CODY CONSULTING GROUP, INC.

Patent Trials and Appeals Board

Oct 1, 2021

2021000602 (P.T.A.B. Oct. 1, 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.
15/171,186 06/02/2016 DEBBIE R. MABARI 031005.1006 4691
163843 7590 10/01/2021
Davis Graham & Stubbs LLP
1550 17th St.
Suite 500
Denver, CO 80202
EXAMINER
RINES, ROBERT D
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
10/01/2021 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):
lori.lane@dgslaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DEBBIE R. MABARI

Appeal 2021-000602
Application 15/171,186
Technology Center 3600
____________

Before RICHARD M. LEBOVITZ, JOHN G. NEW, and
GEORGIANNA W. BRADEN, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

REQUEST FOR REHEARING
This is a request for rehearing under 37 C.F.R. § 41.79 (“Req. Reh’g”)
of the Decision on Appeal entered Aug. 2, 2021 (“Dec.”). We have
considered Appellant’s arguments, but are not persuaded to change the
outcome of the Decision.1
The request is DENIED.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Cody Consulting Group, Inc. as the
real party in interest. Appeal Br. 1.
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DISCUSSION
An appeal in this application was decided on June 2, 2021 in which
the Examiner’s rejection of claims 19–28 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter was affirmed.
Claim 19, the only independent claim on appeal, is directed to a
“method for developing marketing communications for a healthcare entity.”
The steps of the claim were annotated with bracketed numbers [1]–[10] for
reference to them throughout the Decision.
The Decision summarized the claim as follows:
In general terms, the claim is directed to a method in which
various types of information are gathered (“building” steps [2]-
[4]) and then a marketing communication template is selected
(step [5]), which is rendered into different versions using static
and dynamic rules (from step [3]) and data (step [6]) which link
the information to specific locations in the template (“insertion
opportunities”). A market communication targeted at members
of the healthcare plan is generated (step [10]) using the
templates.
Dec. 8.
The Decision found that steps [1]–[4] of “digitally rendering” and
“building” are “data-gathering” steps which gather templates, media assets,
rules, and member information that are used in the subsequent steps of the
claim. Dec. 12. The Decision found that steps [5]–[10] of the claim recite the
abstract idea of “organizing human activity.” Dec. 7, 15. The Decision also
found that the steps could be performed in part by a human using a pen and
paper, and therefore the claim also recites the abstract idea of a mental
process.
Appellant requests reconsideration of this Decision on the basis that
the Board misapprehended or overlooked “the functionality” in the claim
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“concerning the rules repository and use of the rules, particularly as applied
to the use of dynamic links” which “integrate the asserted abstract idea into a
practical application.” Req. Reh’g 2. Appellant, referencing steps [3], [6],
and [8] of claim 19, states, as part of its argument that the dynamic links
integrate the abstract idea into a practical application, that “an asset insertion
opportunity of a template version has metadata that points to a rule that, in
turn, points to a selected asset option of a set of asset options depending on
user inputs.” Id. Appellant argues that the analysis on pages 17–18 of the
Decision overlooks or misapprehends that a human would not use
“metadata” as recited in the claim. Appellant explains:
In particular, in accordance with the relevant claim language,
the asset insertion opportunity does not include instructions on
what dynamic content to fetch. Rather, it includes metadata that
points to a rule. The rule then employs user input information to
point to the correct content.
. . . .
A human with a pen and paper might even place a note in a
“template” instructing himself to, for example, “get current plan
copay information” or the like. The human would not put
metadata into the asset insertion opportunity that identified a
rule that then used the rule together with user inputs to select
one asset from a set of assets.
The claims do not encompass a principle in the abstract no
matter how implemented.
. . . .
The metadata points to a rule and then the rule intelligently
points to content based on user inputs. The rules can therefore
change over time and the content can change too. The claims
describe a specific way or implementation that integrates the
asserted abstract idea into a practical application.
Req. Reh’g 3.
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For completeness, the steps of the claim which recite the use of the
“metadata” are copied below (emphasis added) (bracketed numbering was
added to the claim in the Decision for reference):
[6] in response to receiving said first set of user inputs,
[6a] identifying a first template and [6b] executing branching
logic to render a set of a plurality of first template versions each
linked with a first storage space associated with said first media
type, [6c] at least one of said plurality of template versions (“a
first template version”) being associated with each of:

1) a first insertion opportunity defined by metadata mapping
said first insertion opportunity to fixed content that is common
to all of said first template versions of said first template [6d]
by pointing to a first asset of said first storage space;
2) a second insertion opportunity defined by metadata
adaptively mapping said second insertion opportunity to
dynamic content defined by a set of asset options [ 6e] by
pointing to a rule of said rules repository that, in turn, points to
a selected one of said asset options of said asset library
depending on user inputs; and
3) a third insertion opportunity defined by metadata
mapping said third insertion opportunity to member data
[6f] by pointing to first member data of said member
information storage structure;

[8] in response to said second set of one or more user inputs,
[8a] rendering at least some of said first template versions
including said subject template version having said second
metadata, and [8b] processing said second set of one or more
user inputs together with said second metadata to adaptively
link a selected one of said assets to said second insertion
opportunity based on said second set of one or more user
inputs;

Step [6] of the claim describes three insertion opportunities.
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In 1), the first insertion opportunity is defined by metadata mapping to
fixed content.
In 2), the second insertion opportunity is define by metadata
adaptively mapping to dynamic content. The dynamic content is also
determined by a rule of the rules depository recited in step [3] of the claim.
In 3), the insertion opportunity is defined by metadata mapping to
member data.
In [8], the metadata is used to render the template and adaptively link
assets to an insertion opportunity.
The Specification does not provide a definition of “metadata” so we
adopt its ordinary meaning as defined in dictionary to mean “data that
provides information about other data.”2 In other words, the metadata is
information about the content to be placed into the insertion opportunity,
such as the type of content (image, text, logo), the size of the content,
content description (co-pay information, event type, plan option, etc.).
Spec. 13:23–28. The Specification explains the metadata can be
implemented using XML tag structure or with a CVS file. Id.
Appellant contends that a human would not use metadata as it is used
in the claim. Req. Reh’g 3. We do not agree. For example, if a person were
to go to library in search of books by a specific author, the person could
access a card catalog (which could be a paper catalog with paper index
cards) and look up the author name alphabetically. Each card in the catalog
could have, for example, the author name, title of a book, publication year,
number of pages, genre, etc., which would enable the person to determine

2 https://www.merriam-webster.com/dictionary/metadata (last accessed
Sept. 12, 2021).
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which book to choose (e.g., if the person wanted the most recently published
book, the book with the least pages to read, a specific genre, etc.). The
information about the book listed in the card catalog is “metadata” because it
is data about the book’s content, and not the content itself. A person, such as
a librarian, made the card catalog. The person accessing the card catalog is
using the catalog card’s “metadata” to make to select a book in the same
way that the metadata in the claim facilitates the selection of content and
assets to build the template and marketing communication. Consequently,
we do not agree that metadata as recited in the claim “is not how humans
work.” Req. Reh’g 3.
Limitation 2) of step [6] also invokes the use of rules. The recited
adaptive mapping is accomplished by “[6e] by pointing to a rule of said rules
repository that, in turn, points to a selected one of said asset options of said
asset library depending on user inputs.” We interpret the “metadata
adaptively mapping” to indicate that the rules and assets are selected by
metadata, namely a description of what the rule does and the content of the
asset. The term “adaptively mapping” does not appear in the Specification,
and the best we can understand what the term means, from the discussion in
the Specification, is that the mapping to the asset is customizable based on
the customers to whom the communication is directed.3 As explained in the
Decision, the rule could be the metadata which specifies what monthly

3 Spec. 12: 21–26: “After the template or a draft marketing communication
developed from the template is finalized, and after the review and approval
process is complete, customized instances of the marketing communication
may be produced from the template to address the various variables noted
above. In this regard, the adaptations required to customize the marketing
communication are often quite substantial, and accuracy is very important.”
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premium to insert into the template based on “the various variables that the
human would know to take into consideration.” Dec. 13–14. For example,
the metadata could point to a rule in the rule repository that specifies that the
co-pay for a particular year, or option plan, changes depending on the year
and the options available at the time the marketing communication is
generated. These choices would be customizable based on these factors. As
explained in the Decision, a human could make these choices. Id.
Appellant argues that “[t]he human would not put metadata into the
asset insertion opportunity that identified a rule that then used the rule
together with user inputs to select one asset from a set of assets.” Req.
Reh’g 3. Appellant offers no explanation and no rebuttal of the findings in
the Decision that such a step could be accomplished by a human as
explained above. Appellant did not identify anything in the Decision which
was misapprehended or overlooked with respect to this point.
Appellant contends that the “claims do not encompass a principle in
the abstract no matter how implemented. They describe a specific way of
directing a machine to deal with different kinds of content.” Req. Reh’g 3.
Appellant states that the “metadata points to a rule and then the rule
intelligently points to content based on user inputs. The rules can therefore
change over time and the content can change too.” Id.
The Decision has already addressed this argument:
The claim does not specify how the rules in the
repository are formulated, how they are inserted into the
template (step [6]), or how the computer uses the rules to insert
the content in the template to generate the marketing
communication (step [10]). The claim states the result, but not
how the result is achieved. There is no mechanism recited that
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dictates how to achieve the result recited in these steps to
convert the recited abstract idea into a practical application.
Dec. 18.
For the foregoing reasons, we decline to modify the Decision.

Summary
Appellant did not identify any misapprehended or overlooked points.
37 C.F.R. § 41.52(a)(1).

CONCLUSION

Outcome of Decision on Rehearing:
Claims 35 U.S.C. § Reference(s)/Basis Denied Granted
19–28 101 Patent-ineligibility 19–28

Final Outcome of Appeal after Rehearing:
Claims 35 U.S.C. § Reference(s)/Basis Affirmed Rejected
19–28 101 Patent-ineligibility 19–28

DENIED