Greenberger, Jeremy A. et al.

Patent Trials and Appeals Board

Dec 23, 2019

15270362 - (D) (P.T.A.B. Dec. 23, 2019)

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.
15/270,362 09/20/2016 Jeremy A. Greenberger END920160308US1 6635
133758 7590 12/23/2019
Roberts Mlotkowski Safran Cole & Calderon, P.C.
Intellectual Property Department
P.O. Box 10064
McLean, VA 22102-8064
EXAMINER
MPAMUGO, CHINYERE
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
12/23/2019 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@rmsc2.com
dbeltran@rmsc2.com
lgallaugher@rmsc2.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEREMY A. GREENBERGER and
ZACHARY M. GREENBERGER
Appeal 2018-007599
Application 15/270,362
Technology Center 3600
BEFORE ROBERT E. NAPPI, KRISTEN L. DROESCH, and
SCOTT E. BAIN, Administrative Patent Judges.
DROESCH, 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 rejecting claims 1–20. 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 (2017). Appellant indicates the real party-in-interest is
International Business Machines Corporation. Appeal Br. 2.
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BACKGROUND
The disclosed invention relates to customizing active time periods for
promotional campaigns (e.g., discounts, sales, etc.) for individual users
based on location trends of individual user devices. Spec. ¶¶ 1–2, Abstract.
CLAIMED SUBJECT MATTER
Claim 1, which is representative of the subject matter of the appeal
and is reproduced from the Claims Appendix of the Appeal Brief, reads as
follows:
1. A computer-implemented method comprising:
receiving, by a computing device, user device location
information for a plurality of user devices via a computer
network;
storing, by the computing device, location history for the
plurality of user devices corresponding to the user device
location information;
receiving, by the computing device, campaign criteria in
connection with offering a campaign to one or more of the
plurality of user devices;
determining, by the computing device, active time
periods for each the one or more of the plurality of user devices
based on the stored location history for the one or more of the
plurality of user devices and the campaign criteria, wherein the
active time periods correspond to times period in which the
campaign is active;
generating, by the computing device, and presenting a
visual representation of the active time periods; and
providing, by the computing device, respective
notifications regarding the campaign to each of the one or more
of the plurality of user devices based on the determining the
active time periods, wherein each of the respective notifications
identify a respective active time period.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Mankoff et al. (“Mankoff”) US 2015/0149277 A1 May 28, 2015
Nacer et al. (“Nacer”) US 2017/0006656 A1 Jan. 5, 2017
REJECTIONS ON APPEAL
Claims 1–20 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
Claims 1–20 stand rejected under 35 U.S.C. § 103 as unpatentable
over Mankoff and Nacer.
Claim 16 stands rejected under 35 U.S.C. § 112 (a) as failing to
comply with the written description requirement.
ANALYSIS
§ 101 Rejection
Claims 1, 10–14, and 19
Appellant disputes the Examiner’s conclusions that claims 1–20 are
directed to patent-ineligible subject matter. See Appeal Br. 6–45. Appellant
argues claims 1 and 10–13 together as a group. See id. at 6–17, 24.
Consequently, we choose claim 1 as representative of the group. 37 C.F.R.
41.37(c)(1)(iv). Appellant’s arguments addressing independent claims 14
and 19 are substantially identical to the arguments presented addressing
claim 1. Compare Appeal Br. 24–32, 36–45, with id. at 6–17. As a result
we choose claim 1 as representative of independent claims 1, 14, and 19.
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. Pty. Ltd. v. CLS Bank
Int’l, 573 U.S. 208, 217 (2014). In addition, the Office published revised
guidance for evaluating subject matter eligibility under 35 U.S.C. § 101,
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specifically with respect to applying the Alice framework. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Guidance”). If a claim falls within one of the statutory categories of
patent eligibility (i.e., a process, machine, manufacture, or composition of
matter) then the first inquiry is whether the claim is directed to one of the
judicially recognized exceptions (i.e., a law of nature, a natural phenomenon,
or an abstract idea). Alice, 573 U.S. at 217. As part of this inquiry, we must
“look at the ‘focus of the claimed advance over the prior art’ to determine if
the claim’s ‘character as a whole’ is directed to excluded subject matter.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016). According to the Guidance, this first inquiry has two prongs of
analysis (i) does the claim recite a judicial exception (e.g., an abstract idea);
and (ii) if so, is the judicial exception integrated into a practical application.
See Guidance, 84 Fed. Reg. at 54. Under the Guidance, if the judicial
exception is integrated into a practical application, the claim is patent
eligible under § 101. See id. at 54–55. If the claims are not directed to a
judicial exception, the inquiry ends. See McRO Inc. v. Bandai Namco
Games Amer. Inc., 837 F.3d 1299, 1312 (Fed Cir. 2016). However, if the
claim is directed to a judicial exception (i.e., recites a judicial exception and
does not integrate the exception into a practical application), the next step is
to determine whether any element, or combination of elements, amounts to
significantly more than the judicial exception. See Alice, 573 U.S. at 217;
see also Guidance, 84 Fed. Reg. at 56.
Here, we conclude claim 1 recites determining active time periods of a
campaign for each of a plurality of user devices based on stored location
history of each of the user devices and the campaign criteria, presenting a
visual representation of the active time periods, and providing notifications
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to the user devices regarding the campaign and active time periods. This is
consistent with how Appellant describes the claimed invention. See Spec.
¶¶ 1, 15–16 (disclosing customizing active time periods for promotional
campaigns for individual users based on location trends of individual user
devices and then providing notifications to user devices regarding the
campaign and the active time period), ¶¶ 80–86, Fig. 7 (disclosing flowchart
including determining campaign active time periods for each user device
based on historical location data for each user device and the campaign, and
providing notifications of the campaign to user devices).
Consistent with the Guidance and case law, we conclude that
determining active time periods of a campaign for each of a plurality of user
devices based on the stored location history of the user devices and the
campaign criteria, presenting a visual representation of the active time
periods, and providing notifications to the user devices of the campaign and
active time periods is a commercial interaction in the form of advertising or
marketing––a method of organizing human activity, and, thus, an abstract
idea. See Guidance, 84 Fed. Reg. at 52; see also Utramercial, Inc. v. Hulu
LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (holding that a claim describing
only the abstract idea of showing an advertisement before delivering free
content is patent ineligible); OIP Techs. Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1362–63 (Fed. Cir. 2015) (concluding that claimed concept of “offer-
based price optimization” is an abstract idea).
Claim 1 includes the following claim limitations that recite a
commercial interaction in the form of advertising or marketing, emphasized
in italics:

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determining, by the computing device, active time
periods for each the one or more of the plurality of user devices
based on the stored location history for the one or more of the
plurality of user devices and the campaign criteria, wherein the
active time periods correspond to times period in which the
campaign is active;
generating, by the computing device, and presenting a
visual representation of the active time periods; and
providing, by the computing device, respective
notifications regarding the campaign to each of the one or
more of the plurality of user devices based on the determining
the active time periods, wherein each of the respective
notifications identify a respective active time period.
Because the claim recites a judicial exception, we next determine
whether the claim integrates the judicial exception into a practical
application. See Guidance, 84 Fed. Reg. at 54. To determine whether the
judicial exception is integrated into a practical application, we identify
whether there are “any additional elements recited in the claim beyond the
judicial exception(s)” and evaluate those elements to determine whether they
integrate the judicial exception into a recognized practical application.
Guidance, 84 Fed. Reg. at 54–55 (emphasis added); see Manual of Patent
Examining Procedure (“MPEP”) § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018).
Here, we find the additional limitations do not integrate the judicial
exception into a practical application. Although Appellant asserts that “the
claimed invention is directed to a specific computer-based application,”
“provides a system having practical, real-life and specific use cases,” and
“provides a solution to the problem of providing campaigns at different
active time periods for different user devices based on different location
histories” (Appeal Br. 10–11; see also Reply Br. 8–9 (arguing
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unconventional arrangement of steps confine claimed invention to a
particular useful application)), the claims do not recite an improvement to
the functionality of a computer or other technology or technical field (see
MPEP § 2106.05(a)). The claims also do not recite (i) a “particular
machine” to apply or use the judicial exception (see MPEP § 2106.05(b));
(ii) a particular transformation of an article to a different thing or state
(see MPEP § 2106.05(c)); or (iii) any other meaningful limitation 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 to designed to monopolize the exception (see MPEP
§ 2106.05(e)). See Guidance, 84 Fed. Reg. at 55.
The additional limitations of claim 1 recite: (1) “receiving . . . user
device location information for a plurality of user devices via a computer
network;” (2) “storing . . . location history for the plurality of user devices
corresponding to the user device location information;” (3) “receiving . . .
campaign criteria in connection with offering a campaign to one or more of
the plurality of user devices;” and (4) “by the computing device.”
We agree with the Examiner that the additional elements require no
more than a generic computer, i.e., “by the computing device.” See Final
Act. 7. We are not persuaded by Appellant’s assertion that the claimed
features include functions that are not generic computer functions, which
Appellant supports by merely reproducing the limitations of claim 1
describing the abstract idea. See Appeal Br. 12 (citing May 4, 2016 USPTO
Memorandum regarding Formulating a Subject Matter Eligibility Rejection
and Evaluating the Applicant’s Response to a Subject Matter Eligibility
Rejection). Implementing an abstract idea on a generic computer is not a
practical application of the abstract idea. See Alice, 573 U.S. at 221. In
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contrast to Appellant’s arguments, Appellant’s Specification discloses the
use of computers or processors in generic terms, for example, by disclosing:
(1) computer readable program instructions for implementing the method
provided to a processor or a general purpose computer, special purpose
computer, or other programmable data processing apparatus (see Spec.
¶¶ 25, 26 (emphasis added)); and (2) a computer system/server as a general
purpose computing device with a memory storing a program module for
implementing the method (see id. ¶¶ 46–49, 51–52, 61; Fig. 1 (emphasis
added)).
The additional elements of: (1) receiving user device location
information for a plurality of user devices, (2) storing user device location
histories, and (3) receiving campaign criteria, are the types of extra-solution
activity (i.e., in addition to the judicial exception), the courts have
determined insufficient to transform judicially excepted subject matter into a
patent-eligible application. See MPEP § 2106.05(g); see also Bilski v.
Kappos, 561 U.S. 593, 612 (2010) (the use of well-known techniques to
establish inputs to the abstract idea is extra-solution activity that fails to
make the underlying concept patent eligible); OIP, 788 F.3d at 1363
(gathering statistics generated based on customer testing for input to a
pricing calculation “fail[s] to ‘transform’ the claimed abstract idea into a
patent-eligible invention”).
We also find unpersuasive Appellant’s arguments that the claimed
invention improves the field of providing notifications of ad campaigns by
providing ad campaigns at active time periods, which may differ between
different user devices based on location histories of each user device. See
Appeal Br. 14; see also Reply Br. 7 (arguing the claimed invention improves
the effectiveness of ad campaigns to improve ineffective and wasteful ad
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campaigns, which is a common problem in the art of ad campaign generation
and dissemination). Appellant does not explain sufficiently how providing
ad campaigns at active time periods, which may differ between different
user devices based on location histories provides an improvement to
technology or a technical field, rather than, for example, providing an
improvement to marketing techniques, or to the field of marketing.
We also are not persuaded by Appellant’s argument that the claimed
invention improves the functioning of the computer itself. See Appeal Br.
14–15 (citing May 4, 2016 USPTO Memorandum; Spec. ¶ 18); Reply Br. 8.
Appellant argues that the claimed invention improves the functioning of the
computer itself by reducing CPU usage/processing, power consumption,
network activity, congestion etc., and improving the efficiency of computing
resources because resource consumption for the campaign management
system may be reduced because fewer campaigns are provided to user
devices at more effective times. See Appeal Br. 14–15; Reply Br. 8; see
also Reply Br. 7 (arguing the claimed invention improves the technical field
of computer resource reduction). Similarly, Appellant contends the
operations of the computer are improved when the need to consume
computing resources for an application are reduced, system capacity is
increased, and/or overall system resource consumption efficiency is
improved. See Appeal Br. 14–16 (citing Enfish LLC v. Microsoft Corp., 822
F.3d 1327 (Fed. Cir. 2016). Appellant does not direct us to evidence
sufficient to demonstrate that the claimed invention provides an
improvement in computer capabilities, like Enfish where the Federal Circuit
found a self-referential table in a computer database improved the computer
functionality itself. Instead, Appellant’s arguments suggest improvements in
computer function would be the result of providing fewer promotional
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campaigns. Claim 1 does not recite or otherwise require fewer campaigns.
Moreover, it is quite possible that, although individual promotional
campaigns may be made more effective, the number of promotional
campaigns may be increased, foreclosing any realization of computer
resource consumption reduction.
Finally, we also find unpersuasive Appellant’s assertion, unsupported
by any evidence, that the claimed invention adds meaningful limitations
beyond generally linking the use of an abstract idea to a particular
technological environment. See Appeal Br. 16–17; Reply Br. 9–10. In sum,
we determine that the additional elements do not integrate the judicial
exception into a practical application, and, therefore, conclude that claim 1 is
directed to the judicial exception.
Because we determine claim 1 is directed to a judicial exception, next
we analyze the claims under step two of Alice to determine if there are
additional elements that individually, or as an ordered combination, ensure
the claims amount to “significantly more” than the abstract idea. Alice, 573
U.S. at 217–18 (citing Mayo, 566 U.S. 66, 77–79 (2012)). As stated in the
Guidance, many of the considerations to determine whether the claims
amount to “significantly more” under step two of the Alice framework are
already considered as part of determining whether the judicial exception has
been integrated into a practical application. See Guidance, 84 Fed. Reg. at
56. Therefore, at this point of our analysis, we determine if the claims add a
specific element, or combination of elements, that is not well-understood,
routine, conventional activity in the field, or simply append well-understood,
routine, conventional activities at a high level of generality. See id.
“Whether something is well-understood, routine, and conventional to a
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skilled artisan at the time of the patent is a factual determination.”
Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018).
Here, Appellant’s claims do not recite specific elements or a
combination of elements that are not well-understood, routine, and
conventional. Again, the additional elements of claim 1 are: (1)
“receiving . . . user device location information for a plurality of user
devices via a computer network;” (2) “storing . . . location history for the
plurality of user devices corresponding to the user device location
information;” (3) “receiving . . . campaign criteria in connection with
offering a campaign to one or more of the plurality of user devices;” and (4)
“by the computing device.”
We are not persuaded by Appellant’s undeveloped argument that
claim 1 includes features that, when considered in combination, amount to
significantly more because claim 1 includes steps that are in a non-
conventional and non-generic arrangement. See Appeal Br. 12–13 (citing
May 4, 2016 USPTO Memorandum, November 2, 2016 USPTO
Memorandum); id. at 16 (citing Mayo, U.S. at 81, 87). Appellant merely
reproduces the limitations of claim 1 describing the abstract idea, and
alleges, without explanation, that these limitations of claim 1 is a non-
conventional and non-generic arrangement of elements. See id. at 13, 16;
Reply Br. 8–9. Appellant’s arguments do not address sufficiently whether
the additional elements, individually, or as an ordered combination, are
unconventional. “What is needed is an inventive concept in the non-abstract
application realm.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168
(Fed. Cir. 2018). “[A] claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016).
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We agree with the Examiner that receiving, and storing data is well-
understood, routine and conventional, and that the collection and analysis of
data or information using generic computer components is not a non-
conventional arrangement of known conventional features. See Final Act. 7;
Ans. 6–7. In the Reply Brief, Appellant contends the Examiner has not
provided evidence or reasoning to support the conclusion that the additional
elements are routine and conventional. See Reply Br. 10. Appellant argues
that the Examiner does not utilize any of the evidentiary sources set forth in
the April 19, 2018 USPTO Memorandum “Changes in Examination
Procedure Pertaining to Subject Matter Eligibility.” See id. at 10–11.
Appellant’s arguments are not persuasive because our reviewing
courts have determined that receiving information and storing information,
are conventional computer functions. See OIP, 788 F.3d at 1363–64
(gathering statistics generated during testing and storing test
results); Trading Techs., 921 F.3d at 1093 (agreeing with Board’s
determination that “receiving market information is simply routine data
gathering”). Upon consideration of the additional elements, individually, or
as an ordered combination, we determine that the additional elements do not
provide an inventive concept.
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claims 1, 10–14, and 19 under 35 U.S.C. § 101. Accordingly, we
sustain the Examiner’s rejection of claims 1, 10–14, and 19 under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter.
Dependent Claims 2, 5, 6, 15, and 20
Claims 2, 15, and 20 depend from independent claims 1, 14, and 19,
respectively, and further recite “the active time period for each of the one or
more of the plurality of user devices are different.” Claims 5 and 6 depend
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from claim 1 and each further recite “the at least one of the notifications of
the respective notifications includes . . . .” The Examiner finds that the
limitations of these claims fail to establish that the claims are not directed to
an abstract idea because they recite analyzing information and displaying
results of the analysis. See Final Act. 7; Ans. 7.
We are not persuaded by Appellant’s following arguments addressing
claims 2, 5, 6, 15, and 20: (1) the claims are not directed to an abstract idea
because the features define the specific application and processes of the
claimed invention, and (2) the claims recite unconventional steps that
confine the claims to a useful application and therefore significantly more
than the abstract idea itself. See Appeal Br. 17, 20–21, 32–33, 44–45; Reply
Br. 11–13, 17, 21. In support of its arguments, Appellant merely reproduces
the limitations of claims 2, 5, 6, 15, and 20. See Appeal Br. 17–18, 20–21
32–33, 44–45; Reply Br. 11–13, 17, 21. The limitations of claims 2, 15, and
20, describe the abstract idea, recited in claims 1, 14, and 19, as including
different active time periods for each one of the one or more plurality of user
devices. And claims 5 and 6 further describe the abstract idea recited in
claim 1 as including certain types of notifications. Appellant’s bare
arguments reiterating the limitations of claims 2, 5, 6, 15, and 20 do not
sufficiently demonstrate that the claims recite additional elements that
integrate the abstract idea into a practical application by, for example,
reciting an improvement to the functionality of a computer or other
technology or technical field, a “particular machine” to apply or use the
judicial exception, a particular transformation of an article to a different
thing or state, or any other meaningful limitation 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 to designed to
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monopolize the exception. See Guidance, 84 Fed. Reg. at 55. Because
Appellant’s bare arguments focus on the additional descriptions recited in
claims 2, 5, 6, 15 of the abstract idea recited in claim 1, Appellant’s
arguments also are insufficient to demonstrate that claims 2, 5, 6, 15 and 20
recite additional elements that individually, or in combination, are not well-
understood, routine, or conventional, such that the additional elements
provide significantly more than the abstract idea itself––an inventive
concept. See id. 56. “What is needed is an inventive concept in the non-
abstract application realm.” SAP, 898 F.3d at 1168.
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claims 2, 5, 6, 15, and 20 under 35 U.S.C. § 101. Accordingly, we
sustain the Examiner’s rejection of claims 2, 15, and 20 under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter.
Dependent Claims 3, 8, 9, 16, and 18
Claim 3 depends from claim 1 and further recites “the campaign
criteria is selected from the group consisting of . . . .” Claim 16 depends
from independent claim 14 and further recites “the campaign criteria
includes all of . . . .” Claim 8 depends from claim 1 and further recites “the
location history for the plurality of user devices identifies time periods when
the plurality of user devices were located within a merchant facility or a
section of the merchant facility.” Claims 9 and 18 depend from claims 1 and
14, respectively, and further recite “the user device location information is
received from one or more location determination devices.” The Examiner
finds that the limitations of claims 3, 8, 9, 16, and 18 fail to establish that the
claims are not directed to an abstract idea because they recite collecting
information. See Final Act. 7; Ans. 7.
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We are not persuaded by Appellant’s following arguments addressing
claims 3, 8, 9, 16, and 18: (1) the claims are not directed to an abstract idea
because the features define the specific application and processes of the
claimed invention; and (2) the claims recite unconventional steps that
confine the claims to a useful application and, therefore, significantly more
than the abstract idea itself. See Appeal Br. 18–19, 21–23, 33–35; Reply
Br. 12, 14–15, 18. In support if its arguments, Appellant merely asserts that
claims 3 and 16 recite examples of campaign criteria, and for claims 8, 9,
and 18 reproduces the limitations of claims 8, 9, and 18. See Appeal Br. 18–
19, 21–23, 33–35; Reply Br. 12, 14–15, 18. Claims 3 and 16 describe the
additional element “receiving campaign criteria,” recited in claims 1 and 14,
as including certain campaign criteria parameters. Claims 8, 9, and 18
describe the additional element of “storing location history,” recited in
claims 1 and 14, as including certain types of location history, and the
origins thereof. Appellant’s undeveloped arguments are insufficient to
demonstrate that claims 3, 8, 9, 16, and 18 recite additional elements that
integrate the abstract idea into a practical application by, for example,
reciting an improvement to the functionality of a computer or other
technology or technical field, a “particular machine” to apply or use the
judicial exception, a particular transformation of an article to a different
thing or state; or any other meaningful limitation 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 to designed to
monopolize the exception. See Guidance, 84 Fed. Reg. at 55. Appellant’s
bare arguments also are insufficient to demonstrate that the additional
elements individually, or in combination, are not well-understood, routine,
or conventional, such that the additional elements provide significantly more
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than the abstract idea itself––an inventive concept. See id. at 56. As
explained above, our reviewing courts have determined that receiving
information and storing information, are conventional computer functions.
See OIP, 788 F.3d at 1363–64, (Fed. Cir. 2015) (gathering statistics
generated during testing and storing test results); Trading Techs. Int’l, 921
F.3d at 1093 (agreeing with Board’s determination that “receiving market
information is simply routine data gathering”).
Accordingly, we are not persuaded the Examiner erred in rejecting
claims 3, 8, 9, 16, and 18 under 35 U.S.C. § 101. Therefore, we sustain the
Examiner’s rejection of claims 3 and 16 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
Dependent Claims 4, 7, and 17
Claim 4 depends from claim 1 and further recites “determining the
one or more of the plurality of user devices based on targeted user identified
in the campaign criteria.” Claims 7 and 17 depend from claims 1 and 14,
respectively, and each further recite “generating a graph representing the
location history for a particular user device of the plurality of user devices,
and determining an active time period for the particular user device of the
plurality of user devices based on generating the graphs.” The Examiner
finds that the limitations of these claims fail to establish that the claims are
not directed to an abstract idea because they recite analyzing information
and displaying results based on the analysis. See Final Act. 7; Ans. 7.
We are not persuaded by Appellant’s following arguments addressing
claims 4, 7, and 17: (1) the claims are not directed to an abstract idea
because the features of claim 4 define the specific application and processes
of the invention, and (2) the claims recite significantly more than the alleged
abstract idea because it recites unconventional steps that confine the claims
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to a useful application and therefore significantly more than the abstract idea
itself. See Appeal Br. 19, 21, 34–35; Reply Br. 12, 14, 18. In support of its
arguments, Appellant merely reproduces the limitations of claims 4, 7, and
17. See Appeal Br. 19, 21, 34–35; Reply Br. 12, 14, 18. Claim 4 further
describes the abstract idea recited in claim 1 as including a determination of
one or more user devices based on targeted users. And claims 7 and 17
further describe the abstract idea recited in claims 1 and 14 as including
generating a graph representing a location history and determining an active
time period based on the generated graph. Appellant’s undeveloped
arguments reiterating the limitations of claims 4, 7, and 17 are insufficient to
demonstrate that claims 4, 7, and 17 recite additional elements that integrate
the abstract idea into a practical application by reciting, for example, an
improvement to the functionality of a computer or other technology or
technical field, a “particular machine” to apply or use the judicial exception,
a particular transformation of an article to a different thing or state, or any
other meaningful limitation 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 to designed to monopolize the
exception. See Guidance, 84 Fed. Reg. at 55. Because Appellant’s
arguments focus on the abstract idea recited in claims 4, 7, and 17,
Appellant’s arguments also are insufficient to demonstrate that claims 4, 7,
and 17 recite additional elements that individually, or in combination, are
not well-understood, routine, or conventional, such that the additional
elements provide significantly more than the abstract idea itself––an
inventive concept. See id. 56. “What is needed is an inventive concept in
the non-abstract application realm.” SAP, 898 F.3d at 1168.
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For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claim 4, 7, and 17 under 35 U.S.C. § 101. Accordingly, we sustain
the Examiner’s rejection of claim 4 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
§ 103 Rejection
Appellant argues claims 1 and 9–13 together as a group. See Appeal
Br. 45–48, 51. Consequently, we choose claim 1 as representative of the
group. 37 C.F.R. 41.37(c)(1)(iv). Appellant’s arguments addressing
independent claims 14 and 19 are substantially identical to the arguments
presented addressing claim 1. Compare Appeal Br. 51–53, 55–57, with id.
at 45–48. As a result we choose claim 1 as representative of independent
claims 1, 14, and 19.
In rejecting claim 1, the Examiner acknowledges that Mankoff does
not disclose, teach, or suggest
determining, by the computing device, active time periods for
each the one or more of the plurality of user devices based on
the stored location history for the one or more of the plurality of
user devices and the campaign criteria, wherein the active time
periods correspond to times period in which the campaign is
active.
See Final Act. 10. The Examiner finds that Nacer teaches this limitation
based on the following disclosure:
by reference number 750, provisioning enforcement device 235
determines that campaign conditions are satisfied (e.g., the
connection request is made from Kansas City, a location within
the Midwest geographic region, and which matches a campaign
condition for the alternative service campaign; the connection
request is made on May 2, 2015 and is within the active time
period of May 1, 2015-May 8, 2015 for the alternative service
campaign, etc.).
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See Final Act. 10 (quoting Nacer Spec. ¶ 99); see also Nacer Fig. 7B
(diagram showing example implementation).
Appellant argues that “Nacer makes no mention that the active time
period is based on the stored location for the one or more plurality of user
devices.” Appeal Br. 47; Reply Br. 22. Appellant further contends that
although an “active time period” exists in Nacer, there is no teaching as to
how that active time period is determined. See Appeal Br. 47. In the
Answer, the Examiner responds that “[p]aragraph [0099] of Nacer discloses
an ‘active time period of May 1, 2015-May 8, 2015’ for the promotional
campaign.” Ans. 8.
We agree with Appellant’s arguments. The Examiner does not
provide sufficient explanation or direct us to evidence sufficient to
demonstrate that Nacer discloses, teaches or suggests that an active time
period is determined based on user device location history. See Final Act.
10–11; Ans. 8. Nacer instead discloses a dongle device that requests mobile
communication services from a provisioning enforcement device of an
alternative communications service provider, where the provisioning device
determines whether the dongle’s request satisfies conditions of the
alternative communications service campaign, which include geographic
information and an active time period. See Nacer Spec. ¶¶ 94–99, Figs. 7A–
7B.
Therefore, we are constrained to reverse the rejection under 35 U.S.C.
§ 103 of independent claims 1, 14, and 19, and claims 2–13, 15–18, and 20
dependent therefrom, respectively.
Rejection under 35 U.S.C. § 112(a)
The Examiner rejects claim 16 under 35 U.S.C. § 112 (a) for failing to
comply with the written description requirement. Final Act. 4. The
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Examiner directs attention to the following recitations of claim 16: “wherein
the campaign criteria includes all of . . . a section of a merchant facility; and
a targeted group of users.” See id. The Examiner finds the Specification
does not reasonably convey campaign criteria includes all of the limitations
recited in claim 16, and instead conveys campaign criteria of one or more of
the recited limitations of claim 16. See id. (citing Spec. 20).
To comply with the written description requirement of § 112, “the
applicant must . . . convey with reasonable clarity to those skilled in the art
that, as of the filing date sought, he or she was in possession of the
invention[, which] is, for purposes of the ‘written description’ inquiry,
whatever is now claimed.” VasCath v. Mahurkar, 935 F.2d 1555, 1563–64
(Fed. Cir. 1991). The applicant conveys possession of the invention “by
such descriptive means as words, structures, figures, diagrams, formulas,
etc., that fully set forth the claimed invention[,] [a]lthough the exact terms
need not be used in haec verba.” Lockwood v. Am. Airlines, Inc., 107 F.3d
1565, 1572 (Fed. Cir. 1997) (citing Eiselstein v. Frank, 52 F.3d 1035, 1038
(Fed. Cir. 1995)).
Appellant contends that one of ordinary skill in the art would readily
recognize that the description of “one or more” can encompass “all.” See
Appeal Br. 5. Appellant argues that if a group includes “one or more” of A,
B, and C, that group could include A only, B only, C only, A and B only, A
and C only, or all of A, B, and C. See id. at 5–6. In the Answer, the
Examiner asserts that “one or more,” as argued by Appellant, “implies there
are many options rather than a requirement for one option (as in all).” Ans.
3. In the Reply Brief, Appellant asserts that, in light of the Examiner’s
interpretation, “all” necessarily has written description support because “all”
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is, by definition, one of the possible combinations of “one or more.” See
Reply Br. 2.
Notwithstanding the dispute regarding the meaning of “one or more,”
we find that the Specification conveys with reasonable clarity to those
skilled in the art that Appellant was in possession of campaign criteria that
includes all of the parameters listed in claim 16. Specifically, paragraph 75
of the Specification discloses:
the campaign criteria may include the campaign itself (e.g., an
advertisement for discounts, a printable or electronic coupon,
etc.), identification of a target audience (e.g., direct vs. non-
direct shoppers, users in a particular demographic group, all
users, etc.), and parameters that may be used to define different
active time periods for a same campaign based on the location
history of different user devices 210. In embodiments, the
campaign criteria may include a minimum/maximum threshold
number of visits to a merchant facility (or section of the
merchant facility), a minimum/maximum threshold number
amount of time spent at a merchant facility (or section of the
merchant facility), a date/time range, or the like. Also, the
campaign criteria may specify a minimum active time period for
the campaign, as is described in greater detail herein.
Spec. ¶ 75 (emphasis added). In summary, paragraph 75 of the Specification
discloses campaign criteria as including all the following parameters recited
in claim 16: (1) a time or date range, (2) a minimum or maximum threshold
amount of time spent in a merchant facility, (3) a minimum or maximum
active time period (i.e., minimum active time period), (4) a section of a
merchant facility, and (5) a targeted group of users (i.e., target audience).
For this reason, we are constrained to reverse the rejection of claim 16
under 35 U.S.C. § 112(a).
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CONCLUSION
We affirm the Examiner’s rejection of claims 1–20 under 35 U.S.C.
§ 101. We reverse the Examiner’s rejection of claims 1–20 and under 35
U.S.C. § 103. We reverse the Examiner’s rejection of claim 16 under 35
U.S.C. § 112(a). In summary:
Claims
Rejected 35 U.S.C. § References/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1–20 103 Mankoff and Nacer 1–20
16 112(a) Written Description 16
Overall
Outcome
1–20
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED