites a method comprising:
“obtaining . . . keywords from content of a Web page” (limitation (a));
“extracting . . . source content from a referring source . . . . ” (step (b));
“identifying . . . the keywords from the content of the Web page that also
occur in the source content of the referring source” (limitation (c));
“determining a sentiment associated with each keyword or phrase from the
content of the Web page that also occurs in the source content of the
referring source” (limitation (d)); “generating an overall sentiment value of
the source content of the referring source based on the sentiment associated
with each of the keywords occurring in the Web page and in the source
content” (limitation (e)); “correlating the overall sentiment value of the
source content of the referring source with a bounce rate of Web page visits
to the Web site generated from the referring source” (limitation (f)); and
“displaying . . . an indication of the referring source along with the overall
sentiment value of the source content of the referring source and the
correlated bounce rate of Web page visits to the Web site generated from the
referring source” (limitation (g)).
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Limitations (a) through (g), when given their broadest reasonable
interpretation, recite a method for determining an overall sentiment value
associated with referring source and correlating it with a bounce rate of
visits to the Web site generated from the referring source. This concept
pertains to marketing (i.e., a commercial interaction), which is one of the
certain methods of organizing human activity and, therefore, an abstract
idea. See MPEP 2016.04(a)(2)(II)(B); Guidance, 84 Fed. Reg. at 52.
Having concluded that claim 1 recites a judicial exception, i.e., an abstract
idea (Step 2A, Prong One), we next consider whether the claim recites
additional elements that integrate the judicial exception into a practical
application (Step 2A, Prong Two).
Beyond the abstract idea, claim 1 recites a “computing device” for
performing limitations (a) through (c), a “user interface” (step (g)), and a
“selectable link” to a Web page from a referring source. However,
Appellant’s Specification makes clear that the claimed invention is
implemented using generic computer components to perform generic
computer functions. See, e.g., Spec. ¶¶ 1, 2, 18. We find no indication in
the Specification 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.”).
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We are not persuaded by Appellant’s argument that claim 1 is
analogous to the claims at issue in McRO, Inc. v. Bandai Namco Games
America Inc., 837 F.3d 1299 (Fed. Cir. 2016). Appeal Br. 16–19. Appellant
argues that claim 1, like the claims at issue in McRO, “defines a method that
uses a combined order of specific rules that considers specific information
that is used and applied to create desired results” and the “specific language
of claim 1 prevents preemption.” Id. at 19. Yet, the Federal Circuit in
McRO did not determine that the claims were patent eligible simply because
they recited a specific set of rules or prevented preemption. Instead, the
Federal Circuit in McRO pointed out that prior art animation techniques
involved an animator making subjective determinations regarding what an
animated face should look like at key points in time and then “drawing” the
face at those times. McRO, 837 F.3d at 1314 (citation omitted); see also id.
at 1306. This approach was very tedious, time consuming, and inaccurate.
Id. at 1306.
The claims at issue in McRO used “rules to automatically set a
keyframe at the correct point to depict more realistic speech, achieving
results similar to those previously achieved manually [through subjective
determinations] by animators.” Id. at 1307. These rules, which were not
based on subjective determinations, “allow[ed] computers to produce
‘accurate and realistic lip synchronization and facial expressions in
animated’ characters that previously could only be produced by human[s]”
(id. at 1313 (citation omitted)), effecting an improvement to technology in
3-D animation techniques (id. at 1316). Here, we do not see any parallel
between the rules described in McRO that result in an improvement to
technology in 3-D animation technniques, and the result-based, functional
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limitations recited in Appellant’s claim 1. Appellant does not persuade us
that claim 1 recites more than an improvement in wholly abstract ideas that
use computers as tools.
We also are not persuaded of Examiner error by Appellant’s argument
regarding preemption. Appeal Br. 17, 19. There is no dispute that 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. Yet, as Appellant, in fact, acknowledges (see
Reply Br. 11–12), 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
may signal patent ineligible subject matter [but] the absence of complete
preemption does not demonstrate patent eligibility.” Id.
Contrary to Appellant’s assertion, we also find no parallel between
claim 1 and the patent-eligible claim 1 in Example 37 of the USPTO’s
“Subject Matter Eligibility Examples: Abstract Ideas,” available at
https://www.uspto.gov/sites/default/files/documents/
101_examples_37to42_20190107.pdf (hereinafter “Eligibility Examples”).
Appeal Br. 20–22. Appellant argues that claim 1 here, like claim 1 of
Example 37, recites a specific manner of displaying an indication of the
referring source, the overall sentiment value, and the correlated bounce,
which results in an improved user interface. Appeal Br. 21–22. Yet,
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Appellant’s claim 1 recites using a generic user interface in its ordinary
capacity to display an indication. See, e.g., Spec. ¶¶ 33, 53.
In contrast, claim 1 of Example 37 involves automatically moving the
most used icons to a position on the graphical user interface (GUI) closest to
the start icon of the computer system based on the determined amount of
use. Eligibility Examples, 2. Put simply, the hypothetical claim requires the
GUI to function in a specific manner that results in an improved user
interface for electronic devices. We find no comparable improvement to a
user interface in Appellant’s claimed invention. At most, claim 1 recites
particular data to be collected and analyzed, and requires the user interface
to display certain results related to this collection and analysis (i.e., an
indication of the referring source, overall sentiment value, correlated bounce
rate). However, the claimed solution does not improve the functionality of
the graphical user interface itself. “As many cases make clear, even if a
process of collecting and analyzing information is ‘limited to particular
content’ or a particular ‘source,’ that limitation does not make the collection
and analysis other than abstract.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d
1161, 1168 (Fed. Cir. 2018); see also BSG Tech LLC v. BuySeasons, Inc.,
899 F.3d 1281, 1288 (Fed. Cir. 2018) (“[A]n improvement to the
information stored by a database is not equivalent to an improvement in the
database's functionality.”).
For similar reasons, we also are not persuaded that claim 1 is
analogous to the patent-eligible claim in Core Wireless Licensing S.A.R.L. v.
LG Electronics, Inc., 880 F.3d 1356 (Fed. Cir. 2018) because it recites an
improved user interface. See Appeal Br. 23–26; see also id. at 26
(contending that “[l]ike claim 1 of Core Wireless, claim 1 of the subject
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application recites features that support user navigation that both improves
operation of a computing device as well as a user’s experience with the
computing device”). In Core Wireless, the court found that the claims
recited a specific improvement in computer technology — “an improved
user interface for electronic devices, particularly those with small screens.”
Core Wireless, 880 F.3d at 1363. Because small screens require data and
functionality to be divided into many layers or views, “prior art interfaces
required users to drill down through many layers to get to desired data or
functionality.” Id. (citation omitted). For example, a user would locate and
launch a required application, and then navigate within the application to
find data of interest. Id. The claims at issue in Core Wireless improve the
operation of the user interface by displaying a menu listing one or more
applications and an application summary reachable from the menu where the
application summary displays a limited list of data offered within one or
more applications that are in an un-launched state. Id. at 1359. When a user
selects data from the limited list, the unlaunched application offering the
data is launched, and the user can view the data within the application. Id.
In this way, the improved interface prevents a user from “paging through
multiple screens of options” to reach desired data or functionality. Id. at
1363.
Contrary to Appellant’s assertion, no analogous improvement to “user
navigation” is apparent from Appellant’s claim 1. Appeal Br. 26. Instead,
Appellant’s purported improvement is to the content of the data analyzed
and displayed by the user. Here, Appellant’s invention may well enable a
marketer to process marketing-related information more quickly or
efficiently (see, e.g., Appeal Br. 26 (describing that the claimed techniques
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“improve the efficiency of Web page redesign and analytics”)), but this is
not an improvement in the way the user interface operates, analogous to the
claims in Core Wireless. See Trading Techs. Int'l, Inc. v. IBG LLC, 921 F.3d
1084, 1093 (“The claims . . . do not improve the functioning of the
computer, make it operate more efficiently, or solve any technological
problem. Instead, they recite a purportedly new arrangement of generic
information that assists traders in processing information more quickly”);
see also Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355
(“[M]erely selecting information, by content or source, for collection,
analysis, and display” is insufficient for patent eligibility.).
Likewise, Appellant asserts that claim 1 improves the “operation of
the computing device.” Appeal Br. 26. Yet, Appellant does not
persuasively argue how the claimed method improves computer
functionality. In addition to the abstract idea, claim 1 recites performing
steps (a) through (c) using a generic computing device, extracting a
“selectable link” from a referring source, and displaying an indication of the
referring source, the overall sentiment value, and the correlated bounce rate
in a generic “user interface.” However, no improvement in computer
functionality is apparent. See Customedia Techs., LLC v. Dish Network
Corp., 951 F.3d 1359, 1364 (Fed. Cir. 2020) (“To be a patent-eligible
improvement to computer functionality, we have required the claims to be
directed to an improvement in the functionality of the computer or network
platform itself.”).
We also are not persuaded by Appellant’s argument that claim 1 is
analogous to the “fact pattern and claimed subject matter” in DDR Holdings.
Appeal Br. 27. Appellant contends that “correlating the overall sentiment
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value . . . with a bounce rate . . . and displaying . . . an indication,” as recited
in claim 1, “address[es] a digitally-rooted challenge that is particular to the
Internet.” Id. Appellant asserts that claim 1 “result[s] in selection [by
marketers] of Web pages to be redesigned and improved in the most
optimized manner.” Id. at 28. Appellant’s argument is not persuasive at
least because it is not commensurate with the scope of claim 1, which does
not recite selecting a Web page to be redesigned or improved.
Further, we are not persuaded that helping marketers select which
Web pages to improve is a technical problem, as opposed to a business
challenge facing marketers. Appellant’s claimed invention displays an
indication of the referring source along with the overall sentiment value of
the source content of the referring source and the correlated bounce rate of
Web page visits to the Web site generated from the referring source. This
solution may well help marketers better identify Web pages needing a
redesign. Reply Br. 7. However, the improvement focuses “on selecting
certain information, analyzing it using mathematical techniques, and
reporting or displaying the results of the analysis. That is all abstract.” SAP
Am., Inc., 898 F.3d at 1167.
As the court in DDR Holdings noted, “not all claims purporting to
address Internet-centric challenges are eligible for patent.” DDR Holdings,
773 F.3d at 1258. Here, the “focus” of the claim is not “on the specific
asserted improvement in computer capabilities” (Enfish, 822 F.3d at 1336),
but rather on further specifying what data is collected and analyzed for
display to the user. See, e.g., Reply Br. 4–8 (asserting that the prior art
identifies websites for redesign based on bounce rate and arguing that the
present invention improves this technique by correlating an overall
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sentiment value with the bounce rate and displaying the result); id. at 7
(asserting that “[b]ased on this output, a ‘web page can be identified as
needing a redesign based on a high bounce rate and a corresponding overall
positive source sentiment”).
Appellant’s additional limitations recited in the claim beyond the
abstract idea limit the claimed invention to a particular technological
environment (e.g., involving a computing device, user interface, Web site,
Web page, selectable link, referring source), but this is insufficient to
integrate the abstract idea into a practical application. See Alice, 573 U.S. at
223 (holding that attempting to limit the use of an abstract idea to a
particular technological environment does not make a claim patent-eligible)
(quoting Bilski, 561 U.S. at 610–11); Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016) (“[M]erely limiting
the field of use of the abstract idea to a particular existing technological
environment does not render the claim[] any less abstract”).
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 elements recited in the claim are no more than generic computer
components used as tools to perform the recited abstract idea. As such, they
do 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)); see
also MPEP § 2106.04(d); Guidance, 50 Fed. Reg. at 55. Accordingly, we
agree with the Examiner that claim 1 is directed to an abstract idea.
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Step Two of the Mayo/Alice Framework (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
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 the additional elements amount to
“significantly more” than the judicial exception itself. MPEP § 2106.05(I);
Guidance, 84 Fed. Reg. at 56. Many of the considerations to determine
whether the claim amounts to “significantly more” under step two of the
Alice framework have been considered as part of determining whether the
judicial exception has been integrated into a practical application. MPEP
§ 2106.05(II); Guidance, 84 Fed. Reg. at 56. Thus, at this point of our
analysis, we determine if claim 1 adds a specific limitation, or combination
of limitations, that is not well-understood, routine, conventional activity in
the field, or simply appends well-understood, routine, conventional activities
at a high level of generality. Id.
Appellant argues that the § 101 rejection cannot be sustained because
the Examiner “fails to provide any facts showing that” the additional
elements recited in claim 1 “or the features of ‘obtaining, extracting, and
displaying’ [i.e., limitations (a), (b), and (g)] were “widely prevalent or in
common use in the relevant industry at the time the patent application was
filed.” Appeal Br. 29. Appellant further asserts that “[c]laim 1’s additional
elements . . . of ‘a computing device, analytics application, processor, server,
web page, referring source, user interface, a marketer, search engine,
advertisement, social media page, different web page’ in combination with
claim 1’s” steps of generating, correlating, and displaying, as recited in
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limitations (e) through (g), is “significantly more than ‘organizing human
activity.’” Id. at 29–30. As an initial matter, many of the terms identified by
Appellant are not recited in claim 1 (e.g., processor, server, search engine,
analytics application, marketer, advertisement, social media page, different
web page), though they are recited in other claims. However, we are not
persuaded that any of these terms, as they appear in various claims,
considered individually and as an ordered combination, amounts to
significantly more than the abstract idea.
In particular, the Specification describes each of these additional
elements at a high level of generality, i.e., as generic and conventional. For
example, the Specification provides in the Background section that is known
in the prior art for referring sites (including referals from Web pages, search
engines, and social media pages) to include a selectable link to a Web page
of a marketer. Spec. ¶¶ 1–2. Marketers purchase keywords and phrases for
a search engine so that their Web page displays as a top result when a user
searches a keyword or phrase. Id. ¶ 2. Although marketers receive more
traffic to a Web site from a paid search, the Web site may have a high
bounce rate, indicating a potential “design or function problem with getting
visitors to stay and/or engage via the Web page.” Id. ¶ 3. “Conventional
analytic solutions only indicate the bounce rate for a particular Web page,
and for a high bounce rate, indicate that the Web page is in need of a
redesign in hopes of improving (e.g., reducing) the bounce rate for the Web
page.” Id. A problem with the prior art is that the “many different referring
pages, advertisements, social sites, and the like” make it “difficult to discern
how to improve or redesign the Web page . . . to better engage and keep
visitors interested in the marketing content on the Web page.” Id. Put
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simply, not only are the additional elements set forth by Appellant as well-
known, conventional elements, but the arrangement of these additional
elements to form the particular technological environment in which the
invention is implemented is also set forth by Appellant as well-known and
conventional. See also Spec. ¶¶ 7, 10–11.
To the extent that Appellant contends that the combination of
additional elements and limitations (a) through (g) is not well-understood,
routine, or conventional activity because limitations (a) through (g) are not
well-understood, routine, or conventional, Appellant misapprehends the law.
“[T]he relevant inquiry [under step two of the Mayo/Alice framework (i.e.,
step 2B)] is not whether the claimed invention as a whole is unconventional
or non-routine.” BSG Tech LLC, 899 F.3d at 1290. Instead, the question is
whether the claim includes additional elements, i.e., elements other than the
abstract idea itself, that “‘transform the nature of the claim’ into a patent-
eligible application.” Alice Corp., 573 U.S. at 217 (quoting Mayo, 566 U.S.
at 79, 78). Here, Appellant does not identify any additional elements (i.e.,
elements that are not part of the abstract idea), considered individually or in
combination, that are sufficient to amount to significantly more than the
judicial exception. Therefore, Appellant’s argument is unpersuasive.
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 its dependent claims, which
Appellant contends are allowable by virtue of dependency. Appeal Br. 33.
Appellant presents similar arguments for independent claims 13 and
19 as those presented for claim 1. Appeal Br. 30–33. We do not find these
arguments persuasive for the same reasons set forth above with respect to
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claim 1. Therefore, we sustain the Examiner’s rejection under 35 U.S.C.
§ 101 of claim 13 and 19 and their dependent claims, which Appellant
contends are allowable by virtue of dependency. Appeal Br. 33.
Written Description
Appellant does not present any argument for the rejection of claim 12
under 35 U.S.C. § 112(a) as failing to comply with the written description
requirement. Therefore, Appellant has waived any argument of error, and
we summarily sustain this rejection. See MPEP § 1205.02 (“If a ground of
rejection stated by the examiner is not addressed in the appellant’s brief,
appellant has waived any challenge to that ground of rejection and the Board
may summarily sustain it”); Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir.
2008) (“When the appellant fails to contest a ground of rejection to the
Board, [37 C.F.R.] section 1.192(c)(7) imposes no burden on the Board to
consider the merits of that ground of rejection on the basis of a
representative claim. Rather, the Board may treat any argument with respect
to that ground of rejection as waived.”).
Indefiniteness
Appellant does not present any argument for the rejection of claims
1–20 under 35 U.S.C. § 112(b) as indefinite. Therefore, Appellant has
waived any argument of error, and we summarily sustain this rejection.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
12 112(a) Written Description 12
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Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 112(b) Indefiniteness 1–20
Overall
Outcome
1–20
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