MasterCard International Incorporated

Patent Trials and Appeals Board

Apr 30, 2021

2020003891 (P.T.A.B. Apr. 30, 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.
14/304,536 06/13/2014 Amit Gupta 21652-00362 6429
75564 7590 04/30/2021
DANIEL M. FITZGERALD (21652)
ARMSTRONG TEASDALE LLP
7700 Forsyth Boulevard
Suite 1800
St. Louis, MO 63105
EXAMINER
WEBB III, JAMES L
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
04/30/2021 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):
USpatents@armstrongteasdale.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte AMIT GUPTA, SUNEEL BHATT, and
PRAKASH BHATT
___________

Appeal 2020-003891
Application 14/304,536
Technology Center 3600
____________

Before BRADLEY W. BAUMEISTER, ERIC B. CHEN, and
MICHAEL J. ENGLE, Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–26. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to a computer-implemented method for
recommending a merchant to a consumer. (Abstract.)
Claim 1, reproduced below with bracketing added and disputed
limitations in italics, is illustrative of the claimed subject matter:
1. A computer-implemented method for
recommending a merchant to a particular consumer upon
request, the method implemented by a merchant evaluation
computer system in communication with a memory and a
payment card processing network, the method comprising:
[i] receiving, at the merchant evaluation computer
system, payment card transaction data from a payment
processing network server configured to process payment card
transactions over the payment card processing network using a
set of proprietary communication standards for the exchange of
financial transaction data and the settlement of funds between
financial institutions that are members of the payment card
processing network, the payment card transaction data being
associated with a plurality of consumer purchases from a
plurality of merchants using payment cards, each of the
payment cards associated with one of a plurality of cardholder
accounts;

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Mastercard International Incorporated. (Appeal Br. 1.)
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[ii] receiving, at the merchant evaluation computer
system, review data from consumers including qualitative
language-based merchant assessments and quantitative
merchant assessments of respective consumer experiences with
at least one of the plurality of merchants;
[iii] normalizing the payment card transaction data for
each respective one of the plurality of merchants by
determining, from the payment card transaction data, a total
amount spent at the respective merchant in a time period, a
total number of transactions at the respective merchant in a
time period, and a total number of the cardholder accounts
making transactions with the respective merchant in a time
period;
[iv] normalizing the review data from consumers by
converting the qualitative language-based merchant
assessments to corresponding quantitative merchant ratings
and rescaling the quantitative merchant assessments to
facilitate a comparison of the review data from consumers for
each respective one of the plurality of merchants on a
comparable scale;
[v] generating integrated consumption data comprising,
for each respective one of the plurality of merchants, a
corresponding quantitative value derived from a weighted
average of the normalized payment card transaction data and
the normalized review data from consumers;
[vi] receiving a request from the particular consumer, via
a cardholder device, for a merchant recommendation in a
location specified by the particular consumer who is otherwise
unfamiliar with local merchants in the location specified;
[vii] determining, at the merchant evaluation computer
system and in response to the received request from the
particular consumer, a preferred merchant ranking of a plurality
of local merchants in the location specified by comparing the
quantitative value of the integrated consumption data generated
for each of the plurality of local merchants in the location
specified; and
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[viii] providing to the particular consumer, by the
merchant evaluation computer system and via the cardholder
device, a ranked preferred local merchant list including the
plurality of local merchants in the location specified.

REFERENCES
Name Reference Date
Stiegler US 5,774,121 June 30, 1998
Falk et al. US 2001/0037206 A1 Nov. 1, 2001
Wanker US 2008/0071638 A1 Mar. 20, 2008
Rajagopal US 2012/0005218 A1 Jan. 5, 2012
Faro et al. US 2012/0296724 A1 Nov. 22, 2012
Olives et al. US 2013/0275186 A1 Oct. 17, 2013
Pavlov et al. US 2014/0164380 A1 June 12, 2014

REJECTIONS
Claims 1–26 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.
Claims 1–3, 5–11, 13–18, 20, 21, and 23 stand rejected under
35 U.S.C. § 103 as being unpatentable over Faro, Olives, Pavlov, Stiegler,
and Wanker.
Claims 4, 12, 19, 22, 24, and 25 stand rejected under 35 U.S.C. § 103
as being unpatentable over Faro, Olives, Pavlov, Stiegler, Wanker, and Falk.
Claim 26 stands rejected under 35 U.S.C. § 103 as being unpatentable
over 35 U.S.C. § 103 as being unpatentable over Faro, Olives, Pavlov,
Stiegler, Wanker, and Rajagopal.

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OPINION
§ 101 Rejection
We are unpersuaded by Appellant’s arguments (Appeal Br. 9–15; see
also Reply Br. 2–4) that independent claims 1, 9, and 17 are directed to
patent-eligible subject matter under 35 U.S.C. § 101.
The Examiner determined that independent claims 1, 9, and 17
“cover[] a method of organizing human activity,” in particular, “advertising,
marketing or sales activities or behaviors (providing recommendations based
on calculations)” and “business relations (providing recommendations based
on calculations and the calculations for the recommendations).” (Final
Act. 8.) In addition, regarding the additional elements, the Examiner cited to
paragraphs 19–22 of Appellant’s Specification and determined that “other
than reciting ‘computer system, memory, and network; computer system,
network, processor, and memory; and non-transitory computer-readable
storage media, processor, and network,’ the limitations are no more than
mere instructions to apply the exception using a generic computer and/or
computer component.” (Id.; see also Ans. 12.) We agree with the
Examiner’s determinations and ultimate conclusion that the claims are
directed to patent-ineligible subject matter.
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
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In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to
the concept of intermediated settlement, i.e., the use of a third party to
mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611
(2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept
of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “a claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
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products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment.”
Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace
that an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
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). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing]
generic computer implementation[] fail[s] to transform that abstract idea into
a patent-eligible invention.” Id.
The PTO published revised guidance on the application of § 101.
USPTO, 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84
Fed. Reg. 50 (Jan. 7, 2019); see also USPTO, October 2019 Update: Subject
Matter Eligibility, 84 Fed. Reg. 55942 (Oct. 18, 2019). Under that 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
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(2) additional elements that integrate the judicial exception into
a practical application.
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
are 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 MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. 2019).

Are the claims at issue directed
to a patent-ineligible concept?
PTO Step One
Claim 1 is a method claim, which falls within the “process” category
of 35 U.S.C. § 101. Likewise, claim 9 is a system claim and claim 17 is a
computer-readable storage media claim, which fall within the “manufacture”
category under 35 U.S.C. § 101. Therefore, claims 1, 9, and 17 fall within
one of the four statutory categories of patentable subject matter identified by
35 U.S.C. § 101.
Although claims 1, 9, and 17 fall within the statutory categories, we
must still determine whether the claims are directed to a judicial exception,
namely an abstract idea. See Alice, 573 U.S. at 216. Thus, we must
determine whether the claims recite a judicial exception and whether the
exception is integrated into a practical application. See 84 Fed. Reg. at 52–
55. If a claim recites a judicial exception without integrating the judicial
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exception into a practical application, the claim is directed to a judicial
exception under the first step of the Alice/Mayo test. See id.
PTO Step 2A, Prong One
Independent claim 1 is a method claim, which includes the following
steps: “[i] receiving . . . payment card transaction data . . . the payment card
transaction data being associated with a plurality of consumer purchases
from a plurality of merchants using payment cards, each of the payment
cards associated with one of a plurality of cardholder accounts,” “[ii]
receiving . . . review data from consumers including qualitative language-
based merchant assessments and quantitative merchant assessments of
respective consumer experiences with at least one of the plurality of
merchants,” “[iii] normalizing the payment card transaction data for each
respective one of the plurality of merchants by determining, . . . a total
amount spent at the respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a total number
of the cardholder accounts making transactions with the respective merchant
in a time period,” “[iv] normalizing the review data from consumers by
converting the qualitative language-based merchant assessments to
corresponding quantitative merchant ratings and rescaling the quantitative
merchant assessments,” “[v] generating integrated consumption data
comprising, for each respective one of the plurality of merchants, a
corresponding quantitative value derived from a weighted average of the
normalized payment card transaction data and the normalized review data
from consumers,” “[vi] receiving a request from the particular consumer, via
a cardholder device, for a merchant recommendation in a location specified
by the particular consumer who is otherwise unfamiliar with local merchants
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in the location specified,” “[vii] determining . . . in response to the received
request from the particular consumer, a preferred merchant ranking of a
plurality of local merchants in the location specified by comparing the
quantitative value of the integrated consumption data generated for each of
the plurality of local merchants in the location specified,” and
“[viii] providing to the particular consumer . . . a ranked preferred local
merchant list including the plurality of local merchants in the location
specified.”
Such method steps of claim 1 are directed to a patent-ineligible
abstract idea of certain methods of organizing human activity, for example,
the fundamental economic practice of marketing and advertising, by
gathering recommendations for businesses, analyzing the recommendations,
and distributing the recommendations to potential consumers. See, e.g.,
Alice, 573 U.S. at 219–20 (a “fundamental economic practice” is an abstract
idea). Moreover, as further evidence that the claims are directed to a
fundamental economic practice, in the “Background of the Disclosure”
section, Appellant’s Specification states the following:
In at least some examples, a consumer may wish to make
purchasing decisions. Specifically, the consumer may be
interested in identifying preferred merchants from whom they
make purchases of goods and services. In some examples, the
consumer identifies such preferred merchants based on prior
knowledge, recommendations from others, and research. . . .
For example, the non-local consumer may be interested in
identifying a preferred vendor for shopping, dining,
entertainment, lodging, or any other goods or services. In such
examples, the ability of the non-local consumer to identify
preferred merchants may be decreased because the non-local
consumer has comparatively little prior knowledge regarding
preferred merchants.
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(Spec. ¶ 2 (emphases added).)
Alternatively, such method steps of claim 1 are directed to a patent-
ineligible abstract idea of mental processes, such as gathering
recommendations for businesses, analyzing such recommendations, and
distributing such recommendations to potential consumers. See, e.g., Elec.
Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)
(“The advance they purport to make is a process of gathering and analyzing
information of a specified content, then displaying the results, and not any
particular assertedly inventive technology for performing those functions.”).
Accordingly, claim 1 recites a judicial exception. Claims 9 and 17
recite limitations similar to those discussed with respect to claim 1. Thus,
claims 9 and 17 also recite a judicial exception.

PTO Step 2A, Prong Two
Because claims 1, 9, and 17 recite a judicial exception, we next
determine if the claims recite additional elements that integrate the judicial
exception into a practical application.
The preamble of independent claim 1 recites “[a] computer-
implemented method . . . implemented by a merchant evaluation computer
system in communication with a memory and a payment card processing
network” (emphases added). Claim 1 further recites “[i] receiving, at the
merchant evaluation computer system, payment card transaction data from a
payment processing network server configured to process payment card
transactions over the payment card processing network,” “[ii] receiving, at
the merchant evaluation computer system, review data from consumers
including qualitative language-based merchant assessments and quantitative
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merchant assessments of respective consumer experiences with at least one
of the plurality of merchants,” “[vi] receiving a request from the particular
consumer, via a cardholder device, for a merchant recommendation in a
location specified by the particular consumer who is otherwise unfamiliar
with local merchants in the location specified,” “[vii] determining, at the
merchant evaluation computer system and in response to the received request
from the particular consumer, a preferred merchant ranking of a plurality of
local merchants in the location specified,” and “[viii] providing to the
particular consumer, by the merchant evaluation computer system and via
the cardholder device, a ranked preferred local merchant list including the
plurality of local merchants in the location specified.”
The recited computer hardware components, including “computer
system,” “memory,” “network,” “server,” and “device,” are merely tools for
performing the abstract idea. See Affinity Labs of Tex., LLC v. DirecTV,
LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“[T]he 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.”).
Accordingly, claim 1 does not recite additional elements that integrate
the judicial exception into a practical application. Claims 9 and 17 recite
limitations similar to those discussed with respect to claim 1. Thus, claims 9
and 17 do not recite additional elements that integrate the judicial exception
into a practical application.

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Is there something else in the claims
that ensures that they are directed to significantly
more than a patent ineligible concept?
PTO Step 2B
Because claims 1, 9, and 17 are directed to a judicial exception, we
next determine, according to Alice, whether these claims recite an element,
or combination of elements, that ensure that the claim is directed to
significantly more than the judicial exception.
Independent claim 1 recites “computer system,” “memory,”
“network,” “server,” and “device.” Moreover, claims 9 and 17 further recite
a “processor” and “storage media.”
With respect to the claimed additional elements, Appellant’s
Specification discloses the following:
Described herein are computer systems such as merchant
evaluation computer systems and consumer computer systems.
As described herein, all such computer systems include a
processor and a memory.
(Spec. ¶ 19 (emphasis added).)
As used herein, a processor may include any
programmable system including systems using micro-
controllers, reduced instruction set circuits (RISC), application
specific integrated circuits (ASICs), logic circuits, and any
other circuit or processor capable of executing the functions
described herein. The above examples are example only, and
are thus not intended to limit in any way the definition and/or
meaning of the term “processor.”
(Id. ¶ 20 (emphases added).)
As used herein, the terms “software” and “firmware” are
interchangeable, and include any computer program stored in
memory for execution by a processor, including RAM memory,
ROM memory, EPROM memory, EEPROM memory, and non-
volatile RAM (NVRAM) memory. The above memory types are
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example only, and are thus not limiting as to the types of
memory usable for storage of a computer program.
(Id. ¶ 24 (emphases added).)
Using an interchange network 28, computers of merchant
bank 26 or merchant processor will communicate with
computers of an issuer bank 30 to determine whether
cardholder’s 22 account 32 is in good standing and whether the
purchase is covered by cardholder’s 22 available credit line.
Based on these determinations, the request for authorization
will be declined or accepted. If the request is accepted, an
authorization code is issued to merchant 24.
(Id. ¶ 61 (emphasis added).)
FIG. 3 is an expanded block diagram of an example
embodiment of a computer server system architecture of a
processing system 122 used to recommend merchants to
consumers in accordance with one embodiment of the present
disclosure. . . . Merchant evaluation computer system 112
further includes database server 116, a transaction server 124,
a web server 126, a user authentication server 128, a directory
server 130, and a mail server 132. A storage device 134 is
coupled to database server 116 and directory server 130.
Servers 116, 124, 126, 128, 130, and 132 are coupled in a local
area network (LAN) 136.
(Id. ¶ 71 (emphasis added).)
In the example embodiment consumer 670 sends a
merchant recommendation request 680 to merchant evaluation
computer system 112 by using a computing device such as
client system 114 to interact with merchant evaluation service
640.
(Id. ¶ 109 (emphasis added).)
As used herein, the term “non-transitory computer-
readable media” is intended to be representative of any tangible
computer-based device implemented in any method or
technology for short-term and long-term storage of information,
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such as, computer-readable instructions, data structures,
program modules and sub-modules, or other data in any device.
(Id. ¶ 125.)
The generalized functional terms by which the additional elements are
described reasonably indicate that Appellant’s Specification discloses: (i) a
conventional “computer system” (Spec. ¶ 19); (ii) a conventional
“processor” (e.g., micro-controllers, RISC, ASICs, or logic circuits (id.
¶ 20)); (iii) conventional “networks” (e.g., interchange network 28 between
merchant bank 26 and issuer bank 30 (id. ¶ 61)); (iv) a conventional “server”
(e.g., database server 116, transaction server 124, web server 126, user
authentication server 128, directory server 130, or mail server 132 (id.
¶ 71)); (v) a conventional “device” (e.g., computing device or client system
114 (id. ¶ 109)); and (vi) conventional “storage media” (e.g., any tangible
computer-based device for short-term and long-term storage of information
(id. ¶ 125)).
Moreover, Appellant’s Figure 2 illustrates system 100, which includes
merchant evaluation computer system 112 in communication with client
systems 114 and payment network 28 via network 115. Accordingly,
Appellant’s Figure 2 discloses that merchant evaluation computer system
112, client systems 114, and payment network 28, function cooperatively as
an ordered combination.
Thus, independent claims 1, 9, and 17 do no more than require
generic, purely conventional computer elements, as an ordered combination,
performing generic computer functions, rather than improve computer
capabilities.
Appellant’s arguments to the contrary are not persuasive. First,
Appellant argues that “the claim limitations occur at most tangentially to, or
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in ultimate support of, a commercial interaction, but no initiation or
completion of a commercial interaction itself is recited in the claim.”
(Appeal Br. 9 (emphasis omitted).) In particular, Appellant argues that
“while the claim steps are part of a process that ultimately involves
recommending a merchant to a consumer, the steps that would establish an
actual interaction between a cardholder and merchant are not recited.” (Id.;
see also Reply Br. 2–3.) However, the Examiner has identified the
appropriate judicial exception as “certain methods of organizing human
activity,” rather than a commercial interaction, as argued by Appellant.
Alternatively, as discussed previously, another appropriate judicial exception
is “mental processes.”
Second, Appellant argues that “the final recitation of providing the
ranked preferred local merchant list to the requesting consumer does not . . .
recite the abstract idea of ‘advertising’ or ‘marketing,’” but “[i]nstead, it
recites providing a specific, narrowly defined data structure that reconciles
incompatible types of data into a useful single ranking variable, as
developed in the preceding seven steps.” (Appeal Br. 10.) Similarly,
Appellant argues the following:
Appellant’s disclosure describes a specific problem associated
with prior art technology. In particular, as described in
Appellant’s specification, prior art systems were unable to
identify, for a non-local consumer, a preferred vendor for
shopping, dining, entertainment, lodging, or any other goods or
services by simultaneously considering quantitative consumer
reviews (e.g., four of five stars), qualitative consumer reviews
(e.g., textual comments), and revealed preferences (e.g., relative
amounts of actual money spent by consumers at each vendor) in
any sort of logical or repeatable fashion.
(Appeal Br. 11 (emphasis omitted); see also Reply Br. 3–4.)
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However, Appellant has not adequately explained why the claim
“purport[s] to improve the functioning of the computer itself” or “any other
technology or technical field.” Alice, 573 U.S. at 225. In particular,
Appellant has not explained why reconciling qualitative and quantitative
data regarding recommendations, which is related to marketing and
advertising, or alternatively, mental processes, improves the function of a
computer or other technology.
Last, Appellant argues that “at a minimum, the Section 101 rejection
must be withdrawn under Berkheimer because the Office Action presents no
evidence that it was well-understood, routine, or conventional to perform the
steps.” (Appeal Br. 15 (citing Berkheimer v. HP Inc., 881 F.3d 1360,
1367–69 (Fed. Cir. 2018)).) In particular, Appellant argues that
[i]n the instant application, the pending claims clearly recite
more than well-understood, routine, or conventional activities at
least with respect to combining the revealed preferences in
payment card transaction data with self-reported preferences
from review data (input in widely varying formats) to provide a
single ranking variable that can be used to generate a
recommendation list for a consumer.
(Id. at 14.)
However, Appellant is apparently conflating part one of the Alice test,
the identification of an abstract idea, with part two of the Alice test, which
includes consideration of an element or combination of elements to
determine if the claim recites “additional features.” Pursuant to Berkheimer,
the Examiner cited to paragraphs 19–22 of Appellant’s Specification in
support of a finding that the additional elements were “well-understood,
routine, and conventional.” (Final Act. 8.) As discussed previously,
Appellant has not explained why reconciling qualitative and quantitative
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data regarding recommendations, which is related to marketing and
advertising, or alternatively, mental processes, improves the function of a
computer or other technology.
Thus, we agree with the Examiner that claims 1, 9, and 17 are directed
towards patent-ineligible subject matter without significantly more.
Accordingly, we sustain the rejection of independent claims 1, 9,
and 17 under 35 U.S.C. § 101. Claims 2–8, 10–16, and 18–26 depend from
claims 1, 9, and 17, and Appellant has not presented any additional
substantive arguments with respect to these claims. Therefore, we sustain
the rejection of claims 2–8, 10–16, and 18–26 under 35 U.S.C. § 101, for the
same reasons discussed with respect to independent claims 1, 9, and 17.

§ 103 Rejection—Faro, Olives, Pavlov, Stiegler, and Wanker
First, we are unpersuaded by Appellant’s arguments (Appeal Br. 16;
see also Reply Br. 8) that the combination of Faro, Olives, Pavlov, Stiegler,
and Wanker would not have rendered obvious independent claim 1, which
includes the limitation “normalizing the payment card transaction data for
each respective one of the plurality of merchants by determining, from the
payment card transaction data, a total amount spent at the respective
merchant in a time period, a total number of transactions at the respective
merchant in a time period, and a total number of the cardholder accounts
making transactions with the respective merchant in a time period.”
The Examiner found that transaction data 302 of Olives, which
includes merchant transactions for a reporting time period and total number
of sales for each unique user, correspond to the limitation “normalizing the
payment card transaction data for each respective one of the plurality of
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merchants by determining, from the payment card transaction data, a total
amount spent at the respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a total number
of the cardholder accounts making transactions with the respective merchant
in a time period.” (Final Act. 12; see also Ans. 14.) We agree with the
Examiner’s findings.
Olives relates to “data analysis tools that compare[] a sales
performance of a merchant to that of peers of the merchant.” (¶ 2.) Olives
provides for a merchant benchmarking tool (MBT), such that “[t]he MBT
accesses transaction data of multiple merchants, analytically processes the
transaction data, and provides particularly formatted outputs, such as
electronically generated reports.” (¶ 18.)
Figure 3 of Olives illustrates that transaction data 302 can be filtered
to create subsets (¶ 53), for example “first subset 308 . . . can include
portions of the transaction data 302 in which the merchant M(j) 102 engaged
in the transactions therein and the date on which each of the transactions in
the subset 308 occurred within a reporting time period (e.g., January 2004 to
March of 2004)” (¶ 56). Olives explains that “the MBT may determine a
total number of different transaction records 202 associated with merchant
M(j) 102 and how many unique users made a purchase during the specified
time period.” (¶ 87.)
Because the MBT of Olives includes transaction data 302 for a
reporting time period and the unique users making purchases during the
reporting time period, Olives teaches the limitation “normalizing the
payment card transaction data for each respective one of the plurality of
merchants by determining, from the payment card transaction data, a total
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amount spent at the respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a total number
of the cardholder accounts making transactions with the respective merchant
in a time period.”
Appellant argues the following:
Notably, Olives does not describe or suggest
i) normalizing payment card transaction data for each respective
one of a plurality of merchants by determining, from the
payment card transaction data, a total amount spent at the
respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a
total number of the cardholder accounts making transactions
with the respective merchant in a time period, ii) normalizing
review data from consumers by converting qualitative
language-based merchant assessments to corresponding
quantitative merchant ratings and re-scaling the quantitative
merchant assessments to facilitate a comparison of the review
data from consumers for each respective one of the plurality of
merchants on a comparable scale, and iii) generating integrated
consumption data comprising, for each respective one of the
plurality of merchants, a corresponding quantitative value
derived from a weighted average of the normalized payment
card transaction data and the normalized review data from
consumers, as described in Claim 1.
(Appeal Br. 16; see also Reply Br. 8.)
However, the Examiner cited to Olives solely for teaching the
limitation “normalizing the payment card transaction data for each
respective one of the plurality of merchants by determining, from the
payment card transaction data, a total amount spent at the respective
merchant in a time period, a total number of transactions at the respective
merchant in a time period, and a total number of the cardholder accounts
making transactions with the respective merchant in a time period.” (Final
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Act. 12.) The rejection of claim 1 is based on the combination of Faro,
Olives, Pavlov, Stiegler, and Wanker, and Appellant cannot show non-
obviousness by attacking references individually. See In re Keller, 642 F.2d
413, 426 (CCPA 1981).
Therefore, we agree with the Examiner that the combination of Faro,
Olives, Pavlov, Stiegler, and Wanker would have rendered obvious
independent claim 1, which includes the limitation “normalizing the
payment card transaction data for each respective one of the plurality of
merchants by determining, from the payment card transaction data, a total
amount spent at the respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a total number
of the cardholder accounts making transactions with the respective merchant
in a time period.”
Second, we are unpersuaded by Appellant’s arguments (Appeal
Br. 17; see also Reply Br. 9) that the combination of Faro, Olives, Pavlov,
Stiegler, and Wanker would not have rendered obvious independent claim 1,
which includes the limitation “rescaling the quantitative merchant
assessments to facilitate a comparison of the review data from consumers for
each respective one of the plurality of merchants on a comparable scale.”
The Examiner found that the ratings data processor of Pavlov, which
normalizes ratings with a predetermined numerical scale for presentation to
a user, corresponds to the limitation “rescaling the quantitative merchant
assessments to facilitate a comparison of the review data from consumers for
each respective one of the plurality of merchants on a comparable scale.”
(Final Act. 13; see also Ans. 15.) We agree with the Examiner’s findings.
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Pavlov relates to a web crawler, in particular, “[a] web crawler . . . to
crawl review sites and rating sites of the web.” (Abstract.) Pavlov explains
that “[t]he ratings data processor normalizes ratings within a predetermined
numerical scale, and the ratings data processor normalizes review
information for presentation to a user” and “[t]he presentation module
presents data from the ratings database to a user rearranges presentation of
data from the ratings database responsive to feedback from a user.” (¶ 12.)
Because the ratings data processor of Pavlov normalizes ratings and permits
the user to rearrange presentation of the data, Pavlov teaches the limitation
“rescaling the quantitative merchant assessments to facilitate a comparison
of the review data from consumers for each respective one of the plurality of
merchants on a comparable scale.”
Appellant argues the following:
Notably, Pavlov does not describe or suggest
i) normalizing payment card transaction data for each respective
one of a plurality of merchants by determining, from the
payment card transaction data, a total amount spent at the
respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a
total number of the cardholder accounts making transactions
with the respective merchant in a time period, ii) normalizing
review data from consumers by converting qualitative
language-based merchant assessments to corresponding
quantitative merchant ratings and re-scaling the quantitative
merchant assessments to facilitate a comparison of the review
data from consumers for each respective one of the plurality of
merchants on a comparable scale, and iii) generating integrated
consumption data comprising, for each respective one of the
plurality of merchants, a corresponding quantitative value
derived from a weighted average of the normalized payment
card transaction data and the normalized review data from
consumers, as described in Claim 1.
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(Appeal Br. 17; see also Reply Br. 9.)
However, the Examiner cited to Pavlov solely for teaching the
limitation “rescaling the quantitative merchant assessments to facilitate a
comparison of the review data from consumers for each respective one of
the plurality of merchants on a comparable scale.” (Final Act. 13.) Again,
the rejection of claim 1 is based on the combination of Faro, Olives, Pavlov,
Stiegler, and Wanker, and Appellant cannot show non-obviousness by
attacking references individually. See Keller, 642 F.2d at 426.
Therefore, we agree with the Examiner that the combination of Faro,
Olives, Pavlov, Stiegler, and Wanker would have rendered obvious
independent claim 1, which includes the limitation “rescaling the
quantitative merchant assessments to facilitate a comparison of the review
data from consumers for each respective one of the plurality of merchants on
a comparable scale.”
Third, we are unpersuaded by Appellant’s arguments (Appeal Br. 17–
18; see also Reply Br. 9–10) that the combination of Faro, Olives, Pavlov,
Stiegler, and Wanker would not have rendered obvious independent claim 1,
which includes the limitation “normalizing the review data from consumers
by converting the qualitative language-based merchant assessments to
corresponding quantitative merchant ratings.”
The Examiner found that Figure 3 of Stiegler, which includes decision
table window 119, corresponds to the limitation “normalizing the review
data from consumers by converting the qualitative language-based merchant
assessments to corresponding quantitative merchant ratings.” (Final Act.
13–14; see also Ans. 15.) We agree with the Examiner’s findings.
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Stiegler relates to “user interfaces for graphical decision making
support.” (Col. 1, l. 11.) Figure 3 of Stiegler illustrates “decision table
window 119 [that] displays the results of the user’s evaluation of the various
options against the defined criteria.” (Col. 9, ll. 17–19.) In particular,
Figure 3 of Stiegler illustrates that decision table window 119 includes table
images 510, such that “table images 510 include a text label descriptive of
the performance of a selected option on a selected criteria, the label
corresponding to an underlying numeric rating calculated by a rating object
129 with respect to the criteria.” (Col. 9, ll. 55–58.) Moreover, Stiegler
explains that “[t]he text label is preferably one of ‘Excellent,’ ‘Good,’ ‘Fair,’
‘Poor,’ ‘Fails,’ ‘Unknown,’ ‘Pass,’ ‘N/A,’ ‘Yes,’ and ‘No’ though other
similar labels may also be used.” (Col. 9, ll. 59–61.)
Because table images 510 of Stiegler include a text label (e.g.,
“Excellent,” “Good,” “Fair,” “Poor,” “Fails”) corresponding to an
underlying numeric rating, one obvious variant would be corresponding the
text label to the numerical rating. Accordingly, Stiegler teaches the
limitation “normalizing the review data from consumers by converting the
qualitative language-based merchant assessments to corresponding
quantitative merchant ratings.”
Appellant argues the following:
Notably, Stiegler does not describe or suggest
i) normalizing payment card transaction data for each respective
one of a plurality of merchants by determining, from the
payment card transaction data, a total amount spent at the
respective merchant in a time period, a total number of
transactions at the respective merchant in a time period, and a
total number of the cardholder accounts making transactions
with the respective merchant in a time period, ii) normalizing
review data from consumers by converting qualitative
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language-based merchant assessments to corresponding
quantitative merchant ratings and re-scaling the quantitative
merchant assessments to facilitate a comparison of the review
data from consumers for each respective one of the plurality of
merchants on a comparable scale, and iii) generating integrated
consumption data comprising, for each respective one of the
plurality of merchants, a corresponding quantitative value
derived from a weighted average of the normalized payment
card transaction data and the normalized review data from
consumers, as described in Claim 1.
(Appeal Br. 17–18; see also Reply Br. 9–10.)
However, the Examiner cited to Stiegler solely for teaching the
limitation “normalizing the review data from consumers by converting the
qualitative language-based merchant assessments to corresponding
quantitative merchant ratings.” (Final Act. 13–14.) Again, the rejection of
claim 1 is based on the combination of Faro, Olives, Pavlov, Stiegler, and
Wanker, and Appellant cannot show non-obviousness by attacking
references individually. See Keller, 642 F.2d at 426.
Therefore, we agree with the Examiner that the combination of Faro,
Olives, Pavlov, Stiegler, and Wanker would have rendered obvious
independent claim 1, which includes the limitation “normalizing the review
data from consumers by converting the qualitative language-based merchant
assessments to corresponding quantitative merchant ratings.”
Last, we are unpersuaded by Appellant’s arguments (Appeal Br. 18;
see also Reply Br. 9–10) that the combination of Faro, Olives, Pavlov,
Stiegler, and Wanker would not have rendered obvious independent claim 1,
which includes the limitation “generating integrated consumption data
comprising, for each respective one of the plurality of merchants, a
corresponding quantitative value derived from a weighted average.”
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The Examiner found that Figure 3 of Wanker, in which weighting
factors are applied to merchant specific information (280), corresponds to
the limitation “generating integrated consumption data comprising, for each
respective one of the plurality of merchants, a corresponding quantitative
value derived from a weighted average.” (Final Act. 14; see also Ans. 16.)
We agree with the Examiner’s findings.
Wanker relates to “online comparison-shopping systems” (¶ 3), in
particular, “providing a ranking of merchants based on information on the
merchants” (¶ 36). Wanker explains the following:
examples of merchant specific information (280) collected or
created by third party agencies and institutions including
merchant’s service rating (281); merchant’s response rating
(282); history of complaints by customers (283) to third parties
or government agencies; evaluations of the merchant’s
performance in the handling of customer complaints (284); and
information on customer boycotts (285) against the merchant.
(¶ 46.)
Moreover, Figure 3 of Wanker illustrates “[t]he process of applying
the weighting factors to the information on the merchant.” (¶ 47.) Because
Wanker explains that the ranking of merchants is based upon applying
weighting factors to merchant specific information 280, Wanker teaches the
limitation “generating integrated consumption data comprising, for each
respective one of the plurality of merchants, a corresponding quantitative
value derived from a weighted average.”
Appellant argues the following:
Notably, Wanker does not describe or suggest
i) normalizing payment card transaction data for each respective
one of a plurality of merchants by determining, from the
payment card transaction data, a total amount spent at the
respective merchant in a time period, a total number of
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transactions at the respective merchant in a time period, and a
total number of the cardholder accounts making transactions
with the respective merchant in a time period, ii) normalizing
review data from consumers by converting qualitative
language-based merchant assessments to corresponding
quantitative merchant ratings and re-scaling the quantitative
merchant assessments to facilitate a comparison of the review
data from consumers for each respective one of the plurality of
merchants on a comparable scale, and iii) generating integrated
consumption data comprising, for each respective one of the
plurality of merchants, a corresponding quantitative value
derived from a weighted average of the normalized payment
card transaction data and the normalized review data from
consumers, as described in Claim 1.
(Appeal Br. 18; see also Reply Br. 9–10.)
However, the Examiner cited to Wanker solely for teaching the
limitation “generating integrated consumption data comprising, for each
respective one of the plurality of merchants, a corresponding quantitative
value derived from a weighted average.” (Final Act. 14.) Again, the
rejection of claim 1 is based on the combination of Faro, Olives, Pavlov,
Stiegler, and Wanker, and Appellant cannot show non-obviousness by
attacking references individually. See Keller, 642 F.2d at 426.
Therefore, we agree with the Examiner that the combination of Faro,
Olives, Pavlov, Stiegler, and Wanker would have rendered obvious
independent claim 1, which includes the limitation “generating integrated
consumption data comprising, for each respective one of the plurality of
merchants, a corresponding quantitative value derived from a weighted
average.”
Accordingly, we sustain the rejection of independent claim 1 under
35 U.S.C. § 103. Claims 2, 3, 5–8, 21, and 23 depend from claim 1, and
Appellant has not presented any additional substantive arguments with
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respect to these claims. Therefore, we sustain the rejection of claims 2, 3, 5–
8, 21, and 23 under 35 U.S.C. § 103, for the same reasons discussed with
respect to independent claim 1.
Independent claims 9 and 17 recite limitations similar to those
discussed with respect to independent claim 1, and Appellant has not
presented any additional substantive arguments with respect to these claims.
We sustain the rejection of claims 9 and 17, as well as dependent claims 10,
11, 13–16, 18, and 20, for the same reasons discussed with respect to
claim 1.

§ 103 Rejection—Faro, Olives, Pavlov, Stiegler, Wanker, and Falk
Although Appellant nominally argues the rejection of dependent
claims 4, 12, 19, 22, 24, and 25 separately (Appeal Br. 19–20), the
arguments presented do not point out with particularity or explain why the
limitations of these dependent claims are separately patentable. Instead,
Appellant argues that “Falk does not cure the deficiencies of Faro, Olives,
Pavlov, Stiegler, and Wanker.” (Id. at 19.) We are not persuaded by these
arguments for the reasons discussed with respect to claims 1, 9, and 17, from
which claims 4, 12, 19, 22, 24, and 25 depend. Accordingly, we sustain this
rejection.

§ 103 Rejection—Faro, Olives, Pavlov, Stiegler, Wanker, and Rajagopal
Although Appellant nominally argues the rejection of dependent
claim 26 separately (Appeal Br. 20–21), the arguments presented do not
point out with particularity or explain why the limitations of this dependent
claim are separately patentable. Instead, Appellant argues that “Rajagopal
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does not cure the deficiencies of Faro, Olives, Pavlov, Stiegler, and
Wanker.” (Id. at 21.) We are not persuaded by these arguments for the
reasons discussed with respect to claim 1, from which claim 26 depends.
Accordingly, we sustain this rejection.

CONCLUSION
The Examiner’s decision rejecting claims 1–26 under 35 U.S.C. § 101
is affirmed.
The Examiner’s decision rejecting claims 1–26 under 35 U.S.C. § 103
is affirmed.
DECISION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–26 101 Eligibility 1–26
1–3, 5–11,
13–18, 20,
21, 23
103 Faro, Olives,
Pavlov, Stiegler,
Wanker
1–3, 5–11,
13–18, 20,
21, 23

4, 12, 19,
22, 24, 25
103 Faro, Olives,
Pavlov, Stiegler,
Wanker, Falk
4, 12, 19,
22, 24, 25

26 103 Faro, Olives,
Pavlov, Stiegler,
Wanker, Rajagopal
26
Overall
Outcome
1–26

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

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AFFIRMED