WANG, Z. Maria. et al.

Patent Trials and Appeals Board

Feb 4, 2020

13740570 - (D) (P.T.A.B. Feb. 4, 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.
13/740,570 01/14/2013 Z. Maria WANG 2011-0050US01 1081
74739 7590 02/04/2020
Potomac Law Group, PLLC (Oracle International)
8229 Boone Boulevard
Suite 430
Vienna, VA 22182
EXAMINER
DETWEILER, JAMES M
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
02/04/2020 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):
bgoldsmith@potomaclaw.com
eofficeaction@appcoll.com
patents@potomaclaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte Z. MARIA WANG and PETER GAIDAREV
Appeal 2019-001857
Application 13/740,570
Technology Center 3600
Before ERIC B. CHEN, MICHAEL J. STRAUSS, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, 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 1–20. 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). Appellant identifies the real party in interest as Oracle
International Corporation. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a retail product lagged promotional effect
prediction system. Spec., Title. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A non-transitory computer-readable medium having
instructions stored thereon that, when executed by a processor,
cause the processor to predict a lagged promotional effect in
response to a promotion of a product in a store, the predicting
comprising:
receiving historical sales data for the product in the store;
storing the historical sales data in a panel data format,
wherein the panel data format comprises multi-dimensional data;
aggregating the stored sales data, wherein the stored sales
data is aggregated to a level having data columns comprising: an
identity of a store, a stock keeping unit (SKU) identifier of a
product, and an identity of a time period for the sales data;
training, validating and testing one or more candidate
regression models using the historical sales data comprising
randomly sampling the aggregated data;
selecting one of the one or more candidate regression
models based on the validating and testing and generating
estimated model parameters using the selected regression model;
and
scoring the selected regression model to determine a sales
volume change for the product after the promotion;
wherein the scoring comprises, for a forecasting time
period after the promotion has ended, using the selected
regression model with the estimated model parameters.
App. Br. 16 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:

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Name Reference Date
Milenova
Anderson
Dodge
US 2009/0132447 A1
US 2010/0063870 A1
US 2010/0287029 A1
May 21, 2009
Mar. 11, 2010
Nov. 11, 2010

REJECTIONS
Claims 1–20 stand rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter. Final Act. 2–4.
Claims 1, 4–8, 11–15, and 18–20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Dodge and Milenova. Final Act. 4–8.
Claims 2, 3, 9, 10, 16, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Dodge, Anderson, and Milenova. Final Act. 8–
10.
REJECTION UNDER 35 U.S.C. § 101
Standard for Patent Eligibility
In issues involving subject matter eligibility, our inquiry focuses on
whether the claims satisfy the two-step test set forth by the Supreme Court in
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014). The Court instructs us
to “first determine whether the claims at issue are directed to a patent-
ineligible concept,” id. at 217–18, and, in this case, the inquiry centers on
whether the claims are directed to an abstract idea. If the initial threshold is
met, we then move to the second step, in which we “consider the elements of
each claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Id. (quoting Mayo Collaborative Servs. v.
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Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). The Court describes
the second step as a search for “an ‘“inventive concept”’—i.e., an element or
combination of elements that is ‘sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the [ineligible
concept] itself.’” Id. (quoting Mayo, 566 U.S. at 72–73).
The USPTO has published revised guidance on the application of
§ 101 consistent with Alice and subsequent Federal Circuit decisions.
USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the Guidance, 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) (referred to Step 2A, prong 1 in
the Guidance); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(referred to Step 2A, prong 2 in the Guidance).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then move to Step
2B of the Guidance. There, we look to whether the claim:
(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.
See Guidance, 84 Fed. Reg. at 52.
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Examiner’s Findings and Conclusion
The Examiner rejects claim 1 as being directed to a judicial exception
without significantly more under Alice. Final Act. 2–4. In the first step of
the Alice inquiry, the Examiner determines:
While claim 1 is directed toward a statutory category of
invention, the claim appears to be directed toward a judicial
exception, namely the abstract idea of estimating and predicting
lagged promotional effect for a retail product. Nevertheless, the
limitations that set forth this abstract idea are: “aggregating the
stored sales data, wherein the stored sales data is aggregated to
a level having data columns comprising: an identity of a store, a
stock keeping unit (SKU) identifier of a product, and an identity
of a time period for the sales data; training, validating and
testing one or more candidate regression models using the
historical sales data comprising randomly sampling the
aggregated data; selecting one of the one or more candidate
regression models based on the validating and testing and
generating estimated model parameters using the selected
regression model; and scoring the selected regression model to
determine a sales volume change for the product after the
promotion.” Such limitations are considered to set forth the
abstract idea, because the claims are directed toward a
fundamental economic practice. Additionally, while they may
slightly narrow the abstract idea by further describing it, they do
not make it less abstract.
Final Act. 2–3. The Examiner further explains:
The Appellant’s claims are directed to the abstract idea of
estimating and predicting lagged promotional effect for a retail
product by inputting sales data into mathematical regression
models; which in light of the current guidelines is a method of
utilizing mathematical formulas to implement a fundamental
economic practice.
. . .
The idea to which the instant claims is directed is very
similar to the idea of “selecting certain information, analyzing it
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using mathematical techniques, and reporting or displaying the
results of the analysis” identified by the courts in SAP America
Inc. v. Investipic. . . . Generally, the Appellant claims provide
steps for using mathematical formulas to determine the effects of
a promotion on a merchant sales; concepts which one having
ordinary skill in the art would find to be fundamental. However,
specifically, the claims estimate and predict lagged promotional
effect for a retail product by inputting sales data into
mathematical regression models; which is analogous to In re
Maucorps, in that the claim-set recites steps for using a
mathematical formula (i.e. a regression model) in order to
optimize sales during and after a promotional period.
Ans. 3–4.
Under Alice step 2, the Examiner determines that the claim does “not
include additional elements that are sufficient to amount to significantly
more than the judicial exception because:
Furthermore, the claim recites the additional limitations of
“receiving historical sales data for the product in the store;
storing the historical sales data in a panel data format; wherein
the scoring comprises, for a forecasting time period after the
promotion has ended, using the selected regression model with
the estimated model parameters.” Viewing these limitations
individually, the limitations “receiving historical sales data for
the product in the store; storing the historical sales data in a
panel data format;” merely represent data gathering steps as
inputs to the abstract idea and/or insignificant post-solution
activity. Moreover, the generic limitations, referring to “wherein
the scoring comprises, for a forecasting time period after the
promotion has ended, using the selected regression model with
the estimated model parameters;” do not constitute significantly
more because they are simply an attempt to limit the abstract idea
to a particular technological environment. Viewing these
limitations as a combination, the claims merely instruct the
practitioner to implement the abstract idea with high-level,
generic technology executing routine functions.
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Final Act. 3–4.
Appellant’s Contentions
Appellant argues that there are several deficiencies in the rejection.
Appeal Br. 3–9. Appellant argues the Examiner’s abstract idea analysis is
flawed because:
[T]he Examiner has alleged that the abstract idea is “estimating
and predicting lagged promotional effect for a retail product.”
See 2/4/16 Office Action, p. 2. A comparison of this alleged
abstract ideas to the abstract ideas identified by the courts shows
that there are no similarities.
Appeal Br. 4. Appellant further argues the claims are not directed to
an abstract idea because “the Examiner fails to provide a reasoned rationale
that explains why its alleged abstract idea is a foundational or basic practice,
such as risk hedging and intermediated settlement.” Appeal Br. 5.
Appellant also challenges the Examiner’s determination under the
second step of the Alice inquiry. Specifically, Appellant argues “the present
claims recite functionality that goes well beyond the mere concepts of
simply retrieving, comparing and combining data using a computer.”
Appeal Br. 6. Appellant further argues “[t]he Examiner appears to be
ignoring the recited non-generic functionality,” and lists several limitations
that Examiner allegedly ignored. Appeal Br. 6–7. Appellant further
contends the claims the Examiner provides no analysis of whether the
invention improves the functioning of a computer. Appeal Br. 8. According
to Appellant, the Specification demonstrates the improvement made to the
computer because it teaches that “embodiments of the present invention
eventually apply only one selected regression model for prediction (i.e., after
evaluating one or more candidate models) and is more efficient and scalable
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for software implementation.” Appeal Br. 8−9 (quoting Spec. ¶ 46)
(emphasis omitted). Appellant also challenges the evidentiary basis of the
Examiner’s findings under Berkheimer v. HP Inc., 890 F.3d 1369 (Fed. Cir.
2018). Reply Br. 3–5.
Revised Guidance, Step 2A, Prong One 2
The Judicial Exception
Applying the Guidance, we are not persuaded the Examiner has erred
in rejecting claim 1 as being directed to patent-ineligible subject matter. The
Guidance instructs us first to determine whether any judicial exception to
patent eligibility is recited in the claim. The Guidance identifies three
judicially-excepted groupings: (1) mathematical concepts, (2) certain
methods of organizing human activity such as fundamental economic
practices and commercial interactions, and (3) mental processes. We focus
our analysis on the first grouping—mathematical concepts.3
Claim 1 recites the following limitations: (1) “training, validating and
testing one or more candidate regression models using the historical sales
data comprising randomly sampling the aggregated data;” (2) “selecting one
of the one or more candidate regression models based on the validating and
testing and generating estimated model parameters using the selected

2 Throughout this opinion, we give the claim limitations the broadest
reasonable interpretation consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
3 Appellant’s arguments are made to the claims generally. Therefore, we
select claim 1 as representative. 37 C.F.R. § 41.37(c)(iv) (“When multiple
claims subject to the same ground of rejection are argued as a group or
subgroup by Appellant, the Board may select a single claim from the group
or subgroup and may decide the appeal as to the ground of rejection with
respect to the group or subgroup on the basis of the selected claim alone.”).
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regression model;” (3) “scoring the selected regression model to determine a
sales volume change for the product after the promotion;” and (4) “wherein
the scoring comprises, for a forecasting time period after the promotion has
ended, using the selected regression model with the estimated model
parameters.” Appeal Br. 16 (Claims Appendix). These limitations, under
their broadest reasonable interpretation, recite a series of abstract
mathematical calculations under the Guidance.
The Guidance describes mathematical concepts as including
“mathematical relationships, mathematical formulas or equations,
mathematical calculations.” Guidance at 52. The Guidance cites as
authority, the Federal Circuit’s decision in SAP America Incorporated v.
InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (“InvestPic”). There,
the Court held that claims holding that claims to a “series of mathematical
calculations based on selected information” are directed to abstract ideas.
Id. at 1163. Taken together, limitations (1)–(4), like those found abstract in
InvestPic, recite performing a series of mathematical calculations—
predictive modeling through statistical analysis—based on collected,
historical sales information. Accordingly, we conclude claim 1 recites a
judicial exception of mathematical concepts under the Guidance.
Revised Guidance, Step 2A, Prong Two
Integration of the Judicial Exception into a Practical Application
Having determined that the claim 1 recites a judicial exception, our
analysis under the Memorandum turns now to determining whether there are
“additional elements that integrate the judicial exception into a practical
application.” See Guidance, 84 Fed. Reg. at 54–55 (citing MPEP
§ 2106.05(a)–(c), (e)–(h)).
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Under the Guidance, limitations that are indicative of “integration into
a practical application” include:
1. Improvements to the functioning of a computer, or to any other
technology or technical field — see MPEP § 2106.05(a);
2. Applying the judicial exception with, or by use of, a particular
machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular article to
a different state or thing — see MPEP § 2106.05(c); and
4. Applying or using the judicial exception in some other
meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to
monopolize the exception — see MPEP § 2106.05(e).
In contrast, limitations that are not indicative of “integration into a
practical application” include:
1. Adding the words “apply it” (or an equivalent) with the judicial
exception, or merely include instructions to implement an
abstract idea on a computer, or merely uses a computer as a tool
to perform an abstract idea – see MPEP § 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use — see
MPEP 2106.05(h).
See Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
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Appellant’s claim 1 recites elements additional to those identified
above: (a) “receiving historical sales data for the product in the store;”
(b) “storing the historical sales data in a panel data format, wherein the panel
data format comprises multi-dimensional data;” and (c) “aggregating the
stored sales data, wherein the stored sales data is aggregated to a level
having data columns comprising: an identity of a store, a stock keeping unit
(SKU) identifier of a product, and an identity of a time period for the sales
data.” Appeal Br. 16 (Claims Appendix).
We conclude these limitations (a)–(c) are insufficient to integrate the
abstract idea into a practical application because they constitute data
gathering operations which are well-established as the types of computer
operations fairly characterized as insignificant extra-solution activity.
MPEP 2106.05(g) (“Extra-solution activity includes both pre-solution and
post-solution activity. An example of pre-solution activity is a step of
gathering data for use in a claimed process.”) Viewed as an ordered
combination, the analysis stays the same. These additional limitations
merely describe the standard data gathering and storage operations which are
used to allow a computer use computers as a tool to carry out the abstract
mathematical calculations recited in the remainder of the claim.
Accordingly, we conclude claim 1 is directed to a judicial exception.
The Inventive Concept – Step 2B
Having determined the claim is directed to a judicial exception, we
proceed to evaluating 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,
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routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception. See Guidance at 56.
Our review of the Examiner’s rejection under Step 2B is guided by the
revised examination procedure published online by the USPTO on April 19,
2018, entitled “Changes in Examination Procedure Pertaining to Subject
Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v.
HP, Inc.)” (“Berkheimer Memorandum”), which imposed a new fact finding
requirement for Examiners, as applicable to rejections under § 101. We
agree with the Examiner that the claim does not add specific limitations
beyond what is well-understood, routine, and conventional.
As noted above, Appellant argues the invention improves the
operation of the computer because the Specification teaches that
“embodiments of the present invention eventually apply only one selected
regression model for prediction (i.e., after evaluating one or more candidate
models) and is more efficient and scalable for software implementation.”
Appeal Br. 8−9 (quoting Spec. ¶ 46) (emphasis omitted). We disagree. The
claim does not require that multiple candidate models be evaluated for
selection of one. Rather, it recites that “one or more candidate models” are
trained, validated, and tested. Thus only a single candidate model needs to
be evaluated and used, which results in no conservation of resources.
Appellant also challenges the evidentiary basis of the Examiner’s
finding in step 2B of the Guidance (Alice step 2). Reply Br. 3–4. We are
not persuaded of Examiner error. Appellant asserts that evidence is required
which demonstrates that all claim limitations are well-understood, routine,
and conventional. This is incorrect, as the Step 2B analysis applies to the
additional claim elements, and not to those that form the abstract idea itself.
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SAP Am. Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018)
(“What is needed is an inventive concept in the non-abstract application
realm.”).
To the extent Appellant challenges the Examiner’s findings with
respect to these additional elements, we find the Examiner’s determination
that the additional limitations in claim 1 are well-understood, routine, and
conventional sufficiently supported in this record. The Berkheimer
Memorandum provides that the Examiner may support a finding that an
additional element or combination of elements may be supported by both
“an express statement in the specification . . . that demonstrates the well-
understood, routine, and conventional nature of the additional element(s).”
Berkheimer Memorandum at 4, § III(A)(1).
Here, the Specification provides evidence of the well-understood
nature of the additional, data collecting limitations recited in claim 1. For
example, the Specification indicates that the invention may be carried out by
a general purpose computer. Spec. ¶¶ 10–13. The Specification further
describes the various data structures and data fields which may be used to
collect and store past historical sales data. Spec. ¶¶ 14–16. The description
of the collection of storing of historical sales data is provided at a high level,
without any detail of the operations carried out by the computer in
performing the collection and storage of the data. This high-level
description evidences the well-understood, routine, and conventional nature
of the data collection and storage processes recited in claim 1.4

4 See Berkheimer Memorandum at 3, § III(A)(1) (“A specification
demonstrates the well-understood, routine, conventional nature of additional
elements when it describes the additional elements as well-understood or
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Accordingly, we do not discern in claim 1 any specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional,” and instead agree with the Examiner that the claims do not
provide an inventive concept sufficient to transform the judicial exception
into patent-eligible subject matter.
Because the Examiner correctly concluded claim 1 is directed to a
judicial exception, and because Appellant does not identify any error in the
Examiner’s determination under step 2B of the Guidance, we sustain the
rejection of representative claim 1 under 35 U.S.C. § 101, as well as of
claims 2–20 which fall therewith.
REJECTION UNDER 35 U.S.C. § 103
We have reviewed the Examiner's rejections under § 103 in light of
Appellant’s arguments set forth in the Appeal Brief and the Reply Brief. We
are not persuaded by Appellant’s arguments. With respect to the rejections
under § 103, we adopt as our own: (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 4–10)
and (2) the findings, reasons, and explanations set forth by the Examiner in
the Examiner's Answer in response to Appellant’s Brief (Ans. 7–10) and
concur with the conclusions reached by the Examiner. We highlight the
following for emphasis.

routine or conventional (or an equivalent term), as a commercially available
product, or in a manner that indicates that the additional elements are
sufficiently well-known that the specification does not need to describe the
particulars of such additional elements to satisfy 35 U.S.C. § 112(a).”)
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Claim 1
The Examiner rejects claim 1 as being obvious over Dodge and
Milenova. Final Act. 4–6. The Examiner relies primarily on Dodge, finding
that it teaches the majority of the limitations of claim 1. Final Act. 5. The
Examiner generally relies on Milenova to show that it was known to
generate estimated model parameters using a regression model comprising
randomly sampled data. Final Act. 5–6.
Appellant presents six arguments against the rejection of claim 1,
which we address seriatim. Appellant first argues that the rejections under
§ 103 are flawed “because the prior art fails to disclose aggregating stored
sales data to an SKU level, and then selecting and scoring a regression
model to predict a lagged promotional effect.” Appeal Br. 10. Appellant
asserts that Dodge “is directed to determining an effect of sales in response
to and during a promotion, as opposed to an effect of sales after a
promotion has ended.” Appeal Br. 10. We are not persuaded by
Appellant’s argument. Dodge teaches predicting sales of promotional
products before, during, and after the promotional time period. See, e.g.,
Dodge Fig. 8; ¶ 75 (“As shown, for example, in FIG. 8, a difference 860-864
between actual sales and baseline sales 750 represents incremental sales
driven by promotion.”). As such, Dodge is not limited in the way that
Appellant suggests.
Appellant next argues “although Dodge discloses the use of a
regression model it fails to disclose selecting one of a plurality of regression
models based on validating and testing.” Appeal Br. 10.

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We do not find this argument persuasive because it is not
commensurate with the scope of the claim. The claim recites “training,
validating, and testing one or more candidate regression models,” which
means that one candidate regression model need only be considered.
Appellant does not dispute that Dodge shows use of a regression model.
Appellant’s third argument alleges that Dodge fails to disclose storing
data in a “panel data format” as recited in claim 1, nor does it disclose
“wherein the panel data format comprises multi-dimensional data.” Appeal
Br. 11. According to Appellant, “[t]he terms ‘panel data format’ and ‘multi-
dimensional data’ have specific technical meaning and limit the claim, and
are completely ignored by the Examiner.” Appeal Br. 11. This argument is
not persuasive of Examiner error. In describing “panel data format,” the
Specification states:
In one embodiment, the data is processed and stored in a panel
data format. In general, “panel data” refers to multi-dimensional
data. Panel data contains observations on multiple phenomena
observed over multiple time periods for the same stores. In one
embodiment, the data columns correspond to merchandise
attributes, time, sales and promotion information, and the data
rows are the values of the column fields for multiple merchandise
items and multiple time periods
Spec. ¶ 15. Thus, according to the Specification, a “panel data format” is
merely a format that includes “multi-dimensional data.” Although Appellant
asserts that these terms “have specific technical meaning,” Appellant assigns
no special meaning to them in the Brief. Based on the description in the
Specification, we conclude “multi-dimensional data” encompasses data that
can be viewed and sorted in multiple ways, including by time. Under this
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interpretation, we agree with the Examiner that Dodge teaches the use of “a
panel data format comprising multi-dimensional data.”
As disclosed by Dodge, a point of sale “records the UPC of every sold
product(s), the quantity sold, the sale price(s), and the date(s) on which the
sale(s) occurred.” Dodge ¶ 61. Dodge further teaches that the point of sale
recorded data is “compiled into one or more database.” Moreover, as
explained by the Examiner, “Dodge discloses that the collected data “can be
prepared and aligned along one or more dimensions including, product, time,
geography, etc.” Ans. 9 (citing Dodge ¶¶ 105, 110). Thus, Dodge teaches
that sales data may be stored which includes a time component that may be
used to view, sort, and analyze the sales data. This disclosure in Dodge
teaches the “storing” limitation of claim 1.
Appellant’s fourth argument maintains that the Examiner erred in
finding Dodge teaches or suggests “aggregating the stored sales data,
wherein the stored sales data is aggregated to a level having data columns
comprising: an identity of a store, a stock keeping unit (SKU) identifier of a
product, and an identity of a time period for the sales data.” The Examiner
finds this limitation taught by Dodge. Final Act. 6 (citing Dodge ¶¶ 44–45).
Appellant argues Dodge is deficient because “there is no disclosure in this
cited portion of Dodge of aggregating data to a level having the specific
recited data columns.” Appeal Br. 12. We disagree.
The cited portions of Dodge teach the use of a “purchase data store”
which stores “purchase data.” Dodge ¶ 44. Dodge further teaches that the
stored purchase data may be used to generate baseline sales volumes and
include “sales in a particular store, during a particular week, of a particular
product identified by its unique product identification code (e.g., a UPC,
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SKU, or other identifier.” Dodge ¶ 45. We agree with the Examiner that
using the purchase to generate a baseline sales volume teaches, or at least
suggests, the recited “aggregating the stored sales data.” We further agree
that a person of ordinary skill in the art would have understood that the
stored purchase data described by Dodge would have included the specified
data columns because data columns are typical of relational database
structures. For example, the data stored which reflects “sales in a particular
store” teaches the recited “identity of a store.” Similarly, Dodge’s “during a
particular week,” teaches the recited “identity of a time period,” and
Dodge’s “a particular identified by its unique product identification code.”
teaches the recited “SKU identifier of the product.”5 Appellant argues this
disclosure is insufficient because “aggregating” does not appear in the cited
passage. However, Appellant does not explain how to why “aggregating”
differs from collecting and storing data in a data store as taught by Dodge.
Although Dodge does not disclose the recited limitation in haec verba, it is
well established that “the reference need not satisfy an ipsissimis verbis
test.” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009) (citing In re Bond,
910 F.2d 831, 832–33 (Fed. Cir. 1990)). As such, we are not persuaded the
Examiner erred in finding Dodge teaches the “aggregating” limitation of
claim 1.
Appellant’s fifth argument challenges the Examiner’s finding that
Dodge and Milenova teach or suggest the limitation “training, validating,

5 Although not necessary to our decision, we note Dodge further teaches
storing purchase data “which is indicative of sales for product UPCs and/or
other individual product identifier codes, seller location(s) in which the
product(s) were sold, sale dates, and/or volumes for each UPC sold in a
given week,” which also teaches the argued limitation. Dodge ¶ 60.
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and testing one or more candidate regression models based on the validating
and testing and generating estimated model parameters using the selected
regression model.” Final Act. 12 (citing Dodge ¶¶ 88, 124). Appellant
asserts that Dodge is deficient because “there is NO disclosure in this
portion of training regression models, and certainly no disclosure of
‘randomly sampling the aggregated data’ used for the training.” Appeal
Br. 12. We disagree.
Dodge teaches that “[a] model can be selected and tested by first
identifying a level of aggregation, periodicity, and differencing for the data.”
Dodge ¶ 14. Dodge also teaches training, validating, and testing candidate
regression models at paragraph 88, where it describes that “the data is
aligned and harmonized on one or more dimensions.” Dodge ¶ 88.
Figure 13 of Dodge also shows testing of the model and validation. Dodge
Fig. 13, blocks 1355, 1360. Further, and as explained by the Examiner
(Ans.9 ), Appellant’s argument that Dodge fails to teach “randomly
sampling the aggregated data” is not persuasive because the Examiner relies
on Milenova (citing ¶¶ 13–18), and not Dodge, as teaching this limitation.
Therefore, this argument does not address the rejection actually made by the
Examiner.
Lastly, Appellant argues Dodge fails to teach “scoring the selected
regression model to determine a sales volume change for the product after
the promotion,” as recited in claim 1. We disagree for the reasons stated by
the Examiner in the Answer:
Dodge discloses scoring regression models in paragraphs
[0040]–[0044]. Generally, Dodge discloses, wherein “[o]ne or
more working variables are calculated and fed into a regression
model, and additional data related to the sellers by which the
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target and competitive products are sold is acquired by the
example promotion analysis engine 103;” and “weighting value
for purchase/sales data for the identified target product” by
“applying a calculation to determine weighting value for
purchase/sales data for the identified target product (e.g., during
an initial or recalibration execution) and/or by retrieving
previously determined weighting value(s) to be applied to the
data.” The weight applied to the calculated outcomes of the
regression models reads on the instant concept of scoring a
regression model.
Ans. 8. Accordingly, we are not persuaded the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 103, and we sustain its rejection. For the same
reasons, we also sustain the rejections of independent claims 8 and 15 which
Appellant argues together with claim 1.
Claims 2 and 3
Claim 2, which depends from claim 1, recites:
The computer-readable medium of claim 1, wherein the selected
one of the one or more candidate regression models comprises a
constant dipping factor across all products and all types of
promotions.
Appeal Br. 17 (Claims Appendix). Claim 3 also depends from claim 1, and
recites “wherein the selected one of the one or more candidate regression
models comprises a dipping effect that varies with a price difference
between a post-promotion time period and a promotion time period.” Id.
Both claims are rejected by the Examiner over the combined teachings
of Dodge, Milenova, and Anderson. Final Act. 8–10. The Examiner finds
that Anderson teaches the use of “a constant dipping factor” and a “dipping
effect.” Final Act. 8 (citing Anderson ¶¶ 31, 42). Appellant argues these
rejections are in error because Anderson does not teach any “dipping factor,”
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and because “the term ‘dipping’ does not appear in any of these paragraphs.”
Appeal Br. 14.
We are not persuaded by this argument. Appellant’s argument that
the term “dipping” does not appear in Anderson is not persuasive because
there is no requirement that the prior art express the same concepts using
identical language. Appellant does not explain why Anderson’s disclosure
of a “pantry loading effect” (Anderson ¶ 31) along with “numerous other
factors that could also influence those subsequent sales,” (Anderson ¶ 31) is
not synonymous with the recited “dipping factor” (claim 2) and “dipping
effect” (claim 3). Without any such explanation, Appellant has not shown
error in the Examiner’s determination and we sustain the rejections of claims
2 and 3, as well as of claims 9, 10, 16, and 17 which recite similar limitation
and for which Appellant offers the same arguments.
Remaining Claims
Appellant presents no separate arguments for patentability of the
remaining claims. Therefore, the remaining dependent claims each fall
along with their respective independent claims.
CONCLUSION
The Examiner’s rejections are affirmed.
More specifically,
We affirm the Examiner’s decision to reject claims 1–20 under
35 U.S.C. § 101.
We affirm the Examiner’s decision to reject claims 1–20 under
35 U.S.C. § 103.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 patent eligibility 1–20
1, 4–8, 11–
15, 18–20
103 Dodge, Milenova 1, 4–8, 11–
15, 18–20

2, 3, 9, 10,
16, 17
103 Dodge, Milenova,
Anderson
2, 3, 9, 10,
16, 17

Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED