Microsoft Technology Licensing, LLC

Patent Trials and Appeals Board

Oct 29, 2020

2019004429 (P.T.A.B. Oct. 29, 2020)

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.
14/700,898 04/30/2015 Wayne Pan 901913-US-
NO[2] (3080.D31
6003
45839 7590 10/29/2020
Schwegman Lundberg & Woessner / LinkedIn/Microsoft
PO BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
EL-HAGE HASSAN, ABDALLAH A
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
10/29/2020 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):
USPTO@slwip.com
slw@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WAYNE PAN, NICHOLAS DAVID SNYDER,
and WILLIAM JAYANG SUN1
Appeal 2019-004429
Application 14/700,898
Technology Center 3600
Before ERIC B. GRIMES, RACHEL H. TOWNSEND, and
CYNTHIA M. HARDMAN, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims related to
a system and method of determining whether an item of content shared in a
social network contributed to a marketing-related event. The claims have
been rejected as obvious and ineligible for patenting. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM the rejection based on patent-ineligibility.

1 Appellant identifies the real party in interest as Microsoft Technology
Licensing, LLC. Appeal Br. 2. We use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42(a).
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STATEMENT OF THE CASE
“Individuals associated with the organization (e.g., employees of a
company) offer untapped potential in reaching a larger audience. . . .
[E]mployees’ social connections may be a highly interested group that is
receptive to the company’s message.” Spec. ¶ 13.
“[A] social networking service may leverage these connections by
utilizing a hierarchical electronic content distribution system to distribute
content to a wider audience.” Id. ¶ 14. For example, “an individual
associated with the organization (the content origin) may select an item of
content and may select other individuals to share the content with. . . .
Th[ose] individuals . . . may then share the content with some of their
connections.” Id. “In this way a hierarchical content distribution network
may be created that is rooted at an organizational level, such as a company.”
Id. ¶ 15.
[A] hierarchical content distribution network may be described
by a graph data structure (e.g., a tree). . . . In this content
distribution graph the top-level node in the graph represents the
origin of the content. Nodes on the second-level represent
members who are selected to receive the content by the top
level node . . . , and so on.
Id. ¶ 17.
“Each recipient may ‘interact’ with the content such as by opening,
clicking, reading, commenting on, or sharing the content.” Id. ¶ 20. “[T]he
host social networking service may track the movement, changes, and
interactions with content through the hierarchical content distribution
network.” Id. ¶ 24. The Specification discloses “systems, methods, and
machine-readable mediums that infer contributions from content distributed
on a hierarchical electronic content distribution system to the occurrence of
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events using observed interactions related to the content.” Id. ¶ 27. “[T]he
events may include marketing-related events. A marketing-related event may
be any event that evidences an indirect interest in an organization’s products
or services. Marketing-related events may include positive increases in
metrics corresponding to an organization’s communications presence such
as a website.” Id. ¶ 57. “Other content that is similar to the content that
contributed to that increase may then be recommended to the organization as
a way to further increase that metric.” Id. ¶ 58.
Claims 1–7, 9–15, and 17–23 are on appeal. Claim 1, reproduced
below, is illustrative:
1. A social networking service comprising:
one or more computer processors to:
implement a hierarchical electronic content distribution
system to create at least one hierarchical content network, the at
least one hierarchical content network corresponding to an item
of content;
receive an indication of an occurrence of a marketing-
related event, wherein a participant in the marketing-related
event is a member of the at least one hierarchical content
network;
responsive to receipt of the indication of the occurrence
of the marketing-related event, determine a feature
corresponding to the item of content, the feature including at
least one interaction between the participant and the item of
content;
based upon the feature, determine that the item of content
at least partially contributed to the occurrence of the event; and
responsive to a determination that the item of content at
least partially contributed to the occurrence of the event,
recommend a second item of content that has not yet been
shared by an organization, the recommendation based upon a
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textual analysis of the item of content and the second item of
content;
wherein the at least one hierarchical content network is
described by a graph data structure that is rooted at an
organizational member of the social networking service that
shared the item of content, and wherein a first level of the graph
data structure comprises nodes that correspond to members of
the social networking service that identify themselves as being
employed by the organization and with whom the item of
content was shared; and
wherein, in subsequent levels of the graph data structure,
each particular child node corresponds to a member of the
social networking service that was a recipient of a share of the
item of content by its parent node, the parent node of the
particular child node corresponding to a member of the social
networking service that is connected through the social
networking service to a member that corresponds to the
particular child node.

Claims 9 and 17 are also independent. Claim 9 is directed to the
method carried out by the “one or more computer processors” described in
claim 1, and claim 17 is directed to a machine-readable medium comprising
instructions that cause a machine to carry out the steps described in claim 1.
The claims stand rejected as follows:2
Claims 1–7, 9–15, and 17–23 under 35 U.S.C. § 101 as being
ineligible for patenting (Final Action 7);

2 In the Final Action, claims 1, 5–7, 9, 13–15, 17, and 21–23 were
provisionally rejected for obviousness-type double patenting based on the
claims of application 14/700,921. Final Action 11. However, USPTO
records show that the ’921 application went abandoned on January 23, 2019.
Thus, the provisional double patenting rejection is moot.
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Claims 1–6, 9–14, and 17–22 under 35 U.S.C. § 103 as obvious based
on Beck3 and Lyras4 (Final Action 21); and
Claims 7, 15, and 23 under 35 U.S.C. § 103 as obvious based on
Beck, Lyras, and Khabazian5 (Final Action 30).
OPINION
Obviousness
The Examiner finds that Beck discloses a social networking service
that implements a hierarchical content distribution system but does not teach
a hierarchical content network described by the graph data structure
described in the claims. Final Action 21–22. The Examiner finds, however,
that Lyras teaches such a hierarchical content network. Id. at 22 (citing
Lyras ¶¶ 249, 292, 329). The Examiner concludes that it would have been
obvious “to have modified Beck to incorporate the teaching of Lyras which
consists of graphs and nodes representations and provides what is claimed in
claim 1 by the invention under examination.” Id. at 23.
Appellant argues that it “cannot find in Beck, Lyras, or the reasoning
of the Office Action any teaching [or] suggestion of a hierarchical content
network as recited in claims 1, 9, and 17.” Appeal Br. 21. Appellant argues
that Lyras’ “[p]aragraphs [0249], [0292], and [0329], cited by the Examiner,
do not disclose the claimed content hierarchy.” Id. at 22. Appellant argues
that each of the cited paragraphs of Lyras “has nothing to do with sharing
content over a social networking service, much less the disclosed claim
recitations.” Id. at 24.

3 US 2015/0006237 A1, Jan. 1, 2015.
4 US 2014/0330616 A1, Nov. 6, 2014.
5 US 2015/0310358 A1, Oct. 29, 2015.
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We agree with Appellant that the Examiner has not shown that the
social networking service of claim 1 would have been obvious based on
Beck and Lyras. The Examiner finds that Lyras discloses a
hierarchical content network [that] is described by a
graph data structure that is rooted at an organizational member
of the social networking service that shared the item of content,
. . . and wherein a first level of the graph data structure
comprises nodes that correspond to members of the social
networking service that identify themselves as being employed
by the organization and with whom the item of content was
shared; . . . and wherein, in subsequent levels of the graph data
structure, each particular child node corresponds to a member
of the social networking service that was a recipient of a share
of the item of content by its parent node, the parent node of the
particular child node corresponding to a member of the social
networking service that is connected through the social
networking service to a member that corresponds to the
particular child node.
Final Action 22 (emphasis omitted). In support of this finding, the Examiner
cites paragraphs 249, 292, and 329 of Lyras. Id.
Lyras discloses “a system and method . . . for finding and retrieving
information within an enterprise that is relevant to enterprise problems,
enterprise opportunities, and unexpected or interesting events.” Lyras ¶ 5. In
relevant part, Lyras’ system includes a “user interface [that] is a continuum
that is not designed programmatically for the use case at hand.” Id. ¶ 249.
“The overlay user interface fits all use cases including future unanticipated
use cases because the user interface is derived from a continuous node
structure that contains the logic of the system and accommodates the future
logic.” Id. Lyras states that the logic of the system “can be depicted
graphically in a topographical map,” and “allow[s] . . . the ability to expand
or collapse child nodes under parent nodes,” “allowing users to combine a
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zoom out situational awareness and a zoom in focus on a particular node.”
Id. This description does not meet the limitations of the claims, requiring
nodes that correspond to members of a social networking service that are
related based on a shared item of content.
Lyras’ paragraph 292 states that “[s]tate model attribute values may
also contain a link in the model via a node to a further attribute value to
indicate a relationship. For example, age and name attributes may be linked
to an employee ID attribute to collectively represent an employee and this
may be represented in a node cluster.” This description likewise does not
meet the limitations of the hierarchical content network recited in claim 1.
Finally, Lyras’ paragraph 329 states that “[s]ometimes situations
occur so that the priority of goals of the stakeholders and thus the input and
output of the relevance connections between nodes change suddenly. If an
emergency occurs, for example, a fire breaks out on the factory floor, then
the goal hierarchy changes and a new emergency overlay node network
applies.” This description also does not meet the limitations of the
hierarchical content network recited in the claims.
None of these paragraphs describes a hierarchical content network
that is described by a graph data structure rooted at an organizational
member of a social networking service and comprising nodes that
correspond to members of the social networking service with whom an item
of content is shared. Thus, the cited evidence does not support the
Examiner’s finding that Lyras discloses the hierarchical content network
required by the claims on appeal. Because the Examiner has not shown that
the cited references disclose or would have made obvious all of the
limitations of the claims, a prima facie case of obviousness has not been
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established. We reverse the rejection of claims 1–6, 9–14, and 17–22 under
35 U.S.C. § 103 based on Beck and Lyras.
With regard to the rejection of claims 7, 15, and 23, the Examiner
relies on Beck and Lyras to suggest the method of claim 1, and does not cite
any disclosure in Khabazian that makes up for the deficiency in Lyras
discussed above. See Final Action 30. Therefore, we reverse the rejection of
claims 7, 15, and 23 under 35 U.S.C. § 103 based on Beck, Lyras, and
Khabazian for the same reason discussed above with regard to claim 1.
Eligibility
Claims 1–7, 9–15, and 17–23 stand rejected under 35 U.S.C. § 101 as
being “directed to a judicial exception (i.e., a law of nature, a natural
phenomenon, or an abstract idea) without significantly more.” Final Action
7. The Examiner finds that the claims
recite creating and implementing a hierarchical content
distribution system, receiving an indication of an occurrence of
an event, determining a feature corresponding to an item of
content, determining that the item of content contributed to the
occurrence of the event based on the feature, and
recommending a second item of content wherein the
hierarchical content network is described by graphs including
parent[’]s and child’s nodes.
Id. at 7–8.
The Examiner concludes that “[t]he concept is simply described by
receiving an indication of occurrence of an event, determining interactions
between user and content (analysis), determining that the item of content
contributed to the occurrence of the event (analysis), and recommend[ing] a
second item of content based on the analysis.” Id. at 8. The Examiner finds,
however, that “collecting information, analyzing it, and displaying certain
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results of the collection and analysis” has been held to be an abstract idea.
Id. (citing Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed.
Cir. 2016)). The Examiner also finds that the claims recite an abstract idea in
the category of organizing human activity. Ans. 10.
The Examiner finds that the abstract idea recited in the claims is not
integrated into a practical application. Id. at 11. Finally, the Examiner finds
that “[t]he claims do not include additional elements that are sufficient to
amount to significantly more than the judicial exception.” Final Action 9.
The Examiner cites Appellant’s Specification as evidence that the recited
“generic computer structures such as a ‘processor’, ‘machine-readable
medium’ are merely performing or applying the abstract idea” and the
claims require merely “a generic computer system program[med] to perform
the method.” Id.
Appellant argues that “the claims are not directed to ‘certain methods
of organizing human activity.’ Instead the claims are directed to an
improvement to the technology of ‘a social networking service’ that uses ‘a
hierarchical electronic content distribution system to distribute content to a
wider audience.’” Reply Br. 3 (quoting Spec. ¶ 14). “Improvements to this
technical field include using the hierarchical electronic content distribution
system to analyze content that contributed to occurrence of an event and
recommend a second item of content that has not yet been shared by an
organization, for example using a textual analysis.” Id. Appellant argues
that, “[t]hus the claims are not directed to the alleged abstract idea of
organizing human activity.” Id.
Appellant argues that “[t]he category of ‘certain methods of
organizing human activity’ includes examples such as ‘resolving a legal
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dispute,’ ‘showing an advertisement before delivering free content,’
‘voting,’ or ‘rules for a wagering game.’” Id. at 4. “None of these examples
includes a hierarchical electronic content distribution system.” Id. Appellant
argues that “[t]he hierarchical electronic content distribution system is not a
method of organizing human activities, but is instead a practical application
of the alleged abstract idea.” Id.
Appellant also argues that
the claims require “implement[ing] a hierarchical electronic
content distribution system . . . ,” “. . . recommend[ing] a second
item of content . . . based upon a textual analysis . . . ,” “wherein
the at least one hierarchical content network is described by a
graph data structure . . . ,” and “wherein, . . . each particular
child node corresponds to a member of the social networking
service that was a recipient of a share of the item of content. . . .”
Id. at 4. Appellant argues that “[e]ach of these elements, taken alone or in
combination is sufficient to include a practical application of ‘organizing
human activity.’” Id.
Appellant argues that, “[l]ike th[e] self-referential table [in Enfish,
LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)], the claimed
hierarchical content network data structure is a specific type of data structure
designed to improve the way the computing device (e.g., a computerized
social networking service) stores and retrieves data.” Appeal Br. 17.
“Furthermore, content may be recommended that is textually similar to the
item of content in order to offer content curators recommendations on
content to share throughout this network. This is an improvement to the
functionality of the social networking system.” Id. at 18.
Finally, Appellant argues that the claims recite significantly more than
any abstract idea because the recited “data structures provide a means for
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tracking content activities throughout the social networking service and are
thus integral to determinations of causation of subsequent events.” Id. at 20.
Appellant argues that “[t]hese data structures are specific to social
networking services and thus, like the system of DDR Holdings, the claimed
subject matter addresses a particular problem in network-based computing
(e.g., determining whether content shared through a social networking
service caused a subsequent event).” Id. Appellant argues that the “recitation
in the claims of specific computer data structures, social networking
information, and networking – when taken individually, or as a whole thus
establish the claims as ‘necessarily rooted in computer technology in order
to overcome a problem specifically arising in the realm of . . .’ social
networking services.” Id. (quoting Amdocs (Israel) Limited v. Openet
Telecom, Inc., 841 F.3d 1288, 1298 (Fed. Cir. 2016), itself quoting from
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)).
Principles of Law
A. Section 101
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 U.S. 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).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part 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,
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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
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 products and not as an
attempt to patent a mathematical formula.”). Having said that, the 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
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formula to a particular technological environment.” Id. (citation omitted)
(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 (quotation marks 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. (alterations in original) (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.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. See 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”).6 “All USPTO personnel are, as a matter of internal
agency management, expected to follow the guidance.” Id. at 51; see also
October 2019 Update at 1.

6 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the Revised Guidance. USPTO,
October 2019 Update: Subject Matter Eligibility (the “October 2019
Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
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Under the Revised Guidance and the October 2019 Update, 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).7
Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
Revised Guidance, 84 Fed. Reg. at 52–56.

7 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Revised Guidance - Section III(A)(2), 84 Fed. Reg.
at 54–55.
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Revised Guidance Step 2A, Prong 1
Following the Revised Guidance, we first consider whether the claims
recite a judicial exception. The Revised Guidance identifies three groupings
of subject matter included in the abstract idea exception, including “[m]ental
processes—concepts performed in the human mind (including an
observation, evaluation, judgment, opinion).” 84 Fed. Reg. at 52. “If a claim,
under its broadest reasonable interpretation, covers performance in the mind
but for the recitation of generic computer components, then it is still in the
mental processes category unless the claim cannot practically be performed
in the mind.” Id. at 52, n.14.
Claim 18 recites the following limitations:
receive an indication of an occurrence of a marketing-
related event, wherein a participant in the marketing-related
event is a member of the at least one hierarchical content
network;
. . . determine a feature corresponding to the item of
content, the feature including at least one interaction between
the participant and the item of content; [and]
based upon the feature, determine that the item of content
at least partially contributed to the occurrence of the event.
We agree with the Examiner that claim 1 recites an abstract idea in its
limitations that describe “collecting information [and] analyzing it.” Final
Action 8. In other words, the “receiv[ing]” and “determin[ing]” steps of
claim 1 encompass mental processes, which are “concepts performed in the
human mind (including an observation, evaluation, judgment, opinion).”
Revised Guidance, 84 Fed. Reg. at 52 (emphasis added).

8 Appellant did not argue the claims separately, and we select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv).
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Specifically, to “receive an indication of an occurrence of a
marketing-related event” is an observation that a marketing-related event has
occurred. The Specification states that “marketing is the action or business
of promoting and selling products or services, including market research and
advertising.” Spec. ¶ 30. “A marketing-related event may be any event that
evidences an indirect interest in an organization’s products or services.” Id.
¶ 57. “Marketing-related events may include positive increases in metrics
corresponding to an organization’s . . . website or member page.” Id. “Other
events may include product or organization mentions in blog posts, other
content items, a social network feed, news, and the like. Participants may
include members that click on the page, view pages, and the like.” Id.
Claim 1 also states that “a participant in the marketing-related event is
a member of the at least one hierarchical content network.” The
Specification states that
an individual associated with the organization (the content
origin) may select an item of content and may select other
individuals to share the content with. . . . The individuals with
whom the content origin shared the content may then share the
content with some of their connections (both inside and outside
the organization), and these connections may share the content
with their connections (both inside and outside the
organization), and so on.
In this way a hierarchical content distribution network may be
created that is rooted at an organizational level, such as a
company.
Spec. ¶¶ 14–15. The “hierarchical content network” recited in the claims is
therefore the set of social network members with whom an item of content
was shared.
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Thus, receiving an indication that a marketing-related event has
occurred, in which a member of the hierarchical content network was a
participant, requires only an observation that a member of the social
network, with whom an item of content was shared, showed an interest in an
organization’s products or services; e.g., by clicking on or viewing a
relevant web page. Such an observation can be carried out in the human
mind, and is therefore a mental process.
To “determine a feature corresponding to the item of content, the
feature including at least one interaction between the participant and the item
of content” is likewise merely an observation of how a participant interacted
with a specific item of content. The Specification states that interactions
include “positive interactions such as clicks, likes, comments, submission of
forms in the content, clicking on a ‘connect’ button in the content, and the
like may all be positive interactions that the user is interested in the content.”
Spec. ¶ 39. An observation that an individual “liked” or commented on a
specific item of content can be carried out in the human mind.
Finally, to “determine[, based upon the feature,] that the item of
content at least partially contributed to the occurrence of the event” requires
evaluating whether the feature—i.e., the interaction of the participant with
the item of content—indicates that it partially contributed to the occurrence
of the marketing-related event (e.g., click, page view, etc.). The
Specification states that “the system may infer that a particular item of
shared content caused or contributed to a sale of the company’s products.”
Spec. ¶ 27.
The Specification explains that some interactions indicate that a
recipient is interested in the content; e.g., reading, tagging, sharing, or
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commenting on the content. Id. ¶ 28. Other interactions indicate that a
recipient is not interested in the content; e.g., ignoring or deleting the
content. Id. “Interactions in which the recipient expresses interest in the
content may increase the probability that the content caused the event, while
interactions in which the recipient expresses dis-interest in the content may
lower the probability that the content caused the event.” Id.
A person, using their mind, is fully capable of evaluating whether or
not a person’s interaction with an item of content was positive, indicating
interest in the content, and thereby determine that the item of content at least
partially contributed to occurrence of an event. Thus, the step of
“determining[, based upon the feature,] that the item of content at least
partially contributed to the occurrence of the event” is a mental process.
In summary, the “receiv[ing]” and “determin[ing]” steps of the claims
encompass mental processes, notwithstanding the recitation in claim 1 of
“one or more computer processors.” See Revised Guidance, 84 Fed. Reg. at
52, n.14 (“If a claim, under its broadest reasonable interpretation, covers
performance in the mind but for the recitation of generic computer
components, then it is still in the mental processes category unless the claim
cannot practically be performed in the mind.”).
In addition to the steps discussed above, claim 1 also recites:
“responsive to a determination that the item of content at least partially
contributed to the occurrence of the event, recommend a second item of
content that has not yet been shared by an organization, the recommendation
based upon a textual analysis of the item of content and the second item of
content.”
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This limitation, as well, falls under the mental processes category of
abstract ideas: “concepts performed in the human mind (including an
observation, evaluation, judgment, opinion).” Revised Guidance, 84 Fed.
Reg. at 52 (emphasis added). Specifically, a “textual analysis” of two items
of content is an evaluation of the similarity of the text between the items of
content. See Spec. ¶ 65 (“New items of content that are most similar to those
that have been inferred to be responsible for the desirable event may be
recommended to a curator of an organization for sharing.”). A textual
analysis of items of content in order to recommend a second item for
marketing purposes, in turn, involves judging whether a second item of
content would be likely to produce the desired marketing-related effect,
based on a comparison of its text with that of a first item of content that was
determined to contribute to a marketing-related event.
Both the comparison of the similarity of the text of two items of
content, and the judgment regarding a second item of content’s likely
marketing-related effect (based on its textual similarity to a first item of
content) are processes that can be carried out in the human mind. Thus, the
“recommend[ing]” step of claim 1 is also a patent-ineligible abstract idea.
Revised Guidance Step 2A, Prong 2
Although the claims recite an abstract idea, they would still be patent-
eligible if “the claim as a whole integrates the recited judicial exception into
a practical application of the exception.” Revised Guidance, 84 Fed. Reg. at
53. “A claim that integrates a judicial exception into a practical application
will apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception.” Id. The analysis of whether a
claim integrates a judicial exception into a practical application includes
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“[i]dentifying whether there are any additional elements recited in the claim
beyond the judicial exception(s)” and “evaluating those additional elements
individually and in combination to determine whether they integrate the
exception into a practical application.” Id. at 54–55.
Considerations indicating that an exception is integrated into a
practical application include “an additional element [that] applies or uses the
judicial exception in some . . . meaningful way beyond generally linking the
use of the judicial exception to a particular technological environment, such
that the claim as a whole is more than a drafting effort designed to
monopolize the exception.” Revised Guidance, 84 Fed. Reg. at 55. However,
“[a]n additional element . . . [that] merely includes instructions to implement
an abstract idea on a computer, or merely uses a computer as a tool to
perform an abstract idea” is an indication that “a judicial exception has not
been integrated into a practical application.” Id.
Here, in addition to the steps that are equivalent to mental processes,
claim 1 recites “one or more computer processors.” The Specification does
not describe any special requirements for the processors required to
implement the recited social networking service. See, e.g., Spec. ¶ 84
(“Social networking service 2010 may operate on one or more computing
devices, such as for example, one or more server machines.”); ¶ 88
(“[M]achine 3000 upon which any one or more of the techniques (e.g.,
methodologies) discussed herein may perform . . . may be, or be part of, a
social networking system, personal computer (PC), a tablet PC, . . . , or any
machine capable of executing instructions (sequential or otherwise) that
specify actions to be taken by that machine.”); ¶ 91 (“Machine (e.g.,
computer system) 3000 may include a hardware processor 3002 ( e.g., a
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central processing unit (CPU), a graphics processing unit (GPU), a hardware
processor core, or any combination thereof), a main memory 3004,” etc.).
Thus, the processors recited in claim 1 do not represent an additional
element that implements the recited judicial exception in conjunction with a
particular machine or manufacture, which can be an indication of integration
into a practical application. See Revised Guidance, 84 Fed. Reg. at 55.
Claim 1 also specifies that the processors:
implement a hierarchical electronic content distribution
system to create at least one hierarchical content network, the at
least one hierarchical content network corresponding to an item
of content;
. . .
wherein the at least one hierarchical content network is
described by a graph data structure that is rooted at an
organizational member of the social networking service that
shared the item of content, and wherein a first level of the graph
data structure comprises nodes that correspond to members of the
social networking service that identify themselves as being
employed by the organization and with whom the item of content
was shared; and
wherein, in subsequent levels of the graph data structure,
each particular child node corresponds to a member of the social
networking service that was a recipient of a share of the item of
content by its parent node, the parent node of the particular child
node corresponding to a member of the social networking service
that is connected through the social networking service to a
member that corresponds to the particular child node.
With regard to these limitations, the Specification states that “a social
networking service may . . . utiliz[e] a hierarchical electronic content
distribution system to distribute content to a wider audience. In some
examples, an individual associated with the organization (the content origin)
may select an item of content and may select other individuals to share the
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content with.” Spec. ¶ 14. “[T]he content origin may be an employee of the
organization whose job responsibilities include curating content for sharing.”
Id. ¶ 16.
The individuals with whom the content origin shared the
content may then share the content with some of their
connections (both inside and outside the organization), and
these connections may share the content with their connections
(both inside and outside the organization), and so on.
In this way a hierarchical content distribution network may be
created that is rooted at an organizational level, such as a
company.
Id. ¶¶ 14–15.
Thus, “[a] social networking service comprising: one or more
computer processors to: implement a hierarchical electronic content
distribution system to create at least one hierarchical content network, the at
least one hierarchical content network corresponding to an item of content”
simply requires a computer network that allows users to share content with
each other. The “hierarchical content distribution network” for an item of
content is created when one user (the content origin) shares the item with
other users and the users with whom the item was shared in turn share it with
still other users.
Claim 1 states that the hierarchical content distribution network is
described by a graph data structure, rooted at an organizational member (i.e.,
starting with an individual associated with the organization), in which the
first level comprises nodes that correspond to members of the social
networking service who are employees of the organization and nodes in
subsequent levels are members of the social networking service with whom
the item of content was shared.
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These recitations, however, do not structurally limit any aspect of the
claimed system. The “graph data structure” simply provides a representation
of how and with whom the item of content was shared among members of
the social networking service:
The hierarchical content distribution network may be specific to
each item of content. This is because each item of content may
be shared with different associates, and those associates may
share each item of content with different connections of theirs,
and so on. Structurally, a hierarchical content distribution
network may be described by a graph data structure (e.g., a
tree). . . . In this content distribution graph the top-level node in
the graph represents the origin of the content. Nodes on the
second-level represent members who are selected to receive the
content by the top level node – e.g., selected employees. Third
level nodes represent selected connections of second level
nodes, and so on.
Spec. ¶ 17 (emphasis added); see also id. ¶ 19 (“Each time a member shares
an item of content with another member, a node may be added to the content
distribution graph of that item of content.”).
Thus, the recited “graph data structure” simply maps the distribution
of an item of content among members of the social networking service. It
does not require any particular distribution pattern, other than that it starts
with a member associated with the organization sharing the item with
employees of the organization. The recited “graph data structure” does not
impose any limits on the structure of the claimed social networking service.
We conclude that the additional elements of claim 1, beyond the
recited judicial exception, merely represent “instructions to implement an
abstract idea on a computer, or merely use[] a computer as a tool to perform
an abstract idea.” Revised Guidance, 84 Fed. Reg. at 55. Therefore, the
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additional elements do not integrate the recited abstract idea into a practical
application.
Revised Guidance Step 2B
Finally, the Revised Guidance directs us to consider whether the
claims include “additional elements . . . [that] provide[] ‘significantly more’
than the recited judicial exception.” 84 Fed. Reg. at 56. The Revised
Guidance states that an additional element that “simply appends well-
understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception, . . .
is indicative that an inventive concept may not be present.” Id.
As discussed above, and aside from the steps that are expressly
directed to an abstract idea, claim 1 recites “one or more computer
processors to: implement a hierarchical electronic content distribution
system to create at least one hierarchical content network,” where the
“hierarchical content network is described by a graph data structure.”
However, as also discussed above, the Specification does not disclose
any unconventional requirements for the computer processors of the claim,
and the hierarchical content distribution system requires nothing more than a
computer network that allows tracking how and with whom an item of
content is shared among users of a computer network (i.e., a “hierarchical
content network”). Likewise, the “graph data structure” recited in the claims
is simply an abstract representation describing how the item of content has
been shared among users.
Appellant’s Specification itself states that social networking services
that enable users to share information with each other are well-understood,
routine, and conventional:
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A social networking service is a computer or web-based service
that enables users to establish links or connections with persons
for the purpose of sharing information with one another. Some
social network services aim to enable friends and family to
communicate and share with one another, while others are
specifically directed to business users with a goal of facilitating
the establishment of professional networks and the sharing of
business information.
Spec. ¶ 2.
Thus, the claims themselves do not require any unconventional
computer configuration or software, and the Specification does not describe
any unconventional computer implementation as part of the claimed method.
The system of claim 1 therefore requires only a generic computer system
and network, and “the mere recitation of a generic computer cannot
transform a patent-ineligible abstract idea into a patent-eligible invention.”
Alice, 573 U.S. at 223.
In summary, the combination of elements recited in claim 1 does not
amount to significantly more than the judicial exception itself, and under 35
U.S.C. § 101 the claimed methods are ineligible for patenting. Independent
claims 9 and 17 are directed to the method recited in claim 1 and a machine-
readable medium comprising instructions that cause a computer to perform
that method, respectively, and are ineligible for patenting for the same
reasons as discussed with respect to claim 1.
Appellant’s Arguments
Appellant argues that the claims are not directed to an abstract idea
but to “an improvement to the technology of ‘a social networking service’
that uses ‘a hierarchical electronic content distribution system to distribute
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content to a wider audience.’” Reply Br. 3 (citing Spec. ¶ 14).9 Appellant
argues that “details about the technological nature of the present application
can be found throughout the specification, for example, ‘Structurally, a
hierarchical content distribution network may be described by a graph data
structure (e.g., a tree) which is referred to herein for convenience of
description as a content distribution graph.’” Id. (citing Spec. ¶ 17). Along
the same line, Appellant argues that, “[l]ike [Enfish’s] self-referential table,
the claimed hierarchical content network data structure is a specific type of
data structure designed to improve the way the computing device (e.g., a
computerized social networking service) stores and retrieves data.” Appeal
Br. 17 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016)).
Appellant argues that “the claims recite particular manners of sharing
content, particular ways of storing data regarding the sharing of content, and
particular ways of determining attribution of content to certain other events.
This provides an improvement to the traditional content sharing regimes
which cannot track these networks.” Id. at 18. Appellant argues that “[t]he
hierarchical electronic content distribution system is not a method of
organizing human activities, but is instead a practical application of the
alleged abstract idea, which limits any alleged abstract idea to a particular
technical environment with a graph data structure.” Reply Br. 3. Similarly,
Appellant argues that “this data structure is used to improve the social

9 As Appellant notes (Reply Br. 1), the Final Action was mailed and the
Appeal Brief was filed before the Office issued the 2019 Revised Patent
Subject Matter Eligibility Guidance. The Answer cited and applied the
Revised Guidance, and Appellant responded to that analysis in the Reply
Brief.
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networking service by establishing a correlation between a content share and
a subsequent external event.” Appeal Br. 18.
These arguments are not persuasive. As discussed above, a
“hierarchical content distribution network” just refers to the path by which
information is shared in a social network, and the graph data structure is just
an abstract representation of that path. See Spec. ¶¶ 14–15 (“The individuals
with whom the content origin shared the content may then share the content
with some of their connections . . . , and these connections may share the
content with their connections . . . , and so on. In this way a hierarchical
content distribution network may be created.”); see also id. ¶ 17
(“Structurally, a hierarchical content distribution network may be described
by a graph data structure (e.g., a tree).”). The recited hierarchical content
distribution network is therefore not analogous to the self-referential table
data structure in Enfish, and neither the hierarchical content distribution
network nor the graph data structure recited in claim 1 represents a
technological improvement.
“[U]sing the hierarchical electronic content distribution system to
analyze content” (Reply Br. 3), or to correlate a content share and an
external event (Appeal Br. 18), is also not a technological improvement.
Neither is allowing “content [to] be recommended that is textually similar to
the item of content in order to offer content curators recommendations on
content to share.” Appeal Br. 18.
Analyzing the hierarchical content distribution network—i.e., who
shared information with whom—is part of the abstract idea recited in claim
1, because it can practically be performed in the human mind. See Revised
Guidance, 84 Fed. Reg. at 52 (mental processes include observation and
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evaluation). Analyzing the text of two items of content in order to
recommend a second item of marketing-related content is also part of the
recited abstract idea, because evaluation and judgment are mental processes.
Even if the analysis is improved by use of a hierarchical content distribution
system, an improved abstract idea is still ineligible for patenting. See SAP
Amer., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (“The
claims here are ineligible because their innovation is an innovation in
ineligible subject matter.”).
Appellant argues that
the claims recite specific data structures that . . . are specific to
social networking services and thus, like the subject matter
found patent eligible in DDR Holdings[ v. Hotels.com, 773 F.3d
1245 (Fed. Cir. 2014)] the claimed subject matter addresses a
particular problem in network-based computing (e.g.,
determining whether content shared through a social
networking service caused a subsequent event).
Appeal Br. 20. Appellant argues that “[t]he recitation in the claims of
specific computer data structures, social networking information, and
networking – when taken individually, or as a whole thus establish the
claims as ‘necessarily rooted in computer technology in order to overcome a
problem specifically arising in the realm of . . .’ social networking services.”
Id. (citation omitted).
We are not persuaded that DDR Holdings supports the patent
eligibility of the instant claims. The invention in DDR Holdings “address[ed]
the problem of retaining website visitors that, if adhering to the routine,
conventional functioning of Internet hyperlink protocol, would be instantly
transported away from a host’s website after ‘clicking’ on an advertisement
and activating a hyperlink.” DDR Holdings, 773 F.3d at 1257. To solve this
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problem, “the patent claims call for an ‘outsource provider’ having a web
server which directs the visitor to an automatically-generated hybrid web
page that combines visual ‘look and feel’ elements from the host website
and product information from the third-party merchant’s website related to
the clicked advertisement.” Id.
The instant claims, by contrast, include no technological improvement
that is comparable to the invention in DDR Holdings. Rather, the method of
claim 1 merely tracks the path of an item of content as it is shared among
members of a social network, along with tracking the interactions of
members with the item of content, then analyzes the acquired data after a
marketing-related event in order to determine whether the item of content
contributed to the event and recommends a second item of content. The
claimed method of acquiring and analyzing data is not comparable to the
technical solution at issue in DDR Holdings. As the DDR Holdings court
noted, “not all claims purporting to address Internet-centric challenges are
eligible for patent.” Id. at 1258 (noting that a method of advertising said to
be previously unknown and never employed on the Internet before was
nonetheless patent-ineligible).
In summary, we conclude that claim 1 is directed to a patent-ineligible
abstract idea without significantly more. We affirm the rejection of claim 1
under 35 U.S.C. § 101. Claims 2–7, 9–15, and 17–23 fall with claim 1
because they were not argued separately.
CONCLUSION
The Examiner’s rejections under 35 U.S.C. § 103 are reversed.
However, the rejection of claims 1–7, 9–15, and 17–23 under 35 U.S.C.
§ 101 is affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9–15,
17–23
101 Eligibility 1–7, 9–15,
17–23

1–6, 9–14,
17–22
103 Beck, Lyras 1–6, 9–14,
17–22
7, 15, 23 103 Beck, Lyras,
Khabazian
7, 15, 23
Overall
Outcome
1–7, 9–15,
17–23

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