THOMSON LICENSING

Patent Trials and Appeals Board

Sep 17, 2021

2020004570 (P.T.A.B. Sep. 17, 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.
15/510,692 03/12/2017 Branislav KVETON 2013P00108WOUS 1075
14868 7590 09/17/2021
Patent Docketing
200 Bellevue Parkway, Suite 300
Attention: Docketing
Wilmington, DE 19809
EXAMINER
PENG, HSIUNGFEI
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
09/17/2021 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):
docketing@interdigital.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRANISLAV KVETON
and SUBRAHMANYA SANDILYA BHAMIDIPATI
Appeal 2020-004570
Application 15/510,692
Technology Center 2400

Before ROBERT E. NAPPI, ELENI MANTIS MERCADER, and
JUSTIN BUSCH, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4–9, 11–16, 18–23, and 25–28.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The invention “generally relates to content recommendations and,
more particularly, to content recommendations associated with a context

1 We use the term Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Interdigital CE
Patent Holdings. Appeal Br. 3.
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provided by a viewer.” Spec. 1:8–9. The claimed invention relates to
determining a condition, which comprises a viewer-selected length of time,
to associate with content and, only when the condition exists, providing the
content as a recommendation that is a queue associated with the condition.
Spec. 13:26–27, 14:8–16, 14:25–27, 15:5–8, Fig. 5; see Appeal Br. 15
(Claims App’x).
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for recommending content to a viewer, the
method comprising:
determining first condition to associate with the content,
wherein the first condition comprises a length of time selected by
the viewer;
refraining from providing the content as a
recommendation for the viewer when the first condition does not
exist; and
providing the content as a recommendation for the viewer
when the first condition exists, wherein the recommendation is a
queue associated with the first condition for the content.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Alexander US 6,177,931 B1 Jan. 23, 2001
Partridge US 2011/0137927 A1 June 9, 2011
Hey US 2012/0167142 A1 June 28, 2012
Kim US 2012/0172059 A1 July 5, 2012

REJECTIONS
Claims 1, 8, and 15 stand rejected under 35 U.S.C. § 101 as being
directed to a judicial exception without significantly more. Final Act. 4.
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Claims 1, 2, 4, 5, 8, 9, 11, 12, 15, 16, 18, 19, 22, 23, 25, and 26 stand
rejected under 35 U.S.C. § 102 as anticipated by Alexander or Hey. Final
Act. 5–6.
Claims 6, 7, 13, 14, 20, 21, 27, and 28 stand rejected under 35 U.S.C.
§ 103 as being obvious over Alexander or Hey in view of Kim or Partridge.
Final Act. 8–9.
ANALYSIS
REJECTION UNDER 35 U.S.C. § 101
Appellant argues the rejection of claims 1, 8, and 15 under 35 U.S.C.
§ 101 as a group. See Appeal Br. 8–11. Therefore, we select independent
claim 1 as representative of claims 1, 8, and 15 for this ground of rejection.
See 37 C.F.R. § 41.37(c)(1)(iv).
If a claim falls within one of the statutory categories of patent
eligibility, the Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101—i.e., evaluating whether the claim
is directed to a judicially recognized exception. Alice Corp. v. CLS Bank
Int’l, 573 U.S. 208, 217 (2014). We also follow the United States Patent and
Trademark Office’s revised guidance for applying the Alice framework
when evaluating subject matter eligibility under 35 U.S.C. § 101. See
Manual of Patent Examining Procedure (“MPEP”) §§ 2106.04, 2106.05 (9th
ed., Rev. 10.2019, June 2020) (incorporating USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) and
USPTO, October 2019 Update: Subject Matter Eligibility (Oct. 18, 2019),
https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf) (herein, we refer to these eligibility guidance
publications and the sections of the MPEP incorporating this guidance as the
“Guidance”).
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As part of our inquiry, we “look at the ‘focus of the claimed advance
over the prior art’ to determine if the claim’s ‘character as a whole’ is
directed to excluded subject matter.” Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016); see Alice, 573 U.S.
at 217 (“First, we determine whether the claims at issue are directed to one
of those patent-ineligible concepts.”). The Guidance breaks this “directed
to” inquiry (“Step 2A”) into two prongs of analysis: (i) does the claim recite
a judicial exception (e.g., an abstract idea) (“Prong 1”), and (ii) if so, is the
judicial exception integrated into a practical application (“Prong 2”). MPEP
§ 2106.04(II)(A).
If we determine the claim is directed to the judicial exception, we then
examine “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.” Alice, 573 U.S. at
217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
66, 78, 79 (2012)). That is, we examine the claims for an “inventive
concept,” “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 217–18 (alteration
in original) (quoting Mayo, 566 U.S. at 72–73); see MPEP § 2106.05(d)
(directing us to consider whether the additional claim elements add “a
specific limitation [or combination of limitations] other than what is well-
understood, routine and conventional in the field” or “is no more than well-
understood, routine, conventional activities previously known to the
industry, which is recited at a high level of generality” (“Step 2B”)).
Patent eligibility under 35 U.S.C. § 101 is a question of law that may
contain underlying issues of fact. “We review the [Examiner’s] ultimate
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conclusion on patent eligibility de novo.” Interval Licensing LLC v. AOL,
Inc., 896 F.3d 1335, 1342 (Fed. Cir. 2018) (citing Berkheimer v. HP Inc.,
881 F.3d 1360, 1365 (Fed. Cir. 2018)); see also SiRF Tech., Inc. v. Int’l
Trade Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is
drawn to patent-eligible subject matter is an issue of law that we review de
novo.”). We have reviewed Appellant’s arguments in the Appeal Brief, the
Examiner’s rejection, and the Examiner’s Answer responding to Appellant’s
arguments. We concur with the Examiner’s findings and conclusions in the
Final Rejection and the Answer. Appellant’s arguments have not persuaded
us of error in the Examiner’s rejection of claims 1, 8, and 15 under
35 U.S.C. § 101.
Guidance Step 2A, Prong 1 (Recite an Abstract Idea)
The Examiner determines the claims are abstract because every
recited element is a mental process. Final Act. 4. The Examiner determines
that all limitations recited in the claims—i.e., “determining [a] first condition
to associate with the content. . .,” “refraining from providing the content
. . .,” and “providing the content . . .”—are steps setting forth the concept of
collecting information, analyzing it, and displaying certain results of the
collection and analysis. Ans. 11 (citing Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350 (Fed. Cir. 2016)). As such, and consistent with the
Guidance, the Examiner determines the claims recite an abstract idea
because the recited limitations are mental steps. Final Act. 4; Ans. 11.
In general, we agree with the Examiner that representative claim 1
recites an abstract idea because it sets forth or describes a mental process,
which is a category of abstract ideas. See MPEP §§ 2106.04(a)(2)(II)–(III).
More specifically, representative claim 1 recites a process for recommending
content to a viewer involving determining a condition, and recommending
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(or refraining from recommending) the content depending on whether the
condition exists. See Appeal Br. 15 (Claims App’x). This entire process
involves a series of mental steps—i.e., every element recited in
representative claim 1 recites mental processes.
This characterization of claim 1 also is consistent with how Appellant
describes the claimed invention. Appellant describes the focus of the claims
as “recogniz[ing] and improve[ing] upon user content recommendations.”
Appeal Br. 8. More specifically, Appellant argues the claimed method
improves upon existing recommendation processes by allowing users “to
establish circumstances under which the user prefers to watch the
recommended content.” Appeal Br. 8 (citing Spec. 1:21–23). The
Specification’s disclosures that Appellant cites as supporting the claimed
subject matter also are consistent with this characterization of Appellant’s
claimed invention. Spec. 13:26–27, 14:8–16, 14:25–27, 15:5–8, Fig. 5
(elements 500, 502, 506, 510); see Appeal Br. 3.
Appellant argues the Examiner has not made a prima facie showing
that the claims recite any of the judicial exceptions and, further, that the
claims do not fall into any of the judicial exceptions. Appeal Br. 10.
Appellant, however, fails to recognize the Examiner’s explicit finding that
the claims recite mental steps and the Examiner’s explanation that each step
is an observation, evaluation, and/or judgment, which are examples of
mental processes. See Final Act. 4. For the reasons discussed above, we
agree with the Examiner that representative claim 1 recites an abstract idea
because claim 1 recites mental processes similar to concepts the Federal
Circuit previously identified as abstract. MPEP § 2106.04(a)(2)(III); Elec.
Power, 830 F.3d at 1354 (concluding that “analyzing information by steps
people go through in their minds, or by mathematical algorithms, without
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more, a[re] essentially mental processes within the abstract-idea category”);
see Content Extraction & Transmission v. Wells Fargo Bank, N.A., 776 F.3d
1343, 1347 (Fed. Cir. 2014) (concluding that claims drawn to collecting
data, recognizing certain data within the collected set, and storing the
recognized data were patent ineligible, noting that “humans have always
performed these functions”); see also Customedia Techs., LLC v. Dish
Network Corp., 951 F.3d 1359, 1362–63 (Fed. Cir. 2020) (holding ineligible
claims directed to “using a computer to deliver targeted advertising to a
user”). For these reasons, we determine representative claim 1 recites an
abstract idea.
Guidance Step 2A, Prong 2 (Integrate Into a Practical Application)
Because claim 1 recites an abstract idea, we next determine whether it
integrates the abstract idea into a practical application. MPEP § 2106.04(d).
To determine whether the judicial exception is integrated into a practical
application, we identify “whether there are any additional elements recited
in the claim beyond the judicial exception(s)” and evaluate those elements in
combination with the limitations that recited an abstract idea to determine
whether they integrate the judicial exception into a recognized practical
application. MPEP § 2106.04(d)(II) (emphasis added); see MPEP
§§ 2106.05(a)–(c), (e)–(h).
As noted above, every limitation is part of the recited abstract idea.
The Examiner finds there are no additional limitations beyond the abstract
idea and, therefore, there can be no integration into a practical application
because the entirety of the claim is an abstract idea. Final Act. 4; Ans. 5; see
MPEP § 2106.05(f). The Examiner explains that, because the method of
representative claim 1 is not implemented by a computer, it obviously
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cannot improve the functioning of a computer. Ans. 12. The Examiner
further determines that even claims reciting generic computer components
executing processes that could be performed mentally fail to integrate the
abstract idea into a practical application, noting the Federal Circuit’s holding
that “a claimed process [that] can be performed without a computer . . .
cannot improve computer technology.” Ans. 12 (citing (Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138 (Fed. Cir. 2016)).
Appellant asserts the claims integrate the abstract idea into a practical
application because it improves on user content recommendations, which is
“believed [to be] a very practical application.” See Appeal Br. 8–9. More
specifically, Appellant argues “the present claimed invention is clearly
directed to a practical application of improving upon providing users the
opportunity to establish circumstances under which such user would prefer
to watch the recommended content,” which “imposes a meaningful limit on
any possible judicial exception.” Appeal Br. 11.
Analyzing claims to see if they integrate an abstract idea into a
practical application, we evaluate whether the claims (i) recite an
improvement to the functionality of a computer or other technology or
technical field (see MPEP § 2106.05(a)); (ii) use a “particular machine” to
apply or use the judicial exception (see MPEP § 2106.05(b)); (iii) use a
particular transformation of an article to a different thing or state (see MPEP
§ 2106.05(c)); or (iv) recite any other meaningful limitation (see MPEP
§ 2106.05(e)). Accord Final Act. 3–4.
Appellant’s assertion that the claims improve user recommendations
does not persuade us that the claims integrate the abstract idea into a
practical application. Instead, we agree with the Examiner that
representative claim 1 does not integrate the judicial exception into a
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practical application. We look to the additional elements beyond the
abstract idea, to determine whether they, for example, recite an
improvement to technology or other meaningful limitations. As explained
above, the entirety of claim 1 recites a mental process (i.e., every limitation
is as an observation, evaluation, and/or judgment) and, therefore, there are
no additional elements to integrate the abstract idea into a practical
application. The claimed alleged improvement to user recommendations is
the abstract idea itself. Furthermore, merely because improved user
recommendations may be useful and “practical” in an ordinary sense, that
does not address the eligibility question of whether the claims “integrate the
abstract idea into a practical application” because it does not persuasively
demonstrate any meaningful limitations on the recited abstract idea. Ass’n
for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013)
(“Groundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry.”); Univ. of Fla. Research Found., Inc. v. General
Elec. Co., 916 F.3d 1363, 1367 (Fed. Cir. 2019) (noting that although the
claimed invention may “‘result in life altering consequences’ . . . is laudable,
[] it does not render [the claims] any less abstract”).
For these reasons, we determine claim 1 is directed to an abstract idea.
Guidance Step 2B (Inventive Concept/Significantly More)
Because we determine the claims are directed to an abstract idea, we
evaluate whether the claims include an inventive concept. See MPEP
§ 2106.05(II). As stated in the Guidance, many of the considerations to
determine whether the claims amount to “significantly more” under step two
of the Alice framework already are considered as part of determining
whether the judicial exception has been integrated into a practical
application. MPEP § 2106.05(II). Thus, at this point of the analysis, we
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determine whether the claims (1) add a specific limitation, or combination of
limitations, that is not well-understood, routine, conventional activity in the
field, or (2) simply append well-understood, routine, conventional activities
at a high level of generality. MPEP § 2106.05(I)(A).
An inventive concept “cannot be furnished by the unpatentable law of
nature (or natural phenomenon or abstract idea) itself.” Genetic Techs. Ltd.
v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016); see also Guidance,
84 Fed. Reg. 50, 56 (Jan. 7, 2019); Alice, 573 U.S. at 217 (explaining that,
after determining a claim is directed to a judicial exception, “we then ask,
‘[w]hat else is there in the claims before us?’” (emphasis added, brackets in
original) (quoting Mayo, 566 U.S. at 78)). Instead, an “inventive concept” is
furnished by an element or combination of elements that is recited in the
claim in addition to the judicial exception and sufficient to ensure the claim
as a whole amounts to significantly more than the judicial exception
itself. Alice, 573 U.S. at 218–19 (citing Mayo, 566 U.S. at 72–73); see BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018)
(explaining that the Supreme Court in Alice “only assessed whether the
claim limitations other than the invention’s use of the ineligible concept to
which it was directed were well-understood, routine and conventional”
(emphasis added)).
On the other hand, “[i]f a claim’s only ‘inventive concept’ is the
application of an abstract idea using conventional and well-understood
techniques, the claim has not been transformed into a patent-eligible
application of an abstract idea.” BSG Tech, 899 F.3d at 1290–91 (citing
Berkheimer v. HP Inc., 881 F.3d 1360, 1370 (Fed. Cir. 2018)). “[I]t is
irrelevant whether [the claimed abstract idea] may have been non-routine or
unconventional as a factual matter . . . narrowing or reformulating an
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abstract idea does not add ‘significantly more’ to it.” BSG Tech, 899 F.3d at
1291.
As already explained, representative claim 1 recites only the abstract
idea and does not include any additional elements. Accordingly, there are
no additional elements that may, when considering the claim as a whole,
claim an “inventive concept” or “significantly more” than the abstract idea
that would render the claim eligible. For the reasons discussed herein, we
sustain the Examiner’s rejection of representative claim 1 as well as claims 8
and 15, not argued separately with particularity, under 35 U.S.C. § 101. See
37 C.F.R. § 41.37(c)(1)(iv).
REJECTIONS UNDER 35 U.S.C. §§ 102 AND 103
Appellant argues the rejection of claims 1, 8, 15, and 22 under
35 U.S.C. § 102 as anticipated by either Alexander or Hey as a group based
on the subject matter recited in claim 1. See Appeal Br. 8–11. Therefore,
we select independent claim 1 as representative of claims 1, 8, 15, and 22 for
as anticipated. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds the Alexander and Hey, in the alternative,
disclose every limitation recited in independent claims 1, 8, and 15. Final
Act. 5–6 (citing Alexander 3:21–25, 5:20–25, 30:59–67; Hey ¶¶ 32, 33,
Fig. 5); Ans. 13–14. Of particular relevance to this appeal, the Examiner
finds Alexander’s disclosure of content recommendations for particular time
periods—e.g., “EPG automatically tunes the television when turned on
between 7 pm and 10 pm, to the appropriate Nick at Nite channel” for “3
hours on weekday evenings from 7 pm to 10 pm”—discloses “determining
[a] first condition . . . compris[ing] a length of time selected by a viewer,” as
recited in representative claim 1. Ans. 13–14 (citing Alexander 30:59–65);
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Final Act. 5. The Examiner finds Hey’s disclosure regarding sending
recommendations for 2 hours each Monday through Thursday evening also
discloses the “determining first condition” limitation. Final Act. 6; Ans. 14
(citing Hey ¶¶ 32, 33).
Alexander discloses improved Electronic Programming Guides
(“EPGs”) with improved viewer interaction and control of recording future
programming content including using viewer information to customize
aspects of the EPG and content presentation. Alexander, Abstract. The
portion of Alexander that the Examiner cites relates to using viewer profile
information to customize aspects of the EPG. Alexander 30:45–46. One
customization includes the “order in which the channel slots are presented
. . . to present the viewer’s favorite channels at the top/beginning of the”
guide. Alexander 30:55–57. Alexander may automatically tune the
television to a particular channel depending on the current day and time
based on the viewer’s history. Alexander 30:59–61. For example, “if a
particular viewer frequently watched Nick at Nite on weekday evenings
from 7 pm to 10 pm,” when the viewer turns on the television during those 3
hours on weeknights, the system may automatically tune the television to the
Nick at Nite channel and format guide to list the Nick at Nite channel at the
top of the guide. Alexander 30:61–67. As another example, if that viewer
typically watches ESPN channels during the daytime on weekends, the
system may automatically tune the television to ESPN on Saturdays and
Sundays during the daytime and list various ESPN channels at the top of the
programming guide. Alexander, 30:67–31:8.
Hey discloses systems and techniques to communicate programming
recommendations to a user’s device allowing a user to select content from a
set of recommendations. Hey, Abstract. Hey’s portion that the Examiner
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cites relate to a process that generates “a plurality of programming
recommendations . . . scheduled to be broadcast . . . during a predetermined
future time period.” Hey ¶ 31. “[T]he predetermined future time period
may be a daily time period in which a user watches TV” and “may comprise
a set number of hours each day, e.g., six o’clock to eight o’clock each
evening.” Hey ¶ 32. “The predetermined future time period . . . may be
specified by a user.” Hey ¶ 32. Hey may send the recommendations to a
user so that the user can determine which recommendations to view and/or
record. Hey ¶ 33.
The Specification describes a “context” generally as “a circumstances
[(or condition)] that can be experienced by the viewer” and provides that
examples are contexts that “may refer to a period of time . . . a weather
condition . . . [or] the location of the viewer.” Spec. 10:29–31. Similarly,
both Alexander and Hey disclose providing recommendations associated
with a particular period of time. See Alexander 30:61–31:8; Hey ¶¶ 31–33.
The Examiner correctly explains that Alexander and Hey both refer to
particular windows of time that span a certain length of time (e.g., 3 hours
on weekday evenings for Nick at Nite content and 12 hours during the
daytime on weekends for the content aired on various ESPN channels).
Ans. 13–14; see Alexander 30:61–31:8; Hey ¶¶ 31–33.
Appellant argues Alexander and Hey merely “only describe listings of
content available at specific times during a particular day,” but neither
Alexander nor Hey “determines a length of time . . . to associate with
content.” Appeal Br. 12. However, as noted above, the cited disclosures in
Alexander and Hey demonstrate recommending different content at different
times for certain lengths of times. Appellant’s arguments do not
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persuasively demonstrate a deficiency in the cited disclosures regarding
associating content with a length of time.
For these reasons, we are not persuaded the Examiner erred in finding
that either Alexander and Hey each disclose the subject matter recited in
independent claims 1, 8, 15, and 22, and we sustain the rejection of claims 1,
8, 15, and 22 under 35 U.S.C. § 102 as anticipated by Alexander or Hey.
Regarding dependent claims 2, 4, 5, 9, 11, 12, 16, 18, 29, 23, 25, and
26, Appellant argues only that these claims are patentable for the same
reasons asserted regarding the respective independent claims from which
they ultimately depend. Appeal Br. 12. Accordingly, we also sustain the
rejection of these dependent claims under 35 U.S.C. § 102 as anticipated by
Alexander or Hey.
Regarding dependent claims 5, 7, 13, 14, 20, 21, 27, and 28, Appellant
argues only that neither Kim nor Partridge cures the alleged deficiencies
identified regarding the anticipation rejection of the respective claims from
which they depend. Appeal Br. 12–13. Thus, we also sustain the rejection
of dependent claims 6, 7, 13, 14, 20, 21, 27, and 28 under 35 U.S.C. § 103 as
obvious over Alexander or Hey and Kim or Partridge.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 8, 15 101 Eligibility 1, 8, 15
1, 2, 4, 5, 8,
9, 11, 12, 15,
16, 18, 19,
22, 23, 25, 26
102 Alexander or Hey 1, 2, 4, 5, 8, 9,
11, 12, 15, 16,
18, 19, 22, 23,
25, 26

6, 7, 13, 14,
20, 21, 27, 28
103 Alexander or Hey,
Kim or Partridge
6, 7, 13, 14, 20,
21, 27, 28

Overall
Outcome
1, 2, 4–9, 11–16,
18–23, 25–28

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