Adobe Inc.

Patent Trials and Appeals Board

Feb 10, 2021

2020003353 (P.T.A.B. Feb. 10, 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.
14/541,334 11/14/2014 Stéphane Moreau 058083-0918553
(P5024US)
8004
72058 7590 02/10/2021
Adobe / Kilpatrick Townsend & Stockton LLP
Mailstop: IP Docketing - 22
1100 Peachtree Street, Suite 2800
Suite 2800
Atlanta, GA 30309-4530
EXAMINER
HENRY, MATTHEW D
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
02/10/2021 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):
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 STÉPHANE MOREAU, ASHISH DUGGAL,
SACHIN SONI, and ANMOL DHAWAN

Appeal 2020-003353
Application 14/541,334
Technology Center 3600
____________

Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s final decision to reject claims 1, 3, 5–11, 14–18, and 21, which
are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Adobe Inc.
Appeal Br. 1.
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CLAIMED INVENTION
Appellant’s claimed invention “generally relates to evaluating leads
for marketing campaigns, and more specifically relates to systems and
methods for generating high quality leads by scoring leads based on one or
more of a referral context, a referrer’s perception towards a marketer’s
product, and user interactions with a marketer’s web site.” Spec. ¶ 1.
Claims 1, 11, and 18 are the independent claims on appeal. Claim 1,
reproduced below, with modified formatting and bracketed notations, is
illustrative of the claimed subject matter.
1. A computer-implemented method for causing a
content delivery system to exclude unwanted content from
electronic communications targeted to a remote user device, the
method comprising:
[a] receiving input identifying a target product;
[b] identifying, via a real-time tracking system, that a
remote user device has accessed a referral web page that
comprises content items associated with the target product and
generated by an additional user device;
[c] determining, via the real-time tracking system:
(i) a referral source context comprising a set of
keywords and associated frequencies, wherein each
keyword is present in the referral web page and present
in a target web page and wherein each frequency
represents a frequency of occurrence of the respective
keyword in the referral web page normalized by a total
number of words in the referral web page; and
(ii) a degree of sentiment of the referral web page,
wherein the degree of sentiment comprises a weighted
average of a measure of sentiment of each of the set of
keywords;
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[d] identifying, by the real-time tracking system, a
plurality of interactions by the remote user device or the
additional user device with the target web page; [e] assigning,
to the remote user device, a score based on the referral source
context, the degree of sentiment, an amount of time spent by the
remote user device or the additional user device on the target
web page, and the plurality of interactions; and
[f] responsive to determining that the score is below a
predetermined threshold:
[g] causing a content delivery system to exclude,
from an electronic communication, content associated
with a keyword having negative sentiment; and
[h] causing the content delivery system to send the
electronic communication lacking the excluded content
to the remote user device, wherein the sending occurs in
real time and with a presentation to the remote user
device of the target web page.
Appeal Br. 23–24 (Claim App.).

REJECTION
Claims 1, 3, 5–11, 14–18, and 21 stand rejected under 35 U.S.C. § 101
as being directed to a judicial exception without significantly more.

ANALYSIS
Appellant argues claims 1, 3, 5–11, 14–18, and 21 as a group. Appeal
Br. 4–22; Reply Br. 1–9. 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).
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35 U.S.C. § 101 Framework
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,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
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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,
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.
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USPTO Section 101 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. Although “[a]ll USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance,” the Guidance “does not create any right or benefit,
substantive or procedural, enforceable by any party against the USPTO.” Id.
The Guidance, by its terms, applies to all applications, and to all patents
resulting from applications, filed before, on, or after January 7, 2019. Id.
at 50.
Under USPTO Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including laws of nature, natural phenomena,
and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b))
(“Step 2A, Prong One”); and (2) additional elements that integrate the
judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2),
2106.04(d)) (“Step 2A, Prong Two”).2

2 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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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. § 2106.05 (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 at a high level of generality, to
the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56.
Step One of the Mayo/Alice Framework
Under the first step of the Mayo/Alice framework and Step 2A, Prong
One of USPTO Guidance, the Examiner determines that the independent
claims recite broadly “analyzing sentiment of webpages to determine what
electronic communication to send to a user device, which is directed towards
the abstract idea of Organizing Human Activity (e.g. advertising).” Ans. 3
(citing Guidance). After considering the language of the claim, the
Examiner states:
[t]he causing, receiving, identifying, determining, identifying,
assigning, causing and causing steps/functions disclosed above

practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at
54–55, MPEP § 2106.04(d).
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and in the independent claims are directed toward the abstract
idea of Organizing Human Activity because the claimed
limitations are receiving input data from a user and determining
a set of normalized keywords to determine a weighted average of
the sentiment for those keywords to determine a score that
determines what data to display to a user (e.g. an advertisement),
which is a commercial interaction.
Final Act. 12. The Examiner states further that the steps/functions identified
in the independent claims are also
directed toward the abstract idea of Organizing Human Activity
because the received user input (e.g. product searches) is being
analyzed to determine sentiment of normalized keywords to
score a user, where the score is used to determine what data to
display to the user, which is managing how a user interacts with
certain products. The claims are all analysis where the results
are merely being displayed to the user.
Id. Under Prong Two of USPTO Guidance, the Examiner determines that
the identified judicial exception is not integrated into a practical application
because receiving data and displaying data using general purpose
computing hardware (e.g. content delivery system, user devices,
processing devices, and/or non-transitory computer readable
mediums) are merely adding the words to apply it with the
judicial exception, merely add insignificant extra-solution
activity (e.g. mere data gathering), and generally link the use of
the judicial exception to a particular technological environment
(e.g. content delivery).
Id. at 13 (citing MPEP §§ 2106.05).
In response, Appellant asserts that the Examiner improperly
characterizes the claims as being “directed to a ‘commercial interaction’
and/or ‘managing how a user interacts with certain products.’” Appeal
Br. 6. Instead, Appellant argues that the claims “are directed to technical
improvements for selectively allowing or preventing network transmission
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of content.” Appeal Br. 5; see also Reply Br. 4 (“[T]he pending claims
describe patent-eligible improvements for causing a content delivery system
to filter unwanted content from electronic communications targeted to a
remote user device.”).
Under the first step of the Mayo/Alice framework and Step 2A of the
USPTO Guidance, we first determine to what claim 1 is directed, i.e.,
whether claim 1 recites an abstract idea and if so, whether claim 1 is directed
to that abstract idea. 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
claim 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.
Reciting a Judicial Exception
In making this determination, we note that the Specification is titled
“GENERATING HIGH QUALITY LEADS FOR MARKETING
CAMPAIGNS,” and states that the disclosure “relates to evaluating leads for
marketing campaigns, and more specifically relates to systems and methods
for generating high quality leads by scoring leads based on one or more of a
referral context, a referrer’s perception towards a marketer’s product, and
user interactions with a marketer’s web site.” Spec. ¶ 1. The Specification
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identifies that it is difficult to prepare effective marketing materials because
it is complicated to find a target market in order to generate sales leads, i.e.,
“determine which consumers may be interested in a product, which
consumers are qualified to purchase the product, and then, which features of
the product should be emphasized or deemphasized for qualified
consumers.” Id. ¶ 2. The Specification discloses that it is difficult to
understand “current consumer sentiment about a product” because
“consumer sentiment changes over time.” Id. According to the
Specification, it is time consuming for marketers and salespeople to find
their target market because “[e]xisting techniques for generating leads are
limited because these techniques generate leads on the basis of static,
‘dumb’ rules without taking into account intelligence related to real time
information about the context, sentiment and interaction that a lead has in
relation to the marketer’s product and services.” Id. ¶ 3.
To address these drawbacks, the present invention
assigns scores to users in order to facilitate selection of which
users will receive electronic marketing communications. The
method includes identifying, by a marketing system, a target
product for the marketing campaign. The method further
includes collecting, by a sentiment engine configured to
determine sentiments of referral sources, a referral context and a
degree of sentiment from a referral source referring a user to a
web page associated with the product. The method also includes
determining time spent by the user on the web page and the user’s
interactions with the web page, and then assigning a score to the
user based at least in part on the time spent by the user on the
web page and the user’s interactions with the web page.
Spec. ¶ 5; Fig. 4.
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Consistent with this disclosure, independent claim 1 recites a “method
for causing a content delivery system to exclude unwanted content from
electronic communications targeted to a remote user device” including steps
for receiving information, i.e., “identifying a target product” (limitation [a]);
monitoring information, i.e., “identifying . . . that a remote user device has
accessed a referral web page that comprises content items associated with
the target product and generated by an additional user device (limitation [b]);
analyzing/parsing information, i.e., “determining . . . (i) a referral source
context” by comparing “a set of keywords and associated frequencies”
present in both the referral web page and a target web page and “(ii) a degree
of sentiment of the referral web page” using “set of keywords” (limitation
[c]); monitoring information, i.e., “identifying . . . a plurality of interactions
by the remote[/additional] user device . . . with the target web page”
(limitation [d]); analyzing/calculating information, i.e., “assigning . . . a
score based on the referral source context, the degree of sentiment, an
amount of time spent by the remote user device or the additional user device
on the target web page, and the plurality of interactions” (limitation [e]); and
presenting or delivering customized information (limitations [f]–[g]).
Appeal Br. 23–24 (Claim App.).
When considered collectively and under the broadest reasonable
interpretation, we agree with the Examiner that independent claim 1, as
summarized above, recites broadly a method of “analyzing sentiment of
webpages to determine what electronic communication to send to a user
device,” which may be characterized a “[c]ertain method[] of organizing
human activity— . . . commercial or legal interactions (including . . .
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advertising, marketing or sales activities or behaviors; business relations).”
Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(II).
As such, we disagree with the Appellant’s assertion that the Examiner
improperly characterizes independent claim 1 as being “directed to a
‘commercial interaction.’” Appeal Br. 6. The delivery of targeted
advertising/marketing to consumers by monitoring, analyzing, and scoring
their activity is a way of providing targeted marketing and similar to the
concepts of customizing and tailoring web page content based on navigation
history and known user information in Intellectual Ventures I LLC v. Capital
One Bank (USA), 792 F.3d 1363, 1369–70 (Fed. Cir. 2015), of customizing
a user interface to have targeted advertising based on user information in
Affinity Laboratories of Texas, LLC v. Amazon.com Inc., 838 F.3d 1266,
1271 (Fed. Cir. 2016), of providing personalized recommendations in
Personalized Media Communications, LLC v. Amazon.Com, Inc., 161 F.
Supp. 3d 325, 338 (D. Del. 2015), aff’d sub nom., 671 F. App’x 777 (Fed.
Cir. 2016), and of targeting advertisements to particular users in Morsa v.
Facebook, Inc., 77 F. Supp. 3d 1007, 1014 (C.D. Cal. 2014), aff'd,
622 F. App’x 915 (Fed. Cir. 2015). Accordingly, we conclude independent
claim 1 recites a way of filtering marketing offers by monitoring and
analyzing data to provide targeted advertising, which is a commercial
interaction of advertising, marketing, or sales activities, one of the certain
methods of organizing human activity as identified in the Guidance, and thus
an abstract idea. Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(II).
Having concluded that claim 1 recites a judicial exception under the
Guidance, Step 2A, Prong One, we next consider whether the claim recites
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additional elements that integrate the judicial exception into a practical
application.
Integration into a Practical Application
We look to whether the claim “appl[ies], rel[ies] on, or use[s] 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,” i.e., “integrates a judicial exception
into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP
§ 2106.04(d). Here, the only additional elements recited in claim 1, i.e.,
elements beyond the abstract idea, are the “real-time tracking system,”
“remote user device,” “additional user device,” and “content delivery
system” — elements that, as the Examiner observes (see Final Act. 13–14),
are “general purposes computing hardware,” recited “at a high level of
generality,” and “perform conventional functions.” See, e.g., Spec. ¶ 83
(“The real-time tracking system 316 comprises one or more computers or
virtual machines.”); ¶ 220 (“Processor device 1104 may be a special purpose
or a general purpose processor device.”).
As is clear from the Specification, there is no indication that the steps
recited in claim 1 require any specialized computer hardware or other
inventive computer components, i.e., a particular machine, invoke any
asserted 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.”); see also Spec. ¶ 231. We also find no
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indication in the Specification that the claimed invention as recited in
claim 1 effects a transformation or reduction of a particular article to a
different state or thing.
Appellant asserts that like the claims in McRO, Inc. v. Bandai Namco
Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), independent claim 1 is
patent eligible because it is “narrowly directed to the application of
particular rules to achieve an improved technological result” and “[t]he mere
fact that these claims include activities involving data analysis or content
delivery does not render them impermissibly abstract.” Appeal Br. 7; Reply
Br. 4–6. More particularly, Appellant argues that
McRO’s determination of morph weights included a level of
specificity comparable to (if not less than) the computation, in
claim 1, of a score based on a referral source context, a degree of
sentiment, an amount of time spent on a target web page, and
interactions with the target web page. Furthermore, like the
present case, McRO’s use of the determined information (i.e., the
improved technological result) involved applying the computed
data to control the manner in which electronic content is provided
to end users.
Appeal Br. 8. However, Appellant’s argument is not persuasive at least
because the Federal Circuit premised its determination that the claims in
McRO were patent eligible, not merely on the specificity of the claimed
animation scheme, but on the fact that the claims, when considered as a
whole, were directed to a technological improvement over existing, manual
3-D animation techniques and used limited rules in a process specifically
designed to achieve an improved technological result in conventional
industry practice. McRO, 837 F.3d at 1316.
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We agree with the Examiner that “Appellant’s claim limitations are
merely implementing the abstract idea using a general purpose computer,
where the computer itself is not being improved.” Ans. 4. Here, as the
Examiner points out, Appellant’s “claims are geared toward analyzing
sentiment of web pages to distribute advertisements, where these techniques
are merely being applied/calculated in a computing environment.” Id. In
the present invention, consumer activity is simply monitored, analyzed, and
scored in order to deliver a targeted advertisement to a consumer without
any technological implementation details. To the extent, Appellant argues
that independent claim 1 is patent eligible because it “‘caus[es] the content
delivery system to send the electronic communication lacking the excluded
content to the remote user device’ and require[es] that ‘the sending occurs in
real time and with a presentation to the remote user device of the target
web page,’” our reviewing court has made clear, that “relying on a computer
to perform routine tasks more quickly or more accurately is insufficient to
render a claim patent eligible.” OIP Techs., Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1363 (Fed. Cir. 2015).
Any improvement directed to excluding content from an electronic
communication or sending the personalized electronic communication to a
remote user in realtime (Appeal Br. 9, 11) is not a technical or technological
improvement; but rather a business improvement related to “analyzing
[consumer] sentiment of webpages to determine what electronic
communication to send to a user device.” Ans. 3; cf. OIP Techs., 788 F.3d
at 1363 (holding that claims are directed to “the abstract idea of offer-based
price optimization”); Enfish, 822 F.3d at 1336 (focusing on whether the
claim is “an improvement to [the] computer functionality itself, not on
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economic or other tasks for which a computer is used in its ordinary
capacity”). See also Bridge & Post, Inc. v. Verizon Commc’ns, Inc.,
778 F. App’x 882, 893 (Fed. Cir. 2019) (“The ability to run a more efficient
advertising campaign, even if novel, and even if aided by conventional
computers, is an advance ‘entirely in the realm of abstract ideas,’ which we
have repeatedly held to be ineligible.”).
Appellant further asserts that independent claim 1 is patent eligible
because it solves an Internet-centric problem with a solution that is
necessarily rooted in computer technology. Appeal Br. 15–17 (citing DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014));
see also Reply Br. 9. More particularly, Appellant argues
the claimed inventions address specific problems present only in
an on-line electronic context. For instance, computing a referral
source context from keywords on a web page and computing a
degree of content of a referral web page filtering web-based
content necessarily requires the use of computer technology (i.e.
one cannot even access web-based content without computer
technology). Further, electronic content filtering cannot be
accomplished without computer technology. Therefore, the
pending claims solve an Internet-centric problem with a solution
that is necessarily rooted in computer technology.
Id. at 17. We disagree.
In DDR Holdings, the Federal Circuit determined that the claims
addressed the problem of retaining website visitors who, if adhering to the
routine, conventional functioning of Internet hyperlink protocol, would be
transported instantly away from a host’s website after clicking on an
advertisement and activating a hyperlink. DDR Holdings, 773 F.3d at 1257.
The Federal Circuit, thus, held that the claims were directed to statutory
subject matter because they claim a solution “necessarily rooted in computer
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technology in order to overcome a problem specifically arising in the realm
of computer networks.” Id. The court cautioned that “not all claims
purporting to address Internet-centric challenges are eligible for patent.” Id.
at 1258. And the court contrasted the claims to those at issue in
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014), in that, in
DDR Holdings, the computer network was not operating in its “normal,
expected manner” and the claims did not “recite an invention that is . . .
merely the routine or conventional use of the Internet.” Id. at 1258–59.
Here, Appellant argues that the present invention addresses the
“Internet-centric problem of filtering electronic content according to metrics
derived from a user device’s interaction with web pages.” Appeal Br. 16.
However, the Federal Circuit has found filtering to be abstract. See, e.g.,
BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,
1348 (Fed. Cir. 2016) (noting generally “that filtering content is an abstract
idea because it is a longstanding, well-known method of organizing human
behavior, similar to concepts previously found to be abstract.”); Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1314 (Fed. Cir. 2016)
(“filtering files/e-mail--is an abstract idea.”).
Appellant also argues that, “determining an amount of time that a user
device spends on a website is necessarily Internet-centric.” Appeal Br. 17.
The difficulty with Appellant’s position, however, is that the claimed
invention here merely applies a judicial exception using generic computers
to the particular technological environment of the Internet. “An abstract
idea on ‘an Internet computer network’ or on a generic computer is still an
abstract idea.” See BASCOM, 827 F.3d at 1348 (citing Intellectual
Ventures I, 792 F.3d at 1368 n. 2 (collecting cases).
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Appellant further argues that independent claim 1 “solve[s] this
Internet-centric problem with a solution that is necessarily rooted in
computer technology (i.e.[,] by enumerating a set of rules that dictate the
computation of referral source context and degree of sentiment and
automatically filtering electronic content, both of which require computing
technology to implement the claimed solution).” Appeal Br. 17. However,
Appellant does not identify how these rules, designed to provide “more
qualified leads to marketers” (Spec. ¶¶ 3, 64), reflect an improvement to the
performance of the computer itself. The ability to run a more efficient
advertising campaign, even if novel, and even if aided by conventional
computers, is an advance “entirely in the realm of abstract ideas,” which
have repeatedly been held to be ineligible. SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018); see also Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (claims that “specify what
information it is desirable to gather, analyze, and display” using
“conventional, generic technology” did not present an inventive concept); In
re Greenstein, 778 F. App’x. 925, 938 (Fed. Cir. 2019) (“[T]he problem of
trustworthy recommendations predates the Internet”).
Thus, we are not persuaded of error in the Examiner’s determination
that the additional elements of claim 1 do not integrate the judicial exception
into a practical application, as the term is used in USPTO Guidance, and we
are not persuaded of error in the Examiner’s determination that claim 1 is
directed to an abstract idea.
Step Two of the Mayo/Alice Framework
Under the second step in the Alice framework and USTPO Guidance
Step 2B, we “[e]valuat[e] additional elements to determine whether they
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amount to an inventive concept [which] requires considering them both
individually and in combination to ensure that they amount to significantly
more than the judicial exception itself.” MPEP § 2106.05(I).
As discussed above, there is no indication here that the steps, recited
in independent claim 1, require any specialized computer or inventive
computer components — the Specification indicates just the opposite. See,
e.g., Spec. ¶¶ 83, 215–234. Here, the only claim elements in independent
claim 1 beyond the abstract idea are the “real-time tracking system,”
“remote user device,” “additional user device,” and “content delivery
system,” i.e., generic componentry, operating in its routine and ordinary
capacity to receive, monitor, analyze, process, and present/deliver
information. See Elec. Power, 830 F.3d at 1355 (gathering, sending,
monitoring, analyzing, selecting, and presenting information does not
transform the abstract process into a patent-eligible invention); Trading
Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed. Cir. 2019) (data
gathering and displaying are well-understood, routine, and conventional
activities); Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d
at, 1341 (determining that there was “no ‘inventive concept’ that
transform[ed] the abstract idea of collecting, displaying, and manipulating
XML data into a patent-eligible application of that abstract idea.”); OIP
Techs, 788 F.3d at 1363 (claims reciting, inter alia, sending messages over a
network, gathering statistics, using a computerized system to automatically
determine an estimated outcome, and presenting offers to potential
customers found to merely recite “‘well-understood, routine conventional
activit[ies],’ either by requiring conventional computer activities or routine
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data-gathering steps” (alteration in original)). Thus, we agree with the
Examiner that the steps of
“receiving input identifying a target product” and “causing a
content delivery system to exclude content associated with a
keyword having negative sentiment; and causing the content
delivery system to send the electronic communication”, even if
not directed towards the abstract idea, would not account for
additional elements that amount to significantly more than the
abstract idea because receiving data and displaying/presenting
data (See MPEP 2106.05) have been identified as well-known,
routine, and conventional steps/functions to one of ordinary skill
in the art.
Ans. 9.
Viewed as a whole, independent 1 simply recites a series of steps for
“analyzing sentiment of webpages to determine what electronic
communication to send to a user device” by receiving, monitoring,
analyzing, processing, and presenting/delivering information. See
Ultramercial, 772 F.3d at 716 (“[T]he claimed sequence of steps comprises
only ‘conventional steps, specified at a high level of generality,’ which is
insufficient to supply an ‘inventive concept.’” (citing Alice, 573 U.S.
at 222)). Here, independent claim 1 does not, for example, purport to
improve the functioning of the computer itself. Nor does it effect an
improvement in any other technology or technical field, as discussed above
with respect to Prong Two of Step 2A. Instead, independent claim 1
amounts to nothing significantly more than an instruction to apply the
abstract idea using generic computing elements, which, under our
precedents, is not enough to transform an abstract idea into a patent-eligible
invention. See Alice, 573 U.S. at 226.
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Appellant asserts that independent “[c]laim 1 recites content filtering
accomplished by using the real-time tracking system to identify sentiments
and referral contexts of the referring web page and causing the content
delivery system to exclude content based on the sentiment and the referral
context obtained via the real-time tracking system.” Appeal Br. 13; Reply
Br. 7–9. Appellant argues that “the particular arrangement of operations
recited in each independent claim is a technical improvement over prior-art
software tools for preventing unwanted transmission of electronic content to
a remote user device” and is therefore analogous to the situation in
BASCOM (see App. Br. 13–14). However, Appellant does not persuasively
explain how, and we do not see how, Appellant’s claim 1 parallels the
claims in BASCOM, which recited a “non-conventional and non-generic
arrangement of known, conventional pieces” within a network, the
arrangement of elements being “a technical improvement over [the] prior art
ways of filtering.” BASCOM, 827 F.3d at 1350.
In BASCOM, the Federal Circuit determined that “its particular
arrangement of elements is a technical improvement over prior art ways of
filtering such content.” Id. The patent at issue “claim[ed] a technology-
based solution (not an abstract-idea-based solution implemented with
generic technical components in a conventional way) to filter content on the
Internet that overcomes existing problems with other Internet filtering
systems.” Id. at 1351. The court determined that “[b]y taking a prior art
filter solution (one-size-fits-all filter at the ISP server) and making it more
dynamic and efficient (providing individualized filtering at the ISP server),
the claimed invention represents a ‘software-based invention[ ] that
improve[s] the performance of the computer system itself.’” Id.
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Here, there is no such improvement to the claimed computer
components themselves. Appellant argues that independent claim 1 is
directed to a technical improvement because it “proactively determin[es],
through a trained machine-learning process, whether certain messages would
be classified as spam and would therefore result in filtering of the messages
or blocking of the messages’ source.” Appeal Br. 14. However, we agree
with the Examiner that the claim limitations “do not recite any sort of
machine learning or determining what messages would be determine[d] to
be spam, but rather are analyzing sentiment of keywords for webpages to
determine what advertisement to transmit to a user.” Ans. 7. Appellant
provides no further arguments how the claim’s particular arrangement and/or
integration of elements is a technical improvement or is otherwise similar to
BASCOM.
We note that, as discussed above, the claim simply recites the
functional results to be achieved by a conventional computer. Claim 1
simply calls for a real-time tracking system to identify and monitor the
activity of a remote user’s device, analyze collected data, and then cause a
content delivery system to exclude and deliver content according to the
analysis. As described in the Specification, the real-time tracking system
“comprises one or more computers or virtual machines” that are simply “in
communication with one or more networks” (Spec. ¶ 83) in order “to access
and retrieve information from the social media sites.” Id. ¶ 85. Intellectual
Ventures I, 792 F.3d at 1370 (holding that “the interactive interface
limitation is a generic computer element” that does not amount to an
inventive concept because “the ‘interactive interface’ simply describes a
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generic web server with attendant software, tasked with providing web pages
to and communicating with the user’s computer”).
We also are not persuaded by Appellant’s argument that “the
Examiner has not established that the combination of element[s] beyond any
abstract idea [is] well understood, routine, or conventional,” as required by
Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018). Appeal Br. 18–21;
Reply Br. 2–3. At the outset, we note that the Examiner provides a citation
to MPEP § 2106.05(d)(II) identifying one or more of the court decisions
noting the well-understood, routine, and conventional nature of the
additional elements. See, e.g., Ans. 8–9. We further note that the Federal
Circuit, in accordance with Alice, has “repeatedly recognized the absence of
a genuine dispute as to eligibility” where claims have been defended as
involving an inventive concept based “merely on the idea of using existing
computers or the Internet to carry out conventional processes, with no
alteration of computer functionality.” Berkheimer, 890 F.3d at 1373; see
also See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1291 (Fed. Cir.
2018) (“BSG Tech does not argue that other, non-abstract features of the
claimed inventions, alone or in combination, are not well-understood,
routine and conventional database structures and activities. Accordingly, the
district court did not err in determining that the asserted claims lack an
inventive concept.”). Moreover, as discussed in greater detail above, there is
no indication in the record that any of the “real-time tracking system,”
“remote user device,” “additional user device,” or “content delivery system,”
require any specialized computer hardware or that it requires any
programming atypical from conventional programming. Instead, the
Specification discloses utilizing a conventional computer arrangement (see,
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e.g., Spec. ¶¶ 83–85, 215–234). See Bancorp Servs., L.L.C. v. Sun Life
Assurance Co. of Can.(U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“The
computer required by some of Bancorp’s claims is employed only for its
most basic function, the performance of repetitive calculations, and as such
does not impose meaningful limits on the scope of those claims.”).
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 independent claim 1, and claims 3, 5–11,
14–18, and 21, which fall with independent claim 1.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5–11,
14–18, 21
101 Eligibility 1, 3, 5–11,
14–18, 21

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

AFFIRMED