Yahoo!, Inc.

Patent Trials and Appeals Board

Mar 16, 2021

2020005486 (P.T.A.B. Mar. 16, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/857,297 09/17/2015 Varun Bhagwan Y11156US00 9031
123510 7590 03/16/2021
Cooper Legal Group LLC
6505 Rockside Road Suite 330
Independence, OH 44131
EXAMINER
STROUD, CHRISTOPHER
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
03/16/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
VZPatent123510@verizon.com
docketing@cooperlegalgroup.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte VARUN BHAGWAN and
ROBERT DOUGLAS SHARP

Appeal 2020-005486
Application 14/857,297
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, JAMES P. CALVE, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

MURPHY, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals the Examiner’s rejection of claims 1–20 under
35 U.S.C. § 101. We AFFIRM.2

1 The Appellant is the “applicant” as defined by 37 C.F.R. § 1.42 (e.g., “the
inventor or all of the joint inventors”). “The real party in interest is Oath
Inc.” (Appeal Br. 3.)
2 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a).
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THE APPELLANT’S INVENTION
The Appellant discloses a system which provides the user of a “client
device” with “supplemental content” such as “an offer for a product”
associated with a television event. (Spec ¶ 4.) Put another way, the
Appellant’s system aligns an advertisement with what a person is watching
on television. Thus, the Appellant’s system is a targeted-advertising system.
As explained in the Specification, what a person is watching on
television very often reveals what products he/she would be inclined to
purchase. (See Spec. ¶ 1.) Accordingly, an advertiser would know that,
when a person is watching a television event, he/she is an appropriate target
for an advertisement offering a product associated with this television event.
(See id.) For example, if a person is watching a “sporting event” on
television, an advertiser would appreciate the financial value in targeting this
person for an advertisement to purchase a “jersey” associated with a team
playing in the sporting event. (Id. ¶ 1.)
Needless to say, if the advertiser is unaware that a person is watching
the sporting event on television, the advertiser does not know to target its
jersey advertisement towards this person. (See id. ¶ 1.) As such, the
advertiser “may not provide the [person] with an offer to purchase the jersey
and thus may forfeit a sale of the jersey.” (Id.)
An advertiser will typically identify target-related data about a person
when determining whether he/she should be targeted for an advertisement.
(See Spec. ¶ 2.) This targeted-related data can be a person’s “location data”
and/or “demographic data” as such data can factor into the likelihood that
he/she is watching a television sporting event. (Id.) For example, if a
person is living in the same city as a team playing in the sporting event, this
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weighs in favor of him/her watching the event on television. (See id.)
Likewise, “a mechanic aged 20–29” might be more likely to watch a
television sporting event than “a woman aged 70–79.” (Id.)
With the Appellant’s targeted-advertising system, the target-related
data involves a person’s “service usage” of his/her “client device” during the
television event. (Spec. ¶ 2.) “Service usage” is a person’s “application
usage, social media usage, email usage, text message usage, etc.” via his/her
client device. (Id. ¶ 39.) Thus, in the Appellant’s system, the person is
communicating via his/her client device (e.g., phone) while he/she is
watching the event on television. (See id. ¶¶ 2, 25.)
Apparently, when a person is communicating via his/her client device
while watching an event on television, this person’s service usage will have
“increases” and “decreases.” (Spec. ¶ 3.) For example, there will be
“increases” in service usage during “commercial breaks” (id. ¶ 55) and
“lulls” in service usage when something epic happens that demands full
attention to a television event (id. ¶ 51). And, if a “micro-event” occurs
during a television event (e.g., a goal in a hockey game), a person’s service
usage will correspond to this micro-event. (Id. ¶ 3.) These increases and/or
decreases in service usage can be viewed as forming a “service pattern
usage.” (Id. ¶ 4.)
The Appellant’s system pivots on the principle that a “pattern
similarity” exists among the service usage patterns of people watching the
same television event. (Spec. ¶ 4.) Thus, with the Appellant’s system, a
person’s “service usage” is identified as target-related data and a “service
usage pattern” is determined therefrom. (Id.) This “service usage pattern” is
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then relied upon to determine whether a person is watching (or likely to be
watching) the television sporting event.
A “service usage pattern” can be visualized by plotting service usage
as a function of time as shown in the graph below.

(See Spec. Fig. 6.) The above graph shows a first increase 622 in service
usage between 20 and 40 minutes, a second increase 628 in service usage
between 60 and 80 minutes, and a lull therebetween. (See id. ¶ 54.) The
graph also shows spikes 624 and 628 during the lull and a spike 630
following the second increase 628. (See id.) The spikes 624 and 628 could
reflect micro-events in the television event, such as the scoring of a goal, and
the spike 630 could reflect the final outcome of the event. (See id.)
Once an advertiser knows that the above-plotted service usage pattern
is concomitant with a television sporting event, this service usage pattern
can be relied upon to target people for an advertisement offering a product
associated therewith. (See Spec. ¶ 55.) Thus, if a person’s service usage
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pattern is similar to the plotted service usage pattern (i.e., an increase in
service usage corresponding to increase 622, an increase in service usage
corresponding to increase 628, and a lull therebetween), the advertiser is
made aware that he/she is watching (or likely to be watching) the television
sporting event. Ergo, the advertiser knows to target its jersey advertisement
towards this person so as to avoid forfeiting a sale of a jersey.
ILLUSTRATIVE CLAIM
1. A system of supplemental content identification,
comprising:
a processor; and
memory comprising processor-executable instructions
that when executed by the processor cause the processor to be
configured to implement a supplemental content identification
component configured to:
identify service usage of a client device of a user
during a time frame corresponding to an event, comprising a
television event, viewed by the user, wherein the service usage
is indicative of a plurality of electronic communications
transmitted by the user;
determine a service usage pattern, comprising a
first set of increases in service usage and a first set of lulls in
service usage, based upon the service usage, wherein the first
set of increases in service usage and the first set of lulls in
service usage are indicative of a first increase in service usage
at a first time, a first lull in service usage at a second time after
the first time, and a second increase in service usage at a third
time after the second time, wherein the first increase in service
usage, the first lull in service usage and the second increase in
service usage correspond to the event, and wherein the first
time, the second time and the third time are within the time
frame;
identify second service usage of a second client
device of a second user during a second duration, wherein the
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second service usage is indicative of a plurality of electronic
communications transmitted by the second user;
determine a second service usage pattern,
comprising a second set of increases in service usage and a
second set of lulls in service usage, based upon the second
service usage, wherein the second set of increases in service
usage and the second set of lulls in service usage are indicative
of a third increase in service usage at the first time, a second lull
in service usage at the second time, and a fourth increase in
service usage at the third time;
responsive to determining that the service usage
pattern of the user and the second service usage pattern of the
second user comprise a pattern similarity exceeding a pattern
threshold based upon a determination that the first increase in
the service usage pattern at the first time corresponds to the
third increase in the second service usage pattern at the first
time, the first lull in the service usage pattern at the second time
corresponds to the second lull in the second service usage
pattern at the second time, and the second increase in the
service usage pattern at the third time corresponds to the fourth
increase in the second service usage pattern at the third time,
select, from amongst a plurality of potential
television events, the event as being viewed by the second user;
generate supplemental content associated with the
event for the second user; and
control transmission of the supplemental content
associated with the event via a network connection to the
second user.
REJECTION
The Examiner rejects claims 1–20 under 35 U.S.C § 101 “because the
claimed invention is directed to an abstract idea without significantly more.”
(Final Action 2.) To wit, the Examiner concludes that the claims on appeal
do not pass muster under the Alice two-step framework for patent eligibility.
We sustain this rejection.
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THE ALICE FRAMEWORK
In Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014), the Supreme
Court provided a two-step framework to detect when an attempt is being
made to patent an abstract idea in isolation. (Id. at 217–18.) In the first step
of the Alice framework, a determination is made as to whether the claim at
issue is “directed to” an abstract idea. (Id. at 218.) In the second step of the
Alice framework, a determination is made as to whether “additional
elements” in the claim, both individually and as an ordered combination,
contribute “significantly more” than the abstract idea. (Id.)
THE 2019 § 101 GUIDANCE
The 2019 Revised Patent Subject Matter Eligibility Guidance (“2019
§ 101 Guidance”) provides specific steps for discerning whether a claim
satisfies the Alice framework for patent eligibility. (See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019).)3 These
steps are “[i]n accordance with judicial precedent” and consist of a
two-pronged Step 2A and a Step 2B. (Id. at 52.)
In the first prong of Step 2A (Prong One), a determination is made as
to whether the claim “recites” an abstract idea. (2019 § 101 Guidance,
84 Fed. Reg. at 54.) The Guidance “extracts and synthesizes key concepts
identified by the courts as abstract ideas,” and these concepts include
“[c]ertain methods of organizing human activity,” and, more particularly
fundamental “economic” practices and “commercial” interactions, and, even
more particularly, “advertising.” (Id. at 52.) Thus, “targeted advertising” is

3 The Manual of Patent Examining Procedure (“MPEP”) now incorporates
this revised guidance and subsequent updates at Section 2106 (9th ed.
Rev. 10.2019, rev. June 2020).
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an abstract idea. (In re Morsa, 809 Fed. Appx. 913, 917 (Fed. Cir. 2020).)
Indeed, aligning advertisements with what it is being watched on television
(e.g., morning cartoons versus evening sports) is considered “an abstract
overly broad concept long practiced in our society.” (Intellectual Ventures I
LLC v. Capital One Bank (USA), 792 F.3d 1363, 1371 (Fed. Cir. 2015).)
In the second prong of Step 2A (Prong Two), a determination is made
as to whether the claim contains additional elements that “integrate” the
abstract idea “into a practical application.” (See 2019 § 101 Guidance,
84 Fed. Reg. at 52.) “Additional elements” are “claim features, limitations,
and/or steps that are recited in the claim beyond the identified judicial
exception.” (Id. at 55, n. 24.) “A claim that integrates a judicial exception
into a practical application will apply, rely on, or use the judicial exception
in a manner that imposes a meaningful limit on the judicial exception.” (Id.
at 54.) When the additional elements are computer components, and the
claim “merely includes instructions to implement an abstract idea on a
computer or merely uses a computer as tool to perform an abstract idea,” this
is not enough to integrate an abstract idea into a practical application. (Id.
at 55.)
If a claim recites an abstract idea, and if the claim’s additional
elements do not integrate the recited abstract idea into a practical
application, the claim is “directed to” an abstract idea under the first step of
the Alice framework. (See 2019 § 101 Guidance, 84 Fed. Reg. at 51.)
In Step 2B, a determination is made as to whether the additional
elements recited in the claim, individually or in combination, amount to
“significantly more” than the abstract idea itself under the second step of the
Alice framework. (2019 § 101 Guidance, Federal Register Vol. 84, No. 4
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at 56.) If a claim is directed to an abstract idea, and the claim’s additional
elements consist of a conventional arrangement of conventional computer
components, the claim will not pass muster under the Alice framework for
patent eligibility. (Id.)
ANALYSIS
As for Prong One of Step 2A of the 2019 § 101 Guidance, we agree
with the Examiner that independent claim 1 recites an abstract idea, namely
“targeted advertising.” (Answer 3, see also Final Action 4.)4
Independent claim 1 recites an identification of data for a “[first] user”
corresponding to “a television event” which is “viewed by” the first user,
and a determination of a “[first] pattern” from the first user’s identified data.
(Appeal Br., Claims App.) Thus, claim 1 covers the commercial scenario
where, once an advertiser knows that the first user is watching a sporting
event on television, the advertiser identifies target-related data about the first
user and determinates a pattern therefrom. In other words, this “pattern” of
target-related data is presumed to reveal whether someone is viewing the
television sporting event.
Independent claim 1 recites an identification of data for a “second
user,” a determination of a second “pattern” from the second user’s
identified data, a determination that the first and second patterns have “a
pattern similarity exceeding a pattern threshold,” and a selection of the
television event “from amongst a plurality of potential television events” as
“the event being viewed by” the second user. (Appeal Br., Claims App.)

4 As noted above, the 2019 § 101 Guidance lists “advertising” as a certain
method of organizing human activity that has been identified by the courts
as an “abstract idea.” (2019 § 101 Guidance, 84 Fed. Reg. at 52.)
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Thus, claim 1 covers the commercial scenario where the second user’s
pattern of target-related data reveals that he/she is likely viewing the
television sporting event.
Independent claim 1 recites a generation of “supplemental content
associated with the [television] event” for the second user, and control of
“transmission of the supplemental content associated with the event via a
network connection to the second user.” (Appeal Br., Claims App.) Thus,
claim 1 covers the commercial scenario where, because it has been revealed
that the second user is likely viewing the television sporting event, the jersey
advertisement is transmitted to the second user.
Independent claim 1, therefore, recites identifications, determinations,
selection, generation, and transmission control that are hallmarks of a
traditional targeted advertising strategy.
Independent claim 1 requires the target-related data of the first user to
be the “service usage” of his/her “client device,” and requires the target-
related data of the second user to be the “service usage” of his/her “client
device.” (Appeal Br., Claims App.)5 Thus, claim 1 may require the
involvement of non-traditional data in the recited targeted-advertising
strategy. But the introduction of non-traditional data into a business
strategy, even it yields marketing advantages, does not make a business
strategy any less abstract. (See Secured Mail Solutions LLC v. Universal
Wilde, Inc. 873 F.3d 905, 911 (Fed. Cir. 2017).) And this is true even when

5 The “service usage” in each instance “is indicative of a plurality of
electronic communications transmitted by” the user. (Appeal Br., Claims
App.)
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non-traditional data involves “tracking traffic usage.” (Bridge and Post, Inc.
v. Verizon Communications, Inc., 778 F3d.Appx. 882, 893 (Fed. Cir. 2019).)
As the target-related data pertains to “service usage[s],” independent
claim 1 requires the determined patterns to pertain to “service usage
pattern[s].” (Appeal Br., Claims App.). As discussed above, such a
determination equates to recognizing “increases” and “lulls” in service
usage. (Id.) And, the Appellant’s system pivots on the principle that if the
second user is viewing the same television event as the first user, the
“correspond[ence]” between these increases and lulls would reveal a
“pattern similarity” that satisfies a certain threshold. (Id.) Such detection of
similar patterns in target-related data is an abstract aspect of targeted
advertising.
Independent claim 1 does contain detailed descriptions of the first
usage pattern,6 the second usage pattern,7 and the pattern similarity

6 The first service usage pattern comprises “a first set of increases in service
usage and a first set of lulls in service usage, based upon the service usage”
of the first user. (Appeal Br., Claims App.) These increases and lulls are
“indicative of a first increase in service usage at a first time, a first lull in
service usage at a second time after the first time, and a second increase in
service usage at a third time after the second time.” (Id.) “[T]he first
increase in service usage, the first lull in service usage and the second
increase in service usage correspond to the [television] event,” and the times
are “within [a] timeframe” corresponding with the television event. (Id.)
7 The second service usage pattern comprises “a second set of increases in
service usage and a second set of lulls in service usage, based upon the
second service usage.” (Appeal Br., Claims App.) These increases and lulls
are “indicative of a third increase in service usage at the first time, a second
lull in service usage at the second time, and a fourth increase in service
usage at the third time.” (Id.)
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therebetween.8 However, irrespective of how narrow these limitations may
be relative to the entire array of targeted-related data, this does not affect
whether the claim recites an abstract idea. By way of analogy, in BSG Tech
LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287 (Fed. Cir. 2018), allegedly
narrow limitations about “‘summary comparison usage information’” did
nothing more than “narrow” the abstract idea.
As for Prong Two of Step 2A of the 2019 § 101 Guidance, we agree
with the Examiner that the “additional elements” in independent claim 1 fail
to integrate the recited abstract idea of targeted advertising “into a practical
application.” (Final Action 4.)
Independent claim 1 recites a “processor,” a “memory,” “processor-
executable instructions,” a “supplemental content identification component,”
“client device[s],” and “a network connection.” (Appeal Br., Claims App.)
Claim 1’s computer components are arguably beyond the abstract idea of
targeted advertising, and, therefore, treated as “additional elements.” (Final
Action 4.) Thus, the possibility that these computer components integrate
the abstract idea of targeted advertising into a practical application must be
taken into consideration.
Independent claim 1 requires the memory to “compris[e]” the
instructions and requires the instructions, “when executed by the processor,”

8 The determination of “pattern similarity” is based upon a determination
that “the first increase in the service usage pattern at the first time
corresponds to the third increase in the second service usage pattern at the
first time,” that “the first lull in the service usage pattern at the second time
corresponds to the second lull in the second service usage pattern at the
second time,” and that “the second increase in the service usage pattern at
the third time corresponds to the fourth increase in the second service usage
pattern at the third time.” (Appeal Br., Claims App.)
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to “cause the processor to be configured to implement [the] supplemental
content identification component.” (Appeal Br., Claims App.) Thus,
claim 1 requires the memory to store instructions and the processor to
execute instructions so as to call upon a software component. This amounts
to generic computer components performing generic computer functions
which, “[g]iven the ubiquity of computers,” does not “transform a patent-
ineligible abstract idea into a patent-eligible invention.” (Alice, 573 U.S. at
223.)
Independent claim 1 requires the supplemental content identification
component to be “configured to” perform the recited abstract-idea-
embedded functions. (Appeal Br., Claims App.) Although claim 1 requires
the functional results of identifying, determining, selecting, generating, and
transmission controlling, it does not specify how to achieve these results in a
non-abstract way.9 Reciting an abstract idea in conjunction with a computer
“in purely functional terms” does not integrate the abstract idea into a
practical application. (In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607,
612 (Fed. Cir. 2016); see also Affinity Labs of Texas, LLC v. DirecTV, LLC,
838 F.3d 1253 (Fed. Cir. 2016), Interval Licensing LLC v. AOL, Inc., 896
F.3d 1335 (Fed. Cir. 2018), Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229,
1241 (Fed. Cir. 2016).)

9 This claiming approach is also susceptible to challenges under 35 U.S.C.
§ 112 if the Specification does not disclose “the computer and the
algorithm(s) that achieve the claimed function in sufficient detail that one of
ordinary skill in the art reasonably conclude that the inventor possessed the
claimed subject matter at the time of filing.” (Examining Computer-
Implemented Functional Claim Limitations for Compliance With 35 U.S.C.
112, 94 Fed. Reg. 57, 61 (Jan. 7, 2019.)
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Independent claim 1 requires the identified target-related data to be
the service usages of the first and second users’ “client device[s].” (Appeal
Br., Claims App.) However, these limitations use the phrase “client device”
to describe the content of the target-related data — they do not require any
actual interaction between the client device and the supplemental
identification component. Furthermore, even if claim 1 did require the client
devices to communicate their services usages to another computer
component, a client device (e.g., a phone) sending information elsewhere is
one of the core functions of such a generic computer component. (See TLI
823 F.3d at 607.) “That a computer receives and sends the information —
with no further specification — is not even arguably inventive.” (BuySAFE
v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014).)
Independent claim 1 requires the “transmission of the supplemental
content associated with the event” to be “via network connection to the
second user.” (Appeal Br., Claims App.) However, insofar as claim 1 is
limited to a networking environment, this does not render the claim any less
abstract. (See Affinity, 838 F.3d at 1259.) And the Appellant does not assert
that it has “invented new networking hardware or software.” (Bridge and
Post, 778 Fed. Appx. at 889.)
Thus, none of the computer components recited in independent
claim 1 individually integrate the abstract idea of targeted advertising into a
practical application. And an evaluation of “whether the claim as a whole
integrates the recited judicial exception into a practical application of the
exception” (2019 § 101 Guidance, 84 Fed. Reg. at 54) does not alter the
Prong-Two determination. It is true that “an inventive concept” can
conceivably be conferred by “the non-conventional and non-generic
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arrangement of known, conventional pieces,” such as “a set of generic
computer components.” (Bascom Global Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016).) Here, however, independent
claim 1 does not require any particular arrangement (much less a non-
generic arrangement) of the processor, the memory, the instructions, the
supplemental content identification component, the client devices, and the
network connection.
Thus, we agree with the Examiner that independent claim 1 is directed
to the abstract idea of targeted advertising under the first step of the Alice
framework.
As for Step 2B of the 2019 § 101 Guidance, we agree with the
Examiner that the additional elements in independent claim 1 do not
“amount to significantly more than the abstract idea.” (Final Action 4.) The
Specification describes a conventional server 104 (see Spec. ¶¶ 26–30,
Fig. 2), a conventional memory 802 (see id. ¶ 57, Fig. 8), conventional
instructions 812 (see id. ¶57) conventional client devices 110/402/422/602
(see id. ¶¶ 31–35, Figs. 3, 4A, 4B, 6), and a conventional network
connection 106/108 (see id. ¶¶ 21–25, Fig. 1). A “supplemental content
identification component 410” is described only in terms of the results it
achieves. (See id. ¶¶ 39–49, Figs. 4A, 4B; see also id. ¶¶ 53–56, Figs. 6, 7.)
And, inasmuch as any communication, coordination, or other interaction
between these computer components is required, it is described as
conventional. (See id. ¶¶ 21–25, Fig. 1.)
Moreover, the Specification expressly says that “the claimed subject
matter may be implemented as a method, apparatus, or article of
manufacture using standard programming and/or engineering techniques to
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produce software, firmware, hardware, or any combination thereof to control
a computer to implement the disclosed subject matter.” (Spec. ¶ 63.)
Thus, we agree with the Examiner that independent claim 1’s
additional elements do not make an inventive contribution to the recited
abstract idea of targeted advertising. We agree, therefore, that claim 1 does
not pass muster under the Alice framework for patent eligibility.
The Appellant’s Arguments
The Appellant argues that independent claim 1’s recited identification,
determination, selection, generation, and transmission functions are
“elements” that “are not abstract.” (Appeal Br. 13–14; see also id.
at 25–26.) However, sans the generic computer component configured to
perform these functions, these limitations only come to light in the abstract
idea of targeted advertising. As correctly noted by the Appellant,
“computer-related claims and those with software are not by default
abstract.” (See id. at 12, underlining omitted.) But such claims will not pass
muster under the Alice framework if they do “not recite any assertedly
inventive technology for improving computers as tools” or if their elements
are “so result-based that they amounted to patenting the patent-ineligible
concept itself.” (Interval Licensing, 896 F.3d at 1344.) Claim 1 suffers
from both of these shortcomings.
The Appellant argues that independent claim 1 does not recite an
abstract idea because it involves “service usage” of a “client device” that is
“indicative of a plurality of electronic communications transmitted by [a]
user.” (See Appeal Br. 24–25.) We note that claim 1 requires neither the
client devices to reside, nor the electronic communications to transpire,
within the contours of the claimed system. In any event, the recited service
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usages are nothing more than information about the client devices which the
claimed system identifies as target-related data. Thus, these limitations, at
most, restrict the claim to a particular type of target-related data. And
applying “an abstract idea in a narrow way” does not affect whether it is
“directed to” an abstract idea under the first step of the Alice framework.
(BSG, 899 F.3d at 1287.)
The Appellant advances arguments premised upon the “problem”
solved by its invention. (See Appeal Br. 15–16, 18–19; see also Reply
Br. 3.) Certainly, perusing “the problem facing the inventor” may be
worthwhile when ascertaining what a claim is “directed to” under the first
step of the Alice framework. (TLI, 823 F.3d at 612.) Here, the Appellant
asserts that the problem facing the inventor was “determining what a user of
a device is watching” because, if an advertiser is not “aware” that the user is
viewing event, the advertiser “may not provide the user with appropriate
content.” (Appeal Br. 19; see also Spec. ¶¶ 1, 38.)
The trouble with these arguments is that they hurt, rather than help,
the Appellant’s cause. The above-described problem faced by the inventor
would be a common occurrence in any advertising strategy when an
advertiser is unaware that a person satisfies targeting criteria, and, therefore,
does not target its advertisement theretoward. Thus, the problem faced by
inventor is really a commonly-encountered advertising problem, rather than
a technical problem. This problem has everything to do with striving for
commercial success, and little to do with computer technology.
The Appellant argues that a “technical” benefit afforded by its
claimed system is increased “engagement and interaction” with a user by
virtue of providing him/her with “supplemental content.” (Appeal Br. 19.)
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Per the Specification, an advertiser that has the “ability to provide” its
supplemental content to this user will have better engagement/interaction
when “compared to” an advertiser that “lacks an ability” to provide its
supplemental content to this user. (Spec. ¶ 38.) But this is just another way
of saying that an advertiser that communicates with a potential customer will
have more engagement/interaction with this person than an advertiser that
does not communicate with this person. Communication, for the purpose of
engagement/interaction with a potential customer, is, almost by definition,
the business benefit gained by advertising.10
The Appellant argues that another “technical” benefit afforded by its
claimed system is reduced “power consumption” and “bandwidth.” (Appeal
Br. 19.) Per the Specification, when a user is provided with “relevant
supplemental content,” the user does not have to “find such supplement
content,” and this “may reduce power consumption and bandwidth” that
would be “wasted” attempting to do so. (Spec. ¶ 38.) This boils down to the
notion that when a person is provided with something, he/she does not have
to expend effort seeking it. Thus, this purported technical benefit is really
just the uncontroversial consequence of providing a person with content (i.e.,
he/she no longer needs to look for this content).
The Appellant argues that independent claim 1 “is directed to
improving a technological process of using service usage patterns” to
“determine events” being viewed by users of “computing devices on a
network” and “provide relevant supplemental content to the users.” (Appeal

10 A definition of “advertising” is “the action of calling something to the
attention of the public especially by paid announcements.” (https://
www.merriam-webster.com/dictionary/advertising.)
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Br. 14.) Thus, the essential advance argued by the Appellant is not in the
technology used to monitor, track and/or identify service usage patterns, but
only in the broad commercial concept of using service usage patterns to
target advertisements. Such an “advance” does not rescue claim 1 from
abstractness. (Affinity, 838 F.3d at 1263.)
The Appellant argues that independent claim 1 allows the
supplemental content provider to “determine in near-real time what the
second user is viewing” and “provide the second user with the supplemental
content that is relevant to the user.” (Appeal Br. 19.) According to the
Appellant, claim 1 provides “improvements to the technical field of real-
time event viewing prediction.” (Id. at 26.) The Appellant does not,
however, point with particularity to limitations in claim 1 pertaining to near-
real time computations. Regardless, using a computer to perform a task
“more quickly or more accurately” is not a ticket into patent-eligible
territory. (OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363
(Fed. Cir. 2015).)
The Appellant argues that its invention “reduces and/or mitigates the
need to perform labor-intensive and infeasible monitoring” of a user’s
“event viewing activities.” (Reply Br. 5.) However this reduction/
mitigation is achieved via the identification of certain target-related data
(i.e., service usages) not via the technology involved in identifying this data.
Independent claim 1 merely requires the relevant computer component to be
“configured to” identify this target-related data without specifying any
technical features of this configuration. And even if all of the details
contained in the Specification about this computer component (see Spec.
¶¶ 39–49, Figs. 4A, 4B; see also id. ¶¶ 53–56, Figs. 6, 7) were “imported
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into” claim 1, “the result would still not be a concrete implementation of the
abstract idea.” (Affinity, 838 F.3d at 1259.)
The Appellant argues that independent claim 1 recites “‘significantly
more’” under the second step of the Alice framework because it “contain[s]
an ‘inventive concept’ in its ordered combination of limitations that are not
found in the prior art.” (Appeal Br. 30; see also Reply Br. 15–16.)
According to the Appellant, “[t]he present combination of limitations is not
well-understood, routine, or conventional activity.” (Id. at 32.) However,
the limitations emphasized by the Appellant in this regard (see Appeal
Br. 31–32) are all embedded in the abstract idea of targeted advertising, and
thus cannot contribute “significantly more” to the abstract idea. Even if the
claimed combination of these abstract-idea-embedded limitations creates a
novel targeted-advertising strategy, this does not “avoid the problem of
abstractness.” (Affinity, 838 F.3d at 1253.)
We disagree, therefore, with the Appellant’s contentions that the
system set forth in independent claim 1 uses “information obtained via the
judicial exception to take corrective action” (Appeal Br. 29), is “rooted in
computer technology” (id. at 19), is directed to “‘non-abstract improvements
in computer technology’” (Reply Br. 4), requires “a non-conventional
combination of data sources” (Appeal Br. 22), and/or provides “an improved
user interface” (id. at 20). Contrary to the Appellant’s contentions, claim 1
does not rightly resemble the claims at issue in Diamond v. Diehr, 450 U.S.
175 (1981), DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed.
Cir. 2014), Enfish, LLC v. Microsoft Corp.,822 F.3d 1327 (Fed. Cir. 2016),
Thales Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017), and/or
Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed.
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Cir. 2018). Rather, claim 1 most closely coincides with controlling case law
in which “the claimed invention is at most an improvement to the abstract
concept of targeted advertising wherein a computer is merely used as a tool.”
(Customedia Techs. v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir.
2020); see also Intellectual Ventures 792 F.3d at 1370, Bridge and Post 778
Fed. Appx. at 889, Morsa 809 Fed. Appx. at 918.)
Thus, after careful consideration of the Appellant’s arguments, we
still agree with the Examiner that independent claim 1 does not pass muster
under the Alice framework for patent eligibility.
Summary
We sustain the Examiner’s rejection of independent claim 1 under
35 U.S.C. § 101.
Independent Claims 16 and 20
Independent claim 16 sets forth a method comprising steps which
perform the identifying, determining, selecting, and providing (e.g.,
transmitting) computer functions recited in independent claim 1. (Appeal
Br., Claims App.) Independent claim 20 sets forth a system entailing the
same computer components and the performance of the same computer
functions. (See id.) For the reasons discussed above in connection with
independent claim 1, we agree with the Examiner that independent claims 16
and 20 do not pass muster under the Alice framework for patent eligibility.
(See Final Action 2–5.)
Dependent Claims
The dependent claims on appeal set forth further limitations of the
method set forth in independent claim 1 and the method set forth in
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independent claim 16. (See Appeal Br., Claims App.) These further
limitations consist only of features that are hallmarks of, and/or abstract
advances over, a traditional targeted-advertising strategy.11 More concisely,
they “merely further limit the abstract idea.” (Answer 10.) Thus, we agree
with the Examiner that dependent claims 2–15 and 17–19 do not pass muster
under the Alice framework for patent eligibility. (See Final Action 2–5.)
CONCLUSION
Claim(s)
Rejected
35 U.S.C. Reference(s)/
Basis
Affirmed Reversed
1–20 § 101 Eligibility 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)(1)(iv).
AFFIRMED

11 These features include identifications and determinations involving
traditional target-related data (claims 2, 3, 5, 6, 7, 14, 15, 17, 18),
correlations between a micro-event and service usage (claims 4, 9, 10, 11,
19), the marketing approach of the supplemental content (claims 8, 11), the
genre of the television event (claim 12), and/or the timing aspect of the
service usage pattern (claim 13). (See Appeal Br., Claims App.)