Ex Parte GUPTE et alDownload PDFPatent Trial and Appeal BoardSep 17, 201813276739 (P.T.A.B. Sep. 17, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/276,739 10/19/2011 74739 7590 09/19/2018 Potomac Law Group, PLLC (Oracle International) 8229 Boone Boulevard Suite 430 Vienna, VA 22182 Manish GUPTE 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2011-0 l 49USO 1 3474 EXAMINER ROTARU, OCTAVIAN ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 09/19/2018 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): patents@potomaclaw.com bgoldsmith@potomaclaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MANISH GUPTE and PETER GAIDAREV Appeal2016-006784 1 Application 13/276,7392 Technology Center 3600 Before PHILIP J. HOFFMAN, TARA L. HUTCHINGS, and MATTHEW S. MEYERS, Administrative Patent Judges MEYERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final rejection of claims 1-8, 14--21, and 27-33. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our decision references Appellants' Appeal Brief ("Appeal Br.," filed October 27, 2015), Appellants' Reply Brief ("Reply Br.," filed June 27, 2016), the Examiner's Answer ("Ans.," mailed April 25, 2016), and the Final Office Action ("Final Act.," mailed May 28, 2015). 2 Appellants identify Oracle International Corporation as the real party in interest (Appeal Br. 2). Appeal 2016-006784 Application 13/276,739 CLAIMED INVENTION Appellants' claims are "directed generally to a computer system for determining product pricing, and in particular to a computer system that determines optimized product pricing markdowns" (Spec. ,r 1 ). Claims 1, 14, and 2 8 are the independent claims on appeal. Claim 1, reproduced below with added bracketed notations, is illustrative of the subject matter on appeal: 1. A non-transitory computer readable medium having instructions stored thereon that, when executed by a processor, cause the processor to determine a markdown pricing sequence for a product, the determination comprising: [a] receive a sequence of future prices and corresponding time periods, wherein each price of the future prices is a same price or a reduced price as compared to another price from a previous time period, wherein the future prices are based at least on business rules; [b] for each time period in the sequence, determine a reference price for the product at its corresponding time period, wherein the reference price varies based on its corresponding time period; [ c] for the each price in the sequence, determine an increase in revenue using a demand model, wherein the demand model comprises a price elasticity variable that uses the reference price at its corresponding time period instead of a full price; [ d] determine an estimate of revenue for the sequence of future prices; and [ e] determine when the sequence of future prices is an optimized sequence based on the estimate of revenue by comparing, the sequence of prices, to additional estimates of the revenue for additional sequences of the future prices. REJECTIONS Claims 1-8, 14--21, and 27-33 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. 2 Appeal 2016-006784 Application 13/276,739 Claims 1, 2, 4, 8, 14, 15, 17, 21, 28, 29, 31, and 33 are rejected under 35 U.S.C. § I03(a) as unpatentable over Sanli (US 8,000,996 Bl, iss. Aug. 16, 2011) and Ouimet (US 2004/00494700 Al, pub. Mar. 11, 2004). Claims 3, 7, 16, 20, 27, 30, and 32 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Sanli, Ouimet, and Kalyan T. Talluri, et al. The Theory and Practice of Revenue Management, Springer, 17 6 (2005) (hereinafter, "Talluri"). Claims 5, 6, 18, and 19 are rejected under 35 U.S.C. § I03(a) as unpatentable over Sanli, Ouimet, and Woo (US 2003/0229502 Al, pub. Dec. 11, 2003). ANALYSIS Non-statutory subject matter Independent claims 1, 14, and 28, and dependent claims 2---8, 15-21, 27, and 29-33 Appellants argue claims 1-8, 14--21, and 27-33 as a group (see Appeal Br. 3-8; Reply Br. 2-3). We select claim 1 as representative. Claims 2-8, 14--21, and 2 7-3 3 fall with independent claim 1. See 3 7 C.F .R. § 4I.37(c)(l)(iv). Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014 ), identifies a two-step framework for determining whether claimed subject matter is judicially-excepted from patent eligibility under § 101. According to Alice step one, "[ w ]e must first determine whether the claims at issue are directed to a patent-ineligible concept," such as an abstract idea. Alice, 134 S. Ct. at 2355. The "directed to" inquiry []cannot simply ask whether the claims involve a patent-ineligible concept, because essentially every routinely patent-eligible claim involving physical products and actions involves a law of nature and/or natural phenomenon- 3 Appeal 2016-006784 Application 13/276,739 after all, they take place in the physical world. See Mayo, 132 S. Ct. at 1293 ("For all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.") Rather, the "directed to" inquiry applies a stage- one filter to claims, considered in light of the specification, based on whether "their character as a whole is directed to excluded subject matter." Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015); see Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1375, 2016 WL 1393573, at *5 (Fed. Cir. 2016) (inquiring into "the focus of the claimed advance over the prior art"). Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). "The 'abstract idea' step of the inquiry calls upon us to look at the 'focus of the claimed advance over the prior art' to determine if the claim's 'character as a whole' is directed to excluded subject matter." Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Enfish, LLC, 822 F.3d at 1335. In rejecting the claims under 35 U.S.C. § 101, the Examiner determined that the claims, considered as a whole, are directed to "an abstract idea of markdown pricing, a fundamental economic practice[,] which is old, known and customary to most retailers" (Final Act. 13; see also Ans. 5-6) without additional elements that transform it into a patent- eligible application of that idea (see Final Act. 3-7, 13-14; Ans. 4--12). The Examiner also determined that the claimed steps are "merely representative of a mental process," (Ans. 5 (emphasis omitted); see also Final Act. 6). According to the Examiner, the claims "fall[] well-within the broadly defined 'fundamental economic practice' as describing 'concepts relating to the economy and commerce' 'in the sense of being foundational or basic, and not in the sense of necessarily being old or well-known"' (Ans. 5---6 4 Appeal 2016-006784 Application 13/276,739 ( emphasis omitted) ( citing Alice and para. III, section A "July 2015 Update: Subject Matter Eligibility" to 2014 Interim Guidance on Subject Matter Eligibility (2014 IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014)). Appellants argue that the Examiner's determination that the claims are directed to "markdown pricing" ignores and over-generalizes the claims (Appeal Br. 3). Instead, Appellants take the position that "the claims are more specifically directed to the abstract idea of determining a markdown pricing sequence for a product using a demand model that incorporates a price elasticity variable that uses a reference price" (Appeal Br. 3--4 ( citing claim 1) ), and in the instant case, "there are no similarities" to "abstract ideas identified by the courts" (Appeal Br. 4). We are not persuaded of Examiner error by Appellants' argument that independent claim 1, considered as a whole, is not broadly directed to "markdown pricing" (see Final Act. 13). In making this determination, we note that the Specification discloses the present invention "is directed generally to a computer system for determining product pricing, and in particular to a computer system that determines optimized product pricing markdowns" (Spec. ,II). According to the Specification, [ o ]ne embodiment is a system that determines a markdown pricing sequence for a product. The system receives a sequence of future prices as a function of time for the product based at least on business rules. For each price in the sequence, the system determines a reference price for the product, and then determines an increase in revenue using a demand model. (Spec. ,r 4). And, taking independent claim 1 as representative, the claimed subject matter is generally directed to "receiv[ing] a sequence of future prices and corresponding time periods," "determin[ing] a reference price for the product at its corresponding time period," "determin[ing] an increase in 5 Appeal 2016-006784 Application 13/276,739 revenue using a demand model, wherein ... a price elasticity variable ... uses the reference price ... instead of a full price," "determin[ing] an estimate of revenue ... of future prices," and "determin[ ing] ... an optimized sequence ... by comparing, the sequence of prices, to additional estimates of revenue." Thus, we agree with the Examiner that claim 1 is directed generally towards "markdown pricing" (see Final Act. 13), and is similar to certain fundamental economic and conventional business practices that our reviewing courts have found patent ineligible. For example, in OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015), the instant claims recite "no more than an abstract idea coupled with routine data-gathering steps and conventional computer activity." In OIP Technologies, the method claims at issue were directed to price optimization in an e-commerce environment by testing a plurality of prices, gathering statistics about customer reaction, estimating outcomes, and automatically selecting and offering a new price based on the estimated outcome (id. at 1362). The Federal Circuit held that the claims were directed to an abstract idea, explaining that "[ a ]t best, the claims describe the automation of the fundamental economic concept of offer-based price optimization through the use of generic-computer functions" (id. at 1363). Furthermore, "relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible" (id.). See also Alice, 134 S. Ct. at 2359 ("use of a computer to create electronic records, track multiple transactions, and issue simultaneous instructions'' is not an inventive concept); Bancorp /·/ervs., LL C v. Sun L[fe Assur. Co. qf Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (a computer "employed 6 Appeal 2016-006784 Application 13/276,739 only for its most basic function, ... does not impose meaningful limits on the scope of those claims"); cf DDR Holdings, LLC v. Hotels.cmn, LP, 773 F.3d 1245, 1258-----59 (Fed. Cir. 2014) (finding a computer-implemented method patent eligible where the claims recite a specific manipulation of a general-purpose computer such that the claims do not rely on a "computer network operating in its normal, expected manner."). See also Kray IP Holdings, LLC v. Safeway, Inc., 107 F.Supp.3d 677, 690 (E.D. Tex. 2015), aff'd, 639 F. App'x 637 (Fed. Cir. 2016) ("Incentive award programs designed to encourage sales of products and services have been familiar aspects of marketing for many years, as the [7,054,830] patent itself acknowledges."). Furthermore, as in Alice, we need not labor to delimit the precise contours of the "abstract ideas" category in this case. It is enough to recognize that there is no meaningful distinction in the level of abstraction between the concept of risk hedging in Bilski v. Kappas, 561 U.S. 593, 609-- 10 (2010) and the concept of "markdown pricing" at issue here. Both are squarely within the realm of "abstract ideas" as the Court has used that term. See Alice, 134 S. Ct. at 2357. We also note that claims involving data collection, analysis, and display are directed to an abstract idea. See Elec. Power, 830 F.3d at 1353 (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"); see also In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016). Here, independent claim 1, unlike the claims found non-abstract in prior cases, uses generic computer technology (see, e.g., Spec. ,r,r 25-28) to 7 Appeal 2016-006784 Application 13/276,739 receive information, i.e., "receive ... future prices and corresponding time periods," classify, i.e., "determine a reference price ... at its corresponding time," and analyze information, i.e., "determine an increase in revenue," "determine an estimate of revenue for the sequence of future prices," "determine when the sequence of future prices is an optimized sequence based on the estimate of revenue by comparing," and does not recite an improvement to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299, 1314--15 (Fed. Cir. 2016) 1314--15 (finding claims not abstract because they "focused on a specific asserted improvement in computer animation."). Thus, we agree with the Examiner that independent claim 1 is directed to a patent-ineligible abstract idea. Appellants argue that claim 1 recites "significantly more" than an abstract idea because [ d]etermining the reference prices, and calculating a demand model that substitutes the reference price elevates the present claims well beyond the mere concept of simply retrieving and combining data using a computer. Further, the use of a computer to generate reference prices and utilizing a demand model is clearly a technical solution to the problem of determining "markdown pricing", and is not a solution that can be performed manually or using routine computer data storage and mathematical operations. (Appeal Br. 6). We are not persuaded by Appellants' argument. Here, as the Examiner points out, Appellants' "computer structure (i.e. 'processor', 'memory' etc.) is at best generic" (Ans. 7 (citing Spec. ,r,r 25, 26[], 32); see also Final Act. 14). We agree with the Examiner and considering each of the claim elements in tum, we find them all to be directed to well-understood, routine, conventional activities previously 8 Appeal 2016-006784 Application 13/276,739 known to the industry (see Ans. 6-8). And, when viewed as a whole, the computer components ( e.g., "a processor" and "memory") of Appellants' system components add nothing that is not already present when the claim elements are considered separately. Appellants do not adequately show how the claimed steps are technically done such that they are not routine, conventional functions of a generic computer. See Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) ("Rather, the 'interactive interface' simply describes a generic web server with attendant software, tasked with providing web pages to and communicating with the user's computer."). Furthermore, other than stating that "the use of a computer to generate reference prices and utilizing a demand model is clearly a technical solution to the problem of determining 'markdown pricing', and is not a solution that can be performed manually or using routine computer data storage and mathematical operations" (Appeal Br. 6), Appellants do not adequately explain why determining "markdown pricing" cannot be "performed manually or using routine computer data storage and mathematical operations" (cf Ans. 7 (citing Appeal Br. 6)). Additionally, Appellants' claims do not purport to improve the functioning of the system itself. Nor do they effect an improvement in any other technology or technical field. Instead, the claims amount to nothing significantly more than an instruction to implement the abstract idea of determining "markdown pricing" (Final Act. 13; see also Ans. 5---6) using generic computer components (see Ans. 7 (citing Spec. ,r,r 25, 26, 32)). This is insufficient to transform an abstract idea into a patent-eligible invention. "[T]he mere recitation of a generic computer cannot transform a patent- ineligible abstract idea into a patent-eligible invention. Stating an abstract 9 Appeal 2016-006784 Application 13/276,739 idea "while adding the words 'apply it"' is not enough for patent eligibility." Alice, 134 S. Ct. at 2358. According to the Specification, "[p ]rocessor 32 may be any type of general or specific purpose processor" (Spec. ,r 25) and the pricing module 16 may be performed by "any combination of hardware and software" (Spec. ,r 32). The instant claims do not, for example, purport to improve the functioning of the computer itself or involve a solution necessarily rooted in computer technology to overcome a problem specific to the realm of computer networks, but instead embody the use of generic computer components in a conventional manner to perform an abstract idea, which, as the Court in DDR Holdings explained, is not patent eligible. DDR Holdings, 773 F.3d at 1256 ("[T]hese claims in substance were directed to nothing more than the performance of an abstract business practice on the Internet or using a conventional computer. Such claims are not patent- eligible."). Nor do the claims effect an improvement in any other technology or technical field. Instead, the claims at issue amount to nothing significantly more than an instruction to apply the abstract idea of "markdown pricing" (see Final Act. 13; see also Ans. 5---6), which under our precedents, is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 134 S. Ct. at 2360. Furthermore, unlike the problem in DDR Holdings, the instant problem is not "a problem specifically arising in the realm of computer networks" (DDR Holdings, 773 F.3d at 1257 (emphasis added)), because the claimed steps of "receiv[ing] a sequence of future prices and corresponding time periods," "determin[ing] a reference price for the product at its corresponding time period," "determin[ing] an increase in revenue using a 10 Appeal 2016-006784 Application 13/276,739 demand model, wherein ... a price elasticity variable ... uses the reference price ... instead of a full price," "determin[ing] an estimate of revenue ... of future prices," and "determin[ing] ... an optimized sequence ... by comparing, the sequence of prices, to additional estimates of revenue" can be performed manually by a retailer of a product as "an essential part of the merchandise item lifecycle pricing" (Spec. ,r 2). Therefore, the claims merely recite the performance of some business practice known from the pre-Internet world, namely how much of a markdown to take, along with the requirement to perform it using the computer. Additionally, we generally agree with the Examiner that the Appellants are merely automating routine activities with the use of generic computing technology (see Ans. 7-8; see also Spec. ,r,r 25, 26, 32). Appellants argue that the present claims "do not attempt to preempt every application of the alleged abstract idea of 'markdown pricing"' (see Appeal Br. 6). However, [ t ]he Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct. at 2354 ("We have described the concern that drives this exclusionary principle as one of pre- emption[.]"). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). Preemption concerns are, thus, fully addressed and rendered moot where a claim is determined to disclose patent ineligible subject matter under the two-part framework described in Mayo and Alice. Although "preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility" (id.). A 11 Appeal 2016-006784 Application 13/276,739 specific abstract idea is still an abstract idea and is not eligible for patent protection without significantly more recited in the claim. Appellants further argue that "the recited claims provide improvements to the functioning of the computer" (Appeal Br. 7). More particularly, Appellants argue that the Specification discloses: [ e ]mbodiments, by using a reference price, cause the optimizer to delay 'jumping" to give a markdown after no-touch or inactivity, which results in a more stable sequence of markdowns and an avoidance of unnecessary early and deep markdowns. In general, embodiments cause "higher value" consumers to pay more, and "lower value" consumers to pay less. (Id. (citing Spec. ,r 46)). Although, we acknowledge Appellants' contention that the pending claims result in "a more stable sequence of markdowns and an avoidance of unnecessary early and deep markdowns," (Appeal Br. 7), as we noted above, "relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible." See OIP Technologies, 788 F.3d at 1363. Appellants last argue that the Examiner did not consider the claim elements in combination, i.e., "how one element uses an input from another element in an innovative manner" (Appeal Br. 8). However, as the Examiner points out, "all claimed elements were carefully considered as a whole or in combination (see Final Office Action page 14 ,r 2), yet they still did not amount to significantly more than the abstract idea" (Ans. 11 ). Here, we agree with the Examiner that the claim elements, considered in combination, use generic computer components to perform the abstract idea of calculating markdown pricing. As such, the claims amount to no more than merely "relying on a computer to perform routine tasks more quickly or 12 Appeal 2016-006784 Application 13/276,739 more accurately," which as we noted above, is "insufficient to render [the] claim[s] patent eligible." See OIP Technologies, 788 F.3d at 1363. In view of the foregoing, we sustain the Examiner's rejection under 35 U.S.C. § 101 of independent claim 1, and claims 2-8, 14--21, and 27-33, which fall with independent claim 1. Obviousness Independent claims 1, 14, and 28 and dependent claims 2---8, 15-21, 27, and 29-33 We are not persuaded by Appellants' argument that the Examiner erred in rejecting independent claims 1, 14, and 28 under 35 U.S.C. § 103(a) because the combination of Sanli and Ouimet does not disclose or suggest using a demand model that uses reference pricing for elasticity instead of using the full price to determine optimized markdown pricing as called for by independent claim 1, and similarly called for by independent claims 14 and 28 (see Appeal Br. 9-11; see also Reply Br. 4). Instead, we agree with, and adopt, the Examiner's findings and rationales as our own (see Final Act. 8-12, 15-22 (citing Sanli, col. 4, 11. 61- 67; col. 5, 11. 1--43, 50-66; col. 9, 11. 10-24; col. 14, 11. 30, 37--40; col. 19, 11. 9-22, 35---64; Figs. 4, 7-11, 14--15; Ouimet ,r,r 28-30, 49, 46--47, 55-59, Figs. 2, 6); see also Reply Br. 13-16). We add the following discussion for emphasis. Sanli relates generally to a markdown optimization system for inventory, "and more specifically to computer-implemented systems and methods for optimizing a clearance plan for an item or items for sale" (Sanli, col. 1, 11. 14--17). Sanli discloses that "users 32 can interact with a markdown optimization system 34 to generate markdown plans ... designed 13 Appeal 2016-006784 Application 13/276,739 to optimize revenue, margin, and inventory targets for the items covered by the markdown plan" (id. at col. 2, 11. 26-31 ). Sanli further discloses that "markdowns are not cumulative from week to week," i.e., "the total percentage markdown for a given week from the current price at the beginning of the analytical period" (id. at col. 9, 11. 10-24, see also id. at Figs. 4, 7). Ouimet is directed to a system "for mathematically modeling and controlling strategic objectives in enterprise planning models" (Ouimet ,r 3). Ouimet discloses that "[ r ]eference price parameter, 100 is a particularly desirable form of a baseline price that achieves improved accuracy in modeling the prices that customers expect to pay for the products of set 86" (id. ,r 52). Ouimet further discloses how a reference price can be calculated to include calculation of a reference price at time period "t" and reference price subsequent to a previous time period "t-1" (id. ,r,r 29-55). Appellants argue that that the combination of Sanli and Ouimet fails to disclose or suggest "determin[ing] optimized markdown pricing" because "[t]here is absolutely no suggestion or motivation in Sanli for changing the elasticity calculation" (Appeal Br. 10; see also Reply Br. 4). Appellants acknowledge that "Ouimet arguably discloses the concept of reference pricing," but argue that "similar to Sanli, there is no disclosure, need, or motivation in Ouimet of using a demand model that uses reference pricing for elasticity, instead of using the full price, to determine optimized markdown pricing" (Appeal Br. 10; see also Reply Br. 4). We cannot agree. In making this determination, we note that the Supreme Court has made clear that when considering obviousness "the analysis need not seek out precise teachings directed to the specific subject matter of the challenged 14 Appeal 2016-006784 Application 13/276,739 claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ" (see KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,418 (2007)). And to the extent Appellants seek an explicit suggestion or motivation in the reference itself, this is not the law (see id. at 418). We find that the Examiner has provided an "articulated reasoning with some rational underpinning to support the legal conclusion of obviousness" (see id. (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Here, the Examiner takes the position [i]t would have been obvious to one skilled in the art, at the time of the invention, to modify Sanli' s method / system / medium to include "reference price" in view of Ouimet in order to enhance I configure Sanli's method/ system/ medium with capabilities to tangentially model downward-sloping demand with respect to prices and corresponding demanded quantities in order to find the best demand curve that fits the historical data ( see Ouimet if [0049] & Fig. 6). (Final Act. 11 (emphasis omitted)). The Examiner further reasons that "[i]n such demand model, Ouimet would further utilize complex, mathematical configurations of the demand model such as likelihood function maximization, Chi-squared curve-fitting, as well as multidimensional, nonlinear or discontinuous equations for a more rigorous price-demand model (see Ouimet ,r [0046], ,r [0047] last sentence & MPEP 2143 G)" (Id. at 11-12). The Examiner also notes the claimed invention is merely a combination of old elements, namely, the calculation of a total revenue increase all mark- downed prices in the proposed sequence of future prices as taught by Sanli with Ouimet's more granular calculation of an increase in revenue, at each step or iterative to each price in the sequence of future prices. (Final Act. 12). 15 Appeal 2016-006784 Application 13/276,739 We note that Appellants' argument does not address whether the modification described by the Examiner is more than the predictable use of prior art elements according to their established functions nor do they specifically mention or contest the substance of the Examiner's rationale, but rather only generally asserts that there is no suggestion in either Sanli or Ouimet for "a demand model that uses reference pricing for elasticity, instead of using the full price, to determine optimized markdown pricing" (Reply Br. 4). Therefore, in the absence of specific, technical arguments as to why the motivation is insufficient, i.e., why one of ordinary skill in the art would not recognize "the results of calculating separate revenue increases for each proposed mark-downed price in the sequence of future prices instead of a total, lump increase of all of said each prices price" (see Final Act. 12), and/or why the modification described by the Examiner is more than the predictable use of prior art elements according to their established functions, we find Appellants' arguments to be unpersuasive. In view of the foregoing, we sustain the Examiner's rejection of independent claims 1, 14, and 28 under 35 U.S.C. § 103(a). We also sustain the Examiner's rejections of dependent claims 2-8, 15-21, 27, and 29-33, which are not argued separately. 3 3 We acknowledge Appellants' reference to dependent claims 4--7 (see Appeal Br. 10-11). However, the mere reference to claims do not rise to the level of a separate argument for patentability. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("more substantive arguments in an appeal brief [are required] than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). 16 Appeal 2016-006784 Application 13/276,739 DECISION The Examiner's rejection of claims 1-8, 14--21, and 27-33 under 35 U.S.C. § 101 is affirmed. The Examiner's rejections of claims 1-8, 14--21, and 27-33 under 35 U.S.C. § 103(a) are 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)(l )(iv). AFFIRMED 17 Copy with citationCopy as parenthetical citation