Zachary Cutler

Patent Trials and Appeals Board

May 22, 2020

13798845 - (D) (P.T.A.B. May. 22, 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.
13/798,845 03/13/2013 Zachary CUTLER CUT-001US1 6924
128484 7590 05/22/2020
DAVID C. ROBERTSON
PO BOX 470
Hallowell, ME 04347
EXAMINER
HULL, JAMES B
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
05/22/2020 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):
2dave.robertson@gmail.com
dave@leberiplaw.com
dcrobertsonesq@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZACHARY CUTLER
Appeal 2019-002737
Application 13/798,845
Technology Center 3700
Before JOHN C. KERINS, CHARLES N. GREENHUT, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
OSINSKI, 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 1‒3, 5–7, 10, 11, and 22–39 under
35 U.S.C. § 101 as being directed to patent ineligible subject matter.2 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 Training State
LLC. Appeal Br. 1.
2 Claims 4, 8, 9, and 12–21 are cancelled. Appeal Br. 28–30 (Claims App.).
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CLAIMED SUBJECT MATTER
Claims 1 and 27 are independent. Claim 1 is reproduced below.
l. A method for establishing and maintaining neural and
attentional engagement of a subject through the use of an
unattended system using a computing device coupled to a display
and to an input device, the method comprising:
receiving from one or more biometric sensors of a
physiological measurement system coupled to the computing
device, a measurement indicating a current physiological or
neurocognitive state of the subject;
automatically selecting, based on the physiological or
neurocognitive state, a first stimulus of an interactive activity
comprising one or more visual, aural, or haptic cues;
presenting to the subject, using the display device, the
interactive activity according to the first stimulus;
detecting from the subject using the input device, an
interactive response to the first stimulus;
automatically monitoring, during the subject’s response to
the interactive activity, a performance metric corresponding to a
successful response to the first stimulus;
repeating the presenting, detecting, and monitoring until
the performance metric satisfies a predetermined condition;
automatically selecting a second stimulus of the
interactive activity comprising one or more visual, aural, or
haptic cues;
wherein:
automatically selecting the first stimulus includes
automatically matching the demands of the first stimulus to the
current physiological or neurocognitive state of the subject, and
the matching the demands of the first stimulus includes selecting
the cues of the first stimulus to correspond to an arousal level
associated with the current physiological or neurocognitive state
of the subject, and
responding to the first stimulus is a first activity requiring
that the subject perform a first set of actions to interact with a
first set of icons on the display of the computing device; and
providing, by the computing device, the second stimulus
to the subject,
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wherein:
responding to the second stimulus is a second activity
requiring that the subject perform a second set of actions to
interact with a second set of icons on the display of the
computing device, and the second stimulus is selected by the
computing device to guide the subject to a new physiological or
neurocognitive state;
wherein:
automatically selecting the second stimulus includes
automatically controlling the mismatch of the demands of the
second stimulus with the current physiological or neurocognitive
state of the subject, and controlling the mismatch of the demands
of the second stimulus includes selecting the cues of the second
stimulus to correspond to an arousal level associated with the
new physiological or neurocognitive state of the subject; and
wherein:
the cues for the first stimulus and the second stimulus vary
in one or more of quantity, color, size, volume, intensity, opacity,
pitch, tempo, frequency, period, intermittency, movement or
perceived distance of the visual, aural, or haptic cues.
OPINION
Legal Principles
The patent laws provide that “[w]hoever invents or discovers any new
and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof, may obtain a patent therefor, subject to
the conditions and requirements of this title.” 35 U.S.C. § 101. However,
“this provision contains an important implicit exception: Laws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. v.
CLS Bank Int’l, 573 U.S. 208, 216 (2014) (citation omitted).
Mayo Collaborative Services established a framework to distinguish
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts. Alice,
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573 U.S. at 217 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 77 (2012)). First, we determine whether the claims are directed
to a patent-ineligible concept. Id. If so, we next consider the claim elements
individually and as an ordered combination to determine whether additional
elements transform the claims into a patent-eligible application. Id. This
search for an inventive concept seeks an element or combination of elements
“sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the [ineligible concept] itself.” Id. at 217–18 (alteration
in original).
Recently, the PTO published guidance for evaluating subject matter
eligibility. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (USPTO Jan. 7, 2019) (“Revised Guidance”). Under Step One,
a determination is made whether the claims are in a statutory category of
patentable subject matter, i.e., do they recite a process, machine,
manufacture, or composition of matter, identified in 35 U.S.C. § 101.
Revised Guidance, 84 Fed. Reg. at 50, 53–54; see Alice, 573 U.S. at 216;
Mayo, 566 U.S. at 70.
Next, at Revised Step 2A, Prong One, an evaluation is made whether
a claim recites a judicial exception, i.e., an abstract idea as set forth in
Section I of the Revised Guidance, a law of nature, or a natural
phenomenon. Revised Guidance, 84 Fed. Reg. at 54. To determine if a
claim recites an abstract idea, specific limitations that recite an abstract idea
must be identified (individually or in combination), and a determination
made whether the limitation(s) fall(s) within one or more of the subject
matter groupings in Section I of the Revised Guidance. Id. (A. Revised
Step 2A). The three groupings are (1) mathematical concepts, relationships,
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formulas, or calculations, (2) certain methods of organizing human activity,
including fundamental economic principles and practices, commercial
interactions, managing personal behavior, relationships, or interactions, and
(3) mental processes and concepts formed in the human mind. Id. at 52.
If a claim recites a judicial exception, Prong Two of Revised Step 2A
requires a determination to be made whether the claim as a whole integrates
the judicial exception into a practical application. Id. “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, such that the claim is more than a drafting effort
designed to monopolize the judicial exception.” Id. at 53. If a judicial
exception is integrated, the claim is patent eligible. See id. at 54–55.
If a claim does not “integrate” a recited judicial exception, the claim is
directed to the judicial exception and further analysis is required under Step
2B to determine whether the claim contains additional elements, considered
individually or in combination, that provide an inventive concept, such that
the additional elements amount to significantly more than the exception
itself. Id. at 56.
Step One: Does Claim 1 Fall within a Statutory Category of § 101?
Appellant argues independent claims 1 and 27 as a group. Appeal
Br. 8–24. We select claim 1 as representative of the issues that Appellant
presents in the appeal, and claims 2, 3, 5–7, 10, 11, and 22–39 stand or fall
with claim 1.3 37 C.F.R. § 41.37(c)(1)(iv).

3 With respect to dependent claims 2, 3, 5–7, 10, 11, 22–26, and 28–39,
Appellant asserts that “[t]he Examiner ignored all elements of the dependent
claims, including (at least) claims 10, 11, 33, and 34, which comprise rules
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We examine whether claim 1 recites one of the enumerated statutory
classes of subject matter, i.e., process, machine, manufacture, or
composition of matter, eligible for patenting under 35 U.S.C. § 101.
Claim 1 refers to “[a] method for establishing and maintaining neural and
attentional engagement of a subject through the use of an unattended
system,” which recites one of the statutory classes (i.e., a process) under
35 U.S.C. § 101.
Step 2A, Prong One: Does Claim 1 Recite a Judicial Exception?
We next look to whether claim 1 recites any judicial exceptions,
including certain groupings of abstract ideas, i.e., mathematical concepts,
certain methods of organizing human activity, or mental processes.
The Examiner determines that claim 1 is directed to an abstract idea,
specifically, a certain method of organizing human activity. Final Act. 2–4.
The Examiner states that the method of organizing human activity is

for the ‘controlled mismatch’ step of the claimed invention.” Appeal Br. 24.
Appellant does not present arguments with sufficient particularity to
persuade us of error in the Examiner’ rejection of the dependent claims,
including claims 10, 11, 33, and 34. See 37 C.F.R. § 41.37(c)(1)(iv); In re
Lovin, 652 F.3d 1349, 1357 Fed. Cir. 2011) (holding that the Board had
reasonably interpreted the same language in the prior rule under 37 C.F.R.
§ 41.37(c)(1)(vii) as requiring “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.”). Moreover,
Appellant acknowledges the Examiner’s statement that “[t]he dependent
claims merely further define the abstract idea . . . rather than an
improvement to the computer functionality or another technology” (Final
Act. 5), such that we are not persuaded by the argument that the Examiner
simply ignored the dependent claims. Rather, the Examiner determines that
the dependent claims refine the abstract idea, rather than integrate the
abstract idea into a practical application or recite an inventive concept.
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“establishing and maintaining a neural and attentional engagement of a
subject as recited in independent claim 1.” Id. at 2. Appellant’s
Specification is entitled “Behavior Modification Methods and Systems”
(Spec. Title (emphasis omitted)), and describes that “[t]he technology
described herein relates to systems and methods for altering behavior of
subjects in a manner that is active, stimulating, and engaging, but which
does not oppose cognitive processing biases the subject is experiencing” (id.
¶ 11). More particularly, the Specification describes that “[g]iven that
different levels of task complexity and/or subjective skill level are either
facilitated or impaired by varying levels of arousal [i.e., bodily readiness for
activity], a tool that allows arousal to be manipulated independently will
enhance performance. Id. ¶ 52. In sum, the claimed method steps are
designed to achieve behavior modification in order to optimize task
performance by establishing and maintaining a neural and attentional state
that is desirable for a task that is to be performed.
Claim 1 recites selecting a first stimulus (i.e., an interactive activity
with one or more visual, aural, or haptic cues that vary in one or more of
quantity, color, size, volume, intensity, opacity, pitch, tempo, frequency,
period, intermittency, movement or perceived distance) such that the
demands of the first stimulus have cues that correspond to an arousal level
associated with the current physiological or neurocognitive state of the
subject. Appeal Br. 26 (Claims App.). Claim 1 further recites presenting the
first stimulus to the subject, detecting the subject’s response to the first
stimulus, and continuing to present the first stimulus and detect the subject’s
response to the first stimulus until a performance metric corresponding to the
response to the first stimulus matches a desired performance metric. Id.
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According to the Specification, “[t]he [first] stimulus is selected to match the
current state because the greater the mismatch between the current state and
the stimulus presented to the subject, the greater the risk that it will be
experienced as undesirable.” Spec. ¶ 46. Consequently, the method steps of
selecting and presenting the first stimulus ensure that the subject is more
receptive to the method steps that follow in order to ultimately be successful
in securing behavior modification, such that the steps relating to the
selection and presentation of a first stimulus, as well as the detection and
monitoring of a response to the first stimulus are part of managing personal
behavior.
Claim 1 further recites selecting a second stimulus so as to guide the
subject to a new physiological or neurocognitive state, including selecting
cues that correspond to an arousal level associated with the new
physiological or neurocognitive state of the subject. Appeal Br. 26–27
(Claims App.). For example, the Specification describes that if “the second
stimulus [is] selected to guide the subject to a state corresponding to a lower
arousal level,” the second stimulus may “decreas[e], relative to the first
stimulus, a number of attention shifting actions expected of the subject [or]
. . . a number of interactions expected of the subject . . . [or] perceptual load
of the subject’s sensory environment” and/or “chang[e] . . . color themes in
visual stimulation components of the interactive activity towards colors
corresponding to relaxing colors.” Spec. ¶ 17. On the other hand, if “the
second stimulus [is] selected to guide the subject to a state corresponding to
a higher arousal level,” the first stimulus may “increase[e], relative to the
first stimulus, a number of attention shifting actions expected of the subject
[or] . . . a number of interactions expected of the subject . . . [or] perceptual
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load of the subject’s sensory environment” and/or “chang[e] . . . color
themes in visual stimulation components of the interactive activity towards
colors corresponding to higher excitement colors.” Id. ¶ 18. Claim 1 further
recites providing the second stimulus to the subject and allowing the subject
to respond to the second stimulus. Id. Considering that the method steps of
selecting and providing the second stimulus guide the subject to a new
physiological or neurocognitive state in order to modify behavior and
ultimately improve performance of a task, such steps relating to the selection
and provision of the second stimulus are part of managing personal
behavior.
When considering the analysis of the claimed steps above, we do not
agree with Appellant that the rejection relies on “an overly generalized and
simplified piecemeal analysis of the claims.” Appeal Br. 7; see also id. at 10
(similarly asserting that “the Examiner’s characterization of the claimed
invention as ‘establishing and maintaining a neural and attentional
engagement of a subject’ overgeneralized the claim as a whole in an attempt
to simplify it into its ‘gist’ or ‘core principle.’”). Each of the above-
described steps relates to managing personal behavior. Managing personal
behavior falls within the abstract idea exception subgrouping of certain
methods of organizing human activity. Revised Guidance, 84 Fed. Reg. at
52. Thus, claim 1 recites at least a method of managing personal behavior
which is one of certain methods of organizing human activity identified in
the Revised Guidance, and, thus, an abstract idea.4 We note that

4 Having determined that claim 1 recites at least a method of managing
personal behavior which is one of certain methods of organizing human
activity identified in the Revised Guidance, we need not address whether
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“performance of a claim limitation using generic computer components does
not necessarily preclude the claim limitation from being in the . . . certain
methods of organizing human activity grouping, Alice, 573 U.S. at 219–20.”
See Revised Guidance, 84 Fed. Reg. at 52 n.14.
Step 2A, Prong Two: Does Claim 1 Recite Additional Elements that
Integrate the Judicial Exception into a Practical Application?
Following the Revised Guidance, having found that claim 1 recites a
judicial exception, we next determine whether the claim recites “additional
elements that integrate the exception into a practical application” (see MPEP
§§ 2106.05(a)–(c), (e)–(h)). See Revised Guidance, 84 Fed. Reg. at 54.
The preamble of claim 1 recites “[a] method for establishing and
maintaining neural and attentional engagement of a subject through the use
of an unattended system using a computing device coupled to a display and
to an input device.” Appeal Br. 26 (Claims App.) (emphasis added). The
body of claim 1 recites certain physical components of the system in a
generic manner.
Specifically, the body of claim 1 recites “receiving from one or more
biometric sensors of a physiological measurement system coupled to the
computing device, a measurement indicating a current physiological or
neurocognitive state of the subject.” Id. The Examiner finds that such a
recitation constitutes “insignificant pre-solution activity of collecting new
data.” Final Act. 2 (italics omitted). We agree with the Examiner that the
recited biometric sensors of a physiological measurement system that send
measurements indicating a current physiological or neurocognitive state of

claim 1 also recites a mental process as determined by the Examiner. Final
Act. 2–4; Revised Guidance, 84 Fed. Reg. at 52.
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the subject merely add insignificant extra-solution activity to the judicial
exception. That is, the biometric sensors of the physiological measurement
system are merely used for gathering data for use in the later steps of the
claimed method. See MPEP § 2106.05(g) (“An example of pre-solution
activity is a step of gathering data for use in a claimed process.”).
The body of claim 1 also recites a “display device” used to present the
first stimulus to the subject and a “computing device” used to automatically
select and provide the second stimulus to the subject. Appeal Br. 26–27
(Claims App.). Claim 1 additionally recites the use of an “input device” to
detect a subject’s interactive response to the first stimulus, further mandating
that the subject’s response to the first and second stimuli requires “the
subject perform a first set of actions to interact with a first set of icons on the
display of the computing device” and “the subject perform a second set of
actions to interact with a second set of icons on the display of the computing
device,” respectively. Appeal Br. 27 (Claims App.).
The Examiner finds that “[t]he mere recitation of ‘computer-
implemented,’ ‘unattended system,’ and ‘automatic’ performance of steps is
akin to adding the words ‘apply it’ in conjunction with the abstract idea.”
Final Act. 5. More specifically, the Examiner finds that “[t]he computer
constructs of the claims are recited at a high level of generality with the only
required function being to implement the abstract process” and are simply
“[g]eneric computers performing generic computer functions.” Id. We
agree with the Examiner that an unattended system that incorporates a
computing device to automatically select a stimulus, a display device to
present stimuli to a subject, and an input device that allows a subject to
interact with icons on the display device are generically recited computer
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elements and encompass any computing device that can be used to input
data and store and run software. See MPEP § 2106.05(f) (“Use of a
computer or other machinery in its ordinary capacity for . . . tasks (e.g., to
receive, store, or transmit data) or simply adding a general purpose computer
or computer components after the fact to an abstract idea . . . does not
provide significantly more.”).
The elements of claim 1 are recited as generic computer components
that, when considered both individually and in combination, do not
implement the judicial exception with, or use the judicial exception in
conjunction with, a particular machine or manufacture that is integral to the
claim. The recitations of the generic structures are merely instructions to
apply the judicial exception using a generic computer system.
Appellant argues that the method and system
as fully claimed and disclosed, is an advance in the art of user-
interface/user experience (UX/UI) design [and] [t]he invention
has particular application and benefit to reducing information
overload and optimizing user engagement with graphical digital
interfaces—such as a game or internet web application—as a
practical application of modern cognitive neuroscience.
Appeal Br. 12–13. Appellant points to Trading Technologies (Trading
Techs. Int’l, Inc. v. CQG, Inc., 675 F. App’x. 1001 (Fed. Cir. 2017)) and
Core Wireless (Core Wireless Licensing S.A.R. L. v. LG Elecs., Inc., 880
F.3d 1356, 1362 (Fed. Cir. 2018)) as “demonstrat[ing] that claims directed to
user-interfaces that improve the ability of a user to use a computer can be
found non-abstract and thus eligible for patenting.” Id. at 16; see also id. at
18 (“Claims to improvements in interactive user interfaces that have, as their
result, enhancing the performance of the user while using the computer have
been found eligible for patenting.”).
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More specifically, Appellant argues that “[l]ike Trading Technologies,
the set of cues (e.g., icons) of the present invention are dynamically arranged
(e.g., sized, arranged, and animated) on an interactive display, responsive to
the selection by the user of a particular location (e.g, the location of the
target and distractor icons).” Appeal Br. 19. Appellant further argues that
[b]y matching and controllably mismatching the set of cues to
the user’s cognitive capability based on the user’s measured
arousal level, the user interface accommodates to the
physiological state of the user, thereby improving the user’s
attentional engagement with the system and subsequent task
performance in (at least) high arousal states, analogous to the
improvement provided by the user interface in Trading
Technologies in high stress trading environments.
Id. at 19–20.
Appellant’s reliance on Trading Technologies is misplaced in that
subsequent precedential decisions in the Trading Technologies line of cases
make clear that the generic use of a computer as a tool without improvement
of the computer was determined not to be an integration of an abstract idea
into a practical application. See, e.g., Trading Techs. Int’l, Inc. v. IBG LLC,
921 F.3d 1084, 1093-94 (Fed. Cir. 2019) (holding that the patent owner
“argues the claims improve computer functionality by improving on the
intuitiveness and efficiency of prior GUI tools. The specification makes
clear that this invention helps the trader process information more quickly.
This is not an improvement to computer functionality, as alleged by [the
patent owner].”). Similar to the subsequent precedential decisions in the
Trading Technologies line of cases, the claimed solution of improving
attentional engagement for improved task performance is a solution for
managing personal behavior that is implemented with a generic computing
device, rather than a technological solution to a technological problem. As
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explained in the Specification, “the use of the technology will allow
[stressed/nervous office workers new to the job, for example] to acutely vary
(i.e., decrease) their arousal any time they are experiencing a level of
stress/arousal that they perceive to be interfering with their ability to
perform,” whereas “the technology may be used to acutely vary (i.e.,
increase) the[] arousal” of office workers who have “trouble generating the
motivation to enthusiastically and optimally execute their responsibilities”
after having “been working in the same position for 15 years” where “they
have mastered occupationally relevant skills,” for example. Spec. ¶ 52. Any
improvements are with respect to the methodology for managing personal
behavior, not the computing device itself or its operation and/or function.
Appellant also analogizes its claim to the representative claim of Core
Wireless, indicating that “[i]n a similar manner, the claims on appeal here
disclose a specific manner of displaying a limited set of information to the
user.” Appeal Br. 19. In particular, Appellant argues that
[b]y matching and controllably mismatching the set of cues to
the user’s cognitive capability based on the user’s measured
arousal level, the user interface accommodates to the
physiological state of the user, thereby improving the user’s
performance. The invention has particular application and
benefit to reducing information overload and optimizing user
engagement with graphical digital interfaces.
Id. at 20.
The claim in Core Wireless was directed to “an improved user
interface for electronic devices, particularly those with small screens” where
the improvement was in “the efficiency of using the electronic device by
bringing together ‘a limited list of common functions and commonly
accessed stored data,’ which can be accessed directly from the main menu.”
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Core Wireless, 880 F.3d at 1363 (citation omitted). The Specification in that
case confirmed these improvements over “the prior art interfaces [that] had
many deficits relating to the efficient functioning of the computer, requiring
a user ‘to scroll around and switch views many times to find the right
data/functionality.”’ Id. (citation omitted). The Court found that the
disclosure in the Specification regarding the improved speed of a user's
navigation through various views and windows “clearly indicates that the
claims are directed to an improvement in the functioning of computers,
particularly those with small screens.” Id. In contrast, Appellant does not
demonstrate that reducing information overload and optimizing user
engagement with a user interface in order to alter a user’s arousal level and
attentional dynamics in order to ultimately improve task performance is
related to an improvement in the functioning of computers. As described
above, any improvement is to the methodology for managing personal
behavior to achieve personal performance solutions, not to the computing
device itself or its operation and/or function in order to achieve
technological improvements. Appellant has not established adequately that
the additional elements recited in claim 1 reflect an improvement in the
functioning of a computer, or an improvement to other technology or a
technical field.
We have also considered Appellant’s argument that “[w]hen read as a
whole, as a combination of elements as well as elements individually, the
claims do not tie-up or pre-empt all means of ‘establishing and maintaining a
neural and attentional engagement of a subject.’” Appeal Br. 20 (quoting
Final Act. 2). Merely because claims do not preempt all forms of the
abstraction does not make them any less abstract. See OIP Techs., Inc. v.
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Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015) (“[T]hat the
claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract.”). Moreover, characterizing preemption as a driving concern for
patent eligibility is not the same as characterizing preemption as the
dispositive test for patent eligibility. Although “preemption may signal
patent ineligible subject matter, the absence of complete preemption does
not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
In short, the additional elements discussed above: (1) are not applied
with any particular machine; (2) do not improve the functioning of a
computer or other technology; (3) do not effect a transformation of a
particular article to a different state; and (4) are not applied in any
meaningful way beyond generally linking the use of the judicial exception to
a particular technological environment. See MPEP §§ 2106.05(a)–(c), (e)–
(h). The additional elements recited in claim 1 merely include instructions
to implement the certain method of organizing human activity (i.e.,
managing personal behavior) on a computer and use the computer as a tool
to implement the method of organizing human activity. Thus, the additional
elements do not add meaningful limits to the judicial exception recited in
claim 1. Consequently, the claimed invention does not integrate the abstract
idea into a “practical application.” Thus, claim 1 is directed to an abstract
idea, which is a judicial exception to patent eligible subject matter under
35 U.S.C. § 101.
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Step 2B: Does Claim 1 Recite an Inventive Concept?
We next consider whether claim 1 recites any elements, individually
or as an ordered combination, that transform the abstract idea into a patent-
eligible application, e.g., by providing an inventive concept. Alice, 573 U.S.
at 217–18. The Revised Guidance similarly states, under Step 2B,
“examiners should . . . evaluate the additional elements individually and in
combination . . . to determine whether they provide an inventive concept
(i.e., whether the additional elements amount to significantly more than the
exception itself).” 84 Fed. Reg. at 56.
The Examiner determines that “[t]he addition of any sensor to collect
physiological data is merely a sensor performing well-known, routine and
conventional functions of a sensor . . . and [are] interpreted by [the]
Examiner to b[e] insignificant pre solution activity of data gathering.”
Ans. 19; see also Final Act. 7 (“The recited biometric sensors are used for
their conventional basic function of collecting data, and thus not an
improvement to the sensor art, nor an unconventional arrangement of
conventional sensors.”). Appellant’s Specification does not appear to
disclose that the biometric sensors of the physiological measurement system
are more than generic equipment. See Spec. ¶ 36 (“[T]he measurement
apparatus 112 is an electrocardiography (ECG) apparatus . . . . Other types
and quantities of measurement apparatus 112 (e.g., electroencephalography
apparatus, oximeter) can be used in alternative embodiments.”).
The Examiner also determines that “[u]nder the broadest reasonable
interpretation, the computer constructs are interpreted as performing generic
computer functions . . . [which] do not amount to significantly more than the
abstract idea.” Final Act. 5. The Examiner further determines that
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“[v]iewed as a whole, these additional claim elements do not provide
meaningful limitation[s] to transform the abstract idea into a patent eligible
application of the abstract idea such that the claim[] amount[s] to
significantly more than the abstract idea itself.” Id. at 6. We agree with the
Examiner that, as discussed above, the additional elements include generic
recitations of conventional computer components. These additional
elements, when considered individually and as an ordered combination, are
well-understood, routine, conventional activity in the field.
As explained by the Examiner, “Appellant’s own specification . . .
states [that] the computer may be a general purpose computer or device
known in the art.” Ans. 9 (citing Spec. ¶¶ 38, 74); Spec. ¶ 38 (“The
computing device 200 includes a communication module 216, one or more
input devices 220, one or more output devices 228, one or more display
devices 224, one or more processors 232, and memory 236. The modules
and devices described herein can, for example, utilize the processor 232 to
execute computer executable instructions and/or the modules and devices
described herein can, for example, include their own processor to execute
computer executable instructions. It should be understood the computing
device 200 can include, for example, other modules, devices, and/or
processors known in the art and/or varieties of the described modules,
devices, and/or processors.”); Spec. ¶ 74 (“Processors suitable for the
execution of a computer program include, by way of example, both general
and special purpose microprocessors, and any one or more processors of any
kind of digital computer. Generally, a processor receives instructions and
data from a read-only memory or a random access memory or both. The
essential elements of a computer are a processor for executing instructions
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and one or more memory devices for storing instructions and data.
Generally, a computer can be operatively coupled to receive data from
and/or transfer data to one or more mass storage devices for storing data.
Magnetic, magneto-optical disks, or optical disks are examples of such
storage devices.”). The Examiner asserts that “Appellant does not set forth
any explanation and/or evidence to show how the recited computer
functions, as identified by the Examiner, are anything but generic computer
functions of data gathering, analysis, and presenting.” Ans. 17.
Appellant argues that “even if deemed abstract, the claimed invention
provides significantly more than conventional steps in the relevant art of this
invention.” Appeal Br. 7; see also id. at 21 (“the claimed invention recites
‘significantly more’ than the abstract idea of ‘establishing and maintaining a
neural and attentional engagement of a subject’”). In particular, Appellant
argues
that a device, alternatively claimed as a method and system, that
incorporates a biometric sensor, an interactive graphical display,
and iterative feedback and incremental adjustment of visual,
aural, and haptic cues, using the direct physiological
measurement to adjust the cognitive demands and sensory
environment of an interactive user interface to accommodate a
user’s cognitive capability based on the user’s measured arousal
level, in the manner as fully claimed and disclosed, was not
previously known in the industry or previously engaged in by
researchers in the field.
Id. at 23.
By pointing to the adjustment of visual, aural, and haptic cues and
adjustment of the cognitive demands and sensory environment of a user
interface to accommodate a user’s cognitive capability, Appellant is pointing
to portions of the abstract idea itself—a certain method of organizing human
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activity that involves managing personal behavior—rather than only
pointing to additional elements that ensure that the claim is more than the
judicial exception. See Revised Guidance, 84 Fed. Reg. at 56 (instructing
that additional element(s) should be evaluated to determine whether they (a)
add specific limitations that are not well-understood, routine, and
conventional in the field, or (2) simply append well-understood, routine, and
conventional activities previously known to the industry (citing MPEP
§ 2106.05(d)). See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1151 (Fed. Cir. 2016) (citing Mayo, 566 U.S. at 90) (a finding that the
claims are novel and nonobvious in light of an absence of evidence does not
conflict with the Examiner’s conclusion under 35 U.S.C. § 101 because “a
claim for a new abstract idea is still an abstract idea”); see also Trading
Techs. Int’l v. IBG LLC, 921 F.3d at 1093 (“The abstract idea itself cannot
supply the inventive concept, ‘no matter how groundbreaking the
advance.”’) (quoting SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1171
(Fed. Cir. 2018)).
Claim 1 “simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.” See Revised Guidance, 84 Fed. Reg.
at 56. For the reasons discussed above, we find no element or combination
of elements recited in claim 1 that contains any “inventive concept” or adds
anything “significantly more” to transform the abstract concept into a patent-
eligible application. Alice, 573 U.S. at 221.
For these reasons, we find no error in the Examiner’s rejection of
claims 1‒3, 5–7, 10, 11, and 22–39 under 35 U.S.C. § 101.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1‒3, 5–7, 10,
11, 22–39
101 Eligibility 1–3, 5–7, 10,
11, 22–39

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