Kamal Jian et al.Download PDFPatent Trials and Appeals BoardDec 2, 201913931679 - (D) (P.T.A.B. Dec. 2, 2019) Copy Citation 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. 13/931,679 06/28/2013 Kamal Jian IP-P1708US1/ EBAY.281027 7577 150601 7590 12/02/2019 Shook, Hardy & Bacon L.L.P. (eBay Inc.) 2555 Grand Blvd. KANSAS CITY, MO 64108-2613 EXAMINER CARVALHO, ERROL A ART UNIT PAPER NUMBER 3622 NOTIFICATION DATE DELIVERY MODE 12/02/2019 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): IPDOCKET@SHB.COM IPRCDKT@SHB.COM docketing.shb@clarivate.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KAMAL JIAN, CHRISTOPHER A. WILKENS, and DARRELL HOY Appeal 2018-007037 Application 13/931,679 Technology Center 3600 Before ST. JOHN COURTENAY III, JENNIFER L. MCKEOWN, and JOYCE CRAIG, Administrative Patent Judges. CRAIG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3–16, and 18–20. Claims 2 and 17 are canceled. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as eBay Inc. Appeal Br. 3. Appeal 2018-007037 Application 13/931,679 2 CLAIMED SUBJECT MATTER The claims are directed to a coopetitive ad auction system and method. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method comprising: initiating an ad auction to determine which of multiple ads wins placement in a first ad slot and second ad slot within a web page, the multiple ads including a first coopetitive ad being sponsored by at least a first advertiser and a second advertiser based on a sale of an item included in the first coopetitive ad benefiting the first and second advertiser and a second coopetitive ad being sponsored by the first advertiser and a third advertiser; receiving a first bid and third bid from the first advertiser, and receiving a second bid from the second advertiser, the receiving the first bid the second bid and the third bid being performed by one or more processors of a machine; determining that the first coopetitive ad wins placement in the first ad slot within the web page based on a sum of the first bid separately submitted by the first advertiser and the second bid separately submitted by the second advertiser being larger than a sum of bids by other advertisers to win the ad slot for a competing ad among the multiple ads; and determining that the second coopetitive ad wins placement in the second ad slot based on at least the third bid from the first advertiser, the determining being performed by the one or more processors of the machine, the third bid being different from the first bid submitted by the first advertiser, the second ad slot including a cooperation between the first advertiser and a third advertiser, the first ad slot including a cooperation between the first advertiser and second advertiser, thereby allowing the first advertiser to cooperate with different advertisers while maintaining competition between different ad slots; and causing the web page to display the first coopetitive ad in the first ad slot and second coopetitive ad in the second ad slot in Appeal 2018-007037 Application 13/931,679 3 response to the determining that the first and second coopetitive ad wins the respective ad slot placements, the presentation being performed by at least the one or more processors of a machine. REJECTIONS Claims 1, 3, 5–16, and 18–202 stand rejected under 35 U.S.C. § 112, first paragraph, as lacking written description support. Final Act. 3–5. Claims 1, 3–16, and 18–20 stand rejected under 35 U.S.C. § 101 because the claimed invention is directed to patent ineligible subject matter. Final Act. 5–8. Claims 1, 3–16, and 18–20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Patwa et al. (US 2011/0288928 A1; published Nov. 24, 2011) (“Patwa”), Goel (US 2014/0365317 A1; published Dec. 11, 2014), Feng et al. (US 8,521,584 B1; issued Aug. 27, 2013) (“Feng”), and Muthukrishnan et al. (US 2010/0198695 A1; published Aug. 5, 2010) (“Muthukrishnan”). Final Act. 8–14. ANALYSIS Rejection of Claims Under 35 U.S.C. § 112, First Paragraph The Examiner found that the following limitations recited in claim 1 lack written description report: a second coopetitive ad being sponsored by the first advertiser and a third advertiser; determining that the second coopetitive ad wins placement in the second ad slot based on at least the third bid from the first advertiser, the determining being performed by the one or more processors of the machine; and 2 In the Answer, the Examiner withdrew the rejection of claim 4 under 35 U.S.C. § 112, first paragraph. Ans. 3–4. Appeal 2018-007037 Application 13/931,679 4 the second ad slot including a cooperation between the first advertiser and a third advertiser. Final Act. 4–5. Appellant contends the Examiner erred because each of the limitations identified by the Examiner is adequately supported by Appellant’s Specification. Appeal Br. 8 (citing Spec. ¶¶ 26, 34, and 97). The test for adequate support is whether the cited sections of the Specification provide sufficient written description to reasonably convey to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date. Vasudevan Software, Inc., v. MicroStrategy, Inc., 782 F.3d 671, 682 (Fed. Cir. 2015) (citing Ariad Pharms., Inc., v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)). According to the Examiner, the paragraphs cited by Appellant merely describe that a single or multiple bidders can make a determination as to the value of multiple or single ads, that a single bidder can make a determination as to the value of multiple ad slots, and that advertisers benefit when their particular ad is shown. Ans. 4–5. In response, Appellant argues that, in the cited paragraphs, to “value” an ad means to bid on an ad. Reply Br. 3. Appellant has persuaded us that the Examiner erred. Paragraph 89 of the Specification, cited by the Examiner, describes “a competing ad” as a “coopetitive ad co-sponsored by a third advertiser and a fourth advertiser” that “wins the second-ranked ad slot.” Spec. ¶ 89. The Examiner finds that paragraph 89 describes that a third and a fourth advertiser can co-sponsor a coopetitive ad “and does not indicate any other combination.” Ans. 5. The Examiner, however, does not explain sufficiently why a description of an ad Appeal 2018-007037 Application 13/931,679 5 co-sponsored by third and fourth advertisers would not have provided sufficient written description to reasonably convey to those skilled in the art that the inventor had possession of an ad co-sponsored by first and third advertisers as of the filing date. For these reasons, on the record before us, we are persuaded the Examiner erred, and we reverse the written description rejection under 35 U.S.C. § 112, first paragraph, of claims 1, 3, 5–16, and 18–20. Rejection of Claims 1, 3–16, and 18–20 Under 35 U.S.C. § 101 Appellant argues the Examiner’s rejection of claim 1 under 35 U.S.C. § 101 as directed to patent-ineligible subject matter is in error. Appeal Br. 12. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues claims 1, 3–16, and 18–20 as a group. Appeal Br. 12. Given our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the § 101 rejection of claims 1, 3–16, and 18–20 based on representative claim 1. Legal Standard “Whether a claim is drawn to patent-eligible subject matter is an issue of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010). The Supreme Court’s two-step framework guides our analysis of patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014). In addition, the Office recently published revised guidance for evaluating subject matter eligibility under 35 U.S.C. § 101, Appeal 2018-007037 Application 13/931,679 6 specifically with respect to applying the Alice framework. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Office 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). Per Office 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. 84 Fed. Reg. at 54. Under the Office Guidance, if the judicial exception is integrated into a practical application, see infra, the claim is patent eligible under § 101. 84 Fed. Reg. at 54–55. 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. Alice, 573 U.S. at 217; 84 Fed. Reg. at 56. If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘“inventive concept”’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221 (citation omitted). Appeal 2018-007037 Application 13/931,679 7 To summarize, under the current Office Guidance, 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); and (2) additional elements that integrate the judicial exception into a practical application (see Manual for Patent Examining Procedure (“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 look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See Office Guidance. Step 1 Claim 1, as a method claim, recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101 (process). Therefore, the issue before us is whether it is directed to a judicial exception without significantly more. Step 2A(i): Does the Claim Recite a Judicial Exception? The Examiner determined that claim 1 is directed to the abstract ideas of a fundamental economic practice, which is a certain method of organizing human activity, and mathematical relationships. Final Act. 7, 15; Ans. 5. 13). The Examiner determined that claim 1 recites initiating an ad auction, in Appeal 2018-007037 Application 13/931,679 8 which a contractual relationship is formed between at least the seller and bidder/buyer, and that auctions have been conducted since ancient times. Ans. 6. Appellant argues that the Examiner erred because Appellant’s claims recite a system for ad placement in slots on a web page that does not involve any a contractual relationship and is not a long-familiar commercial transaction. Appeal Br. 13. Appellant also argues that the claims are not directed to using a mathematical formula for hedging risk, as in Bilski. Appeal Br. 15. Although we agree with Appellant that claim 1 does not recite using a mathematical formula for hedging risk, we are not persuaded that the Examiner erred in determining the claims recite a fundamental economic practice, which is a certain method of organizing human activity, and an abstract idea. “Like hedging financial risk, intermediated settlement, or using advertising as currency, an auction is a ‘fundamental economic practice long prevalent in our system of commerce.’” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 219 (2014). Considering the claim in light of the Specification, we agree with the Examiner’s determination that claim 1 recites an auction in which advertising is distributed to the winning bidder, establishing a business relationship. Ans. 5. We note that this is not dissimilar to the Appellant’s characterization of the claims as being directed to “an ad auction that allows cooperation among advertisers in a single ad while maintaining competition between ads” in a “‘coopetitive’ ad auction.” Abstract. Because we agree with the Examiner that the claim recites an abstract idea, we proceed to Prong Two of Step 2A to determine if the idea is Appeal 2018-007037 Application 13/931,679 9 integrated into a practical application, in which case the claim as a whole would not be “directed to” merely an abstract idea. Step 2A(ii): Judicial Exception Integrated into a Practical Application? Because we determined that claim 1 recites a patent-ineligible concept, we next determine 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. We use the term “additional elements” for claim features, limitations, or steps that the claim recites beyond the identified judicial exception. See Office Guidance at 55 n.24. In claim 1, the additional elements include the limitations “processors of a machine” and “web page.” The Examiner determined that none of the additional limitations is sufficient to amount to significantly more than the judicial exception because the additional computer element “processors of a machine” is simply an attempt to limit the abstract idea to a particular technological environment, namely a computer. Final Act. 7. Appellant argues the Examiner erred because claim 1 is directed to an improvement in computer-related technology. Appeal Br. 15. In particular, Appellant argues that the claims recite “a particular way” to determine the placement of ads in multiple slots on a web page. Id. at 16 (citing McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir. 2016)). Appellant’s argument is not persuasive. Appellant does not identify, and we do not find, where the Specification sets forth an improvement in Appeal 2018-007037 Application 13/931,679 10 technology. Moreover, the subject claim considered by the McRO court concerned a method for automatically animating lip synchronization and facial expressions. McRO, 837 F.3d at 1303. The McRO court concluded the subject claims did not recite an abstract idea because the computer animation improved the prior art through the use of rules, rather than artists, to set morph weights and transitions between phonemes. Id. at 1308. Thus, the claimed invention in McRO allowed for computer performance of animation steps that previously had to be performed by human animators. Id. at 1309. The subject claims in McRO used “limited rules in a process specifically designed to achieve an improved technological result” over “existing, manual 3-D animation techniques.” Id. at 1316 (emphasis added). Here, Appellant’s claimed invention does not apply positively recited rules, per se. The invention under appeal merely adapts to a technological setting (comprising generic processors of a machine) the concept of selecting bids for ad placement, which are displayed on a web page. Thus, we agree with the Examiner that Appellant’s claims merely implement generic computer components to perform the recited functions. The claims do not recite (i) an improvement to the functionality of a computer or other technology or technical field (see MPEP § 2106.05(a)); (ii) a “particular machine” to apply or use the judicial exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP § 2106.05(e)). See 84 Fed. Reg. at 55. Rather, claim 1 recites an abstract ideas as identified in Step 2A(i), supra, and none of the limitations integrates the judicial exception into a practical application. Appeal 2018-007037 Application 13/931,679 11 Because the abstract idea is not integrated into a practical application, we conclude that the claim is directed to the judicial exception. Step 2B — “Inventive Concept” or “Significantly More” If the claims are directed to a patent-ineligible concept, as we conclude above, we proceed to the “inventive concept” step. For Step 2B we must “look with more specificity at what the claim elements add, in order to determine ‘whether they identify an “inventive concept” in the application of the ineligible subject matter’ to which the claim is directed.” Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016) (quoting Elec. Power Grp., 830 F.3d at 1353). We look to see whether there are any “additional features” in the claims that constitute an “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 573 U.S. at 221. Those “additional features” must be more than “well-understood, routine, conventional activity.” Mayo, 566 U.S. at 79. We agree with the Examiner that courts have recognized performing repetitive calculations; receiving, processing, and storing data; electronic recordkeeping; automating mental tasks and receiving or transmitting data over a network (Internet) to be well-understood, routine, and conventional functions when they are claimed in a merely generic manner. See Ans. 7. We also agree that the computer components in claim 1 are recited at a high level of generality and perform the basic functions of a computer. See id. at 8. Appellant argues that, as in Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), an inventive concept arises from the combination of the claim elements and can be found in the Appeal 2018-007037 Application 13/931,679 12 “non-conventional and non-generic arrangement of known, conventional pieces.” Appeal Br. 18. Appellant points to the claim language, but does not explain why the arrangement of claimed elements is non-conventional. See id. In response to Appellants’ reliance upon Bascom, there is no evidence of record to substantiate the assertion that the claims recite non-conventional and non-generic arrangement of known, conventional elements, as in Bascom. Moreover, we find no analogy between Appellant’s claimed auction and the Internet content filtering claims in Bascom. In Bascom, the claims were directed to the inventive concept of providing customizable Internet-content filtering which, under step two of the Alice analysis, was found to transform the abstract idea of filtering content into a patent-eligible invention. Although the underlying idea of filtering Internet content was deemed to be abstract, under step two of the Alice analysis, the claims carved out a specific location for the filtering system, namely a remote Internet service provider (ISP) server, and required the filtering system to give users the ability to customize filtering for their individual network accounts. Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016). Appellant also argues that claim 1 recites a specific implementation that is “significantly more” than the alleged abstract idea. Appeal Br. 18. In support, Appellants cite to Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016). In Amdocs, the court found claim 1 entails an unconventional technological solution (enhancing data in a distributed fashion) to a technological problem (massive record flows which previously required massive databases). The solution requires arguably generic components, Appeal 2018-007037 Application 13/931,679 13 including network devices and “gatherers” which “gather” information. However, the claim's enhancing limitation necessarily requires that these generic components operate in an unconventional manner to achieve an improvement in computer functionality. Id. at 1300–01. In contrast with Amdocs, however, Appellant does not present, nor do we find, a specific technical improvement provided by the claims before us on appeal. We are of the view that Appellant’s claims do not operate the recited generic computer components in an unconventional manner to achieve an improvement in computer functionality. Appellant further argues that the claims “do not foreclose alternative solutions” and “present a specific, unconventional solution that is not known to the prior art.” Appeal Br. 20. We are not persuaded by Appellant’s arguments that the Examiner erred. While preemption may signal patent ineligible subject matter, the absence of complete preemption “does not demonstrate patent eligibility, where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015) (“that the claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract”). Moreover, the novelty of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject Appeal 2018-007037 Application 13/931,679 14 matter of a claim falls within the § 101 categories of possibly patentable subject matter. Diamond v. Diehr, 450 U.S. 175, 188–89 (1981). Our reviewing court further guides that “[e]ligibility and novelty are separate inquiries.” Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017); see also Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1263 (Fed. Cir. 2016) (holding that “[e]ven assuming” that a particular claimed feature was novel does not “avoid the problem of abstractness”). Appellant does not direct our attention to anything in the Specification that indicates the computer components perform anything other than well- understood, routine, and conventional functions, such as receiving data, looking up data in a database, attempting to execute commands, and storing data in a database. 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”); In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 614 (Fed. Cir. 2016) (server that receives data, extracts classification information from the received data, and stores the digital images insufficient to add an inventive concept); Alice, 573 U.S. at 225–26 (receiving, storing, sending information over networks insufficient to add an inventive concept). Because the Specification describes the additional elements in general terms, without describing the particulars, we conclude the claim limitations may be broadly but reasonably construed as reciting conventional computer components and techniques, particularly in light of Appellant’s Appeal 2018-007037 Application 13/931,679 15 Specification. See Berkheimer Memo3 § III.A.1; Spec. ¶¶ 78, 100–12. We conclude claim 1 does not have an inventive concept because the claim, in essence, merely recites various computer-based elements along with no more than mere instructions to implement the identified abstract idea using the computer-based elements. Because the claims fail under both the Step 2A and Step 2B analyses, we sustain the Examiner’s § 101 rejection of independent claim 1 and grouped claims 3–16 and 18–20, not argued separately with particularity. Rejection of Claims Under 35 U.S.C. § 103(a) We have reviewed the § 103(a) rejection of claims 1, 3–16, and 18–20 in light of Appellant’s arguments that the Examiner erred. We have considered only those arguments Appellants actually raised in the Briefs. Any other arguments Appellants could have made, but chose not to make, in the Briefs are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant’s arguments are not persuasive of error. We agree with and adopt as our own the Examiner’s findings of facts and conclusions as set forth in the Answer and in the Action from which this appeal was taken. We provide the following explanation for emphasis. 3 “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)” at 3 (Apr. 19, 2018) (explaining that a specification that describes additional elements “in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can show that the elements are well understood, routine, and conventional). Appeal 2018-007037 Application 13/931,679 16 Appellant contends the Examiner erred because the combination of cited prior art references fails to teach or suggest the combination of features of claim 1 in which a first advertiser submits a first bid for a first coopetitive ad with a second advertiser and a third bid for a second coopetitive ad with a third advertiser in the same ad auction to allow the first advertiser to cooperate with different advertisers while maintaining competition between different ad slots for the ad auction. Appeal Br. 22. Appellant’s arguments are not persuasive because Appellant argues each of Patwa, Goel, Feng, and Muthukrishnan separately. Id. at 23–24. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). In addition, the Examiner concluded that the limitation “including a first coopetitive ad being sponsored by at least a first advertiser and a second advertiser based on a sale of an item included in the first coopetitive ad benefiting the first and second advertiser and a second coopetitive ad being sponsored by the first advertiser and a third advertiser” is nonfunctional descriptive material because it describes characteristics of the multiple ads and “is not used or process to perform any of the recited method steps or functions.” Final Act. 9. Appellant has provided no persuasive argument to Appeal 2018-007037 Application 13/931,679 17 rebut the Examiner’s determination that the cited limitation has no patentable weight, and has waived such argument on appeal. For these reasons, we are not persuaded that the Examiner erred in finding that the combination of Patwa, Goel, Feng, and Muthukrishnan teaches or suggests the disputed limitations of claim 1. Accordingly, we sustain the Examiner’s § 103(a) rejection of independent claim 1, as well as the Examiner’s § 103(a) rejection of claims 3–16 and 18–20, not argued separately with particularity. Appeal Br. 24. CONCLUSION Because we affirm at least one ground of rejection with respect to each claim on appeal, the Examiner’s decision rejecting claims 1, 3–16, and 18–20 is affirmed. See 37 C.F.R. § 41.50(a)(1). SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 3, 5–16, 18– 20 112, first paragraph Written description 1, 3, 5– 16, 18–20 1, 3–16, 18–20 101 Exception 1, 3–16, 18–20 1, 3–16, 18–20 103(a) Patwa, Goel, Feng, and Muthukrishnan 1, 3–16, 18–20 Overall Outcome: 1, 3–16, 18–20 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation