Ex Parte Yi

Patent Trials and Appeals Board

Jun 28, 2019

13975151 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/975,151 08/23/2013 XingYi
76133 7590 07/01/2019
MPG, LLP AND YAHOO! INC.
710 LAKEWAY DRIVE
SUITE 200
SUNNYVALE, CA 94085
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.
YAHOP205 7001
EXAMINER
CIRNU, ALEXANDRU
ART UNIT PAPER NUMBER
3681
MAIL DATE DELIVERY MODE
07/01/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XING YI
Appeal2018-003576
Application 13/975,151
Technology Center 3600
Before ERIC S. FRAHM, JENNIFER L. McKEOWN, and
LINZY T. McCARTNEY, Administrative Patent Judges.
McKEOWN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1, 6-9, 11, 16, 17, 19, and 22. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellant, the real party in interest is YAHOO! INC. App.
Br. 3.
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Application 13/975,151
STATEMENT OF THE CASE
Appellant's claimed invention "relates to methods and systems for
dwell time based advertising." Spec. ,r 2. Moreover, the claimed invention
relates to "methods and systems are described for using article-level ( or
page-level) dwell time, or user time spent, for pricing both guaranteed
delivery (GD) display ads contracts and non-guaranteed delivery (NGD)
display ads contracts in online display advertising." Spec. ,r 3 6.
Claims 1 and 9 are illustrative of the claimed invention and read as
follows:
1. A method for online advertising, comprising:
receiving, by a server over a network, a request for a web
page from a client device;
in response to the request, selecting an advertisement for
presentation on the web page, and transmitting the web page by
the server over the network to the client device for presentation
at the client device, the web page being configured, when
presented at the client device, to log event data indicative of user
interaction with the requested web page;
receiving, by the server over the network from the client
device, the logged event data;
processing the logged event data to determine a duration
of exposure of the advertisement when the web page is presented
on the client device;
determining a level of performance of a guaranteed
presentation amount associated with the advertisement, the level
of performance based on the duration of exposure of the
advertisement, wherein the guaranteed presentation amount
defines a guaranteed number of impressions for the
advertisement;
wherein determining the level of performance includes
assigning a weight to the presentation of the advertisement, the
weight being determined from the duration of exposure, and
aggregating the weighted presentation of the advertisement with
prior weighted presentations of the advertisement, each prior
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weighted presentation being defined by a prior presentation of
the advertisement weighted by a prior duration of exposure, the
aggregated weighted presentations being compared against the
guaranteed number of impressions to determine the level of
performance of the guaranteed presentation amount;
wherein the method is executed by at least one processor.
9. A method for online advertising, comprising:
receiving, by a server over a network, a request for a web
page from a client device;
identifying a plurality of advertisements as candidates for
presentation on the web page, each of the plurality of
advertisements having an associated bid that is a cost per
impression (CPM) bid, a cost per click (CPC) bid, or a cost per
conversion (CPA) bid, wherein the associated bids of the
plurality of advertisements include at least two of a CPM, CPC,
or CPA bid;
for each of the plurality of advertisements, determining an
expected cost per time unit ( eCPTU) of exposure, wherein
determining the eCPTU includes converting the associated bid
for each of the plurality of advertisements to the eCPTU,
wherein converting an associated bid that is a CPM bid
includes dividing the associated bid by an average exposure
duration per impression for the advertisement,
wherein converting an associated bid that is a CPC bid
includes multiplying the associated bid by a probability that
presentation of the advertisement will result in a click activity,
wherein converting an associated bid that is a CPA bid
includes multiplying the associated bid by a probability that
presentation of the advertisement will result in a conversion
activity;
performing an auction for an advertising opportunity
defined by the web page using the eCPTU' s of the plurality of
advertisements, wherein the auction compares the eCPTU' s to
select one of the plurality of advertisements having a highest
eCPTU for presentation on the web page at the advertising
opportunity;
transmitting the web page by the server over the network
to the client device for presentation at the client device, wherein
presentation of the web page at the client device is configured to
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present the selected one of the plurality of advertisements, the
web page being further configured, when presented at the client
device, to log event data indicative of user interaction with the
requested web page and transmit the logged event data over the
network to the server;
wherein the method is executed by at least one processor.
THE REJECTIONS
The Examiner rejected claims 1, 6-9, 11, 16, 17, 19, and 22 under
35 U.S.C. § 101 as directed to patent ineligible subject matter. Final Act. 2-
5.
The Examiner rejected claims 1, 6, and 7 under 35 U.S.C. § 102 as
anticipated by Smallwood et al. (US 2013/0191226 Al; July 25, 2013
(hereinafter "Smallwood")). Final Act. 4--8.
The Examiner rejected claim 8 under 35 U.S.C. § 103 as being
unpatentable in view of Smallwood and Despain et al. (WO
2003/053056Al; June 26, 2003 (hereinafter "Despain")). Final Act. 8.
The Examiner rejected claim 9 under 35 U.S.C. § 103 as being
unpatentable in view of Zinger et al. (US 2014/0129325 Al; May 8, 2014
(hereinafter "Zinger")), Garcia-Martinez et al. (US 2014/0229273 Al; Aug.
14, 2014 (hereinafter "Garcia-Martinez")), and Flake et al. (US 8,589,233
B2; Nov. 19, 2013)). Final Act. 9.
The Examiner rejected claim 11 under 35 U.S.C. § 103 as being
unpatentable in view Zinger, Garcia-Martinez Flake, and Despain. Final
Act. 13.
The Examiner rejected claims 16 and 17 under 35 U.S.C. § 103 as
being unpatentable in view of Zinger, Garcia-Martinez, Flake, and Axe et al.
(US 2006/0224445 Al; Oct. 5, 2006 (hereinafter "Axe")).
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The Examiner rejected claims 19 and 22 35 U.S.C. § 103 as being
unpatentable in view of Smallwood and Zinger. Final Act. 15.
ANALYSIS
THE§ 101 REJECTION
Claims 1, 6--9, 11, 16, 17, 19, and 22
Based on the record before us, we are not persuaded that the Examiner
erred in rejecting claims 1, 6-9, 11, 16, 17, 19, and 22 as directed to patent
ineligible subject matter.
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
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. Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208, 216
(2014).
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. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). 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.").
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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 (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
(1981) ); "tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1853))); 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 that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
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. ( 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.").
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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. ( 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.
The PTO recently published revised guidance on the application of
section 101. USPTO's 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) ("Memorandum"). Under that
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); and
(2) additional elements that integrate the judicial exception into a
practical application (see MANUAL OF p ATENT EXAMINING PROCEDURE
("MPEP") § 2106.05(a}-(c), (e}-(h) (9th ed. 2018)).
See Memorandum 52, 55-56. 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
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§ 2106.05(d)); or
( 4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum 56.
Analysis - Revised Step 2A
Under the Memorandum, in prong one of step 2A we look to whether
the claims recite a judicial exception. The claimed invention includes
"receiving ... a request for a web page from a client device;" "selecting an
advertisement for presentation on the web page ... ;" "processing the logged
event data to determine a duration of exposure of the advertisement when
the web page is presented on the client device;" "determining a level of
performance of a guaranteed presentation amount associated with the
advertisement, the level of performance based on the duration of exposure of
the advertisement, wherein the guaranteed presentation amount defines a
guaranteed number of impressions for the advertisement;" and "wherein
determining the level of performance includes assigning a weight to the
presentation of the advertisement, the weight being determined from the
duration of exposure, and aggregating the weighted presentation of the
advertisement with prior weighted presentations of the advertisement, each
prior weighted presentation being defined by a prior presentation of the
advertisement weighted by a prior duration of exposure, the aggregated
weighted presentations being compared against the guaranteed number of
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impressions to determine the level of performance of the guaranteed
presentation amount .... " Independent claim 19 recites similar limitations.
At a high level, the claimed invention recites using logged event data
to determine a duration of exposure of an advertisement, determining a level
of performance by assigning a weight to the presentation of an advertisement
with the weight being determined from the duration of exposure, aggregating
the weighted presentation with prior weighted presentations, and comparing
the aggregated presentation to the guaranteed number of number of
impressions. See also Ans. 4 (finding that the claimed invention
"determin[ es] a level of performance of an ad amount based on monitored ad
information and weighing ad presentations, which represent methods of
organizing human activity .... "). We determine that these claimed
limitations relate to advertising and commercial activities. As such, the
claimed invention recites certain methods of organizing human activity,
which is an abstract idea. See also, e.g., Morsa v. Facebook, Inc., 77 F.
Supp. 3d 1007, 1014 (C.D. Cal. 2014), affd, 622 F. App'x 915 (Fed. Cir.
2015) ( finding that both "targeting advertisements to certain consumers, and
using a bidding system to determine when and how advertisements will be
displayed" are abstract ideas); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
709, 714 (Fed. Cir. 2014) (determining that using an advertisement as an
exchange or currency is an abstract idea).
With respect to claim 9, the claimed invention includes "receiving ...
a request for a web page from a client device;" "identifying a plurality of
advertisements as candidates for presentation on the web page, each of the
plurality of advertisements having an associated bid that is a cost per
impression (CPM) bid, a cost per click (CPC) bid, or a cost per conversion
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(CPA) bid, wherein the associated bids of the plurality of advertisements
include at least two of a CPM, CPC, or CPA bid;" "for each of the plurality
of advertisements, determining an expected cost per time unit ( eCPTU) of
exposure, wherein determining the eCPTU includes converting the
associated bid for each of the plurality of advertisements to the eCPTU,"
"wherein converting an associated bid that is a CPM bid includes dividing
the associated bid by an average exposure duration per impression for the
advertisement," "wherein converting an associated bid that is a CPC bid
includes multiplying the associated bid by a probability that presentation of
the advertisement will result in a click activity," "wherein converting an
associated bid that is a CPA bid includes multiplying the associated bid by a
probability that presentation of the advertisement will result in a conversion
activity;" "performing an auction for an advertising opportunity defined by
the web page using the eCPTU' s of the plurality of advertisements, wherein
the auction compares the eCPTU' s to select one of the plurality of
advertisements having a highest eCPTU for presentation on the web page at
the advertising opportunity;" and "transmitting the web page by the server
over the network to the client device for presentation at the client device,
wherein presentation of the web page at the client device is configured to
present the selected one of the plurality of advertisements, the web page
being further configured, when presented at the client device, to log event
data indicative of user interaction with the requested web page and transmit
the logged event data over the network to the server."
At a high level, the claimed invention relates to identifying
advertisements with associated bids in response to a web page request,
determining an expected cost per time unit ( eCPTU) for each associated bid
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through the recited calculations, performing an auction using the calculated
eCPTU s, and transmitting the requested web page to the client device where
presentation of the web page includes presenting the selected advertisement
from the auction. In other words, these claimed limitations relate to
auctioning advertisements through use of a common unit value and
presenting the selected advertisement from the auction along with the
requested web page. Therefore, the claimed invention recites certain
methods of organizing human activity, such as advertising and commercial
activities. By reciting certain methods of organizing human activities, the
claimed invention recites an abstract idea. See also, e.g., Morsa v.
Facebook, Inc., 77 F. Supp. at 1014 (finding that both "targeting
advertisements to certain consumers, and using a bidding system to
determine when and how advertisements will be displayed" are abstract
ideas); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d at 714 (determining that
using an advertisement as an exchange or currency is an abstract idea).
Under prong two of revised step 2A, 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.
We determine that the claimed invention is not integrated into a
practical application. The claimed invention of claims 1 and 9 additionally
recite a processor, a server, a network, as well as transmitting and receiving
steps. With respect to claim 1, the Examiner determines, "improving the
process of determining an ad amount's level of performance represents a
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business practice/goal, not a technology/technical field" and "[t]here is no
technical support/technical evidence in the Appellant's Specification that the
instant claimed, when implemented, improves the functioning of the
computing device itself, or that it improves another technology/technical
field." Ans. 4.
Appellant asserts
in the claimed embodiment, the instantaneous feedback which
can be provided through online advertisement technology is
leveraged to provide improvements to the determination of
advertisement performance through the application of
determined durations of exposure. This enables the process to
provide a more accurate gauge of the performance of an online
advertisement, as compared to prior art methods, and thus
provides for improvements to the technology of online
advertising.
App. Br. 11.
We disagree. This argument is not commensurate with the scope of
the claimed invention. For example, there is no "instantaneous feedback"
claimed, nor does the claimed invention explain how the collected
information provides a "more accurate gauge of the performance of an
online advertisement." Moreover, as noted by the Examiner, the claimed
invention provides an improved business practice, not a technical
improvement. See Ans. 5---6.
With respect to claim 9, Appellant asserts that the claimed invention
"solves the problem of selecting an advertisement from multiple
advertisements having differing cost models, and allows a publisher to more
efficiently select the best advertisement to transmit when serving a web
page." App. Br. 11. In other words, the claimed invention provides an
improved business practice. See Ans. 5---6. Appellant, however, fails to
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explain persuasively how the claimed invention provides a technical
improvement.
We further note that the steps of transmitting and receiving the
requested web page and the logged event data is merely insignificant extra-
solution activity. The claimed invention receives, processes, and displays
data - this is merely conventional data gathering and analysis. See MPEP
§ 2106.05(g); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363
(Fed. Cir. 2015); Electric Power Group LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016). As such, based on the record before us, we determine
that the claimed invention is not integrated into a practical application.
Analysis - Revised Step 2B
We agree with the Examiner that the additional limitations are not
sufficient to amount to significantly more than the abstract idea. See Final
Act. 4. Namely, as the Examiner explains,
The claim recites the additional elements of a server, a network, client
device, which represent generic computing elements. These elements
are recited at a high level of generality and only perform generic
functions of receiving, manipulating and transmitting information.
Generic computers performing generic functions, do not amount to
significantly more than the abstract idea.
Final Act. 3; Final Act. 4 (making similar determinations with respect to
claim 9). See also Electric Power Group LLC, 830 F.3d at 1354 (finding that
use of "conventional computer, network, and display technology for
gathering, sending, and presenting the desired information" does not add
significantly more to the claimed abstract idea); Content Extraction &
Transmission, LLC v. Wells Fargo Bank, 776 F.3d 1343, 1347 (Fed. Cir.
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2014) (discussing that data collection, recognition, and storage is well-
known); CyberSource Corp. v. Retail Decision, Inc., 654 F.3d 1366, 1375
(Fed. Cir. 2011) ("[T]he incidental use of a computer to perform the
[ claimed process] does not impose a sufficiently meaningful [limitation] on
the claim's scope.").
Moreover, as noted above, the steps of transmitting and receiving the
requested web page and the logged event data is merely insignificant extra-
solution activity. Namely, the claimed invention receives, processes, and
displays data-this is merely conventional data gathering and analysis. See
MPEP § 2106.05(g); OIP Techs., Inc., 788 F.3d at 1363; Electric Power
Group, 830 F.3d at 1354.
Therefore, based on the record before us, we are not persuaded of
error in the Examiner's determination that the appealed claims are directed
to patent ineligible subject matter. Accordingly, we affirm the Examiner's
decision to reject claims as directed to patent ineligible subject matter.
THE § 102 REJECTION BASED ON SMALL WOOD
Claims 1, 6, and 7
Based on the record before us, we are persuaded that the Examiner
erred in finding that claims 1, 6, and 7 as anticipated by Smallwood.
Appellant contends that Smallwood fails to disclose assigning a
weight to the presentation of the advertisement, the weight being determined
from the duration of exposure. App. Br. 15. Appellant acknowledges that
Smallwood describes weighting ad exposure information based on factors
such as advertising type or advertising format, but points out that
"Smallwood [] teaches weighting that is based on parameters pertaining to
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an ad, but does not teach that the weight itself is specifically determined
from a duration of exposure, as in the claimed subject matter." App. Br. 15-
16.
We agree. Smallwood describes aggregating the total amount of
exposure time for each ad. Smallwood ,r 30. Smallwood also describes that
this ad exposure information may be weighted "based on any other factor
related to the ad." Smallwood ,r 31. While Smallwood discloses weighting
ad exposure information based on "any other factor related to the ad," we
agree this teaching does not disclose weighting based on duration of
exposure. Namely, Smallwood instead describes weighting the ad exposure
information, which already includes the duration of exposure, by some other
factor. As such, based on the record before us, we determine that the
Examiner erred in finding that Smallwood anticipates the disputed
limitation.
Accordingly, we reverse the Examiner's decision to reject claims 1, 6,
and 7 as anticipated by Smallwood.
THE§ 103 REJECTION BASED ON SMALLWOOD AND DESPAIN
Claim 8
As discussed above, we determine that Smallwood fails to anticipate
claim 1. Despain does not cure the deficiencies of Smallwood. Therefore,
for the same reasons discussed above, we find that the Examiner erred in
rejecting claim 8 as unpatentable over Smallwood and Zinger and,
accordingly, we reverse the rejection.
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THE § 103 REJECTION BASED ON SMALL WOOD AND ZINGER
Claims 19 and 22
As discussed above, we determine that the Examiner erred in rejecting
claim 1. Zinger does not cure the deficiency of Smallwood. See App. Br.
20-21. Therefore, for the same reasons discussed above, we find that the
Examiner erred in rejecting claims 19 and 22 as unpatentable over
Smallwood and Zinger and, accordingly, we reverse the rejection.
THE§ 103 REJECTION BASED ON ZINGER, GARCIA-MARTINEZ, AND
FLAKE
Claim 9
Based on the record before us, we are not persuaded that the Examiner
erred in finding that claim 9 is unpatentable over Zinger, Garcia-Martinez,
and Flake.
Appellant contends that Zinger fails to teach or suggest "converting a
CPM bid to eCPTU includes dividing the associated bid by an average
exposure duration per impression for the advertisement." App. Br. 18.
Appellant further explains "[t]his is a specific calculation in which a bid is
divided by an average duration. Not only does Zinger not teach such a
feature, but nowhere does Zinger actually teach what is alleged by the
Office-that click probability is divided by time." App. Br. 18.
Additionally, Appellant asserts that Zinger' s teachings relate to a CPC ad,
not a CPM bid. Id.
The Examiner, however, points out Zinger teaches that "[t]he
ERPITU may be a function of the time offset since the ad was displayed"
and further teaches that "as the time progresses, it is less likely that the user
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will interact with the ad and therefore the ERPITU may decrease as the time
passes." Final Act. 10 ( citing Zinger ,r 69). While Appellant asserts these
teachings relate only to a CPC ad, not a CPM bid, Appellant fails to
persuasively support that assertion. As the Examiner explains, Zinger's
teachings at least implies, or suggests, dividing the CPM bid by the average
exposure duration per impression. See Ans. 10. As such, we are not
persuaded of error in the Examiner's determination.
Appellant next asserts that the combination of Zinger, Garcia-
Martinez, and Flake fails to teach or suggest the claimed auction, wherein
the auction compares the eCPTU's that were converted from CPM, CPC, and
CPA bids to select one of the plurality of advertisements. App. Br. 18.
Specifically, Appellant argues that "[b ]oth Zinger and Garcia-Martinez teach
auctions using bids, but neither teaches or suggests the claimed combination
of conversion to, and comparison of, eCPTU' s from differing bid types in
such an auction." App. Br. 19.
We find this argument unpersuasive. Namely, Appellant argues each
cited reference individually and fails to consider the Examiner's
combination of the teachings of Zinger, Garcia-Martinez, and Flake. See
Final Act. 10-12. One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See In re Keller, 642 F.2d 413,426 (CCPA 1981); In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
Accordingly, we affirm the Examiner's decision to reject claim 9 as
unpatentable over Zinger, Garcia-Martinez, and Flake.
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THE§ 103 REJECTION BASED ON ZINGER, GARCIA-MARTINEZ, FLAKE, AND
AxE
Claims 11, 16, and 17
Appellants do not separately argue the patentability of claims 11, 16,
and 17 and, instead, rely on the arguments presented for claim 9. As
discussed above, we find these arguments unpersuasive. As such, we are not
persuaded that the Examiner erred in rejecting claims 11, 16, and 17 and,
accordingly, affirm the rejection.
DECISION
We affirm the Examiner's decision to reject claims 1, 6-9, 11, 16, 17,
19, and 22 as directed to patent ineligible subject matter and affirm the
Examiner's rejection of claims 9, 11, 16 and 17 as unpatentable over Zinger
and additionally cited prior art. We reverse the Examiner's rejection of
claims 1, 6, 7, 19, and 22 based on Smallwood alone and in combination
with additionally cited prior art.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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