KENSHOO, LTD.Download PDFPatent Trials and Appeals BoardNov 20, 20202020003373 (P.T.A.B. Nov. 20, 2020) 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. 13/633,923 10/03/2012 EREZ SHASHA 07696-P0006A 7376 136531 7590 11/20/2020 The Roy Gross Law Firm, LLC 50 Washington Street Suite 737/745 Norwalk, CT 06854 EXAMINER STROUD, CHRISTOPHER ART UNIT PAPER NUMBER 3688 MAIL DATE DELIVERY MODE 11/20/2020 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte EREZ SHASHA, TAL HASHAI, and NIR COHEN ____________________ Appeal 2020-003373 Application 13/633,923 Technology Center 3600 ____________________ Before JOHN A. EVANS, JUSTIN BUSCH, and JOHN P. PINKERTON, Administrative Patent Judges. PINKERTON, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–20, which are all of the claims pending in the application. 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 KENSHOO LTD. Appeal Br. 3. Appeal 2020-003373 Application 13/633,923 2 STATEMENT OF THE CASE Introduction Appellant’s described and claimed invention relates generally to facilitating the provisioning of location-based advertising for a roving service provider. Spec. 1:17–22.2 Claims 1, 11, and 20 are independent. Claim 1 is representative of the subject matter on appeal and is reproduced below (with paragraph notations added): 1. A method for facilitating the provision of Internet advertising, the method comprising the following automatic steps: (a) receiving, at a server, a notification indicating a provider geographical location of a roving provider of a service, wherein the notification is provided by a GPS (Global Positioning System)-capable device of the roving provider of service; (b) at the server, updating data associated with the roving provider based on the provider geographical location, wherein the data includes one or more provider keywords associated with the roving provider and with the service provided by the roving provider; (c) sending the provider geographical location and the associated data from the server to a computer-based search engine that is configured to provide search results in conjunction with advertisements; 2 Our Decision refers to the Final Office Action mailed May 18, 2017 (“Final Act.”), Appellant’s Appeal Brief filed March 13, 2018 (“Appeal Br.”), the Examiner’s Answer mailed April 19, 2018 (“Ans.”), and the original Specification filed Oct. 3, 2012 (“Spec.”). Appeal 2020-003373 Application 13/633,923 3 (d) at the computer-based search engine, receiving a query initiated by a user and associated with any one of the provider keywords; (e) at the server, receiving a user geographical location of a computer of the user; (f) at the server, matching the user geographical location with the provider geographical location, within a predefined match tolerance; (g) providing to the computer-based search engine, by the server, and based on the matching, an advertisement that is associated with the roving provider, with the query, and with the user geographical location; (h) providing to the user, by the computer-based search engine, the advertisement and search results that are associated with the query; and (i) displaying the advertisement and search results that are associated with the query using the computer of the user. Appeal Br. 21 (Claims App.). Rejections on Appeal Claims 1–20 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Final Act. 2–4. Claims 1, 3–11, and 13–20 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Bruecken (US 2008/0154706 A1; June 26, 2008) and Wang et al. (US 2008/0052413 A1; Feb. 28, 2008) (Wang). Id. at 4–10. Appeal 2020-003373 Application 13/633,923 4 Claims 2 and 12 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Bruecken, Wang, and Hoffman (US 8,639,629 B1; Jan. 28, 2014).3 Id. at 10. ANALYSIS I. SECTION 101 REJECTION A. Examiner’s Findings and Determinations, and Appellant’s Arguments The Examiner determines that claims 1–20 recite the abstract idea of “providing location based advertising for roving service providers” within the mental processes grouping. Final Act. 2–3; Ans. 3–4. According to the Examiner, the claims recite an abstract concept related to the court-identified abstract ideas of “collecting information, analyzing it, and displaying certain results of the collection and analysis,” and “using information known about a user to target communications, such as providing an advertisement to a user based on known demographics of a user.” Final Act. 2–3 (citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Affinity Labs of Texas, LLC v. Amazon.com, Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016)); see also Ans. 3–8. In addition to reciting an abstract idea, the Examiner makes the following determinations about the claims. First, “[t]he claims do not 3 The Final Office Action states that “[c]laims 2 and 12 are rejected under pre-AIA 35 U.S.C. [§] 103(a) as being unpatentable over Bruecken . . . in view of Della Pasqua . . . and in further view of Hoffman.” Final Act. 10. The body of the rejection, however, does not cite or otherwise mention Della Pasqua, but instead relies only on Bruecken, Wang, and Hoffman. See Final Act. 10. Accordingly, we consider claims 2 and 12 to stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Bruecken, Wang, and Hoffman. We treat this irregularity in the record to be a clerical or typographical error. Appeal 2020-003373 Application 13/633,923 5 include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as a combination do not amount to significantly more than the abstract idea.” Final Act. 3. Second, “[t]he claims recite the additional elements of a server, GPS device, computer (hosting the search engine), user computer, data storage device, and non- transitory computer readable storage medium” which “are recited at a high level of generality and only perform generic functions of transmitting and receiving data in the receiving, sending, providing, and displaying steps and automating mental tasks in the updating and matching steps.” Id. at 3–4. Third, “the combination of elements does not provide any improvement to a computer or to another technology.” Id. at 4. Rather, the Examiner determines that “the current claims do not focus on an improvement to computers as tools but on abstract ideas that use computers as tools.” Ans. 4; see also id. at 7. Fourth, “Applicant’s claimed invention is performing the claimed concepts precisely as a human would perform them without a computer, except the claimed invention is applying these concepts to a computer environment. . . . using generic computers and performing the steps using generic computer functions” without “any special or particular way the computer is performing these steps or utilizing a special or unique technology or technique to do so.” Final Act. 12. Fifth, “[t]he ability to advertise for roving service providers is not internet centric, rather applicant has chosen to provide advertising in a particular technological environment,” so “none of the technology used in the claims constitutes ‘significantly more.’” Id. at 11. The Examiner finds that “Appellant has not articulated a problem or technical solution in their specification or claims that is unique to Appeal 2020-003373 Application 13/633,923 6 roving service providers on the internet but does not apply to roving service providers outside of the internet.” Ans. 8. Sixth, “[t]he dependent claims do not add significantly more as they also perform generic computing activity such as transmitting and receiving data over a network, receiving, processing, and storing data, and automating mental tasks.” Final Act. 4. Appellant contends the Examiner erred by rejecting claims 1–20 under 35 U.S.C. § 101 because (1) the Examiner incorrectly analogized claims 1–20 to claims deemed patent-ineligible by the courts, including the claims in Electric Power Group and Affinity Labs (Appeal Br. 8–10); (2) the Examiner erroneously compared the claims to the concept of food or ice cream truck advertising without providing a detailed analysis showing similarity—which there is not—of each claim feature to that concept (id. at 10–11); and (3) Appellant’s claims are comparable to claims deemed patent-eligible by the courts (id. at 11–13). In support of its contentions, Appellant makes the following assertions. First, “the claims are directed to a specific technical solution for overcoming technical interfacing problems between roving providers and search engines that provide advertisements to users, and are not directed to an abstract idea.” Appeal Br. 9. Second, “the additional element of a server, separate to the search engine, that converts in a non-conventional manner the geographical location of the roving provider to bid parameters that are interfaced to the API of the search engine is significantly more than any potential abstract idea.” Id. at 9–10 (emphasis omitted). Third, “[a]s in DDR,[4] the claims recite technical elements that are rooted in computer 4 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Appeal 2020-003373 Application 13/633,923 7 technology and solve the technical problem of converting an advertiser’s roving location (such as a GPS sensor measurement) to bid parameters that are interfaced with an advertising platform the advertiser wishes.” Id. at 11.5 Fourth, “the nonconventional functionality of the converting server allows automatic conversion of the roving provider’s geographical locations to keywords and bid parameters that are acceptable by the advertising platform for stationary providers, thus allowing the roving provider to mimic the advertising of a stationary provider.” Id. at 11–12. Fifth, “[a]s in Enfish,[6] the claims recite technical elements that provide improvement to computer functionality using a dedicated server for the conversion and interfacing, thus allowing a roving provider to advertise based on their location using an internet advertisement platform” Id. at 11. And sixth, “[t]he claims recite steps that are highly-specific to how the computer technology problem is solved, in an interplay between a service provider’s GPS-capable device, a user’s computer, a computer-based search engine, and a server that orchestrates the majority of the actions.” Id. at 13.7 5 See also Appeal Br. 12–13 (“[T]he internet-specific advertising technique recited in the claims ‘is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks’ – the problem of advertising dynamically-located service providers to users located nearby, over a computer network.”). 6 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336–37 (Fed. Cir. 2016). 7 See also Appeal Br. 13 (“[T]he Examiner completely disregarded the additional element of a dedicated server that converts the geographical location of the roving provider to advertising platform bid parameters, and automatically in real-time updates the bid parameters on the advertising platform.”). Appeal 2020-003373 Application 13/633,923 8 B. Applicable Law “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 Com’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010). Section 101 of the Patent Act provides that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is patent eligible. 35 U.S.C. § 101. The Supreme Court, however, has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas are not patentable.” 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)). To determine whether a claim falls within one of these excluded categories, the Court has set out a two-part framework. The framework requires us first to consider whether the claim is “directed to one of those patent-ineligible concepts.” Id. at 217. If so, we then examine “the elements of [the] claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)). That is, we examine the claim for an “inventive concept,” “an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–73). Appeal 2020-003373 Application 13/633,923 9 In January 2019, the Patent Office issued guidance about this framework.8 Under the Revised Guidance, to decide whether a claim is directed to an abstract idea, we evaluate whether the claim (1) recites one of the abstract ideas listed in the Revised Guidance (“Prong One”) and (2) fails to integrate the recited abstract idea into a practical application (“Prong Two”). See Revised Guidance, 84 Fed. Reg. at 51, 54. If the claim is directed to an abstract idea, as noted above, we then determine whether the claim has an inventive concept. The Revised Guidance explains that when making this determination, we should consider whether the additional claim elements add “a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field” or “simply append[] well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality.” Id. at 56. With these principles in mind, we first analyze whether claim 1 is directed to an abstract idea.9 C. Abstract Idea 1. USPTO Step 2A, Prong One Beginning with Step 2A, Prong One, of the Revised Guidance,10 we determine “whether the claims at issue are directed to one of those 8 USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84(4) Fed. Reg. 50–57 (Jan. 7, 2019) (“Revised Guidance”); see also USPTO, October 2019 Patent Eligibility Guidance Update (Oct. 17, 2019) (“Oct. 2019 Update”), https://www.uspto.gov/sites/default/files/ documents/peg_oct_2019_update.pdf. 9 Appellant argues claims 1–20 as a group focusing on claim 1. See Appeal Br. 8–13. Thus, our analysis focuses on representative claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). 10 The Guidance refers to “Step One” as determining whether the claimed subject matter falls within the four statutory categories identified by 35 Appeal 2020-003373 Application 13/633,923 10 patent-ineligible concepts,” including the abstract ideas enumerated in the Revised Guidance. Alice, 573 U.S. at 217. 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, when recited as such in a claim limitation(s) (that is, when recited on their own or per se): (a) Mathematical concepts—mathematical relationships, mathematical formulas or equations, mathematical calculations; (b) 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 or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and (c) Mental processes—concepts performed in the human mind (including an observation, evaluation, judgment, opinion). Revised Guidance, 84 Fed. Reg. at 52. For our Prong One analysis, we set aside, for consideration below, the technological elements recited in claim 1: “Internet,” “automatic,” “a (computer) server,” “GPS (Global Positioning System)-capable device,” “a computer-based search engine configured to provide search results in conjunction with advertisements,” and “a computer of the user.”11 Thus, claim 1 recites the following steps: U.S.C. § 101: process, machine, manufacture, or composition of matter. This step is not at issue in this appeal. 11 Other technological elements recited in the claims include “a data storage device” (claim 11), “a non-transitory computer-readable storage medium” (claim 20), and “a web page” (claims 7 and 16). Appeal Br. 22–23, 24–25 (Claims App.). Appeal 2020-003373 Application 13/633,923 11 [a] method for facilitating the provision of . . . advertising, the method comprising the following . . . steps: (a) receiving . . . a notification indicating a provider geographical location of a roving provider of a service, wherein the notification is provided by . . . the roving provider of service; (b) . . . updating data associated with the roving provider based on the provider geographical location, wherein the data includes one or more provider keywords associated with the roving provider and with the service provided by the roving provider; (c) sending the provider geographical location and the associated data . . . ; . . . (d) receiving a query initiated by a user and associated with any one of the provider keywords; (e) . . . receiving a user geographical location . . . of the user; (f) . . . matching the user geographical location with the provider geographical location, within a predefined match tolerance; (g) providing . . . , . . . based on the matching, an advertisement that is associated with the roving provider, with the query, and with the user geographical location; (h) providing to the user . . . the advertisement and search results that are associated with the query; and (i) displaying the advertisement and search results that are associated with the query.” “Receiving” steps (a), (d), and (e), “sending” step (c), “providing” steps (g) and (h), and “displaying” step (i) are common examples of inconsequential, data gathering steps the courts have determined insufficient to render an otherwise ineligible claim patent-eligible. See MPEP § 2106.05(g); Revised Guidance, 84 Fed. Reg. at 55 n.31; see also Bancorp Servs, L.L.C. v. Sun Life Assur. Co. of Can., 771 F. Supp. 2d 1054, 1066 (E.D. Mo. 2011), aff’d, 687 F.3d at 1266 (explaining that “storing, retrieving, and providing data . . . are inconsequential data gathering and insignificant post solution activity”). “Updating” step (b) and “matching” step (f) are evaluation, analysis, or judgment steps that may be performed in the human mind or with pen and paper. Appeal 2020-003373 Application 13/633,923 12 Claim 1’s steps (a)–(i) recite a concept relating to advertising— tailoring advertising content based on the location of the user and service provider—which is a standard business analytics practice and an abstract idea in the certain methods of organizing human activity grouping. See Revised Guidance, 84 Fed. Reg. at 52. This is consistent with the Examiner’s characterization of claim 1 as reciting the abstract concept of “providing location based advertising for roving service providers.” Final Act. 2; see also Ans. 6 (“[T]he current claims use[] location of a user to provide advertising to the user. The entire premise of appellant’s invention is to provide a user with relevant advertising of local service providers.”). As the Examiner determines, these steps recite a concept related to the court-identified abstract idea of “providing an advertisement to a user based on known demographics of a user.” Id. at 2–3 (citing Affinity Labs, 838 F.3d at 1271); accord Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (“tailoring . . . content based on information about the user—such as where the user lives . . . is an abstract idea . . . as old as providing different newspaper inserts for different neighborhoods”). We also agree with the Examiner that steps (a)–(i) of claim 1 recite a concept related to the court-identified abstract idea of “collecting information, analyzing it, and displaying certain results of the collection and analysis.” Id. at 2–3 (citing Elec. Power Grp., 830 F.3d at 1353). In particular, the “receiving” steps (a), (d), and (e) are “collecting information” about an advertisement, “updating” step (b) and “matching” step (f) are “analyzing the collected information” by matching the location of the user with that of the service provider, and “providing” steps (g) and (h), as well Appeal 2020-003373 Application 13/633,923 13 as “displaying” step (i), which provide and display a location-based advertisement to the user, are akin to “displaying certain results of the collection and analysis.” See id. at 3. But for the recitation of generic technological components, these steps of claim 1 describe a concept that can be performed practically in the human mind or with pen and paper. See id. Thus, claim 1’s steps (a)–(i) also recite an abstract idea in the mental processes grouping. See Revised Guidance at 52, 52 n.14 (“If a claim, under its broadest reasonable interpretation, covers performance in the mind but for the recitation of generic computer components, then it is still in the mental processes category unless the claim cannot practically be performed in the mind.”). To the extent claim 1 recites more than one abstract idea, we note that merely combining several abstract ideas does not render the combination any less abstract. RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea . . . to another abstract idea . . . does not render the claim non-abstract.”); see also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir. 2016) (determining the pending claims were directed to a combination of abstract ideas). In view of the foregoing, Appellant’s arguments for Step 2A, Prong One, are not persuasive. Appellant’s arguments also fall short for the following reasons. First, Appellant asserts the claims are directed to a specific technical solution (Appeal Br. 9), but Appellant does not identify any persuasive evidence in the claims or Specification that supports this assertion. See Ans. 4. Rather, the Specification focuses on the abstract idea of facilitating the provision of advertising (e.g., Spec. 1:6-22), and, as discussed in greater Appeal 2020-003373 Application 13/633,923 14 detail below, the claims recite no more than generic technological elements as tools for accomplishing the recited abstract idea. Second, the mere fact that there may be differences between the Examiner’s food/ice cream truck example and claim 1 is not evidence of Examiner error, nor does it show that the claims do not recite an abstract idea. Rather, as the Examiner explains, this example was provided merely to show that the problem addressed by Appellant’s claims is not rooted in or exclusive to computer technology. Ans. 6–7. Moreover, the relevant inquiry here is whether the claim recites an abstract idea in one or more of the identified groupings. See Revised Guidance, 84 Fed. Reg. at 51–53. And as discussed above, we determine that claim 1 recites abstract ideas in the “certain methods of organizing human activity” and “mental processes” groupings. Third, Appellant asserts that claim 1 differs from the claimed subject matter in Affinity Labs. Appeal Br. 10. But the relevant portion of Affinity Labs is comparing an abstract idea identified in an earlier case—Intellectual Ventures I—to the claims at issue in Affinity Labs. Affinity Labs, 838 F.3d at 1271 (describing what “[t]he court in the Intellectual Ventures I case explained”). That abstract idea—“tailoring of content based on information about the user—such as where the user lives”—is very similar to the abstract concept recited in claim 1, regardless of what the Affinity Labs claims specifically recite. Moreover, determining that a claim recites an abstract idea does not require the claim to be identical to a court-identified abstract idea. Fourth, we are not persuaded by Appellant’s argument that the Examiner’s comparison of claim 1 to the claims in Electric Power Grp. is Appeal 2020-003373 Application 13/633,923 15 “factually wrong.” Appeal Br. 9 (emphasis omitted). That the abstract idea identified in Electric Power Grp.—“collecting information, analyzing it, and displaying certain results of the collection and analysis”— applies to a wide range of inventions does not exclude it from being applied to Appellant’s claimed invention. We therefore determine that claim 1 recites an abstract idea. 2. USPTO Step 2A, Prong Two Because we determine that claim 1 recites an abstract idea, we turn to Prong Two of the Step 2A step of the Alice analysis and consider whether claim 1 integrates this abstract idea into a practical application. See Revised Guidance, 84 Fed. Reg. at 51. In doing so, we consider whether there are any additional elements beyond the abstract idea that, individually or in combination, “integrate the [abstract idea] into a practical application, using one or more of the considerations laid out by the Supreme Court and the Federal Circuit.”12 Revised Guidance, 84 Fed. Reg. at 54–55. Appellant’s arguments for Step 2A, Prong Two, are not persuasive. As an initial matter, we agree with the Examiner that the claims do not constitute an improvement to computing technology or any other technological field. See, e.g., Ans. 4. Rather, the Specification describes Appellant’s invention as “facilitating the provision of advertising” by “receiving a notification indicating a location of a roving provider of a service, and updating data associated with the roving provider based on the 12 We acknowledge that some of these considerations may be properly evaluated under Step 2 of Alice (Step 2B of the Revised Guidance). Solely for purposes of maintaining consistent treatment within the Office, we evaluate it under Step 1 of Alice (Step 2A, Prong Two, of the Revised Guidance). See Revised Guidance, 84 Fed. Reg. at 54–55. Appeal 2020-003373 Application 13/633,923 16 location of the roving provider.” Spec. 1:17–20. This disclosure suggests that the purported advance lies in the underlying methodology, not in any particular technology. We acknowledge that the Specification also describes embodiments that incorporate technological components. For example, the Specification describes the use of computer servers and a GPS mobile- enabled telephone to track a plumber’s or taxi driver’s location and provide location-based advertising. Id. at 9:15–10:6. But Appellants do not identify any persuasive evidence, either in the claim language or the Specification, that these technological components are an improvement over existing technology, or that they are being used in a unique or unconventional way beyond their ordinary purpose. In other words, the examples are focused not on an improvement to computers or software itself, but on the use of computers and software as tools to execute the judicial exception. See, e.g., Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017); Elec. Power Grp., 830 F.3d at 1354. It may be true that the claimed technological elements achieve results more quickly and accurately than traditional location-based advertising methods that rely on local advertising (via newspaper, yellow pages, radio, or television) and interactions with customers (via landline telephone, door-to-door canvassing, or mail surveys). But, “relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible.” OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015). Accordingly, contrary to Appellant’s assertions, the mere fact that the server operates “in real-time and automatically” does not show that the claim is “directed to a technological solution rooted in the internet and computer technologies.” Appeal Br. 10. Appeal 2020-003373 Application 13/633,923 17 We also disagree with Appellant’s characterization of the claims as analogous to the patent-eligible claims in DDR and Enfish. The Federal Circuit has held certain claims that recite a technological solution to a technological problem specifically arising in the realm of computing or Internet technology to be patent eligible. See, e.g., DDR, 773 F.3d at 1257– 58; Enfish, 822 F.3d at 1336–37. For example, the patent-eligible claim at issue in DDR Holdings recited limitations for providing a composite web page based on a link activation occurring at a remote computer, thereby addressing “a challenge particular to the Internet.” DDR, 773 F.3d at 1257– 58. The claim in Enfish employed a self-referential database table that was an improvement to database technology. See Enfish, 822 F.3d at 1336–37. By contrast, claim 1 simply recites the use of computing elements at a broad, generic level as tools for facilitating the provision of location-based advertising, without any improvement to computing or software functionality itself. Moreover, the features Appellant argues provide a technological improvement—an unconventional server that converts an advertiser’s roving location (such as a GPS sensor measurement) to bid parameters interfaced to the API of the search engine—are not recited in the claims, nor are they disclosed the Specification. See Ans. 5; Appeal Br. 9– 13. Although claim 1 recites specific steps (for example, the use of provider keywords), these pertain to the recited abstract idea, not any additional technological element. Narrowing the recited abstract idea or limiting it to a particular field of use in this way does not change our overall understanding of the claims and, thus, does not render the claims non-abstract. See Revised Guidance, 84 Fed. Reg. at 55, id. n.32; see also, Appeal 2020-003373 Application 13/633,923 18 e.g., Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (determining that even though “some of the eleven steps were not previously employed in this art,” that was “not enough—standing alone—to confer patent eligibility upon the claims at issue.”). Likewise, the claim’s use of computing elements over the Internet merely links the recited abstract idea to a known technological environment. See Revised Guidance, 84 Fed. Reg. at 55 n.32. Nor is the fact that data is being operated on and manipulated in a particular way evidence of a technological advance. Rather, this merely reflects the manipulation or reorganization of data, which fails to transform an otherwise patent-ineligible concept into an eligible one. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011). In sum, claim 1 does not recite a technological improvement to computing, software, communications, or any other technology. Rather, “it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources [Appellant] claims to have invented, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1169–70 (Fed. Cir. 2018).13 Indeed, the Specification describes the invention as requiring no more than general-purpose computing elements for performing generic computing 13 See also Revised Guidance, 84 Fed. Reg. at 55 (explaining that courts have identified “merely us[ing] a computer as a tool to perform an abstract idea” as an example of when a judicial exception may not have been integrated into a practical application); Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter.”). Appeal 2020-003373 Application 13/633,923 19 functions. See, e.g., Spec. 4:11–6:16 (describing possible hardware and software components in broad, generic terms), 6:17–8:27 (describing computer servers, computer user, web page, and GPS-capable device, in no more than generic terms), Fig. 1. Nor does Appellant identify any persuasive evidence that claim 1 requires any specialized computer hardware or other inventive technological components, such as a particular machine, for performing the claimed invention. Accordingly, consistent with the Examiner’s findings (see Final Act. 3–4; Ans. 5–8), and in view of Appellant’s disclosure (see, e.g., Spec. 4:11– 8:27, Fig. 1), we determine that claim 1 does not integrate the judicial exception into a practical application, and thus is directed to the judicial exception itself. In particular, we determine claim 1 does not recite: (i) an improvement to the functioning of a computer; (ii) an improvement to another technology or technical field; (iii) an application of the abstract idea with, or by use of, a particular machine; (iv) a transformation or reduction of a particular article to a different state or thing; or (v) other meaningful limitations beyond generally linking the use of the abstract idea to a particular technological environment. See MPEP § 2106.05(a)–(c), (e)–(h). 3. USPTO Step 2B — Inventive Concept Finally, we consider whether claim 1 has an inventive concept, that is, whether any additional claim elements “‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78, 79). This requires us to evaluate whether the additional claim elements add “a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field” or Appeal 2020-003373 Application 13/633,923 20 “simply append[] well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality.” Revised Guidance, 84 Fed. Reg. at 56. The Examiner finds: The claims merely outline an abstract idea which uses well-understood, routine, and conventional computing elements with no recitations of technical features which are used to accomplish this. Use of GPS enabled devices to provide location information, using a server to update location information, and providing this information to a search engine for inclusion in online advertising provide no technical improvements to technology, but rather use well-understood, routine, and conventional computing to implement the abstract idea. Ans. 4 (citing Spec. 1).14 The Examiner also finds: Looking at the elements as a combination does not add anything more than the elements analyzed individually as the combination of elements does not provide any improvement to a computer or to another technology. The claims collect location data via a GPS device, use this data to update location information, and provide location and keyword information to a search engine in well- understood routine and conventional manner. Similarly, using a search engine to target advertising based on a match between the user’s location and keywords and a vendor’s location and keywords is also well-understood, routine, and conventional. Final Act. 4. The Examiner’s findings are amply supported by the Specification, which indisputably shows the additional elements of claim 1 were well-understood, routine, and conventional activities at the time of filing 14 See also Ans. 5 (“Using a server to perform operations automatically and in real-time is well-understood, routine, and conventional use of a server and happens across the internet constantly and has since the advent of online advertising.”); id. at 6–8. Appeal 2020-003373 Application 13/633,923 21 because they are described in a general manner without additional details that would distinguish them from conventional components. See, e.g., Spec. 4:11–8:27, Fig. 1). And, as discussed above, we have determined that claim 1 does not recite a technological improvement to computers, computer components, software, or communications. In view of the foregoing, considering claim 1 as a whole, we determine that the additional claim elements do not provide “a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field.” Revised Guidance, 84 Fed. Reg. at 56. Rather, these elements do no more than “simply append[] well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality.” Id. Accordingly, we determine that claim 1 does not have an inventive concept. Conclusion For the reasons stated above, we sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 101. For those same reasons, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of independent claims 11 and 20, which recite similar limitations and were not argued separately with particularity. We likewise sustain the Examiner’s rejection under 35 U.S.C. § 101 of dependent claims 2–10 and 12–19, which merely narrow the recited abstract idea and were not argued separately with particularity. See Final Act. 4. II. REJECTIONS UNDER 35 U.S.C. § 103(a) A. Claims 1, 3–11, and 13–20 Appellant argues Examiner error because Bruecken and Wang, alone or in combination, fail to disclose or suggest “using a non-conventional Appeal 2020-003373 Application 13/633,923 22 server for converting the vendor real-time geographical data to bid parameters, and interfacing the bid parameters to the search engine API automatically in real time.” Appeal Br. 16; see also id. at 14–16. In particular, Appellant asserts that Bruecken “does not operate when a user performs a regular Internet search” and that it “does not teach [] using a separate server to receive geographical location data from a roving provider, converting the geographical location data to bid parameters, and interfacing to search engine API to update the bid parameters to the search engine.” Id. at 14. Appellant further asserts that “throughout Bruecken, the inventory is only used to determine if the vendor can provide the appropriate services to the client, and nowhere in Bruecken is disclosed a conversion, as on a server, between a geographical location and bid parameters for sending vendor information to the client.” Id. Appellant also asserts that “Wang is silent regarding collecting a vendor’s location using a GPS-enabled device, and is further silent regarding using a server for converting the vendor real- time geographical data to bid parameters, and interfacing the bid parameters to the search engine API automatically in real time.” Id. at 15. We are not persuaded of error because Appellant’s arguments are not commensurate with the scope of the claim. Claim 1 recites, in relevant part receiving, at a server, a notification indicating a provider geographical location of a roving provider of a service, wherein the notification is provided by a GPS (Global Positioning System)-capable device of the roving provider of service; at the server, updating data associated with the roving provider based at the server, updating data associated with the roving provider based on the provider geographical location, wherein the data includes one or more provider keywords associated with the roving provider and with the service provided by the roving provider; and Appeal 2020-003373 Application 13/633,923 23 sending the provider geographical location and the associated data from the server to a computer-based search engine that is configured to provide search results in conjunction with advertisements. The Examiner finds Bruecken in combination with Wang teaches or suggests these claim elements. Final Act. 5–7. In particular, the Examiner finds Bruecken teaches using GPS to determine the geographic location of a vendor’s vehicle or base of operations, and a host server that periodically receives updates on the vendor’s location and also determines the location of a client or potential customer. Id. at 5 (citing Bruecken ¶¶ 5, 53, 55–57, Fig. 4). The Examiner finds Wang teaches an advertising system that performs a location-based search for advertisements in which a “user submits a query for content and receives content and advertising based on a match between the user[’]s location and query to the location and keywords of the advertisements.” Id. at 7 (citing Wang ¶¶ 19–24). The Examiner reasons that “[i]t would have been obvious . . . to modify the teachings of Bruecken to include search results and advertisements relevant to a query and location of the user as taught by Wang in order to provide a user with locally relevant advertisements.” Id. (citing Wang ¶¶ 1–8). The Examiner reasons further that “since each element of the combination performs the same functions individually as they do in the combination[,] one of ordinary skill in the art would find the combination to yield predictable results.” Id. Contrary to Appellant’s contentions, however, claim 1 does not recite or require “converting the geographical location data to bid parameters” or “interfacing to search engine API to update the bid Appeal 2020-003373 Application 13/633,923 24 parameters to the search engine.”15 Nor does the Specification describe these features. Instead, the Specification describes that advertising data may include bid policy information, and that [r]oving provider data 106 may be updated to include any of the following based on the different locations of roving provider 102: - one or more keywords associated with the location of roving provider 102, such as a city name and/or a street address associated with the location, - one or more keywords associated with roving provider 102 and/or the service provided by roving provider 102, - advertising and/or advertising components, such as wording or associated hypertext links as described hereinbelow, - bid information associated with any of the above, where any of the above are provided by computer server 100 to computer server 108, by computer server 108 itself, or both. . . . where computer server 108 is a search engine. Spec. 7:16–30. The Specification also describes changing bid information associated with advertising in order to promote certain advertising. Id. at 9:10–13. While these disclosures appear to adequately describe what is recited by the claim language, they do not cover the features argued by Appellant. Moreover, the Examiner’s findings and rationale described above are reasonable. And Appellant does not point out, with particularity, why the 15 Dependent claim 2 further limits claim 1 by reciting that “the updating step comprises updating . . . (b) a bid information associated with the advertisement,” but it too does not recite or require the features argued by Appellant. Appeal 2020-003373 Application 13/633,923 25 asserted combination of prior art does not teach or suggest the actual claim language. We therefore sustain the Examiner’s § 103(a) rejection of independent claim 1, as well as the § 103(a) rejection of independent claims 11 and 20, which recite substantially similar limitations and were not argued separately with particularity. We also sustain the Examiner’s rejection of dependent claims 3–10 and 13–19, which were not argued separately with particularity. B. Claims 2 and 12 Dependent claim 2 recites “[t]he method according to claim 1, wherein the updating step comprises updating (a) the associated data to include a keyword associated with the provider geographical location and (b) a bid information associated with the advertisement.” Appeal Br. 21 (Claims App.). Claim 12, which depends from independent claim 11, recites similar elements. Id. at 24 (Claims App.). Appellant argues Examiner error because the proposed prior art combination fails to disclose or suggest these claim elements. Appeal Br. 19; see also id. at 16–19. In particular, Appellant asserts that “Hoffman teaches that the retailer can manually update bidding parameters, including ‘the geographic location of a purchase,’ which is completely different from the element[s] recited in claims 2 and 12.” Appeal Br. 19. We are not persuaded of error. As an initial matter, Appellant does not explain why the cited portions of Hoffman are “completely different” from the claim language at issue. In other words, Appellant’s argument does not specifically identify and explain how the claim language at issue is patentably distinguishable from the cited disclosures of the prior art references. For this reason alone, we are not persuaded of Examiner error Appeal 2020-003373 Application 13/633,923 26 because the argument amounts to a general allegation that the claims define a patentable invention. See 37 C.F.R. § 41.37(c)(1)(vii) (noting that an argument that merely points out what a claim recites is unpersuasive); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Moreover, the Examiner’s findings and rationale for the additional elements of claims 2 and 12 are reasonable. See Final Act. 10 (citing Hoffman 123:9–28). In particular, Hoffman’s disclosure that “a keyword associated with a user’s purchase may be the subject of such bids, said keyword comprising: . . . the geographic location of a purchase” teaches or at least suggests “updating (a) the associated data to include a keyword associated with the provider geographical location.” Id. (citing Hoffman 123:13–16). And Hoffman’s disclosure that “[w]hen a User purchases a product on which an Account Issuer has the highest bid, the Account Issuer can issue an electronic or printed coupon, make an adjustment to Financial Data in a User’s rewards/loyalty Financial Account 65, or influence the Ranking 96 of a Financial Account 65” teaches or at least suggests “updating . . . (b) a bid information associated with the advertisement.” Id. (citing Hoffmann 123:18–24). We therefore sustain the Examiner’s § 103(a) rejection of dependent claims 2 and 12. III. CONCLUSION We affirm the Examiner’s rejection of claims 1–20 under 35 U.S.C. § 101. Appeal 2020-003373 Application 13/633,923 27 We affirm the Examiner’s rejections of claims 1–20 under pre-AIA 35 U.S.C. § 103(a). SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 101 Eligibility 1–20 1, 3–11, 13–20 103(a) Bruecken, Wang 1, 3–11, 13–20 2, 12 103(a) Bruecken, Wang, Hoffman 2, 12 Overall Outcome 1–20 TIME PERIOD FOR RESPONSE No 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 Copy with citationCopy as parenthetical citation