Ex Parte Heaton et al

Patent Trials and Appeals Board

Jun 4, 2019

14285285 - (D) (P.T.A.B. Jun. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/285,285 05/22/2014
63710 7590 06/06/2019
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
FIRST NAMED INVENTOR
Timothy H. Heaton
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.
01-1059-Cl 8003
EXAMINER
HSU,RYAN
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
06/06/2019 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):
patentdocketing@cantor.com
lkorovich@cantor.com
phowe@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY H. HEATON and HOW ARD W. LUTNICK
Appeal2018-007174
Application 14/285,285
Technology Center 3700
Before EDWARD A. BROWN, MICHAEL J. FITZPATRICK, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
("Appellant") 1 seeks review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 42-60 and 62.2 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 BGC Partners, Inc. ("Appellant") is also identified as the real party in
interest. 37 C.F.R. § 1.46; Appeal Br. 2.
2 Claims 1-41 and 61 have been cancelled. Appeal Br. 2.
Appeal2018-007174
Application 14/285,285
CLAIMED SUBJECT MATTER
Claims 42, 56, and 62 are independent claims. Claim 42, reproduced
below, illustrates the claimed subject matter:
42. A method comprising:
causing to be displayed, at an electronic display screen of
at least one computer comprising at least one gaming device, a
list comprising a plurality of games, each of the games selectable
for initiating game play on the at least one gaming device
comprising a mobile gaming device in electronic communication
with at least one computer via an electronic communications
network;
receiving by the at least one gaming device a selection
from a user of at least one game of the plurality of games;
receiving, by the at least one computer, from a user at least
one game play command and a plurality of wagers during
multiple game plays of the at least one game played via the at
least one gaming device;
causing an indicia representing a value of wins or losses
associated with the user to be displayed at the electronic display
screen;
after causing the indicia to be displayed, receiving
information about a win or loss associated with the user;
responsive to receiving information about a win or loss,
automatically updating the indicia displayed at the electronic
display screen to reflect an updated value of wins or losses;
automatically determining, by the at least one computer, at
least one complimentary good or service earned by a user based
at least on information relating to the user playing the at least one
game; and
automatically causing to be simultaneously output to the
user via the electronic display screen, by the at least one
computer, the at least one complimentary good or service earned
by the user and a monetary value of the at least one
complimentary good or service earned by the user.
Appeal Br. 20 (Claims App.).
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REJECTIONS
Claims 42-60 and 62 stand rejected under 35 U.S.C. § 101 as directed
to patent-ineligible subject matter.
Claims 42-48 and 52-62 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Rowe (US 2002/0187834 Al, published Dec. 12, 2002)
(hereinafter, "Rowe '834"), Rowe (US 7,008,320 B2, issued Mar. 7, 2006)
(hereinafter, "Rowe '320"), and Mages (US 2003/0006931, published Jan. 9,
2003).
Claim 49 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Rowe '834, Rowe '320, Mages, and Walker (US 2003/0013516 Al,
published Jan. 16, 2003).
Claim 50 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Rowe '834, Rowe '320, Mages, and Okada (US 5,127,651, issued July
7, 1992).
Claims 42-60 and 62 stand rejected on the ground of non-statutory,
obviousness-type double patenting as unpatentable over claims 1-25 of
Heaton (US 8,734,226 B2, issued May 27, 2014).
ANALYSIS
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
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int'!, 573 U.S. 208,
216 (2014).
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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. Id. 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.
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 v. Kappas, 130 S. Ct.
3218 (2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594-
95 (1978)); and mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69
(1972)).
If the claim is "directed to" an abstract idea, we tum 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 ( quotation marks 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.
On January 7, 2019, the PTO issued revised guidance on the
application of§ 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (hereinafter "2019 Guidance"). The 2019
Guidance includes steps 2A and 2B. Under Step 2A, Prong One, of that
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guidance, we first look to whether the claim recites any judicial exceptions,
including certain groupings of abstract ideas (i.e., mathematical concepts,
certain methods of organizing human activities such as a fundamental
economic practice, or mental processes).
If a claim recites a judicial exception, we proceed to Step 2A, Prong
Two, and determine whether the claim recites additional elements that
integrate the judicial exception into a practical application (see MPEP
§ 2106.05(a)-(c), (e)-(h)).
Only if a claim both recites a judicial exception and does not integrate
that exception into a practical application, do we proceed to Step 2B of the
guidance. At this step, we determine whether the claim adds a specific
limitation beyond the judicial exception that is not "well-understood,
routine, conventional" in the field (see MPEP § 2106.05(d)); or simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. See 2019 Guidance.
Claim Grouping
Appellant argues claims 42-60 and 62 together and presents argument
only for claim 42 in contesting the rejection under § 101. See Appeal Br. 4-
14; see also id. at 18 ("The Final Office Action rejects claims 56 and 62 with
substantially the same reasons as those asserted against claim 42. Appellant
submits that claims 42, 56 and 62 recite statutory subject matter for at least
the same reasons discussed above."). Accordingly, we select claim 42 as the
representative claim to decide the appeal of this rejection, with claims 43-60
and 62 standing or falling with claim 42. See 37 C.F.R. § 41.37(c)(l)(iv).
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Step 1 - Statutory Category
Claim 42 recites a series of steps, and, therefore, is a process. See
Appeal Br. 20 (Claims App.).
Step 2A, Prong One - Recitation of Judicial Exception
The Examiner determines that claim 42 recites several abstract ideas.
Final Act. 11-12. These abstract ideas include "managing [a] wagering
game and game rules for providing an award to the user for participating in
the game." Id. (citing In re Smith, 815 F.3d 816 (Fed. Cir. 2016)). 3
We agree with the Examiner that claim 42 recites an abstract idea. In
In re Smith, 815 F.3d 816 (Fed. Cir. 2016), the court concluded that the
claimed "method of conducting a wagering game" using playing cards was
drawn to an abstract idea. The court likened the claimed method to the
method of exchanging financial obligations at issue in Alice. Id. at 819. The
court also found that the method of conducting a wagering game was similar
to the subject matter held to be patent-ineligible in Planet Bingo, LLC v.
VKGS LLC, 576 F. App'x 1005, 1007 (Fed. Cir. 2014) (determining that the
claims recite methods for "managing a game of Bingo" "similar to the kind
of' organizing human activity' at issue in Alice"). Smith, 815 F .3d at 819.
Additionally, in In re Guldenaar, 911 F.3d 1157, 1160 (Fed. Cir. 2018), the
court concluded that the claimed "method of playing a dice game" is
3 The Examiner determined that another abstract idea recited in claim 1 is
collecting information, analyzing the collected information, and displaying
the collected and analyzed information. Id. ( citing Electric Power Group,
LLC v. Alstom SA, 830 F.3d 1350 (Fed. Cir. 2016)).
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directed to a method of conducting a wagering game, which like the patent-
ineligible claims in Smith is drawn to an abstract idea.
Appellant's method as recited in claim 42 is, like the claims found to
be patent-ineligible in Smith, Guldenaar, and Planet Bingo, directed to a
method of conducting and managing a wagering game. The method of claim
42 comprises, in part, the limitations of: "causing to be displayed ... a list
comprising a plurality of games, each of the games selectable for initiating
game play"; "receiving ... a selection from a user of at least one game of
the plurality of games"; and "receiving ... from a user at least one game
play command and a plurality of wagers during multiple game plays of the at
least one game played." These limitations involve wagering actions
(selecting games to play and making commands and wagers) performed by
the user via a gaming device. The user's game play commands would
depend on the rules of the game(s) that is/are selected. See, e.g., Spec. ,i 11
("the game and wagering assistant system may ... display a command on a
screen to take a card in a blackjack game"). Conducting and managing
wagering games relates to following rules or instructions, which is an
example of managing personal behavior or relationships or interactions
between people. This example is one of certain methods of organizing
human activity identified in the 2019 Guidance. See 2019 Guidance at 52 n.
13.
Claim 42 further recites the limitations of "causing an indicia
representing a value of wins or losses associated with the user to be
displayed"; "after causing the indicia to be displayed, receiving information
about a win or loss associated with the user"; and "responsive to receiving
information about a win or loss, ... updating the indicia displayed to reflect
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an updated value of wins or losses." Appeal Br. 20 (Claims App.). These
limitations involve performing mathematical calculations to determine the
updated value of the user's wins or losses. According to the 2019 Guidance,
performing mathematical calculations is a mathematical concept, which is
one of the groupings of abstract ideas. See 2019 Guidance at 52 n. 12.
Claim 42 also recites "determining ... at least one complimentary
good or service earned by a user based at least on information relating to the
user playing the at least one game"; and "causing to be ... simultaneously
output to the user ... the at least one complimentary good or service earned
by the user and a monetary value of the at least one complimentary good or
service earned by the user". Appeal Br. 20 (Claims App. (emphasis added).
We agree with the Examiner that these limitations involve "providing an
award to the user for participating in the game." Final Act. 12. This
concerns following rules and managing a wagering game. The final
"automatically causing" step of claim 42 also involves determining the
monetary value of the earned complimentary good or service, which is based
on performing mathematical calculations, an abstract idea.
Accordingly, claim 42 recites a method of organizing human activity,
more particularly, managing personal behavior or relationships or
interactions between people (including social activities, teaching, and
following rules or instructions, which is an abstract idea. The claimed
method involves conducting and managing wagering games using at least
one computer comprising at least one gaming device. The user selects
games to play and then makes game play commands and wagers during
games plays of the selected games. These actions by the player involve
"rules for playing games," which is one type of method of organizing human
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activity. See Guldenaar, 911 F.3d at 1160; Smith, 815 F.3d at 818-19. The
recited method involves managing interactions between people following
rules or instructions. See 2019 Guidance at 52 n. 13. And, additionally, we
determine that the recited method recites the abstract idea of mathematical
concepts.
Because we conclude claim 42 recites these abstract ideas, we proceed
to Prong Two to determine whether the claim is "directed to" the judicial
exception.
Step 2A, Prong Two - Practical Application
We next determine whether the recited judicial exception is integrated
into a practical application of that exception by: (a) identifying whether
there are any additional elements recited in the claim beyond the judicial
exception( s ); and (b) evaluating those additional elements individually and
in combination to determine whether they integrate the exception into a
practical application. This evaluation requires an additional element or a
combination of additional elements in the claim to 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 exception.
Appellant contends that the Examiner fails to cite an appropriate court
decision that supports the Examiner's finding of an abstract idea. Appeal
Br. 8. We disagree. The Examiner cites to In re Smith, which supports the
determination that claim 42 recites an abstract idea. Final Act. 12; Ans. 5-6.
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Appellant also contends that the claims improve computer related
technology, making them patent-eligible. Appeal Br. 10-13. According to
Appellant, the Specification "describes advantages in facilitating electronic
gaming over a network with determining and displaying both complimentary
goods and services and the monetary value of the goods and services to a
user device which may help reduce the amount of activity or traffic over the
network." Id. at 11 ( citing Spec. ,i,i 59-62) (boldface omitted, emphasis
added). Appellant seems to contend that this disclosure shows that "these
techniques may help improve computer performance" and "may help reduce
computer workload including computer resources such as memory
resources, processor resources, and network resources such as network
bandwidth." Id. at 12.
We disagree with Appellant that the description in paragraphs 59-62
discloses that the claimed method improves computer related technology.
Instead, we agree with the Examiner that "at best, the Specification recites
different types of information that may be displayed on the user device
which may be used by the player to make informed decisions," and that the
description does not provide "any information regarding how the additional
requirements of displaying information will help reduce the amount of
activity or traffic over the network." Ans. 8-9. Moreover, we are not
persuaded that the possible conservation of "computer resources" is an
improvement in computer capabilities so as to constitute an improvement in
computer functionality or in another technology.
Appellant also contends that the decision in Core Wireless Licensing
S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356 (Fed. Cir. 2018), "uniquely
match[es] the facts" of this appeal (Appeal Br. 12) and explicitly held that an
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improved graphical user interface is patent-eligible (id. at 13). According to
Appellant, the court in this case determined that the invention improved "the
efficiency of using the electronic devices." Id. Appellant contends that "the
claimed invention provides techniques for determining and displaying both
complimentary goods and services and the monetary value of the goods and
services to a user device" and "such techniques provide for an improved
user interface which may increase the efficiency of using the electronic
devices." Id. (boldface omitted, emphasis added). Appellant thus asserts
that the claimed invention is likewise patent eligible because it "provides a
user interface which may improve the efficiency of using the electronic
devices." Id. (boldface omitted, emphasis added).
These contentions are unpersuasive. First, Appellant argues that its
user interface "may" improve the efficiency of using electronic devices, but
does not establish, with evidence, that its user interface actually does
improve such efficiency.
Second, to the extent it is Appellant's position that Core Wireless
stands for the proposition that any user interface that improves the efficiency
of using electronic devices is, for that reason, patent-eligible, we disagree.
In Core Wireless, the court stated that "[t]he disclosed invention improves
the efficiency of using the electronic devices." Core Wireless, 880 F.3d at
1363. However, the court also explained that "[w]e also ask whether the
claims are directed to a specific improvement in the capabilities of
computing devices" (id. at 1361), and then determined that "the claims are
directed to an improvement in the functioning of computers" (id. at 1363).
Thus, in Core Wireless, the improved efficiency of using the electronic
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devices was related to an identified improvement in the functioning of
computers.
In Trading Technologies International, Inc. v. !BG LLC, 921 F.3d
1378 (Fed. Cir. 2019), the court addressed the patent eligibility of a method
of displaying market information on a graphical user interface. The court
determined that "the claims considered in light of the specification make
clear that 'the focus of the claimed advance over the prior art' is providing a
trader with additional financial information to facilitate market trades, an
abstract idea." Id. at 1384 (emphasis added). Further, the court stated,
"Information, whether displayed in the form of price values or P &L values,
is abstract. SAP, 898 F.3d at 1167." Id. The court explained that "[t]he
claims are focused on providing information to traders in a way that helps
them process information more quickly ... not on improving computers or
technology" and "the claims here fail because arranging information along
an axis does not improve the functioning of the computer, make it operate
more efficiently, or solve any technological problem." Id. (emphasis added).
Likening the claims to those in Electric Power, the court stated, "the
purported advance '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."' Id.
Accordingly, Trading Techs. indicates that Appellant needs to show that its
user interface provides an improvement in the functioning of a computer, or,
in some other technology, to support its patent eligibility position.
Here, absent persuasive evidence to the contrary, we determine that
claim 42 merely uses an electronics communication network including
generic components ( computers with electronic display screens and mobile
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gaming devices) as a tool to perform the abstract idea. See MPEP
§ 2106.05(±). We agree with the Examiner that Appellant has not shown that
the claimed method, which determines and displays complimentary goods
and services and their monetary value to a user's display screen, provides
either an improvement in the functioning of a computer or to any other
technology or technical field.
Appellant also contends that the claims "do not preempt all ways of
achieving the intended result because the claimed recitations are very
specific and do not cover all possible approaches." Appeal Br. 14 (boldface
omitted). However, even if this contention is correct, we note "preemption
may signal patent ineligible subject matter, [but] the absence of complete
preemption does not demonstrate patent eligibility." Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). Accordingly,
this argument is unpersuasive.
Here, we determine that, apart from the limitations reciting an abstract
idea, claim 42 does not recite additional claim elements that integrate the
judicial exception into a practical application of the exception. Accordingly,
we proceed to determine whether the claim recites an "inventive concept."
Step 2B - Inventive Concept
For Step 2B of the analysis, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not "well-
understood, routine, conventional" in the field. See 2019 Guidance.
The Examiner concludes that claim 42 does not include any additional
elements that are sufficient to amount to significantly more than the abstract
idea itself. Final Act. 12-13. Instead, the Examiner determines that there is
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no indication that the claimed combination of elements improves the
functioning of a computer or any other technology. Id. at 13. Rather, the
Examiner determines that the collective function of the elements merely
provides conventional computer implementation where the computer is used
as a tool to perform the abstract idea. Id.
Appellant contends that "the claims recite specific computer
operations that allow the computer to perform a function that conventional
computers cannot perform." Reply Br. 3. However, Appellant provides no
evidence to show that conventional computers cannot (i.e., are physically
unable to) perform any function recited in claim 42. To the extent Appellant
is contending that claim 42 is patent-eligible because it purportedly performs
a novel function, we note "[t]he 'novelty' of ... the ... [claim] itself, is of
no relevance in determining whether the subject matter of a claim falls
within the§ 101 categories of possibly patentable subject matter." See, e.g.,
Diamondv. Diehr, 450U.S. 175, 188-89 (1981).
We agree with the Examiner that the method recited in claim 42
merely uses a computer network including generic components as a tool to
perform the abstract idea. The application of the abstract idea using generic
computer components does not transform the claim into a patent-eligible
application of the abstract idea. Alice, 573 U.S. at 212. Thus, we agree with
the Examiner that these additional elements do not transform the abstract
idea into a patent-eligible application of the abstract idea. Final Act. 13.
Accordingly, Appellant does not apprise us of error in the Examiner's
conclusion that claim 42 fails to recite an inventive concept that transforms
the claim into a patent-eligible application of the abstract idea. Thus, we
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sustain the rejection of claim 42 under 35 U.S.C. § 101. Claims 43-60 and
62 fall with claim 1.
Obviousness over Rowe '834, Rowe '320, and Mages
Appellant argues claims 42-48 and 52-62 together and presents
specific argument for patentability for claim 42 only. See Appeal Br. 15.
Accordingly, we decide the appeal of this rejection based on claim 42, with
claims 43-48 and 52-62 standing or falling with claim 42.
Appellant contends that Rowe '834 and Rowe '320 fail to "disclose
determining and displaying both simultaneously complimentary goods and
services and the monetary value of the goods and services to a user via an
electronic display screen that was earned by the user," but rather, "describe
a system that displays and prints comp information directed to a supervisor
via device PTD 86." Appeal Br. 15 (boldface omitted, emphasis added).
Appellant also contends that "'the comp [being] displayed to the user'
cannot be used to teach both displaying the comp and displaying the value of
the comp, or displaying them simultaneously." Id.
The Examiner responds that Rowe '834 discloses an electronic
display that presents the complimentary goods and services earned by the
user. Ans. 11. In support, the Examiner reproduces Figure 14(a) of Rowe
'834 to show that the system "simultaneously outputs under the 'comp'
menu both the good and services (e.g., Food & Bev) and the associated
monetary value ( e.g., $40.00)." Id. at 11-12. The Examiner also explains
that Rowe '834 discloses that "different comps and an associated value (such
as the size of the credit) or (quantity (such as number of goods) awarded is
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also designated by the system." Id. at 12 (citing Rowe '834, Fig. 14a,
,i,i 111, 130-136).
In the Reply Brief, Appellant presents no argument addressing this
rejection, and thus, fails to apprise us of any error in the Examiner's findings
or reasoning. Accordingly, we sustain the rejection of claim 42 as
unpatentable over Rowe '834, Rowe '320, and Mages. Claims 43-48 and
5 2-6 2 fall with claim 4 2.
Obviousness over Rowe '834, Rowe '320, Mages, and Walker
Obviousness over Rowe '834, Rowe '320, Mages, and Okada
Appellant relies solely on the dependency of claims 49 and 50 from
claim 42 for patentability. Appeal Br. 15. Accordingly, we sustain the
rejection of claim 49 as unpatentable over Rowe '834, Rowe '320, Mages,
and Walker, and the rejection of claim 50 as unpatentable over Rowe '834,
Rowe '320, Mages, and Okada, for the same reasons as for the rejection of
claim 42 as unpatentable over Rowe '834, Rowe '320, and Mages.
Non-statutory, obviousness-type double patenting over Heaton
The Examiner determines that claims 42-60 and 62 would have been
obvious over claims of Heaton. In support, the Examiner provides "[a]
comparison of the claims ... between the instantly claimed invention and
the corresponding claims of [Heaton]." Final Act. 7. The Examiner's
"comparison" is in the form of a table, which indicates present claims 42 and
45-47 are compared to claim 1 of Heaton. Id. at 7-10. According to the
Examiner:
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Although the claims at issue are not identical, they are not
patentably distinct from each other because they are directed
towards providing game play with the same inventive feature of
causing at least one complimentary good or service earned by the
user and a value of the at least one complimentary good or
service earned by the user. The differences defined by the
conflicting claims are merely a rearrangement of the subject
matter defined in the patent.
Id. at 10 ( emphasis added).
In contrast, Appellant contends that the Examiner fails to show how
any present claim corresponds to any claim of Heaton. Appeal Br. 16. We
agree. The Examiner does not identify any "particular differences" between
present claim 42 and claim 1 of Heaton that the Examiner finds "are merely
a rearrangement of the subject matter defined in the patent." We note, for
example, that the Examiner's comparative table does not explicitly address
the limitations in claim 42 of "causing an indicia representing a value of
wins or losses associated with the user to be displayed at the electronic
display screen" and "after causing the indicia to be displayed, receiving
information about a win or loss associated with the user." See Appeal Br. 20
(Claims App.). Nor does the Examiner indicate which limitations in claim
42 would have been obvious over the claims of Heaton. Accordingly, the
Examiner does not establish a prima facie case of obviousness for claim 42.
Furthermore, the Examiner does not address the limitations recited in claims
44, 48-60, and 62, and thus, does not establish a prima facie case of
obviousness of any one of these claims over Heaton's claims. Accordingly,
we do not sustain the rejection of claims 42-60 and 62 on the ground of non-
statutory, obviousness-type double patenting as unpatentable over claims 1-
25 of Heaton.
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DECISION
The rejection of claims 42-60 and 62 under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter is affirmed.
The rejection of claims 42-48, 52-60, and 62 under 35 U.S.C.
§ 103(a) as unpatentable over Rowe '834, Rowe '320, and Mages is
affirmed.
The rejection of claim 49 under 35 U.S.C. § 103(a) as unpatentable
over Rowe '834, Rowe '320, Mages, and Walker is affirmed.
The rejection of claim 50 under 35 U.S.C. § 103(a) as unpatentable
over Rowe '834, Rowe '320, Mages, and Okada is affirmed.
The rejection of claims 42-60 and 62 on the ground of non-statutory,
obviousness-type double patenting as unpatentable over claims 1-25 of
Heaton is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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