Facebook, Inc.

Patent Trials and Appeals Board

Jul 15, 2021

2020002927 (P.T.A.B. Jul. 15, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/497,853 09/26/2014 Yi Tang 108282.020080 1025
169063 7590 07/15/2021
BakerHostetler / Facebook
Cira Centre 12th Floor
2929 Arch Street
Philadelphia, PA 19104-2891
EXAMINER
TOKARCZYK, CHRISTOPHER B
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
07/15/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
eofficemonitor@bakerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YI TANG
Appeal 2020-002927
Application 14/497,853
Technology Center 3600
Before HUBERT C. LORIN, NINA L. MEDLOCK, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s final decision to reject claims 1, 4–6, 8, 10–13, 16–20, and 22,
which are all of the pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Facebook,
Inc. Appeal Br. 2.
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CLAIMED INVENTION
Appellant’s claimed invention “relates generally to presentation of
content by an online system, and more specifically to requesting content
items subject to one or more policies regulating locations of presented
content items relative to each other.” Spec. ¶ 1.
Claims 1, 13, and 19 are the independent claims on appeal. Claim 1,
reproduced below, with modified formatting and bracketed notations, is
illustrative of the claimed subject matter.
1. A method comprising:
[(a)] enforcing, at an online system, one or more policies, each
policy describing one or more conditions preventing
insertion of one or more sponsored content items into a feed
of organic content items and sponsored content items;
[(b)] receiving a request to refresh a feed for a user of the online
system, the feed previously presented to the user and
including a plurality of organic content items and sponsored
content items;
[(c)] identifying a position in the refreshed feed eligible for the
insertion of a content item;
[(d)] retrieving position information about the plurality of
organic content items and sponsored content items
previously presented to the user in the feed;
[(e)] determining a likelihood that the policies will prevent
insertion of a new sponsored content item into the identified
position in the refreshed feed based at least in part on a
distance between the identified position in the refreshed feed
and positions of the sponsored content items previously
presented to the user in the feed;
[(f)] determining whether to request one or more new content
items from a third party system that provides content items
for the feed based on the determined likelihood that the
policies will prevent insertion of the new sponsored content
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items into the identified position in the refreshed feed, the
determination comprising:
[(f)(1)] comparing the determined likelihood to a threshold
value;
[(g)] responsive to the determined likelihood being lower than
the threshold value, requesting a new sponsored content item
from a third party system;
[(h)] inserting the new sponsored content item received from
the third party system into the identified position in the
refreshed feed; and
[(i)] providing the refreshed feed for display to the user.

REJECTIONS2
1. Claims 1, 4–6, 8, 10–13, 16–20, and 22 are rejected under
35 U.S.C. § 101 as being directed to a judicial exception without
significantly more.
2. Claims 1, 4–6, 8, 10–13, 16–20, and 22 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Veach (US
2004/0267612 A1, pub. Dec. 30, 2004) and Gorty (US 2009/0070190 A1,
pub. Mar. 12, 2009).

ANALYSIS
Patent-Ineligible Subject Matter
Appellant argues claims 1, 4–6, 8, 10–13, 16–20, and 22 as a group.
Appeal Br. 6–16; Reply Br. 2–10. We select independent claim 1 as

2 The rejection of claims 1, 4–6, 8, 10–13, 16–20, and 22 under 35 U.S.C.
§ 112(a) (Final Act. 3) has been withdrawn (Ans. 3).
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representative. The remaining claims stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(1)(iv).
35 U.S.C. § 101 Framework
Section 101
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 U.S. 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. E.g., 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 Court’s two-part framework, described in Mayo and Alice.
Alice, 573 U.S. 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. Kappos, 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, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
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such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
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
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 187; 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 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.”).
If the claim is “directed to” an abstract idea, we turn 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 (quotation marks 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).
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“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
USPTO Section 101 Guidance
We are also guided by U.S. Patent and Trademark Office (“USPTO”)
Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”), incorporated into
the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104–06, Rev. 10.2019
(“MPEP”) in June 2020. “The guidance sets out agency policy with respect
to the USPTO’s interpretation of the subject matter eligibility requirements
of 35 U.S.C. [§] 101 in view of decisions by the Supreme Court and the
Federal Circuit.” Guidance, 84 Fed. Reg. at 51.3 Although “[a]ll USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance,” the Guidance “does not create any right or benefit,
substantive or procedural, enforceable by any party against the USPTO.” Id.
The Guidance, by its terms, applies to all applications, and to all patents
resulting from applications, filed before, on, or after January 7, 2019. Id.
at 50.
Under USPTO Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including laws of nature, natural phenomena,
and products of nature (see MPEP § 2106.04(II)(A)(1), 2106.04(b))
(“Step 2A, Prong One”); and (2) additional elements that integrate the

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance, 84
Fed. Reg. USPTO, October 2019 Update: Subject Matter Eligibility (the
“October 2019 Update”) (available at https://www.uspto.gov/sites/default/
files/documents/peg_oct_update.pdf).
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judicial exception into a practical application (see id. § 2106.04(II)(A)(2),
2106.04(d)) (“Step 2A, Prong Two”).4
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the additional elements, individually or in combination,
provide an inventive concept. See MPEP § 2106(III), 2106.05. “An
inventive concept ‘cannot be furnished by the unpatentable law of nature (or
natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting
Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir. 2016)).
Among the considerations in determining whether the additional elements,
individually or in combination, amount to significantly more than the
exception itself, we look to whether they add a specific limitation beyond the
judicial exception that is not “well-understood, routine, conventional” in the
field or simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56.
Step One of the Mayo/Alice Framework
Under the first step of the Mayo/Alice framework and Step 2A, Prong
One of USPTO Guidance, the Examiner determines that exemplary
independent claim 1 recites “commercial or legal interactions of advertising,
marketing or sales activities or behaviors.” Final Act. 5. Under Prong Two

4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Guidance — Section III(A)(2), 84 Fed. Reg.
at 54–55; MPEP § 2106.04(d).
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of USPTO Guidance, the Examiner determines that the identified judicial
exception is not integrated into a practical application because the additional
elements amount “to mere instructions to implement the identified abstract
ideas on a computer.” Id. at 6.
In response, Appellant asserts that “although the recited method may
be used in the context of advertising, the claims [ ] do not recite the concept
of advertising per se” and “the claims do not recite providing content items
to promote a product or service of an advertiser to a user or other methods of
organizing human activity.” Appeal Br. 8. Appellant also asserts that
when considered as a whole, the claims recite a technical method
of saving computational resources when compiling a refreshed
feed for presentation to a user by identifying a position in the
feed that is eligible for insertion of a content item and
determining whether policies associated with the position is
likely to prevent insertion of sponsored content items.
Id. See also Reply Br. 2–5.
Under the first step of the Mayo/Alice framework and Step 2A of the
USPTO Guidance, we first determine to what claim 1 is directed, i.e.,
whether claim 1 recites an abstract idea and if so, whether claim 1 is directed
to that abstract idea. The Federal Circuit has explained that “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.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network,
Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the
claim is on a specific improvement in relevant technology or on a process
that itself qualifies as an “abstract idea” for which computers are invoked
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merely as a tool. See Enfish, LLC, 822 F.3d at 1335–36. Here, it is clear
from the Specification, including the claim language, that claim 1 focuses on
an abstract idea, and not on any improvement to technology and/or a
technical field.
Reciting a Judicial Exception
In making this determination, we note that the Specification is titled
“REQUESTING ADVERTISEMENTS INSERTED INTO A FEED OF
CONTENT ITEMS BASED ON ADVERTISING POLICIES ENFORCED
BY AN ONLINE SYSTEM,” and “relates generally to presentation of
content by an online system, and more specifically to requesting content
items subject to one or more policies regulating locations of presented
content items relative to each other.” Spec. ¶ 1. According to the
Specification, “entities (e.g., a business) may present content items to online
system users to gain public attention for products or services or to persuade
online system users to take an action regarding products or services provided
by the entity” and “[m]any online systems may receive compensation from
an entity for presenting certain types of content items provided by the entity
to online system users.” Id. ¶ 3. The Specification further explains that
“[m]any conventional online systems obtain certain types of content for
presentation to users from the entity or from a third party service.” Id. ¶ 4.
And the Specification describes that in order “to present the user with
content with which the user is most likely to interact and to enhance user
interaction with the online system, many online system enforce one or more
policies regulating positions of certain types of content items in a feed of
content items.” Id. ¶ 4. The Specification discloses that “[e]nforcing one or
more policies regulating positions of content items may prevent presentation
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of certain types of content items requested from an entity or from a third
party service,” so communicating a request to an advertisement service “may
be a waste of computing resources” if application of the policies “after
receiving the certain types of content items prevents insertion of the certain
types of content item into a feed of content items presented by the online
system.” Id.
Consistent with this disclosure, independent claim 1 recites “[a]
method” comprising steps for enforcing policies at an online system
(limitation (a)), receiving a request to refresh a feed for a user of the online
system (limitation (b)), identifying a position in the refreshed feed eligible
for the insertion of a content item (limitation (c)), retrieving position
information (limitation (d)), determining a likelihood that the policies will
prevent insertion of the content item into the identified position (limitation
(e)), determining whether to request one or more new content items from a
third party system (limitation (f)), responsive to the determined likelihood
being lower than the threshold value, requesting a new sponsored content
item from a third party system (limitation (g)), inserting the new sponsored
content item received from the third party system into the identified position
in the refreshed feed (limitation (h)), and providing the refreshed feed for
display to the user (limitation (i)). Appeal Br. 22–23 (Claims App.).
When considered collectively and under the broadest reasonable
interpretation, independent claim 1, as summarized above, recites a process
of analyzing stored policies and information related to sponsored content
items and displaying the sponsored content items to a user in a feed of
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organic content items.5 This is an abstract idea which may be characterized
as a “[c]ertain method[] of organizing human activity— . . . commercial or
legal interactions (including . . . advertising, marketing or sales activities or
behaviors; business relations).” Guidance, 84 Fed. Reg. at 52; MPEP
§ 2106.04(a)(2)(II). This is consistent with the Examiner’s characterization.
Final Act. 5.6
As such, we disagree with the Appellant’s assertion that the Examiner
improperly characterizes independent claim 1 as being directed to a
“[c]ertain method[] of organizing human activity.” Appeal Br. 7–9.
Enforcing policies “preventing insertion of one or more sponsored content
items” and identifying a position in a feed for the display of sponsored
content items based on those policies is a way of providing targeted
marketing and similar to the concepts of customizing and tailoring web page
content based on navigation history and known user information in
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369–70 (Fed. Cir. 2015), of customizing a user interface to have targeted
advertising based on user information in Affinity Laboratories of Texas, LLC
v. Amazon.com Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016), of providing
personalized recommendations in Personalized Media Communications,

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
(Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis
does not impact the patentability analysis.” Id. at 1241.
6 The Examiner also determines that the claims recite “concepts identified as
abstract ideas by the courts as mental processes.” Final Act. 4. Because we
agree with the Examiner that the claims recite advertising and marketing
activities, we need not, and do not, address Appellant’s arguments regarding
that determination (Appeal Br. 7–8).
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LLC v. Amazon.Com, Inc., 161 F. Supp. 3d 325, 338 (D. Del. 2015), aff’d,
671 F. App’x 777 (Fed. Cir. 2016), and of targeting advertisements to
particular users in Morsa v. Facebook, Inc., 77 F. Supp. 3d 1007, 1014 (C.D.
Cal. 2014), aff’d, 622 F. App’x 915 (Fed. Cir. 2015). Accordingly, we
conclude independent claim 1 recites a way of filtering sponsored content
items by enforcing policies to provide targeted advertising in a feed, which
is a commercial interaction of advertising, marketing, or sales activities, one
of the certain methods of organizing human activity as identified in the
Guidance, and thus an abstract idea. Guidance, 84 Fed. Reg. at 52; MPEP
§ 2106.04(a)(2)(II).
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, in determining whether the claim is directed to this abstract
idea, we next consider whether the claim recites additional elements that
integrate the judicial exception into a practical application.
Integration into a Practical Application
We look to whether the claim “appl[ies], rel[ies] on, or use[s] the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception,” i.e., “integrates a judicial exception
into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP
§ 2106.04(d). Here, the Examiner identifies the additional elements of
claim 1 as “an online system” and “a third party service.” Final Act. 5. The
Examiner notes that these elements “are recited at a high level of
generality.” Id. at 6 (citing Spec. ¶¶ 52–55). The Examiner also notes that
“[i]nclusion of these elements amounts to mere instructions to implement the
identified abstract ideas on a computer.” Id. at 6 (citing MPEP
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§ 2106.05(f)). We agree with the Examiner. We also agree with the
Examiner that “[t]here is no indication that the combination of elements
improve[s] the functioning of a computer or improves any other
technology.” Id. at 6 (citing MPEP § 2106.05(a).)
As is clear from the Specification, there is no indication that the
processes recited in claim 1 require any specialized computer hardware or
other inventive computer components, i.e., a particular machine, invoke any
asserted inventive programming, or that the claimed invention is
implemented using other than generic computer components to perform
generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no
doubt: recitation of generic computer limitations does not make an otherwise
ineligible claim patent-eligible.”); see also Spec. ¶ 4 (“Many conventional
online systems obtain certain types of content for presentation to users from
the entity or from a third party service.”); ¶ 14 (“In one embodiment, a client
device 110 is a conventional computer system, such as a desktop or a laptop
computer.”); ¶ 15 (“In one embodiment, the network 120 uses standard
communications technologies and/or protocols.”). Independent claim 1,
unlike the claims found non-abstract in prior cases, uses generic computer
technology to receive and analyze information “[t]o enhance user
interaction” (Spec. ¶ 5), and does not recite an improvement to a particular
computer technology. Cf. McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract
because they “focused on a specific asserted improvement in computer
animation.”).
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Appellant argues that “the claims recite additional elements that
reflect an improvement in the functioning of a web server.” Appeal Br. 10.
Appellant asserts that “when a conventional online system receives a request
to refresh a feed of content items for a user, the online system may request
content items from a third party system.” Id. (citing Spec. ¶ 4). Appellant
points out that, as described in the Specification, advertising policies may
prevent insertion of the content, and thus “it may be a waste of computing
resources to request and receive the content items if the one or more policies
prevent them from being presented to the user.” Id. According to
Appellant, the claimed invention improves the web server by determining “a
likelihood that policies will prevent a sponsored content item from being
inserted into the identified position,” comparing the likelihood to a
threshold, and only requesting the sponsored content item “[i]f the
determined likelihood of the policies preventing a sponsored content item
from being inserted in the position is below the threshold value.” Id.
Appellant argues that “the saved computational resources can be used in
processing more requests,” and concludes that “[t]he claimed process for
providing a refreshed feed is an improvement in the functioning of a
computer since it allows the computer to perform its functions (i.e., process
requests from users for content) more efficiently.” Id. at 11. See also, Reply
Br. 3 (arguing that the claimed method “sets forth the concept of
preemptively fetching content before making a determination that the
content will be shown to the user (i.e., fetching the content based on a
probability that it will be able to be shown to the user without a certainty).”)
Even if we agree with Appellant that the claimed method is more
efficient because it avoids wasteful requests for advertisements from a third
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party service, we are not persuaded that this amounts to an improvement in
computer functionality as opposed to an alleged improvement in the abstract
idea of tailoring advertisements — a process in which computer components
are used as tools in their ordinary capacity. Tailoring electronic content
delivery can always be characterized as “more efficient” in that it saves
“computing resources” because the content ultimately delivered to the user
is a reduced subset of the content that might have been delivered in the
absence of any tailoring. Yet, tailoring content is itself an abstract idea, as
our reviewing court has repeatedly held. For example, in Intellectual
Ventures I LLC v. Capital One Bank (USA), the court explained:
This sort of information tailoring is “a fundamental . . . practice
long prevalent in our system . . . ” [quoting Alice, 134 S. Ct. at
2356] There is no dispute that newspaper inserts had often been
tailored based on information known about the customer — for
example, a newspaper might advertise based on the customer’s
location. Providing this minimal tailoring — e.g., providing
different newspaper inserts based upon the location of the
individual — is an abstract idea.
792 F.3d 1363, 1369 (Fed. Cir. 2015). Similarly, in LendingTree, LLC v.
Zillow, Inc., 656 F. App’x 991, 992–93 (Fed. Cir. 2016) (non-precedential),
the Federal Circuit addressed patent claims that involved receiving credit
data from a user and using the credit data to filter lending institutions before
sending an application for a loan on behalf of the user. Id. at 993. The
claims recited a step of transmitting an electronic qualification form to only
those lending institutions associated with a match of the user’s credit data.
Id. Thus, the claims in LendingTree could be characterized as saving
computing resources in that the electronic qualification form was not sent to
non-matching lending institutions (which would be a waste of resources if
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the user’s credit score was too low), thereby making the process more
efficient. Yet, the court concluded that the claim is “patent ineligible
because it does nothing more than facilitate the claimed loan-application
process using generic technology.” Id. at 997. Similarly here, the asserted
improvement to technology amounts to what is essentially a filtering step
that filters requests for advertisements before sending a request to a third
party system, based on a likelihood that the request is unnecessary (based on
stored advertising policies). The Federal Circuit has found that filtering
content is itself an abstract idea. See, e.g., BASCOM Glob. Internet Servs.,
Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016) (noting
generally “that filtering content is an abstract idea because it is a
longstanding, well-known method of organizing human behavior, similar to
concepts previously found to be abstract.”); Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1314 (Fed. Cir. 2016) (“filtering files/e-
mail—is an abstract idea.”). Thus, we conclude that, like the claims in
Intellectual Ventures I LLC v. Capital One Bank (USA) and LendingTree,
any alleged improvement amounts to an improvement to a conventional
business practice — providing tailored advertising to users. Cf. 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”). See also Bridge & Post, Inc. v.
Verizon Commc’ns, Inc., 778 F. App’x 882, 893 (Fed. Cir. 2019) (“The
ability to run a more efficient advertising campaign, even if novel, and even
if aided by conventional computers, is an advance ‘entirely in the realm of
abstract ideas,’ which we have repeatedly held to be ineligible.”). The
“focus” of claim 1 is not “on the specific asserted improvement in computer
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capabilities” (Enfish, 822 F.3d at 1336), but rather on using the components
as tools to implement the abstract idea in the particular field of providing a
feed of organic content items and sponsored content items to a user. See
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed.
Cir. 2016) (“The Supreme Court and [the Federal Circuit] have repeatedly
made clear that merely limiting the field of use of the abstract idea to a
particular existing technological environment does not render the claims any
less abstract.”).
Appellant further argues that “the claimed process would not
monopolize the abstract idea of advertisements or content selection in
general” because “other systems may keep performing the ex-post
determination of whether content items are allowed to be placed in feeds, or
any other ex-ante analysis different than the one recited in the claims.”
Appeal Br. 12. Appellant also provides an exemplary method that other
online systems could use, ostensibly without infringing the claimed method.
Id.
To the extent Appellant argues that claim 1 is patent eligible because
it recites a narrow determination of whether to request advertising from a
third party system, we note that a specific abstract idea is still an abstract
idea. As the Supreme Court has pointed out, “cases have not distinguished
among different laws of nature according to whether or not the principles
they embody are sufficiently narrow.” Mayo, 566 U.S. at 88–89 (citing
Parker v. Flook, 437 U.S. 584 (1978)) (holding a narrow mathematical
formula unpatentable)); see also, e.g., Intellectual Ventures I, 838 F.3d
at 1321 (“A narrow claim directed to an abstract idea, however, is not
necessarily patent-eligible”); BSG Tech LLC v. BuySeasons, Inc., 899 F.3d
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1281, 1287 (Fed. Cir. 2018) (“[A] claim is not patent eligible merely
because it applies an abstract idea in a narrow way.”).
Seeking to draw an analogy to the claims in DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), Appellant asserts that “the
claims are rooted in computer technology as they modify the operation of
the ‘refresh’ button to determine whether or not new content is likely to be
able to be presented to the user.” Reply Br. 8. We are not persuaded that
the claimed invention here is analogous to the invention in DDR.
In DDR Holdings, the Federal Circuit determined that the claims
addressed the problem of retaining website visitors who, if adhering to the
routine, conventional functioning of Internet hyperlink protocol, would be
transported instantly away from a host’s website after clicking on an
advertisement and activating a hyperlink. DDR Holdings, 773 F.3d at 1257.
The Federal Circuit, thus, held that the claims were directed to patent
eligible subject matter because they claim a solution “necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks.” Id. The court cautioned that “not all
claims purporting to address Internet-centric challenges are eligible for
patent.” Id. at 1258. And the court contrasted the claims to those at issue in
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014), in that, in
DDR Holdings, the computer network was not operating in its “normal,
expected manner” and the claims did not “recite an invention that is . . .
merely the routine or conventional use of the Internet.” DDR Holdings, 773
F.3d at 1258–59.
Here, we first note that claim 1 does not recite a “refresh button,” and
Appellant’s argument in that regard is not commensurate with the scope of
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the claim. Moreover, claim 1 does not recite any improvement to the
functioning of the Internet. The ability to more efficiently refresh a feed of
sponsored content items, even if novel, and even if aided by conventional
computers, is an advance “entirely in the realm of abstract ideas,” which
have repeatedly been held to be ineligible. SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018); see also Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1356 (Fed. Cir. 2016) (claims that “specify what
information . . . it is desirable to gather, analyze, and display” using
“conventional, generic technology” did not present an inventive concept).
For the forgoing reasons, we are not persuaded of error in the
Examiner’s determination that the additional elements of claim 1 do not
integrate the judicial exception into a practical application, as the term is
used in USPTO Guidance, and we are not persuaded of error in the
Examiner’s determination that claim 1 is directed to an abstract idea.
Step Two of the Mayo/Alice Framework
Under the second step in the Alice framework and USTPO Guidance
Step 2B, we “[e]valuat[e] additional elements to determine whether they
amount to an inventive concept [which] requires considering them both
individually and in combination to ensure that they amount to significantly
more than the judicial exception itself.” MPEP § 2106.05(I).
Here, the Examiner determines that “the additional elements do not
amount to significantly more than a judicial exception.” Final Act. 7. The
Examiner states that the additional elements (i.e., the online system and third
party system), amount to “[g]eneric computer components recited as
performing generic computer functions that are well-understood, routine and
conventional activities amount to no more than implementing the abstract
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idea with a computerized system.” Id. (citing MPEP § 2106.05(d)). The
Examiner also states that “[t]o the extent that the claims include an alleged
improvement in reordering content for display, it would be an improvement
in the advertising and marketing fields— not to a technology or a
technological field.” Id. at 7–8.
Appellant asserts that “[t]he claims recite a very specific method of
generating a refreshed feed of content items.” Appeal Br. 13. According to
Appellant, “the Office Action failed to provide factual evidence that the
elements of the claims are well-understood, routine, or conventional.” Id.
Appellant reproduces various limitations of claim 1, including
limitations (c), (d), (e), (f), and (g), and argues that “[t]hese limitations are
not well-understood, routine, or conventional as conventional systems do not
make determinations of whether specific content items to be requested will
likely to be placed in specific positions within a feed.” Id. at 14.
At the outset, we note that the Examiner identified the additional
elements in claim 1 as “an online system” and “a third party system.” Final
Act. 5–6. The Examiner did not, as Appellant appears to argue, make any
finding that claim 1 limitations (c), (d), (e), (f), and (g) amount to “well-
understood, routine, or conventional” elements. Citing paragraphs 52–55 of
the Specification, the Examiner found that the online system and third party
system amount to conventional computer components (id. at 6), a finding
that is supported by ample evidence in the Specification. In addition to the
portions of the Specification cited by the Examiner, we further note that
paragraph 4 of the Specification describes that “[m]any conventional online
systems obtain certain types of content for presentation to users from the
entity or from a third party service” (emphasis added). We further note that
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the Federal Circuit, in accordance with Alice, has “repeatedly recognized the
absence of a genuine dispute as to eligibility” where claims have been
defended as involving an inventive concept based “merely on the idea of
using existing computers or the Internet to carry out conventional processes,
with no alteration of computer functionality.” Berkheimer v. HP Inc.,
890 F.3d 1369, 1373 (Fed. Cir. 2018) (Moore, J., concurring); see also BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1291 (Fed. Cir. 2018)
(“BSG Tech does not argue that other, non-abstract features of the claimed
inventions, alone or in combination, are not well-understood, routine and
conventional database structures and activities. Accordingly, the district
court did not err in determining that the asserted claims lack an inventive
concept.”). Moreover, there is no indication in the record that any of the
argued limitations (i.e., claim 1 limitations (c), (d), (e), (f), and (g)) require
any specialized computer hardware or any programming atypical from
conventional programming.
We find supported the Examiner’s determination that the limitations
of claim 1, taken individually, or as an ordered combination, do not amount
to significantly more than the judicial exception. Final Act. 7–8; Ans. 7.
We agree with and adopt the Examiner’s determination.
Appellant argues that “the claims solve a technical problem of
preventing waste of computing resources by requesting for sponsored
content items when the likelihood that policies will prevent insertion of a
new sponsored content item into an identified position of a feed is below a
threshold value.” Appeal Br. 14. According to Appellant, “there is an
improvement in the underlying computing system as less computing
resources are used in the process of presenting a refreshed feed to a user.”
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Id. at 15. However, as discussed above, with respect to a lack of practical
application, any alleged improvements lie in tailoring a feed including
sponsored content items for a user of an online system, i.e. advertising,
marketing or sales activities or behaviors, not in an improvement to
computer technology. See Elec. Power, 830 F.3d at 1355 (gathering,
sending, monitoring, analyzing, selecting, and presenting information does
not transform the abstract process into a patent-eligible invention); Trading
Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed. Cir. 2019) (data
gathering and displaying are well-understood, routine, and conventional
activities); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed.
Cir. 2015) (claims reciting, inter alia, sending messages over a network,
gathering statistics, using a computerized system to automatically determine
an estimated outcome, and presenting offers to potential customers found to
merely recite “‘well-understood, routine conventional activit[ies],’ either by
requiring conventional computer activities or routine data-gathering steps”
(alteration in original)); SAP Am., 898 F.3d at 1167–68 (“[S]electing certain
information, analyzing it using mathematical techniques, and reporting or
displaying the results of the analysis” were “basic functions” of a
computer.).
Viewed as a whole, independent claim 1 recites a system that includes
a series of steps for receiving and analyzing stored data, generating a feed of
organic content items and sponsored content items in accordance with
certain policies, and displaying the generated feed to a user. The steps are
performed by a conventional computer, which merely includes instructions
to implement the abstract idea on a computer (or merely uses a computer as
a tool to perform an abstract idea). Instead of improving the computer or
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technology or technical field, independent claim 1 amounts to nothing
significantly more than an instruction to apply the abstract idea using generic
computing elements, which, under our precedents, is not enough to
transform an abstract idea into a patent-eligible invention. Simply
programming a general-purpose computer to perform an abstract idea does
not provide an “inventive concept” such that the claim amounts to
significantly more than the abstract idea. See Alice, 573 U.S. at 221–27
(applying an abstract idea, such as an algorithm, on a general purpose
computer is not enough to transform a patent-ineligible abstract idea into a
patent-eligible invention); EON Corp. IP Holdings LLC v. AT&T Mobility
LLC, 785 F.3d 616, 623 (Fed. Cir. 2015) (“A general purpose computer is
flexible—it can do anything it is programmed to do.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of independent claims 1, and claims 4–6, 8,
10–13, 16–20, and 22, which fall with independent claim 1.

Obviousness
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claim 1 under 35 U.S.C. § 103(a) because the
combination of Veach and Gorty fails to disclose or suggest limitation [e] of
claim 1, which recites
[(e)] determining a likelihood that the policies will prevent
insertion of a new sponsored content item into the identified
position in the refreshed feed based at least in part on a distance
between the identified position in the refreshed feed and
positions of the sponsored content items previously presented to
the user in the feed.
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Appeal Br. 16–19. The Examiner relies on the same rationale in rejecting
independent claims 13 and 19, which contain a similar limitation.
The Examiner maintains the rejection is proper, and cites Veach, at
paragraphs 54, 55, 63, 76, 78, 80, 96–98, and 108–111, as disclosing the
argued limitation. See Final Act. 18–19; Ans. 8–9. The Examiner finds that
the claimed likelihood reads on the “enhanced feature eligibility score”
disclosed in Veach. Final Act. 11. According to the Examiner, “[b]ecause
these scores[, i.e., Veach’s enhanced feature eligibility scores,] are used to
determine whether an ad will be placed in a particular position, these scores
are a likelihood that the advertisement will be placed in a particular location
on the page.” Ans. 8. However, we agree with Appellant that there is
nothing in the cited portions of Veach that discloses or suggests the argued
limitation.
To begin, we note that claim 1 requires “determining a likelihood that
the policies will prevent insertion of a new sponsored content item into the
identified position” (emphasis added). Citing paragraph 33 of the
Specification, the Examiner states that “the [S]pecification is clear that the
claimed ‘likelihood’ is broad enough to include not only percentages, but
also numerical scores indicative of a likelihood.” Ans. 8–9. And, according
to the Examiner, “the enhanced feature eligibility scores in Veach are also
numerical scores indicative of a likelihood that content will be placed in one
position and not another.” Id. at 9.
We agree with the Examiner that the claimed “likelihood”
encompasses a numerical score. However, the score must relate to a
likelihood that “policies will prevent insertion” “into the identified position”
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to meet the plain language of the claim. The Examiner takes the position
that
because enhanced feature eligibility scores [in Veach] are used
to determine whether an ad will be placed in a particular position,
these scores are a likelihood that the advertisement will be placed
in a particular location on the page or prevented from being
placed in that location by being place [sic] in another location
or excluded completely.
Ans. 9 (emphasis added). However, we have reviewed the cited portions of
Veach and we do not see any discussion of the enhanced feature eligibility
scores being indicative of ads being prevented from being placed in a
particular location. Nor do we see any discussion of ads being excluded
completely.
Veach is directed to providing “a more-effective advertising system
that applies enhanced features (which presumably enhance the performance
of the ads), selectively, to ads to increase the (actual or perceived)
performance differentiation of ads.” Veach ¶ 13. Veach discloses that
“[p]ossible enhanced presentation features for ads may include . . . (xv)
location,” among other enhancements. Id. ¶ 63. Veach describes the
determination whether or not to apply one or more enhanced features to an
ad can be based on one or more “enhanced feature eligibility scores” for the
ad. Id. ¶ 65. These “enhanced feature eligibility score(s) may be determined
using, perhaps among other things . . . (ii) performance information
associated with the ad . . .” Id. ¶ 72. And the performance information may
be a function of, among other things, “a measure of user interest for the
advertisement weighted for past positions of the advertisement relative to
those past positions of other advertisements.” Id. ¶ 74.
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We do not see how, and the Examiner does not adequately explain
how, Veach’s determination on whether to enhance an ad by assigning it to a
particular location relates to a likelihood that “policies will prevent
insertion” of the ad at a particular “identified position” as called for in
claim 1. In particular, we do not see how enhancing an ad by assigning it to
a particular location amounts to a determination that the ad is prevented
from being inserted into some other “identified position.” As Appellant
points out, “the likelihood recited in the claims correspond[s] to ‘the
identified position,’ whereas the score determined by Veach is for a
particular advertisement.” Reply Br. 12. We also do not see any discussion
in the cited portions of Veach of ads being “excluded completely” (Ans. 9).
In our view, the disclosure in Veach better supports Appellant’s position that
“[i]n Veach, regardless of the enhanced features scores, the ads are presented
to the user” (Appeal Br. 19 (citing Veach ¶¶ 80–83)).
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claim 1 under 35 U.S.C. § 103(a) as unpatentable over Veach
and Gorty. For the same reasons, we also do not sustain the Examiner’s
rejection of dependent claims 4–6, 8, and 10–12. We also do not sustain the
Examiner’s rejection of independent claims 13 and 19, which contain a
similar limitation, and their dependent claims 16–18, 20, and 22.

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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–6, 8,
10–13, 16–
20, 22
101 Eligibility 1, 4–6, 8,
10–13, 16–
20, 22

1, 4–6, 8,
10–13, 16–
20, 22
103 Veach, Gorty 1, 4–6, 8,
10–13, 16–
20, 22
Overall
Outcome
1, 4–6, 8,
10–13, 16–
20, 22

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED