LVMH RECHERCHE et al.

Patent Trials and Appeals Board

Oct 12, 2021

2021001392 (P.T.A.B. Oct. 12, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/512,152 10/10/2014 Jean-Marc R. SIEFFERMANN 20010.0173USU1 4343
52835 7590 10/12/2021
HAMRE, SCHUMANN, MUELLER & LARSON, P.C.
45 South Seventh Street
Suite 2700
Minneapolis, MN 55402-1683
EXAMINER
DAGNEW, SABA
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
10/12/2021 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):
PTOMail@hsml.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEAN-MARC R. SIEFFERMANN, NATHALIE WANTZ,
DAVID BLUMENTHAL, ELEONORE LOESCHER,
and GERMAINE GAZANO
____________

Appeal 2021-001392
Application 14/512,152
Technology Center 3600
____________

Before HUBERT C. LORIN, NINA L. MEDLOCK, and
BRUCE T. WIEDER Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 25–30. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED INVENTION
The Specification states, “[t]he present invention provides a new
consumer test and use thereof as a forecasting tool, as a marketing tool, or as
a means of establishing loyalty” (Spec. 1:3–4).
Claim 25, reproduced below, is the sole independent claim and
representative of the claimed subject matter:
25. A computer-implemented method for evaluating a
product in a set of at least two samples of products, wherein the
set of at least two samples of products is selected from cosmetic
beauty and makeup products and perfumery products, the
method comprising:
a) providing a user with a first one of the samples in
the set of at least two samples of products selected from cosmetic
beauty and makeup products and perfumery products, for the
user to evaluate the first one of the samples in the set of at least
two samples of products, without advising the user of a total
number of samples in the set of at least two samples of products;

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed August 31, 2020) and Reply Brief (“Reply Br.,” filed December 7,
2020), the Examiner’s Answer (“Ans.,” mailed October 22, 2020) and Non-
Final Office Action (“Non-Final Act.,” mailed December 31, 2019).
Appellant identifies LVMH RECHERCHE of Saint Jean de Braye, France,
INSTITUT DES SCIENCES ET INDUSTRIES DU VIV ANT ET DE
L'ENVIRONNEMENT of Paris, France, and INSTITUT NATIONAL DE
RECHERCHE AGRONOMIQUE of Paris, France as the real parties in
interest (Appeal Br. 2).
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b) electronically displaying, to the user, by computer,
a choice to choose, after evaluation of the first one of the samples
in the set of at least two samples of products, between (1) testing
a second one of the samples in the set of at least two samples of
products that has not yet been tested and (2) receiving a reward
directly related to the product of the first one of the samples,
wherein the computer displays the choice to choose for a current
sample from the set of at least two samples of products and
prevents the user from choosing (2) for any samples from the set
of at least two samples of products for which the user previously
chose (1);
c) receiving by computer the user’s choice between (1)
and (2) of step b);
d) when the user has chosen (1) in step b), providing
the user with the second one of the samples from the set of at
least two samples or products for the user to evaluate the second
one of the samples from the set of at least two samples of
products and repeating steps b) and c); and
e) when the user has chosen (2) in step b), providing
the user with the reward and terminating the method after
providing the user with the reward.
REJECTION
Claims 25–30 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
ANALYSIS
Under 35 U.S.C. § 101, “[w]hoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor.” 35 U.S.C.
§ 101. The Supreme Court, however, has long interpreted § 101 to include
an implicit exception: “[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).
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The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., 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).
The U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance on January 7, 2019, for use by USPTO personnel in
evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED
PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7,
2019) (the “2019 Revised Guidance”).2 That guidance revised the USPTO’s
examination procedure with respect to the first step of the Mayo/Alice
framework by (1) “[p]roviding groupings of subject matter that [are]

2 The MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) incorporates
the revised guidance and subsequent updates at Section 2106 (9th ed.
Rev. 10.2019, rev. June 2020).
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considered an abstract idea”; and (2) clarifying that a claim is not “directed
to” a judicial exception if the judicial exception is integrated into a practical
application of that exception. Id. at 50.
The first step, as set forth in the 2019 Revised Guidance (i.e.,
Step 2A), is, thus, a two-prong test. In Step 2A, Prong One, we look to
whether the claim recites a judicial exception, e.g., one of the following
three groupings of abstract ideas: (1) mathematical concepts; (2) certain
methods of organizing human activity, e.g., fundamental economic
principles or practices, commercial or legal interactions; and (3) mental
processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next
determine, in Step 2A, Prong Two, whether the claim as a whole integrates
the recited judicial exception into a practical application, i.e., whether the
additional elements recited in the claim beyond the judicial exception, apply,
rely on, or use the judicial exception in a manner that imposes a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the judicial exception. Id. at 54–55. Only if
the claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea. Id.
If the claim is determined to be directed to a judicial exception under
revised Step 2A, we next evaluate the additional elements, individually and
in combination, in Step 2B, to determine whether they provide an inventive
concept, i.e., whether the additional elements or combination of elements
amounts to significantly more than the judicial exception itself; only then, is
the claim patent eligible. 2019 Revised Guidance, 84 Fed. Reg. at 56.
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Here, in rejecting the pending claims under 35 U.S.C. § 101, the
Examiner determined that the claims recite rewarding a user for evaluating a
sampled product (Final Act. 3; see also Ans. 4), and that the claims, thus,
fall within the “Certain Methods of Organizing Human Activity” and/or the
“Mental Processes” category of abstract ideas (Non-Final Act. 2–3). The
Examiner also determined that the additional elements recited in the claims
do not integrate the recited abstract idea into a practical application (id.
at 3–4), and that the additional elements are not sufficient to amount to
significantly more than the abstract idea itself (id. at 4–5).
Independent Claim 25
Step One of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2A)
We are not persuaded by Appellant’s argument that the Examiner
erred in determining that claim 25 is directed to an abstract idea (Appeal
Br. 6–9). The Federal Circuit has explained that “the ‘directed to’ inquiry
applies a stage-one filter to claims, considered in light of the specification,
based on whether ‘their character as a whole is directed to excluded subject
matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir.
2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d
1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a
specific improvement in relevant technology or on a process that itself
qualifies as an “abstract idea” for which computers are invoked merely as a
tool. See id. at 1335–36. Here, it is clear from the Specification (including
the claim language) that claim 25 focuses on an abstract idea, and not on an
improvement to technology and/or a technical field.
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The Specification is titled “Method for determining a consumer’s
satisfaction for a product,” and discloses that “[i]n a conventional consumer
test, a person is asked to trial a number of products one after another in a
certain order, and to evaluate the product[s] by giving each . . . a score . . .
which conveys his level of appreciation for a particular criterion,” i.e., “a
constituent characteristic of the product (taste, texture, flavor or fragrances,
appearance) or of its primary or secondary packaging” (Spec. 1:34–2:1).
Thus, according to the Specification, “[a] conventional test is generally
performed on a preselected panel in sequential monadic mode: each
participant tests a first product, evaluates it using the evaluation grid he is
provided, then tests a second product, but without a direct, conscious
comparison with the products tested previously” (id. at 2:1–5). The
Specification describes that it is possible to carry out studies aimed at
driving the choice of the evaluator, by asking him to compare a panel of
products in pairs, so as to give the choice a hierarchy, depending on the
frequency of selection (id. at 2:6–8). But the Specification explains that this
method can be time-consuming in that all samples or all pairings of samples
must be evaluated by the evaluator; “[t]here may also be a limit in this case
owing to the number of samples for study, if the evaluator is unable to carry
. . . the test [through] to the end” (id. at 2:8–14).
The claimed invention is ostensibly intended to improve on these prior
methods; thus, “[i]n the method of the invention, the consumer tests the
products one after another, as in a prior-art test. However, after having
trialed a product, he is required . . . to make a choice: either the product is
sufficiently satisfactory, and the test is over, with the consumer not trying
any other products, or else the product is not satisfactory at all, and he goes
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on to the next product” (Spec. 2:36–3:3). The Specification describes that
this method is original in that (1) “the consumer can never go back, even if,
eventually, he decides, after having tried the next product, that he prefers the
previous product; (2) the consumer “does not necessarily test all of the
products before making his choice and stopping the test”; and (3) the
consumer is “rewarded for his choice by a reward directly related to the
product he has selected” (id. at 3:3–7).
Consistent with this disclosure, claim 25 recites a method for
evaluating a product in a set of at least two samples of products, wherein the
set of at least two samples of products is selected from cosmetic beauty and
makeup products and perfumery products, the method comprising:
(1) providing a user with a first one of the samples in the set of at least two
samples of products, i.e.,
providing a user with a first one of the samples in the set
of at least two samples of products selected from cosmetic beauty
and makeup products and perfumery products, for the user to
evaluate the first one of the samples in the set of at least two
samples of products, without advising the user of a total number
of samples in the set of at least two samples of products
(step a)); (2) giving the user the choice to test a second sample from the set
of samples not yet tested, or to receive a reward directly relating to the
sample of the product he has previously tested, i.e.,
electronically displaying, to the user, by computer, a
choice to choose, after evaluation of the first one of the samples
in the set of at least two samples of products, between (1) testing
a second one of the samples in the set of at least two samples of
products that has not yet been tested and (2) receiving a reward
directly related to the product of the first one of the samples,
wherein the computer displays the choice to choose for a current
sample from the set of at least two samples of products and
prevents the user from choosing (2) for any samples from the set
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of at least two samples of products for which the user previously
chose (1)
(step b)); (3) receiving the user’s choice and either providing the user with a
second sample for evaluation and repeating the previous method steps or
providing the user with the reward and terminating the method, i.e.,
receiving by computer the user’s choice between (1) and
(2) of step b);
when the user has chosen (1) in step b), providing the user
with the second one of the samples from the set of at least two
samples or products for the user to evaluate the second one of the
samples from the set of at least two samples of products and
repeating steps b) and c); and
when the user has chosen (2) in step b), providing the user
with the reward and terminating the method after providing the
user with the reward
(steps c), d), and e)).
Appellant does not dispute, “for purposes of this appeal only,” the
Examiner’s determination that “claim 25 recites limitations related to the
exception for methods of organizing human activity” (Appeal Br. 6). But,
Appellant asserts that the Examiner’s analysis is “rife with
mischaracterizations of the claimed subject matter that are carried through to
the treatment of other aspects of the Inquiry” (id.).
In particular, Appellant argues that “[t]he rejection’s analysis of
[Step 2A,] Prong 2 is based on a misunderstanding of the relevant principles
and . . . mischaracterizes the features of claim 25” (Appeal Br. 7). And
Appellant charges that “the present rejection’s analysis focuse[s] on the
presence of additional elements, which the rejection characterized as merely
the general use of a computer and general displaying”; “improperly takes no
account of the specific order of, specific defined nature of, and specified
interaction among the steps recited in claim 25” or “the specification’s
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discussion . . . of how these aspects of . . . claim 25 contribute to a method
that measures satisfaction of a product in a manner that more closely
approaches a consumer’s real-life experiences”; and “further
mischaracterizes the invention of claim 25” (id. at 8). Appellant, thus,
maintains that the method of claim 25 does not merely provide the user with
a set of products to compare, merely provide a general offer of compensation
to induce users to participate in the evaluation, or merely ask the user to
identify the most preferred product of the sample set (id.). Instead,
according to Appellant, “in the method of claim 25, the user is provided with
products one at a time and is not aware of the extent of products that might
be available when the sample is provided for evaluation”; “rewards directly
related to the evaluated sample are offered, and a particular reward is offered
only when a particular sample is evaluated”; and “the method of claim 25
requires the user to determine whether the experience with a particular
sample is beneficial enough to forgo the opportunity to evaluate other
members of the set, and on a one-time basis since the method of claim 25
does not permit the user to return to a sample once the user has proceeded to
evaluate other samples” (id. at 8–9).
Citing hypothetical claim 1 of Example 40 of the USPTO’s “Subject
Matter Eligibility Examples: Abstract Ideas” (“Eligibility Examples”),3
Appellant asserts that “[a]ny judicial exception reflected in claim 25 is
integrated into a highly practical application that approaches sample testing
in a unique way and falls well-within the bounds of patent eligibility defined
in the January 7, 2019 Patent Eligibility Guidelines” (Appeal Br. 9). Yet, we

3 Available at https://www.uspto.gov/sites/default/files/documents/
101_examples_37to42_20190107.pdf.
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can find no parallel between hypothetical claim 1 in Example 40 and
claim 25 here at issue.
The USPTO describes in the “Background” section of Example 40
that network visibility tools enable close monitoring of computer network
traffic, applications, performance, and resources, and that the data acquired
through these network visibility tools are useful in optimizing network
performance, resolving network issues, and improving network security.
Eligibility Examples 10. One industry standard network visibility protocol
is NetFlow. Id.
In a typical setup, a NetFlow exporter generates and exports network
traffic statistics (in the form of NetFlow records) to at least one NetFlow
collector that analyzes the statistics. Eligibility Examples 10. However,
because NetFlow records are large, the continual generation and export of
NetFlow records substantially increases the traffic volume on the network,
which hinders network performance. Id. The hypothetical applicant’s
invention addresses this issue by varying the amount of network data
collected based on monitored events in the network. The system, thus,
collects NetFlow protocol data and exports a NetFlow record only when an
abnormal network condition is detected. Id.
Applying the 2019 Revised Guidance, the Office determines that
hypothetical claim 1 recites a mental process and, therefore, an abstract idea,
i.e., that, other than the nominal recitation of a generic network appliance,
nothing precludes the step of “comparing . . . at least one of the collected
traffic data to a predefined threshold” from practically being performed in
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the mind.4 Eligibility Examples 11. Nonetheless, the Office determines that
claim 1 is patent eligible because it integrates the recited abstract idea into a
practical application, i.e.,
the method limits collection of additional Netflow protocol data
to when the initially collected data reflects an abnormal
condition, which avoids excess traffic volume on the network
and hindrance of network performance. The collected data can
then be used to analyze the cause of the abnormal condition. This
provides a specific improvement over prior systems, resulting in
improved network monitoring.
Id. (emphasis added).
Appellant asserts here that “[c]laim 25 similarly reflects a particular
improvement in evaluating samples through the specific sequence and
manner in which samples and information are presented to the user and the
options that are presented” (Appeal Br. 9). Yet, although Appellant
ostensibly suggests otherwise, the USPTO did not conclude that hypothetical
claim 1 in Example 40 is patent eligible based on the level of detail of the
claim recitations (id. (asserting that “[t]he steps in the method of claim 25

4 Claim 1 of Example 40 recites:
A method for adaptive monitoring of traffic data through a network
appliance connected between computing devices in a network, the method
comprising:
collecting, by the network appliance, traffic data relating to the network
traffic passing through the network appliance, the traffic data comprising at
least one of network delay, packet loss, or jitter;
comparing, by the network appliance, at least one of the collected traffic
data to a predefined threshold; and
collecting additional traffic data relating to the network traffic when the
collected traffic data is greater than the predefined threshold, the additional
traffic data comprising Netflow protocol data.
Eligibility Examples 10.
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are at higher levels of detail than claim 1 of Example 40 and claim 1 of
Example 42, both of which are considered to represent a practical
application of a judicial exception)). Instead, the Office concluded that
hypothetical claim 1 is patent eligible because the combination of additional
elements integrates the judicial exception (i.e., the mental process of
comparing collected traffic data to a predetermined threshold) into a
practical application — improved network monitoring. Appellant has not
demonstrated that pending claim 25 provides a comparable technological
improvement.5
We conclude, for the reasons outlined above, that claim 25 recites a
method of organizing human activity, i.e., an abstract idea, and that the
additional element recited in the claim beyond the abstract idea is no more
than a generic computer component used as a tool to perform the recited
abstract idea. As such, it does not integrate the abstract idea into a practical
application. See Alice Corp., 573 U.S. at 223–24 (“[W]holly generic
computer implementation is not generally the sort of ‘additional featur[e]’
that provides any ‘practical assurance that the process is more than a drafting
effort designed to monopolize the [abstract idea] itself.’” (quoting Mayo,
566 U.S. at 77)). Accordingly, we agree with the Examiner that claim 25 is
directed to an abstract idea.

5 Like claim 1 of Example 40, hypothetical claim 1 of Example 42, which
Appellant also references, was found patent eligible because it provides a
technological improvement, i.e., by enabling remote users to share
information in real time in a standardized format regardless of the format in
which the information was originally input (see Eligibility Examples 18–19),
hypothetical claim 1 addresses technological difficulties, not present here,
related to, inter alia, incompatible computer formats and disparate
geographic locations (see id. at 17).
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Step Two of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 25 is directed to an abstract idea, we next consider under Step 2B of
the 2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 1 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether an additional element or
combination of elements adds specific limitations beyond the judicial
exception that are not “well-understood, routine, conventional activity” in
the field (which is indicative that an inventive concept is present) or simply
appends well-understood, routine, conventional activities previously known
to the industry to the judicial exception. 2019 Revised Guidance,
84 Fed. Reg. at 56.
Citing BASCOM Global Internet Services, Inc. v. AT&T Mobility
LLC, 827 F.3d 1341 (Fed. Cir. 2016), Appellant notes that an inventive
concept can be found in the non-conventional and non-generic arrangement
of known, conventional pieces (Appeal Br. 10). But, Appellant does not
identify any non-conventional, non-generic arrangement of elements in
which an inventive concept allegedly can be found. Nor does Appellant
otherwise explain how the holding in BASCOM impacts the patent eligibility
of claim 25.
Appellant also misapprehends the controlling precedent to the extent
Appellant maintains that claim 25 is patent eligible because it presents no
risk of preemption (Appeal Br. 10). Although the Supreme Court has
described “the concern that drives [the exclusion of abstract ideas from
patent-eligible subject matter] as one of pre-emption,” Alice Corp., 573 U.S.
at 216, characterizing preemption as a driving concern for patent eligibility
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is not the same as characterizing preemption as the sole test for patent
eligibility. “The Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to patentability” and “[f]or
this reason, questions on preemption are inherent in and resolved by the
§ 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice Corp., 573 U.S. at 216). “[P]reemption
may signal patent ineligible subject matter, [but] the absence of complete
preemption does not demonstrate patent eligibility.” Id.
Responding to the Examiner’s Answer, Appellant charges in the
Reply Brief that “[t]he Examiner has nowhere established that anything like
the combination of steps in claim 25 is a well-established and customary
commercial practice” (Reply Br. 2). But, that argument is not persuasive at
least because the relevant inquiry is not whether the claimed invention as a
whole supplies an inventive concept. See, e.g., BSG Tech LLC v.
BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“[T]he relevant
inquiry is not whether the claimed invention as a whole is unconventional or
non-routine.”). Instead, the question under step two of the Mayo/Alice
framework (i.e., step 2B) is whether the claim includes additional elements,
i.e., elements other than the abstract idea itself, that “‘transform the nature of
the claim’ into a patent-eligible application.” Alice Corp., 573 U.S. at 217
(quoting Mayo, 566 U.S. at 79, 78). See also Mayo, 566 U.S. at 72–73
(requiring that “a process that focuses upon the use of a natural law also
contain other elements or a combination of elements, sometimes referred to
as an ‘inventive concept,’ sufficient to ensure that the patent in practice
amounts to significantly more than a patent upon the natural law itself”
(citation omitted) (emphasis added)).
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The Examiner determined here, and we agree, that the only additional
element recited in claim 25, beyond the abstract idea, is “a computer,” i.e., a
generic component (Non-Final Act. 3; see also Spec. 11:2–3). Appellant
cannot reasonably maintain that there is insufficient factual support for the
Examiner’s determination that this element is well-understood, routine, or
conventional, where, as here, there is nothing in the Specification to indicate
that the operations recited in claim 25 require any specialized hardware or
inventive computer components or that the claimed invention is
implemented using other than a generic computer component to perform
generic computer functions, e.g., receiving, processing, and displaying
information. Indeed, the Federal Circuit, in accordance with Alice, has
“repeatedly recognized the absence of a genuine dispute as to eligibility”
where claims have been defended as involving an inventive concept based
“merely on the idea of using existing computers or the Internet to carry out
conventional processes, with no alteration of computer functionality.”
Berkheimer v. HP Inc., 890 F.3d 1369, 1373 (Fed. Cir. 2018) (Moore, J.,
concurring) (internal citations omitted); see also BSG Tech, 899 F.3d at 1291
(“BSG Tech does not argue that other, non-abstract features of the claimed
inventions, alone or in combination, are not well-understood, routine and
conventional database structures and activities. Accordingly, the district
court did not err in determining that the asserted claims lack an inventive
concept.”).
We are not persuaded on the present record that the Examiner erred in
rejecting claim 25 under 35 U.S.C. § 101. Therefore, we sustain the
Examiner’s rejection. We also sustain the Examiner’s rejection of
dependent claims 26 and 27, which are not argued separately.
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Dependent Claims 28–30
Appellant describes the features of each of dependent claims 28–30,
and argues that “each of claims 28–30 provides additional basis for patent
eligibility” (Appeal Br. 10–11). But, aside from summarily asserting that
“[e]ach of these dependent claims provide[s] features that further refine the
method of claim 25 and further highlight the nature of the claimed invention
as an application of any judicial exception present rather than an
appropriation of the judicial exception” and that “[e]ach of these claims also
adds features contributing to the presence of something ‘significantly more’
than the exception” (id.), Appellant offers no substantive argument or
reasoning to support this position.
We are not persuaded on the present record that the Examiner erred in
rejecting claims 28–30 under 35 U.S.C. § 101. Therefore, we sustain the
Examiner’s rejection.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
25–30 101 Eligibility 25–30
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