Ex Parte Stevens et al

Patent Trial and Appeal Board

Feb 28, 2018

12814893 (P.T.A.B. Feb. 28, 2018)

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.
12/814,893 06/14/2010 Mark B. Stevens AUS920100145US1 1270
(309301)
82553 7590
Walter W. Duft
P.O. Box 378
Clarence Center, NY 14032
EXAMINER
HENSON, MISCHITA L
ART UNIT PAPER NUMBER
2865
NOTIFICATION DATE DELIVERY MODE
03/02/2018 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):
wduft @ duftlawoffice. com
xbmufss@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK B. STEVENS and JOHN D. WILSON
Appeal 2016-0026901
Application 12/814,893
Technology Center 2800
Before N. WHITNEY WILSON, AMEE A. SHAH, and JULIA HEANEY,
Administrative Patent Judges
SHAH, Administrative Patent Judge.
DECISION ON APPEAL2
The Appellants3 appeal under 35 U.S.C. § 134(a) from the Examiner’
final decision rejecting claims 11 and 13—20, which are all of the pending
claims, under 35 U.S.C. § 101 as being directed to non-statutory subject
matter. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 We note related appeal 2016-002752 for application number 13/432,757.
Appeal Br. 2.
2 Throughout this Decision, we refer to the Appellants’ Appeal Brief
(“Appeal Br.,” filed July 20, 2015), Reply Brief (“Reply Br.,” filed Jan. 11,
2016), and Specification (“Spec.,” filed June 14, 2010), and to the
Examiner’s Answer (“Ans.,” mailed Nov. 9, 2015) and Final Office Action
(“Final Act.,” mailed Feb. 20, 2015).
3 According to the Appellants, the real party in interest is International
Business Machines Corporation. Appeal Br. 2.
Appeal 2016-002690
Application 12/814,893
STATEMENT OF THE CASE
The Appellants’ invention “generally relates to the movement and
interaction of nodes, agents, and other devices and objects within intelligent
systems and networks,” and “more specifically relates to movement
prediction and tracking for mobile or roving objects in a real-world scenario
with a plurality of independent, intelligent actors.” Spec. 11.
Claim 11 (Appeal Br. 27—28 (Claims App.)) is the only independent
claim on appeal, is representative of the subject matter on appeal, and is
reproduced below (with added paragraphing for clarity):
11. A system, comprising:
a plurality of fixed nodes, the plurality of fixed nodes
including a selected node;
a network facilitating communication between the
plurality of fixed nodes;
one or more mobile nodes navigating through a field of
nodes containing some or all of the plurality of fixed nodes;
each of the one or more mobile nodes comprising
an electronic device having processing capabilities;
hardware within the plurality of fixed nodes executing
processing instructions to track the one or more mobile nodes
within the field of nodes containing some or all of the plurality
of fixed nodes, the processing instructions configured for:
receiving, at the selected node, positional data
indicating a geographic location of the one or more
mobile nodes within the field of nodes, the positional
data including location measurements conducted by other
nodes in the field of nodes;
collecting historical positional data of the one or
more mobile nodes, the historical positional data
including a plurality of the positional data received at the
selected node indicating geographical locations of the
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one or more mobile nodes within the field of nodes over
a period of time;
tracking a geographic path and movement
characteristics of the one or more mobile nodes in the
field of nodes within the period of time based on the
historical positional data;
predicting future geographic locations of the one
or more mobile nodes within a period of future time
based on the geographic path and the movement
characteristics of the one or more mobile nodes;
estimating a time of arrival and a likelihood of
arrival of the one or more mobile nodes to a defined
proximity of the selected node, by factoring the future
geographic locations of the one or more mobile nodes
within the period of future time; and
performing anticipatory processing at the selected
node prior to arrival of the one or more mobile nodes to
the defined proximity in response to the estimated time of
arrival and the likelihood of arrival of the one or more
mobile nodes.
ANALYSIS
Under 35 U.S.C. § 101, a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” The Supreme Court has “long held that
this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. Pty.
Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2354 (2014) (quoting Assn for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 588—89
(2013)).
The Supreme Court in Alice reiterated the two-step framework, set
forth previously in Mayo Collaborative Services v. Prometheus
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Laboratories, Inc., 566 U.S. 66, 78—79 (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, 134 S. Ct.
at 2355. The first step in that analysis is to “determine whether the claims at
issue are directed to one of those patent-ineligible concepts.” Id. (citing
Mayo, 566 U.S. at 79) (emphasis added). If so, the second step is to
consider the elements of the claims “individually and ‘as an ordered
combination”’ to determine whether the additional elements “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting
Mayo, 566 U.S. at 79, 78).
In other words, the second step is to “search for an ‘inventive
concept’—i.e., an element or combination of elements that is ‘sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.’” Id. (alteration in original) (quoting
Mayo, 566 U.S. at 72—73). The Court acknowledged in Mayo, that “all
inventions at some level embody, use, reflect, rest upon, or apply laws of
nature, natural phenomena, or abstract ideas.” Mayo, 566 U.S. at 71. We,
therefore, look to whether the claims focus on a specific means or method
that improves the relevant technology, or are instead directed to a result or
effect that itself is the abstract idea, and merely invoke generic processes and
machinery, i.e., “whether the focus of the claims is on [a] specific asserted
improvement in computer capabilities ... or, instead, on a process that
qualifies as an ‘abstract idea’ for which computers are invoked merely as a
tool.” Enfish, LLCv. Microsoft Corp., 822 F.3d 1327, 1335—36 (Fed. Cir.
2016).
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Before turning to the steps of the Alice framework, we address the
Appellants’ arguments regarding the requirements of the Examiner’s
rejection. See Appeal Br. 8—15, Reply Br. 4—9. We find unpersuasive the
Appellants’ argument that the Examiner’s rejection is in error because “the
Examiner has not made a prima facie case for unpatentability under
35 U.S.C. § 101” (Appeal Br. 14) because “the rejection does not satisfy the
guidelines set forth in the December 16, 2014 ‘Interim Guidance On Patent
Eligible Subject Matter’ set forth at 79 Federal Register 241 (hereinafter the
‘Interim Eligibility Guidance’)” {id. at 8, 14) and does not provide
“‘reasoned rationale’” (Reply Br. 6). See also Reply Br. 8—10.
In rejecting the pending claims under § 101, the Examiner analyzes
the claims using the Mayo/Alice two-step framework. Specifically, the
Examiner takes claim 11 as representative of all the claims, looks to the
language of the claim, and finds that claims 11 and 13—20 are directed to the
abstract idea of “tracking and estimating a time of arrival and likelihood of
arrival” through mathematical correlations. Final Act. 3, Ans. 3^4. The
Examiner further finds that the additional elements of the claims, taken
alone and as an ordered combination, do not transform the abstract idea into
a patent eligible invention, because they “amount[] to no more than:
recitation of generic computer structure that serves to perform generic
computer functions that are well-understood, routine, and conventional
activities previously known to the pertinent industry.” Final Act. 3. The
Examiner applies the analysis of claim 11 to all of the claims. See id.',
Ans. 3^4. Thus, the Examiner has set forth the statutory basis of the
rejection in a sufficiently articulate and informative manner as to meet the
notice requirement of § 132 as to why the claims are patent-ineligible. See
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In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011); see also Chester v. Miller,
906 F.2d 1574, 1578 (Fed. Cir. 1990) (Section 132 “is violated when a
rejection is so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection”).
We are aware of no controlling authority that requires the Examiner to
provide “examples of the alleged abstract idea” (Appeal Br. 11) or to
identify the abstract idea “by reference to prior judicial decisions in which
concepts have been found to represent abstract ideas, based on common
characteristics” (Reply Br. 8). We note that the guidelines are not legal
requirements. Intellectual Ventures ILLC v. Erie Indemnity Co., No. 2017-
1147, 2017 WL 5041460, at *4 (Fed. Cir. 2017); In re Fisher, 421 F.3d
1365, 1372 (Fed. Cir. 2005) (“The MPEP and Guidelines ‘are not binding on
this court’”) (internal citations omitted); MPEP, Foreword (“The Manual
does not have the force of law or the force of the rules in Title 37 of the
Code of Federal Regulations”); and 2014 Interim Eligibility Guidance at
74619 (“This Interim Eligibility Guidance does not constitute substantive
rulemaking and does not have the force and effect of law . . . and is not
intended to create any right or benefit, substantive or procedural, enforceable
by any party against the Office”). We decline to find error in the Examiner’s
decision not to recite a judicial decision.
There is also no specific requirement that requires that each claim be
examined individually by the Examiner (Reply Br. 10; see also Appeal
Br. 20—26) in determining that the claims are directed to an abstract idea.
See Alice, 134 S. Ct. at 2355—57. We decline to find error in the Examiner’s
decision not to recite each dependent claim limitation and address its patent-
eligibility separately. The Examiner’s discussion in the Final Office Action
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appears under the heading “Claims 11 and 13—20 are rejected under
35 U.S.C. 101 because the claimed invention is directed to non-subject
statutory matter.” Final Act. 3 (emphasis omitted). There is no indication
that the Appellants were not put on notice of the Examiner’s rejection
regarding the dependent claims or that the rejection otherwise failed to
satisfy the requirements of 35 U.S.C. § 132.
The Appellants’ argument that “the final rejection should be judged
on what is defined as the abstract idea in the rejection itself, not the further
elaboration of the abstract idea set forth in the ‘Response to Arguments’
section of the final Office Action, and again in the ‘Response to Argument’
section of the Examiner’s Answer” (Reply Br. 5) is misplaced. The Board
considers all evidence of record, including clarifications to the rejection as
presented in the Examiner’s Answer in response to the Appellants’
arguments. See 37 C.F.R. § 41.30 (the record includes items listed in the
official file). To the extent the Appellants contend that the Examiner’s Final
Action or Answer contains a new ground of rejection, the Appellants’
recourse was to file a petition under 37 C.F.R. § 1.181 to the Director.
37 C.F.R. §41.40(a).
We are not persuaded of Examiner error by the Appellants’ argument
that “the claims as a whole do not preempt or tie up any identifiable
abstract idea” (Appeal Br. 9)’ and thus, “pass[] muster under 35 U.S.C.
§ 101” (id. at 11) under the “Streamlined Eligibility Analysis” of
section (I)(B)(3) of the IEG. See id. at 9-13. There is no dispute that the
Supreme Court has described “the concern that drives [the exclusion of
abstract ideas from patent eligible subject matter] as one of pre-emption.”
Alice Corp., 134 S. Ct. at 2354. But characterizing preemption as a driving
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concern for patent eligibility is not the same as characterizing pre-emption as
the sole test for patent eligibility. “The Supreme Court has made clear that
the principle of preemption is the basis for the judicial exceptions to
patentability” and “[f]or this reason, questions on preemption are inherent in
and resolved by the § 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice, 134 S. Ct. at 2354).
“[Preemption may signal patent ineligible subject matter, [but] the absence
of complete preemption does not demonstrate patent eligibility.” Id. The
aforementioned concept is not sufficiently limiting so as to fall clearly on the
side of patent-eligibility.
Further, as set forth in the Interim Eligibility Guidance, the
streamlined analysis is an optional tool for Examiners to use at the
Examiner’s discretion. See IEG at 74625 (“[A] streamlined eligibility
analysis can be used.”) (emphasis added). “[I]f there is doubt as to whether
the applicant is effectively seeking coverage for a judicial exception itself,
the full analysis should be conducted.'1'’ Id. (emphasis added). Here, the
Examiner’s decision to perform a full § 101 analysis is not an error.
Turning to the first step of the Mayo/Alice framework, the Examiner
looks to the claim language and makes clear that the Examiner determines
that the claims are directed to “the fundamental concept of tracking and
estimating a time of arrival and likelihood of arrival,” an abstract idea. Final
Act. 3; see also Ans. 3. The Appellants appear to contest that the claims are
directed to an abstract idea, arguing that the claims “pertain[] to a specific
communication network topology” based on the language of the claims.
Appeal Br. 11—12; Reply Br. 4—5.
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Before determining whether the claims at issue are directed to an
abstract idea, we must first determine what the claims are directed to.
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—after all, they take place in the physical world.
See Mayo, 132 S. Ct. at 1293 (“For all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas.”) 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 matter.” Internet Patents
Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015); see Genetic Techs. Ltd. v. Merial L.L.C., [818 F.3d
1369, 1375] (Fed. Cir. 2016) (inquiring into “the focus of the
claimed advance over the prior art”).
Enfish, 822 F.3d at 1335.
The step-one analysis requires us to consider the claims “in their
entirety to ascertain whether their character as a whole is directed to
excluded subject matter.” Internet Patents Corp., 790 F.3d at 1346. The
question is whether the claims as a whole “focus on a specific means or
method that improves the relevant technology” or are “directed to a result or
effect that itself is the abstract idea and merely invoke generic processes and
machinery.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1314 (Fed. Cir. 2016).
In this case, the Specification states that the invention relates to
“movement prediction and tracking for mobile or roving objects in a real-
world scenario” (Spec. 11) and to “techniques that allow a fixed node to
anticipate and respond to the arrival or projected arrival of mobile nodes into
its locale” {id. 1 6). Claim 11 provides for a system comprising the structure
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of a network, at least one mobile node of a device with processing
capabilities, and a plurality of fixed nodes with hardware executing
instructions to perform the functions of receiving positional data,4 collecting
historical data, tracking a path, predicting future location data, estimating
arrival time and likelihood data, and performing anticipatory processing.
Appeal Br. 27—28 (Claims App.). The nodes are known computing devices
capable of detecting and processing movement, such as cellphones,
smartphones, tablets, and cameras. Spec. Tflf 22, 23. The tracking of a path
and predicting of future locations are determined by analyzing and
comparing positional data. See id. ]Hf 37—39. The anticipatory processing
performed can include customizing advertisements to be displayed, offering
incentives, performing credit checks, freeing up processing resources, or
identifying if a node is associated with a known customer, i.e., comparing
data. Id. ]Hf 25—30. The dependent claims provide limitations for obtaining
and communicating positional data, receiving movement data, and
computing path data, limitations narrowing the type of positional data, and
limitations further defining the data for tracking. See Appeal Br. 28—30.
In that context, we determine that the claims are directed to collecting
and analyzing data to track and predict movement of a mobile object, and
perform some processing action or commercial activity.5 This is similar to
4 We note that the claim recites that the positional data includes “location
measurements conducted by other nodes,” but that there is no step of
conducting measurements positively recited. Further, the Specification does
not describe or provide any details on how the measurements are conducted
such that it is not simply the receiving or obtaining of data. See Spec. 110.
5 We note that “[a]n abstract idea can generally be described at different
levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240
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claims found to be abstract ideas by our reviewing court in Electric Power
Group, LLCv. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)
(holding that collecting and analyzing information and displaying results of
the analysis is an abstract idea), Automated Tracking Sols., LLC v. Coca-
Cola Co., No. 2017-1494, 2018 WL 935455, at *3 (Fed. Cir. 2018) (holding
that locating, identifying, and/or tracking of an object by collecting data
from sensors, analyzing data, and determining results based on the analysis
was an abstract idea), Two-Way Media Ltd. v. Comcast Cable
Communications, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017) (holding that
monitoring delivery of information and measuring such delivery for
commercial purposes were abstract ideas), and Intellectual Ventures I LLC v.
Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (collecting,
displaying, and manipulating data). Here, the claims involve nothing more
than receiving, collecting, tracking (i.e., determining), predicting and
estimating (i.e., analyzing) data and performing processing resulting of the
analysis of the data, without any implementation details, technical
description, or unconventional use of or novel technology — an abstract
idea. See Elec. Power Grp., 830 F.3d at 1354; cf Thales Visionix Inc. v.
United States, 850 F.3d 1343, 1348—49 (Fed. Cir. 2017) (claims used inertial
sensors in a non-conventional manner, as described in the Specification,
specified a particular configuration of sensors, and used raw data from
sensors to more accurately calculate the position, and thus, were not directed
to an abstract idea).
(Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis
does not impact the patentability analysis.” Id. at 1241.
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We find unpersuasive the Appellants’ argument that the claims are not
directed to an abstract idea because “[t]he operations are concrete, not
abstract, and they represent physical actions, not ideas.” Appeal Br. 15.
“[N]ot every claim that recites concrete, tangible components escapes the
reach of the abstract-idea inquiry.” In re TLI Comm’s LLC Patent
Litigation, 823 F.3d 607, 611 (Fed. Cir. 2016). Here, the “concrete”
operations pertain to information. “Information as such is an intangible;”
receiving, collecting, tracking, predicting, and estimating data without more
are abstract, and performing processing with routine tools “is abstract as an
ancillary part of such collection and analysis.” Elec. Power Grp., 830 F.3d
at 1353-54.
We similarly disagree that the claims are not directed to an abstract
idea because “this recited combination of operations is so specific and
particularized as to be incapable of being classified as an unpatentable
abstract idea as contemplated by current section 101 jurisprudence.” Reply
Br. 9. The limitations, even if specific, merely elaborate on the abstract idea
without inventive technology.
Under the second step of the Mayo/Alice framework, we adopt and
find supported the Examiner’s determination that the claim limitations, taken
individually or as an ordered combination, do not recite an inventive
concept. See Final Act. 3^4; Ans. 4—6. We are unpersuaded by the
Appellants’ arguments to the contrary. See Appeal Br. 15—19; Reply Br. 9.
The steps of receiving positional data, collecting historical data,
tracking path and movement data, predicting future location data, estimating
time and likelihood data, obtaining and communicating positional data, and
performing processing are basic, purely conventional functions of a
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computing device. See Alice, 134 S. Ct. at 2359; Automated Tracking, 2018
WL 935455, at *5; Enfish, 822 F.3d. at 1336 (focusing on whether the claim
is “an improvement to [the] computer functionality itself, not on economic
or other tasks for which a computer is used in its ordinary capacity”). The
Specification supports this view. Although the Specification does not
include a figure representing the components of the system claimed, the
Specification does provide that “a node may be any device or ‘thinking’
being, such as a computing device, electronic processing unit, sensor, or
other object that is capable of detecting and processing movement of other
nearby objects.” Spec. 122. “As a non-limiting example, these fixed and
mobile nodes may be any of a variety of devices, such as cellphones,
smartphones, computers, tablets, navigation devices, cameras, or other
electronic devices having sensory and processing capabilities,” i.e., generic
devices. Id. 123. There is no further specification of particular technology
for performing the steps. See Affinity Labs of Texas, LLC v. DIRECTV,
LLC, 838 F.3d 1253, 1263 (Fed. Cir. 2016); see also Enfish, 822 F.3d.
at 1336.
The Appellants recite the limitations of the claim and simply state that
they are “unconventional and part of applicant’s invention.” Appeal
Br. 16-26; see also Reply Br. 9-10 (arguing the nodes do not operate in a
conventional manner). The Appellants’ argument that the functions are not
conventional functions of a generic processor/device is unpersuasive of
error. The nodes do not require a nonconventional processor, are not used in
an unconventional manner, and do not communicate in an unconventional
way. See Elec. Power Grp., 830 F.3d at 1355; Automated Tracking, 2018
WL 935455, at *5. The Appellants do not provide support or reasoning as to
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how or why the claimed functions of receiving, collecting, determining,
analyzing data, and of performing processing of data resulting from the
analysis are not conventional functions of a generic computer. The
introduction of a computer to implement an abstract idea is not a patentable
application of the abstract idea, and the computer implementation here is
purely conventional and performs basic functions. See Alice, 134 S. Ct. at
2357—60. The Appellants do not adequately show how the claimed
functions are done technically such that they are not routine and
conventional functions of a generic computer. See Versata Dev. Grp., Inc. v.
SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015).
We disagree with the Appellants’ contention that the claims
“represent an improvement in computerized communication networks, and
particularly mobile networks.” Appeal Br. 16. The network claimed to
“facilitate[e] communication between nodes” is not improved by the
hardware of the nodes performing the recited functions. The Appellants do
not explain, or direct attention to where the Specification describes, how the
mobile network itself is technologically improved. Rather, the Specification
describes the use of generic networks and known peer-to-peer technology.
See Spec. 145.
We are also unpersuaded of Examiner error by the Appellants’
argument that the claims are “confme[d] ... to a particular useful
application.” Appeal Br. 16. The mere recitation of a practical application
for an abstract idea is insufficient to transform the abstract idea into a patent-
eligible invention. Cf. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1371 (Fed. Cir. 2011) (“The Court [in Parker v. Flook, 437 U.S. 584
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(1978)] rejected the notion that the recitation of a practical application for
the calculation could alone make the invention patentable.”).
In response to the Appellants’ argument that the claims are patent-
eligible under § 101 because they are “novel and unobvious” (Appeal
Br. 16) and were “found to satisfy sections 102 and 103” (Reply Br. 9), we
note that an abstract idea does not transform into an inventive concept just
because the prior art does not disclose or suggest it. See Mayo, 132 S. Ct.
at 1304. “Groundbreaking, innovative, or even brilliant discovery does not
by itself satisfy the § 101 inquiry.” Ass ’n for Molecular Pathology,
133 S. Ct. at 2117. Indeed, “[t]he ‘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); see also Mayo, 132 S. Ct. at 1304 (rejecting “the Government’s
invitation to substitute §§ 102, 103, and 112 inquiries for the better
established inquiry under § 101”).
We are further not persuaded of Examiner error by the Appellants’
argument that the pending claims are patent-eligible because “there is no
preemption or tying up of the alleged abstract idea, it being apparent that
the alleged abstract idea can be practiced in many other ways that do not
utilize the network topology or the cooperative processing operations recited
in claim 11.” Appeal Br. 19. As discussed above, characterizing pre­
emption as a driving concern for patent eligibility is not the same as
characterizing pre-emption as the sole test for patent eligibility. That the
claims may not preempt all use of network topology do not make them any
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less abstract. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363
(Fed. Cir. 2015).
Thus, we are not persuaded that the Examiner erred in rejecting
claims 11 and 13—20 under 35 U.S.C. § 101, and we sustain the Examiner’s
rejection.
DECISION
The Examiner’s rejection of claims 11 and 13—20 under 35 U.S.C.
§ 101 is AFFIRMED.
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)(l)(iv).
AFFIRMED
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