ABRAHAM, SUBIL M. et al.

Patent Trials and Appeals BoardJul 29, 2020

2019003570 (P.T.A.B. Jul. 29, 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. 13/336,293 12/23/2011 SUBIL M. ABRAHAM CHA920110023US1_8134-0131 3798 73109 7590 07/29/2020 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, FL 33498 EXAMINER ABDI, KAMBIZ ART UNIT PAPER NUMBER 3688 NOTIFICATION DATE DELIVERY MODE 07/29/2020 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SUBIL M. ABRAHAM, TAM M. CAO, JASON A. GONZALEZ, and MATHEWS THOMAS ___________ Appeal 2019-003570 Application 13/336,293 Technology Center 3600 ____________ Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR., and ERIC B. CHEN, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2019-003570 Application 13/336,293 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 33–52. Claims 1–32 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to a kiosk for presenting a product advertisement, such that metrics associated with consumers can be collected responsive to interactions with the product advertisement. Such interactions are analyzed to determine an impression. Normalized content can be generated based on the impression for adjusting the product advertisement. (Abstract.) Claim 33, reproduced below, is illustrative of the claimed subject matter, with bracketing added and with disputed limitations in italics: 33. A computer implemented method, comprising: [i] detecting a plurality of consumers proximate to a kiosk presenting an advertisement; [ii] identifying, from the plurality of consumers, a previously-identified group; [iii] collecting real-time metrics associated with respective interactions of each individual in the group with the advertisement; [iv] processing the real-time metrics to determine a group impression to the advertisement; 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 IBM Corporation. (Appeal Br. 1.) Appeal 2019-003570 Application 13/336,293 3 [v] normalizing, based upon the group impression and to improve the group impression, the advertisement to generate normalized content; and [vi] presenting, to the group, the normalized content. REFERENCES Name Reference Date Haley et al. US 2005/0086110 A1 Apr. 21, 2005 Ramirez Flores et al. US 2013/0047175 A1 Feb. 21, 2013 Krahnstoever et al. US 2013/0054377 A1 Feb. 28, 2013 REJECTIONS Claims 33–52 stand rejected under 35 U.S.C. § 101 as directed to patent-ineligible subject matter. Claims 33–40, 42–49, 51, and 52 stand rejected under 35 U.S.C. § 103 as being unpatentable over Krahnstoever and Flores. Claims 41 and 50 stand rejected under 35 U.S.C. § 103 as being unpatentable over Krahnstoever, Flores, and Haley.2 OPINION § 101 Rejection We are unpersuaded by Appellant’s arguments (Appeal Br. 11–14; see also Reply Br. 2–3) that independent claims 33, 42, and 51 are directed to patent-eligible subject matter under 35 U.S.C. § 101. 2 Appellant does not present any arguments with respect to the rejection of claims 41 and 50 under 35 U.S.C. § 103. (Appeal Br. 21.) Thus, any such arguments are deemed to be waived. Appeal 2019-003570 Application 13/336,293 4 The Examiner determined that “[c]laims 33–52 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.” (Final Act. 3.) In particular, the Examiner determined the following: Claim 33 is directed to the abstract idea of normalizing advertisements based on a group impression of users proximate to an advertisement. The courts have noted that “tailoring content based on information about the user” (Int. Ventures v. Cap One Bank ’382 patent) are examples of judicial exceptions or abstract ideas. The claims disclose a comparable judicial exception – that is normalizing (i.e., tailoring) content (i.e. an advertisement) based on a group impression (i.e., information about users). (Id.; see also Ans. 4.) Similarly, the Examiner determined that “[d]etecting consumers . . . identifying a previously identified group” and “collecting real-time metrics associated with respective interactions of each individual in the group with the advertisement . . . amounts to mere data gathering.” (Ans. 4.) Moreover, the Examiner determined that “[t]he claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea” with a citation to paragraph 17 of Appellant’s Specification. (Id.) We agree with the Examiner’s determinations and ultimate conclusion that the claims are directed to patent- ineligible subject matter. An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include Appeal 2019-003570 Application 13/336,293 5 implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court’s two-step framework, described in Mayo and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that “a claim drawn to subject matter otherwise Appeal 2019-003570 Application 13/336,293 6 statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. The PTO recently published revised guidance on the application of § 101. USPTO’s 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019); see also USPTO, October 2019 Update: Subject Matter Eligibility, 84 Fed. Reg. 55942 (Oct. 17, 2019). Under that guidance, we first look to whether the claim recites: Appeal 2019-003570 Application 13/336,293 7 (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); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. 2019)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that are 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 84 Fed. Reg. 56. Are the claims at issue directed to a patent-ineligible concept? Step One Claim 33 is a method claim, which falls within the “process” category of 35 U.S.C. § 101. Likewise, claim 42 is a system claim, and claim 51 is a product claim, which fall within the “manufacture” category of 35 U.S.C. § 101. Therefore, claims 33, 42, and 51 fall within one of the four statutory categories of patentable subject matter identified by 35 U.S.C. § 101. Although claims 33, 42, and 51 fall within the statutory categories, we must still determine whether the claims are directed to a judicial exception, namely an abstract idea. See Alice, 573 U.S. at 216. Thus, we must determine whether the claims recite a judicial exception and whether the Appeal 2019-003570 Application 13/336,293 8 exception is integrated into a practical application. See 84 Fed. Reg. at 52– 55. If a claim recites a judicial exception without integrating the judicial exception into a practical application, the claim is directed to a judicial exception under the first step of the Alice/Mayo test. See id. Step 2A, Prong One Independent claim 33 recites the following limitations: “[i] detecting a plurality of consumers proximate to a kiosk presenting an advertisement,” “[ii] identifying, from the plurality of consumers, a previously-identified group,” “[iii] collecting real-time metrics associated with respective interactions of each individual in the group with the advertisement,” and “[iv] processing the real-time metrics to determine a group impression to the advertisement.” Such limitations of claim 1 recite a patent-ineligible abstract idea of mental processes, such as collecting and analyzing information. See, e.g., Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (“The advance they purport to make is a process of gathering and analyzing information of a specified content, then displaying the results, and not any particular assertedly inventive technology for performing those functions.”). Claim 33 further recites: “[v] normalizing, based upon the group impression and to improve the group impression, the advertisement to generate normalized content.” Such limitation recites a patent-ineligible abstract idea of organizing human activity (e.g., advertising, marketing or sales activities). See, e.g., Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (“This sort of information Appeal 2019-003570 Application 13/336,293 9 tailoring [content based on the viewer’s location or address would] is ‘a fundamental . . . practice long prevalent in our system . . . .’”). Accordingly, claim 33 recites a judicial exception. Claims 42 and 51 recite limitations similar to those discussed with respect to claim 33. Thus, claims 42 and 51 also recite a judicial exception. Step 2A, Prong Two Because claims 33, 42, and 51 recite a judicial exception, we next determine if the claims recite additional elements that integrate the judicial exception into a practical application. The preamble of claim 33 recites “computer implemented” (emphasis added). Similarly, claim 42 recites “a hardware processor configured to initiate . . . executable operations” (emphasis added), and claim 51 recites “a hardware storage device having stored therein program code” and “the program code, which when executed by a computer hardware system” (emphases added). The recited additional elements, including “computer,” “hardware processor,” “hardware storage device,” and “computer hardware system” are merely tools for performing the recited abstract idea. See Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“[T]he claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea.”). Moreover, claim 33 further recites “[vi] presenting, to the group, the normalized content.” Claims 42 and 51 recite similar limitations. Such limitation merely add insignificant extra-solution activity to the judicial Appeal 2019-003570 Application 13/336,293 10 exception. See Flook, 437 U.S. at 590 (“The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance”). Appellant argues “the claimed invention is directed to a specific technological solution to the problem of normalizing (i.e., modifying) advertisements on a kiosk based upon real-time information so as to provide a real-time impact on consumers who are viewing the advertisements” and “the claimed invention improves upon this by using both previously- identified groups and by using group impressions.” (Appeal Br. 13.) However, Appellant has not adequately explained why the claim “purport[s] to improve the functioning of the computer itself” or “any other technology or technical field.” Alice, 573 U.S. at 225. In particular, Appellant has not explained why “normalizing (i.e., modifying) advertisements on a kiosk based upon real-time information,” which is the mere advertising or marketing activity, improves the function of a computer or other technology. Accordingly, claims 33, 42, and 51 do not recite additional elements that integrate the judicial exception into a practical application. Is there something else in the claims that ensures that they are directed to significantly more than a patent ineligible concept? Step 2B Because claims 33, 42, and 51 are directed to a judicial exception, we next determine, according to Alice, whether these claims recite an element, or combination of elements, that is enough to ensure that the claim is directed to significantly more than a judicial exception. Appeal 2019-003570 Application 13/336,293 11 The preamble of claim 33 recites “computer implemented.” Similarly, claim 42 recites “hardware processor” and claim 51 recites “hardware storage device” and “computer hardware system.” With respect to the claimed additional elements, Appellant’s Specification discloses the following: As will be appreciated by one skilled in the art, aspects of the present invention may be embodied as a system, method or computer program product. Accordingly, aspects of the present invention may take the form of an entirely hardware embodiment, an entirely software embodiment (including firmware, resident software, micro-code, etc.) or an embodiment combining software and hardware aspects that may all generally be referred to herein as a “circuit,” “module” or “system.” Furthermore, aspects of the present invention may take the form of a computer program product embodied in one or more computer readable medium(s) having computer readable program code embodied thereon. (Spec. ¶ 12 (emphases added).) These computer program instructions may be provided to a processor of a general purpose computer, special purpose computer, or other programmable data processing apparatus to produce a machine, such that the instructions, which execute via the processor of the computer or other programmable data processing apparatus, create means for implementing the functions/acts specified in the flowchart and/or block diagram block or blocks. (Id. ¶ 17.) The generalized functional terms by which the additional elements are described reasonably indicate that Appellant’s Specification discloses: (i) a conventional “computer” (e.g., general purpose computer (id.)); (ii) a conventional “hardware processor” (e.g., a processor of a general purpose computer (id.)); (iii) a conventional “hardware storage device” (e.g., Appeal 2019-003570 Application 13/336,293 12 computer readable medium (id. ¶ 12)); and (iv) a conventional “computer hardware system” (e.g., embodiment combining software and hardware aspects (id.)). Moreover, Appellant’s Figure 2 illustrates a schematic diagram of “method 200 for utilizing real-time metrics to normalize an advertisement based on consumer reaction” (Spec. ¶ 34), such that method 200 is provided as “computer program instructions . . . provided to a processor of a general purpose computer” (id. ¶ 17) and stored on a computer readable storage medium (id. ¶ 13). Accordingly, Figure 2 and Appellant’s Specification disclose that the steps of method 200 are computer program instructions stored on the computer readable storage medium and executed by the processor. Accordingly, such instructions function cooperatively with the computer readable storage medium and processor as an ordered combination. Thus, claims 33, 42, and 51 do no more than require generic, purely conventional computer elements, as an ordered combination, performing generic computer functions, rather than improve computer capabilities. First, Appellant argues that “the Examiner does not identify, in the rejection, the additional elements aside referring to them as a generic computer and generic computer functions” and “only presents the conclusory assertion that ‘[t]here is no indication that the combination of elements improves the functioning of a computer or improves any other technology.’” (Appeal Br. 11.) Contrary to Appellant’s arguments, the Examiner cited to paragraph 17 of Appellant’s Specification, which discloses a general purpose computer with a processor. (Ans. 4.) Appeal 2019-003570 Application 13/336,293 13 Second, Appellant argues that “the Examiner in the present application did not evaluate the ordered combination of steps of Appellants’ claimed invention” and “the Examiner merely alleged that a computer- implemented invention is (naturally) performed by a computer, and the Examiner generically characterized the claimed operations ‘receiving data, comparing data, processing data, outputting data, displaying data’.” (Appeal Br. 12.) However, Appellant has not cited any legal authority for the perceived heightened burden for the Examiner to “evaluate the ordered combination of steps,” rather than the ordered combination of additional elements. In Alice, the Supreme Court articulated that for step two analysis, “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.” Alice, 573 U.S. at 217. Last, Appellant argues that “the claimed invention does not attempt to preempt every way of performing ‘normalizing advertisements’ using individual impressions,” but “recites a specific set of operations that use novel information obtained from a kiosk to normalize (e.g., modify) content that is being presented on the kiosk.” (Appeal Br. 14; see also Reply Br. 3.) However, 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). Where claims are deemed to recite only patent-ineligible subject matter under the two-step Alice analysis, as they are here, “preemption concerns are fully addressed and made moot.” Id. Appeal 2019-003570 Application 13/336,293 14 Thus, we agree with the Examiner that claims 33, 42, and 51 are directed towards patent-ineligible subject matter. Accordingly, we sustain the rejection of independent claims 33, 42, and 51 under 35 U.S.C. § 101. Claims 34–41, 43–50, and 52 depend from claims 33, 42, and 51, and Appellant has not presented any additional substantive arguments with respect to these claims. Therefore, we sustain the rejection of claims 34–41, 43–50, and 52 under 35 U.S.C. § 101, for the same reasons discussed with respect to independent claims 34–41, 43–50, and 52. § 103 Rejection—Krahnstoever and Flores We are unpersuaded by Appellant’s arguments (Appeal Br. 15–16; see also Reply Br. 5) that the combination of Krahnstoever and Flores would not have rendered obvious independent claim 33, which includes the disputed limitation “processing the real-time metrics to determine a group impression to the advertisement.” The Examiner found that data processing system 26 of Krahnstoever, which observes real-time interactions from groups of people with advertising station 12, corresponds to the limitation “processing the real-time metrics to determine a group impression to the advertisement.” (Ans. 10; see also Final Act. 6–7.) We agree with the Examiner’s findings. Krahnstoever relates to “use of tracking data to infer user interest and enhance user experience in interactive advertising contexts.” (¶ 2.) Figure 1 of Krahnstoever illustrates advertising station 12, which includes display 14, speakers 16, advertising content 18 (¶ 19), controller 20, and Pan-Tilt-Zoom (PTZ) cameras 22 (¶ 20). Krahnstoever explains that “data processing Appeal 2019-003570 Application 13/336,293 15 system 26 may be included in the advertising station 12 to receive and process image data (e.g., from the cameras 22).” (¶ 22.) Moreover, Krahnstoever explains “the present embodiments allow the system to directly infer if a group of people are together interacting with the advertising station (e.g., Is someone currently discussing with peers (revealing mutual gazes), asking them to participate, or inquiring parent’s support of purchase?).” (¶ 61.) Because Krahnstoever explains that the system can infer if a group of people are together interacting with advertising station 12, Krahnstoever teaches the limitation “processing the real-time metrics to determine a group impression to the advertisement.” Appellant argues the following: Appellants have not claimed “multiple impressions from a group of people.” Rather Appellants have claimed a group impressions – (i.e., an impression of the group). Referring to paragraph [0036], Appellants disclose “a group impression can be optionally generated from two or more consumer impressions.” Thus, the group impression is different than just “two or more consumer impressions.” Instead, it is generated from the “two or more consumer impressions.” Consequently, a “group impression” is not the same as “two or more consumer impressions.” (Appeal Br. 16.) Similarly, Appellant argues “a group impression is an aggregation of a plurality of impressions” which “is different than merely a collection, which does not require that the member of the collection be combined.” (Reply Br. 5.) However, even if Appellant is correct that “group impression [as claimed] is an aggregation of a plurality of impressions” (id.), Krahnstoever provides one embodiment in which “the system . . . directly infer[s] if a group of people are together interacting with the advertising station [12].” (¶ 61.) In other words, even if we adopt Appeal 2019-003570 Application 13/336,293 16 Appellant’s narrower construction, the claim limitation “group impression” is broad enough to encompass advertising station 12, which can “infer if a group of people are together interacting with the advertising station.” Thus, we agree with the Examiner that the combination of Krahnstoever and Flores would have rendered obvious independent claim 33, which includes the limitation “processing the real-time metrics to determine a group impression to the advertisement.” We are unpersuaded by Appellant’s arguments (Appeal Br. 17) that the combination of Krahnstoever and Flores would not have rendered obvious independent claim 33, which includes the limitation “normalizing, based upon the group impression and to improve the group impression, the advertisement to generate normalized content.” The Examiner found that data processing system 26 of Krahnstoever, which observes real-time interactions from groups of people with advertising station 12, corresponds to the limitation “normalizing, based upon the group impression and to improve the group impression, the advertisement to generate normalized content.” (Final Act. 7; see also Ans. 11–12.) We agree with the Examiner’s findings. As discussed previously, Krahnstoever provides one embodiment in which “the system . . . directly infer[s] if a group of people are together interacting with the advertising station [12].” (¶ 61.) Krahnstoever further explains that “advertising station 12 may update the advertising content to encourage new users to view or begin interacting with the advertising station if users are showing minimal interest in the output content” and that “[s]uch updating may include changing characteristics of the displayed content . . . , starting a new playback portion of the displayed content. . . , or selecting Appeal 2019-003570 Application 13/336,293 17 different content altogether.” (¶ 30.) Because Krahnstoever explains that: (i) the system can infer if a group of people are together interacting with advertising station 12; and (ii) advertising station 12 updates advertising content to encourage view or interacting if users are showing interest, Krahnstoever teaches the limitation “normalizing, based upon the group impression and to improve the group impression, the advertisement to generate normalized content.” Appellant argues the following: Paragraph [0030] makes no mention of updating based upon a “group impression” or that the “group impression” is being used to normalize the advertisement. Similarly paragraph [0061] is also silent as to a “group impression.” Accordingly, Krahnstoever fails to teach the limitations for which Krahnstoever is being relied upon to teach. (Appeal Br. 17.) Other than a conclusory statement that paragraphs 30 and 61 do not teach the limitations of independent claim 33, Appellant has not presented any persuasive arguments or evidence as to why the Examiner’s findings with respect to Krahnstoever are in error. Thus, we agree with the Examiner that the combination of Krahnstoever and Flores would have rendered obvious independent claim 33, which includes the limitation “normalizing, based upon the group impression and to improve the group impression, the advertisement to generate normalized content.” We are unpersuaded by Appellant’s arguments (Appeal Br. 21; see also Reply Br. 8–9) that the combination of Krahnstoever and Flores would not have rendered obvious independent claim 33, which includes the disputed limitation “identifying, from the plurality of consumers, a previously-identified group.” Appeal 2019-003570 Application 13/336,293 18 The Examiner found that camera 114 of Flores, which is attached to display 112 for recognition of group “G:18” at 6:30 pm and 10:00 pm, corresponds to the limitation “identifying, from the plurality of consumers, a previously-identified group.” (Ans. 13.) We agree with the Examiner’s findings. Flores “relates to technology for recognizing groups and profiling groups.” (¶ 1.) Figure 1 of Flores illustrates environment 101 that includes audience 105 and system 110, such that system 110 includes display 112 and camera 114 (¶ 40) for monitoring audience 105 (¶ 42). Figure 7 of Flores illustrates the following example: At time 6:30 pm, the system identifies P1 and P8 as group G:18. At time 7:00 pm, the system identifies P1, P8 and P3 as group G:183. As P3 is of a certain age, the system automatically restricts content. . . . At time 10:00 pm, the system recognizes that P3 has left the sofa and optionally that a spatial distance between P1 and P8 has diminished. In response, the system releases the age restriction that was imposed at 7:00 pm. (¶ 55.) Thus, in order for the system of Flores to “release[] the age restriction that was imposed at 7:00 pm,” such system must first recall that group G:18 was identified as 6:30 pm and has been identified again at 10:00 pm. Because the system of Flores: (i) identifies group P1 and P8 as group G:18 at 6:00 pm; (ii) identifies P1, P8, and P3 as group G:183 at 7:00 pm and imposes an age restriction; and (iii) recognizes the P3 has left, thus, removing the age restriction at 10:00 pm, Flores teaches the limitation “identifying, from the plurality of consumers, a previously-identified group.” Appellant argues the following: [T]he system does not subsequently recognize Group “G:18” at 10PM. Instead, the system recognizes that P3 has left the sofa Appeal 2019-003570 Application 13/336,293 19 and PI and P8 remain. While P1 and P8 were identified as group G:18 at 6:30 PM, nowhere does Flores teach that at 10PM, the system recognizes P1 and P8 as the group that was previously identified at 6:30 PM. The fact that P1 and P8 (at 10 PM) is the same group as the one that system identified at 6:30 PM does not establish that the system actually performs this identification. (Appeal Br. 21; see also Reply Br. 8–9.) However, as discussed previously, in order for the system to “release[] the age restriction that was imposed at 7:00 pm,” such system must first recall that group G:18 identified as 6:30 pm and has returned at 10:00 pm. Thus, we agree with the Examiner that the combination of Krahnstoever and Flores would have rendered obvious independent claim 33, which includes the limitation “identifying, from the plurality of consumers, a previously-identified group.” Accordingly, we sustain the rejection of independent claim 33 under 35 U.S.C. § 103. Claims 34–40 depend from claim 33, and Appellant has not presented any additional substantive arguments with respect to these claims. Therefore, we sustain the rejection of claims 34–40 under 35 U.S.C. § 103, for the same reasons discussed with respect to independent claim 33. Independent claims 42 and 51 recite limitations similar to those discussed with respect to independent claim 1, and Appellant has not presented any additional substantive arguments with respect to these claims. We sustain the rejection of claims 42 and 51, as well as dependent claims 43–49 and 52, for the same reasons discussed with respect to claim 33. Appeal 2019-003570 Application 13/336,293 20 CONCLUSION The Examiner’s decision rejecting claims 33–52 under 35 U.S.C. § 101 is affirmed.3 The Examiner’s decision rejecting claims 33–52 under 35 U.S.C. § 103 is affirmed. DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 33–52 101 Eligibility 33–52 33–40, 42– 49, 51, 52 103 Krahnstoever, Flores 33–40, 42– 49, 51, 52 41, 50 103 Krahnstoever, Flores, Haley 41, 50 Overall Outcome 33–52 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)(1)(iv). AFFIRMED 3 In the event of further prosecution, the Examiner should consider if independent claim 51, which recites “hardware storage device” is broad enough to encompass a transitory signal in view of paragraph 14 of Appellant’s Specification. See In re Nuijten, 500 F.3d 1346, 1356–57 (Fed. Cir. 2007) (“A transitory, propagating signal like Nuijten’s is not a ‘process, machine, manufacture, or composition of matter.’ . . . [T]hus, such a signal cannot be patentable subject matter”); see also Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential).