Adobe Inc.

Patent Trials and Appeals Board

Jun 12, 2020

14553911 - (D) (P.T.A.B. Jun. 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.
14/553,911 11/25/2014 Ritwik Sinha P4586-US 8891
108982 7590 06/12/2020
SBMC
116 W. Pacific Avenue
Suite 200
Spokane, WA 99201
EXAMINER
ANDERSON, SCOTT C
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
06/12/2020 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 RITWIK SINHA, SANKET VAIBHAV MEHTA,
TAPAN BOHRA, and ADIT KRISHNAN
__________________

Appeal 2019-000260
Application 14/553,911
Technology Center 3600
____________________

Before JAMES P. CALVE, WILLIAM A. CAPP, and
JEREMY M. PLENZLER, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1–8 and 21–32, which are all the pending
claims. Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Adobe Inc. as the real party in interest. Appeal Br. 2.
Appeal 2020-000260
Application 14/553,911

2
CLAIMED SUBJECT MATTER
Claims 1, 21, and 29 are independent. Claim 1 is reproduced below.
1. In a digital media environment for determining a
sequence of digital or mixed digital and non-digital
communication channels for use in a digital or mixed multi-
channel marketing campaign based on digital information
concerning the digital and non-digital communication channels,
a method comprising:
receiving historic marketing sequence data for multiple
sequences, each sequence indicating communication channels
included in the sequence, an order for IO those communication
channels in the sequence, a category of the sequence, and a
success of the sequence;
receiving a desired category for a desired multi-channel
marketing campaign;
correlating the desired category to one or more categories
of the sequences of the historic marketing sequence data;
reducing the historic marketing sequence data into
filtered sequence data that includes multiple frequent maximal
sequences that satisfy an objective based on the desired
category, and an antecedent sequence for each of the frequent
maximal sequences; and
determining from the filtered sequence data a sequence
for the desired category for the desired multi-channel marketing
campaign, the determining based on a confidence for each of
the multiple frequent maximal sequences based on the
corresponding antecedent sequence, the sequence for the
desired category including multiple determined communication
channels and a determined order for the multiple determined
communication channels.

REJECTION
Claims 1–8 and 21–32 are rejected as directed to a judicial exception
to 35 U.S.C. § 101.

Appeal 2020-000260
Application 14/553,911

3
ANALYSIS
Section 101 of the Patent Act states:
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.
35 U.S.C. § 101. This provision contains an implicit exception: “Laws of
nature, natural phenomena, and abstract ideas are not patentable.” Alice
Corp. Pty. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the elements of each claim, individually and
“as an ordered combination,” to determine if additional elements “‘transform
the nature of the claim’ into a patent-eligible application” as an “inventive
concept” sufficient to ensure the claims in practice amount to significantly
more than a patent on the ineligible concept itself. See id. at 217–18.
The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). Under the Revised Guidance, to determine whether a
claim is “directed to” an abstract idea, we evaluate whether the claim recites
(1) any judicial exceptions, including certain groupings of abstract ideas
listed in the Revised Guidance (i.e., mathematical concepts, certain methods
of organizing human activities such as a fundamental economic practice, or
mental processes); and (2) additional elements that integrate the judicial
exception into a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)
(9th ed. rev. 08.2017 Jan. 2018) (“MPEP”)). Id. at 52–55.
Appeal 2020-000260
Application 14/553,911

4
Only if a claim (1) recites a judicial exception and also (2) does not
integrate that exception into a practical application, do we then consider
whether the claim (3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)) or (4) simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exception. Id. at 56.
Patent Eligibility of Claims 1–8 and 21–32
Appellant argues the claims as a group. Appeal Br. 11–29. We select
claim 1 as representative of the group. See 37 C.F.R. § 41.37(c)(1)(iv).
Examiner’s Determination
The Examiner finds that claim 1 recites “receiving historic marketing
sequence data for multiple sequences,” “receiving a desired category for a
desired multi-channel marketing campaign,” “correlating the desired
category to one or more categories of the sequences in the sequences of the
historic marketing” sequence data based on a desired category, and
“determining” “a sequence for the desired category for the desired multi-
channel marketing campaign” “based on” the available data, the sequence
including an order, and a plurality of channels. Final Act. 2. The Examiner
determines these steps recite “certain methods of organizing human activity”
for “advertising, marketing or sales activities or behaviors.” Id.; Ans. 3–4.
The Examiner determines that the correlating and reducing steps are mental
steps. Ans. 4. The Examiner determines claim 1 lacks additional elements
beyond the abstract idea to provide a practical application and uses a generic
computer (rather than a particular machine) to perform the idea without a
transformation, reduction, or meaningful limit. Final Act. 3–4; Ans. 5–6.
Appeal 2020-000260
Application 14/553,911

5
Appellant’s Contentions
Appellant argues that the claims are to a statutory category but they
are not directed to a judicial exception under the Revised Guidance. Appeal
Br. 11–12. Appellant argues that Example 39 of the 2019 Patent Eligibility
Guidance indicates a claim that is not a mental process. Id. at 13. Appellant
argues that claim 1 includes features that cannot be performed practically in
the human mind including (1) receiving historic marketing sequence data for
multiple sequences, each sequence indicating communication channels in the
sequence, an order for those communication channels, a category of the
sequence, and a success of the sequence, (2) reducing the historic marketing
sequence data into filtered sequence data that includes multiple frequent
maximal sequences that satisfy an objective based on the desired category,
and an antecedent sequence for each of the frequent maximal sequences, and
(3) determining from the filtered sequence data a sequence for the desired
category for the desired multi-channel marketing campaign, the determining
based on a confidence for each of the multiple frequent maximal sequences
based on the corresponding antecedent sequence, the sequence for a desired
category including multiple determined communication channels and a
determined order for the multiple determined communication channels. Id.
at 14. Appellant also contends that the claims are not directed to performing
marketing activities under the Revised Guidance. Id. at 15–17.
Appellant argues that claim 1 provides a practical application because
it determines a best marketing sequence and order for multiple determined
communication channels out of billions of sequences that a marketer cannot
analyze. Id. at 19–20. Appellant asserts that historic, maximal, antecedent,
and filtered sequences impose meaningful limits on the claim. Id. at 20.
Appeal 2020-000260
Application 14/553,911

6
Step 1: Is Claim 1 Within a Statutory Category?
Claim 1 recites “[a] method” which is within a statutory category of
35 U.S.C. § 101, namely, a process. See Ans. 3; Appeal Br. 11. Therefore,
we next consider whether it recites a judicial exception.
Step 2A, Prong 1: Does Claim 1 Recite a Judicial Exception?
We determine that claim 1 recites an abstract idea, which the Revised
Guidance enumerates as certain methods of organizing the human activity of
commercial interactions of advertising, marketing, and sales activities and
mental processes of the human mind. Revised Guidance, 84 Fed. Reg. at 52.
Claim 1 determines sequences of digital/mixed digital and non-digital
communication channels to use in a digital/mixed multi-channel marketing
campaign. See Spec. ¶¶ 3, 18. “[C]ommunication channels” are digital and
non-digital media such as billboards, television ads, radio, newspaper, phone
calls (personal or computer-aided), physical stores (instore), and computer-
enabled channels such as direct web visit, display ad view, display ad
clicked, opened email, clicked email link, social media, paid search, organic
search, online stores, direct messaging, and texting. See id. ¶ 22.
The first step of “receiving historic marketing sequence data for
multiple sequences, each sequence indicating communication channels
included in the sequence, an order for those communication channels in the
sequence, a category of the sequence, and a success of the sequence” recites
this abstract idea as it obtains data related to previous marketing activities
conducted for a category/categories of goods and services and a success of
each ordered sequence of communication channels. Appellant’s Figure 1 is
reproduced below to illustrate this method of organizing marketing, sales,
and advertising activities in a sequence of channels for a category of goods.
Appeal 2020-000260
Application 14/553,911

7

Figure 1 illustrates media environment 100 and computing device
104, which receives marketing data as sequential orders and successes and
builds historic data for sequences and product categories. Spec. ¶¶ 20–23.
Appeal 2020-000260
Application 14/553,911

8
Receiving historic marketing activity data in channel order sequence
with its category and success organizes this marketing and sales activity as
extra-solution activity. Claim 1 does not recite how the historic marketing
activity data is organized into such sequence order by category and success.
The next steps recite “receiving a desired category for a desired multi-
channel marketing campaign” and “correlating the desired category to one or
more categories of the sequences of the historic marketing sequence data.”
In these steps, a marketer can select a category at local computer 102, which
passes the request to remote computer 104. Id. ¶ 21. Remote computer 104
determines one or more marketing sequences that are likely to be successful
based on the desired category and historic data and passes those to computer
102 and its interface 110. Id. As one example, the top five sequences for an
after-market car parts category selected by a marketer are provided to user
interface 110 as “Determined Marketing Sequences” with predicted success
for each sequence in Figure 1. Id. ¶ 23. The top sequence is “o-S-D-G-E,”
which has the highest predicted success using its multi-channel marketing
campaign order: Opened Email, Social Media, Display Ad Clicked, Organic
Search, and Online Store. Id. Communication channels 108 are listed with
an associated symbol for visual brevity in Figure 1. Id. ¶ 22.
The “correlating” step tries to match the historical marketing data to a
requested “desired category.” Id. ¶ 18. Sequencer 210 matches a “desired
category” with one or more same or similar categories that historically were
successful. Id. ¶ 37. Therefore, if a desired category of “selling pet massage
services” is unlikely to have sufficient historic data, similar categories may
be used. Similar categories can include high-end cat scratching posts, high-
end dog training classes, and high-end collars and pet clothing. See id. ¶ 51.
Appeal 2020-000260
Application 14/553,911

9
The limitation of “reducing the historic marketing sequence data into
filtered sequence data that includes multiple frequent maximal sequences
that satisfy an objective based on the desired category . . . .” recites the same
abstract idea of certain methods of organizing human activity for marketing,
sales, and advertising activities and mental processes identified above.
Table 1 of Appellant’s disclosure is reproduced below to illustrate
how historic marketing sequence data can be filtered to provide reduced
sequence data as a mental process and to organize such activity.

Table 1 above illustrates six multi-channel ordered sequences that are
provided from historic marketing sequence data 212. Id. ¶ 36. Table 1 also
indicates whether each sequence was successful. A product sale is not the
sole measure of “success.” Id. ¶ 24. A successful outcome also may include
a positive impression made by a user selecting to watch a video about a
product or completing a survey about a subject of interest to the marketer’s
company. Id. ¶¶ 25, 26.
The sequence P, A, W is a “frequent sequence” because it has support
greater than or equal to a user-specified minimum support. Id. ¶ 40. In this
example, the minimum support specified for this category is 0.2. P, A, W is
frequent because it has a support of 0.5. It is used in three of six sequences
(3/6 = 0.5) and thus exceeds the minimum support of 0.2. See id. ¶¶ 39, 40.
Appeal 2020-000260
Application 14/553,911

10
P, A, W is a “frequent maximal sequence” because it is not contained
in another “frequent sequence”. Id. ¶ 40. The sequence P, A is a “frequent
sequence” whose support of 4/6 is greater than 0.2, but it is not a “frequent
maximal sequence” because it is contained in the P, A, W sequence. Id.
This filtering organizes marketing, sales, and advertising activities. It
is a mental process performable in the human mind. Historic multi-channel
marketing activities are filtered into “multiple frequent maximal sequences”
that satisfy an objective (i.e., a marketing goal, see id. ¶ 41) for a category.
The final step of “determining from the filtered sequence data a
sequence for the desired category for the desired multi-channel marketing
campaign, the determining based on a confidence for each of the multiple
frequent maximal sequences based on the corresponding antecedent
sequence . . . .” recites this same abstract idea. We reproduce Appellant’s
Figure 7 below to illustrate this organizing activity of the abstract idea.

Appeal 2020-000260
Application 14/553,911

11
Appellant’s Figure 7 above illustrates a determination of the five best
sequences 704 for a desired category (Office Supplies), the purchase manner
(Online), and the revenue class (Low). Id. ¶ 54. The predicted success 706
is shown as a statistical measure of confidence but may be provided through
a ranking or a percentage likelihood. Id. ¶ 57.
The claimed “confidence for each of the multiple frequent maximal
sequences” may be determined based on a statistical measure of confidence
such as a confidence interval with upper and lower confidence bounds and a
rank based on a mid-point of these upper and lower bounds. Id. ¶ 53. It may
be calculated as a ratio of support for a multiple frequent maximal sequence
(described above for Table 1) and an antecedent sequence. See id. ¶¶ 40–42.
An “antecedent sequence” is some sequence of channels less than a purchase
sequence. See id. ¶ 41. Support for an antecedent sequence is computed in a
similar manner to the frequent maximal sequence support as described above
for Table 1. See id. ¶ 42. This process also involves mental processes that
can be performed in the human mind or by a person with a pen and paper.
Merely filtering historic marketing sequence data in multiple frequent
maximal sequences to satisfy an objective, desired category, and antecedent
sequence, without any details of the filtering process, also recites an abstract
idea. Similar claims involving a content filtering system for filtering content
retrieved from an Internet computer network was considered an abstract idea
in Bascom Global Internet Svcs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016). The court held 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.” Id. at 1348.
Appeal 2020-000260
Application 14/553,911

12
Claim 1’s method similarly receives historic marketing sequence data
in ordered communication channels by category and filters that data to select
multiple frequent maximal sequences that satisfy an objective of a category
and then determines a sequence with a particular confidence and order for a
desired category. Essentially, it targets a marketing sequence over multiple
communication channels to persons interested in a category of products or
services of a revenue class (high, medium, low), and purchase venue (online,
instore, other). See Spec. ¶¶ 18, 37–42, 49–52, Fig. 6. The method attempts
to optimize selection of multi-channel marketing campaigns by determining
a confidence for each filtered, ordered multiple frequent maximal sequence.
The Specification describes a step of selecting the best/five best sequences in
a category based on a likelihood of success of each sequence. Spec. ¶ 54,
Fig. 7. However, claim 1 does not recite this optimization. It determines a
sequence “based on” a confidence, desired category, and determined order.
Similar claims to providing web pages customized to a user based on
information known about the user and navigation data were held to recite an
abstract idea. See Intellectual Ventures I LLC v. Capital One Bank (USA),
792 F.3d 1363, 1369–70 (Fed. Cir. 2015) (holding that a claim relating to
customizing information and tailoring content based on information known
about the user and navigation data recites an abstract idea).
Here, claim 1 recites a similar method that customizes multi-media
marketing data provided to groups based on information known about their
activities of visiting a website, clicking a displayed ad, opening an email,
clicking an email link, and performing an organic search on the Internet. See
Spec. ¶¶ 22, 23, 30, 35, 52, 77, Fig. 1. Sequences may be selected based on
other information known about the groups such as demographics. Id. ¶ 56.
Appeal 2020-000260
Application 14/553,911

13
Targeting marketing activities through different communication
channels also recites an abstract idea. See Intellectual Ventures I, 792 F.3d
at 1369–70 (holding tailored newspaper inserts and website content based on
information known about a user recites an abstract idea); Bridge and Post,
Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 887 (Fed. Cir. 2019)
(“Targeted marketing is a form of ‘tailoring information based on [provided]
data,’ which we have previously held is an abstract idea.” and “[t]argeted
marketing and market segmentation were originally developed to increase
effectiveness of advertisements placed in traditional media such as radio,
television, and printed newspapers and magazines.”); Customedia Tech.,
LLC v. Dish Network Corp., 951 F.3d 1359, 1362–63 (Fed. Cir. 2020)
(holding claims to a data delivery system providing multimedia data from a
remote server including advertising data recited “the abstract idea of using a
computer to deliver targeted advertising to a user, not to an improvement in
the functioning of a computer.”).
Here, the claimed method selects such channels of communication to
target marketing for a desired category. The communication channels of a
sequence include television, radio, newspapers, physical and online stores,
and web content such as web pages. See Spec. ¶ 22, Fig. 1.
Optimizing a multi-channel marketing campaign based on historic
marketing sequence data for categories and success recites an abstract idea.
In OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1361–62
(Fed. Cir. 2015), a method of selecting the optimal price for a product by
testing prices sent over a network, gathering statistics of how customers
reacted to offers testing the prices, estimating outcomes, and selecting and
offering a new price based on the estimated outcome recited an abstract idea.
Appeal 2020-000260
Application 14/553,911

14
The court held that the claims recited “the concept of offer-based
price optimization,” which concept is similar to fundamental economic
concepts held to be abstract ideas. Id. at 1362. Here, claim 1 recites a
similar method in which historic data is received for different sequences of
previous multi-channel marketing campaigns in different categories and the
success of those campaigns, which are similar to the price surveys in OIP.
This historical marketing sequence data is filtered to determine a sequence
“based on a confidence.” See Spec. ¶¶ 42, 53. Such sequence may include a
best/set of best sequences for a category or a trial run (similar to a survey)
(see id. ¶¶ 37–42, 54), but claim 1 does not require this level of optimization.
Such steps also are similar to claims that recited a mental process in
CyberSource Corporation v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir.
2011). There, the claims recited a method of detecting credit card fraud in
online transactions. The first step obtained information about transactions
that used an Internet address identified with a credit card transaction and
“can be performed by a human who simply reads records of Internet credit
card transactions from a preexisting database.” CyberSource, 654 F.3d at
1372. The second step constructed a map of credit card numbers and can be
performed by a person writing down a list of credit card transactions made
from an IP address. Id. (“There is no language in claim 3 or in the ’154
patent’s specification that requires the constructed ‘map’ to consist of
anything more than a list of a few credit card transactions.”). The third step
used the map of credit card numbers to determine if a credit card transaction
was valid. It can be performed in the human mind by a person observing
that numerous transactions used different credit cards with different user
names and billing addresses originating at the same IP address. Id. at 1373.
Appeal 2020-000260
Application 14/553,911

15
Here, claim 1 recites similar mental steps. The method receives data
for historic marketing sequences of communication channels of categories.
Appellant’s Figure 1 and Table 1, which are reproduced above, illustrate that
a person could receive such ordered sequences and record those pertaining to
a category like the IP addresses received in CyberSource, 654 F.3d at 1372.
A person could determine from the list of sequences, which sequences
were “multiple frequent maximal sequences” that satisfy an objective such
as a minimum support level with a desired confidence of success by making
the basic calculations described in the Specification for Figure 1 and Table 1
discussed above. See Spec. ¶¶ 20–25, 31, 36–42; see also Elec. Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (“In a similar
vein, we have treated analyzing information by steps people go through in
their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category.”); In re TLI Commc’ns
LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016) (“[T]he claims, as
noted, are simply directed to the abstract idea of classifying and storing
digital images in an organized manner. . . . [W]e have applied the ‘abstract
idea’ exception to encompass inventions pertaining to methods or organizing
human activity.”); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc.,
758 F.3d 1344, 1350 (Fed. Cir. 2014) (finding “a process of organizing
information through mathematical correlations” is an abstract idea).
Example 39 of the 2019 Patent Eligibility Guidelines does not dictate
a different result as Appellant contends. See Appeal Br. 13. Appellant is
correct that Example 39 indicates the claim does not recite a mental process
because the steps are not practically performed in the human mind. Id.
However, the claim is for training a neural network unlike claim 1 here.
Appeal 2020-000260
Application 14/553,911

16
We agree with the Examiner that Example 39 includes a claim for
training a neural network for facial detection. The claim is not similar to the
method recited in claim 1 here and does not recite any of the abstract ideas
enumerated in the Revised Guidance. See Final Act. 5; Ans. 4.
Unlike claim 1 of this appeal, the claim in Example 39 recites:
A computer-implemented method of training a neural network
for facial detection comprising:
collecting a set of digital facial images from a database;
applying one or more transformations to each digital
facial image including mirroring, rotating, smoothing, or
contrast reduction to create a modified set of digital facial
images;
creating a first training set comprising the collected set of
digital facial images, the modified set of digital facial images,
and a set of digital nonfacial images;
training the neural network in a first stage using the first
training set;
creating a second training set for a second stage of
training comprising the first training set and digital non-facial
images that are incorrectly detected as facial images after the
first stage of training; and
training the neural network in a second stage using the
second training set.
Subject Matter Eligibility Examples: Abstract Ideas, 8–9 (Jan. 7, 2019).
Collecting a set of digital facial images and transforming each image
by mirroring, rotating, smoothing, and/or contrast reduction effects physical
transformations similar to the patent-eligible claims in McRO, Inc. v. Bandai
Namco Games America, 837 F.3d 1299, 1314–15 (Fed. Cir. 2016); see SAP
Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (noting
the claims in McRO created something physical). Here, claim 1 receives
historic marketing sequence data and performs mental process steps to filter
that data as illustrated in Appellant’s Figure 1 and Table 1 discussed above.
Appeal 2020-000260
Application 14/553,911

17
Nor does claim 1 here involve steps of training a neural network with
digital images or any other data through stages or otherwise. Claim 1 simply
collects and filters sequence data in steps that are recited at a high level of
generality. See Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d
1307, 1317–18 (Fed. Cir. 2016) (holding claims to a database of business
rules applied to email messages to determine a set of actions to be applied to
the email message to control delivery of the email message recited an
abstract idea because “with the exception of generic computer-implemented
steps, there is nothing in the claims themselves that foreclose them from
being performed by a human, mentally or with pen and paper.”); Revised
Guidance, 84 Fed. Reg. at 52 & n.14; MPEP § 2106.04(a)(2); Ans. 4.
The Examiner did not determine that claim 1 recites an abstract idea
because it manipulates and shares information as Appellant alleges. Appeal
Br. 15. The Examiner determined that claim 1 did not recite any additional
claim limitations that amounted to significantly more than the abstract idea
because it recited generic computer functions of manipulating information
and sharing information with persons and/or other devices. Final Act. 3–4.
We discuss this issue in Prong Two of Step 2A below.
Nor did the Examiner rely on In re Ferguson, 558 F.3d 1359 (Fed.
Cir. 2009) to determine that claim 1 recites a method of organizing human
activity for advertising, marketing, and sales activities. Ans. 5; Final Act. 2.
Ferguson addressed a method of organizing business or legal relationships
in the structuring of a sales force (or marketing company). Ferguson, 558
F.3d at 1364; see Revised Guidance, 84 Fed. Reg. at 52 n.13.
Accordingly, we determine that claim 1 recites certain methods of
organizing human activity and mental processes identified above.
Appeal 2020-000260
Application 14/553,911

18
Step 2A, Prong Two: Integration into a Practical Application
We next consider whether claim 1 recites additional elements that
integrate the abstract idea into a practical application. Revised Guidance, 84
Fed. Reg. at 54 (Revised Step 2A, Prong Two). Appellant argues that the
claims are integrated into a practical application because they recite practical
applications. Appeal Br. 19. Appellant argues that claim 1 determines a
sequence of multiple determined communication channels in a determined
order, and the Specification provides examples of ten different channels. Id.
Appellant argues that the method provides a best sequence, or multiple trial
sequences, that are likely to be successful for the desired category, and a
marketer cannot determine a best marketing sequence with large numbers of
potentially ten billion possible sequences. Id. at 19–20. Appellant further
argues that the claims impose a meaningful limit on advertising, marketing,
or sales activities or behaviors by receiving historic sequence data, reducing
it into filtered sequence data with multiple frequent maximal sequences and
an antecedent sequence, and determining a sequence based on a confidence.
Id. at 20. Appellant also asserts that Example 42 of the 2019 PEG Examples
illustrates that claim 1 is integrated into a practical application. Id. at 21–22.
We agree with the Examiner that these limitations of claim 1 recite the
abstract idea identified in Prong One. Claim 1 does not recite any additional
elements to integrate the abstract idea into a practical application. See Final
Act. 3. The Examiner also determines that the limitations of claim 1 do not
improve the functioning of a computer, use the abstract idea with a particular
machine that is integral to the claim, transform or reduce a particular article
to a different state or thing, or apply the abstract idea in a meaningful way to
link it to a particular technological environment. Ans. 6. We agree.
Appeal 2020-000260
Application 14/553,911

19
“It has been clear since Alice that a claimed invention’s use of the
ineligible concept to which it is directed cannot supply the inventive concept
that renders the invention ‘significantly more’ than that ineligible concept.”
BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018);
see id. at 1291 (“As a matter of law, narrowing or reformulating an abstract
idea does not add ‘significantly more’ to it.”); see also RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract
idea (math) to another abstract idea (encoding and decoding) does not render
the claim non-abstract.”); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1151 (Fed. Cir. 2016) (“But, a claim for a new abstract idea is still an
abstract idea.”); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306,
1335 (Fed. Cir. 2015) (holding claims that improved an abstract idea but did
not recite the supposed computer improvements were not patent eligible).
The claimed “historic marketing sequence data,” “communication
channels,” category and success of the sequence, “multi-channel marketing
campaign,” “filtered sequence data” with “multiple frequent maximal
sequences,” “antecedent sequence,” “a confidence,” and “antecedent
sequence” of claim 1 all recite aspects of the abstract idea identified above
under Prong One. Thus, they cannot supply an additional element(s) to
integrate that abstract idea into a practical application.
Appellant’s assertion that the technique can solve billions of possible
sequences to determine the best possible sequence is not commensurate with
the scope of claim 1 and therefore is not persuasive that claim 1 includes an
additional element sufficient to integrate the judicial concept into a practical
application. Stated simply, there is no requirement in claim 1 to process a
billion sequences or to identify or select a best sequence.
Appeal 2020-000260
Application 14/553,911

20
Claim 1 simply recites “receiving historic marketing sequence data for
multiple sequences” and “reducing the historic marketing sequence data into
filtered sequence data that includes multiple frequent maximal sequences.”
These steps recite an abstract idea as discussed above. “[D]etermining from
the filtered sequence a sequence for the desired category . . . based on a
confidence . . . based on the corresponding antecedent sequence . . . and a
determined order for the multiple determined communication channels” also
recites this abstract idea rather than advances in computers or networks. See
Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., 955 F.3d 1317, 1325
(Fed. Cir. 2020) (holding that the specification must always yield to the
claim language when identifying the true focus of a claim).
Claim 1 does not determine a best sequence for a category. The
Specification merely describes sequencer 210 “find[ing] the best or better
sequences likely to lead to a certain objective [to] . . . give[]a measure of the
chance of this objective being satisfied by the sequence.” Spec. ¶ 42
(emphasis added). The Specification thus describes embodiments providing
sequences likely to lead to certain objectives with a measure of chance of an
objective being satisfied. Id. Other embodiments describe sequencer 210
providing “the five best sequences for the desired category” or “the best
sequences for that demographic” (id. ¶¶ 54, 56), but claim 1 does not recite
these features or limit its scope to determining only the best sequence(s) for
an objective in a particular way. See Liebel-Flarsheim Co. v. Medrad, Inc.,
358 F.3d 898, 913 (Fed. Cir. 2004) (“[I]t is improper to read limitations from
a preferred embodiment described in the specification—even if it is the only
embodiment—into the claims absent a clear indication in the intrinsic record
that the patentee intended the claims to be so limited.”).
Appeal 2020-000260
Application 14/553,911

21
The claimed “digital media environment” is claimed generically. It is
described in the Specification as comprising generic computer and network
communication elements as well. Appellant’s Figure 1 illustrates generic
components of network 104, user device 102, and remote computer 104.
Spec. ¶ 20. “[R]emote computing device 104 receives data about marketing
sequences and builds, over time, historic data for these various sequences, as
well as the category of products, services, and so forth.” Id. ¶ 21.
The “communication channels” are claimed and described generically
to communicate digital and non-digital information. See id. ¶ 22, Fig. 1.
Marketers may use some or all available communication channels 108. Id.
¶ 32. There is no indication that Appellant has improved the communication
channels or used them in an innovative way beyond their generic function of
conveying data. Channel order 218 is the order of communication channels
216 in a sequence. It can be chronological from when an email is sent or a
radio ad is aired, or when an email is opened or a radio ad is heard. Id. ¶ 33.
A category can encompass a type or class of product, relationship,
interaction, or service such as a furniture sale, watching a video about a new
gymnasium, starting, renewing, or maintaining a magazine subscription or
monthly subscription to a software app, a sale of a service, a visit to a new
store, use of a coupon, a positive review, reviewing something, reading an
article, completing a survey, or a sale of an item. Id. ¶ 34; see Two-Way
Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1340 (Fed.
Cir. 2017) (“As with claim 1 of the ’187 patent, the problem is that no
inventive concept resides in the claims.”). Arguments that merely repeat
these limitations and assert that they integrate the claims into a practical
application (Appeal Br. 20) are not persuasive.
Appeal 2020-000260
Application 14/553,911

22
These limitations recite abstract ideas not technological advances. See
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d at 1371
(“Requiring the use of a ‘software’ ‘brain’ ‘tasked with tailoring information
and providing it to the user’ provides no additional limitation beyond
applying an abstract idea, restricted to the Internet, on a generic computer.”);
Bancorp Servs., LLC v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d
1266, 1278 (Fed. Cir. 2012) (“To salvage an otherwise patent-ineligible
process, a computer must be integral to the claimed invention, facilitating
the process in a way that a person making calculations or computations
could not.”). Our reviewing court recently held similar activity involving
advertising data in a similar context to be an abstract idea:
In short, by dedicating a section of the computer’s memory to
advertising data, the claimed invention ensures memory is
available for at least some advertising data. This does not,
however, improve the functionality of the computer itself.
Even if we accept Customedia’s assertions, the claimed
invention merely improves the abstract concept of delivering
targeted advertising using a computer only as a tool. This is not
what the Supreme Court meant by improving the functioning of
the computer itself nor is it consistent with our precedent
applying this concept.

Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1363 (Fed.
Cir. 2020). The claims did not enable computers to operate more quickly or
efficiently, or solve any technological problem because:
The only improvements identified in the specification are
generic speed and efficiency improvements inherent in applying
the use of a computer to any task. Therefore, the claimed
invention is at most an improvement to the abstract concept of
targeted advertising wherein a computer is merely used as a
tool. This is not an improvement in the functioning of the
computer itself.
Appeal 2020-000260
Application 14/553,911

23
Id. at 1365 (“They merely recite reserving memory to ensure storage space is
available for at least some advertising data.”).
Appellant’s arguments that the claim imposes meaningful limits is not
persuasive because the limitations cited by Appellant recite the abstract idea
identified above, which does not meaningfully limit the claim or integrate it
into a practical application. See Appeal Br. 19–20; Reply Br. 7.
Arguing that claim 1 recites a process that handles a billion sequences
and many communication channels (Appeal Br. 19–20) is not commensurate
with the scope of claim 1 as discussed above. At best, it asserts benefits of
using a computer as a tool to implement the abstract idea. Using computers
as tools, without any improvement to computer function, is not sufficient to
make an abstract idea patent-eligible. See Customedia, 951 F.3d at 1363.
Even recitation of concrete, tangible components is not sufficient to
make abstract ideas performed on or with that processor patent-eligible.
Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot
transform a patent-ineligible abstract idea into a patent-eligible invention.”).
Here, the focus of claim 1 is not on a technological advance in processors,
networks, or communicate channels. Rather, the focus is on performing an
abstract idea for which computers are invoked as a tool. See Enfish, 822
F.3d at 1335–36; Bancorp, 687 F.3d at 1278 (“[T]he use of a computer in an
otherwise patent-ineligible process for no more than its most basic function–
–making calculations or computations––fails to circumvent the prohibition
against patenting abstract ideas and mental processes.”).
Appellant does not refute the Examiner’s determination that claim 1
does not improve computer functions, use a particular machine, reduce a
particular article, or meaningfully link a computer to the abstract idea.
Appeal 2020-000260
Application 14/553,911

24
As our reviewing court held in a similar context:
The specification states that the invention filled a need for a
system which would “ensure higher access rates, longer browse
times, and increased consumption of media” by users. ’747 col.
3 ll. 15–22. But each of these goals is in the abstract realm—an
improvement in the success or monetization of tracking users
with personalized markings in order to serve advertisements—
not an improvement in networking or computer functionality.
None of these alleged improvements “enables a computer . . . to
do things it could not do before.” Finjan, Inc. v. Blue Coat
Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. 2018) (emphasis
added). Such claims, whose focus is “not a physical-realm
improvement but an improvement in a wholly abstract idea,”
are not eligible for patenting. SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1168 (Fed. Cir. 2018).

Bridge and Post, 778 F. App’x at 889; see Voit Techs., LLC v. Del-Ton, Inc.,
757 F. App’x 1000, 1003 (Fed. Cir. 2019) (“Voit fails to explain how
employing different formats, as claimed, improves compression techniques
or the functioning of the computer. Instead, the specification demonstrates
that the Asserted Claims are directed to use of generic computer components
performing conventional compression techniques to carry out the claimed
invention.”). “Information as such is an intangible” and collecting,
analyzing, and displaying that information, without more, is an abstract idea.
See Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344–45 (Fed. Cir.
2018) (quoting Elec. Power Grp., 830 F.3d at 1353–54 and citing decisions
holding that displaying different types or sets of information from various
sources on a generic display is abstract absent a specific improvement to the
way computers or other technologies operate).
Accordingly, we determine that claim 1 does not include additional
elements that integrate the abstract idea into a practical application.
Appeal 2020-000260
Application 14/553,911

25
Step 2B: Does Claim 1 Include an Inventive Concept?
We next consider whether claim 1 recites elements, individually, or as
an ordered combination, that provide an inventive concept. Alice, 573 U.S.
at 217–18. The second step of the Alice test is satisfied when the claim
limitations involve more than performance of well-understood, routine, and
conventional activities previously known to the industry. Berkheimer v. HP
Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018); see Revised Guidance, 84 Fed.
Reg. at 56 (explaining that the second step of the Alice analysis considers
whether a claim adds a specific limitation beyond a judicial exception that is
not “well-understood, routine, conventional” activity in the field).
Appellant argues that the claims recite a combination of elements that
are not well-understood, routine, or conventional, and incorporate steps that
are unconventional and confine the claims to a particular useful application.
Appeal Br. 23. Appellant also argues that the Examiner admits there is no
prior art so it is unclear how a combination of elements that is not known in
the art can be conventional or routine. Id. at 23–24; Reply Br. 9–11.
This argument is not persuasive because, as an ordered combination,
claim 1 recites no more than the abstract idea identified above. Therefore, it
cannot provide an inventive concept. See BSG, 899 F.3d at 1290. Even if
the steps are groundbreaking, innovative, or brilliant, that is not enough for
eligibility. See Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569
U.S. 576, 591 (2013); accord SAP Am., Inc. v. InvestPic, LLC, 898 F.3d
1161, 1163 (“No matter how much of an advance in the finance field the
claims recite, the advance lies entirely in the realm of abstract ideas, with no
plausibly alleged innovation in the non-abstract application realm. An
advance of that nature is ineligible for patenting.”).
Appeal 2020-000260
Application 14/553,911

26
Individually, the limitations of claim 1 recite aspects of that abstract
idea. A novel or non-obvious abstract idea is still an abstract idea. Ericsson,
955 F.3d at 1330 (“Even assuming that this collection of elements led to a
more efficient way of controlling resource access, ‘our precedent is clear
that merely adding computer functionality to increase the speed or efficiency
of the process does not confer patent eligibility on an otherwise abstract
idea.”); see also Customedia, 951 F.3d at 1366 (“Aside from the abstract
idea of delivering targeted advertising, the claims recite only generic
computer components.”).
Notably, claim 1 recites results rather than innovative ways to achieve
the results. Claim 1 recites “receiving historic marketing sequence data for
multiple sequences” but does not describe an innovative way in which that
data is recited or ordered. Claim 1 recites “reducing the historic marketing
sequence data into filtered sequence data” but does not describe how that
process is performed to improve computer functionality. The same can be
said for “determining from the filtered sequence data a sequence for the
desired category . . . based on a confidence . . . .” If an inventive step is used
to perform any of these steps, it is not recited in claim 1.
Accordingly, we determine that claim 1 does not recite any elements,
individually or as an ordered combination, that provide an inventive concept
sufficient to transform the abstract idea into patent eligible subject matter.
Thus, we sustain the Examiner’s determination that claims 1–8 and
21–32 are directed to patent-ineligible subject matter under 35 U.S.C. § 101.

Appeal 2020-000260
Application 14/553,911

27
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–8, 21–32 101 Eligibility 1–8, 21–32
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