Jeffrey Berry et al.

Patent Trials and Appeals Board

Feb 14, 2022

2021000777 (P.T.A.B. Feb. 14, 2022)

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. 15/703,851 09/13/2017 Jeffrey B. Berry LOGM E888C3 7265 1688 7590 02/14/2022 Sandberg Phoenix & von Gontard, PC 120 S. Central Ave. Suite 1600 St. Louis, MO 63105 EXAMINER NANO, SARGON N ART UNIT PAPER NUMBER 2457 NOTIFICATION DATE DELIVERY MODE 02/14/2022 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): USPTO@sandbergphoenix.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JEFFREY B. BERRY and LEE ALEXANDER LASCH HOLMES _____________ Appeal 2021-000777 Application 15/703,851 Technology Center 2400 ____________ Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and LARRY J. HUME, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-30 which constitute all the claims pending in this application. Claims App. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real party in interest is the named inventors Jeff B. Berry and Lee Alexander Holmes. See Appeal Br. 1. Appeal 2021-000777 Application 15/703,851 2 STATEMENT OF THE CASE 2 Introduction Embodiments of Appellant’s claimed subject matter relate “generally, to the field of messaging and to, more particularly, the field of advertising via messaging.” Spec. ¶ 4. Representative Claim 1 1. A system for managing and processing of a user message as initiated by a sender messaging device of a sending user to an unidentified receiver messaging device of an unidentified receiving user and transmitted through a telecommunication network to a multimedia messaging system (MMS) implemented therein for transmitting the received user message from the sender messaging device to the receiver messaging device based on an receiver message device address, the system comprising: a first server having an input interface and an output interface, a processor, a memory and computer executable instructions, the input interface coupled to a system user device and receiving a brand-related data (BRD) message and associated BRD configuration data for the BRD message to be inserted into a message being processed by the MMS and not being identifiable or inserted based on the receiver message device address, the brand-related data message including a unique identification of the system user from among a plurality of system users of the first server, the BRD configuration data including at least one BRD message insertion rule applicable to the received BRD message, wherein the at least one BRD message insertion rule does not include a receiver message device address, the first server assigning a BRD message 2 We herein refer to the Final Office Action, mailed June 7, 2019 (“Final Act.”); the Appeal Brief, filed May 4, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed August 12, 2020 (“Ans.”); and the Reply Brief (“Reply Br.”), filed Nov. 11, 2020. Appeal 2021-000777 Application 15/703,851 3 instance ID to the BRD message and storing the BRD message and the associated BRD configuration data in the memory; and a second server having a processor, a memory and computer executable instructions, and having a first interface communicatively coupled to the output interface of the first server and at least one second interface communicatively coupled to the telecommunication network and to the multimedia messaging system implemented therein, the second server receiving from the MMS system the received user message as received from the MMS system prior to the MMS system transmitting the user message to the receiver messaging device using the received message device address thereof, the second server receiving the BRD message and associated BRD configuration data from the first server over the first interface without selecting or identifying the receiver message device address of the received user message and creating a modified user message having the BRD message inserted within the messaging format of the user message with the creating being responsive to the at least one BRD message insertion rule associated with the BRD message, the second server transmitting the modified user message over the second interface to the telecommunication network for delivery of the modified user message to the receiver messaging device. Appeal Br. 63. Claims App. Rejection3 Claims Rejected 35 U.S.C. § Reference(s)/Basis 1-30 101 Eligibility 3 In the Answer, the Examiner withdrew the rejections under 35 U.S.C. §§ 103 and 112. See Ans. 3. Therefore, these rejections are not before us on appeal. Appeal 2021-000777 Application 15/703,851 4 ISSUES AND ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. To the extent Appellant has not timely advanced separate, substantive arguments for particular claims, or other issues, such arguments are forfeited.4 See, e.g., 37 C.F.R. § 41.37(c)(1)(iv). Throughout this opinion, we give the claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Rejection under 35 U.S.C. § 101 of Claims 1-30 USPTO 35 U.S.C. § 101 MPEP Guidance In January and October of 2019, the U.S. Patent and Trademark Office (“USPTO”) published revised guidance on the application of 35 U.S.C. § 101.5 We note the USPTO current eligibility guidance is found 4 See In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020) (some internal citation omitted): It is well established that “[w]aiver is different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two scenarios can have different consequences for challenges raised on appeal, id. at 733-34, and for that reason, it is worth attending to which label is the right one in a particular case. 5 See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”) and USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”). “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” 84 Fed. Reg. at 51; October 2019 Update at 1. Appeal 2021-000777 Application 15/703,851 5 in the Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of Patent Examination Procedure (“MPEP”), and particularly within Sections 2103 through 2106.07(c). Therefore, we refer to the MPEP for the Eligibility Guidance originally published in the Federal Register. All references to the MPEP throughout this Decision are to the Ninth Edition, Revision 10.2019 (last revised June 2020), unless otherwise indicated. Under MPEP § 2106, 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 (“Step 2A, Prong Two”).6 MPEP § 2106, Step 2A, Prong One The Judicial Exception Under MPEP § 2106.04(a)(2), the enumerated groupings of abstract ideas are defined as follows: (1) Mathematical concepts - mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP § 2106.04(a)(2), subsection I); (2) Certain methods of organizing human activity - fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities 6 “Examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application.” MPEP § 2106.04(d)(II). Appeal 2021-000777 Application 15/703,851 6 or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) (see MPEP § 2106.04(a)(2), subsection II); and (3) Mental processes - concepts performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III). Here, the Examiner applies MPEP § 2106, Step 2A, Prong One, and concludes that “[t]he claimed system simply describes series of steps for advertising via messaging in [a] network.” Ans. 7 (emphasis added). Thus, under Step 2A, Prong One, the Examiner categorizes the claims as reciting an abstract idea “because they are interaction/activity that falls within [a] fundamental economic practice and the enumerated group of ‘certain methods of organizing human activity,’” as defined under MPEP § 2106.04(a)(2), subsection II. Ans. 8. We agree that claim 1 recites an abstract idea because the “brand- related data (BRD) message” limitations fall within the broad category of “certain methods of organizing human activity,” including the sub-category of “fundamental economic principles or practices,” and more specifically, “advertising, marketing or sales activities or behaviors.” MPEP § 2106.04(a)(2), subsection II. Remaining independent claim 15 recites similar limitations of commensurate scope. Appellant advances no substantive, persuasive arguments under Step 2A, Prong One, but instead focuses the argument on the purported improvement in the functioning of the computer, which we consider infra under Step 2A, Prong Two. Appeal 2021-000777 Application 15/703,851 7 Because we conclude that claims 1-30 recite an abstract idea,7 as identified above, under Step 2A, Prong One, we proceed to Step 2A, Prong Two, in which we apply the guidance set forth under MPEP § 2106.04(d). Step 2A, Prong Two Under MPEP § 2106.04(d), Integration of the Judicial Exception into a Practical Application Limitations that are indicative of integration into a practical application under MPEP § 2106.04(d) include: 1. Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP § 2106.05(a); 2. Applying the judicial exception with, or by use of, a particular machine - see MPEP § 2106.05(b); 3. Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP § 2106.05(c); and 4. Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP § 2106.05(e). In contrast, limitations that are not indicative of integration into a practical application include: 1. Adding the words “apply it” (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP § 2106.05(f); 2. Adding insignificant extra-solution activity to the judicial 7 We note that each dependent claim includes all the limitations of the claims from which it depends. See 35 U.S.C. § 112(d). Appeal 2021-000777 Application 15/703,851 8 exception - see MPEP § 2106.05(g); and 3. Generally linking the use of the judicial exception to a particular technological environment or field of use - see MPEP § 2106.05(h). See MPEP § 2106.04(d)(I) (Describing Step 2A, Prong Two). Additional Limitations Applying the USPTO guidance under MPEP § 2106.04(d), we consider whether there are additional elements set forth in the claims that integrate the judicial exception into a practical application. The Examiner finds: The claim recites additional limitation[s] of using a first server having an input interface and an output interface, a processor, a memory, a user device and a second server having a processor, a memory and a telecommunication network to perform the above mentioned steps . . . the steps are recited at a high level of generality, i.e., as a generic processor performing a generic computer function of processing and transmitting data. This generic processor limitation is no more than mere instructions to apply the exception using generic computer component. Also, these limitations are an attempt to limit the abstract idea to a particular technological environment. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. Ans. 8 (emphasis added). The Examiner further finds: [T]he recitation of the claimed limitations amounts to mere instructions to implement the abstract idea on a processor (using the processor as a tool to implement the abstract idea). Taking the additional elements individually and in combination, the processor at each step of the process performs purely generic computer functions. As such, there is no inventive concept sufficient to transform the claimed subject matter into a Appeal 2021-000777 Application 15/703,851 9 patent-eligible application. Ans. 9 (emphasis added). Appellant disagrees, and contends: [T]he claims as supported by the specification and drawing[s] provide for each BRD message to have a BRD configuration data with the message that also includes for each particular message insertion rules, which specifically exclude the use of the address of either the sender or the receiver's device address (such as phone number). That which is claimed is a new technical solution for inserting BRD messages within the MMS data network, which inherently is a computerized network having numerous servers and interfaces. The recitations of the claims are new system components that provide new functionality for message processing and in-transit message processing. Reply Br. 6. But to be patent-eligible, the elements additional to the identified abstract idea must amount to more than “an instruction to apply the abstract idea . . . using some unspecified, generic computer” to render the claim patent-eligible. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 226 (2014). Here, the Specification supports the Examiner’s finding that the recited generic additional claim elements do not integrate the abstract idea into a practical application. See Ans. 8-9. We note that claims 1-30 recite limitations and functions that are intended to be implemented by a generic computing system, including one or more servers that are described generically in the Specification, e.g., at paragraph 31, and on the client side by “a smartphone capable of sending and receiving messages, [that] may comprise cell phones, computers, tablet devices, or other devices in other example embodiments.” Spec. ¶ 70 (emphasis added). Appeal 2021-000777 Application 15/703,851 10 But merely adding generic hardware and computer components to perform abstract ideas does not integrate those ideas into a practical application. See Alice Corp., 573 U.S. at 223 (The “mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”); see also McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016) (“The abstract idea exception prevents patenting a result where ‘it matters not by what process or machinery the result is accomplished.’” (quoting O’Reilly v. Morse, 56 U.S. 62, 113 (1854)) (emphasis added)). In view of the above analysis, we determine that Appellant’s claims 1-30 amount to no more than a mere system to implement the identified abstract idea on a generic computer system. See MPEP § 2106.05(f). Extra or Post-Solution Activities under MPEP § 2106.05(g) “[T]he prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or [by] adding ‘insignificant post[-]solution activity.’” Bilski v. Kappos, 561 U.S. 593, 610-12 (2010) (quoting Diamond v. Diehr, 450 U.S. 175, 191-92 (1981)). Here, we find independent claim 1 recites one or more additional limitations that are extra-solution activities the courts have determined to be insufficient to transform judicially excepted subject matter into a patent- eligible application. See MPEP § 2106.05(g). For example, we conclude at least the claim 1 functions of “the second server receiving from the MMS system the received user message as received from the MMS system prior to the MMS system transmitting the Appeal 2021-000777 Application 15/703,851 11 user message to the receiver messaging device using the received message device address thereof,” and “the second server transmitting the modified user message over the second interface to the telecommunication network for delivery of the modified user message to the receiver messaging device” are merely data gathering (i.e., sending and receiving data over a network) (emphasis added). We note that similar limitations of commensurate scope are recited in remaining independent claim 15. As such, these limitations recite insignificant extra-solution activities. See buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and sends the information over a network-with no further specification-is not even arguably inventive.”). MPEP § 2106.05(a) - Improvement to the Functionality of a Computer or Other Technology or Technical Field Applying the guidance under MPEP § 2106.05(a), we consider whether there are any claimed improvements to the functioning of a computer or to any other technology or technical field. To the extent that Appellant’s claimed “system for managing and processing” a “user message” merely inserts brand advertising (e.g., a brand- related data (BRD) message”) into an MMS message intended for human perception, we find it does not improve the functionality of computer technology. Claim 1. Moreover, claim limitations that are directed to the content of information that is intended for human perception (e.g., advertising) which lack a requisite functional relationship are not entitled to patentable weight Appeal 2021-000777 Application 15/703,851 12 because such information is non-functional description material (NFDM) that is not patent-eligible subject matter under 35 U.S.C. § 101. See AstraZeneca LP v. Apotex., Inc. 633 F.3d 1042, 1064 (Fed. Cir. 2010) (“This court has generally found printed matter to fall outside the scope of § 101”) (emphasis added). See also Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential) (“the nature of the information being manipulated does not lend patentability to an otherwise unpatentable computer-implemented product or process.”). But Appellant additionally contends: The Examiner fails to recognize that McRO held that the claims must be considered “in their entirety to ascertain whether their character as a whole is directed to excluded subject matter.” McRO, at 1312. McRO found that a technological improvement to relevant technology that is relevant and therefore a recognition of the relevant technology is required under Alice step one. This the Examiner has completely failed to do. Nowhere in any of the Examiner's§ 101 analysis does the Examiner consider the relevant technology of telecommunication systems or data communication systems providing MMS message processing. The [] Examiner simply failed to apply the law established by McRO. Reply Br. 7. We find Appellant’s argument based upon McRO is unpersuasive, because Appellant’s claim 1 is unlike the subject claim considered by the court in McRO. The patent at issue in McRO describes that, prior to the claimed subject matter, character animation and lip synchronization were accomplished by human animators, with the assistance of a computer, and involved the use of a so-called “keyframe” approach in which animators set appropriate parameters, i.e., “morph weights,” at certain important times to Appeal 2021-000777 Application 15/703,851 13 produce accurate and realistic lip synchronization and facial expressions. See McRO, 837 F.3d. at 1305. By referencing a time-aligned phonetic transcription (a “timed transcript”), animators knew what phoneme a character pronounced at a given time. Id. Thus, in accordance with the technique known prior to McRO, animators, using a computer, manually determined the appropriate morph weight sets for each keyframe, based upon the phoneme timings in the timed transcript. Id. But the claimed patent-eligible improvement in McRO was how the physical display operated to produce better quality images. See SAP Am. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishing McRO): The claims in McRO were directed to the creation of something physical-- namely, the display of “lip synchronization and facial expressions” of animated characters on screens for viewing by human eyes. Id. at 1313. The claimed improvement was to how the physical display operated (to produce better quality images), unlike (what is present here) a claimed improvement in a mathematical technique with no improved display mechanism. The claims in McRO thus were not abstract in the sense that is dispositive here. SAP, 898 F.3d at 1167 (emphasis added). In contrast to the claimed subject matter in McRO that improved how a physical display operated to produce better quality images, the claimed subject matter here merely uses generic computing components to perform the recited functions which accomplish the intended purpose of creating “a modified user message having the brand-related data (BRD) message inserted with the user message.” Abstract. Thus, we find Appellant’s claims, which merely insert brand-related advertising messages, do Appeal 2021-000777 Application 15/703,851 14 not improve a physical display as was the case in McRO. See SAP, 898 F.3d at 1167. Appellant further contends: The current claims are actually similar to Bascom in that when the claims are viewed in an ordered combination by providing message insertion within the network that was previously shown by the Examiner’s prior art to be outside the network and based on subscription and recipient address. The claims as a whole recite an improvement in text message processing in a telecommunication system by providing the telecommunication system operator with an improved capability of inserting messages with brand related data in a secure network environment and without basis such on the device address of the receiving party, but rather on a set of configuration data insertion rules that are provided to the network insertion server on a per-BRD basis. Under Bascom, there is sufficient inventive concept in the present recited claims and their server functionalities to confer eligibility based on the technical solution that is provided at a new specific location within the network and not external to qualify under Bascom as a “specific technical solution of the abstract idea.” Reply Br. 8 (citing BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) (emphasis added). We find Appellant’s analogy to BASCOM unavailing. Id. The Federal Circuit held in BASCOM that the claimed Internet content filtering, which featured an implementation “versatile enough that it could be adapted to many different users’ preferences while also installed remotely in a single location,” expressed an inventive concept in “the non-conventional and non- generic arrangement of known, conventional pieces.” BASCOM, 827 F.3d at 1350. Appeal 2021-000777 Application 15/703,851 15 Here, we find Appellant has not shown a non-conventional, non- generic arrangement regarding the additional structural limitations of generic computer components, as recited in each of independent claims 1 and 15, i.e., the generic first and second servers, which each include “a processor,” and “a memory” and are thus structural components of the recited “telecommunications network.” Instead of claiming a non- conventional, non-generic structural arrangement, Appellant’s claims merely recite the functions to be performed on message data by the first and second servers. Therefore, it is our view that Appellant’s claims do not involve any improvements to another technology, technical field, or improvements to the functioning of the computer or network, as was found by the court in BASCOM. Instead, we conclude Appellant’s claims 1 and 15 merely invoke generic computer components as a tool in which the instructions executing on the computer apply the judicial exception to insert brand- related advertising messages. Appellant next argues that “[t]he present claims provide a technical solution to a technical problem, albeit as with many patentable inventions, also provides business benefits to the telecommunication system operators by providing a new service to advertisers and therefore new revenue streams.” Reply Br. 9. In support, Appellant contends: This is similar to DDR Holdings that held that claims to a method and system for expanding commercial opportunities for internet websites was patent eligible. The prior technical solution was outside of the network and provided targeted addressed user specific advertisement insertion in text messages from “front end” targeted or addressed user based systems that Appeal 2021-000777 Application 15/703,851 16 required insertion of the advertisement message prior to the message being delivered to the telecommunication network, and the insertion selection being based on the identification of that address (usually a telephone number) of the addressed or intended recipient for the text message. The present claims improve upon these prior systems as discussed herein and are more closely aligned with DDR Holdings. Id. We do not agree with Appellant that this is a case involving eligible subject matter, as was the case in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). In DDR, instead of a computer network operating in its normal, expected manner by sending a website visitor to a third-party website via a clicked advertisement, the claimed subject matter generated and directed the visitor to a hybrid page that presented: (1) Product information from the third party, and (2) The visual “look and feel” elements from the host website, thus retaining the visitor at the original website. DDR, 773 F.3d at 125859. Given this Internet-based solution, the court in DDR held that the claimed subject matter did not merely use the Internet to perform a business practice known from the pre-Internet world, but rather was necessarily rooted in computer technology to overcome a problem specifically arising in computer networks. Id. at 1257. That is not the case here. Although Appellant’s claimed subject matter results in “the BRD message [being] inserted into a message being processed by the MMS” (claim 1), there is no recitation of solving a problem unique to the Internet, or a website, as was the case in DDR. Nor do we see how including brand-related data (advertising) in MMS messages improves Appeal 2021-000777 Application 15/703,851 17 the generic “telecommunications network” structure recited in independent claims 1 and 15. To the extent that Appellant has invented an improved advertising system for managing and processing a user message, we note that an improved abstract idea is still an abstract idea. See Mayo, 566 U.S. at 90 (holding that a novel and nonobvious claim directed to a purely abstract idea is, nonetheless, patent-ineligible). Therefore, it is our view that Appellant’s claimed subject matter is not rooted in computer technology, in the sense contemplated by the court in DDR, in which the claimed subject matter solved a challenge particular to the Internet. Appellant further contends the present claims are similar to the claims considered by the court in TecSec, Inc. v. Adobe Inc., (978 F.3d 1278 (Fed. Cir. 2020)), in which the claimed subject matter “was found to be patent eligible by the Federal Circuit on October 23, 2020.” Reply Br. 21. Appellant notes: TecSec’s patent eligible claims were to a method and system for a multi-level multimedia security in a data network. As identified in TecSec’s 5,369,702 patent, the TecSec system was “a system that can be used to restrict access to computer data. In particular, the system of the present invention restricts access in a flexible way, identifying objects for restriction and nesting restriction requirements through the use of embedded objects.” As recited in claim 8, is was a data network invention with a digital logic with numerous subsystems and modules, all of which were conventional computer systems as summarized by the Examiner in the present case, and a new encryption module, similar to the Appellants new data-insertion subsystem 104. TecSec’s system and method claims are very similar to the Appellants claims and TecSec’s specification and drawings, are also similar. Appeal 2021-000777 Application 15/703,851 18 Id. Appellant specifically argues: Referencing Uniloc, at 1306-07, and et al, the TecSec Court stated that “[S]oftware can make patent-eligible improvements to computer technology, and related claims are eligible as long as they are directed to non-abstract improvements to the functionality of a computer or network platform itself.” Id. and citing to Uniloc, at 1309; and Enfish, at 1335. “We have found claims directed to such eligible matter in a number of cases where we have made two inquiries of significance here: whether the focus of the claimed advance is on a solution to “a problem specifically arising in the realm of computer networks” or computers, DDR Holdings, at 1257-58; and whether the claim is properly characterized as identifying a “specific" improvement in computer capabilities or network functionality, rather than only claiming a desirable result or function ...” Id., citing to Uniloc, at 1308-09: and referencing Enfish, at 1135-36; et al. Reply Br. 22 (citing Uniloc USA, Inc. v. LG Electronics USA, Inc., 957 F.3d 1303, 1306-07 (Fed. Cir. 2020); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)). We disagree with Appellant’s assertion that the claims considered by the court in TecSec are analogous to Appellant’s claims. See Reply Br. 21. In TecSec, the court concluded that “the claims are directed to improving a basic function of a computer data-distribution network, namely, network security.” 978 F.3d at 1296. In particular, the court found the claims in TecSec, were “directed to improving a data network’s basic functioning by enabling secure and efficient transmission to intended recipients when use is made of the basic multicasting functionality of such a data network.” Id. Appeal 2021-000777 Application 15/703,851 19 In contrast, the Examiner finds Appellant’s claims “are directed to the use of conventional or generic technology (computer/server), in a well- known environment, without any claim that the invention reflects an inventive solution to any computer specific problem.” Ans. 5 (citing Specification ¶ 9). We find Appellant’s claims are unlike TecSec’s claims that fit within the category of “‘cases involving software innovations . . . whe[re] the claims focus on specific asserted improvements in computer capabilities [] instead [of] a process or system that qualifies an abstract idea for which computers are invoked merely as a tool.” Id. at 1293 (quoting Uniloc USA, Inc. v. LG Electronics USA, Inc., 957 F.3d 1303, 1306-07 (Fed. Cir. 2020) (citations omitted). We are of the view that nothing in claim 1 specifically improves the recited generic computer server and telecommunication network technologies. Appellant merely claims a desirable result or function of the MMS message, for example, by including brand-related data as an advertisement (an abstract idea), instead of realizing a specific “improvement in the computer capabilities or network functionality.” TecSec 978 F.3d at 1293. In Appellant’s claims, we find the computer and networking technologies are merely invoked as tools. Therefore, we find Appellant’s claimed subject matter does not solve “a particular problem of multicasting computers networks” (i.e., network security), like the claimed subject matter considered by the court in TecSec (978 F.3d at 1296) (emphasis added). Appeal 2021-000777 Application 15/703,851 20 On this record, we find Appellant does not advance any substantive, persuasive arguments and/or objective evidence explaining how the claimed generic computer components: (1) improve the method other than by using a computer for its expected advantage in improving the speed and efficiency of computations, (2) the extent to which the computer improves the method beyond the computer’s expected functionality, or (3) the significance of a computer to the performance of the method to improve the recited generic computer components. See MPEP § 2106.05(a). Accordingly, we find that independent claim 1 does not recite an improvement to the functionality of a computer or other technology or technical field. See MPEP § 2106.05(a). Remaining independent claim 15 recites similar limitations of commensurate scope, and therefore does not remedy the aforementioned deficiency of claim 1. MPEP § 2106.05(b), 2106.05(c) Both independent claims 1 and 15 are system claims. Because there are no method claims before us on appeal, Appellant does not argue, and we need not consider, whether any method claims on appeal are: (1) tied to a particular machine under MPEP § 2106.05(b), or (2) transform an article to a different state or thing under MPEP § 2106.05(c). MPEP § 2106.05(e) Meaningful Claim Limitations Regarding independent system claims 1 and 15, the Examiner finds that the claims merely recite additional elements which do not provide meaningful limitation(s) to transform the abstract idea into a patent-eligible application of the abstract idea such that the claim(s) amounts to Appeal 2021-000777 Application 15/703,851 21 significantly more than the abstract idea itself. Specifically, the Examiner finds: This generic processor limitation is no more than mere instructions to apply the exception using [a] generic computer component. Also, these limitations are an attempt to limit the abstract idea to a particular technological environment. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to the abstract idea. Ans. 8 (emphasis added). But Appellant urges that the Examiner: fails to recognize that the exceptions to an abstract idea [do] not have to be to the operation of the computer itself, but as the many cases have shown, can include “an improvement to another technology or technical field” or some other meaningful limitation beyond generally linking the abstract idea to a particular technological environment. Reply Br. 3. However, because Appellant does not advance any substantive, persuasive arguments explaining how the judicial exception is applied or used in some meaningful way, as described under MPEP § 2106.05(e), on this record, we are not persuaded the Examiner erred. Accordingly, under Step 2A, Prong Two (MPEP § 2106.05(a)-(c) and (e)-(h)), we conclude that all claims 1-30 do not integrate the judicial exception into a practical application. Appeal 2021-000777 Application 15/703,851 22 The Inventive Concept - Step 2B As set forth under MPEP § 2106.05(d), 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 activity” in the field; 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. In applying Step 2B, the Examiner refers to the generic computer components mentioned under Prong Two of Step 2A, and finds: “Nothing in the claims, understood in light of the specification, requires anything other than off-the-shelf, conventional computer, network, and database technology.” Ans. 15. The Examiner further provides several citations to Federal Circuit court decisions in support of the conventional nature of the additional elements. Id. Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) Berkheimer was decided by the Federal Circuit on February 8, 2018. On April 19, 2018, the PTO issued the Memorandum titled: “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.),” (hereinafter “Berkheimer Memorandum”).8 The Berkheimer Memorandum provided 8 Available at https://www.uspto.gov/sites/default/files/documents/memo- berkheimer-20180419.PDF. Appeal 2021-000777 Application 15/703,851 23 specific requirements for an Examiner to support with evidence any finding that claim elements (or a combination of elements) are well-understood, routine, or conventional. In particular, the Examiner must find, and expressly support a rejection in writing, with one or more of the following: 1. A citation to an express statement in the specification or to a statement made by an applicant during prosecution that demonstrates the well-understood, routine, conventional nature of the additional element(s). . . . 2. A citation to one or more of the court decisions discussed in MPEP § 2106.05(d)(II) as noting the well-understood, routine, conventional nature of the additional element(s). 3. A citation to a publication that demonstrates the well- understood, routine, conventional nature of the additional element(s). . . . 4. A statement that the examiner is taking official notice of the well-understood, routine, conventional nature of the additional element(s). . . . Berkheimer Memorandum at 3-4. In the Answer (p. 15), we find the Examiner provides Berkheimer evidence under type two (i.e., a citation to one or more of the court decisions discussed in MPEP § 2106.05(d)(II) as noting the well-understood, routine, conventional nature of the additional element(s)). But Appellant does not substantively traverse the Examiner’s specific Berkheimer evidence in the Reply Brief. And arguments not timely made are forfeited or waived. See Google Tech., 980 F.3d at 862; see also 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, on this record, we affirm the Examiner’s rejection of independent claims 1 and 15 under 35 U.S.C. § 101. Appeal 2021-000777 Application 15/703,851 24 Dependent Claims 2-14 and 16-30 As previously noted (see supra footnote7), we note that each dependent claim includes all the limitations of the claims from which it depends. See 35 U.S.C. § 112(d). On this record, and to the extent that Appellant addresses certain dependent claims in the Reply Brief, we have fully considered all of Appellant’s arguments. But we find no language recited in dependent claims 2-14 and 16-30 that overcomes the deficiencies of independent claims 1 and 15, as discussed above. Regarding the insertion of brand-related data (i.e., advertising) into MMS messages, we again emphasize that our reviewing court has found that printed matter intended for human perception generally falls outside the scope of the subject matter categories of section 101. See AstraZeneca LP, 633 F.3d at 1064; see also In re Russell, 48 F.2d 668, 669 (CCPA 1931) (“The mere arrangement of printed matter on a sheet or sheets of paper, in book form or otherwise, does not constitute ‘any new and useful art, machine, manufacture, or composition of matter,’ or ‘any new and useful improvements thereof.’”) (citations omitted) (emphasis added). Accordingly, for at least the reasons discussed above, we agree with and adopt the Examiner’s legal conclusion of patent-ineligibility for each dependent claim on appeal. 9 9 See Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner’s findings). Appeal 2021-000777 Application 15/703,851 25 CONCLUSION We affirm the Examiner’s decision rejecting claims 1-30 as being patent-ineligible under 35 U.S.C. § 101. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-30 101 Eligibility 1-30 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