VP Holdings, Inc.

Patent Trials and Appeals Board

Jul 8, 2020

2020000768 (P.T.A.B. Jul. 8, 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.
14/221,233 03/20/2014 Fred Steube 114287.00004 6978
27305 7590 07/08/2020
HOWARD & HOWARD ATTORNEYS PLLC
450 WEST FOURTH STREET
ROYAL OAK, MI 48067
EXAMINER
RETTA, YEHDEGA
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
07/08/2020 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):
IPDocket@HowardandHoward.com
dtrost@HowardandHoward.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte FRED STEUBE, MICHAEL VIVIO,
JAMES CHRISTIAN CATE, and NANCY COOK1
____________________

Appeal 2020-000768
Application 14/221,233
Technology Center 3600
____________________

Before ROBERT E. NAPPI, CARL L. SILVERMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 through 21. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a) (2018). According to Appellant, VP Holdings, Inc. is the real
party in interest. Appeal Br. 3.
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INVENTION
The invention relates generally to a method for development of a
promotional campaign for a predetermined resource allocation e.g., budget
for advertisement. Specification ¶ 9. Claim 1 is reproduced below.
1. A method for promotional campaigns, comprising:
providing a campaign management platform having at
least one interface, a composition unit, an exchange unit, and an
analysis unit on at least one memory device;
accessing promotional intelligence from a group of offer
intelligence sources by a computing system having at least one
processor functionally coupled to the at least one memory
device in response to a query or a directive from the campaign
management platform;
generating, by the composition unit via the computing
system, a plurality of promotional products for an organization
based on the promotional intelligence;
transporting the plurality of promotional products to one
or more redemption clients, which are coupled to one or more
access networks;
generating, by the composition unit via the computing
system, a distribution allocation of the plurality of promotional
products across a plurality of distribution channels based on an
amount of resources for a promotional campaign, the plurality
of distribution channels including a plurality of distribution
networks coupled to the campaign management platform and
the access networks, the generating including assigning a first
product of the plurality of promotional products to a
distribution channel based on a portion of the amount of
resources;
coupling at least one of a plurality of third party
platforms to one or more of the access networks and coupling
one or more of the access networks to one or more distribution
clients;
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distributing, by the exchange unit via the computing
system, according to the distribution allocation, the plurality of
promotional products according to the distribution allocation
over at least one of the distribution networks to at least one
client device;
measuring, by the analysis unit via the computing
system, performance of at least one product of the plurality of
promotional products; and
generating, by the composition unit via the computing
system, an updated distribution allocation of the plurality of
promotional products across the plurality of distribution
channels based on the measured performance, the generating
including reassigning a second product to a second distribution
channel having a defined level of performance.

EXAMINER’S REJECTIONS2
The Examiner rejected claims 1 through 21 under 35 U.S.C. § 101 for
being directed to patent-ineligible subject matter. Final Act. 2–4.
The Examiner rejected claims 1 through 21 under 35 U.S.C.
§ 102(a)(2) as being anticipated by Clark (US 2014/0278855 A1; published
September 18, 2014). Final Act. 4–7.

PRINCIPLES OF LAW
A. Section 101
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.

2 Throughout this Decision we refer to the Appeal Brief filed August 14,
2019 (“Appeal Br.”); the Reply Brief filed November 7, 2019 (“Reply Br.”);
Final Office Action mailed January 23, 2019 (“Non-Final Act.”); and the
Examiner’s Answer mailed September 19, 2019 (“Ans.”).
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However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). 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’ 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))).
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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. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
“A claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. See 2019 Revised
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Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception. 2019 Revised Guidance, 84 Fed.
Reg. at 52–56.
DISCUSSION
Rejection under 35 U.S.C. § 101
The Examiner determines the claims are not patent eligible because
they are directed to a judicial exception without reciting significantly more.
Final Act. 2–5; Ans. 3–4. Specifically, the Examiner determines the claims
recite an abstract idea, generating a promotional campaign for allocation
over distribution channels, which is a method of organizing human activity
(such as advertising, marketing or sales activities or behaviors and business
relations). Final Act. 2; Ans. 3. Further, the Examiner finds that the
additional limitations are generic computer components claimed to perform
their basic functions of storing, and thus do not amount to significantly more
than the abstract idea. Final Act. 3-4; Ans. 4.
Patent eligibility under § 101 is a question of law that may contain
underlying issues of fact. “We review the [Examiner’s] ultimate 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.”).
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We have reviewed Appellant’s arguments in the Appeal Brief, the
Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 1 through 21 under 35 U.S.C. § 101.
Appellant argues that independent claims 1, 8, and 15 are not directed
Certain Methods of Organizing Human Activity including “fundamental
economic practices” relating to the economy and commerce, such as
agreements between people in the form of contracts, legal obligations, and
business relations. Appeal Br. 40-41. Further, Appellant argues the claimed
steps cannot be “interpreted as creating or exchanging financial obligations,
hedging financial risk, accepting and resolving wagers made between
parties, or practically performed in the human mind.” Appeal Br. 44.
Appellant argues that the claimed invention is directed to a practical
application. Appeal Br. 49. Further, Appellant asserts that the claims
cannot be interpreted as not being tied to any particular machine and the
specification does not state the elements are well-understood, routine or
conventional. Appeal Br. 43–44.
The Judicial Exception
Appellant’s arguments have not persuaded us the Examiner erred in
finding the claim recites an abstract idea. The Examiner finds that claim
steps of accessing promotion intelligence, generating promotional product,
offers, transporting the promotional products, generating an allocation of
products to channels, distributing the promotion products, measuring the
performance of the promotion products and updating the allocation are all
directed to a method of organizing human activity such as advertising,
marketing or sales activities. Ans. 3. We concur with the Examiner.
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Appellant’s Specification states:
The disclosure provides devices, systems, techniques, and/or
computer program products for generation and management of
promotional campaigns that can provide a satisfactory
performance ( e.g., optimal or nearly optimal performance) for
a specific amount of resources (monetary or non-monetary)
allocated to the campaigns. . . . in one aspect, the disclosure can
permit development of a promotional campaign for a
predetermined resource allocation (e.g., budget for
advertisement).
Specification ¶ 9. Further, paragraph 12 of the Specification, identifies that
a promotion product can include offers, rewards, coupons, and discounts.
Thus, when interpreted in light of the Specification, the claimed
“promotional campaign” is for advertising a product which can include an
inducement such as an offer, and the claimed “resources” allocated is
referring to money. Interpreted in light of the Specification, representative
claim 1 recites: accessing promotional intelligence (information about
advertising and marketing); generating promotional products (offers,
rewards, coupons, and discounts to inducing purchase (i.e., an
advertisement)); transporting the plurality of promotional products
(distributing the advertisements); generating a distribution allocation of the
promotional products based upon a portion of the amount of the resources
(performing an economic decision, based upon budget, to determine which
advertisements to use in which channel); measuring the performance of one
of the promotional products and updating the allocation of promotional
products based upon the performance (performing an economic decision, to
adjust which advertisements to use on which channel). As such, Appellant’s
Specification supports the Examiner’s finding that the claim recites elements
directed to advertising and marketing activities and, as such, a certain
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method of organizing human activity. Accordingly, Appellant’s arguments
have not persuaded us the Examiner erred in determining representative
claim 1 recites an abstract idea.
Integration of the Judicial Exception into a Practical Application
Appellant’s arguments cite to several cases and assert that the claims
recite a practical application, however, these arguments merely summarize
the cases but do not provide a detailed analysis of why these cases show
Appellant’s claim recites a practical application of the recited abstract idea.
Appeal Br. 40–50 (citing BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), Amdocs Ltd v. Openet
Telecom, Inc., 841 F.3d 1288, 1300–1301 (Fed. Cir. 2016); DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258 (Fed. Cir. 2014);
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir.
2011).) Further, Appellant asserts that the claims cannot be interpreted as
not being tied to any particular machine as it is clear the claims are tied to
specific structure. Appeal Br. 43–44.
These arguments have not persuaded us of error in the Examiner’s
determination that representative claim 1 does not recite a practical
application of the abstract idea. Appellant’s arguments which merely
summarize several cases, do not persuade us that representative claim 1
recites a practical application of the claimed abstract idea. Notably, several
of these cases found that the claim recited an improvement to the operation
of the computer or another technology. For example, in DDR Holdings the
claimed invention created a hybrid web page that combined advantageous
elements from two web pages, bypassing the expected manner of sending a
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visitor to another party’s web page, in order to solve the internet-centric
problem of retaining website visitors. DDR Holdings, 773 F.3d at 1257–59.
Here, Appellant’s Specification identifies that the purpose is to provide an
improvement in identifying promotional products (inducements to purchase,
i.e. advertisements) and to adjust the promotional campaign. Specification ¶
11. Thus, Appellant’s Specification identifies that the improvement is to the
abstract idea and not to a computer or other technology.
Further, contrary to Appellant’s assertion that the invention is tied to a
particular machine, we note that Appellant’s Specification identifies that the
invention can be implemented on many different types of computing devices
and is not limited to a particular machine. Specification ¶¶ 25, 35. Further
the claimed composition unit, exchange unit, and analysis unit are merely
functional elements which are implemented on a computer. Specification
¶¶ 32, 33 and Fig. 5. Thus, we consider representative claim 1 to be reciting
the use of a computer system to implement the abstract idea which is
insufficient to transform the abstract concept to patent eligible subject
matter. FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed.
Cir. 2016) (“[T]he use of generic computer elements like a microprocessor
or user interface do not alone transform an otherwise abstract idea into
patent-eligible subject matter.”) (Citing DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014). We do not consider the claim to
be reciting an improvement in the operation of the computer or another
technology.
Thus, Appellant’s arguments have not persuaded us the Examiner
erred in not finding the claims recite a practical application of the abstract
idea.
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Significantly More than the Abstract Idea
Under the 2019 Revised Guidance, if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
Appellant argues the Examiner has not presented proof that the
additional claim elements are a combination of well-understood, routine, and
conventional elements. Appeal Br. 44.
Appellant’s arguments have not persuaded us the Examiner erred in
considering the claims to not recite significantly more than the abstract idea.
The Examiner finds that the additional limitations of using a computer for
accessing, generating, distributing, and measuring are generic components
do not amount to significantly more than the abstract idea. Ans. 4.
We concur with the Examiner that the additional limitations do not
amount to significantly more. As discussed above, representative claim 1
recites an abstract idea in that it recites: accessing promotional intelligence;
generating promotional products; transporting the plurality of promotional
products; generating a distribution allocation of the promotional products
based upon a portion of the amount of the resources; measuring the
performance of one of the promotional products and updating the allocation
of promotional products based upon the performance. Representative claim
1 recites the additional limitation of an interface, composition unit, analysis
unit, computing system, third party platforms and networks. As discussed
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above, Appellant’s Specification recites the composition unit, analysis unit,
computing system are functional elements, i.e. they are reciting generic
computers performing the abstract idea’s functions. Specification ¶¶ 25, 32,
35. Further, the recitation of an interface and using a network to transmit
information are well known elements. As discussed above, our reviewing
court has often considered a user interfaces to be a generic computer
element. See Intellectual Ventures I LLC v. Capital One Bank (USA), 792
F.3d 1363, 1369 (Fed. Cir. 2015) and FairWarning IP, 839 F.3d at 1096.
Further, as identified by the act of transmitting data is considered a generic
computer function, See MPEP § 2106.05(d) II (iv), OIP Techs., Inc., v.
Amazon.com, Inc. 788 F.3d 1359, 1363 (Fed. Cir. 2015) (sending messages
over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed.
Cir. 2014) (computer receives and sends information over a network). Thus,
Appellant’s Specification does not demonstrate that a specific computer is
required to implement the method.
In summary, Appellant’s arguments have not persuaded us of error in
the Examiner’s determination that representative claim 1 recites an abstract
idea, a certain method of organizing human activity such as advertising,
marketing or sales activities. Further, Appellant’s arguments have not
persuaded us that the Examiner erred in finding that the claim is not directed
to an improvement in the functioning of the computer or to other technology
or other technical field; directed to a particular machine; directed to
performing or affecting a transformation of an article to a different state or
thing; or directed to using a judicial exception in some meaningful way
beyond linking the exception to a particular technological environment, such
that the claim as a whole is more than a drafting effort to monopolize the
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judicial exception.
For these reasons, we are unpersuaded that the claims recite additional
elements that integrate the judicial exception into a practical application, nor
do the claims add a specific limitation beyond the judicial exception that is
not “well-understood, routine, conventional.” See 2019 Revised Guidance,
84 Fed. Reg. at 54. Accordingly, we sustain the Examiner’s rejection of
representative claim 1, under 35 U.S.C. § 101 as being directed to a patent-
ineligible abstract idea, that is not integrated into a practical application, and
does not include an inventive concept.
On pages 50 through 54 of the Appeal Brief, Appellant address claims
2 through 21, by restating the claims and concluding the Examiner’s
rejection is in error. We are not persuaded of error by these statements as
they are not separate arguments under 37 C.F.R § 41.37. These conclusory
arguments that the additional claims are patent eligible are considered to be
nothing more than a general allegation of patentability and are not
considered separate patentability arguments. See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art”). As such,
Appellant’s arguments directed to the rejection of these claims are not
persuasive of error.

Rejection under 35 U.S.C. § 102
Independent claims 1, 8, and 15.
Appellant argues that the Examiner’s rejection of independent claims
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1, 8, and 15 is in error as Clark does not teach generating, by a composition
unit via a computing system, a distribution allocation of the plurality of
promotion products among distribution channels based on an amount of
resources for a promotional campaign. Appeal Br. 59–61; Reply Br. 6–7.
Appellant asserts that Clark merely discloses dynamic incentives, via an
incentive module, which provides distribution options, a channel sector that
allows selection of distribution channels. Appeal Br. 60.
The Examiner responds to Appellant’s arguments and finds that Clark
teaches generating a composition unit, a dynamic incentive platform as
software modules such as a distribution module, which performs the claimed
functions of the composition unit. (Ans. 4–5 citing Clark ¶¶ 34, 38, 46, and
61–67, 77, 84, 97–102).
We are not persuaded of error by Appellant’s arguments. Initially, we
note Appellant has not addressed the specific findings and the teachings of
Clark cited by the Examiner. We have reviewed the cited teaching of Clark
and concur with the Examiner. Clark discloses distribution of plural
promotional products, in that it teaches a mix of incentives in the campaign
and that these products across plural channels. See, e.g., ¶¶ 34, 38, 46.
Further, Clark discloses an optimizer that adjusted the products based upon a
budget mix (claimed resources for promotion). Clark ¶¶ 34, 61, 64, and 77.
Clark describes that there are plural distribution channels. Clark ¶¶ 34, 46,
47, 49. Thus, we find ample evidence to support the Examiner’s findings.
Inasmuch as the Appellant’s argument is that Clark does not teach an
element titled “composition unit” we are not persuaded of error. As
discussed above in relation to the rejection under 35 U.S.C. § 101,
interpreted in light of the Specification, the “composition unit” is just a
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functional unit of a computer system. As discussed above, the Examiner has
cited ample evidence to show, that Clark’s system performs the functions of
the claimed “composition unit.” Further, Clark states, in paragraph 38, the
“dynamic incentive platform 700 is implemented as computer software
modules” thus, we are not persuaded there is a difference between the
claimed “composition unit” and Clark’s dynamic incentive platform.
Accordingly, we sustain the Examiner’s rejection of independent claims 1, 8,
and 15.

Dependent claims 2, 9, and 16.
Appellant argues on page 62 of the Appeal Brief, that the Examiner’s
rejection of these claims is in error. Appellant argues:
While Clark discloses an incentive distribute module 760, Clark
does not disclose distributing, by the computing system, the
updated distribution allocation of the plurality of promotional
products across the plurality of distribution channels.
Id.
We are not persuaded of error in the Examiner’s rejection of claims 2,
9, and 16, by this argument. As discussed above with respect to claim 1, we
concur with the Examiner’s finding that Clark discloses: promotional
products, in that it teaches a mix of incentives in the campaign; these
products are distributed across plural channels; and optimizer that adjusts the
products based upon a budget mix. Clark specifically states that “system
would then adjust the budget spending to push more money towards that
most effective combination and reduce spending on all the other
combinations.” Clark ¶ 77. Thus, we find ample evidence to support the
Examiner’s findings and we sustain the Examiner’s rejection of claims 2, 9,
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and 16.
Dependent claims 3, 10, and 17.
Appellant argues on pages 62 through 64 of the Appeal Brief, that the
Examiner’s rejection of these claims is in error. Appellant argues:
While Clark discloses another application is to generate
information for another campaign including effectiveness of
message, offer, and creative options may be tested for an
audience, Clark does not disclose accessing comprises receiving
one or more of catalog information indicative contemporaneous
and historical promotional campaigns and related offers for a
group of organizations spanning a predetermined period,
promotional content associated with one or more of
contemporaneous offers or historical offers.

Appeal Br. 63
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection of claims 3, 10, and 17. In the rejection of these claims, the
Examiner cites to paragraphs 37 and 109, as teaching the limitation of one or
more catalogs of information indicative of contemporaneous and historical
promotional campaigns. Final Act. 6. Further, on pages 5 and 6 of the
Appeal Brief, Appellant cites to paragraphs 37, 48 through 67, and 109 of
Clark as disclosing this limitation. We have reviewed the cited teaching and
do not see that Clark describes accessing information of contemporaneous
and historical campaigns and related offers for a group of organizations
spanning a predetermined period as claimed. Accordingly, we do not sustain
the Examiner’s rejection of claims 3, 10, and 17.

Dependent claims 4, 11, and 18.
Appellant argues on pages 64 and 65 of the Appeal Brief, that the
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Examiner’s rejection of these claims is in error. Appellant argues:
Once again, while Clark discloses a dynamic incentive platform
module 700 including an incentive create module 750, an
incentive distribute module 760, an incentive track module 770,
and an incentive optimize module 780, Clark does not disclose
generating the plurality of promotional products based on the
promotional intelligence further comprises configuring, based
at least on the promotional intelligence, at least on of
promotional content for a product of the plurality of
promotional products or an offer associated with the product.

Appeal Br. 64–65.
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 4, 11, and 18. Representative claim 4, recites
generating the campaign of products includes configuring at least one of the
promotional content based upon the promotional intelligence. Appellant’s
Specification identifies promotional intelligence includes knowledge
associated with suitable offers types and includes information such as
effectiveness of the offers. Specification ¶ 12. Thus, the scope of the claim
encompasses that one promotional product is based upon knowledge of
suitable offers. We find that Clark discloses this feature. (See e.g., Clark ¶¶
81 and 89 describing “campaign is initially being managed based on delivery
data and some average value of redemption rates from previous
work.”)Accordingly, we sustain the Examiner’s rejection of claims 4, 11,
and 18.

Dependent claims 5, 12, and 19.
Appellant argues on pages 65 and 66 of the Appeal Brief, that the
Examiner’s rejection of these claims is in error. Appellant argues “while
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Clark discloses that the incentives are distributed in block 415, Clark does
not disclose the distribution channel comprises a media channel device that
pertains to an administrator platform that administers the promotional
campaign or a second media channel device associated with a third-party
platform” Appeal Br. 66 (emphasis omitted).
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 5, 12, and 19. Claim 5 recites the
distribution channel comprises a media channel that pertains to an
administrator platform or a second media channel device associated with a
third party. The Examiner cites to paragraphs 8, 9, 34, 38, 39, and 46
through 49 of Clark as disclosing this feature. Ans. 6; Final Act 7. We
concur with the Examiner. We note that paragraphs 48 and 49 discuss the
distributing of promotions is among various channels and publishers, which
meets the claimed devices associated with a third party. Accordingly, we
sustain the Examiner’s rejection of claims 5, 12, and 19.

Dependent claims 6, 13, and 20.
Appellant argues on pages 66 and 67 of the Appeal Brief, that the
Examiner’s rejection of these claims is in error. Appellant argues “[o]nce
again, while Clark discloses the delivery data is tracked 420 and the
redemption data is also tracked 455, Clark does not disclose measuring the
performance of at least one product of the plurality of promotional products
comprises accessing information indicative of audience activity in response
to the at least one product.” Appeal Br. 66–67 (emphasis omitted).
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 6, 13, and 20. Claim 6 recites measuring the
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performance of at least one product comprises accessing information of
audience activity in response to at least one product. The Examiner cites to
paragraphs 34 through 36, 53, 67, and 83 through 87 as disclosing this
feature. Ans. 6; Final Act 7. We concur with the Examiner. We note that
paragraph 36 discusses considering the audience of those individuals that
received delivery and or redeemed the inventive, which is information of an
audience activity in response to the product (see also ¶ 107 discussing
feedback based upon whether inventive is viewed, delivered, and redeemed).
Accordingly, we sustain the Examiner’s rejection of claims 6, 13, and 20.

Dependent claims 7, 14, and 21.
Appellant argues on pages 67 and 68 of the Appeal Brief that the
Examiner’s rejection of these claims is in error. Appellant argues:
While Clark discloses the effectiveness of message, offer, and
creative options may be tested for an audience, Clark does not
disclose measuring the performance of at least one product of
the plurality of promotional products further comprises
generating one or more metrics indicative of the audience
activity, wherein the audience activity comprises one or more of
acquisition of a first offer associated with a first promotional
product of the at least one product, redistribution of the first
promotional product; redemption of the offer, initiation of a call
session with a device of an organization associated with the
first promotional product, or completion of a survey or other
market research instrument.

Appeal Br. 68.
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 7, 14, and 21. Claim 7 recites measuring the
performance of the product comprises generating a metric of audience
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activity. The claim further recites that the activity is one of several
activities, which includes acquisition of an offer and redemption of the offer.
The Examiner cites to paragraphs 34 through 36, 67, and 107 through 109 of
Clark as disclosing this feature. Ans. 7; Final Act 7. We concur with the
Examiner. We note that paragraph 107 discusses feedback based upon
metrics including whether inventive is delivered (claimed acquisition of the
offer), and redeemed. Accordingly, we sustain the Examiner’s rejection of
claims 7, 14, and 21.

CONCLUSION
In summary:

Claim
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–21 101 Eligibility 1–21
1–21 102 Clark 1, 2, 4–9,
11–16,
18–21
3, 10, 17
Overall
Outcome
1–21

Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See
37 C.F.R. § 41.50(a)(1).
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