INTERNATIONAL BUSINESS MACHINES CORPORATION

Patent Trials and Appeals Board

Jul 31, 2020

2020000752 (P.T.A.B. Jul. 31, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/729,170 06/03/2015 YURDAER N. DOGANATA YOR920140141US1
(163-821)
5719
49267 7590 07/31/2020
Tutunjian & Bitetto, P.C.
401 Broadhollow Road
Suite 402
Melville, NY 11747
EXAMINER
ROSS, SCOTT M
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
07/31/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@tb-iplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte YURDAER N. DOGANATA, CHING-YUNG LIN,
DAVID C. LUNA, JORDI C. MESTRE, XAVIER N. PAGES,
MERCAN TOPKARA, ZHEN WEN, and DANNY L. YEH
____________
Appeal 2020-000752
Application 14/729,170
Technology Center 3600
____________

Before BRYAN F. MOORE, JOHN A. EVANS, and
CARL L. SILVERMAN, Administrative Patent Judges.

EVANS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Jurisdiction
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of Claims 4 and 21, all pending claims. Appeal
Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2017). Appellant states the real party in interest is
International Business Machines Corporation. Appeal Br. 3.
2 Rather than reiterate the arguments of Appellant and the Examiner, we
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Summary of the Invention
The claims relate to a system and methods are provided for
identifying conversations in tweet streams. See Abstract.
Invention
An understanding of the invention can be derived from a reading of
Claim 4, the sole independent claim, which is reproduced in Table 1, infra.

Rejections3
Claims Rejected 35 U.S.C. § References/Basis
4 Double
Patenting
Co-pending 14/748,507
Final Act. 3.
4, 21 101 Subject Matter Eligibility
Final Act. 4–6.
4, 21 103,
Obviousness
Wexler4 US 2015/0220615,
Final Act. 9–13.

ANALYSIS
We have reviewed the rejections of Claims 4 and 21 in light of
Appellant’s arguments that the Examiner erred. We have considered in this
Decision only those arguments Appellant actually raised in the Brief. Any
other arguments which Appellant could have made but chose not to make in

refer to the Appeal Brief (filed June 20, 2019, “Appeal Br.”), the Reply Brief
(none filed, “Reply Brief”), the Examiner’s Answer (mailed August 22,
2019, “Ans.”), the Final Action (mailed February 8, 2019, “Final Act.”), and
the Specification (filed June 3, 2015, “Spec.”) for their respective details.
3 The Examiner fails to indicate whether the Application was examined
under the pre-, or post-, AIA provisions.
4 Wexler, US 2015/0220615 A1, published Aug. 6, 2015.
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the Brief are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We
provide the following explanation to highlight and address specific
arguments and findings primarily for emphasis.
CLAIM 4: PROVISIONAL NON-STATUTORY DOUBLE PATENTING
Claim 4 stands provisionally rejected under the judicial doctrine of
obviousness-type double patenting over Claim 1 of co-pending Application
14/748,507 (“the ’507 Application”).
Claims in the ’507 Application have not yet issued. Rather, on April
13, 2020 the ’507 Application was docketed as Appeal 2020-003539. We
decline to reach the merits because where the co-pending, reference
application has not issued, it is “premature for the original Board panel to
address the Examiner’s provisional rejection of the claims.” Ex parte
Moncla, Appeal No. 2009-006448 slip op. at 3 (PTAB June 22, 2010)
(precedential).
CLAIMS 4 AND 21: INELIGIBLE SUBJECT MATTER
Appellant argues the merits of the claims as a group with reference to
the limitations of Claim 4. Therefore, we decide the appeal of the § 101
rejection on the basis of representative Claim 4 and refer to the rejected
claims collectively herein as “the claims.” See 37 C.F.R. § 41.37(c)(1)(iv);
In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
We reviewed the record de novo. SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is drawn
to patent-eligible subject matter is an issue of law that we review de novo.”).
Based upon our review of the record in light of recent policy guidance with
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respect to patent-eligible subject matter rejections under 35 U.S.C. § 101,5
we affirm the rejection of Claims 4 and 21 for the specific reasons discussed
below.
35 U.S.C. § 101
Section 101 provides that a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has
long recognized, however, that § 101 implicitly excludes “[l]aws of nature,
natural phenomena, and abstract ideas” from the realm of patent-eligible
subject matter, as monopolization of these “basic tools of scientific and
technological work” would stifle the very innovation that the patent system
aims to promote. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)); see also Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 72–78 (2012); Diamond v. Diehr, 450 U.S. 175, 185
(1981).
Under the mandatory Revised Guidance, we reconsider whether
Appellant’s claims recite:
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

5 See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Consider adding
reference to October see also October 2019 Update at 1 (October 2019
Update: Subject Matter Eligibility) (hereinafter “October 2019 Update”).

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practice, or mental processes), and
2. additional elements that integrate the judicial exception into a
practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, do we then reach the
issue of 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.

A. Whether the claims recite a judicial exception
The Revised Guidance extracts and synthesizes key concepts
identified by the courts as abstract ideas to explain that the abstract-idea
exception includes the following groupings of subject matter:
(a) mathematical concepts,6 i.e., mathematical relationships, mathematical
formulas, equations,7 and mathematical calculations8; (b) certain methods of
organizing human activity—fundamental economic principles or practices

6 Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“The concept of hedging . . .
reduced to a mathematical formula . . . is an unpatentable abstract idea.”).
7 Diehr, 450 U.S. at 191 (“A mathematical formula as such is not accorded
the protection of our patent laws.”); Parker v. Flook, 437 U.S. 584, 594
(1978) (“[T]he discovery of [a mathematical formula] cannot support a
patent unless there is some other inventive concept in its application.”).
8 SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018)
(holding that claims to a “series of mathematical calculations based on
selected information” are directed to abstract ideas).
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(including hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or behaviors; business
relations); managing personal behavior or relationships or interactions
between people (including social activities, teaching, and following rules or
instructions)9; and (c) mental processes—concepts performed in the human
mind (including observation, evaluation, judgment, opinion).10
The preamble of independent Claim 4 recites: “A computer program
product for identifying conversations in tweet streams, the computer
program product comprising a computer readable storage medium having
program instructions embodied therewith, the program instructions
executable by a computer to cause the computer to perform a method
comprising.” The limitations recited in the body of the claim are analyzed in
Table I against the categories of abstract ideas as set forth in the Revised
Guidance. As set forth in Table I below, we find limitations [a] through [e]
of independent Claim 4 recite abstract ideas, i.e., “mental processes.”

9 Alice, 573 U.S. at 219–20 (concluding that use of a third party to mediate
settlement risk is a “fundamental economic practice” and thus an abstract
idea); see Revised Guidance, at 52 n.13 for a more extensive listing of
“[c]ertain methods of organizing human activity” that have been found to be
abstract ideas.
10 Mayo, 566 U.S. at 71 (“[M]ental processes[ ] and abstract intellectual
concepts are not patentable, as they are the basic tools of scientific and
technological work.” (quoting Gottschalk v. Benson, 409 U.S. 63, 67
(1972))).
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Table I
Claim 1 Revised Guidance
[a]11 grouping, by a processor of the
computer, tweet messages in the
tweet streams into tweet groups,
responsive to hashtags therefor and
time intervals in which the tweet
message were sent;
Mental processes, i.e., concepts
performed in the human mind
(including an observation,
evaluation, judgment, opinion). See
Revised Guidance at 52.
[b] splitting, by the processor, the
tweet groups into subgroups
responsive to secondary hashtags
and a time separation, based on
units of time, between the tweet
messages;
Mental processes, i.e., concepts
performed in the human mind
(including an observation,
evaluation, judgment, opinion). See
Revised Guidance at 52.
[c] clustering, by the processor, any
of the subgroups into a respective
same conversation responsive to
word occurrences, word
frequencies, and account holders;
and
Mental processes, i.e., concepts
performed in the human mind
(including an observation,
evaluation, judgment, opinion). See
Revised Guidance at 52.
[d] merging, by the processor, any
of the subgroups having different
hashtags into the respective same
conversation responsive to
overlapping glossary and account
lists, wherein each of the tweet
groups and each of the subgroups
correspond to a respective different
one of the conversations when
unable to be split, clustered, or
merged.
Mental processes, i.e., concepts
performed in the human mind
(including an observation,
evaluation, judgment, opinion). See
Revised Guidance at 52.

11 Step designators, e.g., “[a],” were added to facilitate discussion.
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Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims recite a patent-ineligible concept, as we conclude above,
we proceed to the “practical application” Step 2A(ii) wherein the “claims are
considered in their entirety to ascertain whether their character as a whole is
directed to excluded subject matter.” McRO, Inc. v. Bandai Namco Games
Am. Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016). This test determines
whether the recited judicial exception is integrated into a practical
application of that exception by: (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception(s); and
(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
For the reasons which follow, we conclude that Appellant’s claims do
not integrate the judicial exception into a practical application.
MPEP § 2106.05(a) “Improvements to the Functioning of a
Computer or to Any Other Technology or Technical Field”
“In determining patent eligibility, examiners should consider whether
the claim ‘purport(s) to improve the functioning of the computer itself’” or
“any other technology or technical field.” MPEP § 2106.05(a).
Appellant argues the “the invention of claim 4 fortuitously automates
a process that is conceivably overwhelming to a human given that 58 million
tweets are issued each day.” Appeal Br. 9 (emphasis omitted). Appellant
analogizes to Research Corporation Technologies12 which used general
purpose computer components, recited at a high level of generality and

12 Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir.
2010).
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performing basic computer functions, but wherein the Court found the
claims recited eligible subject matter because the steps tying the abstract
idea to the processor’s ability to process digital images were found to be
significantly more than merely the recited abstract idea. Appeal Br. 9.
Appellant argues the steps of the present claims “are tied to the processors
ability to perform quick calculations and process a voluminous amount of
data in the form of tweet message data that would otherwise overwhelm a
human attempting the same.” Id. (emphasis omitted).
We disagree with Appellant. To the extent that the recited steps or
acts may be performed faster or more efficiently using a computer, our
reviewing court provides applicable guidance: While the claimed system and
method certainly purport to accelerate the process of analyzing audit log
data, the speed increase comes from the capabilities of a general-purpose
computer, rather than the patented method itself. See Bancorp Servs., L.L.C.
v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir.
2012) (“[T]he fact that the required calculations could be performed more
efficiently via a computer does not materially alter the patent eligibility of
the claimed subject matter.” (emphasis added)).
Appellant contends the “the relevant technology is social media that is
necessarily accessed by a computer.” Appeal Br. 9 (emphasis omitted). We
disagree and find “social media” falls under methods of organizing human
behavior, an abstract idea. See Revised Guidance at 52; see also Spec. ¶ 6
(“In social media conversations create virtual communities.”). Contrary to
Appellant, we find no improvement to the functioning of a computer or any
improvement in technology. Claims that “merely collect, classify, or
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otherwise filter data” are ineligible for patent under § 101. Intellectual
Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1327 (Fed. Cir. 2017).
MPEP § 2106.05(b): Particular Machine
The Bilski machine-or-transformation test is only applicable to
method (process) claims. However, “[r]egardless of what statutory category
(‘process, machine, manufacture, or composition of matter,’ 35 U.S.C.
§ 101) a claim’s language is crafted to literally invoke, we look to the
underlying invention for patent-eligibility purposes.” CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1374 (Fed. Cir. 2011). Here, it is
clear that the invention underlying the computer program product of Claim 4
is the encoded, underlying method. We, therefore, analyze the machine
prong of the Bilski machine-or-transformation test.
Appellant discloses generic machines and software are suitable:
The processing system 100 includes at least one processor
(CPU) 104 operatively coupled to other components via a
system bus 102. A cache 106, a Read Only Memory (ROM)
108, a Random Access Memory (RAM) 110, an input/output
(I/O) adapter 120, a sound adapter 130, a network adapter 140,
a user interface adapter 150, and a display adapter 160, are
operatively coupled to the system bus 102.
Spec. ¶ 20.
These and other variations of the processing system 100 are
readily contemplated by one of ordinary skill in the art given
the teachings of the present principles provided herein.
Spec. ¶ 26.
Computer readable program instructions for carrying out
operations of the present invention may be assembler
instructions, instruction-set-architecture (ISA) instructions,
machine instructions, machine dependent instructions,
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microcode, firmware instructions, state-setting data, or either
source code or object code written in any combination of one or
more programming languages, including an object oriented
programming language such as Java, Smalltalk, C++ or the like,
and conventional procedural programming languages, such as
the “C” programming language or similar programming
languages.
Spec. ¶ 91.
We find no indication, nor does Appellant so direct our attention, that
the claimed invention relies on other than generic devices or uses other than
generic software. We, therefore, conclude Appellant’s claims fail to satisfy
the machine prong of the Bilski machine-or-transformation test.
MPEP § 2106.05(c): Particular Transformation
This section of the MPEP guides: “Another consideration when
determining whether a claim . . . recites significantly more . . . is whether the
claim effects a transformation or reduction of a particular article to a
different state or thing.” MPEP § 2106.05(c). “[T]ransformation and
reduction of an article to a different state or thing is the clue to the
patentability of a process claim that does not include particular machines.”
Bilski, 561 U.S. at 658 (quoting Benson, 409 U.S. at 70).
The claims operate by “grouping, . . . splitting, . . . clustering, . . .
[and] merging” certain electronic data, i.e., “tweets.” Operating on
electronic data is not a “transformation or reduction of an article into a
different state or thing constituting patent-eligible subject matter[.]” See In
re Bilski, 545 F.3d 943, 962 (Fed. Cir. 2008) (emphasis added); see also
CyberSource Corp., 654 F.3d at 1375 (“The mere manipulation or
reorganization of data . . . does not satisfy the transformation prong.”).
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Applying this guidance here, we conclude Appellant’s method claims fail to
satisfy the transformation prong of the Bilski machine-or-transformation test.
MPEP § 2106.05(e): Other Meaningful Limitations
This section of the MPEP guides:
Diamond v. Diehr provides an example of a claim that
recited meaningful limitations beyond generally linking the use
of the judicial exception to a particular technological
environment. 450 U.S. 175 . . . (1981). In Diehr, the claim was
directed to the use of the Arrhenius equation (an abstract idea or
law of nature) in an automated process for operating a rubber-
molding press. 450 U.S. at 177-78 . . . . The Court evaluated
additional elements such as the steps of installing rubber in a
press, closing the mold, constantly measuring the temperature
in the mold, and automatically opening the press at the proper
time, and found them to be meaningful because they
sufficiently limited the use of the mathematical equation to the
practical application of molding rubber products. 450 U.S. at
184, 187 . . . . In contrast, the claims in Alice Corp. v. CLS
Bank International did not meaningfully limit the abstract idea
of mitigating settlement risk. 573 U.S. . . . . In particular, the
Court concluded that the additional elements such as the data
processing system and communications controllers recited in
the system claims did not meaningfully limit the abstract idea
because they merely linked the use of the abstract idea to a
particular technological environment (i.e., “implementation via
computers”) or were well-understood, routine, conventional
activity.
MPEP § 2106.05(e).
“[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. In the instant appeal, Appellant
argues, “the steps are tied to the processors ability to perform quick
calculations and process a voluminous amount of data in the form of tweet
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message data that would otherwise overwhelm a human attempting the
same.” Appeal Br. 9 (emphasis omitted). Similarly as in Alice, we find that
“[t]aking the claim elements separately, the function performed by the
computer at each step of the process is ‘[p]urely conventional.’” Alice, 573
U.S. at 225 (second alteration in original). “In short, each step does no more
than require a generic computer to perform generic computer functions.” Id.
We find that Appellant’s claims do not add meaningful limitations
beyond generally linking the use of the judicial exception to a particular
technological environment.
MPEP § 2106.05(f): Mere Instructions to Apply an Exception
Appellant does not persuasively argue that their claims do any more
than to merely invoke generic computer components merely as a tool in
which the computer instructions apply the judicial exception.
MPEP § 2106.05(g): Insignificant Extra-Solution Activity
The claims acquire and display data, which are classic examples of
insignificant extra-solution activity. See, e.g., Bilski, 545 F.3d at 963 (en
banc), aff’d sub nom, Bilski, 561 U.S. 593.
MPEP § 2106.05(h): Field of Use and Technological
Environment
[T]he Supreme Court has stated that, even if a claim does not
wholly pre-empt an abstract idea, it still will not be limited
meaningfully if it contains only insignificant or token pre- or
post-solution activity—such as identifying a relevant audience,
a category of use, field of use, or technological environment.
Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1346 (Fed. Cir. 2013)
(citation omitted).
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We find the claimed data manipulation is simply a field of use that
attempts to limit the abstract idea to a particular technological environment.
We are unpersuaded by Appellant’s arguments because the mere application
of an abstract idea in a particular field is not sufficient to integrate the
judicial exception into a practical application. See Revised Guidance, 84
Fed. Reg. at 55, n.32. In view of the foregoing, we conclude the claims are
“directed to” a judicial exception.
B. Well-understood, routine, conventional
Because the claims recite a judicial exception and do not integrate that
exception into a practical application, we must then reach the issue of
whether the claim adds a specific limitation beyond the judicial exception
that is not “well-understood, routine, conventional” in the field. Revised
Guidance, 84 Fed. Reg. at 56 (citing the “Berkheimer Memorandum”).13 As
discussed above, the written description describes the claimed computer
system consistent with its being “well-understood, routine, [and]
conventional.”
C. Specified at a high level of generality
It is indicative of the absence of an inventive concept where the
claims simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. Revised Guidance, 84 Fed. Reg. at 56.

13 Memorandum from Robert W. Bahr, Deputy Commissioner for Patent
Examination Policy, to Patent Examining Corps, U.S. Patent and Trademark
Office (April 19, 2018), https://www.uspto.gov/sites/default/files/
documents/memo-berkheimer-20180419.PDF (citing Berkheimer v. HP Inc.,
881 F.3d 1360, 1367–68 (Fed. Cir. 2018)).
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The claims fail to recite any specific steps of an algorithm, nor does
Appellant cite any Specification disclosure for the required specificity.
We find the limitations are specified at such a high level of generality
consistent with the absence of an inventive concept. Considering the claim
limitations as an ordered combination adds nothing to the abstract idea that
is not already present when the limitations are considered separately. See
Mayo, 566 U.S. at 79. The ordered combination of limitations amounts to
nothing more than certain mental processes implemented with generic
computer components that operate in a conventional way. See also Alice,
573 U.S. at 225–26. Therefore, we conclude that none of the claim
limitations, viewed “both individually and as an ordered combination,”
amounts to significantly more than the judicial exception in order to
sufficiently transform the nature of the claims into patent-eligible subject
matter. See Alice, 573 U.S. at 217 (internal quotation marks omitted)
(quoting Mayo, 566 U.S. at 79).
In view of the foregoing, we sustain the rejection of Claims 4 and 21
under 35 U.S.C. § 101.
CLAIMS 4 AND 21: OBVIOUSNESS OVER WEXLER
Appellant argues the merits of the claims as a group with reference to
the limitations of Claim 4. See Appeal Br. 20. Therefore, we decide the
appeal of the § 103 rejection on the basis of illustrative Claim 4 and refer to
the rejected claims collectively herein as “the claims.” See 37 C.F.R.
§ 41.37(c)(1)(iv); In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
Grouping
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Claim 4 recites, inter alia, “grouping, by a processor of the computer,
tweet messages in the tweet streams into tweet groups, responsive to
hashtags therefor and time intervals in which the tweet message were sent.”
The Examiner finds that under the broadest, reasonable interpretation,
“the hashtags are interpreted as the ‘messages,’ because[] a hashtag is one
type of tweet message.” Final Act. 6.
Appellant argues the Examiner’s construction is improper because the
claims recite grouping of “tweet messages” responsive to “hashtags” and,
therefore, messages are distinct from hashtags. We agree.
Appellant discloses a hashtag may be part of a message, but it is not
the same as a message. Spec. ¶ 6. (“[W]hen a hashtag is promoted as part of
a social conversation or a message by enough individuals, a community is
formed.”). Appellant distinguishes messages and hashtags. Where the
Examiner provides no evidence to the contrary, we presume the two terms
have different meanings. See Comaper Corp. v. Antec, Inc., 596 F.3d 1343,
1348 (Fed. Cir. 2010) (“There is an inference . . . that two different terms
used in a patent have different meanings.”). The Board will presume
different meanings attach to different words when construing claim
language. See, e.g., Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 93
F.3d 1572, 1579 (Fed. Cir. 1996) (reversing lower court’s ruling that a
“pusher assembly” and a “pusher bar” have the same meaning).
The Examiner’s construction makes no reference to the Specification.
See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir.
2015) (“Even under the broadest reasonable interpretation, the Board’s
construction ‘cannot be divorced from the specification and the record
evidence,’ and ‘must be consistent with the one that those skilled in the art
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would reach.’” (citation omitted)); see also In re Abbott Diabetes Care Inc.,
696 F.3d 1142, 1149–50 (Fed. Cir. 2012) (vacating Board decision due to
Board’s unreasonably broad claim interpretation).
The Examiner finds “the ‘time separation between tweet messages’ as
distinguishing a secondary hashtag from a first hashtag.” However, there is
no showing that Wexler discloses a “time separation between tweet
messages,” as claimed. Moreover, because the Examiner’s findings are
taken with respect to Wexler’s hashtags, there is no finding that Wexler
discloses, or teaches, any limitation relative to the claimed “messages.”
In view of the foregoing, we decline to sustain the rejection of Claims
4 and 21 under 35 U.S.C. § 103.

DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
4, 21 101 Eligibility 4, 21
4, 21 103 Wexler 4, 21
Overall
Outcome
4, 21

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). See
37 C.F.R. § 41.50(f).
AFFIRMED