Ex Parte Thorson et al

Patent Trials and Appeals Board

May 21, 2019

12541342 - (D) (P.T.A.B. May. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/541,342 08/14/2009
27890 7590 05/23/2019
STEPTOE & JOHNSON LLP
1330 CONNECTICUT A VENUE, N.W.
WASHINGTON, DC 20036
FIRST NAMED INVENTOR
Tim Thorson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
15548.0205 3164
EXAMINER
OJIAKU, CHIKAODINAKA
ART UNIT PAPER NUMBER
3696
NOTIFICATION DATE DELIVERY MODE
05/23/2019 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):
hfox@steptoe.com
ipdocketing@steptoe.com
lfielding@steptoe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIM THORSON, HARVEY SIMS, and
STARK MEISSNER
Appeal 2018-001325
Application 12/541,342 1
Technology Center 3600
Before JENNIFER S. BISK, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1, 2, and 4--6, which are all claims pending in the
application. Appellants have canceled claims 3 and 7. We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is Regions Financial
Corp. App. Br. 3.
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Application 12/541,342
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed embodiments and claimed invention "relate[] to
a system and method of transferring funds from one payment mechanism to
another." Spec. 1, 11. 6-7.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal ( emphases added to contested prior-art limitations):
1. A computer-based system for electronically
transferring data related to a funds transfer comprising:
a computer and memory, the memory having:
a computer database including an A CH transfer
file package including two or more ACH transfer files
with two or more associated routing numbers, wherein
each ACH transfer file includes information about a
routing number including ACH transfer information and
wire transfer information;
a conversion module that
electronically receives an ACH transfer file
package including at least two ACH transfer files and
their associated routing numbers from an employer,
2 Our decision relies upon Appellants' Appeal Brief and Corrected Appeal
Brief (providing a corrected "Summary of Claimed Subject Matter")
(collectively, "Br.," filed June 19, 2017); Examiner's Answer ("Ans.,"
mailed Sept. 29, 2017); Final Office Action ("Final Act.," mailed
Oct. 19, 2016); and the original Specification ("Spec.," filed Aug. 14, 2009)
(claiming benefit of US 61/089,342, filed Aug. 15, 2008). We note
Appellants did not file a Reply Brief in response to the factual findings and
legal conclusions in the Examiner's Answer.
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Application 12/541,342
after receiving the ACH transfer file package,
queries the database using the associated routing
numbers, retrieves wire transfer information from the
database,
after retrieving wire transfer information, converts
each ACH transfer file to a wire transfer file with wire
instructions, and
after converting each ACH transfer file, releases
the wire transfer file as a same day batch wire transfer;
and
an implementation module in a financial institute that
performs a wire transfer to transfer the fund using the wire
transfer file electronically created by the conversion module.
5. A computer-based method of electronically
transferring funds comprising:
electronically receiving with a conversion module, an
ACH file package including at least two ACH transfer files and
their associated routing numbers from an employer wherein
each ACH transfer file includes information about a routing
number including ACH transfer information and wire transfer
information;
after receiving the ACH transfer file package, querying a
computer database in memory of a computer using the
associated routing numbers;
retrieving wire transfer information from the database for
the routing numbers;
after retrieving the wire transfer information, converting
each ACH file to a wire transfer file with wire instructions
using the information about an ACH transfer and information
about wire transfers for the associated routing number as input;
after converting each ACH file, releasing the wire
transfer file electronically created by the conversion module as
a same day batch wire transfer, and
automatically transferring funds, with an implementation
module, using the wire transfer file in a financial institute.
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Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Bogosian et al. ("Bogosian") US 2004/0236690 Al Nov. 25, 2004
Gavin et al. ("Gavin") US 2005/0004872 Al Jan. 6, 2005
Rejections on Appeal
RI. Claim 1 stands rejected under 35 U.S.C. § 112, first paragraph,
as lacking written description support. Final Act. 24.
R2. Claims 1, 2, and 4--6 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite. Final Act. 25.
R3. Claims 1, 2, and 4--6 stand rejected under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter. Final Act. 28.
R4. Claims 1, 2, and 4--6 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over the combination of Gavin and Bogosian. Final
Act. 30.
CLAIM GROUPING
Based on Appellants' arguments (Br. 5-10) and our discretion under
37 C.F.R. § 4I.37(c)(l)(iv), we decide the appeal of patent-ineligible subject
matter Rejection R3 of claims 1, 2, and 4--6 on the basis of representative
claim 5; we decide the appeal of obviousness Rejection R4 of claims 1, 2,
and 4--6 on the basis of representative claim 1; and we decide the appeal of
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indefiniteness Rejection R2 of claims 1, 2, and 4---6 on the basis of claim 1. 3
We address written description Rejection RI of claim 1, infra.
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. To the extent Appellants have not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 4I.37(c)(l)(iv).
Based upon our review of the record, we find a preponderance of the
evidence supports particular arguments advanced by Appellants with respect
to Rejections RI and R2 of claims 1, 2, and 4 for the specific reasons
discussed below.
However, we disagree with Appellants' arguments with respect to
Rejections R3 and R4 of claims 1, 2, and 4---6 and, unless otherwise noted,
we incorporate by reference herein and adopt as our own: ( 1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer
in response to Appellants' arguments.
We highlight and address specific findings and arguments regarding
claim 1 for emphasis as follows.
3 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 4I.37(c)(l)(iv).
In addition, when Appellants do not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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1. § 112, ,:r 1, Written Description Rejection RI of Claim 1
Issue 1
Appellants argue (Br. 9--10) the Examiner's rejection of claim I under
35 U.S.C. § 112, first paragraph, as lacking written description support is in
error. These contentions present us with the following issue:
Did the Examiner err in finding there is no support in the
Specification and drawings for a computer-based system or method, as
recited in claim 1 ?4
Analysis
The Examiner finds, "[a]lthough the specification discloses storage of
data in a database and receipt of some of that data by a conversion module,
and also refers to a series of boxes without more in Fig. 1, absent is any
support for a computer based system or method." Final Act. 25. The
Examiner appears to take the position that the disclosure lacks support for
the preamble of claim 1, i.e., "[a] computer-based system," and the
recitation in claim 1 of "a conversion module configured to electronically
receive an ACH transfer file package." The Examiner further finds:
Absent is specific support in the specificiation [sic] for a
computer based system or method or that the modules are not
software per se. Although a system is also referred to in several
instances as well as modules, absent is any support in the
specification that requires a computer.
4 We note the Examiner only rejected independent system claim 1 under
Rejection RI, but it would appear that dependent system claims 2 and 4, and
independent method claim 5, and dependent method claim 6 would also
warrant the same rejection, assuming the written description rejection were
determined to be warranted.
6
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Further, the originally filed claims were amended to
recite a "computer based ... " (see claims filed 6/6/14). The
addition of computer and memory and file electronically
created by the conversion module to the claim language appears
to be new matter because absent is any mention of a
computer in the original written disclosure including claims
and drawings.
Ans. 12.
In response, Appellants contend:
[T]he claimed features including a computer based system or
would be understood by a skilled person reviewing the
specification as filed. See, e.g., para. [0003] (discussing
electronic process of direct deposit); see id ( discussing same
day wire transfer and contrasting ACH with "slower and more
cumbersome paper-based system of checks and other forms of
money transfers"); see also para. [0005] ( discussing a
"database" which in the ACH context, requires a computer and
memory).
The term "database" when viewed in the contact of the
specification, is clear that it refers to a computer-based database
as the application sought to distinguish its subject matter from
older conventional paper-based systems. See, e.g., para. [0003]
(stating the need to obviate "cumbersome paper-based"
systems).
Br. 10.
The test for compliance with the written description requirement is
"whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Ariad Pharm., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane). "[T]he level of detail
required to satisfy the written description requirement varies depending on
the nature and scope of the claims and on the complexity and predictability
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of the relevant technology." Id.; see also PowerOasis, Inc. v. T-Mobile
USA, Inc., 522 F.3d 1299, 1306-07 (Fed. Cir. 2008) (explaining that§ 112,
first paragraph "requires that the written description actually or inherently
disclose the claim element"). An applicant's specification "need not
describe the claimed subject matter in exactly the same terms as used in the
claims." Eiselstein v. Frank, 52 F.3d 1035, 1038 (Fed. Cir. 1995). "If ...
the specification contains a description of the claimed invention, albeit not in
ipsis verb is (in the identical words), then the examiner ... must provide
reasons why one of ordinary skill in the art would not consider the
description sufficient." In re Alton, 76 F.3d 1168, 1175 (Fed. Cir. 1996).
We are persuaded by Appellants' argument and disagree with the
Examiner because, as in PowerOasis, cited above, the Specification at least
inherently discloses a computer-based system and method given the context
of electronic funds transfer and the use of a database to overcome
deficiencies with conventional paper-based systems. See Spec. 1, 11. 9--17.
Therefore, based upon the findings above, on this record, we are
persuaded of error in the Examiner's finding that claim 1 lacks written
description support for the claimed "computer-based system," and we do not
affirm the rejection.
2. § 112, ,:r 2, Indefiniteness Rejection R2 of Claims 1, 2, and 4
Issue 2
Appellants argue (Br. 10) the Examiner's rejection of claim 1 under
35 U.S.C. § 112, second paragraph, as being indefinite is in error. These
contentions present us with the following issue:
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Did the Examiner err in concluding it is unclear what structure is
represented by the recitation of a "database" in claim 1, thus rendering the
clam indefinite?
Analysis
The Examiner concludes claim 1 is rejected as being indefinite
because it recites
"a database including information ... a conversion module
configured to electronically receive an ACH transfer file
package including at least two ACH transfer files and their
associated routing numbers from an employer, query the
database using the associated routing numbers ... convert with
a computer each ACH transfer file to a wire transfer file with
wire instructions, and release the wire transfer; ... an
implementation module configured to automatically perform a
• -C': " wire trans1er ....
Final Act. 25-26. The Examiner further concludes, "it is unclear what
structure is represented in the claim by those phrases and therefore the metes
and bounds of the claims are unclear."
The Examiner further determined:
Claim 1 recites in the preamble that the claim is directed
toward the statutory category of a system. However, the body
of claim ... comprises of a group of "database" that is so broad
as to be interpreted as record files, and various "modules" and
thus is directed towards functional descriptive material.
Therefore, it is not clear how a group of "database" [records]
and various "modules" ( or functional descriptive material)
constitutes a system.
Claims 1 and 5 recite "automatically transferring funds
using the wire transfer file in a financial institute." However,
this language (or term) is unclear. In accordance with the
standard definition, the term "automatic" is so broad so as to
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Application 12/541,342
include, inter alia, as "largely or wholly involuntary, ... acting
or done spontaneously or unconsciously" and is not limited to
an act of a machine such as a computer .... Thus, it is noted
that the claims are not limited to steps that are performed by a
computer, and accordingly the term "automatically" is inclusive
of a mental step.
Id. 26-27 (underlining added). 5
We are persuaded that the Examiner's rejection is in error. It appears
the Examiner has conflated claim breadth with indefiniteness. Under the
guidance of the Manual of Patent Examining Procedure (MPEP) and our
precedential guidance:
Breadth of a claim is not to be equated with indefiniteness. In re
Miller, 441 F.2d 689 ... (CCPA 1971); In re Gardner, 427
F.2d 786, 788 ... (CCP A 1970) ("Breadth is not
indefiniteness."). A broad claim is not indefinite merely
because it encompasses a wide scope of subject matter provided
the scope is clearly defined.
MPEP § 2173.04 ("Breadth Is Not Indefiniteness").
Therefore, based upon Appellants' arguments and the guidance above,
we are persuaded of error in the Examiner's conclusion that the claims are
rendered indefinite by reciting a "database," such that we do not sustain
indefiniteness Rejection R2 of claim 1, and grouped claims 2 and 4 which
stand therewith. See Claim Grouping, supra.
5 We note claim 1 does not recite "automatically" transferring funds.
Claim 1.
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3. § 101 Rejection RI of Claims 1, 2, and 4---6
Issue 3
Appellants argue (Br. 5-7) the Examiner's rejection of claim 5 under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter is in
error. These contentions present us with the following issue:
Under our governing case law concerning 35 U.S.C. § 101, did the
Examiner err in concluding claim 1 is directed to a judicial exception, i.e., an
abstract idea, without significantly more, and thus is patent-ineligible under
§ 101?
Principles of Law
A. 35 U.S.C. § 101
"Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo." SiRF Tech., Inc. v. Int'! Trade Comm 'n,
601 F.3d 1319, 1331 (Fed. Cir. 2010).
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101. 6
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (brackets in original) (citing Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
6 This threshold analysis of whether a claim is directed to one of the four
statutory categories of invention, i.e., a process, machine, manufacture, or
composition of matter, is referred to as "Step l" in the patent-eligibility
inquiry under § 101.
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In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Alice Corp. v. CLS Banklnt'l, 573 U.S. 208, 217-18 (2014)
(citing Mayo, 566 U.S. at 75-77). In accordance with that framework, we
first determine what concept the claim is "directed to." See Alice, 573 U.S.
at 219 ("On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging, or protecting
against risk . . . . ").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diehr, 450 U.S. at 191); "tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores"
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. (15 How.) 252, 267---68
(1854))); and manufacturing flour (Benson, 409 U.S. at 69 ( citing Cochrane
v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held "[a] claim drawn to subject matter otherwise statutory
does not become nonstatutory simply because it uses a mathematical
formula." Diehr, 450 U.S. at 187; see also id. at 191 ("We view
respondents' claims as nothing more than a process for molding rubber
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products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment."
Id. ( citation omitted) ( citing Benson and Flook); see, e.g., id. at 187 ("It is
now commonplace that an application of a law of nature or mathematical
formula to a known structure or process may well be deserving of patent
protection.").
Abstract ideas may include, but are not limited to, fundamental
economic practices, methods of organizing human activities, and
mathematical formulas or relationships. Alice, 573 U.S. at 217-21. Under
this guidance, we must therefore ensure at step one that we articulate what
the claims are directed to with enough specificity to ensure the step one
inquiry is meaningful. Id. at 217 ("[W]e tread carefully in construing this
exclusionary principle lest it swallow all of patent law.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an '"inventive
concept'" sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( citation omitted). "A claim
that recites an abstract idea must include 'additional features' to ensure 'that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea]."' Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
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B. USPTO Revised Guidance
The PTO recently published revised guidance in the Federal Register
concerning the application of§ 101. 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019) (hereinafter
"Revised Guidance") (https ://www. govinfo. gov/ content/pkg/FR-2019-01-
07/pdf/2018-28282.pdf).
Under the Revised Guidance, we first look to whether the claim
recites:
( 1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental economic
practice, or mental processes); 7 and
(2) additional elements that integrate the judicial
exception into a practical application (see Manual for Patent
Examining Procedure ("MPEP") §§ 2106.05(a}-(c), (e}-(h)). 8
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial
exception that are not "well-understood, routine, conventional"
in the field (see MPEP § 2106.05(d)); or
7 Referred to as "Revised Step 2A, Prong l" in the Revised Guidance
(hereinafter "Step 2A(i)").
8 Referred to as "Revised Step 2A, Prong 2" in the Revised Guidance
(hereinafter "Step 2A(ii)").
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(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception. 9
See Revised Guidance.
Step 2A(i)-Abstract Idea
Informed by our judicial precedent, the Revised Guidance extracts and
synthesizes key concepts identified by the courts as abstract ideas to explain
that the abstract idea exception includes the following groupings of subject
matter, when recited as such in a claim limitation:
(a) Mathematical concepts-mathematical relationships,
mathematical formulas or equations, mathematical calculations;
(b) Certain methods of organizing human activity-
fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts;
legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or
relationships or interactions between people (including social
activities, teaching, and following rules or instructions); and
( c) Mental processes----concepts performed in the human
mind (including an observation, evaluation, judgment, opinion).
Under the Revised Guidance, if the claim does not recite a judicial
exception (a law of nature, natural phenomenon, or subject matter within the
enumerated groupings of abstract ideas above), then the claim is patent-
9 Items (3) and (4) continue to be collectively referred to as "Step 2B" of the
Supreme Court's two-step framework, described in Mayo and Alice.
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eligible at Step 2A(i). This determination concludes the eligibility analysis,
except in situations identified in the Revised Guidance. 10
However, if the claim recites a judicial exception (i.e., an abstract idea
enumerated above, a law of nature, or a natural phenomenon), the claim
requires further analysis for a practical application of the judicial exception
in Step 2A(ii).
Step 2A(ii)-Practical Application
If a claim recites a judicial exception in Step 2A (i), we determine
whether the recited judicial exception is integrated into a practical
application of that exception in Step 2A(ii) by: (a) identifying whether there
are any additional elements recited in the claim beyond the judicial
exception( s ); and (b) evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application.
The seven identified "practical application" sections of the MPEP, 11
cited in the Revised Guidance under Step 2A(ii), are:
10 In the rare circumstance in which an examiner believes a claim limitation
that does not fall within the enumerated groupings of abstract ideas should
nonetheless be treated as reciting an abstract idea, the procedure described in
of the Guidance for analyzing the claim should be followed. See Revised
Guidance, Section III.C.
11 See MPEP § 2106.05(a}-(c), (e}-(h). Citations to the MPEP herein refer
to revision [R-08.2017]. Sections 2106.05(a), (b), (c), and (e) are indicative
of integration into a practical application, while sections 2106.05(±), (g), and
(h) relate to limitations that are not indicative of integration into a practical
application.
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(1) MPEP § 2106.05(a) Improvements to the Functioning of
a Computer or To Any Other Technology or Technical
Field
(2) MPEP § 2106.05(b) Particular Machine
(3) MPEP § 2106.05(c) Particular Transformation
(4) MPEP § 2106.05(e) Other Meaningful Limitations
(5) MPEP § 2106.05([) Mere Instructions To Apply An
Exception
(6) MPEP § 2106.05(g) Insignificant Extra-Solution Activity
(7) MPEP § 2106.05(h) Field of Use and Technological
Environment
If the recited judicial exception is integrated into a practical
application as determined under one or more of the MPEP sections cited
above, then the claim is not directed to the judicial exception, and the patent-
eligibility inquiry ends. If not, then analysis proceeds to Step 2B.
Step 2B - "Inventive Concept" or "Significantly More"
Under our precedent, it is possible that a claim that does not
"integrate" a recited judicial exception under Step 2A(ii) is nonetheless
patent eligible. For example, the claim may recite additional elements that
render the claim patent eligible even though a judicial exception is recited in
a separate claim element. 12 The Federal Circuit has held claims eligible at
the second step of the Alice/Mayo test (USPTO Step 2B) because the
additional elements recited in the claims provided "significantly more" than
the recited judicial exception (e.g., because the additional elements were
unconventional in combination). 13 Therefore, if a claim has been
12 See, e.g., Diehr, 450 U.S. at 187.
13 See, e.g., Amdocs (Israel), Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
1300, 1304 (Fed. Cir. 2016); BASCOM Global Internet Services, Inc. v.
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determined to be directed to a judicial exception under Revised Step 2A, we
must evaluate the additional elements individually and in combination under
Step 2B to determine whether they provide an inventive concept (i.e.,
whether the additional elements amount to significantly more than the
exception itself). 14
Under the Revised Guidance, we must consider in Step 2B whether an
additional element or combination of elements: (1) "Adds a specific
limitation or combination of limitations that are not well-understood,
routine, conventional activity in the field, which is indicative that an
inventive concept may be present;" or (2) "simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception, which is indicative
that an inventive concept may not be present." See Revised Guidance,
III.B. 15
AT&T Mobility LLC, 827 F.3d 1341, 1349--52 (Fed. Cir. 2016); DDR
Holdings v. Hotels.com, L.P., 773 F.3d 1245, 1257-59 (Fed. Cir. 2014).
14 The patent eligibility inquiry may contain underlying issues of fact.
Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325
(Fed. Cir. 2016). In particular, "[t]he question of whether a claim element or
combination of elements is well-understood, routine and conventional to a
skilled artisan in the relevant field is a question of fact." Berkheimer v. HP
Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018).
15 In accordance with existing Step 2B guidance, an Examiner's finding that
an additional element ( or combination of elements) is well understood,
routine, conventional activity must be supported with at least one of the four
specific types of evidence required by the USPTO Berkheimer
Memorandum, as shown above. For more information concerning evaluation
of well-understood, routine, conventional activity, see MPEP § 2106.05(d),
as modified by the USPTO Berkheimer Memorandum (USPTO
Commissioner for Patents Memorandum dated Apr. 19, 2018, "Changes in
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In the Step 2B analysis, an additional element ( or combination of
elements) is not well-understood, routine or conventional unless the
examiner finds an evidentiary basis, and expressly supports a rejection in
writing with, one or more of the following:
1. A citation to an express statement in the
specification or to a statement made by an applicant during
prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s) ....
2. A citation to one or more of the court decisions
discussed in MPEP § 2106.05(d)(II) as noting the well-
understood, routine, conventional nature of the additional
element( s ).
3. A citation to a publication that demonstrates the
well-understood, routine, conventional nature of the additional
element(s) ....
4. A statement that the examiner is taking official
notice of the well-understood, routine, conventional nature of
the additional element( s ) ....
See Berkheimer Memo.
The analysis in Step 2B further determines whether an additional
element or combination of elements:
(a) Adds a specific limitation or combination of
limitations that are not well-understood, routine, conventional
activity in the field, which is indicative that an inventive
concept may be present; or
(b) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception,
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)" (hereinafter
"Berkheimer Memo").
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which is indicative that an inventive concept may not be
present.
Revised Guidance, and see Berkheimer Memo.
If the Examiner or the Board determines under Step 2B that the
element ( or combination of elements) amounts to significantly more than the
exception itself, the claim is eligible, thereby concluding the eligibility
analysis.
However, if a determination is made that the element and combination
of elements does not amount to significantly more than the exception itself,
the claim is ineligible under Step 2B, and the claim should be rejected for
lack of subject matter eligibility.
Analysis
Step 1 - Statutory Category
Claim 5, as a method (process) claim, recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. Therefore, the issue
before us is whether it is directed to a judicial exception without
significantly more.
Step 2A(i): Does the Claim Recite a Judicial Exception?
The Examiner determined the claims are directed to "an abstract idea
of funds transfer processing, a fundamental economic practice in which there
is a retrieval of wire transfer information associated with a routing number
of the ACH file." Ans. 3.
We conclude representative claim 5 does not recite the judicial
exceptions of either natural phenomena or laws of nature. We evaluate, de
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nova, whether claim 5 recites an abstract idea based upon the Revised
Guidance.
Claim 5 recites "[a] computer-based method of electronically
transferring funds," that includes the steps of:
(1) "[E]lectronically receiving with a conversion module,
an ACH file package including at least two ACH transfer files
and their associated routing numbers from an employer wherein
each ACH transfer file includes information about a routing
number including ACH transfer information and wire transfer
information."
(2) "[A]fter receiving the ACH transfer file package,
querying a computer database in memory of a computer using
the associated routing numbers."
(3) "[R ]etrieving wire transfer information from the
database for the routing numbers."
( 4) "[ A ]fter retrieving the wire transfer information,
converting each ACH file to a wire transfer file with wire
instructions using the information about an ACH transfer and
information about wire transfers for the associated routing
number as input."
( 5) "[ A ]fter converting each ACH file, releasing the wire
transfer file electronically created by the conversion module as
a same day batch wire transfer."
( 6) "[ A ]utomatically transferring funds, with an
implementation module, using the wire transfer file in a
financial institute."
Claims App'x.
The Specification provides context as to what the claimed invention is
directed to. In this case, the Specification discloses that the invention
"relates to a system and method of transferring funds from one payment
mechanism to another." Spec. 1, 11. 6-7 ( emphasis added).
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Application 12/541,342
Appellants' Abstract describes the invention as:
A system for transferring funds can include a database
with information about a routing number including ACH
transfer information and wire transfer information. The system
can include a conversion module configured to receive an ACH
transfer file including an associated routing number, access the
database to retrieve wire transfer information, and convert the
ACH transfer file to a wire transfer file. The system can include
an implementation module configured to perform a wire
transfer using the wire transfer file. The wire transfer can be a
batch wire transfer. The conversion module can use the
associated routing number from the ACH transfer file to
retrieve wire transfer information for the associated routing
number from the database.
Spec. 6.
Similar to the Examiner, we also determine that claim 5, as a whole,
recites certain methods of organizing human activity as a fundamental
economic practice. This type of activity, i.e., funds transfer, as recited in
each of limitations (2) through ( 6), for example, and aside from the
recitation of the method being "computer-based," includes longstanding
conduct that existed well before the advent of computers and the Internet,
and could be carried out by a human with pen and paper. See CyberSource
Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) ("That
purely mental processes can be unpatentable, even when performed by a
computer, was precisely the holding of the Supreme Court in Gottschalk v.
Benson."). 16
16 Our reviewing court recognizes that "[a]n abstract idea can generally be
described at different levels of abstraction." Apple, Inc. v. Ameranth, Inc.,
842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does
not, "impact the patentability analysis." Id. at 1241. Further, "[t]he Board's
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Application 12/541,342
Under the broadest reasonable interpretation standard, 17 we conclude
limitations (2) through (6) recite steps that would ordinarily occur when
transferring funds from one payment mechanism to another, i.e., using "the
abstract idea of funds transfer through the conversion of ACH transfer
instructions to wire transfer instructions." See Final Act. 28. For example,
querying a database, retrieving wire transfer information from the database,
converting each ACH file to a wire transfer file with wire instructions,
releasing the wire transfer file, and transferring funds are operations that
generally occur when initiating wire transfers between payment system
types, i.e., transferring funds between systems using different file formats. 18
slight revision of its abstract idea analysis does not impact the patentability
analysis." Id. Moreover, merely combining several abstract ideas does not
render the combination any less abstract. RecogniCorp, LLC v. Nintendo
Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea (math)
to another abstract idea ... does not render the claim non-abstract."); see
also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed.
Cir. 2016) ( determining the pending claims were directed to a combination
of abstract ideas).
17 During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using "the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
18 We further note that conversion of data from one form to another, e.g.,
"converting each ACH file to a wire transfer file," is an abstract idea. See
generally, Gottschalkv. Benson, 409 U.S. 63, 67 (1972).
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Further, steps (2) through ( 6) represent abstract ideas relating to funds
transfer, whether initiated person-to-person, on paper, or using a computer.
Thus, under Step 2A (i), we agree with the Examiner that claim 5 's
computer-based method of electronically transferring funds recites a
fundamental economic practice of funds transfer. We conclude claim 1, as a
whole, under our Revised Guidance, recites a judicial exception of a certain
method of organizing human activity, i.e., a fundamental practice, and thus
is an abstract idea.
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims are directed to a patent-ineligible concept, as we
conclude above, we proceed to the "practical application" Step 2A(ii) in
which we determine whether the recited judicial exception is integrated into
a practical application of that exception by: (a) identifying whether there are
any additional elements recited in the claim beyond the judicial exception(s);
and (b) evaluating those additional elements individually and in combination
to determine whether they integrate the exception into a practical
application.
As to the specific limitations, we find limitation (1) ("receiving ... an
ACH file package") recites insignificant data gathering. See MPEP
§ 2106.05(g). Data gathering, as performed by the steps or function in
Appellants' claims, is a classic example of insignificant extra-solution
activity. See, e.g., In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en bane),
aff'd sub nom, Bilski v. Kappas, 561 U.S. 593 (2010).
We conclude each of limitations (2) through ( 6) of claim 5 recite
abstract ideas as identified in Step 2A(i), supra, and none of the limitations
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Application 12/541,342
integrate the judicial exception of funds transfer into a practical application
as determined under one or more of the MPEP sections cited above. The
claim as a whole merely uses instructions to implement the abstract idea on a
computer or, alternatively, merely uses a computer as a tool to perform the
abstract idea.
Thus, on this record, Appellants have not shown technical
improvements under the guidance of Manual of Patent Examining Procedure
section 2106.05(a) ("Improvements to the Functioning of a Computer orto
Any Other Technology or Technical Field") or section 2106.05(e)("Other
Meaningful Limitations"). Nor do Appellants advance any arguments in the
Brief(s) that are directed to the Bilski machine-or-transformation test, which
would only be applicable to the method (process) claims on appeal. See
MPEP §§ 2106.05(b) (Particular Machine) and 2106.05(c) (Particular
Transformation).
Therefore, we conclude the abstract idea is not integrated into a
practical application, and thus the claim is directed to the judicial exception.
Step 2B - "Inventive Concept" or "Significantly More"
If the claims are directed to a patent-ineligible concept, as we
conclude above, we proceed to the "inventive concept" step. For Step 2B we
must "look with more specificity at what the claim elements add, in order to
determine 'whether they identify an "inventive concept" in the application of
the ineligible subject matter' to which the claim is directed." Affinity Labs
of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016)
(quoting Elec. Power Grp., 830 F.3d at 1353).
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Application 12/541,342
In applying step two of the Alice analysis, our reviewing court guides
we must "determine whether the claims do significantly more than simply
describe [the] abstract method" and thus transform the abstract idea into
patentable subject matter. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715 (Fed. Cir. 2014). We look to see whether there are any "additional
features" in the claims that constitute an "inventive concept," thereby
rendering the claims eligible for patenting even if they are directed to an
abstract idea. Alice, 573 U.S. at 221. Those "additional features" must be
more than "well-understood, routine, conventional activity." Mayo, 566
U.S. at 79.
Limitations referenced in Alice that are not enough to qualify as
"significantly more" when recited in a claim with an abstract idea include, as
non-limiting or non-exclusive examples: adding the words "apply it" (or an
equivalent) with an abstract idea 19; mere instructions to implement an
abstract idea on a computer20 ; or requiring no more than a generic computer
to perform generic computer functions that are well-understood, routine and
conventional activities previously known to the industry. 21
Evaluating representative claim 5 under step 2 of the Alice analysis,
we conclude it lacks an inventive concept that transforms the abstract idea of
19 Alice, 573 U.S. at 221-23.
20 Alice, 573 U.S. at 221, e.g., simply implementing a mathematical
principle on a physical machine, namely a computer (citing Mayo, 566 U.S.
at 84--85).
21 Alice, 573 U.S. at 225, e.g., using a computer to obtain data, adjust
account balances, and issue automated instructions.
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the fundamental economic practice of funds transfer into a patent-eligible
application of that abstract idea.
The patent eligibility inquiry may contain underlying issues of fact.
Mortg. Grader, 811 F.3d at 1325. In particular, "[t]he question of whether a
claim element or combination of elements is well-understood, routine and
conventional to a skilled artisan in the relevant field is a question of fact."
Berkheimer, 881 F.3d at 1368.
As evidence of the conventional nature of the recited "computer-based
method of electronically transferring funds" in method claim 5; and
"computer-based system for electronically transferring data related to a
funds transfer" in system claim 1, the Specification discloses:
Referring to FIG. 1, in a system 100, a database 110
includes all data available for specific payment instructions,
e.g., ACH and wire transfer, for each routing number. The
database 110 can be a database provided and updated by
Accuity, the Registrar of routing numbers for the American
Bankers Association. The database 110 can be a database
developed by the financial institution or by a vendor that
includes routing number information and specific payment
information for each routing number. An ACH transfer file 120
includes information about an ACH transfer, including a
routing number. In certain circumstances, the ACH transfer file
120 can include two or more ACH transfer files with two or
more associated routing numbers. A conversion module 130
receives the ACH transfer file 120 and uses the associated
routing number or numbers to query the database 110. The
conversion module 130 receives specific wire transfer
information from the database 110 for the associated routing
number or numbers and converts the ACH transfer file 110 to a
wire transfer file 140. The wire transfer file 140 is then released
as a batch wire transfer 150.
Spec. 3, 11. 10-23. Further,
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Referring to FIG. 2, a method 200 for the above-
described system 100 is depicted. In step 210, the financial
institution such as a bank receives an ACH file with
information about an ACH transfer. The ACH file includes an
associated routing number. Then, instep 220, the ACH file is
converted to a wire transfer file, such as by using the
conversion module 130 described above. The conversion
module 130 uses the database 15 110 to retrieve specific wire
transfer information for the associated routing number, and
converts the ACH file to the wire transfer file. In step 230, the
wire transfer file, which may be a batch wire transfer file with
several or many wire instructions, is released.
Spec. 4, 11. 10-17.
Thus, because the Specification describes the additional elements in
general terms, without describing the particulars, to the extent that there is
any description provided, we conclude the claim limitations may be broadly
but reasonably construed as reciting conventional computer components and
techniques. 22
With respect to this step of the analysis, Appellants contend each of
the four situations of "(1) an improvement to a technology, (2) improvement
to the computer functionality itself, (3) additional limitations that are beyond
what is routine and conventional, and (4) other 'meaningful limitations'
beyond mere linking of a judicial exception to a particular technological
environment" are met in the pending claims. Br. 6. Appellants further
argue:
22 Claim terms are to be given their broadest reasonable interpretation, as
understood by those of ordinary skill in the art and taking into account
whatever enlightenment may be had from the Specification. In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
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Prior to Applicants' invention, ACH transfers and wire
transfers had been handled using separate systems, and
changing a transfer from an ACH transfer to a wire transfer was
conventionally tedious and had to be done manually.
Conventional systems did not provide a process that allows a
simple and automatic transition of payment (and hence data)
from one method of transfer to another.
Id. Appellants further assert, "[h Jere, the claims recite elements that result in
a transformation of data, e.g., by the claimed conversion module, and which
is subsequently processed by the claimed implementation module. These
improvements enhance the functioning of the computer itself." Br. 7.
The Manual of Patent Examining Procedure, based upon our
precedential guidance, provides additional considerations with respect to
analysis of the well-understood, routine, and conventional nature of the
claimed computer-related components.
Another consideration when determining whether a claim
recites significantly more than a judicial exception is whether
the additional elements amount to more than a recitation of the
words "apply it" ( or an equivalent) or are more than mere
instructions to implement an abstract idea or other exception on
a computer. As explained by the Supreme Court, in order to
transform a judicial exception into a patent-eligible application,
the additional element or combination of elements must do
"'more than simply stat[ e] the Liudicial exception] while adding
the words 'apply it"'. Alice Corp. v. CLS Bank, 573 U.S._,
134 S. Ct. 2347, 2357, 110 USPQ2d 1976, 1982-83 (2014)
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example,
claims that amount to nothing more than an instruction to apply
the abstract idea using a generic computer do not render an
abstract idea eligible. Alice Corp., 134 S. Ct. at 2358, 110
USPQ2d at 1983. See also 134 S. Ct. at 2389, 110 USPQ2d at
1984 ( warning against a § 101 analysis that turns on "the
draftsman's art") ....
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In Alice Corp., the claim recited the concept of
intermediated settlement as performed by a generic computer.
The Court found that the recitation of the computer in the claim
amounted to mere instructions to apply the abstract idea on a
generic computer. 134 S. Ct. at 2359-60, 110 USPQ2d at 1984.
The Supreme Court also discussed this concept in an earlier
case, Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673,
676 (1972), where the claim recited a process for converting
binary-coded decimal (BCD) numerals into pure binary
numbers. The Court found that the claimed process had no
substantial practical application except in connection with a
computer. Benson, 409 U.S. at 71-72, 175 USPQ at 676. The
claim simply stated a judicial exception ( e.g., law of nature or
abstract idea) while effectively adding words that "apply it" in a
computer. Id.
MPEP § 2106.05(±) ("Mere Instructions to Apply an Exception").
With respect to the Step 2B analysis, we conclude, similar to Alice, the
recitation of a method of electronically transferring funds that includes a step
of "converting each ACH file to a wire transfer file with wire instructions"
using a "conversion module" ( claim 5) as argued by Appellants, and
similarly for system claim 1, is simply not enough to transform the patent-
ineligible abstract idea here into a patent-eligible invention under Step 2B.
See Alice, 573 U.S. at 221 ("[C]laims, which merely require generic
computer implementation, fail to transform [an] abstract idea into a patent-
eligible invention."). 23
We conclude the claims fail the Step 2B analysis because claim 5, in
essence, merely recites various computer-based elements along with no
23 Merely automating previously manual processing by using computers
does not qualify as an eligibility-rejection-defeating improvement. Credit
Acceptance Corp. v. Westlake Servs., 859 F.3d 1044 (Fed. Cir. 2017).
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more than mere instructions to implement the identified abstract idea using
the computer-based elements.
Therefore, because the claims fail under both the Step 2A and Step 2B
analyses, we sustain the Examiner's§ 101 rejection of independent claims 1
and 5, and grouped claims 2, 4, and 6, not argued separately, and which fall
therewith. See Claim Grouping, supra.
4. § 103 Rejection R4 of Claims 1, 2, and 4---6
Issue 2
Appellants argue (Br. 7-9) the Examiner's rejection of claim 1 under
35 U.S.C. § 103(a) as being obvious over the combination of Gavin and
Bogosian is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a "computer-based system for electronically transferring data
related to a funds transfer" that includes, inter alia, the limitations of "a
computer database including an ACH transfer file package including two or
more ACH transfer files with two or more associated routing numbers,"
wherein, "after retrieving wire transfer information, [ a conversion module]
converts each A CH transfer file to a wire transfer file with wire
instructions," as recited in claim 1 ( emphasis added)?
Analysis
The test for obviousness is what the combined teachings of the prior
art would have suggested to the hypothetical person of ordinary skill in the
art. In re Keller, 642 F.2d 413,425 (CCPA 1981).
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The Examiner finds Gavin paragraph 10 discloses a conversion
process that teaches or suggests the claimed conversion module of claim 1,
(Final Act. 30), and cites Bogosian as teaching or suggesting the recited
"ACH transfer file package including two or more ACH transfer files with
two or more associated routing numbers." Final Act. 31.
Appellants argue:
The Examiner contends that Bogosian supplies Gavin's
omissions, but Gavin does not teach or [sic] electronically
receiving an ACH package, including at least two ACH files,
let alone converting each ACH transfer file to a wire transfer
file thereby creating a wire transfer file. Rather, it is directed to
a check information extraction tool (Bogosian at para. 33),
determining a seller's bank account information (Bogosian at
para. 36), and a process of generating a "single candidate
routing number" and filtering candidate numbers (Bogosian at
paras. 51-52) - the conventional methods that the inventors
sought to improve upon and distinguish.
Br. 8. We disagree with Appellants' argument.
We disagree because "one cannot show non-obviousness by attacking
references individually where ... the rejections are based on combinations
of references." Keller, 642 F.2d at 426. "The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference . . . . Rather, the test is what the
combined teachings of those references would have suggested to those of
ordinary skill in the art." Id. at 425.
Appellants further present a "non-analogous art" argument with
respect to Gavin, i.e., "Gavin's teachings are not reasonably pertinent to the
field of this application, and it is not a proper reference under 103." Br. 8.
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Our reviewing court holds, "[ t ]wo separate tests define the scope of
analogous prior art: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed and, (2) if the reference is not within the
field of the inventor's endeavor, whether the reference still is reasonably
pertinent to the particular problem with which the inventor is involved." In
re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011).
We disagree with Appellants' non-analogous art argument because
Gavin "relates to international electronic financial transactions and more
specifically to a method and system for accomplishing electronic financial
transactions between financial systems that use different electronic file
formats" (Gavin ,r 2), and Bogosian "relates to the field of electronic
commerce. More specifically, the invention relates to techniques for
facilitating the transfer of electronic funds." Bogosian ,r 2. We find both
references satisfy both prongs of the test delineated in Klein, as stated above,
and are both reasonable pertinent to Appellants' stated problem, i.e., "[p ]ast
methods and systems have not provided a process that allows a simple and
automatic transition of payment from one method of transfer to another."
Spec. 1, 11. 21-22.
The Examiner makes further findings and conclusions consistent with
the rejection under § 103, which we incorporate herein by reference, and
which we note are unrebutted by Appellants. See Ans. 16-19. 24
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
24 We note Appellants do not file a Reply Brief to rebut the Examiner's
findings and legal conclusions in the Answer.
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combination to teach or suggest the disputed limitations of claim 1, nor do
we find error in the Examiner's resulting legal conclusion of obviousness.
Therefore, we sustain the Examiner's obviousness rejection of independent
claim 1, and grouped claims 2 and 4---6 which fall therewith. See Claim
Grouping, supra.
CONCLUSIONS
(1) The Examiner erred with respect to written description
Rejection RI of claim 1 under 35 U.S.C. § 112, first paragraph, and we do
not sustain the rejection.
(2) The Examiner erred with respect to indefiniteness Rejection R2
of claims 1, 2, and 4 under 35 U.S.C. § 112, second paragraph, and we do
not sustain the rejection.
(3) Under our Revised Guidance, governed by relevant case law,
we conclude claims 1, 2, and 4---6 in Rejection R3 under 35 U.S.C. § 101 are
directed to patent-ineligible subject matter, and we sustain the rejection.
(4) The Examiner did not err with respect to obviousness Rejection
R4 of claims 1, 2, and 4---6 under 35 U.S.C. § I03(a) over the cited prior art
combination of record, and we sustain the rejection.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision. See 37
C.F.R. § 4I.50(a)(l).
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DECISION
We affirm the Examiner's decision rejecting claims 1, 2, and 4--6.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv). See 3 7
C.F.R. § 4I.50(f).
AFFIRMED
35