Anand Varadarajan

Patent Trials and Appeals Board

Oct 17, 2019

14720016 - (D) (P.T.A.B. Oct. 17, 2019)

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.
14/720,016 05/22/2015 Anand Varadarajan 170103-1971 4144
71247 7590 10/17/2019
Client 170101 c/o
THOMAS HORSTEMEYER, LLP
3200 WINDY HILL RD SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
RAMPHAL, LATASHA DEVI
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
10/17/2019 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):
docketing@thomashorstemeyer.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANAND VARADARAJAN

____________

Appeal 2018-005537
Application 14/720,016
Technology Center 3600
____________

Before ANTON W. FETTING, MICHAEL C. ASTORINO, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant1 appeals from the Examiner’s
rejection of claims 1–6, 8–17, and 19–22. 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 Amazon
Technologies, Inc. (Appeal Br. 2,)
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CLAIMED SUBJECT MATTER
Appellant’s invention “relates to associating item images with item
catalog data.” (Spec. ¶ 8.)
Claims 1, 3, and 15 are the independent claims on appeal. Claim 1 is
illustrative. It recites:
1. A non-transitory computer-readable medium embodying a
program that, when executed in a computing device, causes the
computing device to at least:
obtain an image depicting at least one item;
identify the at least one item from the image based at least
in part on data derived from a plurality of reference images that
are associated with a respective at least one item of a catalog of
items;
responsive to an indication that identifying the at least one
item was incorrectly performed, track the image as a
misidentified image, wherein an accuracy of a subsequent
identification is improved based at least on part on the
misidentified image;
responsive to an indication that identifying the at least one
item was correctly performed, associate catalog data
corresponding to the at least one item with the image;
obtain the catalog data about the at least one item from a
client responsive to at least one of: the indication that identifying
the at least one item was incorrectly performed, or being unable
to identify the at least one item in the image; and
add the catalog data to a catalog of a merchant in an
electronic marketplace.

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REJECTIONS
Claims 1–6, 8–17, and 19–22 are rejected on the ground of
nonstatutory double patenting as unpatentable over claims 1, 13, and 16,
respectively, of U.S. Patent No. 9,043,232 B1 (the ’232 patent).2
Claims 1–6, 8–17, and 19–22 are rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.

The double patenting rejection
Claims 1–6, 8–17, and 19–22 are rejected on the ground of
nonstatutory double patenting over claims 1, 13, and 16, respectively, of the
’232 patent. (Final Action 17–18.) Appellant does not present arguments in
response to this rejection.
Therefore, we summarily affirm this rejection.

The § 101 rejection
“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. Section 101, however,
“‘contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.’” Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Assoc. for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).

2 Because the claims are rejected over an issued patent, we treat the
Examiner’s reference to “provisionally rejected” as a typographical error.
(See Final Action 17.)
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Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 573 U.S. at 217.
Under the two-step framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the
claims are determined to be directed to a patent-ineligible concept, e.g., an
abstract idea, then the second step of the framework is applied to determine
if “the elements of the claim . . . contain[] an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Id. at 221 (citing Mayo, 566 U.S. at 72–73, 79).
With regard to step one of the Alice framework, we apply a “directed
to” two prong test to: 1) evaluate whether the claim recites a judicial
exception, and 2) if the claim recites a judicial exception, evaluate 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.” See USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019 Guidance”).
Here, the Examiner determines that claim 1 is directed “to a medium,
system, and method of associating item images with item catalog data which
is considered to be an abstract idea. Associating item images with item
catalog data is a method of organizing human activity.” (Final Action 19.)
The Examiner also determines that “claim 1 recites steps . . . that can be
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performed in the human mind or by a human using a pen and paper.” (Id.
at 21–22.)
Appellant argues that
the present claims are directed to a specific computer-
implemented solution to the technical challenge of improving an
accuracy of subsequent identifications of an item in an image by
a computer by tracking incorrect identifications and updating
reference data based on the incorrect identifications. The
solution to improving accuracy for subsequent identifications of
an item is accomplished by identifying whether images are
correctly identified, associating the image to the item in catalog
data, and tracking misidentified images to improve accuracy for
subsequent identifications. Then, a client provides updated
catalog data to be added to the catalog data for a merchant when
the item is incorrectly identified or the item is unable to be
identified in the image.

(Appeal Br. 10–11; see also id. at 13.) Appellant also argues that “the
present claims cannot be performed in the human mind, or by a human with
pen and paper because the claims relate to identifying items in images using
a computing device.” (Id. at 11.)
Under step one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
The ‘directed to’ inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural phenomenon
. . . . Rather, 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
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matter.’ Internet Patents Corp. v. Active Network, Inc., 790 F.3d
1343, 1346 (Fed. Cir. 2015).

Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In
other words, the first step of the Alice framework “asks whether the focus of
the claims is on the specific asserted improvement in [the relevant
technology] or, instead, on a process that qualifies as an ‘abstract idea’ for
which computers are invoked merely as a tool.” Id. at 1335–36; see also
2019 Guidance at 54–55.
The Specification provides evidence as to what the claimed invention
is directed. In this case, the Specification discloses that the invention
“relates to associating item images with item catalog data.” (Spec. ¶ 8.)
Claim 1 provides further evidence. Claim 1 recites “obtain[ing] an image
depicting at least one item,” “identify[ing] the . . . item from the image based
. . . on data . . . from . . . images . . . associated with . . . a catalog,”
“responsive to an indication that identifying the . . . item was incorrectly
performed, track[ing] the image as a misidentified image,” “responsive to an
indication that identifying the . . . item was correctly performed,
associat[ing] catalog data corresponding to the . . . item with the image,”
“obtain[ing] the catalog data . . . from a client responsive to . . . [an]
indication that identifying the . . . item was incorrectly performed, or being
unable to identify the . . . item,” “and add[ing] the catalog data to a catalog
of a merchant.”
In view of the above, we agree with the Examiner that these recited
steps can be performed in the human mind, i.e., that the claim recites mental
processes. (See Final Action 21–22; Answer 6; see also 2019 Guidance
at 52.)
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Nonetheless, Appellant argues that “the present claims cannot be
performed in the human mind . . . because the claims relate to identifying
items . . . using a computing device.” (Appeal Br. 11.) We do not find this
argument persuasive. It is well established that where, as in this case, the
“recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an
abstract idea ‘on . . . a computer,’ that addition cannot impart patent
eligibility.” Alice, 573 U.S. at 223 (quoting Mayo, 566 U.S. at 84).
We also do not find persuasive Appellant’s argument that
[w]hen a human is recognizing an item in an image, no one really
knows how a human recognizes the item, but the human is not
recognizing the item “based at least in part on data derived from
a plurality of reference images that are associated with a
respective at least one item of a catalog of items” as recited in
claim 1 or using “hashes, histograms based on image
characteristics, extracted features…, or other data relating to
image characteristics” as set forth in the Specification.

(Reply Br. 6.3) As an initial matter, claim 1 does not recite “recognizing the
item.” Instead, claim 1 recites “identify the at least one item from the
image,” and we note that claim 1 does not recite what constitutes a correct
identification. Nor does claim 1 recite use of hashes or histograms. In short,
Appellant’s argument is not commensurate with the scope of the claim.
Regardless, claim 1 recites “identify the at least one item from the
image based at least in part on data derived from a plurality of reference
images.” In other words, an evaluation/identification is to be made based on
the observation of reference images and associating/comparing the at least

3 Appellant also quotes from dependent claims 4 and 13. But Appellant does
not present separate arguments for the rejection of these claims in the Reply
Brief. (See Reply Br. 5–6.) Nor did Appellant separately argue the rejection
of claims 4 and 13 in the Appeal Brief.
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one item with information from that observation. Thus, this claim limitation
“recites nothing more than the abstract mental steps necessary to compare
two different [images/items].” In re BRCA1- and BRCA2-Based Hereditary
Cancer Test Patent Litig., 774 F.3d 755, 763 (Fed. Cir. 2014) (quoting
Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 689 F.3d 1334
(Fed. Cir. 2012), aff’d in part, rev’d in part, 569 U.S. 576 (2013)); see also
Spec. ¶ 11. Therefore, we do not find Appellant’s argument persuasive.
Additionally, we agree with the Examiner that claim 1 recites
advertising, marketing or sales activities or behaviors, e.g., “add the catalog
data to a catalog of a merchant.” (See Non-Final Action 3; see also 2019
Guidance at 52.)
The steps of claim 1 are accomplished by obtaining an
image/information, identifying an item from the image, tracking the image,
associating data with the image/information, obtaining data, and adding data
to a catalog/database. See, e.g., Content Extraction and Transmission LLC
v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014)
(“[T]he claims of the asserted patents are drawn to the abstract idea of
1) collecting data, 2) recognizing certain data within the collected data set,
and 3) storing that recognized data in a memory.”); Intellectual Ventures I
LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1339–40 (Fed. Cir. 2017)
(Claims to manipulating documents including the step of mapping
components of each data object to one of a plurality of record types,
determined to be “at their core, directed to the abstract idea of collecting,
displaying, and manipulating data.”); In re TLI Commc’ns LLC Patent Litig.,
823 F.3d 607, 611 (Fed. Cir. 2016) (Claims directed “to the concept of
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classifying an image and storing the image based on its classification”
determined to be directed to an abstract idea.)
Appellant argues that the claims are not directed to an abstract idea
but are directed to “a specific technical approach of improving an accuracy
of subsequent identifications of an item in an image by a computer by
tracking incorrect identifications and updating reference data based on the
incorrect identifications.” (Appeal Br. 12.) Appellant also argues that
“claim 1 sets forth a technical improvement of performing the identification
‘based at least in part on data derived from a plurality of reference images
that are associated with a respective at least one item of a catalog of items.’”
(Reply Br. 5.) We do not find these arguments persuasive. Claim 1 does not
recite “a particular way of programming or designing the software . . . , but
instead merely claim[s] the resulting [method].” Apple, Inc. v. Ameranth,
Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016). Indeed, none of the limitations
recite technological implementation details. Claim 1 simply recites the
functional results to be achieved by any means.
Additionally, Appellant’s Specification makes clear that the “non-
transitory computer-readable medium embodying a program” recited in the
preamble of claim 1 includes a well-understood, routine, and conventional
storage medium. (See Spec. ¶ 60 (“[A]ny logic or application described
herein . . . that comprises software or code can be embodied in any non-
transitory computer-readable medium for use by or in connection with an
instruction execution system.”).) Appellant’s Specification also makes clear
the “computing device” recited in the preamble of claim 1 “may comprise,
for example, a server computer or any other system providing computing
capability.” (Id. ¶ 13.)
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We do not see how the recitation of a generic “non-transitory
computer-readable medium” and a generic “computing device,” even in
conjunction with the recited functions, “ensure[s] ‘that the [claim] is more
than a drafting effort designed to monopolize the [abstract ideas].’” Alice,
573 U.S. at 221 (brackets in original) (quoting Mayo, 566 U.S. at 77.)
Although we and the Examiner describe, at different levels of
abstraction, to what the claim is directed, it is recognized that “[a]n abstract
idea can generally be described at different levels of abstraction.” Apple,
Inc., 842 F.3d at 1240. That need not and, in this case, does not “impact the
patentability analysis.” See id. at 1241.
In view of the above, we determine that claim 1 is directed to
advertising, marketing or sales activities or behaviors, and concepts
performed in the human mind. (See 2019 Guidance at 52.) And further in
view of the above, we determine that claim 1 is directed to the abstract ideas
of certain methods of organizing human activity, and mental processes. (See
id.)
Regardless, Appellant argues that “[t]he present claims are similar to
claim 1 of example 23 in Appendix 1 of the July 2015 Update.” (Appeal
Br. 16 (footnote omitted) (citing July 2015 Update Appendix 1: Examples
at 8 (available at https://www.uspto.gov/sites/default/files/documents/ieg-
july-2015-app1.pdf).).) We disagree.
As an initial matter, we note that the Update Appendix simply
presents hypothetical examples. (See Update Appendix 1.) Moreover,
“[e]ligibility-related guidance issued prior to the Ninth Edition, R–08.2017,
of the MPEP (published Jan. 2018) should not be relied upon.” (2019
Guidance at 51.) Nonetheless, we further note that claim 1 of Example 23
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recites a “method for dynamically relocating textual information within an
underlying window displayed in a graphical user interface.” The Update
Appendix explains that this method, unlike claim 1 in the present
application, “is necessarily rooted in computer technology to overcome a
problem specifically arising in graphical user interfaces.” (Update
Appendix 9.) Appellant does not persuasively argue how claim 1, which
does not recite any technological implementation details, is rooted in
computer technology to overcome a technological problem. Thus, we do not
find Appellant’s argument persuasive.
Appellant also seeks to analogize the present claim 1 to claim 1 in
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1313 (Fed.
Cir. 2016). (Reply Br. 4–6.) Specifically, Appellant argues that
[s]imilar to claim 1 in McRO, which obtains a first set of rules
and a timed data file, claim 1 of the present application sets forth
that “an image depicting at least one item” is obtained. Further,
similar to McRO, which sets forth that an intermediary stream
being generated by evaluating sub-sequences against said first
set of rules and a final stream being generated from said
intermediate stream (Id., claim 1), claim 1 of the present
application involves a computing device identifying “at least one
item from the image” using “data derived from a plurality of
reference images that are associated with a respective at least one
item of a catalog of items” and improving “an accuracy of a
subsequent identification ... based at least on part on the
misidentified image.”

(Id. at 5.)
We do not find this argument persuasive. “The claimed improvement
[in McRO] was to how the physical display operated (to produce better
quality images), unlike (what is present here) a claimed improvement in [an
associating] technique with no improved display mechanism.” SAP Am.,
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Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). In other
words, in McRO, data was used to improve the technology, i.e., the display
mechanism. Here, although claim 1 recites, e.g., “obtain[ing],”
“identify[ing],” “track[ing],” “associat[ting],” “obtain[ing],” and “add[ing],”
it merely recites the functional results to be achieved. For example, claim 1
does not recite how the claimed method arrives at the recited “indication that
identifying the at least one item was incorrectly performed.” “Indeed, the
claim language here provides only a result-oriented solution, with
insufficient detail for how a computer accomplishes it. Our law demands
more.” Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d
1332, 1342 (Fed. Cir. 2017).
Additionally, Appellant argues that dependent “claim 2 sets forth that
a computer program causes a computing device to determine at least one of a
sales-success factor or a distinctiveness factor for an item,” and that this
shows that the claim is “not directed to certain methods of organizing human
activity.” (Appeal Br. 13.)
But Appellant does not persuasively argue why determining a factor
regarding an item for a catalog would result in the claim no longer being
directed to advertising, marketing or sales activities or behaviors, i.e., certain
methods of organizing human activity, or why it would result in the claim no
longer being directed to concepts performed in the human mind, i.e., mental
processes.
Step two of the Alice framework has been described “as 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
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than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–
18 (quoting Mayo, 566 U.S. at 72–73).
Appellant argues “that the claims recite specific limitations other than
what is well-understood, routine, and conventional in the field.” (Appeal
Br. 17.) Appellant seeks to analogize the claims in the present application to
the claims in BASCOM Global Internet Services, Inc. v. AT&T Mobility
LLC, 827 F.3d 1341 (Fed. Cir. 2016). (Appeal Br. 18; see also Reply Br. 9–
11.) Specifically, Appellant argues that “the present application . . . recites
elements that are [a] ‘non-conventional’ arrangement of components.”
(Reply Br. 10.)
As one example, claim 1 recites “identify[ing] ... at least one item
from the image based at least in part on data derived from ...
reference images that are associated with ... a catalog of items,”
which is a non-conventional and non-generic way of using image
recognition. As a further example, it is non-conventional and
non-generic to improve “an accuracy of a subsequent
identification based at least in part on the misidentified image,”
as recited claim 1.

(Id.)
We do not find Appellant’s argument persuasive. In BASCOM, the
court determined that “an inventive concept can be found in the non-
conventional and non-generic arrangement of known, conventional pieces.”
BASCOM, 827 F.3d at 1350. Specifically, “[t]he inventive concept
described and claimed in the ’606 patent is the installation of a filtering tool
at a specific location, remote from the end-users, with customizable filtering
features specific to each end user.” Id. at 1350. The Federal Circuit
determined that this “particular arrangement of elements is a technical
improvement over prior art ways of filtering.” Id.
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Here, Appellant’s argument depends on the abstract idea providing the
inventive concept. But it is well established that [i]f a claim’s only
‘inventive concept’ is the application of an abstract idea using conventional
and well-understood techniques, the claim has not been transformed into a
patent-eligible application of an abstract idea.” BSG Tech LLC v.
Buyseasons, Inc., 899 F.3d 1281, 1290–91 (Fed. Cir. 2018). Moreover,
claim 1 does not recite implementation details, i.e., it does not recite “a
particular way of programming or designing the software . . . , but instead
merely claim[s] the resulting [method].” Apple, Inc., 842 F.3d at 1241.
Nor does Appellant persuasively argue why the recited “non-
transitory computer-readable medium” and “computing device” in claim 1
are analogous to a filtering tool, installed at a specific location with
customizable features, that provides a technical improvement in filtering.
Appellant also seeks to analogize the present claims to those in DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). (Appeal
Br. 18–19.) Appellant argues that “the present claims are directed to a
solution of a problem that arises in the realm of computer networks, namely
electronic commerce systems.” (Id. at 18.)
The claims in DDR Holdings “specify how interactions with the
Internet are manipulated to yield a desired result –– a result that overrides
the routine and conventional sequence of events ordinarily triggered by the
click of a hyperlink.” Id. As an initial matter, we note that Appellant’s
claim 1 is silent as to how the “computing device” communicates. Claim 1
recites a program that obtains data from an unspecified source, identifies,
tracks, associates, obtains catalog data (the location of the catalog data not
being specified), and adds data to a catalog of a merchant in an electronic
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marketplace. Appellant does not persuasively argue how this is analogous to
overriding the routine and conventional sequence of events ordinarily
triggered by the click of a hyperlink.
Appellant also seeks to analogize the present claims to those in
Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir.
2016). (Appeal Br. 19–20.) Appellant argues that, similar to Amdocs, “the
claims here relate to programmatically identifying an item in an image using
reference images, receiving whether the recognition was correct, improving
future recognitions based on whether the recognition was correct, and adding
catalog data to a catalog of an electronic marketplace.” (Id. at 19.)
In relevant part, claim 1 of Amdocs recites “computer code for using
the accounting information with which the first network accounting record is
correlated to enhance the first network accounting record.” Amdocs, 841
F.3d at 1299 (emphasis added). In an earlier opinion, Amdocs (Israel)
Limited v. Openet Telecom, Inc., 761 F.3d 1329 (Fed. Cir. 2014) (Amdocs I),
the court had “construed ‘enhance’ as meaning ‘to apply a number of field
enhancements in a distributed fashion.’ [Amdocs I] at 1340. We took care
to note how the district court explained that ‘[i]n this context, “distributed”
means that the network usage records are processed close to their sources
before being transmitted to a centralized manager.’ [Amdocs I] at 1338.”
Amdocs, 841 F.3d at 1300.
In view of the above claim interpretation of the term “enhance,” we
do not find Appellant’s argument persuasive. Specifically, Appellant does
not explain what limitations in claim 1 correspond to the claim element “to
enhance the first network accounting record,” when the term “enhance” is
properly construed.
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Taking the claim elements separately, the functions performed by the
non-transitory computer-readable medium and the computing device at each
step are purely conventional. Obtaining data, identifying data, tracking data,
associating data, obtaining additional data, and adding data to a
catalog/database are basic computer functions, i.e., they are well-understood,
routine, and conventional functions previously known to the industry. See
Elec. Power Grp., 830 F.3d at 1356 (The claims “do not include any
requirement for performing the claimed functions of gathering, analyzing,
and displaying in real time by use of anything but entirely conventional,
generic technology. The claims therefore do not state an arguably inventive
concept . . . .”); see also In re Katz Interactive Call Processing Patent Litig.,
639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower
construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those
functions can be achieved by any general purpose computer without special
programming.”).
Considered as an ordered combination, the generic non-transitory
computer-readable medium and the computing device of claim 1 add
nothing that is not already present when the steps are considered separately.
For example, claim 1 does not purport to improve the functioning of the
non-transitory computer-readable medium or the computing device. Nor
does it effect an improvement in any other technology or technical field.
Instead, claim 1 amounts to nothing significantly more than an instruction to
apply the abstract idea using a generic computing device. That is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 225–26.
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Nonetheless, Appellant argues that “the claims are non-conventional
and non-generic for at least the additional reason that they recite novel and
non-obvious limitations.” (Reply Br. 11.) We do not find this argument
persuasive. Even if the claimed techniques are “[g]roundbreaking,
innovative, or even brilliant,” that is not enough for patent eligibility. Ass’n
for Molecular Pathology, 569 U.S. at 591. “The ‘novelty’ of any element or
steps in a process, or even of the process itself, is of no relevance in
determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.” Diamond v. Diehr, 450
U.S. 175, 188–89 (1981). In sum, “[b]ecause the innovative aspect of the
claimed invention is an entrepreneurial rather than a technological one, it is
patent ineligible.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 722 (Fed.
Cir. 2014).
In view of the above, we are not persuaded that the Examiner erred in
rejecting claims 1 and 2 under § 101. Claims 3–6, 8–17, and 19–22 are not
separately argued and fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).

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CONCLUSION
The Examiner’s rejection of claims 1–6, 8–17, and 19–22 for
nonstatutory double patenting is summarily affirmed.
The Examiner’s rejection of claims 1–6, 8–17, and 19–22 under
35 U.S.C. § 101 is affirmed.

Specifically:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–6, 8–17, 19–
22
nonstatutory
double patenting
1–6, 8–17,
19–22

1–6, 8–17, 19–
22
101 Eligibility 1–6, 8–17,
19–22

Overall
Outcome
1–6, 8–17,
19–22

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