Ex Parte Wagner

Patent Trials and Appeals Board

Jan 30, 2019

13829007 - (D) (P.T.A.B. Jan. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/829,007 03/14/2013
28078 7590 01/31/2019
MAGINOT, MOORE & BECK, LLP
One Indiana Square, Suite 2200
INDIANAPOLIS, IN 46204
FIRST NAMED INVENTOR
Richard H. Wagner
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.
1714-0027 1404
EXAMINER
STOLTENBERG, DAVID J
ART UNIT PAPER NUMBER
3682
MAIL DATE DELIVERY MODE
01/31/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD H. WAGNER 1
Appeal2017-004825
Application 13/829,007
Technology Center 3600
Before MICHAEL J. STRAUSS, KARA L. SZPONDOWSKI, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-15 and 17-19, which constitute all pending
claims. 2 We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 The Appeal Brief filed Apr. 14, 2016 ("App. Br.") at page 3 identifies the
Datascape.com, Inc., as the real party in interest.
2 In a post-Final Amendment filed Apr. 18, 2016, Appellant amended the
claims by cancelling claim 16 and amending claim 14 to include the
limitations of cancelled claim 16. The Examiner entered those amendments
in an Advisory Action mailed Apr. 26, 2016 ("Adv. Act."), and the Claims
Appendix included with the Supplemental Appeal Brief filed Aug. 2, 2016
("Claims App 'x") reflects those amendments.
Appeal2017-004825
Application 13/829,007
Introduction
Appellant's disclosed and claimed invention "relates generally to
systems for administering wireless device accounts, and more particularly, to
systems that enable users to obtain credits on wireless device accounts."
Spec. ,r 1. In background discussion for the invention, Appellant identifies
that "systems and methods that encourage computer users and mobile device
users to accept and interact with advertising are needed." Id. ,r 3.
Claims 1 and 14 are illustrative of the claims on appeal:
1. A computer system comprising:
an open network interface configured to receive and
transmit messages in an open network communication protocol;
a database having a memory in which wireless device
account data, sponsor account data, and wireless service
provider data are stored; and
a computer having a processor and memory in which
programmed instructions are stored, the processor operating the
computer when the processor executes the programmed
instructions to:
verify messages received through the open
network interface are from one of a wireless device
associated with wireless device account data stored in the
database, a computer associated with a sponsor, and a
computer associated with a wireless service provider
having data stored in the database,
generate and send messages to the wireless devices
associated with wireless device account data stored in the
database in response to receipt of a message regarding a
first incentive offer from a computer associated with one
of the sponsors having sponsor account data stored in the
database,
generate and store credit data in wireless device
account data in the database associated with wireless
devices that responded to a message regarding the first
2
Appeal2017-004825
Application 13/829,007
incentive offer in response to messages indicating
acceptance of the first incentive offer being received
from wireless devices through the open network
interface,
generate and send a debit message to a payment
service associated with the sponsor having sponsor
account data stored in the database that sent the first
incentive offer, a debit amount identified in the debit
message corresponding to a total debit identified by the
credit data corresponding to the sponsor stored by the
computer in the wireless device account data in the
database, and
generate and send payment messages to a wireless
service provider having wireless service provider data
stored in the database, the payment messages being
generated with reference to the credit data stored in the
database for wireless devices that sent messages
indicating acceptance of the incentive offer and the
payment messages identifying wireless device accounts
with the wireless service provider that correspond to
wireless devices that sent messages indicating acceptance
of the first incentive offer.
14. A wireless device comprising:
a display;
a memory in which programmed instructions are stored;
a wireless transceiver; and
a processor that operates the wireless device when the
processor executes the programmed instructions stored in the
memory to:
receive with the transceiver and display messages
regarding incentive offers received from a computer
communicating over an open network,
generate requests to receive a document stored at a
universal resource locator identified in a received
3
Appeal2017-004825
Application 13/829,007
message regarding an incentive offer and operate the
transceiver to send the requests,
generate a request for credit to a wireless device
account identified by wireless device account data stored
in a database associated with the computer
communicating over the open network and operate the
transceiver to send the request for credit to the computer
communicating over the open network after the
document stored at the universal resource locator has
been received by the wireless device; and
Claims App'x 1-2, 8-9.
Rejections and References
Claims 1-15 and 17-19 stand rejected under 35 U.S.C. § 101 as
directed to a judicial exception (i.e., an abstract idea) without reciting
significantly more. Final Act. 2-5; see also id. at 30-33.
Claims 14 and 17 stand rejected under pre-AIA 35 U.S.C. § I02(b) as
anticipated by Bayne (US 2009/0088219 Al; pub. Apr. 2, 2009). Final Act.
5-8; see also id. at 33-34.
Claims 1 and 3-11 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Bayne, Colligan (US 2010/0130179 Al; pub. May 27,
2010), and Girard (US 2013/0316703 Al; pub. Nov. 28, 2013). Final Act.
9-22; see also id. at 34--36.
Claim 2 stands rejected under§ I03(a) as unpatentable over Bayne,
Colligan, Girard, and Bemmel (US 2008/0097851 Al; pub. Apr. 24, 2008).
Final Act. 22-23.
Claims 12 and 13 stand rejected under§ I03(a) as unpatentable over
Bayne, Colligan, Girard, and Medlen (US 2013/0317911 Al; pub. Nov. 28,
2013). Final Act. 23-26.
4
Appeal2017-004825
Application 13/829,007
Claims 15, 18, and 19 stand rejected under§ 103(a) as unpatentable
over Bayne and Medlen. Final Act. 26-30.
ANALYSIS
Appellant waives unmade arguments. 3 7 CPR § 41.3 7 ( c )(1 )(iv) ("The
arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant. . . . [ A ]ny arguments or authorities not
included in the appeal brief will be refused consideration by the Board for
purposes of the present appeal."); Cf In re Baxter Travenol Labs., 952 F.2d
388,391 (Fed. Cir. 1991) ("It is not the function of this court to examine the
claims in greater detail than argued by an appellant").
We have reviewed the Examiner's rejections in light of Appellant's
contentions of reversible error. Except as set forth below with regard to the
35 U.S.C. § 101 rejection of claim 5, we disagree with Appellant's
conclusions. As consistent with our discussion below, we adopt the findings
and reasoning of the Examiner as set forth in the Final Rejection and in the
Answer.
A. The 35 USC§ 101 Rejection
1. Principles of Law
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 'l, 573 U.S. 208,
216 (2014).
5
Appeal2017-004825
Application 13/829,007
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 ("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. Kappas, 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 (Gottschalkv. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 184 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); 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
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 192 ("We
view respondents' claims as nothing more than a process for molding rubber
6
Appeal2017-004825
Application 13/829,007
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 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.
The PTO recently published revised guidance on the application of
§ 101. USPTO's January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance ("Memorandum"). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
7
Appeal2017-004825
Application 13/829,007
human interactions 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)).
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 Memorandum.
2. The Examiner's Determinations
The Examiner determines all pending claims "are directed to the
abstract idea of generating and sending sponsored incentive messages and
allocating incentive related credits and payments among wireless device
accounts, sponsors, and wireless service providers with messages." Final
Act. 2 (noting this idea is similar to "basic economic practices or theories
such as advertising and marketing" determined to be abstract ideas in other
cases ( citing SmartGene3 and Cyberfone4) ). The Examiner further
determines the claims do not recite additional limitations that, when
considered individually and as an ordered combination, amount to
3 SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App'x 950
(Fed. Cir. 2014).
4 Cyberfone Systems, LLC v. CNN Interactive Group, Inc., 558 F. App'x
988 (Fed. Cir. 2014).
8
Appeal2017-004825
Application 13/829,007
significantly more than the judicial exception, because the additional
limitations require only generic computer technology that performs well-
understood, routine, and conventional activities previously known in the
industry. Final Act. 4--5 (citing Spec. ,r,r 10, 32).
3. Claim 1
Appellant argues the Examiner errs in step one of the Alice analysis
because the Examiner's "alleged abstract idea is a gloss of the subject matter
to which claim 1 is directed." App. Br. 9; see also id. at 10-12. Instead,
Appellant contends claim 1 is directed to
a specific machine designed for the purpose of providing
incentive messages from sponsors to wireless devices, enabling
the wireless devices to receive credit for accepting those
messages, obtaining payment for the acceptance of those
messages from sponsors, and using those payments to pay
wireless service providers with reference to the payments from
sponsors. Such a designed machine is not a mere abstract idea
and does not tie up the alleged abstract idea [identified by the
Examiner].
App. Br. 9.
This argument is unpersuasive. "An abstract idea can generally be
described at different levels of abstraction." Apple v. Ameranth Inc., 842
F.3d 1229, 1240 (Fed. Cir. 2016). The Examiner's determination for claim 1
is no more of a gloss than the determination in Alice, in which the Supreme
Court determined a claim reciting a variety of specific limitations, e.g., for
using "shadow records" within multiple method steps, was directed to
"intermediated settlement." See 134 S. Ct. at 2352, 2354 n.2. The
Examiner's determination properly reflects that focus of claim 1 is on the
business method aspects underlying the recited use of sponsor incentives and
the messages sent among a wireless device user, a wireless service provider,
9
Appeal2017-004825
Application 13/829,007
and the sponsor. As the Examiner responds, and we agree, the business
method limitations of claim 1 recites functionality of the type that has
routinely been determined to be abstract. See, e.g., Ans. 3--4 ( comparing the
recited functionality to limitations found to be abstract in SmartGene and
Cyberfone ). We agree with the Examiner that claim 1 is directed to a
judicial exception in the category of organizing human activity because it is
directed to the abstract idea of"[ d]istributing incentives and advertisements
to consumers," which are activities "engaged in by advertisers and
merchants on a frequent basis."5 Final Act. 3.
Claim 1 recites the following technology limitations:
1) computers;
2) an open network interface;
3) an open network communication protocol;
4) a database having a memory; and
5) a computer having a processor and memory in which programmed
instructions are stored, the processor operating the computer when
the processor executes the programmed instructions.
Appellant's Specification confirms that any suitable hardware may be used
for the recited technology components. See, e.g., Spec. ,r,r 9-10. The
remaining limitations of claim 1 constitute the recited business method, i.e.,
the abstract idea. Thus, claim 1 recites a business method performed by any
suitable technology.
Claim 1 does not improve the function of any of the recited
technology and is not, as Appellant argues, directed to "a designed machine"
(App. Br. 9) rather than an abstract idea. Claim 1 does not meaningfully
5 Claim 1 's dependent claims also, therefore, are directed to this abstract
idea.
10
Appeal2017-004825
Application 13/829,007
constrain the recited hardware or any underlying software technology
beyond the functional requirements for processing the incentive-related
messages among the sponsor, wireless device user, and wireless service
provider. In other words, claim 1 does not apply the judicial exception with
any particular machine. See MPEP § 2106.0S(b ). Appellant's arguments
similarly do not persuade us that claim 1 improves the functioning of a
computer or any other technology or technical field, or that it effects a
particular transformation of the recited articles, which are simply used for
their ordinary purposes, or add any other meaningful (technological)
limitations, i.e., beyond those that simply "linking the use" of the method to
general technology; thus, Appellant does not persuade us the technological
limitations amount to more than instructions to apply the exception on that
set of general hardware. See MPEP § 2106.0S(a), (c), (e}-(f); see also id. at
(g}-(h) (use of well-known limitations beyond the judicially excepted matter
constitutes "insignificant extra-solution activity" (g) and claim limitations
"merely indicating a field of use or technological environment in which to
apply a judicial exception do not amount to significantly more" (h)).
Appellant also specifically contends the Examiner mistakenly
describes the idea as including "allocating incentive related credits and
payments among wireless device accounts, sponsors, and wireless service
providers," because claim 1 "does more than merely allocate credits." App.
Br. 9 (instead contending the claimed system "effects payment from
sponsors). This is unpersuasive. As discussed above, it is reasonable to
describe a claim at different levels of abstraction, and allocating is a
reasonable abstraction of claim 1 's recited requirements related to
processing credit payments and debit amounts. We consider whether claim
11
Appeal2017-004825
Application 13/829,007
1 's recitations amount to significantly more in the second step of the Alice
analysis.
Appellant also contends claim 1 is not directed to an abstract idea
because it includes limitations "unknown in the prior art." App. Br. 9. This
is unpersuasive. A novel and nonobvious claim directed to a purely abstract
idea is, nonetheless, patent ineligible. See Mayo, 566 U.S. at 90; BSG Tech
LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) ("It has been
clear since Alice that a claimed invention's use of the ineligible concept to
which it is directed cannot supply the inventive concept that renders the
invention 'significantly more' than that ineligible concept."); Diehr, 450
U.S. at 188-89 ("The 'novelty' of any element or steps in a process, or even
of the process itself, is of no relevance in determining whether the subject
matter of a claim falls within the § 101 categories of possibly patentable
subject matter.").
We also are unpersuaded the Examiner errs because claim 1 "does not
tie up the alleged abstract idea." App. Br. 9. "While 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); see also CLS Bankint'l v. Alice
Corp. Pty. Ltd., 717 F.3d 1269, 1281 (Fed. Cir. 2013) ("[B]road claims do
not necessarily raise § 101 preemption concerns, and seemingly narrower
claims are not necessarily exempt."); OIP Techs., Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1362---63 (Fed. Cir. 2015) ("[T]hat the claims do not preempt
all price optimization or may be limited to price optimization in the e-
commerce setting do not make them any less abstract."). "Where a patent's
claims are deemed only to disclose patent ineligible subject matter under the
12
Appeal2017-004825
Application 13/829,007
Mayo framework ... preemption concerns are fully addressed and made
moot." Ariosa, 788 F.3d at 1379
Appellant contends the Examiner overlooks aspects of claim 1 such as
"an open network interface," which "contributes to the erroneous conclusion
that the claim describes 'steps that can be performed by a human."' App.
Br. 10 (quoting Adv. Act. (block 12)). This is unpersuasive. During the
Alice step one analysis, we consider whether a human may implement the
abstract idea to which the claim is directed, not whether there are other
limitations that a human cannot perform. Here, we consider whether the
limitations such as "an open network interface" amount to significantly more
than the abstract idea during the second step of the Alice analysis.
Appellant contends the Examiner "fails to consider the claim as an
ordered combination that addresses the wireless network challenge of
unsolicited incentives and that solves it with an Internet/wireless subscriber
system that operates in an ordered manner as set forth in the claim." App.
Br. 11; see also id. at 12 and Reply Br. 3--4. This argument is unpersuasive.
We find the Examiner's determination that the claim is directed to an
abstract idea was based on consideration of the claim as a whole. For
example, the Examiner's determination that the idea to which claim 1 is
directed includes "allocating incentive related credits and payments"
requires consideration of limitations from multiple steps in the claim. See
Final Act. 2; see also Ans. 3-5, 8-9 (expanding on the rejection's analysis of
all claim limitations, individually and in combination). We further agree
with the Examiner that it is the business method that "addresses the wireless
network challenge of unsolicited incentives or offers, and the effects of
telecommunications laws." Ans. 9 ( determining "such results are not
13
Appeal2017-004825
Application 13/829,007
technical in nature, and are not sufficient to transform the instant judicial
exception into an eligible application").
Appellant further argues that BASCOM compels a different result.
Reply Br. 3--4. We disagree. In BASCOM, claims directed to the abstract
idea of filtering content on the Internet were patent-eligible because they
recited a combination of limitations that provided a specific way to improve
the technology used for Internet filtering. See 827 F.3d at 1349--52. Claim 1
does not improve any underlying technology. Instead, it is directed to
solving a business method problem in the field of wireless device account
administration. See Spec. ,r 1.
Thus, the claim does not integrate the judicial exception into a
practical application, and we proceed to step two of the Alice analysis.
Appellant argues the Examiner errs in the step two analysis by
"fail[ing] to notice that several of the elements of the claim are not known in
the art ... and fail[ing] to appreciate the symbiotic solution of this ordered
combination to the issues identified in the background of the application."
App. Br. 13. Specifically, Appellant contends that claim 1 "enables a
sponsor to overcome the resistance of a wireless device user in the prior art
to receive incentive offers, which is similar to the delivery of time sensitive
stock quotes to Internet users." Id. (asserting the Examiner fails to show that
claim 1 's "receipt of payment from the sponsor that can be transformed into
payment to a wireless service provider on behalf of the wireless device
accepting the incentive offers" does not constitute significantly more than
the identified abstract idea).
Appellant refers to claim 2 from Example 21 of the Office's July 2015
Update on Subject Matter Eligibility. That claim is patent eligible because it
14
Appeal2017-004825
Application 13/829,007
"solve[ s] an Internet-centric problem with a claimed solution that is
necessarily rooted in computer technology, similar to the additional elements
in DDR Holdings.[ 6]" See July 2015 Update, App'x 1, p. 4 (available at
accessed Dec. 31, 2018)); see also id. pp. 2-5. Appellant's claim 1, on the
other hand, solves the human problem of overcoming a wireless device
user's resistance to receiving incentive offers. In other words, claim 1 's
limitations for transforming "receipt of payment from the sponsor ... into
payment to a wireless service provider on behalf of the wireless device" user
(App. Br. 13) are a business method solution to a human problem. Rather
than being Internet- or technology-centric, claim 1 combines an abstract idea
with routine technology components. In particular, claim 1 recites the use of
technology components for their ordinary, well-understood, routine, and
conventional purposes as a way to implement the business method among
the three recited entities (sponsor, wireless service provider, and wireless
device user). Thus, claim 1 only limits the use of the abstract idea to a
particular technological environment and "does not transform an otherwise
abstract idea into patent-eligible subject matter." Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709, 716 (Fed. Cir. 2014); see also Intellectual Ventures I
LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370-71 and Affinity Labs
of Texas, LLC v. DirecTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016).
Therefore, for the reasons discussed, we agree with the Examiner that the
technology limitations of claim 1, alone and in combination, do not
transform the abstract idea of the business method into an inventive concept.
See Final Act. 3-5; Ans. 8-10.
6 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (2014).
15
Appeal2017-004825
Application 13/829,007
Accordingly, we sustain the 35 U.S.C. § 101 rejection of claim 1.
4. Claim 2
Appellant separately argues the Examiner errs in the § 101 rejection
of claim 2, which depends from claim 1 and further requires "generat[ing]
and send[ing] ACH[7J messages to transfer funds from a payment service
identified by sponsor account data to an account associated with an operator
of the computer" (Claims App'x 2). App. Br. 14. Specifically, Appellant
contends "[ t ]hese messages between computers help incentivize operation of
the claimed computer system to overcome the resistance of wireless device
users to receive offers from third party sponsors over a wireless network."
Id. The Examiner responds by finding claim 2 recites only an abstract idea
"similar to the judicial exception identified in Dealertrack,[8J i.e., processing
information through a clearinghouse," and that "in combination with claim
1 [, claim 2] does not improve another technology or technical field, improve
the functioning of a computer or computing system, or include meaningful
limitations beyond generally linking the use of an abstract idea to a
particular technological environment" (i.e., to use with the ACH network).
Ans. 11, 12.
Appellant replies that the Examiner does not "demonstrate that the
ordered combination was considered as possibly meeting the test of a non-
conventional and non-generic arrangement of conventional elements."
Reply Br. 4. This argument is unpersuasive. Claim 2's limitations for
sending ACH messages are directed to the idea of using a payment
7 The ACH ("automated clearinghouse") network is an electronic payment
network established in the 1970s. See, e.g., en.wikipedia.org/wiki/ACH_
Network (last accessed Dec. 31, 2018).
8 Dealertrack, Inc. v. Huber, 674 F.3d 1315 (Fed. Cir. 2012).
16
Appeal2017-004825
Application 13/829,007
clearinghouse. In other words, claim 2 adds limitations that are directed to a
well-known, fundamental economic practice that constitutes a method of
organizing human activity. Adding one abstract idea to another abstract idea
does not render a claim non-abstract. RecogniCorp, LLC v. Nintendo Co.,
Ltd., 855 F.3d 1322, 1327 (Fed. Cir. 2017); see also FairWarning IP, LLC v.
Iatric Systems, Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016) (patent-
ineligible claims were directed to a combination of abstract ideas).
Appellant also argues the Examiner did not consider that "[ t ]he
generation and transmission of these [ACH-related] messages requires use of
the credit data generated with reference to the acceptance messages received
from the wireless devices and the data obtained from the sponsors through
the open network interface." App. Br. 14. We disagree. The open network
interface is part of claim 1, not claim 2. We agree with the Examiner that
generating and sending of such messages do not add significantly more
because those limitations constitute use of routine technology that is
necessary for use of the idea and do not provide any technological
improvement or otherwise meaningfully limit the idea. Ans. 11-12. In
other words, those limitations constitute generally linking the use of the
judicial exception to a particular environment or field of use. See MPEP
§ 2106.05(e). For the reasons discussed above for claim 1, we determine
claim 2 does not integrate the recited judicial exception into a particular
application as required, but instead simply recites a particular set of general
technology along with the judicial exception. See, e.g., MPEP § 2106.05(a}-
( C ), (f}-(h).
Accordingly, we sustain the 35 U.S.C. § 101 rejection of claim 2.
17
Appeal2017-004825
Application 13/829,007
5. Claim 3
Appellant argues claim 3 recites significantly more than the abstract
idea of its parent "claim 1 because its elements structure[] the system to
overcome the hurdle of message acceptance present in the prior art of direct
third party solicitation to wireless devices. Obtaining these authorization
data to overcome the problems of the prior art helps ensure subscribers
receive only those offers they have an interest in considering." App. Br. 14.
The Examiner responds that claim 3 's limitations are analogous to those in
SmartGene, which did not recite significantly more than the abstract ideas of
"comparing new and stored information and using rules to identify options."
Ans. 12. The Examiner further responds that "while the limitations of claim
3 may help ensure subscribers only receive those offers they have an interest
in considering, such a problem and solution is not a technical issue and
instead is a business or commercial problem." Ans. 13.
Appellant does not rebut the determinations of the Examiner, with
which we agree. For the reasons discussed above for claim 1, we determine
claim 3 does not integrate the recited judicial exception into a particular
application as required, but instead simply recites a particular set of general
technology along with the judicial exception. See, e.g., MPEP § 2106.05(a}-
(c), (e}-(h). Thus, we sustain the 35 U.S.C. § 101 rejection of claim 3.
6. Claim 4
Appellant argues claim 4 "enables the claimed system to overcome
the limitations of the prior art" and the Examiner failed to consider its
ordered limitations in the rejection. App. Br. 15; see also Reply Br. 4
( contending the Examiner merely notes that all dependent claims are
18
Appeal2017-004825
Application 13/829,007
"conventional" and fails to "demonstrate that the ordered combination was
considered"). These arguments are unpersuasive.
As discussed above, a novel and unobvious claim may be ineligibly
directed to an abstract idea. BSG Tech, 899 F.3d at 1290; Diehr, 450 U.S. at
188-89. Also, the Examiner specifically determines the added limitations
recited in claim 4 do not add significantly more because they are "similar to
the judicial exception identified in Cyberfone, i.e., using categories to
organize, store, and transmit information." Ans. 13-14. Appellant does not
effectively rebut this determination. See Reply Br. 4. We agree with the
Examiner's determination that an ordinarily skilled artisan would have
understood claim 4 (in combination with claims 1 and 3) recites nothing
significantly more than an improvement to "a business or commercial
problem" (i.e. not a technological invention). Ans. 14.
For the reasons discussed above for claim 1, we determine claim 4
does not integrate the recited judicial exception into a particular application
as required, but instead simply recites a particular set of general technology
along with the judicial exception. See, e.g., MPEP § 2106.05(a}-(c), (e}-(h).
Accordingly, we sustain the 35 U.S.C. § 101 rejection of claim 4.
7. Claim 5
Claim 5 depends from claim 3 and recites "send[ing] an application
program for installation on the wireless devices that responded to the
messages requesting the data required for authorization of the wireless
devices to receive messages regarding incentive offers." Claims App 'x 3.
The Examiner determines claim 5 "is directed to the abstract idea [ of
sending] an application program for installation on the wireless device" and
"is similar to the judicial exception identified in SmartGene, i.e., comparing
19
Appeal2017-004825
Application 13/829,007
new and stored information and using rules to identify options." Ans. 15
(also stating that claim S's "problem and solution is not a technical issue and
instead is a business or commercial problem"). Appellant argues the
Examiner errs because the recited application program in claim 5 enables
added functionality for wireless devices and provides a "layer of protection"
to responding devices. App. Br. 15
Appellant's argument is persuasive. We disagree with the Examiner
that this is similar to the abstract idea(s) of comparing new and stored
information and using rules to identify options and is not a technological
limitation. See Ans. 14--16. Claim 5 adds a technological requirement for
sending software ("an application program") for installation on the wireless
device. Claim 5 recites that the application program is for "authorization of
the wireless devices to receive messages regarding incentive offers," which
integrates this technological limitation with the business method limitations
of its parent claims. The Examiner's dismissal of claim 5 's "solution" to a
business problem as being non-technical (Ans. 15) is unpersuasive.
Thus, we do not sustain the 35 U.S.C. § 101 rejection of claim 5.
8. Claims 6 and 7
Claim 6 depends from claim 1 and adds the limitation of "generat[ing]
and send[ing] the messages to wireless devices associated with wireless
device account data stored in the database with reference to identification
data stored in the message regarding an incentive offer received from the
sponsor having sponsor account data stored in the database." Claims App 'x
4. Claim 7 specifies that the identification data of claim 6 is "a wireless
device number, an area code, a zip code, a geographical identifier, a
demographic identifier, [or] a wireless service provider identifier." Id.
20
Appeal2017-004825
Application 13/829,007
Appellant argues claims 6 and 7 are patent-eligible because their limitations
"encourage sponsors to subscribe to a system that overcomes the resistance
to accept incentive offers." App. Br. 15.
This argument is unpersuasive. As the Examiner determines, and we
agree, the limitations of claims 6 and 7 are analogous to those in SmartGene
that our reviewing court determined were directed to unpatentably abstract
ideas of "comparing new and stored information and using rules to identify
options." Ans. 16; see SmartGene, 555 F. App'x at 954--57; see also
Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340
(Fed. Cir. 2017) ("customizing information and presenting it to users based
on particular characteristics" is an abstract idea). Adding one abstract idea
to another does not render a claim non-abstract. RecogniCorp, LLC v.
Nintendo Co., Ltd., 855 F.3d at 1322.
For the reasons discussed above for claim 1, we determine claims 6
and 7 do not integrate the recited judicial exception into a particular
application as required, but instead simply recites a particular set of general
technology along with the judicial exception. See, e.g., MPEP § 2106.05(a}-
(c), (e}-(h). We sustain the 35 U.S.C. § 101 rejection of claims 6 and 7.
9. Claim 8
Claim 8 depends from claim 1 and adds "a communication interface
for each wireless service provider, each communication interface being
configured to enable data communication between the computer and a
billing service platform for the wireless service provider over a point-to-
point communication network." Claims App'x 4. In response to
Appellant's argument that claim 8 recites "structural elements" that the
Examiner failed consider (App. Br. 15), the Examiner determines that claim
21
Appeal2017-004825
Application 13/829,007
8 is does not recite significantly more than claim 1 's directed-to idea
because, in combination with claim 1, claim 8 "does not improve another
technology or technical field, improve the functioning of a computer or
computing system, or include meaningful limitations beyond generally
linking the use of an abstract idea to a particular technological
environment." Ans. 18. Appellant contends the Examiner's analysis ignores
the ordered combination. See Reply Br. 4.
Appellant's argument that the Examiner fails to consider the ordered
combination of limitations is unpersuasive. The Examiner explicitly
analyzes whether claim 8 adds significantly more to the idea of claim 1. See
Ans. 17-18. We note claim 8 requires the wireless service provider to have
an interface to communicate with a billing service platform over a point-to-
point network, but otherwise recites no functional relationship between the
billing service platform and the requirements of claim 1. Appellant does not
rebut the finding that claim 8 recites simply the use of routine, well-known
technology that enables communication with a billing service platform that
does not add significantly more to the directed-to idea of claim 1. See id.
For the reasons discussed above for claim 1, we determine claim 8
does not integrate the recited judicial exception into a particular application
as required, but instead simply recites a particular set of general technology
along with the judicial exception. See, e.g., MPEP § 2106.0S(a}-(c), (e}-(h).
Accordingly, we sustain the 35 U.S.C. § 101 rejection of claim 8.
10. Claims 9-13
Claims 9-13 depend, directly or indirectly, from claim 1, and recite
limitations related to sending incentive offers to "new" wireless devices (i.e.,
devices for which there is no previously stored account data) (claim 9),
22
Appeal2017-004825
Application 13/829,007
sending follow-up offers after a first offer ( claims 10 and 11 ), and sending
counter-offers (claims 12 and 13). Claims App'x 4--7. Appellant argues the
Examiner's rejection (see Final Act. 2-5) fails even to consider the
limitations of these claims. App. Br. 16-17. In response, the Examiner
determines the functionality recited in each of claims 9-13 is directed to an
abstract idea (business method) rather than a technological issue. Ans. 19,
21-23. The Examiner further determines claims 9-13 recite improvements
only to a business method and do not recite any technological limitations
beyond "linking the use of an abstract idea to a particular technological
environment." Id.
Appellant contends the Examiner errs by not demonstrating "that the
ordered combination was considered as possibly meeting the test of a non-
conventional and non-generic arrangement of conventional elements."
Reply Br. 4. Contrary to Appellant's assertion, however, the Examiner
discusses the interrelationship of dependent claims 9-13 with the parent
independent claim 1, demonstrating that the Examiner considered their
limitations as a whole. See Ans. 19, 21-23. We agree with the Examiner
that the limitations of claims 9-13 focus on ( are directed to) business
method functionality, which constitutes an abstract idea, and that otherwise
the claims recite technological components at a very high, generic level
( e.g., "display," "store data ... in the database"). Id. Appellant does not
identify any technological requirement in claims 9-13 that limits these
claims beyond the technological environment of claim 1, which, as
discussed above, does not constitute significantly more than the idea of the
recited business method.
23
Appeal2017-004825
Application 13/829,007
For the reasons discussed above for claim 1, we determine claims 9--
13 do not integrate the recited judicial exception into a particular application
as required, but instead simply recites a particular set of general technology
along with the judicial exception. See, e.g., MPEP § 2106.05(a}-(c), (e}-(h).
Accordingly, we sustain the 35 U.S.C. § 101 rejection of claims 9--13.
11. Claims 14 and 17-19
In the § 101 rejection of claim 14 and its dependent claims, 9 the
Examiner essentially relies on the findings and reasoning from the § 101
rejection of claim 1. See Final Act. 2-5. Appellant argues that, because of
differences between claims 1 and 14, the Examiner errs by "fail[ing] to
clearly and specifically explain" findings and reasons for the rejection of
claims 14, 15, and 17-19. App. Br. 17-18. The Examiner responds by
determining claim 14
is directed to the abstract idea of receiving incentive offers at a
wireless transceiver, generating requests to receive a document
regarding an incentive offer and once the document regarding
an incentive offer has been received by the mobile transceiver,
generate a request for credit to a wireless account identified by
wireless account data and generate messages requesting
wireless account data stored in the database that are associated
with mobile telephone number.
Ans. 23-24 ( determining the "abstract idea is similar to the judicial
exception identified in SmartGene"). The Examiner further determines that
claim 14 recites
additional limitations identified as a wireless device including a
display, memory, wireless transceiver, and processor that
processes the steps of the claim in accordance with
9 See supra note 2 ( explaining that claim 16 as pending in the Final
Rejection corresponds to claim 14 as pending in this Appeal).
24
Appeal2017-004825
Application 13/829,007
programmed instructions, however a review of the claims and
the written description indicates the additional limitations
comprise a generic computing system performing well-
understood and generic computing steps such as
transmitting/receiving, accessing and processing data, and are
not sufficient to transform the judicial exception into a patent
eligible application.
Id. at 24; see also id. at 24--25 (determining that claim 14, like claim 1,
otherwise recites only well understood, generic technological limitations).
Appellant contends that the same reply arguments made for claim 1
apply for claim 14 (i.e., principally, that McRO and BASCOM compel a
different result). For the same reasons discussed above for claim 1, we find
Appellant's arguments unpersuasive of Examiner error for claim 14 (e.g.,
unlike the claims at issue in McRO and BASCOM, claim 14 is not directed to
an improvement in technology, but instead is directed to a business method,
and otherwise includes only generic technological requirements (see McRO,
837 F.3d at 1307---08, 1314--16; BASCOM, 827 F.3d at 1349--52)).
For the reasons discussed above for claim 1, we determine claims 14,
15, and 17-19 2 do not integrate the recited judicial exception into a
particular application as required, but instead simply recites a particular set
of general technology along with the judicial exception. See, e.g., MPEP
§ 2106.05(a}-(c), (e}-(h). Thus, we sustain the§ 101 rejection of claims 14,
15, and 17-19.
B. The 35 US.C. § 102(b) Rejection
Appellant argues error in the § 102(b) rejection of claim 14 because
Bayne fails to disclose the requirement to "generate messages that request
wireless device account data stored in the database that are associated with a
mobile telephone number with which the wireless device is configured and
25
Appeal2017-004825
Application 13/829,007
operate the transceiver to send the messages that request wireless device
account data to the computer communicating over the open network," as
recited. App. Br. 18-19. Specifically, Appellant contends that, although
Bayne discloses sending a telephone number to a call processing system to
enable crediting an appropriate account in a database, "[ n ]othing in Bayne
indicates that the message in which the mobile telephone number is
transmitted requests data associated with the device that is stored in the
database associated with the center." App. Br. 19 (citing Bayne ,r,r 34, 73);
see also Reply Br. 4--5.
Appellant's argument is not commensurate with the scope of the
claim. As the Examiner responds, and we agree, claim 14 does not require a
"message in which the mobile number is transmitted" (App. Br. 19). Ans.
26. The disputed limitation requires, in relevant part, "generating messages
that request wireless account data ... that are associated with the mobile
telephone number." Thus, the generated messages need not include the
telephone number-it is only necessary that the recited association with the
telephone number exist for the wireless device account data requested in the
generated messages. The Examiner finds Bayne discloses such a request,
i.e., one that requests wireless device account data that is associated with a
mobile telephone number. Ans. 26-27 (citing Bayne ,r,r 48, 51, 53). In
reply, Appellant contends Bayne does not teach the recited messages even
under the Examiner's interpretation. Reply Br. 5.
Appellant does not persuade us of Examiner error. It is well
established that prior art references are to be "considered together with the
knowledge of one of ordinary skill in the pertinent art." In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994) (citation omitted). In that regard, "it is
26
Appeal2017-004825
Application 13/829,007
proper to take into account not only specific teachings of the reference but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom." In re Preda, 401 F.2d 825, 826 (CCPA 1968).
As the Court of Appeals for the Federal Circuit explains, for anticipation, the
dispositive question is "whether one skilled in the art would reasonably
understand or infer from a prior art reference that every claim element is
disclosed in that reference." Eli Lilly and Co. v. Los Angeles Biomedical
Res. Inst. at Harbor-UCLA Medical Center, 849 F.3d 1073, 1074--75 (Fed.
Cir. 2017) ( citation omitted).
Here, Bayne discloses that mobile terminals "may also transmit a
unique user identifier ( e.g. the user's mobile identity number ('MIN'[ 10J))
that is re-transmitted or otherwise presented by the receiving person."
Bayne ,r 34 (further explaining that service providers use information such
as the mobile identity number to measure the effectiveness of an advertising
campaign). Bayne also discloses that its call processing system includes a
User Profile database that stores information such as "the types of
advertisements the user may prefer or not want transmitted." Bayne ,r 48;
see also id. ,r 66 ( disclosing that the user selects the advertising preferences).
Ordinarily skilled artisans would have understood the mobile identity
number disclosed in Bayne is a number to identify mobile telephones 11 and,
accordingly, it is a type of mobile telephone number. Thus, Bayne discloses
10 A mobile identity number (MIN), which is a 10-digit number that
uniquely identifies a mobile phone, is part of the IS-95 standard first
released in 1995. See Wikipedia
( en. wikipedia.org/wiki/Mobile_identification_number) and Techopedia
(www.techopedia.com / definition/83 7 8/mobile-identification-number-min)
(both last accessed Jan. 2, 2019).
11 See supra note 9.
27
Appeal2017-004825
Application 13/829,007
that its wireless terminals are associated with mobile telephone numbers.
Such artisans further would have understood that the call processing system
in Bayne will provide a mobile device with the incentive related preference
settings for preferred and/or prohibited advertisements. Bayne ,r,r 48, 64. A
mobile phone's preferences and its phone number are related or connected
(i.e., "associated") through their connection to the particular mobile phone.
Thus, the ordinarily skilled artisan would have understood that Bayne
discloses, in the vernacular of claim 14, "generat[ing] messages that request
wireless device account data" ( e.g., preference settings for preferred or
prohibited advertisements), and that the data is "associated with a mobile
telephone number" (i.e., the MIN).
Accordingly, Appellant does not persuade us of Examiner error, and
we sustain the 35 U.S.C. § 102(b) rejection of claim 14, and also of claims
15 and 17-19, which Appellant does not argue separately (see App. Br. 19).
C. The§ 103 (a) Rejections
1. Issue 1 (First Disputed Limitation)
In the § 103 rejection of claim 1, the Examiner finds Bayne teaches
the disputed limitation of "verify[ing] messages received through the open
network interface are from one of a wireless device associated with wireless
device account data stored in the database, a computer associated with a
sponsor, and a computer associated with a wireless service provider having
data stored in the database," as recited. Final Act. 10 (citing Bayne ,r,r 35,
50-51). Appellant argues the Examiner errs in this finding by "fail[ing] to
identify a computer associated with a sponsor and a computer associated
with a wireless service provider." App. Br. 19 (additionally citing Bayne
28
Appeal2017-004825
Application 13/829,007
Appellant's argument is unpersuasive because it is not commensurate
with the scope of the claim. A claim under examination is given its broadest
reasonable interpretation consistent with the underlying specification. In re
American Acad. of Science Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
In the absence of an express definition of a claim term in the Specification or
a clear disclaimer of scope, the claim term is interpreted as broadly as the
ordinary usage of the term by one of ordinary skill in the art would permit.
In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
As the Examiner responds, and we agree, the first disputed limitation
requires "verify[ing] messages received through the open network interface
are from one of a wireless device associated with wireless device account
data ... , a computer associated with a sponsor, and a computer associated
with a wireless service provider." Ans. 29. In other words, the disputed
limitation is met by verifying receipt of a message from either the recited
wireless device, computer associated with a sponsor, or computer associated
with a wireless service provider. This interpretation is consistent with the
ordinary meanings of the claim terms. Nothing in Appellant's Specification
or the remaining claim limitations contradicts or is otherwise inconsistent
with this interpretation.
As the Examiner finds, and we agree, Bayne' s disclosure of network
communication through the telecommunication system (network) 108 as
shown in Figure 1 teaches verifying messages received through an open
network interface. See Final Act. 9 (also citing Bayne ,r,r 35, 42). We also
agree with the Examiner that Bayne's disclosure of billing database 126a,
incentive tracking database 126b, and user profile databases 126c at the
29
Appeal2017-004825
Application 13/829,007
Mobile Switching Center 106 teaches the recited database "in which
wireless device account data, sponsor account data, and wireless service
provider data are stored." See Final Act. 10 (citing Bayne ,r,r 46, 48). Thus,
Bayne teaches a wireless device 102 is associated with wireless device
account data stored in a database at the Mobile Switching Center 106.
Appellant does not effectively contest these findings from Bayne.
As discussed above, the first disputed limitation requires verifying
messages received from either a wireless device, a sponsor-associated
computer, or a service provider-associated computer. Thus, Bayne teaches
the first disputed limitation because its disclosure of Mobile Switching
Center 106 receiving network communication messages from a subscriber
wireless mobile terminal 102 teaches "verify[ing] messages received
through the open network interface are from ... a wireless device associated
with wireless device account data stored in the database." See Ans. 27-28
(citing Bayne ,r,r 43, 45, 48, 50-51, Fig. 1).
2. Issue 2 (Second Disputed Limitation)
Appellant also argues the Examiner errs in finding Bayne teaches
"generat[ing] and send[ing] messages to the wireless devices associated with
wireless device account data stored in the database in response to receipt of a
message regarding a first incentive offer from a computer associated with
one of the sponsors having sponsor account data stored in the database," as
recited in claim 1. App. Br. 21. This argument is also unpersuasive. The
rejection primarily relies on Colligan, not Bayne, for teaching this second
disputed limitation. See Final Act. 11 ( citing Colligan ,r 21 ).
One cannot show nonobviousness by attacking references individually
when the rejection is based on a combination of references. In re Merck &
30
Appeal2017-004825
Application 13/829,007
Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642
F.2d 413, 425 (CCPA 1981) (explaining the relevant inquiry is whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of those references). Appellant
addresses only the teachings of Bayne and does not rebut the Examiner's
findings for what Colligan, in combination with Bayne, teaches. See App.
Br. and Reply Br. passim. Additionally, we find persuasive the Examiner's
determination that Bayne' s disclosure related to communication with an
HTTP server ( sponsor computer) teaches generating and sending a message
to wireless devices in response to receipt of an incentive offer message, as
recited. See Ans. 29-30 (citing Bayne ,r 50).
3. Issue 3 (Third Disputed Limitations)
Appellant further argues the Examiner errs in relying on the disclosure
of Girard for teaching claim 1 's limitations for "generat[ing] and send[ing] a
debit message ... " and "generat[ing] and send[ing] payment messages ... ,"
as recited. App. Br. 21-22. Appellant specifically contends that, whereas
Girard teaches "a determination of a total charge for providing content and
then determining how to allocate the total charge between various entities,"
claim 1 requires sending a debit message to a payment service for a sponsor
and sending related payment messages to a wireless service provider. App.
Br. 21-22. Appellant contends that in claim 1, "the debit messages and the
payment messages are related to one another," and that this "illustrates the
difference in structure and operation of the claimed invention and the cited
combination, collectively and individually." App. Br. 22.
The Examiner responds that it is the combined teachings of Bayne and
Girard that teaches "allocat[ing] credits and debits via a 'split billing
31
Appeal2017-004825
Application 13/829,007
platform' that remits portions of a total credit or debit amongst entities," as
required by the third disputed limitation. Ans. 30-31 ( citing Bayne ,r 48;
Girard ,r,r 74, 78-80).
Id.
A person of ordinary skill in the art would [have] appreciate[ d]
that while Bayne discloses the tracking and awarding of credits
to mobile device users in return for viewing advertisements, the
disclosure of Girard further discloses the allocation of a credit
or debit amount by means of a business arrangement to multiple
entities, and such an entity could reasonably include a mobile
device user.
Appellant does not persuasively rebut the Examiner's determination
regarding the combined teachings of Bayne and Girard.
4. 35 US.C. § 103(a) Conclusion
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 1.
For the same reasons we sustain the§ 103(a) rejections of claims 2-15 and
17-19, which Appellant does not argue separately (see App. Br. 22).
DECISION
For the above reasons, we-
(a) affirm the Examiner's rejection of claims 1--4, 6-15, and 17-19
under 35 U.S.C. § 101;
(b) reverse the Examiner's rejection of claim 5 under 35 U.S.C. § 101;
(c) affirm the Examiner's rejection of claims 14, 15, and 17-19 under
35 U.S.C. § 102(b); and
( d) affirm the Examiner's rejection of claims 1-15, and 17-19 under
35 U.S.C. § 103(a).
32
Appeal2017-004825
Application 13/829,007
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
33