Viki, Inc.

Patent Trials and Appeals Board

Dec 21, 2020

2020004502 (P.T.A.B. Dec. 21, 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.
14/272,989 05/08/2014 Nerses Ohanyan 15072-01197US 6436
32054 7590 12/21/2020
Tina M. Lessani
Lessani Law Group, PC
163 Cypress Point Road
Half Moon Bay, CA 94019
EXAMINER
SYROWIK, MATHEW RICHARD
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
12/21/2020 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):
kathy@lessanilaw.com
tina@lessanilaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte NERSES OHANYAN and
DAVID BALDESHWIELER
__________________

Appeal 2020-004502
Application 14/272,989
Technology Center 3600
____________________

Before BIBHU R. MOHANTY, JAMES P. CALVE, and
MATTHEW S. MEYERS, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1–20, which are all of the pending claims.
See Appeal Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Rakuten
Viki is identified as the real party in interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
Claims 1 and 6 are independent. Claim 1 recites:
1. A method performed by a computing system for
serving an advertisement in association with media, the media
including audio and video, the computing system performing
the steps of:
• receiving in the computing system a set of comments for
the media, each comment associated with a media
timecode;
• using a comment parameter value from the set of
comments to identify a timecode having a comment
parameter value that satisfies a selection condition;
• identifying a media segment associated with the timecode
having the comment parameter value that satisfies the
selection condition;
• generating an audience profile based at least on
aggregating common profile variable values shared among
user accounts posting comments to the media segment or
user accounts viewing comments on the media segment;
• determining an advertisement similarity score for each
advertisement in an advertisement database based on a
calculated similarity between the audience profile and
content of each advertisement, wherein the advertisement
database includes a plurality of advertisements
corresponding to a plurality of advertisement similarity
scores and wherein at least one advertisement in the
advertisement database has a highest advertisement
similarity score among the advertisement similarity scores
in the advertisement database;
• selecting an advertisement associated with the highest
advertisement similarity score from the advertisement
database;
• receiving the selected advertisement from a remote
computing system; and presenting the selected
advertisement contiguously with the media segment.

Appeal Br. 13–14 (Claims App.).
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REJECTIONS2
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 1–5, 13–16, and 19 are rejected under 35 U.S.C. § 103 as
unpatentable over Hopwood (WO 2012/129336 A1, pub. Sept. 27, 2012),
Fleischman (US 2011/0040760 A1, pub. Feb. 17, 2011), and Liu (US 2010/
0242060 A1, pub. Sept. 23, 2010).
Claims 6–12 and 17 are rejected under 35 U.S.C. § 103 as
unpatentable over Hopwood and Liu.
Claims 18 and 20 are rejected under 35 U.S.C. § 103 as unpatentable
over Hopwood, Liu, and Li (US 2011/0179385 A1, pub. July 21, 2011).
ANALYSIS
Patent Eligibility of the Claims
Appellant argues the claims as a group. See Appeal Br. 6–8. We
select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determines the claims recite selecting advertisements
for users based on similarity scores or parameters as contextual or targeted
advertising that involves certain methods of organizing human activity as a
fundamental economic principle or practice, commercial interaction such as
advertising, marketing, or sales activities, business relations, and managing
personal behavior or relationships between people. Final Act. 8–9. The
Examiner determines that a computing system and advertisement database
are generic components that perform generic functions and therefore do not
integrate the abstract idea or amount to significantly more. Id. at 9–11.

2 The Examiner withdrew a rejection of claims 1–20 under 35 U.S.C.
§ 112(b) for indefiniteness. See Final Act. 4–5; Ans. 3.
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Principles of Law
Section 101 of the Patent Act states:
Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of this title.
35 U.S.C. § 101. This provision contains an implicit exception: “Laws of
nature, natural phenomena, and abstract ideas are not patentable.” Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the elements of each claim, individually and
“as an ordered combination,” to determine if additional elements “‘transform
the nature of the claim’ into a patent-eligible application” as an “inventive
concept” sufficient to ensure the claims in practice amount to significantly
more than a patent on the ineligible concept itself. See id. at 217–18.
The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). Under the Revised Guidance, to determine whether a
claim is “directed to” an abstract idea, we evaluate whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract ideas
listed in the Revised Guidance (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 (see MPEP §§ 2106.05(a)–(c), (e)–(h)
(9th ed. Rev. 10.2019 June 2020) (“MPEP”)). Id. at 52–55.
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Only if a claim (1) recites a judicial exception and also (2) does not
integrate that exception into a practical application, do we then consider
whether the claim (3) adds a specific limitation beyond a 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. Id. at 56.
Step 1: Is Claim 1 Within a Statutory Category?
We agree with the Examiner that claim 1 recites a method, which is a
statutory category of 35 U.S.C. § 101, namely, a process. See Final Act. 8.
Step 2A, Prong One: Does Claim 1 Recite a Judicial Exception?
We agree with the Examiner that claim 1 recites certain methods of
organizing human activity––fundamental economic principles or practices,
commercial interactions including advertising, marketing, or sales activities
and managing personal behavior or relationships/interactions between
people, and mental steps of obtaining information about a user’s interaction
with media. See Final Act. 8–9, 27; Revised Guidance, 84 Fed. Reg. at 52.
The claimed method provides targeted advertising tied to a particular
segment of video or audio media based on user comments associated with
that media segment. See Spec. ¶¶ 17, 37, 52, 66. The preamble of claim 1
recites this purpose as “serving an advertisement in association with media,
the media including audio and video.” Appeal Br. 13 (Claims App.).
Targeted marketing is a form of tailoring information based on data
that is known about a user and specific data and is a fundamental practice.
E.g., Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1369–70 (Fed. Cir. 2015) (citing Alice, 573 U.S. at 219).
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“[R]eceiving . . . a set of comments for the media, each comment
associated with a media timecode,” “using a comment parameter value from
the set of comments to identify a timecode having a comment parameter
value that satisfies a selected condition,” and “identifying a media segment
associated with the timecode having the comment parameter value that
satisfies the selection condition” recite data collection steps of the abstract
idea. E.g., Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed.
Cir. 2016) (“But merely selecting information, by content or source, for
collection, analysis, and display does nothing significant to differentiate a
process from ordinary mental processes, whose implicit exclusion from
§ 101 undergirds the information-based category of abstract ideas.”); In re
TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016)
(“[T]he claims . . . are simply directed to the abstract idea of classifying and
storing digital images in an organized manner. . . . [W]e have applied the
‘abstract idea’ exception to encompass inventions pertaining to methods of
organizing human activity.”); Content Extraction and Transmission LLC v.
Wells Fargo Bank, N.A., 776 F.3d 1343, 1348 (Fed. Cir. 2014) (collecting
data, recognizing certain data in the collected data, and storing recognized
data recite mental steps humans perform such as banks reviewing checks,
recognizing data in checks (e.g., amount, account number, account holder),
and storing data); see also Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed.
Cir. 2018) (“The parsing and comparing of claims 1–3 and 9 are similar to
the collecting and recognizing of Content Extraction . . . and the classifying
in an organized manner of TLI . . . .”); In re Morsa, 809 F. App’x 913, 917
(Fed. Cir. 2020) (collecting information to provide customized information
is a fundamental economic practice of organizing human activity).
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Comments and parameters provide information about media items and
users who post comments. Spec. ¶¶ 17–19. Comment parameter values can
be information about comment frequency, density, change in frequency, type
of comment (text, image, URL), rate over time, content (sentiment, subject),
novelty (how recently a comment is posted), authors (demographics, age,
profile, location, language of commenter), and any other suitable parameter.
Id. ¶¶ 19, 37. Comment parameter values are determined automatically or in
any suitable manner like natural language processing, text analysis, machine
learning, statistics, average or mean viewing duration, a scaling system, or
other suitable method. Id. ¶ 37. Collecting such information about media
and users recites the abstract idea above. See Morsa, 809 F. App’x at 917.
The Specification describes media timecodes, comment parameter
values, and selection conditions as information about other information.
Each identified timecode is preferably associated with a set of
comments that satisfies a selection condition, such as a set of
comments having a comment parameter value beyond a
threshold value. However, the selection condition can be any
other suitable condition, and the identified timecode can be any
other suitable timecode.
Id. ¶ 19.
“Information as such is an intangible.” Elec. Power Grp., 830 F.3d at
1353. In Electric Power, the claims recited similar data collection and
analysis steps of receiving time-stamped, synchronized data streams in real
time and analyzing the data based on limits, sensitivities, and rates of change
of measurements and metrics. Id. at 1351–52. The focus of the claims was
“on collecting information, analyzing it, and displaying certain results of the
collection and analysis” and, as such, the steps recited mental processes even
when limited to particular content. Id. at 1353–54.
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The timecode comments act as tags to classify and index the media.
See Intellectual Ventures I LLC v. Erie Indemnity Co., 850 F.3d 1315, 1327
(Fed. Cir. 2017) (using tags to organize and access records by title, author,
and subject is used by classifiers to organize, index, and locate information
and media like books and magazines and is a fundamental practice).
Similarly, “attaching classification data, such as dates and times, to
images for the purpose of storing those images in an organized manner is a
well-established ‘basic concept’ sufficient to fall under Alice step 1.” TLI,
823 F.3d at 613. Here, comments are used to classify, organize, and filter
media using parameter values that satisfy a condition. See Spec. ¶¶ 19, 37.
So too, filtering comments by parameter values and conditions recites
a mental process without more. See Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1313–14 (Fed. Cir. 2016) (“[I]t was long-prevalent
for people receiving paper mail to look at an envelope and discard certain
letters, without opening them, from sources from which they did not wish to
receive mail based on characteristics of the mail. The list of relevant
characteristics could be kept in a person’s head.”); Bascom Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)
(filtering content is a well-known method of organizing human behavior).
The next steps of “generating an audience profile [by] aggregating
common profile variable values shared among user accounts posting
comments to the media segment or user accounts viewing comments on the
media segment” and “determining an advertisement similarity score for each
advertisement in an advertisement database based on a calculated similarity
between the audience profile and content of each advertisement” recite the
same abstract idea. See Appeal Br. 13 (Claims App.).
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Like the “comment parameter value” these steps are recited at a high
level of generality without specifying an algorithm or formula to aggregate
or determine the advertisement similarity score. The Specification describes
audience profile variables as demographic information, subject interests, or
any other suitable descriptor to include media or comment descriptors and
parameter values that can be aggregated. Spec. ¶¶ 52–60. This description
confirms that an audience profile, as claimed, recites the abstract idea above.
The “advertisement similarity score” is described abstractly as well.
Selecting an advertisement preferably includes determining an
advertisement similarity score for an audience profile and
selecting the advertisement associated with the highest
similarity score. The advertisement similarity score is
preferably determined based on the similarity between the
audience profile and the content of the advertisement (e.g., the
audio track of the advertisement, the subject of the
advertisement, etc.), but can alternatively be determined based
on the similarity between the audience profile and an
advertisement profile 430 (e.g., a description of the user
parameters, comment parameters, or media parameters that an
advertiser would like to target with the advertisement), or be
determined in any other suitable manner. The similarity score
is preferably calculated, but can be otherwise determined.
Id. ¶ 66. No algorithm or formula is described. Nor is one claimed.
“[A]nalyzing information by steps people go through in their minds,
or by mathematical algorithms, without more, [are] essentially mental
processes within the abstract-idea category.” Elec. Power Grp., 830 F.3d at
1354; Clarilogic, Inc. v. FormFree Holdings Corp., 681 F. App’x 950, 954
(Fed. Cir. 2017) (“But a method for collection, analysis, and generation of
information reports, where the claims are not limited to how the collected
information is analyzed or reformed, is the height of abstraction.”)
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Furthermore, “[w]ithout additional limitations, a process that employs
mathematical algorithms to manipulate existing information to generate
additional information is not patent eligible.” Digitech Image Techs., LLC v.
Elec. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (“If a claim is
directed essentially to a method of calculating, using a mathematical
formula, even if the solution is for a specific purpose, the claimed method is
nonstatutory.” (quoting Parker v. Flook, 437 U.S. 584, 595 (1978)).
Here, claim 1 does not even recite an algorithm or formula to generate
an audience profile or an advertisement similarity score. The Specification
describes these features in equally abstract terms. See Ericsson Inc. v. TCL
Commc’n Tech. Holdings Ltd., 955 F.3d 1317, 1325 (Fed. Cir. 2020) (“[T]he
specification may be ‘helpful in illuminating what a claim is directed to . . .
[but] the specification must always yield to the claim language’ when
identifying the ‘true focus of a claim.’”) (quoting ChargePoint, Inc. v.
SemaConnect, Inc., 920 F.3d 759, 766 (Fed. Cir. 2019); Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016) (“The § 101
inquiry must focus on the language of the Asserted Claims themselves.”).
As claimed, these steps can be performed as mental processes. See
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir.
2011) (obtaining information about Internet transactions can be performed
by a person who reads records of Internet credit card transactions from a
preexisting database as can other steps of constructing a map of credit card
numbers by writing down a list of credit card transactions made from a
particular IP address and using that map to identify fraudulent transactions
that use different credit cards with different names and billing addresses, all
originating from the same IP address, as mental processes).
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In Intellectual Ventures v. Erie Indemnity, a method of identifying and
characterizing electronic files by determining whether an aggregate size of
plural files exceeded a predetermined threshold and whether content of the
files matched a file type/file name recited an abstract idea of data collection
to detect unwanted files. Intellectual Ventures I LLC v. Erie Indemnity Co.,
711 F. App’x 1012, 1014–15 (Fed. Cir. 2017) (citing Elec. Power Grp., 830
F.3d at 1353–54 and Symantec, 838 F.3d at 1314). Here, claim 1 similarly
aggregates common profile variable values to generate an audience profile.
Scoring advertisements using the concept of a “similarity score” and
selecting an advertisement with the highest advertisement similarity score
recites the abstract idea identified above. See Mortg. Grader, Inc. v. First
Choice Loan Servs. Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016) (collecting
borrower information to generate a “credit grading” to provide loan pricing
can be performed by humans without a computer) (citing CyberSource, 654
F.3d at 1373 that “computational methods which can be performed entirely
in the human mind are the types of methods that embody the ‘basic tools of
scientific and technological work’ that are free to all men and reserved
exclusively to none.’”); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, (Fed. Cir. 2015) (claims to concept of offer-based price optimization
for electronic commerce recited a fundamental economic practice). Here,
claim 1 optimizes advertising by scoring advertisements and selecting an
advertisement with the highest similarity score as a fundamental practice.
See Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1054–55
(Fed. Cir. 2017) (automated processing of loan applications that calculates a
customer credit score, as agents typically perform by scoring a customer
based on their credit history, recites a fundamental economic practice).
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The final steps select, receive, and present an advertisement with the
highest advertisement similarity score. Appeal Br. 13–14 (Claims App.).
These steps deliver information customized to users who view and comment
on the media based on information known about the users. See Intellectual
Ventures, 792 F.3d at 1369–70 (customizing information provided to users
based on the information known about the user (user location, time of day,
navigation data) is a fundamental practice long prevalent in our system);
Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 887 (Fed.
Cir. 2019) (targeted marketing using a persistent user identifier is a form of
tailoring information based on data provided by a user and a fundamental
practice). Merely presenting the results of abstract processes of collecting
and analyzing data is itself abstract as an ancillary part of that collection and
analysis. Elec. Power Grp., 830 F.3d at 1354.
Accordingly, we determine claim 1 recites the abstract idea identified
above.
Step 2A, Prong Two: Integration into a Practical Application
We next consider whether claim 1 recites additional elements that
integrate the abstract idea into a practical application. Revised Guidance,
84 Fed. Reg. at 54. We determine claim 1 lacks additional elements that
improve a computer or other technology. The additional elements do not
implement the abstract idea in conjunction with a particular machine or a
manufacture that is integral to the claim. They do not transform or reduce a
particular article to a different state or thing. They do not apply the abstract
idea in a meaningful way beyond linking it to a particular technological
environment. See Revised Guidance, 84 Fed. Reg. at 55 and MPEP sections
cited therein; Final Act. 9; Ans. 5–6.
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Appellant asserts that the claims are a technological improvement that
enables a computer to perform a function not previously performed such as
associating comments with a media scene or frame, displaying the comments
with the scene or frame, and identifying the most popular portions of media.
Appeal Br. 7. Appellant contends that overlaying comments synchronized
to media gives users additional context about media and helps advertisers to
identify scenes, subjects, and parameters that resonate with audiences. Id. at
8. It provides useful information for viewers and advertisers. Reply Br. 4.
These limitations cited by Appellant are features of the abstract idea
identified under Prong One and cannot serve as “additional elements” that
integrate that abstract idea into a practical application. Revised Guidance,
84 Fed. Reg. at 55 n.24; see also Alice, 573 U.S. at 221 (explaining that a
claim reciting an abstract idea must include additional features to ensure it
does not monopolize the abstract idea and noting Mayo’s holding that a
transformation into a patent-eligible application requires more than simply
stating the abstract idea with the words “apply it”); Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“But, a claim for a
new abstract idea is still an abstract idea.”); Versata Dev. Grp., Inc. v. SAP
Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (claims that improve an
abstract idea without improving computers were not patent eligible).
Even if we consider these limitations, they do not improve computers
or other technology when recited at such a level of generality in claim 1. In
TLI, the claims allowed telephone systems to make graphical annotations on
pictures to identify and organize the images similar to the media here. TLI,
823 F.3d at 612. Classification data was added to images to classify them in
an organized way similar to the claimed comments here. See id. at 612–13.
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Overlaying and presenting comments synchronized to media segments
does not improve computers or technology as the court in TLI explained:
[T]he claims . . . are simply directed to the abstract idea of
classifying and storing digital images in an organized manner.
Consistent with the Supreme Court’s rejection of “categorical
rules” to decide subject matter eligibility, . . . we have applied
the “abstract idea” exception to encompass inventions
pertaining to methods of organizing human activity. . . . Here,
we find that, like the claims at issue in Content Extraction
which were directed to “collecting data,” “recognizing certain
data within the collected data set,” and “storing the recognized
data in memory,” 776 F.3d at 1347, attaching classification
data, such as dates and times, to images for the purpose of
storing those images in an organized manner is a well-
established “basic concept” sufficient to fall under Alice step 1.
TLI, 823 F.3d at 613 (emphasis added); see Intellectual Ventures, 850 F.3d
at 1326–28 (attaching XML category tags and metafiles previously known in
the art to resources to identify, organize, and locate resources in a database
by building an index is abstract and does not focus on how the XML tags
alter the database in a way that improves computer databases rather than
searching a database by using an index at a high level); Content Extraction,
776 F.3d at 1348 (reciting the use of existing scanning and digital processing
technology to recognize and extract data from a document and store the data
from specific fields such as amounts, addresses, and dates, at most, limits the
abstract idea to a particular technological environment which does not make
the claim patent eligible); Morsa, 809 F. App’x at 918 (a generic computer
implementation does not improve the technical field of advertising).
Here, claim 1 similarly analyzes comments posted with media and
uses data from the comments and commenter profiles to classify the media
in an organized manner for targeted advertisements as an abstract idea.
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The timecoded comments do not represent improvements in hardware
or software. Nor do they require a particular machine integral to the claim.
Using tagging and parameter values to identify and classify media and
resources to delivery targeted advertising does not improve a technological
process. See RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed.
Cir. 2017) (“Adding one abstract idea (math) to another abstract idea
(encoding and decoding) does not render the claim non-abstract.”).
Essentially, the timecoded comments are user identifier tags added to
the media segment and aggregated into an audience profile used to identify
and serve targeted advertisement for that media segment. Bridge & Post
addressed similar claims to targeted advertising based on identifying users
and tagging their requests/comments for easier tracking over the Internet.
The claimed advance is a method of tagging and tracking user
traffic, which amounts to nothing more than the abstract idea of
communicating information using a personalized marking,
regardless of whether the use of a particular HTTP header to
perform that abstract idea was novel. We therefore hold that
the asserted claims of the ’747 patent are unpatentable.
. . .
The ’314 patent describes its solution as filling a need for
“effective and efficient revenue modeling for advertising,” and
“efficiently enabling the creation of dynamic ad campaigns and
effective targeted ad serving,” which “facilitates the creation of
comprehensive ad campaigns. . . . None of these statements
reflects an improvement to “the performance of the computer
itself.” The ability to run a more efficient advertising
campaign, even if novel, and even if aided by conventional
computers, is an advance “entirely in the realm of abstract
ideas,” which we have repeatedly held to be ineligible.
Bridge & Post, 778 F. App’x at 893 (emphasis added).

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Here, tagging media with user comments associated with a timecode
merely links the comments to a segment of the media like a page of a book.
Appellant does not claim to have invented commenting or improved ways to
add comments to media beyond the abstract idea. Even so, Bridge and Post
held a method of serving tailored advertising based on user information such
as a unique identifier, a geographic location, and user demographics was not
eligible even though it used HTTP headers and identifiers to track users.
Bridge and Post does not claim to have invented new
networking hardware or software. Nor does it claim to have
invented HTTP header fields, user identifiers, encryption
techniques, or any other improvement in the network
technology underlying its claims. The specification states that
the invention filled a need for a system which would “ensure
higher access rates, longer browse times, and increased
consumption of media” by users. . . . But each of these goals is
in the abstract realm—an improvement in the success or
monetization of tracking users with personalized markings in
order to serve advertisements—not an improvement in
networking or computer functionality. None of these alleged
improvements “enables a computer . . . to do things it could not
do before.”
Bridge & Post, 778 F. App’x at 889 (citation omitted); see also Affinity Labs
of Tex., LLC v. Amazon.com Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016)
(providing targeted advertising based on user demographics without solving
a technological problem is not patent-eligible); Intellectual Ventures, 792
F.3d at 1370 (“But nowhere does Intellectual Ventures assert that it invented
an interactive interface that manages web site content. Rather, the
interactive interface limitation is a generic computer element.”).
Accordingly, we determine that claim 1 lacks additional elements that
integrate the abstract idea into a practical application.
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Step 2B: Does Claim 1 Include an Inventive Concept?
We next consider if claim 1 recites additional elements, individually,
or as an ordered combination, that provide an inventive concept. Alice, 573
U.S. at 217–18. This step is satisfied when claim limitations involve more
than well-understood, routine, and conventional activities known in industry.
Berkheimer, 881 F.3d at 1367; see Revised Guidance, 84 Fed. Reg. at 56
(explaining that the second step of the Alice analysis considers whether a
claim adds a specific limitation beyond the recited judicial exception that
also is not “well-understood, routine, conventional” activity in the field).
The Appeal Brief did not address the Step 2B analysis in the Office
Action. See Appeal Br. 7–8; cf. Final Act. 9–11. The Answer did not raise
new issues or findings under Step 2B. See Ans. 4 (noting the Appeal Brief
did not argue Step 2B). Arguments raised in the Reply Brief for Step 2B for
the first time, not in response to a new issue in the Answer, are untimely
absent good cause, which has not been shown. See 37 C.F.R. § 41.41(b)(2);
Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (The reply brief is
not an opportunity to make arguments that could have been presented in the
appeal brief). Moreover, in Electric Power, collecting and processing “time
stamped,” “synchronized” data measurements to make a “time-synchronized
display” on a generic computer, network, and display was not an inventive
concept. Elec. Power Grp., 830 F.3d at 1351–52, 1355; see Bridge & Post,
778 F. App’x at 891 (generic computer implementation of an abstract idea
using persistent identifiers to target marketing is not “significantly more”).
Accordingly, we determine that claim 1 lacks an inventive concept
sufficient to transform the abstract idea into patent eligible subject matter.
Therefore, we sustain the rejection of claims 1–20 for lack of eligibility.
Appeal 2020-004502
Application 14/272,989

18
Claims 1–5, 13–16, and 19
Rejected Over Hopwood, Fleischman, and Liu
Appellant argues the claims as a group. See Appeal Br. 8–11. We
select claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner relies on Hopwood to teach the method substantially as
recited in claim 1 by generating an audience profile of aggregated common
profile variables of users, determining an advertisement similarity parameter
for each advertisement based on its similarity to the audience profile and the
advertisement content, and selecting an advertisement associated with the
similarity parameter from the advertisement database but Hopwood does not
teach a comment parameter value. Final Act. 12–13. The Examiner cites
Fleishman to teach commenting on time segments of videos and audios with
a comment parameter value and parameter characteristic of a timecode as
claimed. Id. at 13–14. The Examiner relies on Liu to teach the calculation
of an advertisement similarity score between the audience profile and the
advertisement content as claimed. Id. at 14.
Appellant argues that Hopwood simply teaches that the aggregated
activity data is used to determine which advertisements to provide to users.
Appeal Br. 10. We agree with Appellant that Hopwood teaches analytical
data that includes aggregated activity of users such as user interaction data
and users posting comments in a conversation window. Hopwood ¶¶ 2, 88.
This analytical data corresponds to the claimed audience profile generated
by aggregating common profile variable values among users who comment
on media. The Specification describes audience profile data as descriptors
such as demographic information, subject interests, and any other suitable
descriptor including media comment descriptors like comments. Spec. ¶ 52.
Appeal 2020-004502
Application 14/272,989

19
However, Hopwood also matches the aggregated user activity data to
advertisements by providing aggregated activity data (user interaction data,
user activity in a conversation window) to advertisers who apply the data to
multiple advertisements to determine which advertisements to offer to users
with video content. Hopwood ¶ 88. The aggregated user activity data used
to match visitors to advertisements includes locations of visitors in a video
when an action is performed such as adding a comment, viewing a comment,
playing video content, replaying video content, and searching for a particular
portion of video content. Id. ¶ 87. Activity data allows advertises to decide
where to place advertisements in relations to actions performed by users. Id.
Hopwood also teaches that advertisers can search for keywords in comments
and upon finding matching keywords, place advertisements relating to the
keywords that are displayed during the playback of the video content along
with the related comments to that advertisement. Id. Advertisers can decide
where to embed advertisements in videos based on analytical data describing
actions performed by content visitors. Id. The analytical data of aggregate
user activities is used by advertisers to determine an advertisement to deliver
in a video based on the similarity of the advertisement to the analytical data
of comments and visitor actions for a video. Id. Hopwood thus determines
advertisement similarity but does not describe a similarity score per se.
However, Hopwood measures audience profiles in the aggregate to
identify comment content, words, frequency, location in a video, and the like
and compares such parameters to advertisement content to match comment
words and locations especially those used most frequently to advertisements
with similar content related to such words or locations in a video that users
visited most often or liked the most. See Hopwood ¶ 87; see also Ans. 7–9.
Appeal 2020-004502
Application 14/272,989

20
Liu calculates an advertisement similarity score based on the number
of times a user has viewed or uploaded a video that is similar to the related
or associated video and the similarity of the metadata of those videos (title,
tags, description) to metadata of an advertisement that an ad selection server
wants to place for a related or associated video. Liu ¶ 46. Liu teaches a “net
interest score” and net comparison measurement of advertisement similarity
compared to words and comments of users in related videos. Id. ¶¶ 38, 46.
Liu thus teaches that an advertisement similarity comparison performed in
Hopwood can be calculated as a numeric score. See Ans. 9–11.
Appellant argues that “Liu, paragraph [0060], teaches that a score is
calculated for each ad in the result list” but “the result list is the results of a
search query” so Liu does not “determin[e] an advertisement similarity score
for each advertisement in an advertisement database.” Reply Br. 7.
This argument effectively attacks the teachings of Hopwood and Liu
individually rather than as combined by the Examiner. See In re Merck, 800
F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.”). The Examiner cites Hopwood
to teach comparing the similarity of audience profiles to advertisements in a
database but finds that Hopwood does not teach a similarity score. Final
Act. 13. The Examiner relies on Liu to teach an advertisement similarity
scoring technique to apply to Hopwood for similar benefits and predictable
results. Id. at 14–15. The Examiner’s reasoning is supported by a rational
underpinning. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
(using a known technique to improve similar devices in the same way is
obvious unless its application is beyond the level of ordinary skill in the art).
Appeal 2020-004502
Application 14/272,989

21
Accordingly, we sustain the rejection of claim 1 and claims 2–5, 13–
16, and 19, which fall with claim 1.
Independent claim 6 and Dependent Claims 7–12, 17, 18, and 20
Appellant argues the patentability of claim 6 for the same reasons as
claim 1, and the patentability of claims 7–12, 17, 18, and 20 based on their
dependency from independent claims 1 and 6, respectively. Appeal Br. 11.
Because we sustain the rejection of claim 1, this argument is not persuasive,
and we also sustain the rejections of claims 6–12, 17, 18, and 20.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
1–20 101 Eligibility 1–20
1–5, 13–16,
19
103 Hopwood,
Fleischman, Liu
1–5, 13–16,
19

6–12, 17 103 Hopwood, Liu 6–12, 17
18, 20 103 Hopwood, Liu,
Li
18, 20
Overall
Outcome
1–20
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