Facebook, Inc.

Patent Trials and Appeals Board

Dec 24, 2020

2020004108 (P.T.A.B. Dec. 24, 2020)

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.
14/678,862 04/03/2015 Anand Sumatilal Bhalgat 2006.041US1 6582
160546 7590 12/24/2020
Mannava & Kang, P. C.
3201 Jermantown Road
Suite 525
Fairfax, VA 22030
EXAMINER
TOKARCZYK, CHRISTOPHER B
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
12/24/2020 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):
docketing@mannavakang.com
fb-pdoc@fb.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANAND SUMATILAL BHALGAT,
CHINMAY DEEPAK KARANDE, and
TANMOY CHAKRABORTY
___________

Appeal 2020-004108
Application 14/678,862
Technology Center 3600
____________

Before CARL W. WHITEHEAD JR., JEFFREY S. SMITH and
JASON V. MORGAN, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant2 is appealing the final rejection of claims 1, 2, 4, 6, 8–15,
17 and 19 under 35 U.S.C. § 134(a). Appeal Brief 5. Claims 3, 5, 7, 16, 18
and 20 are cancelled. Final Action 2. Claims 1 and 14 are independent. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Brief (filed January 13, 2020), the
Reply Brief (filed May 13, 2020), the Final Action (mailed June 14, 2019)
and the Answer (mailed March 13, 2020), for the respective details.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Facebook, Inc. of Menlo Park,
California as the real party in interest. Appeal Brief 2.
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Introduction
According to Appellant, the claimed subject matter “relates generally
to presenting content via social networking systems, and more specifically to
adjusting bid amounts of content items when selecting content for
presentation to social networking system users.” Specification ¶ 1.
Representative Claim3
Claim 1 is reproduced below for reference (bracketed step lettering
added):
1. A method comprising:
[a] receiving, by an online system, an ad campaign from an
advertiser, the ad campaign including a plurality of
different ad creatives that each correspond to a different
advertisement[4] for the ad campaign;
[b] receiving a plurality of impression opportunities, wherein
each impression opportunity of the plurality of
impression opportunities is an opportunity to present an
advertisement to a user of the online system via a client
device;
[c] for each impression opportunity to present an advertisement,
performing a first selection process to select an ad
creative from the ad campaign, the first selection process
comprising:
[d] accessing a number of prior impressions for each of
the plurality of different ad creatives of the ad
campaign;

3 Appellant argues claims 1, 2, 4, 6, 8–15, 17 and 19 as a group. See Appeal
Brief 5. We select independent claim 1 as the representative claim for this
rejection. See 37 C.F.R. § 41.37(c)(1)(iv).
4 “Each ad request includes one or more ad creatives, or ‘advertisement,’
that identifies content presented to a social networking system user when the
ad request is presented.” Specification ¶ 5.
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[e] determining a score for each of the plurality of
different ad creatives based on an output of a
trained model that predicts user engagement with
an advertisement based on past user interactions
with the advertisement having the ad creative as
input;
[f] responsive to identifying one or more ad creatives of
the plurality of different creatives with less than a
threshold number of prior impressions:
[g] determining a score adjustment for each of the
one or more ad creatives, wherein each score
adjustment is inversely related to the number
of prior impressions for the ad creative; and
[h] modifying the score for each of the one or more
ad creatives based on the score adjustments;
[i] selecting an ad creative from the plurality of ad
creatives based at least in part on the modified
scores;
[j] including the selected ad creative in a second selection
process that selects an advertisement for presentation to
the user in the impression opportunity, wherein the
second selection process selects from the selected ad
creative and an additional plurality of advertisements;
[k] performing the second selection process to select the
advertisement for the impression opportunity, wherein
the selected advertisement includes the selected ad
creative;
[l] transmitting the selected advertisement to the client device;
and
[m] logging an impression and data describing interaction by
the user with the selected advertisement in connection to
the selected ad creative.
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References
Name5 References Date
Benson US 8,175,914 B1 May 8, 2012
Hegeman US 2013/0124308 A1 May 16, 2013

Rejections on Appeal
Claims 1, 2, 4, 6, 8–15, 17, and 19 stand rejected under 35 U.S.C.
§ 101 as being directed to a judicial exception without significantly more.
Final Action 2–7.
Claims 1, 2, 4, 6, 8–15, 17, and 19 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Benson and Hegeman. Final Action 7–22.

USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019)
(“2019 Revised Guidance”).6 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:

5 All reference citations are to the first named inventor only.
6 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
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(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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 10.2019, June 2020)) (“Step 2A, Prong Two”).7
2019 Revised Guidance at 52–55.
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 claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 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.
2019 Revised Guidance at 52–56.

ANALYSIS
35 U.S.C. § 101 Rejection
The Examiner determines claims 1, 2, 4, 6, 8–15, 17 and 19 are patent
ineligible under 35 U.S.C. § 101. See Final Action 2–7; Alice, 573 U.S. at
217 (describing the two-step framework “for distinguishing patents that

7 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 2019 Revised Guidance at 54–55.
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claim laws of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts”).
We are not persuaded the Examiner’s rejection is in error. Unless
otherwise indicated, we adopt the Examiner’s findings and conclusions as
our own. We add the following primarily for emphasis and clarification
with respect to the Revised Guidance.

Step 2A—Prongs 1 and 2 identified in the 2019 Revised Guidance
Prong One
The Examiner determines claim 1’s limitations:
describe abstract ideas that correspond to concepts identified as
abstract ideas by the courts as certain methods of organizing
human activity-such as fundamental economic principles or
practices [such as] commercial or legal interactions (including
agreements in the form of contracts; legal obligations;
advertising, marketing or sales activities or behaviors; business
relations).
Final Action 4.
The Specification discloses:
A social networking system receives an advertisement
(“ad”) campaign including a set of advertisement requests (“ad
requests”). Each ad request includes one or more ad creatives,
or “advertisement,” that identifies content presented to a social
networking system user when the ad request is presented.
Additionally, the ad campaign may include information
describing presentation of ad creatives to users of the social
networking system, such as a budget specifying an amount of
compensation received by the social networking system for
presenting ad requests in the ad campaign. In some
embodiments, an objective associated with presenting ad
requests is also included in the ad campaign and specifies a goal
of the advertiser for presentation of ad requests in the ad
campaign to social networking system users. One or more ad
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requests in the set of ad requests may have been presented to less
than a threshold number or percentage of social networking
system users; for example, ad requests newly included in the ad
campaign have not been presented to the threshold number or
threshold percentage of social networking system users.
Specification ¶ 5.
Claim 1 recites receiving a plurality of various ad creatives and
a plurality of impression opportunities where each impression
opportunity is an opportunity to present an advertisement or ad
creative to an online user in limitations [a], [b]. Claim 1 also recites
performing a selection process to select an advertisement by accessing
the prior impressions for each advertisement, determining a score for
each advertisement based on past user interactions in limitations [c]–
[e]. Claim 1 further recites in response to identifying advertisements
with less than a threshold number of prior impressions, determining a
score adjustment and modifying the score for each advertisement in
limitations [f], [g]. Claim 1 recites selecting an advertisement from
the selected advertisement and an additional plurality of
advertisements during a second selection process whereas upon
transmittal of the advertisement to the client’s device impression and
user interaction data is logged in limitations [j]–[m].
These steps recite commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations). Thus, the
claim recites the abstract idea of “certain methods of organizing human
activity.” See 2019 Revised Guidance, Section I (Groupings of Abstract
Ideas).
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Furthermore, our reviewing court has found claims to be directed to
abstract ideas when they recited similar subject matter. See Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014) (holding that claim
“describ[ing] only the abstract idea of showing an advertisement before
delivering free content” is patent ineligible); see also buySAFE, Inc. v.
Google, Inc., 765 F.3d. 1350, 1355 (Fed. Cir. 2014) (holding that concept of
“creating a contractual relationship—a ‘transaction performance guaranty’”
is an abstract idea).
Therefore, we conclude the claims recite an abstract idea pursuant to
Step 2A, Prong One, of the 2019 Revised Guidance. See 2019 Revised
Guidance, Section III(A)(1) (Prong One: Evaluate Whether the Claim
Recites a Judicial Exception).
Prong Two
Under Prong Two of the 2019 Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception into a
practical application of the exception.” 2019 Revised Guidance, Section
III(A)(2). We note that a “claim that integrates a judicial exception into a
practical application will apply, rely on, or use 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.” 2019 Revised Guidance, Section III(A)(2).
Appellant argues, “ While the claimed method may operate in an
advertising context, the method is directed to solving a technical problem
where the system bias selection of ad creatives with less than a threshold
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number of impressions to generate enough performance data for the trained
model to operate properly.” Appeal Brief 8.
We find Appellant’s claims are distinguished from those claims that
our reviewing court has found to be patent eligible by virtue of reciting
technological improvements to a computer system because Appellant’s
claims merely employ an online system and a client’s device to implement
the judicial exception wherein there is no improvement to the online system
or client’s device. See, e.g., Final Action 5–7 (addressing independent
claims 1, 14); DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
1249, 1257 (Fed. Cir. 2014) (holding that claims reciting computer processor
for serving “composite web page” were patent eligible because “the claimed
solution is necessarily rooted in computer technology in order to overcome a
problem specifically arising in the realm of computer networks”); Visual
Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017)
(holding that claims directed to “an improved computer memory system”
having many benefits were patent eligible); see Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016) (distinguishing between
“claims are directed to an improvement to computer functionality versus
being directed to an abstract idea” or whether “the focus of the claims is on
the specific asserted improvement in computer capabilities . . . or, instead,
on a process that qualifies as an ‘abstract idea’ for which computers are
invoked merely as a tool”); see also Alice, 573 U.S. at 222 (“In holding that
the process was patent ineligible, we rejected the argument that
‘implement[ing] a principle in some specific fashion’ will ‘automatically
fal[l] within the patentable subject matter of § 101.’” (alterations in original)
(quoting Parker v. Flook, 437 U.S. at 593).
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We find claim 1 does not recite any improvement to the claimed
online system or client’s device; instead claim 1 only uses the computer
system to send advertisements to clients or users. See Specification ¶ 5.
Additionally, we detect no additional element (or combination of elements)
recited in Appellant’s representative claim 1 that integrates the judicial
exception into a practical application. See 2019 Revised Guidance, Section
III(A)(2). For example, Appellant’s claimed additional elements (e.g.,
online system, client’s device) do not: (1) improve the functioning of a
computer or other technology; (2) is not applied with any particular machine
(except for generic devices); (3) does not effect a transformation of a
particular article to a different state; and (4) is not applied in any meaningful
way beyond generally linking the use of the judicial exception to a particular
technological environment, such that the claim as a whole is more than a
drafting effort designed to monopolize the exception. See MPEP
§§ 2106.05(a)–(c), (e)–(h).
Accordingly, we determine the claim does not integrate the recited
judicial exception into a practical application. See 2019 Revised Guidance,
Section III(A)(2).

Step 2B identified in the 2019 Revised Guidance
In Step 2B, we need to consider whether an additional or combination
of elements, “[a]dds 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 “simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception,
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which is indicative that an inventive concept may not be present.”
2019 Revised Guidance at 56.
Appellant contends:
The invention recites specific limitations describing how to
determine a score based on a prediction by a trained model for
user engagement, how to determine a score adjustment based on
a number of impressions for the ad creative, how to integrate the
ad creative into a selection process, and interaction of a user with
the selected ad creative.
Appeal Brief 8.
Appellant argues, “Together these result in an improvement to
conventional methods for selecting ad creatives for display to users.
Specifically, by biasing scores to promote ad creatives with fewer past
impressions, the system gathers impression data that increases the accuracy
of a trained model for predicting user engagement.” Appeal Brief 8.
Appellant surmises, “Thus, ad creatives that would otherwise not be selected
due to other ad creatives of the same advertising campaign receiving
impressions are displayed to users of the online system.” Appeal Brief 8.
Appellant argues:
As emphasized by the 2019 Guidance and Berkheimer
memorandum[8], this must be evaluated even when a claim is
directed to an abstract idea and where there is no practical
application – a rejection cannot be supported without factual

8 USPTO Commissioner for Patents Memorandum dated April 19, 2018,
“Changes in Examination Procedure Pertaining to Subject Matter Eligibility,
Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)”
available at https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF (“Berkheimer Memorandum”).

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evidence showing these additional concepts as a whole are well-
understood, routine, and conventional.
Appeal Brief 8.
The 2019 Revised Guidance states:
In accordance with existing guidance, an examiner’s
conclusion that an additional element (or combination of
elements) is well understood, routine, conventional activity must
be supported with a factual determination. For more information
concerning evaluation of well-understood, routine, conventional
activity, see MPEP 2106.05(d), as modified by the USPTO
Berkheimer Memorandum.
2019 Revised Guidance at 56 n.36 (Section III(B)) (emphasis added).
The Berkheimer Memorandum Section III(A) states when formulating
rejections, “[i]n a step 2B analysis, an additional element (or combination of
elements) is not well-understood, routine or conventional unless the
examiner finds, and expressly supports a rejection in writing.” Berkheimer
Memorandum at 3. The Berkheimer Memorandum provides four criteria for
the Examiner to utilize to provide support for the additional elements to be
considered to be well-understood, routine or conventional.9
The Examiner finds:

9 Berkheimer Memorandum at 3–4 (Section III(A)) (“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).”).
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Generic computer components recited as performing generic
computer functions that are well-understood, routine and
conventional activities amount to no more than implementing the
abstract idea with a computerized system. The use of generic
computer components to present/display (to the extent this
feature is positively recited in the claims) or transmit ads to a
user or to receive interactions from a user is likewise the well-
understood, routine, and conventional computer functions of
receiving or transmitting data over a network, e.g., the Internet,
and does not impose any meaningful limit on the computer
implementation of the abstract idea. M.P.E.P. § 2106.05(d)(II).
Thus, taken alone, the additional elements do not amount to
significantly more than a judicial exception.
Final Action 7.
Accordingly, the Examiner supports the determination by citing to
M.P.E.P. § 2106.05(d)(II). We do not find Appellant’s argument persuasive
because, in determining if the additional elements (or combination of
additional elements) represent well-understood, routine, conventional
activity, the Examiner supported the determination based upon a factual
determination as specified in the Berkheimer Memorandum. See
Berkheimer Memorandum at 3–4 (Section III(A)(2)).
Further in Bascom, our reviewing court found that while the claims of
the patent were directed to a judicial exception, the patentee alleged an
“inventive concept can be found in the ordered combination of claim
limitations that transform the abstract idea of filtering content into a
particular, practical application of that abstract idea.” Bascom Global
Internet Services, Inc., v. AT&T Mobility LLC, 827 F.3d 1341, 1352 (Fed.
Cir. 2016). In particular, the patent in Bascom claimed “a technology-based
solution (not an abstract-idea-based solution implemented with generic
technical components in a conventional way) to filter content on the Internet
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that overcomes existing problems with other Internet filtering systems.”
Bascom at 1351.
Claim 1 is distinguishable, as it recites an abstract-idea-based
solution, that is, a method for to send advertisements to clients or users with
generic technical components (e.g., online system, client’s device), in a
conventional way. See generally Specification. Therefore, we are not
persuaded that ordered combination of limitations in representative claim 1
provides an inventive concept, and we find the claims simply append a well-
understood, routine and conventional activity to the judicial exception. See
2019 Revised Guidance at 56.
Accordingly, we conclude claims 1, 2, 4, 6, 8–15, 17 and 19 are
directed to commercial or legal interactions (including agreements in the
form of contracts; legal obligations; advertising, marketing or sales activities
or behaviors; business relations). Thus, the claim recites the abstract idea of
“certain methods of organizing human activity.” See 2019 Revised
Guidance, Section I (Groupings of Abstract Ideas). We sustain the
Examiner’s § 101 rejection of claims 1, 2, 4, 6, 8–15, 17 and 19.

35 U.S.C. § 103 Rejection
Appellant contends, “Neither Benson nor Hegeman teach or suggest at
least ‘determining a score for each of the plurality of different ad creatives,’
and ‘selecting an ad creative from the plurality of ad creatives based at least
in part on the modified scores,’ as claimed.” Appeal Brief 10 (citing Final
Action 8–10). The Examiner determines that Benson discloses “determining
a score for each of the plurality of different ad creatives (see at least [2:55–
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67]: advertisers’ bids-i.e., scores/bid amounts and a budget-are determined
before being automatically adjusted).” Appellant further contends:
Benson does not describe accessing information for an ad
campaign, determining a score for each ad creative of the ad
campaign, determining a score adjustment for each ad creative of
the ad campaign that is inversely related to a number of
impressions for the ad creative, modifying the scores for the ad
creatives based on the score adjustments, and selecting an ad
creative based at least in part on the modified scores.
Appeal Brief 11.
Appellant argues, “Hegeman does not cure the deficiencies of Benson,
nor does the Office Action allege it does.” Appeal Brief 12. However, the
Examiner relied upon Hegeman to address Benson’s deficiencies. See Final
Action 13. The Examiner determines:
It would have been obvious to a person having ordinary
skill in the art before the effective filing date of the claimed
invention to combine the bid adjustment techniques taught by
Hegeman with the bid adjustment system disclosed by Benson,
because Hegeman teaches its “automated form of bidding
precludes the need for advertisers to manually submit bids for
ads, instead allowing an advertiser to merely set an ad’s budget,
plus other goals and constraints.” Hegeman at ¶ [0019].
Moreover, it would have been obvious to a person having
ordinary skill in the art before the effective filing date of the
claimed invention to combine the bid adjustment techniques
taught by Hegeman with the bid adjustment system disclosed by
Benson, because the claimed invention is merely a combination
of old elements (the bid adjustment techniques taught by
Hegeman and the bid adjustment system disclosed by Benson),
in the combination each element merely would have performed
the same function as it did separately, and one of ordinary skill
in the art would have recognized that the results of the
combination were predictable. M.P.E.P. § 2143(1)(A).
Final Action 13–14.
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Contrary to Appellant’s contention, the Examiner did find that
Hegeman’s automated form of bidding cures the deficiencies of Benson.
Appellant did not address the Examiner’s finding. Therefore, we do not find
Appellant’s arguments persuasive of Examiner error and we sustain the
Examiner’s obviousness rejection because the test for obviousness is what
the combined teachings of the references would have suggested to one of
ordinary skill in the art. See In re Kahn, 441 F.3d 977, 987–88 (Fed. Cir.
2006); In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991); In re Keller, 642
F.2d 413, 425 (CCPA 1981). The Examiner can satisfy this test by showing
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness. KSR Int’l. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (citing In re Kahn, 441 F.3d at 988). We find that the Examiner
has satisfied the test. Accordingly, we sustain the Examiner’s obviousness
rejection of claims 1, 2, 4, 6, 8–15, 17, and 19 not argued separately. See
Appeal Brief 12.10

CONCLUSION
Claims Rejected 35 U.S.C. § References/B
asis
Affirmed Reversed
1, 2, 4, 6, 8–15, 17,
19
101 Eligibility 1, 2, 4, 6, 8–15,
17, 19

1, 2, 4, 6, 8–15, 17,
19
103 Benson,
Hegeman
1, 2, 4, 6, 8–15,
17, 19

10 “For at least these reasons, claim 1 is patentable over Benson and
Hegeman, alone or in combination. Claim 14 recites similar limitations as
claim 1. Thus, claim 14 and its dependent claims are also patentable over
Benson and Hegeman. The rejection of claims 1, 2, 4, 6, 8–15, 17, and 19
under§ 103 should therefore be reversed.” Appeal Brief 12.
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Overall
Outcome
1, 2, 4, 6, 8–15,
17, 19

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

AFFIRMED