Polson, Peter

Patent Trials and Appeals Board

Sep 24, 2021

2021001664 (P.T.A.B. Sep. 24, 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.
14/740,248 06/15/2015 Peter Polson FSP0953 4560
29586 7590 09/24/2021
Rowan TELS LLC
431 H Street
Crescent City, CA 95531
EXAMINER
BRANDENBURG, WILLIAM A
ART UNIT PAPER NUMBER
3600
NOTIFICATION DATE DELIVERY MODE
09/24/2021 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):
charles.mirho@rowantelsllc.com
eofficeaction@appcoll.com
jane.clark@rowantelsllc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER POLSON
____________

Appeal 2021-001664
Application 14/740,248
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
JAMES P. CALVE, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 12–18. We have jurisdiction under 35 U.S.C.
§ 6(b).
SUMMARY OF DECISION
We AFFIRM.
THE INVENTION
Appellant claims method system for tracking advertisement
effectiveness that transforms receipt record from financial transactions,

1 Appellant, which refers to “applicant” as defined in 37 C.F.R. § 1.42,
identifies the real party in interest as Tiller LLC. Appeal Br. 3.
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combined with consumer location records and demographic records, to
control an allocation of advertisement resources. (Spec. ¶ 4, Title).
Claim 12 is representative of the subject matter on appeal.
12. A system comprising:
a ratings engine inputting receipt records for at least one
consumer from a plurality of point of sales systems;
the ratings engine transforming the receipts records into a
purchase rate for the at least one consumer, in response to
detecting at least one target of interest associated with an
advertisement campaign, in the receipt records;
a probability engine inputting location and demographic
information from at least one consumer device;
the probability engine transforming the location and the
demographic information into viewing probability metrics
associated with the advertisement campaign, for the at least one
consumer, through:
computing a location score by comparing location
information of the at least one consumer to location information
of the advertisement campaign; and
combining the location score with the demographic
information;
assigning the at least one consumer a probability score,
wherein the probability score is initially a minimum point
value;
on condition that the at least one consumer visits a
physical merchant in a target location where billboards
associated with the advertising campaign are posted,
incrementing the probability score by a first point value;
on condition that the at least one consumer device
indicates passage through the target location, incrementing the
probability score by the first point value;
on condition that the at least one consumer resides in the
target location, incrementing the probability score by a second
point value that is higher than the first point value;
on condition that the at least one consumer is associated
with a subscription to a local print medium featuring aspects of
the advertisement campaign, incrementing the probability
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score by the second point value;
on condition that the at least one consumer has been
exposed to an advertisement related to the advertising campaign
via direct advertisement on an associated application,
incrementing the probability score by a third point value that is
higher than the second point value;
generating a rating from the location score and the
probability score assigned to the at least one consumer;
a controller transforming the purchase rates from the
ratings engine and the viewing probability metrics from the
probability engine into an indicator for the at least one
consumer through:
(a) comparing the purchase rate before the advertisement
campaign to the purchase rate during the advertisement
campaign; and
(b) generating a normalized purchase rate for the at least
one consumer through comparison of a control group purchase
rate and consumer purchase rate;
(c) wherein the controller performs (a) and (b) in
response to the viewing probability metrics being greater than a
viewing probability cutoff; the controller further generating an
advertisement campaign control, in response to comparing the
indicator to a success metric associated with the advertisement
campaign for controlling advertisement distribution; and
an advertisement controller communicating the
advertisement campaign control to a digital ad distributor, a
video streaming service, and a web server to control
communication of digital advertising to end devices associated
with the at least one consumer.

THE REJECTION
Claims 12–18 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.

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ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 12–18 under 35 U.S.C. § 101.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of those
patent-ineligible concepts. If so, . . . then ask, “[w]hat else is there
in the claims before us?” To answer that question, . . . consider
the elements of each 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. . . . [The Court] described step two of this analysis
as a search for an “‘inventive concept’”—i.e., an element or
combination of elements that is “sufficient to ensure that the
patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012))
(citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Federal Circuit has
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the specification, based on whether ‘their character as
a whole is directed to excluded subject matter.’” See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015)). It asks whether the focus of the claims is on a specific improvement
in relevant technology or on a process that itself qualifies as an “abstract
idea” for which computers are invoked merely as a tool. See id. at 1335–36.
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In so doing we apply a “directed to” two prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, pp. 50–57 (Jan. 7, 2019) (“Guidance”).
The Examiner determines that the claims are directed to using
transaction receipt records as well as location and demographic records to
determine a purchase rate and probability metric for the apparent purpose of
determining advertising effectiveness. (Final Act. 4). The Examiner
determines that the limitations in claim 12 fall within the certain method of
organizing human activity and mathematical concepts. The Examiner finds
that the additional elements are recited at a high level of generality such that
it amounts to no more than mere instructions to apply the exception using a
generic computer component and do not integrate the judicial exceptions
into a practical application and do not amount to significantly more than the
recited judicial exceptions. The Examiner also finds that the additional
functional limitations such as inputting, generating etc. are considered to be
implementations of generic computer functions and/or extra solution activity
that does not meaningfully limit the claim. (Final Act. 5).
The Specification discloses that advertising is ubiquitous in many
aspects of life and huge amounts of resources are invested to promote and
market brands to consumers through advertising. Due to the dearth of data
about actual individualized consumer conversions and advertisement
exposure, misjudgments are made about advertisement effectiveness, which
leads to a mis-allocation of large portions of the resources and effort. (Spec.
¶ 2). The embodiments of the system of the invention transform receipt
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records from financial transactions, combined with consumer location
records and demographic records, to control an allocation of advertisement
resources. (Spec. ¶ 4). The Specification also discloses that the various
aspects of the invention can be implemented, individually and/or
collectively, by a wide range of hardware, software, firmware, or any
combination thereof and can be viewed as being composed of various types
of “circuitry.” The “circuitry” forming a general purpose computing device
configured by a computer program. (Spec. ¶ 89).
Consistent with this disclosure claim 12 recites “ratings engine
inputting receipt records,” “transforming the receipts records into a purchase
rate,” “an advertisement controller communicating the advertisement
campaign control to a digital ad distributor . . . .”
We thus agree with the Examiner’s findings that the claims are
directed to using transaction receipt records as well as location and
demographic records to determine a purchase rate and probability metric for
the apparent purpose of determining advertising effectiveness. As such,
claim 12, for example, is directed to advertising which is considered the
judicial exception of a certain method of organizing human activity.
Guidance, 84 Fed. Reg. at 55.
We also agree that claim 12 is directed to a mathematical concept
because claim 12 recites computing a location score, combining the location
score with the demographic information, and incrementing the probability
score by a first point value, second and third value etc.
Turning to the second prong of the “directed to test,” claim 1 requires
“a ratings engine,” “a probability engine,” “one consumer device,” and “a
controller.” These recitations do not impose “a meaningful limit on the
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judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Guidance, 84 Fed. Reg. at 53. We
find no indication in the Specification, nor does Appellant direct us to any
indication, that the operations recited in claim 12 invoke any inventive
programming, require any specialized computer hardware or other inventive
computer components, i.e., a particular machine, or that the claimed
invention is implemented using other than generic computer components to
perform generic computer functions. See DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there
can remain no doubt: recitation of generic computer limitations does not
make an otherwise ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention affects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention or that otherwise indicates that the
claimed invention integrates the abstract idea into a “practical application,”
as that phrase is used in the revised Guidance. See Guidance, 84 Fed. Reg.
at 55.
In this regard, the recitation does not affect an improvement in the
functioning of the ratings engine, probability engine, consumer device or
controller or other technology, does not recite a particular machine or
manufacture that is integral to the claims, and does not transform or reduce a
particular article to a different state or thing. See Guidance, 84 Fed. Reg. at
55. Thus, claim 12 is directed to judicial exceptions that are not integrated
into a practical application and thus claim 12 is directed to abstract ideas.
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Turning to the second step of the Alice analysis, because we find that
claim 12 is directed to abstract ideas, the claim must include an “inventive
concept” in order to be patent-eligible, i.e., there must be an element or
combination of elements that is sufficient to ensure that the claim in practice
amounts to significantly more than the abstract idea itself. See Alice, 573
U.S. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–73).
The introduction of computer elements into the claims does not alter
the analysis at Alice step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly 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.”
Alice, 573 U.S. at 223 (alterations in original) (citations omitted).
Instead, “the relevant question is whether claim 12 here does more
than simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. It does not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to retrieve, select, and apply decision criteria to data and modify
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the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. All of these computer functions are
well-understood, routine, conventional activities previously known to the
trading industry. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016); see also In re Katz Interactive Call Processing Patent
Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower
construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those
functions can be achieved by any general purpose computer without special
programming”). In short, each step does no more than require a generic
computer to perform generic computer functions. As to the data operated
upon, “even if a process of collecting and analyzing information is ‘limited
to particular content’ or a particular ‘source,’ that limitation does not make
the collection and analysis other than abstract.” SAP Am. Inc. v. InvestPic,
LLC, 890 F.3d 1016, 1022 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim 12 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
access/display is equally generic and conventional or otherwise held to be
abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir.
2014) (sequence of receiving, selecting, offering for exchange, display,
allowing access, and receiving payment recited an abstraction), Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (holding that sequence of data retrieval, analysis, modification,
generation, display, and transmission was abstract), Two-Way Media Ltd. v.
Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
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(holding sequence of processing, routing, controlling, and monitoring was
abstract). The ordering of the steps is, therefore, ordinary and conventional.
Claim 12 does not, for example, purport to improve the functioning of
the computer itself. As we stated above, the claims do not affect an
improvement in any other technology or technical field. The Specification
spells out different generic equipment and parameters that might be applied
using this concept and the particular steps such conventional processing
would entail based on the concept of information access under different
scenarios. (See, e.g., Spec. ¶¶ 88–89). Thus, claim 12 at issue amounts to
nothing significantly more than instructions to apply the abstract ideas using
some unspecified, generic computer. Under our precedents, that is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 226.
We have reviewed and considered all the arguments (Appeal Br. 11–
27) Appellant has submitted concerning the patent eligibility of the claims
before us that stand rejected under 35 U.S.C. § 101. We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of emphasis, we will address various
arguments in order to make individual rebuttals of same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the abstraction cited in the Office Action is de
facto a practical application because it utilizes a combination of digital and
physical inputs to determine a trajectory of purchases to control a digital ad
distributor, a video streaming service and a web server to communicate
digital advertising to end devices. In the Appellant’s view, the abstraction is
well integrated into a practical and technological application. (Appeal Br.
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13). Appellant does not explain how the recitations in claim 12 meet the
criteria set out in the Guidance for a practical application. As we discussed
above, claim 12 does not recite improvements to the additional elements
recited, does not recite a particular machine or a transformation or reduction
of a particular article to a different state or thing.
Appellant argues that including all features in combination, the claims
are most reasonably and clearly directed to a complex and unconventional
algorithm for controlling the distribution of digital advertising and not an
abstract idea. (Appeal Br. 15–16). This argument is not persuasive because
even if true an algorithm as is recited in claim 12 falls under the other
category of a mathematical concept and therefore itself is a judicial
exception. Guidance, 84 Fed. Reg. at 52. We note that the Examiner
determined that the claims recite a certain method of organizing human
activity and a mathematical concept.
Appellant argues that the claims are not directed to an abstract idea
because the claims recite a particular technological process that achieves a
useful and concrete technological result via a complex combination of
unconventional steps. (Appeal Br. 16). This argument is not persuasive
because even if the Appellant is correct that the claims recite a particular
technological process that achieves a useful and concrete result, the claims
still recite a certain method of organizing human activity because they relate
to advertising and a mathematical concept because the claim recite
calculating steps. We note that even if the steps are unconventional, the
steps are still directed to organizing human activity and mathematical
concepts. To the extent Appellant maintains that the limitations of claim 1
necessarily amount to “significantly more” than an abstract idea because the
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claimed apparatus is allegedly patentable over the prior art, Appellant
misapprehends the controlling precedent. Although the second step in the
Alice/Mayo framework is termed a search for an “inventive concept,” the
analysis is not an evaluation of novelty or non-obviousness, but rather, a
search for “an element or combination of elements that is ‘sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.”’ Alice, 573 U.S. at 217. A novel and
nonobvious claim directed to a purely abstract idea is, nonetheless, patent-
ineligible. See Mayo, 566 U.S. at 90.
Appellant argues that the Examiner must provide evidence that the
entire combination of claimed features are routine and conventional.
Our reviewing court in in Berkheimer v. HP Inc., 890 F.3d 1369, 1374
(Fed. Cir. 2018) held that the inquiry as to whether a claim element or
combination is well-understood, routine, and conventional falls under step
two in the § 101 framework. (Citation omitted). As such, the inquiry is
whether the “additional elements” not the entire combination of the claimed
features are well–understood, routine, and conventional. Here, Appellant
does not argue that the Examiner failed to make a determination that the
additional elements are well-understood, routine, and conventional.
We not persuaded that the claims are similar to the claims in Diamond
v. Diehr, 450 U.S. 175, 177 (1981). The claims in Diehr were directed to a
process for curing synthetic rubber, and recited a series of steps (e.g.,
installing rubber in a press, closing the mold, constantly determining the
temperature of the mold, constantly recalculating the appropriate cure time
through the use of the Arrhenius equation and a digital computer, and
automatically opening the press at the proper time) that together provided a
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significant and novel practical application of the well-known Arrhenius
equation and transformed uncured synthetic rubber into a new state or thing.
See Diehr, 450 U.S. at 184–87. The Court determined that although the
invention employed a well-known equation, it used that equation in a
process designed to solve a technological problem in conventional industry
practice. Alice Corp., 573 U.S. at 223 (citing Diehr, 450 U.S. at 177). The
claims in Diehr were, thus, patent-eligible because they improved an
existing technological process. Id.
The Appellant contends that the claims recite the application of a
computer algorithm to improve a statutory process, specifically the
controlled distribution of digital advertising using video streaming service
and web server. (Appeal Br. 25). However, merely taking a manual,
mental, or computer-implemented action is not transforming the data from
one form to another, such as a molded product, and is not patent eligible, as
the Supreme Court made clear in Gottschalk v. Benson, 409 U.S. 63, 71–72
(1972). In contrast to the situation in Diehr, distribution of digital
advertising using a view streaming service and a web server does not result
in any analogous transformation of matter from one state (i.e., raw rubber) to
another (i.e., a molded product). And the claim does not provide details on
how a technological process is changed or improved. Rather, any change or
improvement lies in the abstract idea.
We are unpersuaded of error on the part of the Examiner by
Appellant’s argument that the claims produce an improved controller for
distributing digital advertising that manifests physically as visual and/or
auditory effects on the end user device because the Appellant does not
explain how the controller is improved. In addition, as we find above, the
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additional element such as the controller are generic computer elements that
have not been improved.
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 12. We will also sustain the Examiner’s rejection of the remaining
claims for the same reason.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 12–18 under
35 U.S.C. § 101.

CONCLUSION
The decision of the Examiner to reject claims 12–18 is affirmed.
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
12–18 101 Eligibility 12–18

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