Google Inc.

Patent Trials and Appeals Board

Sep 30, 2020

2020003604 (P.T.A.B. Sep. 30, 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.
15/426,514 02/07/2017 Troy L. Walker 16113-1824002 5837
26192 7590 09/30/2020
FISH & RICHARDSON P.C.
PO BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
HOAR, COLLEEN A
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
09/30/2020 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TROY L. WALKER, MEHDI SHARIFZADEH,
LUKAS RUTISHAUSER, THOMAS J. MURRAY IV, and
SASANK MUDUNURI
____________

Appeal 2020-003604
Application 15/426,514
Technology Center 3600
____________

Before, MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and
BRADLEY B. BAYAT, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 2–21. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We reverse and enter a new ground of rejection pursuant to our
authority under 37 C.F.R. § 41.50(b).

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Google
LLC. Appeal Br. 1.
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THE INVENTION
Appellant states the invention relates to “[m]ethods, systems, and
apparatus, including computer programs encoded on a computer storage
medium, for collecting and applying visibility statistics in online advertising
are disclosed.” Spec., Abstr.
Claim 2, reproduced below, is representative of the subject matter on
appeal.
2. A method comprising:
determining, by one or more servers and for a particular
block of a resource that is rendered at a remote device, an initial
visibility state specifying whether the particular block is
visually presented within a viewport of the remote device when
the resource is initially rendered at the remote device,
including:
determining a portion of the resource that is initially
visually presented within the viewport based on dimensions of
the viewport and a zoom level setting used to initially display
the resource at the remote device; and
determining the initial visibility state based on whether a
location of the particular block is within the portion of the
resource that is initially visually presented within the viewport;
collecting, by the one or more servers, visibility states of
the particular block over a duration of a given presentation of
the resource, including determining that the visibility state of
the particular block of the resource changes between visible and
not visible during the given presentation of the resource based
on changes to display characteristics of the resource made by a
user of the remote device causing the particular block of the
resource to be located outside of the viewport for part of the
given presentation; and
filtering, based on the collected visibility states, an
automated bot interaction with content presented in the
particular block, the filtering being performed based on a given
interaction occurring when the visibility state of the particular
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block indicates that the particular block was not visible when
the given interaction occurred.
Appeal Br. 13 (Claims App.).

THE REJECTION
The following rejection is before us for review.
Claims 2–21 are rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Callaghan et al. (US 2009/0326966, published Dec. 31,
2009) (hereinafter “Callaghan”) in view of Linden et al. (US 2006/0136294,
published June 22, 2006) (hereinafter “Linden”).

ANALYSIS
35 U.S.C. § 103(a) REJECTION
Each of independent claims 2, 12, and 17, recites in pertinent part:
filtering, based on the collected visibility states, an
automated bot interaction with content presented in the particular
block, the filtering being performed based on a given interaction
occurring when the visibility state of the particular block
indicates that the particular block was not visible when the given
interaction occurred.
See generally Appeal Br. (Claims App.).

To meet this limitation, the Examiner cited to Linden at page 1,
paragraphs 12–13; page 2, paragraphs 18–19; and page 3, paragraph 25.
Final Act. 5. In support, the Examiner explains:
Linden teaches ‘Types of click fraud detected by this
method (of Linden) include: webpage framing (‘invisible
clicks’); robot/automated clicks (BOT); user simulated clicks;
PPA (Pay per Action) transaction stealing by affiliates; and
fraudulent creation of transaction credit by affiliates, for
example’. The fraudulent clicks identified by the bots (as well
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as other sources of fraudulent clicks) are sent to a safe URL,
making sure the advertiser is not charged for the clickthrough
transaction. (L: Paras 48-49).
(Ans. 5–6).

Appellant argues, however, in Linden:
when the automated click occurs due to the code of page R, the
window presenting the target page T is hidden from the user ‘e.g.,
behind the window containing pageR.html or in a frame so small
the user cannot see it).’ Linden at 0016). Thus, according to
Linden, the page R is visible to the user and actually includes the
code that generates the automated click, which then hides the
page T from the user. There is no mention in Linden that there
is any interaction with the page T that is hidden from the user.
As such, Linden’s description of the problem of a hidden window
does not suggest the claimed method of “collecting . . . visibility
states” and ‘filtering . . . an automated bot interaction with
content presented in the particular block . . . based on a given
interaction occurring when the visibility state of the particular
block indicates that the particular block was not visible when the
given interaction occurred,’ as claimed. (Claim 2). Furthermore,
Linden’s discussion of the ‘hidden window’ problem does not
even suggest that a click occurs on this hidden window. In fact,
this hidden window is the result of a simulated user click (i.e.,
the hidden window is created because of the simulated user click
on the page R that causes the user device to request page T). (See
Linden at 0016).
(Appeal Br. 4–5).
We agree with Appellant. As is clear from Linden, the mechanism
used to determine whether hit inflation occurs is accomplished by “the
webmaster of T periodically visit[ing] the Web pages of the referrers.”
Linden ¶ 16. T denotes the advertiser site and R denotes an affiliate site
which are the referrers to T. Id. ¶ 12. Thus, the client T is the beneficiary of
the hit inflation: “a common form of hit inflation is one in which the referrer
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R forces the user to visit the target T by constructing pageR.html so as to
automatically ‘click’ the user to pageT.html.” Id. ¶ 16. But, the referral to
T, according to Linden, is automatic. Thus, except for the automatic click of
the referrer R, there is no data with which to conduct an inqury of the
visibility states of the particular block of content over a duration of a given
presentation of the resource in Linden.
It is not apparent, and the Examiner does not adequately explain, how
the presentation of the resource on the claimed user device of Callaghan can
be modified to incorporate the feature of periodically visiting the Web pages
of the referrers R, as taught by Linden, to result in the claimed “filtering,
based on the collected visibility states, based on a given interaction
occurring when the visibility state of the particular block indicates that the
particular block was not visible when the given interaction occurred.”
Therefore, we will not sustain the obviousness rejection of the independent
claims.
Because claims 3–11, 13–16, and 18–21 depend from independent
claims 2, 12, and 17, respectively––which we did not sustain––the rejection
of claims 3–11, 13–16, and 18–21, likewise, are not sustained.
35 U.S.C. § 101 REJECTION
Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter a new
grounds of rejection of claims 2–21 under 35 U.S.C. § 101.
We reject claims 2–21 under 35 U.S.C. § 101 because the claimed
invention is directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more.
Concerning independent claim 2, we find the following:
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An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. 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 id. 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,
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.
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252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held 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 Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
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. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
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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 (Jan. 7, 2019)
(“Guidance”).1 “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 1.2
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“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. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).3

1 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).
2 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) § 2106.04 and also supersedes all versions of the
USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.”
See Guidance, 84 Fed. Reg. at 51 (“Eligibility-related guidance issued prior
to the Ninth Edition, R-08.2017, of the MPEP (published Jan. 2018) should
not be relied upon.”). Accordingly, Appellant’s arguments challenging the
sufficiency of the Examiner’s rejection will not be addressed to the extent
those arguments are based on now superseded USPTO guidance.
3 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
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Guidance, 84 Fed. Reg. 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.
Guidance, 84 Fed. Reg. at 52–56.
The U.S. Court of Appeals for the Federal Circuit has explained that
“the ‘directed to’ inquiry applies a stage-one filter to claims, considered in
light of the [S]pecification, 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 claims is on a specific improvement in relevant technology
or on a process that itself qualifies as an “abstract idea” for which computers
are invoked merely as a tool. See Enfish, 822 F.3d at 1335–36.
In so doing, as indicated above, we apply a “directed to” two
prong test: 1) evaluate whether the claim recites a judicial exception,
and 2) if the claim recites a judicial exception, evaluate 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,

practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54–
55.
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such that the claim is more than a drafting effort designed to
monopolize the judicial exception.” Guidance, 84 Fed. Reg. at 53; see
also MPEP §§ 2106.04–2106.05.
The Specification states that
the impression count does not reflect whether the advertisement
has actually been viewed by a user. Sometimes, a publisher may
be paid according to the total number [of] click-throughs (e.g.,
user selecting the presented ads) generated on the publisher's
webpages. However, advertisers and publishers receive little
guidance on whether a low click-through rate for an
advertisement was due to a lack of user interest or a lack of actual
visibility of the advertisement on the webpages.
Spec. ¶ 5.

Understood in light of the Specification, claim 2 recites in pertinent
part,
determining, . . . for a particular block of a resource . . .
an initial visibility state specifying whether the particular block
is visually presented . . . the resource is initially rendered . . . ,
including:
determining a portion of the resource that is
initially visually presented within the viewport based on
dimensions of the viewport and a zoom level setting used
to initially display the resource . . . ; and
determining the initial visibility state based on
whether a location of the particular block is within the
portion of the resource that is initially visually presented
within the viewport;
collecting . . . , visibility states of the particular
block over a duration of a given presentation of the
resource, including determining that the visibility state of
the particular block of the resource changes between
visible and not visible during the given presentation of
the resource based on changes to display characteristics
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of the resource made by a user . . . causing the particular
block of the resource to be located outside of the
viewport for part of the given presentation; and
filtering, based on the collected visibility states. . .
with content presented in the particular block, the
filtering being performed based on a given interaction
occurring when the visibility state of the particular block
indicates that the particular block was not visible when
the given interaction occurred.
Accordingly, we find that claim 2 recites a mental process using
mathematical sizing and relative location comparisons between plural
content presentions made concurrently in a given space to determine actual
human viewing of one of the displayed contents. Steps such as,
“determining a portion of the resource that is initially visually presented
within the viewport based on dimensions of the viewport and a zoom level
setting used to initially display the resource,” “determining the initial
visibility state based on whether a location of the particular block is within
the portion of the resource that is initially visually presented within the
viewport,” and “determining that the visibility state of the particular block of
the resource changes between visible and not visible during the given
presentation of the resource based on changes to display characteristics of
the resource made by a user . . . causing the particular block of the resource
to be located outside of the viewport for part of the given presentation,” are
concepts performed in the human mind as mental processes. They are like
the steps of receiving, transmitting, storing, and analyzing data that mimic
human thought processes of observation, evaluation, judgment, and opinion,
perhaps with paper and pencil, where the data interpretation is perceptible
only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823
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F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839
F.3d 1089, 1093–94 (Fed. Cir. 2016); see also Guidance, 84 Fed. Reg. at 52.
As to the filtering step recited in claim 5, we note that content filtering
is abstract. See BASCOM Global Internet v. AT&T Mobility, LLC, 827 F.3d
1341, 1345-46 (Fed. Cir. 2016) (finding that filtering content was an abstract
idea under step 2A)
Turning to the second prong of the “directed to” test, claim 2 only
generically requires “one or more servers” and “a remote device” with a
view port. These components are described in the specification at a high
level of generality. See Spec. ¶¶ 39–40, Figs. 1–4. We fail to see how the
generic recitations of these most basic computer components and/or of a
system so integrates the judicial exception as to “impose[] a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the judicial exception.” Guidance, 84 Fed.
Reg. at 53. We find no indication in the Specification that the operations
recited in independent claim 2 invoke any assertedly inventive
programming, require any specialized computer hardware or other inventive
computer components, i.e., a particular machine, 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.”).
Thus, we find that claim 2 is directed to the judicial exception of a
mental process and is not integrated into a practical application.
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That the claims do not preempt all forms of the abstraction or may be
limited to a visibility state, does not make them any less abstract. See OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015)
(“And that the claims do not preempt all price optimization or may be
limited to price optimization in the e-commerce setting do not make them
any less abstract.”).
Turning to the second step of the Alice analysis, because we determine
that the claims are directed to abstract ideas/judicial exceptions, the claims
must include an “inventive concept” in order to be patent-eligible, i.e., there
must be an element or combination of elements sufficient to ensure that the
claim in practice amounts to significantly more than the abstract idea itself.
See Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative Servs., 566 U.S.
at 72–73).
Concerning this step in the Alice framework, we find the “one or more
servers and a remote device with a view port” themselves amount to mere
generic devices instructed to implement the recited data–gathering and
displaying scheme on a generic computer. Cf. Alice 573 U.S. at 225–26
(“Instead, the claims at issue amount to ‘nothing significantly more’ than an
instruction to apply the abstract idea of intermediated settlement using some
unspecified, generic computer.”) That is, the claims here do not include
additional elements that are sufficient to amount to significantly more than
the judicial exception because the computer as recited is a generic computer
component that performs functions that are generic computer functions that
are well-understood, routine, and conventional activities previously known
to the industry.
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“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, and conventional activities previously known to
the industry. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016); see also 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”). In short, each step does no more than require a generic
computer to perform generic computer functions. The claims do not, for
example, purport to improve the functioning of the computer itself. In
addition, as we stated above, the claims do not effect an improvement in any
other technology or technical field. The Specification spells out different
generic equipment and parameters that might be applied using this concept
and the particular steps such conventional processing would entail based on
the concept of information access under different scenarios (see, e.g., Spec.
¶¶ 39–40, Figs. 1–4.). Thus, the claims at issue amount to nothing
significantly more than instructions to apply the abstract idea using some
unspecified, generic computer. Under our precedents, that is not enough to
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transform an abstract idea into a patent-eligible invention. See Alice, 573
U.S. at 225–226.
Considered as an ordered combination, the computer components of
Appellant’s claims add nothing that is not already present when the steps are
considered separately. The sequence of data reception-analysis (determine –
successively/collect/filter) and storing is equally generic and conventional or
otherwise held to be abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for
exchange, display, allowing access, and receiving payment recited an
abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (holding that sequence of data retrieval,
analysis, modification, generation, display, and transmission was abstract),
Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329,
1339 (Fed. Cir. 2017) (holding sequence of processing, routing, controlling,
and monitoring was abstract). The ordering of the steps is, therefore,
ordinary and conventional.
Independent claims 12 and 17 are directed to the same subject matter
of claim 1, and thus our analysis above applies equally to independent claim
12. As the Federal Circuit has made clear “the basic character of a process
claim drawn to an abstract idea is not changed by claiming only its
performance by computers, or by claiming the process embodied in program
instructions on a computer readable medium.” See CyberSource, 654 F.3d
at 1375–76 (citing In re Abele, 684 F.2d 902 (CCPA 1982)).
Claims 3–11 and 13–16, and 18–21 depend from independent claims
2, 12, and 17, respectively, and are directed to the same abstract idea as
claim 1. See Content Extraction & Transmission LLC v. Wells Fargo Bank,
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Nat. Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014) (explaining that when all
claims are directed to the same abstract idea, “addressing each claim of the
asserted patents [is] unnecessary”). These dependent claims recite
additional features of mental steps, e.g., “calculating an expected initial
visibility state for the particular block based on the initial visibility states of
the particular block; and selecting content for display in the particular block
on a particular remote device, the selection being based on the expected
initial visibility state of the particular block.” Appeal Br. 16 (Claims App.
(Claims 8, 18)). “A first predictive model that indicates whether the
particular block is visible using dimensions as input,” as recited in claims 3,
13, and 18; and “a second predictive model that indicates whether the
particular block is visible to a user of a browser on the remote device for at
least a threshold amount of time, the second predictive model being trained
on the display characteristics of the resource,” as recited in claims 5, 15, and
20.
Accordingly, we enter a New Ground of Rejection for claims 2–21
under 35 U.S.C. § 101.

DECISION
The Examiner’s rejection of claims 2–21 under 35 U.S.C. § 103(a) is
reversed.
A new ground of rejection is entered for claims 2–21 under 35 U.S.C.
§ 101.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
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rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides that the appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment
of the claims so rejected or new evidence relating to the claims
so rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to
the examiner . . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record.
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).
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed New
Ground
2–21 103 Callaghan,
Linden
2–21
2–21 101 Eligibility 2–21
Overall
Outcome
2–21 2–21

REVERSED; 37 C.F.R. § 41.50(b)