Frank Bourke

Patent Trials and Appeals Board

Feb 24, 2022

2021004807 (P.T.A.B. Feb. 24, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/142,438 04/29/2016 Frank J. Bourke 00534.0001US04 7765 127289 7590 02/24/2022 Schmeiser, Olsen & Watts, LLP/RO Schmeiser, Olsen & Watts, LLP 22 Century Hill Drive Suite 302 Latham, NY 12110 EXAMINER FERNSTROM, KURT ART UNIT PAPER NUMBER 3715 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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): RO127289@iplawusa.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANK J. BOURKE Appeal 2021-004807 Application 15/142,438 Technology Center 3700 Before BARRY L. GROSSMAN, CARL M. DeFRANCO, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-29. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Frank J. Bourke as the real party in interest. Appeal Br. 3. Appeal 2021-004807 Application 15/142,438 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to a psychotherapeutic intervention for the treatment of post-traumatic stress disorder (“PTSD”) and other trauma reactions. See Spec. ¶ 2. Appellant explains, “[t]he invention described herein departs from previous art in that it is rooted in a neurological mechanism known as reconsolidation blockade and relies upon empirical observation, not abstract theory.” Id. ¶ 8. Appellant further explains that the disclosed method of treatment is “distinct from other PTSD interventions in that clients who complete the intervention typically and spontaneously reappraise the meaning of the memory, find an appropriate context for the memory, gain new perspective about the memory, and reintegrate the traumatic memory, all without specific guidance from the therapist.” Id. ¶ 18. Despite the lack of a requirement for specific guidance from the therapist, the Specification states, “the clinician is needed in order to: 1) guide the client through the intervention process; 2) assess autonomic reactivity at various points in the intervention; and 3) provide a safe means of freeing the client from overwhelming responses should they occur.” Id. ¶ 19. Claims 1, 2, 15, and 16 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A method for patient therapy for the treatment of PTSD comprising the steps of: having a patient guided by a clinician apply the syntax of reconsolidation blockade to the treatment of PTSD; having said clinician identify acceptable clients; having said clinician identify an individual acceptable client and wherein said client has experienced multiple traumas separating multiple traumas into discrete events; framing the intervention and creating rapport; Appeal 2021-004807 Application 15/142,438 3 eliciting and terminating the trauma memory without retraumatizing the client; identifying autonomic arousal by observation; restructuring the emotional experience of the traumatic event; testing the efficacy of the intervention; modifying the subjective structure of representations within the trauma memory. Appeal Br. 26 (Claims App.). EVIDENCE The evidence relied upon by Appellant is: References Helen Shen, Portrait of a Memory, 553 Nature pp. 146-148, (2018). Larry R. Squire, Memory and Brain Systems: 1969-2009, 29( 41) J. Neurosci. pp. 12711-12716 (2009). Declaration of Karim Nader, filed February 6, 2020 Declaration of Daniela Schiller, filed February 6, 2020 REJECTION Claims 1-29 are rejected under 35 U.S.C. § 101 as being directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. OPINION In summary, the Examiner determines that claims 1-29 recite mental processes and methods of organizing human activity that qualify as abstract ideas. Final Act. 2-4; Ans. 3-6. Additionally, the Examiner states, “[t]he claims do not include additional elements that are sufficient to amount to Appeal 2021-004807 Application 15/142,438 4 significantly more than the judicial exception under the factors set forth in MPEP 2106.05 (l)(A).” Final Act. 2. Thus, the Examiner concludes, the claims are patent-ineligible because they are directed to judicial exception without significantly more. See id. Appellant argues that the claimed methods are not directed to an abstract idea because, among other things, the recited methods cannot be carried out in a person’s mind, evidence supports the finding that changes in human memory manifest physically in the brain, the methods are akin to a pharmaceutical intervention, and more than one person is required to practice the methods. See Appeal Br. 10-24. 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. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (internal quotation marks and citation omitted). 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. See Alice, 573 U.S. at 217-18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” Id. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Appeal 2021-004807 Application 15/142,438 5 Concepts determined to be abstract ideas, and, thus, patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594-95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267-68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221 (internal citation omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (alteration in the original) (quoting Mayo, 566 U.S. at 77). In January of 2019, the PTO published revised guidance on the application of § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Memorandum”). Under Step 2A of 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 Appeal 2021-004807 Application 15/142,438 6 organizing human activity such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) §§ 2106.05(a)-(c), (e)-(h) (9th Ed., Rev. 08.2017, 2018)). Only if a claim (1) recites a judicial exception (“Prong 1”) and (2) does not integrate that exception into a practical application (“Prong 2”), do we then look, in Step 2B, to whether the claim: (3) adds a specific limitation beyond the judicial exception that is 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. Claim 1 Step 1 - Statutory Category Claim 1 recites “[a] method for patient therapy for the treatment of PTSD comprising . . . having a patient guided by a clinician apply the syntax of reconsolidation blockade to the treatment of PTSD,” and, therefore is a process, one of the statutory categories for patentable subject matter. Appeal Br. 26 (Claims App.). Step 2A, Prong 1 - Recitation of Judicial Exception The Examiner determines that claim 1 recites (in the Examiner’s words, is “drawn to”) a mental process. Final Act. 2-4. The Examiner also Appeal 2021-004807 Application 15/142,438 7 finds that claim 1 recites a process of managing personal behavior or relationships or interactions between people. Ans. 4. The Examiner concludes that either of these process amounts to the recitation of an abstract idea. See Final Act. 2-4; Ans. 3-5. Claim 1 recites the step of “having a patient guided by a clinician apply the syntax of reconsolidation blockade to the treatment of PTSD.” Appeal Br. 26 (Claims App.). The Specification states, “[r]econsolidation describes the reactivation of long term, otherwise permanent memories, by their evocation in certain contexts.” Spec. ¶ 12. The Specification further explains that when a memory is activated, it becomes subject to change, and the reconsolidation process allows new information to be added to the memory. See id. The patient’s activity in this step is performable solely in the human mind and qualifies as an abstract idea. See Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d. 1314, 1324 (concluding that concept of “anonymous loan shopping” is an abstract idea because it could be “performed by humans without a computer”); In re BRCA1 & BRCA2- Based Hereditary Cancer Test Patent Litig., 774 F.3d 755, 763 (Fed. Cir. 2014) (concluding that concept of “comparing BRCA sequences and determining the existence of alterations” is an “abstract mental process”). The clinician’s interaction with the patient in this step is described in paragraphs 12-13 and 21-34 of the Specification. For example, the clinician asks or invites the patient to state or imagine certain memories or images and then modify those memories or images based on the clinician’s observations. See Spec. ¶¶ 12-13, 21-34. For the purposes of patent eligibility, such an action amounts to a method of organizing human activity falling under the umbrella of abstract ideas. Interval Licensing LLC, v. AOL, Inc., 896 F.3d Appeal 2021-004807 Application 15/142,438 8 1335, 1344-45 (concluding that “[s]tanding alone, the act of providing someone an additional set of information without disrupting the ongoing provision of an initial set of information is an abstract idea,” observing that the district court “pointed to the nontechnical human activity of passing a note to a person who is in the middle of a meeting or conversation as further illustrating the basic, longstanding practice that is the focus of the [patent ineligible] claimed invention.”). Claim 1 recites the step of “having said clinician identify acceptable clients.” Appeal Br. 26 (Claims App.). The Specification discusses how this step is performed under the heading “INCLUSION AND EXCLUSION CRITERIA.” Spec. ¶ 36, see also id. ¶¶ 37-45. The Specification describes selecting clients based on the type of trauma event experienced by the individual, stating, “[i]t is essential that the client’s difficulties are essentially a phobic, instantaneous conditioned response to the narrative of a traumatic event that threatened immanent death or injury to self or others, an element of that narrative, or a stimulus related to the involuntary evocation of the aforesaid traumatic event.” Id. ¶ 38. Thus, the recited identification step amounts to the evaluation and mental processing of information, which is, in the context of Appellant’s Specification, a mental process that qualifies as an abstract idea. Claim 1 next recites “having said clinician identify an individual acceptable client and wherein said client has experienced multiple traumas separating multiple traumas into discrete events.” Appeal Br. 26 (Claims App.); see also Spec. ¶¶ 37-45. Although this step limits the pool of “acceptable” clients, similar to the previous step, this step can be performed Appeal 2021-004807 Application 15/142,438 9 solely in the human mind and amounts to a mental process within the scope of abstract ideas. Next, claim 1 recites “framing the intervention and creating rapport.” Appeal Br. 26 (Claims App.). The Specification describes the framing process as one of explaining to the patient how the process will proceed. See Spec. ¶¶ 53-60. The Specification defines “rapport” as “the establishment of a state of trust or empathy between persons.” Spec. ¶ 48. The Examiner explains, “[r]apport may be established by matching the client’s use of language predicates and their paralinguistic behaviors. Specific techniques may include matching posture, breathing, predicates, voice tone, rate and volume, etc.” Id. ¶ 49. Such an interaction between individuals, which can be described as a “having a conversation,” is a method of organizing human activity that falls within the category of abstract ideas.2 See Interval Licensing, 896 F.3d at 1344-45. Claim 1 next recites, “eliciting and terminating the trauma memory without retraumatizing the client.” Appeal Br. 26 (Claims App.). The Specification indicates that this process involves asking questions of the patient and eliciting a physiological experience of the trauma response. Spec. ¶¶ 64-65. The Specification explains “the practitioner does not need to know the specific content of the presenting problem, and the questions don’t need to be answered verbally; they are only asked in order to elicit the physiological changes, and to verify that these are immediate and intense.” 2 Regarding another claim on appeal, Appellant states, “claim fifteen starts with the steps of the clinician evaluating a client, establishing rapport with client, and discovering the index trauma of said client. Each of these steps involves more than the mental state of the clinician but of a conversation between the clinician and the patient.” Appeal Br. 21 (emphasis added). Appeal 2021-004807 Application 15/142,438 10 Id. ¶ 65. Like the previous step, this step involves making inquiries of the patient, except, in this step, it is unnecessary for the patient to respond verbally, and, therefore, and the activity may not even rise to the level of a “conversation.” This step, like the previous step, amounts to one of the methods of organizing human activity that qualify as an abstract idea. See Interval Licensing, 896 F.3d at 1344-45. Claim 1 next recites “identifying autonomic arousal by observation.” Appeal Br. 26 (Claims App.). Like the step of identifying acceptable clients, this step amounts to a mental process. See Mortg. Grader, Inc., 811 F.3d. at 1324. Next, claim 1 recites, “restructuring the emotional experience of the traumatic event.” Appellant’s Specification describes this process in paragraphs 118-119, which provide the following instructions to the clinician. Invite the client to create a new or novel scenario for the trauma memory in which (despite beginning at the same neutral start): a) they were not injured; b) different choices were made that changed the nature of the incident; c) the event was a movie, play or charade of some kind; or d), the event did not occur. Allow the client to design an alternate scenario that is acceptable to them. Once an acceptable scenario has been designed, have the client imagine going through it, fully present and associated: as if this was the way the event happened. Remind them that this is just a fantasy, and the truth remains the same, but that it will be useful to experience the event in this new way. Thus, this step requires the clinician to provide guidance to the patient as to what mental processes the patient should perform. Consequently, this step Appeal 2021-004807 Application 15/142,438 11 amounts to both a mental process and method of organizing human activity falling within the abstract idea exception. Claim 1 next recites the step of “testing the efficacy of the intervention.” Appeal Br. 26 (Claims App.). The Specification instructs the clinician that, “[i]f the narrative is completed without the signs of autonomic arousal detailed in Table I, the intervention is deemed complete. If a significant level of arousal remains, the clinician must decide whether to repeat the entire procedure from the Movie theater scenario forward, or just a new scenario.” Spec. ¶ 124. Thus, the clinician observes the patient and makes an evaluation of whether to repeat the procedure or not. This step can be performed solely in the clinician’s mind, and, therefore, is a mental process considered to be an abstract idea. Finally, claim 1 recites “modifying the subjective structure of representations within the trauma memory.” Appellant’s Summary of the Claimed Subject Matter indicates that support for this step is found in paragraphs 117-119 of the Specification. See Appeal Br. 2. This portion of the Specification discloses requiring the clinician to provide guidance to the patient as to what mental processes the patient should perform, which we determine, on the clinician’s part, amounts to a method of organizing human activity within the abstract idea exception, and, on the patient’s part, amounts to a mental process. In light of the analysis above, we agree with the Examiner that claim 1 recites both mental processes and certain methods of organizing human activities falling within the abstract idea category of judicial exceptions to eligibility under 35 U.S.C. § 101. Accordingly, the outcome of our analysis Appeal 2021-004807 Application 15/142,438 12 under Step 2A, Prong 1, requires us to proceed to Step 2A, Prong 2. See Memorandum, 84 Fed. Reg. at 54. Step 2A, Prong 2 - Integrated Into a Practical Application In Step 2A, Prong 2, we 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. See Memorandum. 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. See id. Appellant contends, “[t]he claimed process cannot be carried out in a person’s mind. It requires a patient and a therapist to participate in the process for the desired result to be accomplished. All of the steps depend upon communication between those two individuals.” Appeal Br. 11, see also id. at 13, 20-22. Appellant asserts, “[t]he directions of the therapist to the patient to follow those steps, and the observation of the patient by the therapist to determine whether the patient is apparently following the therapist’s directions are not abstract but observably tangible.” Id. at 17. This argument is unavailing because, to be patent-ineligible based on reciting a mental process, it is not necessary for the entirety of the claimed method to be performable in a person’s mind. See Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. at 215 (“a court must first ‘identif[y] the abstract Appeal 2021-004807 Application 15/142,438 13 idea represented in the claim,’ and then determine ‘whether the balance of the claim adds ‘significantly more.’”). Here, claim 1 recites not just one, but multiple abstract ideas. Indeed, we discern no steps in claim 1 that do not recite either a mental process or method of organizing human activity. Appellant next argues that claim 1 creates a neurophysical change in structure. See Appeal Br. 11-13, 17, 20; Reply Br. 4. In this regard, Appellant states: At the heart of the Office’s argument is the unscientific belief that specific human memories don’t have specific physical manifestations. This view is without scientific merit and is unsupported by the Office. See for instance the article in Nature at httns://www.nature.com/artciles/d41586-018-00107-4. A pdf copy of which is included in the appendix along with a journal article from The Journal of NeuroScience. In each article, the scientific fact of the recognition of a specific neurological structure of a memory is understood as the underlying reality of brain function, controverting the Office’s rationale for the rejection. Appeal Br. 12 (emphasis added). Aside from the articles discussed in the quote above, Appellant also provides two evidentiary declarations stating “[a] human memory has a unique physical manifestation in the human brain” and “[t]he weight of present scientific evidence holds that memory is instantiated as a set of physical connections between neurons and groups of neurons, and that view is beyond reasonable doubt to those with expertise in the field of neurophysiology.”3 3 Declaration of Daniela Schiller, Ph.D ¶¶ 3.1, 3.3 and Declaration of Professor Karim Nader ¶¶ 3.1, 3.3. Aside from the personal information of the Declarants, the content of the Declarations is identical. Appeal 2021-004807 Application 15/142,438 14 In a related argument, Appellant compares the claimed method to the use of pharmaceuticals and the changes created by their application. Appellant asserts: One is left with the odd result that the Office would grant a patent to a pharmaceutical intervention on a PTSD patient and assume the drug had transformed the patient, but deny coverage for the claimed methods because the Office finds without any support that the patient hasn’t been transformed by the claimed methods. This, despite the fact that in the pharmaceutical intervention the patient’s transformation would be adjudged by the patient’s behavior before and after treatment. Appeal Br. 18. Appellant summarizes the difference between the application of pharmaceuticals and the recited method, stating: The problem that the Office has is that the tools the inventor uses here are human language, human perception, and methodology. Language, observation and methodology are far more precise in their ability to alter human behavior and physical memory structure than the blunt tool of pharmacopeia, certainly at least in regard to side effects. Id. (emphasis added). Appellant’s argument does not apprise us of Examiner error because, to the extent a change in memories results in a change in neurophysical structure, this change does not qualify as a transformation for the purposes of patent-eligibility. Under Appellant’s proposed rule, anything that changes a memory (including “human language, human perception, and methodology”) would amount to a transformation for the purposes of patent eligibility. Such a rule would negate the “mental process” exception because virtually every deliberative process occurring in the human mind results in a change in memory (whether is intended to create a memory or Appeal 2021-004807 Application 15/142,438 15 merely incidentally creates a memory as an unintentional consequence of the mental process). See Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (“we agree with the district court that the claims of the asserted patents are drawn to the abstract idea of 1) collecting data, 2) recognizing certain data within the collected data set, and 3) storing that recognized data in a memory. The concept of data collection, recognition, and storage is undisputedly well- known. Indeed, humans have always performed these functions.”). Apparently to traverse a determination that claim 1 is directed to an abstract idea, Appellant contends that another section of the patent statute (35 U.S.C.) nullifies the judicial exception doctrine for claims like claim 1. Specifically, Appellant asserts: Medical treatments have already been recognized and treated separately they have in section 287 d of the Patent code which limits the liability of medical practitioners from using a method that is patented. This aspect of the patent law addresses the Supreme Court’s reasoning for creating a judicial exception to patentability of method claims. Since the Supreme Court relies upon this justification for creating an exception and Congress has specifically addressed the question, there is no reason to apply the judicial exception. Section 2867 d makes those who are licensed to practice medical methodologies exempt from findings of patent infringement. Appeal Br. 21 (emphasis added). Appellant also contends, “[t]he Patent Office in formulating rules should put in abeyance contemporary subject matter rejections until it has fully reviewed the beginning of subject matter rejections under Supreme Court common law analysis that started in [O’Reilly v. Morse, 56 U.S. 62 (1853)].” Reply Br. 5. Appeal 2021-004807 Application 15/142,438 16 Appellant further contends: There is nothing in the statutes or in Supreme Court precedent that justifies rejection of this method without citation or analysis, and it shows the vague emptiness of Supreme Court policy making. In this age where the observation that laws should be made by people who can identify with those the laws are written to protect, one can think of no group of people less qualified than the Supreme Court to make policy about patent law subject matter protection. Nevertheless, there is no effective explanation or justification of the present rejection. What originally started as a questionable application of an English common law rule, which did not affect the ruling in the case, a finding of liability has morphed far beyond its original intent and effect. Reply Br. 5. This assertion by Appellant is followed by further general discussion of policy questions regarding patent subject matter eligibility. See id. at 5-6. The Board’s role in an appeal is to, “on written appeal of an applicant, review adverse decisions of examiners upon applications for patents.” 35 U.S.C. § 6(b) (2006). None of Appellant’s policy discussion noted above identifies Examiner error in the rejection of claim 1. Nor does it provide any persuasive reasoning to hold in abeyance subject matter eligibility rejections or depart from Supreme Court precedent (or even provide reasoning that the Board is authorized to do so). Claim 1 does not improve the functioning of a computer itself or another technology. To the extent the method recited in claim 1 provides a treatment for a medical condition, it does so solely as a series of abstract ideas without the application of additional non-abstract elements. As discussed above, the kind of “transformation” of a patient’s memory that is intended to occur as a result of the method recited in claim 1 does not render Appeal 2021-004807 Application 15/142,438 17 the recited abstract idea patent eligible. Accordingly, claim 1 does not integrate the recited judicial exception into a practical application. Thus, we proceed to step 2B. Step 2B - Well-Understood, Routine, Conventional Activity In accordance with Alice, we now “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217. Appellant contends: The limitations at issue here provide significantly more than any ineligible concept that may be involved, and the Office Action provides no evidence or support to suggest that the claimed elements individually or considered as a whole are conventional or routine. Indeed, while the Office Action asserts that there are no “additional elements,” it also indicates that the claims are allowable over the prior art. Appeal Br. 16; see also Reply Br. 3 (“The process being claimed is not known, the application of the novel process to post traumatic stress disorder patients is new, and the success to those patients is a significant breakthrough.”) Appellant’s argument on this point is unavailing because “[it is not] enough for subject-matter eligibility that claimed techniques be novel and nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102 and 103.” SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (2018). “We may assume that the techniques claimed are [g]roundbreaking, innovative, or even brilliant,’ but that is not enough for eligibility.” Id. (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013)). Appeal 2021-004807 Application 15/142,438 18 Claim 1 is directed to patent-ineligible subject matter without significantly more because any innovation recited is an innovation in ineligible subject matter. Specifically, claim 1 recites a series of mental processes and certain methods of organizing human activity that, despite their alleged novelty, do not extend beyond the recitation of multiple abstract ideas. Aside from the above-noted abstract ideas themselves, the “conversation” between the clinician and the patient in the method of claim 1 merely involves a dialog, and we see nothing about the method by which the clinician and patient communicate that is not well-understood, routine, conventional activity. We sustain the Examiner’s rejection of claim 1. Claims 2-29 Claim 24 Appellant makes a brief additional argument specifically in support of the patent eligibility of claim 2, stating: The claim calls for the clinician to guide the client through the process of remembering the traumatizing memory in an imaginal setting and monitoring the autonomic arousal of the client through the memory restructuring of the client. This is not abstract but is particular to the experiences of the client. Appeal Br. 14. Similar to the discussion above regarding claim 1, the interactions between the clinician and the patient amount to a method of organizing 4 The heading for this argument is “Claim 10,” but, in this portion of the Appeal Brief, Appellant quotes all of claim 2 and does not discuss the specific language of claim 10. Appeal Br. 13-14. Accordingly, we understand Appellant’s heading to include a typographical error, and this argument pertains to claim 2. Appeal 2021-004807 Application 15/142,438 19 human activity within the realm of abstract ideas. Accordingly, Appellant’s conclusory assertion regarding claim 2 does not identify Examiner error, and we sustain the rejection of claim 2 as being directed to patent-ineligible subject matter. Claims 3-14 and 17-29 Appellant makes no separate arguments in support of the patent eligibility of claims 3-14 and 17-29, which depend directly or indirectly from claim 2. Accordingly, these claims fall with claim 2. Claim 15 Under the heading “SUMMARY,” but with no separate heading5 identifying claim 15 or arguments in support of it, Appellant briefly refers to “claim fifteen” and asserts that its recited method requires a conversation between a clinician and patient and that modifying a patient’s memory results in a physical change. See Appeal Br. 21. For the same reasons discussed above regarding claim 1, both of these activities are abstract ideas in the sense of patent eligibility, and we sustain the Examiner’s rejection of claim 15. Claim 166 Regarding independent claim 16, Appellant asserts: 5 “Under each heading identifying the ground of rejection being contested, any claim(s) argued separately or as a subgroup shall be argued under a separate subheading that identifies the claim(s) by number.” 37 CFR 41.37(c)(iv). 6 The heading for this argument is “Claim 17,” but, in this portion of the Appeal Brief, Appellant quotes all of claim 16 and does not discuss the specific language of claim 17. Appeal Br. 13-14. Accordingly, we understand Appellant’s heading to include a typographical error, and this argument pertains to claim 16. Appeal 2021-004807 Application 15/142,438 20 Claim 1[6] adds in further specific signals of client distress as criteria to determine the degree to which the therapy has been successful in restructuring the neurophysical memories of index traumas born by the client. Neither the clinician or the client can accomplish these steps alone, and the physical manifestations of distress are specific embodiments of the client’s traumatic memories and are same types of proof of behaviors that are used to establish the effectiveness of pharmaceutical interventions. Appeal Br. 14-15 (emphasis added). Appellant’s arguments contesting the rejection of claim 16 are merely restatements of the arguments discussed above asserting that (i) the method causes a neurophysical change, which is a physical transformation, and (ii) two people are needed to practice the method, and, therefore, the claim does not recite a mental process. For the same reasons discussed above, these arguments do not apprise us of Examiner error, and we sustain the rejection of claim 16. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-29 101 Eligibility 1-29 Appeal 2021-004807 Application 15/142,438 21 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED