Arthur Weinberger et al.

Patent Trials and Appeals Board

Aug 20, 2019

14100689 - (D) (P.T.A.B. Aug. 20, 2019)

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.
14/100,689 12/09/2013 Arthur Weinberger 315-LAN-07-2009 3988
86548 7590 08/20/2019
Garlick & Markison (IH)
100 Congress Avenue, Suite 2000
Austin, TX 78701
EXAMINER
PADOT, TIMOTHY
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
08/20/2019 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):
MMurdock@TEXASPATENTS.COM
bpierotti@texaspatents.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ARTHUR WEINBERGER and MARWAN SHABAN
___________

Appeal 2018–002975
Application 14/100,689
Technology Center 3600
____________

Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR. and
JASON V. MORGAN, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants are appealing the Examiner’s Final rejection of claims 1–
20 under 35 U.S.C. § 134(a).1 Appeal Brief 5. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants identify iHeartMedia Management Services, Inc., as the real
party in interest. Appeal Brief 1.
Appeal 2018-002975
Application 14/100,689

2

Introduction
The invention is directed to “audience statistics, and more specifically
to methods and systems for computing statistics relating to station audiences,
particularly terrestrial radio stations.” Specification ¶ 2.
Representative Claim
1. A computer implemented method for use in a server device
implementing a marketing analysis data integration system, the method
comprising:
obtaining by the server device, sets of input data including input
CUME2 values associated with a plurality of individual radio stations
from a plurality of different ratings data-vendor devices connected via
a communications network, the input CUME values from a first
ratings-data-vendor device being associated with a first limited
set of input dayparts, and the input CUME values from a second
ratings-data-vendor device being associated with a second limited set
of input dayparts different from the first limited set of input dayparts;
obtaining by the server device a list of media stations and schedule
information associated with the media stations, the scheduling
information including arbitrary client-specified dayparts, by executing
program instructions in a computer system;
consolidating by the server device the input CUME values obtained from the
first and second ratings-data-vendor devices;

2 “Cume is the total number of different (unique) persons that listen to a
radio station within a given daypart. A daypart is a set of times throughout a
given week. For example, a daypart could be every weekday (Monday
through Friday) from 6:00 am until 10:00 am.” Specification 2.
Appeal 2018-002975
Application 14/100,689

3

translating the input CUME values for the individual radio stations
from the first and second limited set of input dayparts to determine an
output CUME value associated with the arbitrary client-specified
dayparts different from the input dayparts, by executing program
instructions in a computer system; and
presenting a single interface to a user, the single interface allowing a user to
switch between the sets of input data obtained from different ratings-
vendor devices.
Rejection on Appeal3
Claims 1–20 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to patent ineligible subject matter. Final
Action 5–8.

ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed August 23, 2017), the Reply Brief (filed
January 25, 2018), the Final Action (mailed April 21, 2017) and the Answer
(mailed November 27, 2017,), for the respective details.

35 U.S.C. § 101 rejection
The Examiner determines the claims are patent ineligible under
35 U.S.C. § 101 because the claims are directed to an abstract idea and do
not include additional elements that are sufficient to amount to significantly

3 The non-statutory double patenting rejection, as well as, the 35 U.S.C.
§ 102(b) and 35 U.S.C. § 103(a) rejections were withdrawn by the
Examiner. See Final Action 2.
Appeal 2018-002975
Application 14/100,689

4

more than the abstract idea. Final Action 5–8; see also Alice Corp. v. CLS
Bank Int’l, 573 U.S. 208, 217 (2014) (Describing the two-step framework
“for distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.”).
After the mailing of the Answer and the filing of the Briefs in this
case, the USPTO published revised guidance on the application of 35 U.S.C.
§ 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Memorandum”). Under the
Memorandum, the Office first looks to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental
economic practice, or mental processes); and

(2) additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c),
(e)–(h) (9th ed. 2018)).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, does the Office 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 generally Memorandum.
We are not persuaded the Examiner’s rejection is in error. Unless
otherwise indicated, we adopt the Examiner’s findings and conclusions as
Appeal 2018-002975
Application 14/100,689

5

our own and we add the following primarily for emphasis and clarification
with respect to the Memorandum.
Alice/Mayo—Step 1 (Abstract Idea)
Step 2A–Prongs 1 and 2 identified in the Revised Guidance

Step 2A, Prong One
Appellants argue “The claims at issue in the present disclosure are
specifically drawn to translating CUME values for the first and second
limited sets of input dayparts to determine an output CUME value for a
daypart different from the first and second limited dayparts.” Appeal Brief
8. We agree with the Examiner’s determination that the claims recite an
abstract idea. See Final Action 5–8.
Appellants further argue:
Looking to the specification of the present disclosure,
CUME values represent ratings data for researching radio
stations, indicating values of the number of unique listeners to a
specific radio station during a given daypart, as recorded by prior
art systems such as the Arbitron, Inc. Tapscan ratings software
suite. Applicant’s Specification, at ¶¶ [0004–06]. In other words,
CUME values are the result of observed and recorded listener
behavior patterns. The CUME values from the first and second
ratings-data-vendor devices in each of the independent claims at
issue represent listener behavior patterns recorded during pre-
determined time periods called dayparts. Id at ¶ [0007].

Appeal Brief 8–9.
Claim 1 recites a “computer implemented method for use in a server
device implementing a marketing analysis data integration system” wherein:

Appeal 2018-002975
Application 14/100,689

6

• obtaining by the server device, sets of input data including input
CUME values associated with a plurality of individual radio stations
from a plurality of different ratings data-vendor devices connected via
a communications network, the input CUME values from a first
ratings-data-vendor device being associated with a first limited set of
input dayparts, and the input CUME values from a second ratings-
data-vendor device being associated with a second limited set of input
dayparts different from the first limited set of input dayparts

• obtaining by the server device a list of media stations and schedule
information associated with the media stations, the scheduling
information including arbitrary client-specified dayparts, by executing
program instructions in a computer system

• consolidating by the server device the input CUME values obtained
from the first and second ratings-data-vendor devices

• translating the input CUME values for the individual radio stations
from the first and second limited set of input dayparts to determine an
output CUME value associated with the arbitrary client-specified
dayparts different from the input dayparts, by executing program
instructions in a computer system; and

• presenting a single interface to a user, the single interface allowing a
user to switch between the sets of input data obtained from different
ratings-vendor devices.
Appeal 2018-002975
Application 14/100,689

7

These steps comprise fundamental economic principles or practices
and commercial interactions; thus, the claim recites the abstract idea of
targeted marketing or advertising, which falls under the category of judicial
exception identified as “certain methods of organizing human activity.” See
Memorandum, Section I, Groupings of Abstract Ideas (“[I]ncluding
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations.”); see also
Specification ¶¶ 2, 9, 25. Our reviewing court has found claims to be
directed to abstract ideas when they recited similar subject matter. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction); see also Inventor
Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir.
2017) (holding that sequence of data retrieval, analysis, modification,
generation, display, and transmission was abstract); see also Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding
that “collecting information, analyzing it, and displaying certain results of
the collection and analysis” are “a familiar class of claims ‘directed to’ a
patent-ineligible concept”). Therefore, we conclude the claims recite an
abstract idea pursuant to Step 2A, Prong One of the guidance. See
Memorandum, Section III(A)(1) (Prong One: Evaluate Whether the Claim
Recites a Judicial Exception).

Step 2A, Prong Two
Under Prong Two of the Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception
Appeal 2018-002975
Application 14/100,689

8

into a practical application of the exception” it is noted that 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.” Memorandum, Section
III(A)(2).
Appellants contend:
The claims at issue in this case pass the first step of the Alice
framework, because they are directed to a patent eligible specific
implementation of a software-based improvement to an existing
technological process, rather than a task for which a computer is
used in its ordinary capacity. See Enfish[, LLC v. Microsoft
Corp., 822 F.3d 1327, 1336, 1339 (Fed. Cir. 2016)]; see also
Alice, [573 U.S. at 222–25].

Appeal Brief 6.
Appellants further contend:
By claiming translating the input CUME values from the first
and second limited set of input dayparts (e.g. Monday-Sunday 6-
10 a.m.) to determine an output CUME value associated the
arbitrary client-specified dayparts different from the input
dayparts (e.g. Monday-Sunday 6-9 a.m.), each of the
independent claims at issue are directed to a specific
implementation of a software-based improvement to an existing
technological process-the lack of granularity in recorded listener
behavior patterns. Response to Final Office Action, dated
September 23, 2016, pp. 3, 6, and 9; see also Enfish, 822 F.3d at
1339 (Finding specific software-based improvement of self-
referential table for computer database to the existing
technological process of storing and retrieving data in computer
memory not directed to abstract idea).

Appeal Brief 9–10.
Appeal 2018-002975
Application 14/100,689

9

First, we find Appellants’ claims are distinguished from those claims
that our reviewing court has found to be patent eligible by virtue of reciting
technological improvements to a computer system. See, e.g., DDR
Holdings, 773 F.3d at 1249, 1257 (Holding that claims reciting computer
processor for serving “composite web page” were patent eligible because
“the claimed solution is necessarily rooted in computer technology in order
to overcome a problem specifically arising in the realm of computer
networks.”); see also Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253,
1259 (Fed. Cir. 2017) (holding that claims directed to “an improved
computer memory system” having many benefits were patent eligible).
Second, we do not find Appellants’ arguments persuasive because the
claims utilize components that are currently employed in the industry
without any improvement to the functionality of the components (server
device, rating data-vendor devices and network). See Specification ¶¶ 19–
25, 29; see also Enfish, LLC v. Microsoft Corp., 822 at 1335–36 (“[W]e find
it relevant to ask whether the claims are directed to an improvement to
computer functionality versus being directed to an abstract idea . . . . the
focus of the claims is on the specific asserted improvement in computer
capabilities (i.e., the self-referential table for a computer database) or,
instead, on a process that qualifies as an ‘abstract idea’ for which computers
are invoked merely as a tool.”). The claims do not recite an additional
element or elements that reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field.; see
also Final Action 8 (“There is no indication that the combination of elements
improves the functioning of a computer or improves any other technology.
Their collective functions merely provide conventional computer
Appeal 2018-002975
Application 14/100,689

10

implementation.”); see also Alice, 573 U.S. at 222 (“In holding that the
process was patent ineligible, we rejected the argument that ‘implement[ing]
a principle in some specific fashion’ will ‘automatically fal[l] within the
patentable subject matter of [section] 101.’”) (quoting Parker v. Flook, 437
U.S. 584, 593 (1978)).
Appellants contend, “Like the claims in McRO[4], the appellant's
claims do not recited a computerized implementation of a known process.
Instead, the appellant’s claims recite a process that is different from any
previously known process. And that process is used to create a technological
tool – an improved marketing analysis data integration system.” Reply Brief
7.
In McRO, the Federal Circuit concluded that the claim, when
considered as a whole, was directed to a “technological improvement over
the existing, manual 3-D animation techniques” through the “use [of] limited
rules . . . specifically designed to achieve an improved technological result in
conventional industry practice.” McRO, 837 F.3d at 1316.
Specifically, the Federal Circuit found that the claimed rules allowed
computers to produce accurate and realistic lip synchronization and facial
expressions in animated characters that previously could only be produced
by human animators; and the rules were limiting because they defined
morph weight sets as a function of phoneme sub-sequences. Id. at 1313.
We find no evidence of record here that the present situation is like the
one in McRO where computers had been unable to make certain subjective
determinations, e.g., regarding morph weight and phoneme timings, which

4 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1303 (Fed.
Cir. 2016).
Appeal 2018-002975
Application 14/100,689

11

could only be made prior to the claimed invention by human animators. The
Background section of one of the patents at issue in McRO, Rosenfeld (US
Patent 6,307,576 B1; issued Oct. 23, 2001), includes a description of the
admitted prior art method and the shortcomings associated with that prior
method. See McRO, 837 F.3d at 1303–06. There is no comparable
discussion in Appellants’ Specification or elsewhere of record. Further, as
the Federal Circuit has explained, a “claim for a new abstract idea is still an
abstract idea.” Synopsis, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1151 (Fed. Cir. 2016). Even assuming the technique claimed was
“[g]roundbreaking, innovative, or even brilliant,” that would not be enough
for the claimed abstract idea to be patent eligible. See Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013).
Subsequently, we detect no additional element (or combination of
elements) recited in Appellants’ representative claim 1 that integrates the
judicial exception into a practical application. See Memorandum, Section
III(A)(2). For example, Appellants’ claimed additional elements (e.g.,
server device, rating data-vendor devices and network) do not: (1) improve
the functioning of a computer or other technology; (2) are not applied with
any particular machine (except for a generic computer); (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, such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP §§ 2106.05(a)–(c), (e)–(h).
Accordingly, we determine the claims do not integrate the judicial
exception into a practical application. See Memorandum, Section III(A)(2)
Appeal 2018-002975
Application 14/100,689

12

(Prong Two: If the Claim Recites a Judicial Exception, Evaluate Whether the
Judicial Exception Is Integrated Into a Practical Application).

Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
Step 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 217–18 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
Appellant contends, “Thus, even if this Court finds at step one of the Alice
framework the claims at issue are directed to a patent ineligible concept, the
claims may still recite patentable subject matter if each of the limitations of
the claims, either individually, or as an ordered combination ensure that the
patent in practice amounts to significantly more than a patent upon the
ineligible concept itself.” Appeal Brief 11. As we have addressed above, the
claims do not recite an improvement in the functionality of a computer.
We find that claim 1 does not include a specific limitation or a
combination of elements that amounts to significantly more than the judicial
exception itself. See Memorandum, Section III(B)(Step 2B: If the Claim Is
Directed to a Judicial Exception, Evaluate Whether the Claim Provides an
Inventive Concept); see also Aatrix Software, Inc. v. Green Shades Software,
Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018) (“the ‘inventive concept’ cannot
be the abstract idea itself”). Other than the abstract idea itself, the remaining
claim elements only recite generic computer components that are well-
understood, routine, and conventional. See Final Action 7 (“These elements
do not amount to significantly more than the judicial exception because the
Appeal 2018-002975
Application 14/100,689

13

additional elements are merely directed to instructions to implement the idea
on a generic computer, though without yielding any improvement to another
technology or to the computer itself.”); see also Alice, 573 U.S. at 226.
Accordingly, we find the claims do not include a specific limitation or a
combination of elements that amounts to significantly more than the judicial
exception itself.
Accordingly, we conclude claims 1–20 are directed to a fundamental
economic practice, which is one of certain methods of organizing human
activity identified in the Memorandum and thus an abstract idea, and the
claims do not recite limitations that amount to significantly more than the
abstract idea itself. We sustain the Examiner’s 35 U.S.C. § 101 rejection of
claims 1–20.
DECISION
The Examiner’s patent ineligible subject matter rejection of claims 1–
20 is affirmed.
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). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED