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Patent Trials and Appeals Board

Feb 12, 2021

2019003845 (P.T.A.B. Feb. 12, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/339,703 07/24/2014 Suresh K ANNAPPINDI 132770.00106 4909
122391 7590 02/12/2021
Chad Peterson
4409 Tetbury Pl
Raleigh, NC 27613
EXAMINER
HAMERSKI, BOLKO M
ART UNIT PAPER NUMBER
3694
MAIL DATE DELIVERY MODE
02/12/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte SURESH K. ANNAPPINDI
________________

Appeal 2019-003845
Application 14/339,703
Technology Center 3600
________________

Before JEAN R. HOMERE, BRADLEY W. BAUMEISTER, and
ERIC B. CHEN, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 2–11, 13–15, 17, and 18, which constitute all of the
pending claims.1 Appeal Br. 4. Claims 1, 12, 16, 19, and 20 have been
canceled. Appeal Br. 11–16 (Claims App.).
We have jurisdiction under 35 U.S.C. § 6(b). The Board conducts a
limited de novo review of the appealed rejections for error based upon the
issues identified by Appellant, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). We AFFIRM.

1 Appellant identifies the inventor as the real party in interest. Appeal Brief
filed October 9, 2018 (“Appeal Br.”) 2.
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CLAIMED SUBJECT MATTER
Appellant describes the claimed subject matter as follows:
Systems and methods are described for scoring
consumers’ credit risk by determining consumers’ income risk
and future ability to pay. Methods are provided for measuring
consumers’ income risk by analyzing consumers’ income loss
risk, income reduction risk, probability of continuance of
income, and economy’s impact on consumers’ income. In one
embodiment, a method is provided to evaluate an individual’s
creditworthiness using income risk based credit score thereby
providing creditors, lenders, marketers, and companies with
deeper, new insights into consumer’s credit risk and repayment
potential. By predicting consumers’ income risk and the
associated creditworthiness the present invention increases the
accuracy and reliability of consumers’ credit risk assessments,
results in more predictive and precise consumer credit scoring,
and offers a new method of rendering a forward-looking
appraisal of an individual’s ability to repay a debt or the ability
to pay for products and services.
Spec. Abstr.

STATEMENT OF THE REJECTIONS2
Claims 2–11, 13–15, 17, and 18 stand rejected under 35 U.S.C. § 101
as being directed to a judicial exception to patent-eligible subject matter (an
abstract idea) without reciting significantly more. Final Act. 12–23; see also
Appeal Br. 4 (stating, “[c]laim 12 was canceled in an amendment filed on
December 7th, 2017”).

2 The Examiner initially rejected claim 12 under 25 USC § 112(b) (pre-AIA
§ 112, ¶ 2) and under 35 U.S.C. § 103(a). Final Act. 8–9, 24. But Appellant
subsequently canceled claim 12, mooting the rejection. Appeal Br. 4
(stating, “[c]laim 12 was canceled in an amendment filed on December 7th,
2017”).
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Claims 2, 7–10, 15, and 18 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Feinstein (US 7,970,676 B2; issued June 28, 2011),
Scorelogix, Job Security Score Predicts Unemployment Risk with 85%
Accuracy: Promises to Lower Credit and Mortgage Losses November 20,
2007 (http://www.prnewswire.com/news/scorelogix) (“Scorelogix 2007”),
and Annappindi (US 2005/0125259 A1; published June 9, 2005). Final Act.
24–41.
Claims 3–6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Feinstein, Scorelogix 2007, Annappindi, Robert B. Avery
et al., Consumer Credit Scoring: Do Situational Circumstances Matter?
28(4) Journal of Banking and Finance 835–856 ISSN 0378-4266 (2004)
(“Avery”), and Zarikian (US 7,653,593 B2; issued Jan. 26, 2010). Final Act.
41–48.
Claims 11 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Feinstein, Scorelogix 2007, Annappindi, Avery, and
Scorelogic, US 78948553 trademark application, Specimen, mail/create date
of August 6, 2006, Scorelogic® Smarter Risk Solutions pp. 1–2
http://www.scorelogix.com (July 18, 2006) (“2006 Specimen”). Final
Act. 48–55.
Claim 17 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Feinstein, Scorelogix 2007, Annappindi, and
2006 Specimen. Final Act. 58–59.

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THE SECTION 101 REJECTION
The Claimed Subject Matter
Independent claim 2 is representative of the claimed subject matter.3
Claim 2 is reproduced below with emphasis added to the claim language that
recites an additional element beyond an abstract idea:
2. A method to determine an individual’s credit score,
comprising:
(a) Calculating the individual’s income reduction risk,
comprising
generating by a computer, an unemployment risk
using the individual’s personal data, including age,
education, demographic data and employment history, and
using historical and projected unemployment and hiring
trends, historical and projected macroeconomic and
microeconomic data, and
generating by the computer, the income loss [sic:
reduction] risk for the individual using the unemployment
risk;
(b) Calculating the individual’s income loss risk,
comprising
generating by a computer, an unemployment risk
using the individual’s personal data, including age,
education, demographic data and employment history, and
using historical and projected unemployment and hiring
trends, historical and projected macroeconomic and
microeconomic data, and

3 Appellant argues all of the claims together as a group. Appeal Br. 5–7.
Accordingly, we select independent claim 2 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv) (“When multiple claims subject to the same ground of
rejection are argued as a group or subgroup by appellant, the Board may
select a single claim from the group or subgroup and may decide the appeal
as to the ground of rejection with respect to the group or subgroup on the
basis of the selected claim alone.”).
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generating by the computer, the income reduction
[sic: loss] risk for the individual using unemployment risk;
and
(c) Using the individual’s income reduction risk, the
individual’s income loss risk, the individual’s personal
information, and population data to calculate the individual’s
credit score.
Appeal Br. 11.
The Examiner’s Findings
The Examiner finds that the claims are directed to the abstract idea of
evaluating risk (Final Act. 12–14) and more specifically to “a computer-
implemented method of modelling consumer credit risk based on
consumers’ income or unemployment risk” (id. at 13). The Examiner
determines that these concepts relate to fundamental economic practices,
mathematical formulas/relationships, and certain methods of organizing
human activity. Id.
The Examiner additionally finds that the claims
do not include additional elements that are sufficient to amount
to significantly more than the judicial exception because the
additional elements when considered both individually and as an
ordered combination do not amount to significantly more than
the abstract idea the claims are directed to because the claims do
not provide improvements to another technology or technical
field, improvements to the function of the computer itself, do not
provide meaningful limitations beyond general linking the use of
an abstract idea to a particular technological environment, and
amount to a mere instruction to implement on a computer and/or
network the abstract ideas recited in the claims.
Final Act. 22.
The Examiner concludes,
The claims recite generic computer and network
limitations/elements that when considered separately, perform in
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a well-understood, routine, and purely conventional manner.
The additional limitations are merely generic computer
components performing well-understood, routine, and
conventional activities such as performing repetitive
calculations; receiving, processing, and storing data; electronic
recordkeeping; and automating mental tasks; which are computer
functions courts have recognized to be well-understood, routine,
and conventional.
Id. at 22–23.
Appellant’s arguments will be addressed below in the Analysis
section of this Opinion.
Principles of Law
A. SECTION 101:
Inventions for a “new and useful process, machine, manufacture, or
composition of matter” generally constitute patent-eligible subject 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. 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-step framework, described in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), and Alice. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–
77). In accordance with that framework, we first determine what concept
the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the
claims before us are drawn to the concept of intermediated settlement, i.e.,
the use of a third party to mitigate settlement risk.”); see also Bilski v.
Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’
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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
formula to a particular technological environment.” Id. at 191 (citing
Benson and Flook); see also, 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.”).
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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 (internal 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 35 U.S.C. § 101. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Guidance”), updated by USPTO, October 2019
Update: Subject Matter Eligibility (available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) (“October 2019
Guidance Update”); see also October 2019 Patent Eligibility Guidance
Update, 84 Fed. Reg. 55942 (Oct. 18, 2019) (notifying the public of the
availability of the October 2019 Guidance Update). “All USPTO personnel
are, as a matter of internal agency management, expected to follow the
guidance.” 2019 Guidance, 84 Fed. Reg. at 51; see also October 2019
Guidance Update at 1. The Manual of Patent Examining Procedure
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(“MPEP”) now incorporates this revised guidance and subsequent updates at
Section 2106 (9th ed. Rev. 10.2019, rev. June 2020).4
Under MPEP § 2106, we first look to whether the claim recites the
following:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application.5
MPEP §§ 2106.04(a), (d).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, [and] conventional activity” in the field; 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.
MPEP § 2106.05(d).

4 All references to the MPEP are to the Ninth Edition, Revision 10.2019
(Last Revised June 2020), unless otherwise indicated.
5 “Examiners evaluate integration into a practical application 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.” MPEP § 2106.04(d)II.
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Analysis
STEP 2A, PRONG 1:
Under step 2A, prong 1, of the 2019 Guidance, we first look to
whether the claim recites any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activities such as a fundamental economic practice, or
mental processes). MPEP § 2106.04(a).
Limitation (a) of claim 2 recites a step of calculating a number (“the
individual’s income reduction risk”) through the use of other gathered and
generated data. Limitation (b) similarly recites a step of calculating a
number (“the individual’s income loss risk”) through the use of other
gathered and generated data. Finally, limitation (c) recites a step of
calculating a third number (“the individual’s credit score”) by using
unemployment risk using even further data including the individual’s
income reduction and loss risks, as generated in steps (a) and (b).
As such, each of limitations (a) through (c) recites a step of
performing a mathematical concept, such as determining a mathematical
relationship or performing a mathematical calculation. The 2019 Guidance
expressly recognizes mathematical relationships and calculations as
constituting patent-ineligible abstract ideas. MPEP §§ 2106.04(a).
Calculating numbers also constitutes a mental process, such as an
evaluation or judgment that can be performed in the human mind. The
2019 Guidance expressly recognizes such mental processes as constituting
patent-ineligible abstract ideas. MPEP §§ 2106.04(a), (d). For these
reasons, the combination of limitations (a) through (c) recites a judicial
exception to patent-eligible subject matter under step 2A, prong 1, of the
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2019 Guidance. See RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322,
1327 (Fed. Cir. 2017) (“Adding one abstract idea . . . to another abstract idea
. . . does not render the claim non-abstract.”)
STEP 2A, PRONG 2:
Under step 2A, prong 2, of the 2019 Guidance, we next analyze
whether claim 2 recites additional elements that individually or in
combination integrate the judicial exception into a practical application.
2019 Guidance, 84 Fed. Reg. at 53–55. The 2019 Guidance identifies
considerations indicative of whether an additional element or combination of
elements integrate the judicial exception into a practical application, such as
an additional element reflecting an improvement in the functioning of a
computer or an improvement to other technology or technical field. Id. at
55; MPEP § 2106.05(a).
The only language of claim 2 that is directed to an additional element
beyond the recited abstract ideas is that in limitations (a) and (b), which
recite that unemployment risk, the income reduction risk, and the income
loss risks are generated “by a computer.” Appeal Br. 11. As such,
limitations (a) and (b) merely recite a generic computer that amounts to mere
instructions to implement the abstract idea on a computer, and therefore do
not recite sufficient additional elements to integrate the abstract ideas into a
practical application under Step 2A, prong 2. See Alice, 573 U.S. at 226
(determining that the claim limitations “data processing system,”
“communications controller,” and “data storage unit” were generic computer
components that amounted to mere instructions to implement the abstract
idea on a computer); October 2019 Guidance Update at 11–12 (recitation of
generic computer limitations for implementing the abstract idea “would not
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be sufficient to demonstrate integration of a judicial exception into a
practical application”).
Appellant argues, “a method to generate ‘[a] credit score’ by itself is
not necessarily merely an abstract idea” because there have been numerous
patents issued by the USPTO on the subject matter of calculating credit
scores and optimizing insurance policies. Appeal Br. 7. This argument is
unpersuasive because even if we were to assume for the sake of argument
that some given method of generating a credit score does not necessarily
recite an abstract idea, Appellant does not present persuasive arguments for
why the present claim integrates that abstract idea into a practical
application. See In re Gyurik, 596 F.2d 1012, 1018 n.15 (CCPA 1979).
(“Each case is determined on its own merits” and “[i]n reviewing specific
rejections of specific claims, this court does not consider allowed claims in
other applications or patents”).
Appellant next argues, “the present invention describes a
fundamentally new approach to evaluate an individual’s credit score, using
factors that have never been taken into consideration in the prior art, such as
the unemployment risk and the income reduction and loss risk[,] to generate
an individual’s credit score.” Appeal Br. 7. This argument is unpersuasive
because “[t]he ‘novelty’ of any element or steps in a process, or even of the
process itself, is of no relevance in determining whether the subject matter of
a claim falls within the § 101 categories of possibly patentable subject
matter.” Diamond v. Diehr, 450 U.S. 175, 188–89 (1981). A novel and
nonobvious claim directed to a purely abstract idea is, nonetheless, patent
ineligible. Mayo, 566 U.S. at 90.
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Appellant also argues, “the claimed processes are a technologically
rooted solution to a technology-based problem of unemployment risk
assessment and risk prediction.” Appeal Br. 7. Appellant asserts, “the
invention uses the complex capabilities of the technology,” and “[i]n order
to calculate the unemployment risk score, a large population data set and
statistical techniques need to be used.” Id.
This argument is unpersuasive at least because it is not commensurate
in scope with the claim language. Claim 2 does not recite any limitation that
would necessarily preclude the calculations from being done with pencil and
paper or at least with a general purpose computer. Nor does Appellant
provide persuasive evidence to support the assertion, “[t]he execution of the
claims requires a processor and non-trivial computation power.” Appeal
Br. 7. It is well settled that arguments of counsel cannot take the place of
factually supported objective evidence. See, e.g., In re Huang, 100 F.3d
135, 139–40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984).
For these reasons, Appellant does not persuade us that claim 2 is
directed to an improvement in the function of a computer or to any other
technology or technical field. MPEP § 2106.05(a). Nor does Appellant
persuasively demonstrate that claim 2 is directed to a particular machine or
transformation, or that claim 2 adds any other meaningful limitations for the
purposes of the analysis under Section 101. MPEP §§ 2106.05(b), (c), (e).
Accordingly, Appellant does not persuade us that claim 2 integrates the
recited abstract ideas into a practical application within the meaning of the
2019 Guidance. See 2019 Guidance, 84 Fed. Reg. at 52–55.
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STEP 2B:
Under step 2B of the 2019 Guidance, we next analyze whether
claim 2 adds any specific limitations beyond the judicial exception that,
either alone or as an ordered combination, amount to more than “well-
understood, routine, conventional” activity in the field. 2019 Guidance,
84 Fed. Reg. at 56; MPEP § 2106.05(d).
Appellant’s Specification, by describing computer-related components
at a high level without details of structure or implementation, indicates that
the recited additional element—“a computer”—is well understood, routine
and conventional. See, e.g., Spec. 21 (describing “the computer
implemented system” broadly as including “a data processing unit (4402),”
“a consumer score generating computer (4404),” and “an administrator
workstation computer (4405)”); see also id. at 38 (wherein originally filed
claim 1 broadly sets forth, “wherein the risk forecasting computer consists of
a microprocessor CPU, memory, databases, software programs, analytical
and statistical programs, input and output devices, and networking
capability”).
Furthermore, Appellant’s Specification does not indicate that
consideration of these conventional elements as an ordered combination
adds any significance beyond the additional elements, as considered
individually. Rather, Appellant’s Specification indicates that the invention
is directed to a new abstract idea that is made more efficient with generic
computer components—generating a credit score based on different data
than was previously used. See, e.g., Spec. 6 (“The key difference between
traditional credit scores and current invention is that traditional credit
scoring systems compare an applicant’s credit profile to credit experiences
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of others whereas the current scoring system compares an applicant's income
risk profile to credit experiences of others.”).
For these reasons, we determine that claim 2 does not recite additional
elements that, either individually or as an ordered combination, amount to
significantly more than the judicial exception within the meaning of the
2019 Guidance. 2019 Guidance, 84 Fed. Reg. at 52–55; MPEP
§ 2106.05(d).
Accordingly, we sustain the Examiner’s rejection of claim 2 under
35 U.S.C. § 101 as being directed to an exception to patent-eligible subject
matter without reciting significantly more. We, likewise, sustain the 101
rejection of claims 3–11, 13–15, 17, and 18, which Appellant does not argue
separately. Appeal Br. 5–7.

THE SECTION 103(a) REJECTION
Examiner’s Findings
The Examiner finds that Feinstein generally discloses a method to
determine an individual’s credit score. Final Act. 25 (citing Feinstein col. 2,
ll. 12–32, col. 2, l. 63–col. 3, l. 16; Figs. 4A–B).
The Examiner finds that Scorelogix 2007 relates to predicting job-loss
and income-loss for use in credit scoring and teaches the following steps of
Appellant’s claim 1: (a) calculating the individual’s income reduction risk;
(b) calculating the individual’s income-loss risk; and (c) using the
individual’s income-reduction risk, income-loss risk, and personal
information, as well as population data, to calculate the individual’s credit
score. Final Act. 25–26 (citing Scorelogix 2017 ¶¶ 1–4). The Examiner
determines that it would have been obvious to modify Feinstein’s teachings
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with those of Scorelogix 2007 to improve predictive power and assist
lenders in identifying good and bad accounts, increasing approvals without
increasing loss risk, and identifying a larger number of delinquent accounts
earlier. Id. at 26 (citing Scorelogix 2007, ¶¶ 1 4).
The Examiner finds that Annappindi teaches,
generating by a computer . . . , an unemployment risk using
the an individual’s personal data, including age, education,
demographic data and employment history, and using historical
and projected unemployment and hiring trends, historical and
projected macroeconomic and microeconomic data.
Final Act. 26–27 (citing Annappindi ¶¶ 20, 32, 56, 79–86, 90–95 Figs. 4A,
8–17). The Examiner finds that Annappindi also teaches, “generating by a
computer, the income loss risk for the individual using the unemployment
risk.” Id. at 28 (citing Annappindi Figs. 4A, 16).
The Examiner concludes that it would have been obvious to modify
Feinstein’s technique of credit-risk prediction with Annappindi
with the motivation of using “[t]he various employment and
unemployment risk scores of the present invention” in “assessing
[businesses’] present and future costumer’s credit risks [ ... ]
associated with employment as explicitly taught in Annappindi
at paragraph [0026], especially since Feinstein explicitly
discloses that the model of credit scoring in Feinstein could
incorporate economic conditions including “model[ling]
interaction between changes in the unemployment rate and
performance” with the motivation of putting “a lender [ ... ] in an
improved position to modify lending policies in anticipation of
economic downturns.”
Final Act. 30 (citing Feinstein col. 6, l. 62–col. 7, l. 6) (emphasis omitted).
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Appellant’s Contentions and Analysis
Appellant argues,
[Overall], Feinstein’s teachings of using future actions data is
entirely different and essentially teaching away from the present
invention. Feinstein’s teachings are very specific to (a) future
consumer actions, and (b) consumer actions related to inputs in
a FICO score, such as balance change. It advocates changing a
user’s future credit score by factoring future changes in the user's
credit metrics, such as balance change. Whereas the present
invention doesn’t use future behavior data and is based on current
unemployment risk profile of the consumer.
Appeal Br. 8.
More specifically, Appellant argues,
The present application . . . computes a person’s current Job
Security Score, which is a measure of a person’s unemployment
risk, and this unemployment risk is also an indicator of credit
risk, and no future data is needed. Note that the present patent
application is different in 2 important ways: (1) It is based on
completely different inputs, unemployment risk vs. credit related
aspects such as balance change and defaults; and (2) The present
application is NOT dependent on user’s future credit actions but
is based on an assessment of unemployment risk.
Appeal Br. 8.
This teaching-away argument is unpersuasive because Appellant
merely argues that Feinstein’s method is different from the present
invention’s method. But Appellant does not explain why the teachings and
purposes of Feinstein’s method cannot be used in combination with the other
references’ teachings in a manner that takes into account both current risk, as
well as Feinstein’s future consumer actions. That is, Appellant does not
explain why Feinstein criticizes, discredits, or otherwise discourages using
Feinstein’s methods in combination with additional methods that use current
risk profiles of a consumer. DePuy Spine, Inc. v. Medtronic Sofamor Danek,
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Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009). “A reference does not teach
away […] if it merely expresses a general preference for an alternative
invention.” Id.
Appellant next argues in relation to the website of Scorelogix 2007,
“there the message was that by predicting an individual’s unemployment
risk, one can approximate the credit risk prediction. However, there was no
attempt made to create a credit system using actual income risk input
parameters.” Appeal Br. 9.
This argument is unpersuasive because the Examiner relies on
Annappindi for teaching the use of an employee’s actual income risk input
parameters. Final Act. 26–30; Examiner’s Answer 14–15. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed.
Cir. 1986).
Appellant only mentions Annappindi once in the Appeal Brief. But
this one reference to Annappindi appears in Appellant’s final summarization
of the arguments, which reads as follows:
Applicant humbly notes that in the Office Actions, Examiner
oversimplified and made an abstract connection between all the
cited teachings and overly generalizing that present invention
would have been obvious. As discussed earlier, Feinstein was
teaching away from the approach in the present application;
Avery was quite uncertain how situational circumstances can be
used to build credit scores; Zarikian did not offer specific
solution to the issues observed; And previously Annappindi
didn’t advocate a real credit system. Therefore, these references
should not be combined in a 35 USC § 103 rejections to reject
the Claims in the present invention.
Appeal Br. 10.
Appeal 2019-003845
Application 14/339,703

19
This reference to Annappindi is unsupported by any previous
arguments regarding Annappindi. See Appeal Br. 7–10. This
summarization also entails the same argument Appellant sets forth in
relation to Scorelogix 2007 (Appeal Br. 9), and this final summarization
paragraph does not summarize Appellant’s arguments regarding Scorelogix
2007 (id. at 10). As such, we interpret the summarization’s reference to
Annappindi on page 10 of the Appeal Brief to include a clerical error,
intending to be referencing Scorelogix 2007 instead of Annappindi.
Furthermore, even if Appellant really did mean to reference
Annappindi, Appellant’s one-sentence conclusory assertion would not
constitute an argument based on facts. It is well settled that arguments of
counsel cannot take the place of factually supported objective evidence. See,
e.g., In re Huang, 100 F.3d 135, 139–40 (Fed. Cir. 1996); In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984).
Appellant also presents general arguments in relation to Avery and
Zarikian. Appeal Br. 9–10. These arguments do not persuade us of error in
relation to the obviousness rejection of claims 2, 7–10, 13, 15, and 18
because the Examiner did not rely on either of Avery or Zarikian in rejecting
these claims. See Final Act. 24–31.
For these reasons, Appellant does not persuade us the Examiner
committed reversible error in relation to claims 2, 7–10, 13, 15, and 18. We,
therefore, affirm the obviousness rejection of these claims.
With respect to the remaining rejections of claims 3–6, 11, 14, and 17,
Appellant does not argue these claims separately, much less point out what
language in these claims the additionally cited references, Avery and
Zarikian, purportedly fail to teach or suggest. Accordingly, we affirm the
Appeal 2019-003845
Application 14/339,703

20
obviousness rejections of these claims for the same reasons as set forth in
relation to independent claim 2.

DECISION SUMMARY
In summary:

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED
Claims
Rejected
35 U.S.C. § References/
Basis
Affirmed Reversed
2–11, 13–15,
17, 18
101 Eligibility 2–11, 13–15,
17, 18

2, 7–10, 15,
18
103(a) Feinstein,
Scorelogix 2017,
Annappindi
2, 7–10, 13,
15, 18

3–6 103(a) Feinstein,
Scorelogix 2017,
Annappindi,
Avery, Zarikian
3–6
11, 14 103(a) Feinstein,
Scorelogix 2017,
Annappindi,
Avery,
2016 Specimen
11, 14
17 103(a) Feinstein,
Scorelogix 2017,
Annappindi,
2016 Specimen
17
Overall
Outcome
2–11, 13–15,
17, 18