MedicalGPS, LLC

Patent Trials and Appeals Board

Feb 3, 2021

2020005279 (P.T.A.B. Feb. 3, 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.
14/789,189 07/01/2015 Martin R. HUDSON P11337US00/SJW 1098
881 7590 02/03/2021
STITES & HARBISON PLLC
1800 DIAGONAL ROAD
SUITE 325
ALEXANDRIA, VA 22314
EXAMINER
IQBAL, MUSTAFA
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
02/03/2021 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):
iplaw@stites.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN R. HUDSON and JERRY L. STONE
Appeal 2020-005279
Application 14/789,189
Technology Center 3600

Before JAMES R. HUGHES, JOHN A. EVANS, and
LINZY T. McCARTNEY, Administrative Patent Judges.

McCARTNEY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
non-final rejection of claims 1–16. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

1 Appellant identifies the real party in interest as MedicalGPS, LLC.
Supplemental Appeal Brief 2, filed February 3, 2020 (Appeal Br.).
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BACKGROUND
This patent application concerns “customer satisfaction research and
automated analysis of customer satisfaction data for identifying satisfied and
loyal consumers of an organization.” Specification ¶ 1, July 1, 2015 (Spec.).
Claim 1 illustrates the claimed subject matter:
1. A method for analyzing consumer feedback to identify
candidate advocates for an organization, the method comprising:
accessing a survey results database stored within a data
store to obtain survey results data representing a plurality of
responses to a questionnaire that have each been completed by a
respective consumer respondent of a plurality of consumer
respondents based on one or more transactions the consumer
respondent has engaged in with the organization, each
transaction including a plurality of aspects of consumer
experience, where the questionnaire comprises a primary
question that addresses a primary indicator of consumer loyalty
and a plurality of secondary questions each addressing a
corresponding aspect of consumer experience during the
transactions with the organization, and where each of the primary
question and the secondary questions is constructed with a
closed-ended ordinal response scale having an ordered list of
answer choices that are each assigned a numeric value along a
continuum corresponding to the closed-ended ordinal response
scale for the question and from which one answer choice is
selected to answer the question;
automatically processing the survey results data to
calculate a respective correlation coefficient for each secondary
question that indicates a level of dependency between the
numeric values assigned to the answer choices selected in the
plurality of responses for the secondary question and the numeric
values assigned to the answer choices selected in the plurality of
responses for the primary question;
evaluating the respective correlation coefficients
calculated for the secondary questions to define a criteria for
assessing the plurality of responses to identify candidate
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advocates from the plurality of consumer respondents, where the
criteria specifies, for a strong impact set of secondary questions
of the plurality of secondary questions for which the respective
correlation coefficients are greater than a threshold value, which
of the answer choices for the set of secondary questions can be
selected in a given response to the questionnaire for the response
to satisfy the criteria; and
automatically evaluating the survey results data to
determine which of the plurality of responses include answer
choices for the strong impact set of secondary questions which
satisfy the criteria and identifying the respective consumer
respondent for each of the responses that is determined to satisfy
the criteria as a candidate advocate for the organization such that
there is a level of assurance that the candidate advocate will
provide positive reviews of the organization on all of the aspects
of consumer experience corresponding to the strong impact set
of secondary questions.
Appeal Br. 46–48.
REJECTIONS
Claims 35 U.S.C. § References/Basis
1–16 101 Eligibility
1, 3, 10–13, 16 103 Panda,2 Hamrick,3 Brandt4
2 103 Panda, Hamrick, Brandt, Picken5
4–8 103 Panda, Hamrick, Brandt, Lefang6
9 103 Panda, Hamrick, Brandt, Lefang, Lu,7 Moran,8 Pavagadhi9

2 Panda et al. (US 2014/0316862 A1; October 23, 2014).
3 Hamrick et al. (US 2013/0191197 A1; July 25, 2013).
4 Brandt et al. (US 2014/0046725 A1; February 13, 2014).
5 Picken (US 2013/0198025 A1; August 1, 2013).
6 Lefang et al. (US 2009/0192878 A1; July 30, 2009).
7 Lu et al. (US 2016/0092894 A1; March 31, 2016).
8 Moran (US 2016/0300190 A1; October 13, 2016).
9 Pavagadhi et al. (US 2009/0187460 A1; July 23, 2009).
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Claims 35 U.S.C. § References/Basis
14 103 Panda, Hamrick, Brandt, Hussam10
15 103 Panda, Hamrick, Brandt, Phillips11
DISCUSSION
Section 101 Rejection
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. But the
Supreme Court has long recognized an implicit exception to this section:
“Laws 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. That framework requires us first
to consider whether the claim is “directed to one of those patent-ineligible
concepts.” Alice, 573 U.S. 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.” Alice, 573 U.S. at 217 (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

10 Hussam et al. (US 2011/0184781 A1; July 28, 2011).
11 Phillips (US 2010/0076816 A1; March 25, 2010).
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practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Alice, 573 U.S. at 217–18 (alteration in original) (quoting
Mayo, 566 U.S. at 72–73).
The United States Patent and Trademark Office has issued guidance
about this framework. Under Office guidance, to determine whether a claim
is directed to an abstract idea, we evaluate (1) whether the claim recites
subject matter that either falls into one of three identified categories of
abstract ideas or is a “tentative abstract idea,” and if so, (2) whether the
additional elements of the claim integrate the abstract idea into a practical
application. Manual of Patent Examining Procedure § 2106.04 (9th ed. latest
rev. June 2020) (MPEP). If the claim is directed to an abstract idea, as noted
above, we then consider whether the claim has an inventive concept. MPEP
§ 2106.05. When doing so, Office guidance explains that we should evaluate
“whether any additional element or combination of elements are other than
what is 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.” MPEP § 2106.05(II).
With this framework in mind, we turn to the Examiner’s rejection of
claims 1–16 under § 101. We begin our analysis with claim 1.
Office guidance identifies three categories of abstract ideas:
mathematical concepts, certain methods of organizing human activity, and
mental processes. MPEP § 2106.04(a). The Examiner determined that claim
1 recites subject matter that falls into each of these categories. Non-Final
Act. 8–9. The Examiner determined that claim 1 does not integrate the
recited abstract ideas into a practical application because the additional
elements in the claim (a “database” and a “data store”) are “generic
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computer components” and the claimed method “amounts to no more than
mere instructions to apply the exception using” these generic components.
Non-Final Act. 9, 10. Finally, the Examiner determined that claim 1 lacks an
inventive concept because the additional elements, considered individually
or as an ordered combination, simply call for generic computer
implementation. See Non-Final Act. 11.
Appellant argues that the Examiner improperly overgeneralized claim
1 when considering whether the claim recites abstract ideas. See Appeal Br.
18–21. In Appellant’s view, when properly evaluated, claim 1 does not
recite mental processes, mathematical concepts, or certain methods of
organizing human activity. See Appeal Br. 18–21.
Appellant has not persuaded us that the Examiner erred. The
Examiner did not overgeneralize claim 1; the Examiner simply used the
language of the claim when explaining why the claim recites abstract ideas.
See Non-Final Act. 3, 8–10. This approach is consistent with Office practice.
See MPEP § 2106.07(a) (explaining that examiners should “should identify
the abstract idea as it is recited (i.e., set forth or described) in the claim”)
(emphasis omitted)). Even if the Examiner had used a high level of
generality to describe the recited abstract ideas, that alone would not
necessarily amount to reversible error. Examiners can describe abstract ideas
at different levels of generality, and choosing one level over another does
not always change the patentability analysis. See, e.g., Apple, Inc. v.
Ameranth, Inc., 842 F.3d 1229, 1240–41 (Fed. Cir. 2016). (“As the Board
has done, the claimed abstract idea could be described as generating menus
on a computer, or generating a second menu from a first menu and sending
the second menu to another location. It could be described in other ways
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. . . . The Board’s slight revision of its abstract idea analysis does not impact
the patentability analysis.”). That is the case here. Regardless of the level of
generality used to describe the recited abstract ideas, the result is the same—
claim 1 recites abstract ideas. Cf. Accenture Glob. Servs., GmbH v.
Guidewire Software, Inc., 728 F.3d 1336, 1344 (Fed. Cir. 2013) (“Although
not as broad as the district court’s abstract idea of organizing data, it is
nonetheless an abstract concept.”).
As for Appellant’s argument that claim 1 does not recite mental
processes, mathematical concepts, or certain methods of organizing human
activity, Appellant has not provided persuasive evidence or reasoning to
support this argument. Appellant asserts “that the analysis steps recited in
claim 1 cannot practically be performed in the mind.” Appeal Br. 20. But
given the broad, functional language of claim 1, the claim encompasses an
act that people can perform in their minds. See, e.g., CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) (determining
that a step “is so broadly worded that it encompasses literally any method”
for performing the step, “includ[ing] even logical reasoning that can be
performed entirely in the human mind”). This is true even if the term
“automatically” that appears in some of the claim limitations implicitly calls
for using a generic computer. See, e.g., Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (determining that the
claims at issue are directed to an abstract idea when “with the exception of
generic computer-implemented steps, there is nothing in the claims
themselves that foreclose them from being performed by a human, mentally
or with pen and paper”); see also MPEP § 2106.04(a)(2)(III)(C) (explaining
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that “[c]laims can recite a mental process even if they are claimed as being
performed on a computer”).
Appellant also asserts that “[a]lthough mathematical concepts may be
utilized to accomplish the processing step of claim 1, no claim limitations
expressly recite on their own or per se any such mathematical concepts.”
Appeal Br. 21 (quotation marks omitted). But claim 1 explicitly recites, for
example, “processing the survey results data to calculate a respective
correlation coefficient for each secondary question.” Appeal Br. 41. By its
own terms, this limitation calls for a mathematical calculation. And if there
were any doubt that this limitation encompasses a mathematical calculation,
the written description makes clear that it does. See, e.g., Spec. ¶¶ 48–50
(discussing exemplary calculations for calculating a correlation coefficient).
This limitation therefore recites a mathematical calculation and thus falls
into the mathematical concepts category of abstract ideas. See MPEP
§ 2106.04(a)(2)(I)(C).
For the certain methods of organizing human activity category,
Appellant asserts, without explanation, that claim 1 does not fall into any of
the subcategories of certain methods of organizing human activity. See
Appeal Br. 22. The written description undercuts this argument. The written
description explains that “the present invention” concerns “customer
satisfaction research and automated analysis of customer satisfaction data for
identifying satisfied and loyal consumers.” Spec. ¶ 1. More specifically, the
written description discloses that “embodiments of the present invention . . .
provide a mechanism for organizations to perform a concrete and precise
loyalty assessment of customers that can provide such organizations with
concrete data identifying the most loyal customers of the organizations,
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termed ‘advocates,’ rather than simply generally loyal or satisfied
customers.” Spec. ¶ 19. This mechanism “provides some level of assurance
that such identified advocates would likely be willing to publicly promote an
organization by providing positive reviews, recommendations, or other type
of endorsements on behalf of the organization.” Spec. ¶ 19. The claimed
invention thus concerns business relations and marketing or sales activities
and behaviors, which fall in the category of certain methods of organizing
human activity. See MPEP § 2106.04(a)(2)(II)(b) (explaining that certain
methods of organizing human activity includes commercial or legal
interactions such as “marketing or sales activities or behaviors” and
“business relations”); cf. Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 778
F. App’x 882, 887 (Fed. Cir. 2019) (“Targeted marketing is a form of
tailoring information based on [provided] data, which we have previously
held is an abstract idea. The concept is a fundamental practice that dates
back to newspaper advertisements.” (quotation marks and citations
omitted)).
Appellant next contends that even assuming that claim 1 recites
abstract ideas, the claim is still patent eligible because it “specifically
recite[s] how one particular means of achieving a goal is accomplished with
specific elements that are far beyond a general solution to a problem” and
thus integrates the abstract ideas into a practical application. Appeal Br. 24.
Appellant also contends that claim 1 integrates the abstract ideas into a
practical application in the same way that the patent-eligible claims in
Examples 40–42 of the Office guidance do. See Appeal Br. 24–26.
Appellant has not persuaded us that the Examiner erred. As
determined by the Examiner, the additional elements recited in claim 1 (the
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database and data store) are generic computer components. See Spec. ¶¶ 26
(“As used herein, the term ‘data store,’ ‘data storage unit,’ storage device’,
and the like can [refer] to any suitable memory device that may be used for
storing data, including manual files, machine-readable files, and
databases.”), 28 (“In exemplary embodiments, . . . database server 122, and
any other servers employed within exemplary operating environment 100
can each be implemented within any suitable general purpose and/or
specialized server computing system or systems . . . .”). The claimed method
uses these generic computer components to implement the recited abstract
ideas. See Appeal Br. 46–48. Using generic computer components in this
way does not integrate an abstract idea into a practical application. See, e.g.,
Alice, 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.’” (second and third alterations in
original) (quoting Mayo, 566 U.S. at 77)); Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017) (“Our prior cases
have made clear that mere automation of manual processes using generic
computers does not constitute a patentable improvement in computer
technology.”); Intellectual Ventures I LLC v. Capital One Bank (USA), 792
F.3d 1363, 1370 (Fed. Cir. 2015) (“Steps that do nothing more than spell out
what it means to ‘apply it on a computer’ cannot confer patent-eligibility.”).
Finally, Appellant argues that the Examiner “erred in only considering
the combination of the database and/or the data store as combined with each
step of the method while completely failing to address the method steps
themselves as an ordered combination.” Appeal Br. 27–28. In Appellant’s
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view, claim 1 “includes a unique combination of steps” that involve “a non-
conventional and non-generic way” of performing the claimed method,
similar to patent-eligible claim 2 of Example 35 of the Office’s guidance.
Appeal Br. 29.
Appellant again fails to persuade us that the Examiner erred.
Appellant has provided no persuasive evidence or reasoning to support the
assertion that claim 1 involves an unconventional, non-generic way of
performing the recited functions. As for Appellant’s assertion that the
method steps themselves provide an inventive concept, this amounts to an
assertion that the recited abstract ideas provide an inventive concept. But
courts have made clear that abstract ideas cannot provide an inventive
concept. Bridge & Post, Inc., 778 F. App’x at 892 (“At Alice step two we
assess ‘whether the claim limitations other than the invention’s use of the
ineligible concept to which it was directed were well-understood, routine,
and conventional.’” (quoting BSG Tech LLC v. BuySeasons, Inc., 899 F.3d
1281, 1290 (Fed. Cir. 2018))); BSG Tech, 899 F.3d at 1290 (“[T]he relevant
inquiry is not whether the claimed invention as a whole is unconventional or
non-routine. . . . It has been clear since Alice that a claimed invention’s use
of the ineligible concept to which it is directed cannot supply the inventive
concept that renders the invention ‘significantly more’ than that ineligible
concept.” (first emphasis added)).
For at least the above reasons, we find Appellant’s arguments
unpersuasive. We thus sustain the Examiner’s rejection of claim 1 under
§ 101. Because Appellant does not provide separate, persuasive arguments
for claims 2–16, we also sustain the Examiner’s rejection of these claims
under § 101.
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Section 103 Rejections
Claim 1 recites
automatically evaluating the survey results data to
determine which of the plurality of responses include answer
choices for the strong impact set of secondary questions which
satisfy the criteria and identifying the respective consumer
respondent for each of the responses that is determined to satisfy
the criteria as a candidate advocate for the organization such that
there is a level of assurance that the candidate advocate will
provide positive reviews of the organization on all of the aspects
of consumer experience corresponding to the strong impact set
of secondary questions.
Appeal Br. 47–48.
Appellant contends that the Examiner’s combination of Panda,
Hamrick, and Brandt fails to teach or suggest this limitation. See Appeal Br.
34–39. Appellant argues that the Examiner erroneously concluded it would
have been obvious to combine Brandt’s and Panda’s teachings because
“claim 1 does not recite identifying key questions to then include those
questions in a survey, as indicated in the Examiner’s rejection.” Appeal Br.
35 (emphasis modified). Appellant also contends that “Panda is silent with
respect to customers posting reviews” and does not teach “choosing
customers which have positive reviews on these high impact secondary
questions.” Appeal Br. 36, 37.
We find these arguments unpersuasive. Read in context, the
Examiner’s statement that “Brandt could implement the high impact
secondary questions as identified by Panda and place them into surveys. . . .
[to] help . . . identify company advocates” refers not to an order of
operations, but rather to a reason to combine the cited art in the claimed
manner. Non-Final Act. 22–24. As to the Appellant’s contentions about
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Panda, even if Panda does not teach customers posting reviews, the disputed
limitation does not require that customers post reviews, see Appeal Br. 41–
42, so this alleged failure is irrelevant. And although the disputed limitation
recites “identifying the respective consumer respondent for each of the
responses that is determined to satisfy the criteria as a candidate advocate
such that there is a level of assurance that the candidate advocate will
provide positive reviews of the organization,” the Examiner relied on Brandt
for this aspect of the limitation, not Panda. See Non-Final Act. 20–23 (citing
Brandt ¶¶ 77, 121, 125, Figs. 10, 14). We thus find these arguments
unpersuasive.
Finally, Appellant contends that the Examiner erroneously stated that
Brandt teaches that “someone who is identified as a potential promoter and
would like to be in a testimonial message would provide positive reviews on
all aspects on customer experience because their overall loyalty index would
be 9 or higher.” Appeal Br. 31 (emphasis modified). But the disputed
limitation requires identifying consumer respondents for which there is a
level of assurance that they would “provide positive reviews of the
organization on all of the aspects of consumer experience corresponding to
the strong impact set of secondary questions,” not all aspects of the
consumer experience generally. Appeal Br. 48 (emphasis added). So it is
irrelevant that Brandt does not teach identifying consumer respondents that
would provide positive reviews on all aspects of the customer experience.
Appellant has not argued, let alone shown, that Brand fails to teach what is
actually required: identifying consumer respondents that “satisfy the criteria
as a candidate advocate for the organization such that there is a level of
assurance that the candidate advocate will provide positive reviews of the
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organization on all of the aspects of consumer experience corresponding to
the strong impact set of secondary questions.”
For at least the above reasons, Appellant has not persuaded us that the
Examiner erroneously rejected claim 1 under § 103. We therefore sustain
this rejection. Because Appellant does not present separate, persuasive
arguments for claims 2–16, we also sustain the Examiner’s rejections of
these claims under § 103.
CONCLUSION
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1–16 101 Eligibility 1–16
1, 3, 10–13,
16 103
Panda, Hamrick,
Brandt
1, 3, 10–
13, 16
2 103 Panda, Hamrick, Brandt, Picken 2
4–8 103 Panda, Hamrick, Brandt, Lefang 4–8
9 103
Panda, Hamrick,
Brandt, Lefang, Lu,
Moran, Pavagadhi
9
14 103 Panda, Hamrick, Brandt, Hussam 14
15 103 Panda, Hamrick, Brandt, Phillips 15
Overall
Outcome 1–16

No period for taking any 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