Good Measures, LLC

Patent Trials and Appeals Board

Jul 12, 2021

2020003859 (P.T.A.B. Jul. 12, 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.
14/663,779 03/20/2015 George B. Bennett 1849840-0002-006-102 5765
106224 7590 07/12/2021
White & Case LLP
701 13th Street NW
Washington, DC 20005
EXAMINER
GEBREMICHAEL, BRUK A
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
07/12/2021 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):
wcpatents@whitecase.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GEORGE B. BENNETT, DANIEL R. RIES,
STEFANY A. SHAHEEN, CHESLEY M. CHEN,
EMILY P. STONE, and ROBERT V. MATHEWS
____________________

Appeal 2020-003859
Application 14/663,779
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 2–5, 8–19, and 22–39. Appeal Br. 1;
see also Final Act. 1–37. 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 Good
Measures, LLC. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Appellant’s application is titled “Systems and Methods for User-
Specific Modulation of Nutrient Intake.” Spec. 1 (capitalization and
underlining omitted). The claims relate to “methods that provide
personalized approaches for analyzing nutrient intake levels and for
generating recommendations that are responsive to a user’s current
nutritional intake and the user’s nutrition-related goals.” Spec. ¶ 2. Claims
2 and 16 are independent, and claim 16, reproduced below with bracketed
notations and emphasis added, is illustrative of the claimed subject matter:
16. A method for aligning a person’s diet with a nutrition-related
goal, the method comprising:
[(a)] receiving in a computer system in communication
with an electronic database (1) data representative of a user-
selected dietary program, including a nutrition-related goal for
the person, and (2) data representative of an amount of each of
a plurality of nutrients previously consumed by the person during
a defined period of time;
[(b)] determining by the computer system based on the
user-selected dietary program, a target nutritional profile
including a target level for each of a plurality of target nutrients
associated with the dietary program;
[(c)] computing a deviation for each of the target nutrients
by comparing the target level of the target nutrient to the
consumed amount of the respective target nutrient to obtain a
plurality of deviations, wherein each deviation indicates a deficit
for the respective target nutrient if the consumed amount of the
target nutrient is below the target level of the target nutrient, and
an excess for the respective target nutrient if the consumed
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amount of the target nutrient is above the target level of the
target nutrient;
[(d)] determining a nutrient coefficient for each target
nutrient based on the nutrition-related goal associated with the
person, wherein the nutrient coefficient for each target nutrient
is indicative of an importance of the respective target nutrient to
the person relative to other target nutrients;
[(e)] computing a nutritional index that represents an
aggregate alignment between the consumed amounts of the
plurality of consumed nutrients and the target nutritional profile,
wherein the nutritional index is based on a weighted function that
applies the nutrient coefficient for each target nutrient to the
respective deviation for the target nutrient, thereby indicating a
degree of alignment between the person’s diet and the user-
selected dietary program;
[(f)] generating a food recommendation based on a
predicted index impact in the nutritional index, the food
recommendation comprising a recommended food and a
specified portion size of the recommended food that if consumed
by the person improves the degree of alignment between the
person’s diet and the user-selected dietary program; and
[(g)] providing the nutritional index and the food
recommendation for display by a user interface device.

REJECTIONS
I. Claim 36 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite due to lack of antecedent basis for the limitation, “the medical
condition.” Final Act. 36; Ans. 9.
II. Claims 35 and 36 are rejected under 35 U.S.C. § 112, fourth
paragraph, for improper dependency for failing to further limit the subject
matter of parent claims 2 and 34, respectively. Final Act. 37; Ans. 10.
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III. Claims 2–5, 8–19, and 22–39 are rejected under 35 U.S.C. § 101 as
patent ineligible subject matter. Final Act. 2–36; Ans. 3–8, 11–44.

ANALYSIS
Rejections I and II
The Examiner concludes claim 36 is indefinite under 35 U.S.C.
§ 112, second paragraph, and concludes claims 35 and 36 are improper
dependent claims under 35 U.S.C. § 112, fourth paragraph. Final Act. 36–
37; Ans. 9–10. Appellant does not appeal these rejections. See Appeal
Br. 23 (identifying the rejection under 35 U.S.C. § 101 as the only ground of
rejection to be reviewed on appeal). In an Applicant-Initiated Interview
Summary mailed on March 25, 2019, the Examiner reported that Appellant
“indicated that a correction would be made with respect to claim 35 in order
to comply with section §112(d).”2 Since no such correction is reflected in
the record and the rejections are not appealed, we summarily affirm these
rejections.

Rejection III
Introduction
The Examiner rejects claims 2–5, 8–19, and 22–39 under 35 U.S.C.
§ 101 as patent ineligible subject matter because they are directed to an

2 We note that, if such a correction were made, claim 36 might be rendered
compliant with 35 U.S.C. § 112 merely by changing its dependency from
claim 34 to claim 35.
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abstract idea without significantly more. Final Act. 2–36; Ans. 3–8, 11–44.
Appellant argues, with support from two declarations,3 that the Examiner
improperly rejected the claims. See generally, Appeal Br. 24–43; Reply Br.
2–13. Appellant argues the pending claims as a group, and we select method
claim 16 as representative for purposes of this rejection. See 35 U.S.C.
§ 41.37(c)(1)(iv).
It is uncontested that claim 16 recites one of the four enumerated
categories of patentable subject matter listed in 35 U.S.C. § 101. MANUAL
OF PATENT EXAMINING PROCEDURE (“MPEP”) § 2106 ¶ I (9th ed. rev.
10.2019, June 2020).
The question before us is whether claim 16 qualifies as patent-eligible
subject matter.
We begin by determining if claim 16 is “directed to” a judicial
exception, such as a law of nature, natural phenomenon, or abstract idea.
See Alice, 573 U.S. at 219. As applied by the Patent and Trademark Office,
this step (i.e., Step 2A) has two “prongs.” MPEP § 2106.04 ¶ II.A. In Step
2A, Prong One, we evaluate whether the claim recites, that is, sets forth or
describes, a judicial exception. MPEP § 2106.04 ¶ II.A.1.
In Step 2A, Prong Two, we must “evaluate whether the claim as a
whole integrates the exception into a practical application of that exception.”

3 Declaration of Dr. Lawrence Tabone, executed November 1, 2017
(“Tabone Decl.”), and Declaration of W.J. Duke Dufresne, executed
November 1, 2017 (“Dufresne Decl.”).
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MPEP § 2106.04 ¶ II.A.2; see also id. § 2106.04(d)(2). This is true because
“it is not enough to merely identify a patent-ineligible concept underlying
the claim; we must determine whether that patent-ineligible concept is what
the claim is ‘directed to.’” Endo Pharms. Inc. v. Teva Pharms. USA, Inc.,
919 F.3d 1347, 1353 (Fed. Cir. 2019) (quoting Rapid Litig. Mgmt. Ltd. v.
CellzDirect, Inc., 827 F.2d 1042, 1050 (Fed. Cir. 2016)).
In Step 2B of the analysis, “we must examine the elements of the
claim to determine whether it contains an ‘inventive concept’ sufficient to
‘transform’ the claimed [judicial exception] into a patent-eligible
application.” Alice, 573 U.S. at 221. “Evaluating additional elements to
determine whether they amount to an inventive concept 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. One consideration that may be taken into account in
determining whether the claim amounts to significantly more that the
concept falling within the judicial exception is whether the claim merely
associates the concept with an article, machine, or activity, described at a
high level of generality, that is well-understood, routine, and conventional in
the industry. MPEP § 2106.05(d).
As explained below, Appellant has not demonstrated error by the
Examiner. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI
2010) (precedential); 37 C.F.R. § 41.37(c)(1)(iv) (2018) (We review the
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appealed rejections for error identified by Appellant, and arguments not
made are forfeited.).
Step 2A, Prong One
Appellant argues that the Examiner did not determine that claim 16
falls under any of the enumerated groupings set forth in MPEP § 2106.04(a).
Appeal Br. 27. However, the Examiner determined that the above-italicized
portions of limitations (a) through (g) of claim 16 recite a process for
managing diet or nutrition. Final Act. 3, 5–6; see also Ans. 4–6. The
Examiner characterizes this concept as a mental process, which is a grouping
of abstract ideas. Ans. 4, 15–17; see also MPEP § 2106.04(a)(2) ¶ III
(providing that the “‘mental processes’ abstract idea grouping is defined as
concepts performed in the human mind, and examples . . . include
observations, evaluations, judgments, and opinions”). The Examiner further
determined this concept to be similar to other concepts that the Federal
Circuit has held to be abstract ideas, such as “collecting information,
analyzing it, and displaying certain results of the collection and analysis.”
Final Act. 3 (quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016)), 5–7. We agree with the Examiner’s determinations.
Here, the Specification describes in the Background section that
“[i]ndividuals often find it frustrating to improve their overall nutrition and
health.” Spec. ¶ 3. Current methods for addressing this known problem fall
short “because they rely on inadequate information about the person and his
or her objectives.” Id. Physicians provide patients with general guidelines
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and advice, such as eat more fruits and vegetables, exercise more, and avoid
red meat, but these guidelines are difficult to implement. Id. Current
nutritional programs analyze a person’s consumption, identify nutrients
deemed to be deficient, and recommend foods high in the identified
nutrients. Id. ¶ 4. For example, known programs may recommend a banana
to a person deficient in potassium. However, these suggestions may
compromise other aspects of the person’s overall nutrition, such as the
person’s carbohydrate level. Id. Some known programs use a one-size-fits-
all approach to change consumption patterns as little as possible while
staying within a safe range of nutrients. Id. ¶ 5. However, these programs
do not allow an individual to set meaningful nutritional goals or improve a
personal nutritional profile. Id.
Appellant’s claimed invention seeks to address such shortcomings in
the prior art by analyzing a user’s nutrient intake levels and, in response to
those levels and the user’s nutrition-related goals, generating
recommendations. Id. ¶ 2; see also id. ¶ 152 (explaining that the invention
“provide[s] a tailored approach to analyzing nutrient intake levels and to
generating recommendations that are responsive to both a specific user’s
current nutritional intake and the user’s nutrition-related goals.”); ¶ 153
(describing that the claimed invention “modulat[es] a person’s diet to align
with the person’s specific dietary goals”). Consistent with this description,
claim 16 recites a “method for aligning a person’s diet with a nutrition-
related goal.”
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Specifically, the method includes: (I) receiving data about the
person’s diet and nutrition-related goal, i.e., “receiving . . . (1) data
representative of a user-selected dietary program, including a nutrition-
related goal for the person, and (2) data representative of an amount of each
of a plurality of nutrients previously consumed by the person during a
defined period of time” (limitation (a)); (II) determining a degree of
alignment between the person’s diet and nutrition-related goal based on the
received data, i.e.,
determining . . . based on the user-selected dietary
program, a target nutritional profile including a target level for
each of a plurality of target nutrients associated with the dietary
program;
computing a deviation for each of the target nutrients by
comparing the target level of the target nutrient to the consumed
amount of the respective target nutrient to obtain a plurality of
deviations, wherein each deviation indicates a deficit for the
respective target nutrient if the consumed amount of the target
nutrient is below the target level of the target nutrient, and an
excess for the respective target nutrient if the consumed amount
of the target nutrient is above the target level of the target
nutrient;
determining a nutrient coefficient for each target nutrient
based on the nutrition-related goal associated with the person,
wherein the nutrient coefficient for each target nutrient is
indicative of an importance of the respective target nutrient to the
person relative to other target nutrients; [and]
computing a nutritional index that represents an aggregate
alignment between the consumed amounts of the plurality of
consumed nutrients and the target nutritional profile, wherein the
nutritional index is based on a weighted function that applies the
nutrient coefficient for each target nutrient to the respective
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deviation for the target nutrient, thereby indicating a degree of
alignment between the person’s diet and the user-selected dietary
program
(limitations (b)–(e)); (III) generating a food recommendation that, if
consumed, would improve the person’s diet with the person’s nutrition-
related goal, i.e.,
generating a food recommendation based on a predicted
index impact in the nutritional index, the food recommendation
comprising a recommended food and a specified portion size of
the recommended food that if consumed by the person improves
the degree of alignment between the person’s diet and the user-
selected dietary program
(limitation (f)); and (IV) providing the results of the calculated alignment
and food recommendation to the person, i.e., “providing the nutritional index
and the food recommendation for display” (limitation (g)). These
limitations, when given their broadest reasonable interpretation, recite a
process for managing a person’s diet in view of a nutrition-related goal, i.e.,
“managing personal behavior or relationships or interactions between
people, (including . . . following rules or instructions),” which is a method of
organizing human activity and, therefore, an abstract idea. See MPEP
§ 2106.04(a)(2) ¶ II.
We also agree with the Examiner that each of these limitations can be
performed in the human mind, such as by a nutritionist, using a physical aid,
such as pen and paper and/or tables containing nutritional information for a
plurality of foods. See Ans. 4–6, 15–17; see also Gottschalk v. Benson, 409
U.S. 63, 67 (1972) (“The conversion of BCD numerals to pure binary
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numerals can be done mentally through [the] use of the [conversion]
table.”); Parker v. Flook, 437 U.S. 584, 586 (1978) (finding that the
calculations for producing automatic adjustments in alarm settings could “be
made [using a] pencil and paper”).
In particular, a nutritionist could receive a person’s nutrition-related
goal and information about the person’s diet, as required by limitation (a)
(i.e., “receiving . . . data”). For example, the person could hand the
nutritionist a food log, recorded on paper, identifying the types and
quantities of foods consumed by the person during a defined time interval.
This food log would contain data representative of an amount of each of a
plurality of nutrients consumed. Additionally, the person could verbally
share a nutrition-related goal with the nutritionist, which the nutritionist, in
turn, could record by pen and paper and store along with the food log for the
person. See Ans. 15; see also MPEP § 2106.04(a)(2) ¶ III (providing that
“examples of mental processes include observations”).
Next, the nutritionist could analyze the received information, as
recited in limitations (b) through (e), to arrive at the claimed nutritional
index, which indicates a degree of alignment between the person’s diet and
the user-selected dietary program, which includes a nutrition-related goal for
the person. See Ans. 16. Specifically, limitations (b) through (e) call for a
series of evaluations (e.g., “determining,” “computing”) that a nutritionist
using a pen and paper could perform. See MPEP § 2106.04(a)(2) ¶ III
(identifying evaluations as exemplary mental processes); see also, e.g., Spec.
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¶ 173 (describing that a second user, such as a clinician or nutritionist, may
have access to the user’s inputs and adjust the user’s target profile on a
nutrient-by-nutrient basis, may match the data in the first user’s profile with
a dietary profile, and may contact the user to set up a consultation).
Then, at limitation (f) the nutritionist could generate a food
recommendation comprising a specified portion of a recommended food
based on a predicted index impact in the nutritional index if consumed by
the person. This step of generating a food recommendation amounts to a
judgment or opinion by the nutritionist regarding an amount and type of
food to improve the alignment between the person’s diet and user-selected
judgement. See MPEP § 2106.04(a)(2) ¶ III (identifying judgments and
opinions as exemplary mental processes). Finally, at limitation (g) the
nutritionist could provide the results of the collection of data and data
analysis by showing the person the nutritional index and food
recommendation previously created on paper. See Ans. 17. Because
limitations (a) through (g) set forth concepts that can be performed in the
human mind, such as an observation, evaluation, judgement, and/or opinion,
we agree that claim 16 recites mental processes. See MPEP § 2016.04(a).
Appellant contends that claim 16 does not recite a mental process
because the “human mind is not equipped to perform the claim limitations
because they require a series of complex steps that culminate in a food
recommendation specifically chosen to improve a person’s nutritional
index.” Appeal Br. 28; see also Reply Br. 3–4. More specifically,
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Appellant asserts that the steps of “computing a nutritional index” and
“generating a food recommendation,” are complex because a patient would
have difficulty tracking all of the variables using only their mind. Reply Br.
4 (referring to limitations (e) and (f)). Appellant makes general reference to
the Declarations of Dr. Tabone and Dr. Dufresne, but does not cite a page or
paragraph number. Id. Dr. Tabone states that a patient preparing for
bariatric surgery may have to track as many as thirty different nutrients to
assess the patient’s overall compliance and progress with a dietary plan.
Tabone Decl. 5 (¶ V.d.). Similarly, Dr. Dufresne states that the step of
“determining a nutritional coefficient for each target nutrient” cannot be
performed in a doctor’s or dietitian’s head. Dufresne Decl. 5–6 (¶ VI.b.).
Appellant’s argument is not persuasive because it is not
commensurate in scope with the claim language. Claim 16 requires
receiving data regarding at least two nutrients (i.e., “a plurality of nutrients”)
consumed by the person. A “nutrient” includes “any source of
nourishment,” such as calories, proteins, carbohydrates, lipids, fiber, and
cholesterol. Spec. ¶ 154. While the claim encompasses tracking a large
number of nutrients (e.g., thirty nutrients), the claim language does not
require tracking more than two nutrients (i.e., a plurality). Moreover, even if
more than two nutrients were tracked, the use of a physical aid, such as pen
and paper, slide rule, or a reference table, to help perform a mental step does
not negate the mental nature of the limitation. See MPEP § 2106.04(a)(2)
¶ III.B; see also CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
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1372 (Fed. Cir. 2011) (holding that steps that could be performed in the
human mind or by a human using a pen and paper are unpatentable mental
processes); Benson, 409 U.S. at 67 (holding that the “conversion of [binary-
coded decimal (BCD)] numerals to pure binary numerals can be done
mentally through [the] use of [a conversion] table”).
As such, Appellant does not persuade us that the “human mind is not
equipped to perform the claim limitations” or that the Examiner otherwise
erred in determining that the steps are within the capacity of a human mind
aided by pen and paper. Appeal Br. 28. Therefore, limitations (a) through
(g) of claim 16 recite a mental process. This remains true even though claim
16 recites performing certain steps (i.e., limitations (a), (b), and (g)) using
computer equipment. See MPEP § 2106.04(a)(2) ¶ III.C; Final Act. 8.
Appellant also contends that claim 16 does not recite an ineligible
method of organizing human behavior because it does not involve managing
personal behavior. Appeal Br. 28 (arguing that, instead of “organizing
human activity,” claim 16 “compute[s] a nutritional index . . . and
generate[s] a food recommendation based on a predicted index impact on the
nutritional index”); see also Reply Br. 5 (arguing that claim 16 is “directed
to generating a food recommendation specific to a single person’s diet and
goal” and that a food recommendation system does not “organize human
activity by managing the person’s personal behavior.”) Yet, Appellant’s
claimed invention recites an interaction involving receiving a person’s diet
and goal information and, in response, analyzing the information and
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providing a food recommendation to the person. The method also helps
manage the person’s behavior by recommending foods for the person to
consume in order to better align the person’s diet with his or her nutrition-
related goal. See Spec. ¶ 6; see also id. ¶¶ 46 (“[T]he system can be applied
to a plurality of nutrients to help the person align her diet . . . with her
goals.”), 47 (describing that the recommended food is selected to reduce
deviation of the target nutrient levels), 152 (explaining that the invention
“provide[s] a tailored approach to analyzing nutrient intake levels and to
generating recommendations that are responsive to both a specific user’s
current nutritional intake and the user’s nutrition-related goals.”); 153
(describing that the claimed invention “modulat[es] a person’s diet to align
with the person’s specific dietary goals”), 189 (providing that consuming the
recommended food “move[s] the index closer to the target level”), 198
(describing an optimization object to “provide meal recommendations that
bring the user’s dietary intake as close as possible to the modified target
profile”).
To the extent Appellant argues that claim 16 does not involve a
sufficient number of people to fall into the certain methods of organizing
human behavior grouping of abstract ideas, “the number of people involved
in the activity is not dispositive as to whether a claim limitation falls within
this grouping. Instead, the determination [is] based on . . . the activity
itself.” MPEP § 2106.04(a)(2) ¶ II. For example, in Intellectual Ventures I
LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015), the
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representative claim involved “tracking financial transactions to determine
whether they exceed a pre-set spending limit (i.e., budgeting)’” and did not
recite multiple people.4 The Federal Circuit determined that the claimed
method was “not meaningfully different” from concepts “involving methods
of organizing human activity” that the courts have determined to be abstract
ideas, even though the claim did not recite a group of people. Id. In our
view, the concept of tracking financial transactions to determine whether
they exceed a pre-set spending limit (i.e., budgeting), set forth by the
representative claim in Intellectual Ventures, does not meaningfully differ
from the concept of aligning a person’s diet with a nutrition-related goal, set
forth in limitations (a) through (g) of claim 16. Both concepts seek to help
manage a person’s behavior to meet a goal, where one goal is financial-
related and the other is nutrition-related. Accordingly, Appellant also does
not persuade us that the Examiner erred in determining that limitations (a)
through (g) of claim 16 fall within the certain methods of organizing human
activity grouping of abstract ideas.

4 The representative claim recited a method comprising two steps:
(1) “storing, in a database, a profile keyed to a user identity and containing
one or more user-selected categories to track transactions associated with
said user identity, wherein individual user-selected categories include a user
pre-set limit;” and (2) “causing communication, over a communication
medium and to a receiving device, of transaction summary data in the
database for at least one of the one or more user-selected categories, said
transaction summary data containing said at least one user-selected
category’s user pre-set limit.”
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Step 2A, Prong Two
The Examiner determined that the additional elements beyond the
abstract idea (i.e., the mental process and/or the certain method of
organizing human activity) include the following: a computer system in
communication with an electronic database, and a user interface device.5
The Examiner found that these additional elements are generic computer
components, generically arranged, performing generic computer functions.
See Final Act. 7–8; see also Ans. 6–7. Accordingly, the additional elements,
considered individually and as an ordered combination, fail to integrate the
abstract idea into a practical application of that abstract idea. Ans. 7; see
also MPEP § 2106.04 ¶ II.A.2; MPEP § 2106.04(d)(2). We agree with the
Examiner’s determinations.
Appellant argues that claim 16 recites an integrated practical
application, because it “generate[s] a food recommendation that improves an
aggregate alignment between consumed nutrient amounts and a target
nutritional profile.” Appeal Br. 29. Appellant similarly argues that the
claim recites “a technological improvement in the technical field of
computerized personalized nutrition analysis and recommendation that
addresses the difficulty of knowing what food to eat, how much to eat, and
when to eat it, to best meet a specific person’s nutrition-related goals.” Id. at
30; see also Reply Br. 6. In contrast, “[p]reviously existing computer
programs might recommend foods high in nutrients that are deficient in an

5 See claim 16 limitations (a), (b), and (g).
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individual, but those recommendations are provided without regard to how
consumption of that food would affect the balance of other, already
excessive nutrients.” Id. Drs. Tabone and Dufresne express the alleged
technical problem and solution in greater detail:
As described above, one drawback of conventional nutritional
assessment systems is that patients often have difficulty tracking
their compliance with a program. The Application solves this
problem by providing an aggregate value that is easy to track and
represents an aggregate alignment between the person’s
consumption levels and the person’s target levels.
Tabone Decl. 7 (¶ VII.b.); see also Dufresne Decl. 5 (¶ V.c.). (“The
algorithm described in the claims provides a technical mechanism for
objectively and simultaneously assessing the impact of a recommendation
across multiple nutrients.”).
However, we are not persuaded that an improved food
recommendation that results in better aggregate alignment between
consumed nutrient amounts and a target nutritional profile is a technological
improvement, as opposed to an improvement to a process that is itself the
abstract idea. Specifically, as discussed earlier, the steps of the method
recited in claim 16 leading to the computation of the nutritional index and
the generation of the food recommendation constitute at least one of a
mental process, and a method of organizing human behavior. As such, the
computation of the nutritional index, and the generation of the food
recommendation, are part of the abstract idea itself. Appellant’s attempt to
recast the technical field as “computerized personalized nutritional analysis
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and recommendation” (Reply Br. 6; see also Appeal Br. 30) merely limits
the abstract idea to a particular field of endeavor in which a computer is used
as a tool for computing a nutritional index and generating a food
recommendation. As discussed earlier, the use of a computer as a tool to
implement a mental process or a method of organizing human behavior does
not integrate the abstract idea into a practical application. MPEP
§ 2106.04(d) ¶ I.
Appellant contends that claim 16 recites “a very specific
implementation” of the abstract idea. Appeal Br. 29. However, the
specificity of a claim does not overcome patent ineligibility. A specific
abstract idea is still an abstract idea. Cf. Mayo, 566 U.S. at 88–89 (noting
that “cases have not distinguished among different laws of nature according
to whether or not the principles they embody are sufficiently narrow”)
(citing Flook, 437 U.S. at 594–95 (holding narrow mathematical formula
unpatentable)).
Citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299
(Fed. Cir. 2016) and Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299 (Fed.
Cir. 2018) to support its position, Appellant argues that the Federal Circuit
has held claims similar to claim 16 to be patent eligible. See Appeal Br. 32–
37. However, we find no parallel between claim 16 and the patent-eligible
claims at issue in McRO and Finjan.
For example, Appellant contends that claim 16, like the claim at issue
in McRO, is “directed to specific rules that were previously never used . . . to
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provide explicit feedback to a person regarding how well [the person’s] diet
tracks a nutrition-related goal.” Appeal Br. 33. Yet, in McRO, the Federal
Circuit did not premise its determination that the claim at issue was patent
eligible merely on the specificity of the claimed animation scheme. Instead,
the court determined that the claim at issue was patent eligible because,
when considered as a whole, the claim was directed to a technological
improvement over existing, manual 3-D animation techniques and used
limited rules in a process specifically designed to achieve an improved
technological result in conventional industry practice. McRO, 837 F.3d at
1316. The Federal Circuit found that the claimed rules allow computers to
produce accurate and realistic lip synchronization and facial expressions in
animated characters that previously required human animators to
produce. Id. at 1313.
Here, we are not persuaded that generating a food recommendation
that better aligns a user’s diet with the user’s nutrition-related goal, as called
for in claim 16, is a technological improvement analogous to the
improvement to 3-D animation techniques recited in the claim at issue in
McRO.
Appellant’s reliance on Finjan is similarly unavailing. In Finjan, our
reviewing court held that a claim reciting a specific improvement to
computer functionality in the form of a virus scan “distinguished from
traditional, ‘code-matching’ virus scans that [were] limited to recognizing
the presence of previously-identified viruses,” was eligible for patent
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protection. Finjan, 879 F.3d at 1304–06. Nevertheless, “[w]hether a
claimed software innovation is directed to an abstract idea ‘often turns on
whether the claims focus on specific asserted improvements in computer
capabilities or instead on a process or system that qualifies an abstract idea
for which computers are invoked merely as a tool.’” Cisco Sys., Inc. v.
Uniloc 2017 LLC, 813 Fed.Appx. 495, 497 (Fed. Cir. 2020) (quoting Uniloc
USA Inc. v. LG Elecs. USA, Inc., 957 F.3d 1303, 1307 (Fed. Cir. 2020))
(distinguishing Finjan). Here, the claims do not focus on a specific
improvement to computer functionality, but on the use of conventional
computer equipment as tools for implementing the abstract idea. See
Ans. 34.
To the extent that Appellant’s argument hinges on novelty (Appeal
Br. 36), the novelty of the nutritional index, or of its use to generate a food
recommendation, does not imply that the use of a computer as a tool to
calculate a nutrition index is a practical application of either the index or the
method by which it is computed. Ans. 27–28. Novelty is an issue separate
from patent eligibility. Diamond v. Diehr, 450 U.S. 175, 188–189 (1981)
(“The ‘novelty’ of any element or steps in a process, or even of the process
itself, is of no relevance in determining whether the subject matter of a claim
falls within the § 101 categories of possibly patentable subject matter.”).
Finally, Appellant contends that claim 16 is eligible for patent
protection because the claim does not pre-empt all methods for analyzing
nutrients or generating food recommendations. Appeal Br. 40–41. Once the
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multi-step analysis set forth in Alice has been performed and a claim has
been determined to be ineligible, no further analysis is required to determine
that the claims would preempt the abstract idea to which the claim is
directed. Ariosa Diagnostics, Inc., v. Sequenom, Inc., 788 F.3d 1371, 1379
(Fed. Cir. 2015); see also Ans. 44.
We conclude, for the reasons outlined above, that claim 16 recites an
abstract idea (i.e., a mental process and/or a method of organizing human
activity), and that the additional elements recited in the claim beyond the
abstract idea are no more than generic computer components used as tools to
perform the recited abstract idea. MPEP § 2106.04(d). Consequently, claim
16 fails to integrate the abstract idea into a practical application of that
abstract idea. Therefore, we agree with the Examiner that claim 16 is
directed to an abstract idea. See Ans. 6.
Step 2B
After determining that a claim is directed to an abstract idea, “we then
ask, ‘[w]hat else is there in the claims before us?’” Alice, 573 U.S. at 217
(quoting Mayo, 566 U.S. at 78). To answer that question, we consider the
additional elements recited in the claim beyond the abstract idea both
individually and as an ordered combination to determine whether they
amount to an “inventive concept,” such that it transforms the nature of the
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claim into a patent-eligible application. Id. at 217–18; see also MPEP
§ 2106.05.
Here, the Examiner determined (Final Act. 7–8; Ans. 6), and we
agree, that the only additional elements recited in claim 16 beyond the
abstract idea are generic computer components (i.e., a “computer system”
(limitations (a) and (b)), “electronic database” (limitation (a)), and “user
interface device” (limitation (g))). See Spec. ¶¶ 296–305. Taking the
additional elements separately, the functions performed by the generically
recited computer system, electronic database, and user interface (i.e.,
receiving data (limitation (a)), determining (limitation (b)), and displaying
(limitation (g))) are well understood, routine, and conventional functions
previously known to the industry. There is no indication, for example, that
the steps of receiving data in a computer system in communication with an
electronic database (limitation (a)), determining by the computer system
based on the data (limitation (b)), and displaying data by a user interface
device (limitation (g)), require more than generic computer components
operating in their ordinary capacity. See Elec. Power Grp., 830 F.3d at 1356
(The claims “do not include any requirement for performing the claimed
functions of gathering, analyzing, and displaying in real time by use of
anything but entirely conventional, generic technology.”); see also Versata
Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015)
(determining claims requiring “arranging, storing, retrieving, sorting,
eliminating, determining” to “involve the normal, basic functions of a
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computer” and to be “conventional, routine, and well-known”); In re Katz
Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed.
Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming.”).
Considered as an ordered combination, the generic computer
components of claim 16 add nothing that is not present when the limitations
are considered separately. For example, claim 16 does not purport to
improve the functioning of the computer system, electronic database, or user
interface device themselves. Nor does it effect an improvement in any other
technology or technical field. Instead, claim 16 amounts to nothing
significantly more than an instruction to apply the abstract idea using generic
computer components performing routine computer functions. That is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 225–26.
Appellant contends that claim 16, as a whole, recites an inventive
concept because it computes a number, namely, the nutritional index, which
is not well-understood, routine, or conventional; and then uses that number
to generate a food recommendation. Appellant’s argument is unpersuasive,
at least because these steps comprise the abstract idea itself, i.e., the mental
process and/or method of organizing human behavior. See BSG Tech LLC v.
BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear
since Alice that a claimed invention's use of the ineligible concept to which
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it is directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.”); see also Genetic Techs.
v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Circ. 2016) (An inventive concept
“cannot be furnished by the unpatentable law of nature (or natural
phenomenon or abstract idea) itself.”).
For similar reasons, we also are not persuaded by Appellant’s attempt
to liken claim 16 to the claims at issue in Exergen Corp. v. Kaz USA, Inc.,
725 Fed.Appx. 959 (Fed. Cir. 2018). See Appeal Br. 39–40. In Exergen, the
Federal Circuit addressed claims reciting body temperature detectors and
methods of detecting body temperature. Exergen, 725 Fed.Appx. at 962.
The court held that the claims recited a natural phenomenon in the guise of
approximating a body temperature distinct from skin surface temperature
based on forehead skin temperature readings and ambient temperature
readings. Id. at 966. Nevertheless, the court upheld a district court finding
that the claims added to the natural phenomenon specific, unconventional
steps that are sufficient to transform the claimed detectors and methods into
patent-eligible applications of the natural phenomenon. Id. at 967. Here, in
contrast, each of limitations (a) through (g), other than the conventional
computer components identified above, are part of the abstract idea.

Summary
We have determined that claim 16 recites an abstract idea in the form
of either a mental process or an ineligible method of organizing human
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behavior; and that claim 16 fails to integrate that abstract idea into a
practical application. In addition, we have determined that claim 16 fails to
add “significantly more,” that is, an inventive concept, to the recited abstract
idea because it merely appends well-understood, routine, and conventional
computer equipment to the abstract idea. Therefore, we conclude that the
subject matter of claim 16 is patent ineligible subject matter. We also
sustain the rejection of claims 2–5, 8–15, 17–19, and 22–39, which fall with
claim 16, under 35 U.S.C. § 101 as ineligible for patent protection.

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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
36 112 ¶ 2 Indefiniteness 36
35, 36 112 ¶ 4 Improper
Dependency
35, 36
2–5, 8–19,
22–39
101 Eligibility 2–5, 8–19,
22–39

Overall
Outcome
2–5, 8–19,
22–39

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