Gary Gilchrist et al.

Patent Trials and Appeals Board

Dec 23, 2019

11311758 - (D) (P.T.A.B. Dec. 23, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/311,758 12/19/2005 Gary Gilchrist B163/ADBS.209192 9211
121363 7590 12/23/2019
Shook, Hardy & Bacon L.L.P.
(Adobe Inc.)
Intellectual Property Department
2555 Grand Blvd
Kansas City, MO 64108
EXAMINER
ZELASKIEWICZ, CHRYSTINA E
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
12/23/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
IPRCDKT@SHB.COM
docketing.shb@clarivate.com
seaton@shb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GARY GILCHRIST and
SANGAMESWARAN VISWANATHAN
____________

Appeal 2018-002427
Application 11/311,7581
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 2, 10, 17, 29–33, 35–38, and 40–46.
We have jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
ADOBE SYSTEMS INCORPORATED. Appeal Br. 3.
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THE INVENTION
The Appellant states, “[t]he subject matter hereof relates generally to
the field of digital rights management, and more particularly to
authentication in digital rights management.” Spec. ¶ 1.
Claim 2, reproduced below, is representative of the subject matter on
appeal.
2. A system comprising:
a policy server device to support a plurality of available
authentication schemes for controlling access to digital content;
and
an interface to receive a selection of a set of
authentication schemes from the plurality of available
authentication schemes to be added to a digital rights
management policy for a unit of digital content, the set of
authentication schemes comprising at least a first authentication
scheme corresponding to a first set of permissions for the unit
of digital content and a second authentication scheme
corresponding to a second set of permissions for the unit of
digital content,
the policy server device further to
associate the set of authentication schemes in the digital
rights management policy with the unit of digital content,
receive an authentication request, the authentication
request indicating a user is seeking access to the unit of digital
content through a reader application remote from the policy
server device,
authenticate the user in response to the request using at
least one of the authentication schemes within the set of
authentication schemes in the digital rights management policy
for the unit of digital content, and
based on the at least one of the authentication schemes
used to authenticate the user in association with the unit of
digital content, authorize a set of permissions, wherein the first
set of permissions for the unit of digital content is authorized
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when the first authentication scheme is used to authenticate the
user and the second set of permissions for the unit of digital
content is authorized when the second authentication scheme is
used to authenticate the user.

REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Name Reference Date
Igarashi US 2002/0080397 A1 June 27, 2002
Chiviendacz US 2006/0156385 A1 July 13, 2006

The following rejections are before us for review.
Claims 2, 10, 17, 29–33, 35–38, and 40–46 are rejected under
35 U.S.C. § 101 as being patent ineligible.
Claims 2, 10, 17, 29–33, 35–38, and 40–46 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Chiviendacz in view of
Igarashi.

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FINDINGS OF FACT
We adopt the Examiner’s findings as set forth on pages 2–6 in the
Final Office Action2 and on pages 3–10 in the Examiner’s Answer,
concerning only the 35 U.S.C. § 101 rejection.

ANALYSIS
35 U.S.C. § 101 REJECTIONS
We will affirm the rejection of claims 2, 10, 17, 29–33, 35–38, and
40–46 under 35 U.S.C. § 101.
The Appellant argues claims 2, 10, 17, 29–33, 35–38, and 40–46 as a
group. (Appeal Br. 7). We select claim 2 as the representative claim for this
group, and so the remaining claims stand or fall with claim 2. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2015).
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).
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. 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.”

2 All references to the Final Office Action refer to the Final Office Action
mailed on August 18, 2016.
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See 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.”).
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))).
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 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
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
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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 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 (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. (alterations in original) (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. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the 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 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)).
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:
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(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 Guidance, 84 Fed Reg. at 54, 56.
The U.S. Court of Appeals for the Federal Circuit has explained that
“the ‘directed to’ inquiry applies a stage-one filter to claims, considered in
light of the [S]pecification, based on whether ‘their character as a whole is
directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v.
Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether
the focus of the claims is on a specific improvement in relevant technology
or on a process that itself qualifies as an “abstract idea” for which computers
are invoked merely as a tool. See Enfish, 822 F.3d at 1335–36.
In so doing, as indicated above, we apply a “directed to” two prong
test: 1) evaluate whether the claim recites a judicial exception, and 2) if the
claim recites a judicial exception, evaluate whether the claim “appl[ies],
rel[ies] on, or use[s] the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” Guidance,
84 Fed. Reg. at 53; see also MPEP § 2106.05(a)–(c), (e)–(h).
The Specification states:
DRM usually refers to the increasing use of similar measures
for artistic and literary works, or copyrightable content in
general. Beyond the existing legal restrictions which copyright
law imposes on the owner of the physical copy of a work, most
DRM schemes can and do enforce additional restrictions at the
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sole discretion of the media distributor (which may or may not
be the same entity as the copyright holder).
Specification ¶ 6.
DRM vendors and publishers coined the term digital rights
management to refer to various types of measures to control
access to digital rights, as for example discussed herein, but not
limited to those measures discussed herein. DRM may be
thought of as a variant of mandatory access control wherein a
central policy set by an administrator is enforced by a computer
system.
Specification ¶ 7.
Understood in light of the Specification, claim 2, recites in pertinent
part, abstractions of:
. . . an plurality of available authentication schemes for
controlling access to . . . content; and . . . receive a selection of
a set of authentication schemes from the plurality of available
authentication schemes to be added to a . . . rights management
policy for a unit of . . . content, the set of authentication
schemes comprising at least a first authentication scheme
corresponding to a first set of permissions for the unit of . . .
content and a second authentication scheme corresponding to a
second set of permissions for the unit of . . . content, . . .
associate the set of authentication schemes m the . . . rights
management policy with the unit of . . . content, receive an
authentication request, the authentication request indicating a
user is seeking access to the unit of . . . content . . . ,
authenticate the user in response to the request using at least
one of the authentication schemes within the set of
authentication schemes in the . . . rights management policy for
the unit of . . . content, and based on the at least one of the
authentication schemes used to authenticate the user in
association with the unit of . . . content, authorize a set of
permissions, wherein the first set of permissions for the unit of
. . . content is authorized when the first authentication scheme is
used to authenticate the user and the second set of permissions
for the unit of . . . content is authorized when the second
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authentication scheme is used to authenticate the user.
Accordingly, the Examiner found that the claims are directed to “an abstract
idea of authenticating a user for access to digital content wherein a first set
of permissions is granted when a first authentication scheme is used and a
second set of permissions is granted when a second authentication scheme is
used, which is an idea of itself and a certain method of organizing human
activity.” (Final Act. 3).
Consistent with the Examiner’s finding and the intrinsic evidence
noted above, we find that claim 2 recites a mental process for authenticating
access using a rules based permissions scheme. This is because claim 2
recites, e.g., “a plurality of available authentication schemes for controlling
access to . . . content,” “receive a selection of a set of authentication schemes
from the plurality of available authentication schemes to be added to a . . .
rights management policy for a unit of . . . content,” and “authenticate the
user in response to the request using at least one of the authentication
schemes within the set of authentication schemes in the . . . rights
management policy for the unit of . . . content.” A rules based
authentication process for access to a protected content unit such as this,
constitutes evaluation and/or judgement, a patent ineligible mental process.
See Guidance, 84 Fed. Reg. at 52 (citing Mayo, 566 U.S. at 71).
In addition, the step of “based on the at least one of the authentication
schemes used to authenticate the user in association with the unit of . . .
content, authorize a set of permissions,” recites a permissions based license
which is a basic element of a commercial or legal interaction, which is also a
certain form of a method of organizing human activity–a judicial exception
that falls within the purview of the abstract ideas articulated in the recent
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Guidance. Guidance, 84 Fed. Reg. at 52. The patent-ineligible end of the
spectrum includes commercial and legal interactions. buySAFE, Inc. v.
Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014). This finding is also
consistent with the finding made by the Examiner and the intrinsic evidence
from the Specification.
Turning to the second prong of the “directed to” test, claim 2 only
generically requires “a policy server device,” and “an interface.” These
components are described in the Specification at a high level of generality.
See Spec. ¶¶ 16–18, and Fig. 1. We fail to see how the generic recitations of
these most basic computer components and/or of a system so integrates the
judicial exception as to “impose[] a meaningful limit on the judicial
exception, such that the claim is more than a drafting effort designed to
monopolize the judicial exception.” Guidance, 84 Fed. Reg. at 53. We also
find no indication in the Specification that the claimed invention effects a
transformation or reduction of a particular article to a different state or thing.
Thus, we find that the claim 2 recites the judicial exceptions of a
mental process and/or a commercial or legal transaction that are not
integrated into a practical application.
That the claim does not preempt all forms of the abstraction or may be
limited to content accessibility, does not make it any less abstract. See OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015)
(“And that 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.”).
Turning to the second step of the Alice analysis, because we find that
claim 2 is directed to abstract ideas/judicial exceptions, the claim must
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include an “inventive concept” in order to be patent-eligible, i.e., there must
be an element or combination of elements sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative Servs., 566 U.S. at
72–73).
Concerning this step the Examiner found the following:

When considering all the claim elements both
individually and as an ordered combination, Examiner finds
that the claim does not amount to significantly more than the
exception. The claim limitations do not include additional
elements that are sufficient to amount to significantly more than
the judicial exception because the claim limitations simply
describe the abstract idea.
Final Act. 4.
We agree with the Examiner. “[T]he relevant question is whether the
claims here do more than simply instruct the practitioner to implement the
abstract idea . . . on a generic computer.” Alice, 573 U.S. at 225. They do
not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to receive, associate, authenticate and apply decision criteria to
data amounts to electronic data query and retrieval—one of the most basic
functions of a computer. All of these computer functions are well-
understood, routine, conventional activities previously known to the
industry. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016); see also In re Katz Interactive Call Processing Patent
Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower
construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those
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functions can be achieved by any general purpose computer without special
programming”). In short, each step does no more than require a generic
computer to perform generic computer functions. The claim does not, for
example, purport to improve the functioning of the computer itself. In
addition, as we stated above, the claim does not effect an improvement in
any other technology or technical field. The Specification spells out
different generic equipment and parameters that might be applied using this
concept and the particular steps such conventional processing would entail
based on the concept of information access under different scenarios (see,
e.g., See Spec. ¶¶ 16–18, and Fig. 1). Thus, claim 2 at issue amounts to
nothing significantly more than instructions to apply the abstract idea using
some unspecified, generic computer. Under our precedents, that is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 225–226.
Considered as an ordered combination, the computer components of
Appellant’s claim 2 adds nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis (receive,
associate, authenticate, and apply decision criteria to data) and storing is
equally generic and conventional or otherwise held to be abstract. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(holding that sequence of data retrieval, analysis, modification, generation,
display, and transmission was abstract), Two-Way Media Ltd. v. Comcast
Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding
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sequence of processing, routing, controlling, and monitoring was abstract).
The ordering of the steps is, therefore, ordinary and conventional.
We have reviewed all the arguments that Appellant has submitted
concerning the patent eligibility of the claims before us that stand rejected
under 35 U.S.C. § 101. (Appeal Br. 7–21, Reply Br. 2–8). We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
Appellant argues: “Rather than characterizing each claim feature as
different abstract ideas, the Examiner must consider whether, on [its] face,
the claim, when considered as a whole, is directed to an abstract idea.”
(Appeal Br. 10).
Although we agree with Appellant that the claim must be read, as a
whole, we nevertheless find, on balance, that claim 2 is directed to at least
one of a commercial transaction and/or a mental process as specified above
with respect to our “directed to” findings. As found supra, claim 2 only
includes the following generically recited device limitations: “a policy server
device,” and “an interface.” What remains in the claim after disregarding
these device limitations, is abstractions, e.g., a commercial or legal
transaction and/or a mental process, the reasoning for each has been
established above in our “directed to” analysis. “[A] claim for a new
abstract idea is still an abstract idea.” Synopsys, Inc. v. Mentor Graphics
Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (citing Mayo, 566 U.S. at 90).
Citing to Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016), Appellant argues, “[h]ere, the pending claims are similarly directed to
a specific implementation of a solution to a problem in the software arts and,
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thus, are not directed to an abstract idea. Specifically, the claims address a
problem with electronically controlling access to and use of digital content.”
(Appeal Br. 12). We are unpersuaded by the Appellant’s argument that its
claims are directed to an improvement in computer technology or even
software arts like that of claim 17 in Enfish, and therefore are patent eligible.
In Enfish, the invention at issue was directed at a wholly new type of logical
model for a computer database: a self-referential table that allowed the
computer to store many different types of data in a single table and index
that data by column and row information. Enfish, 822 F.3d at 1330–32. In
finding the claims “not directed to an abstract idea,” but “to a specific
improvement to the way computers operate,” the Federal Circuit noted that
“the claims are not simply directed to any form of storing tabular data, but
instead are specifically directed to a self-referential table for a computer
database.” Enfish, 822 F.3d at 1336–37 (emphasis in original). We find
nothing in the claims before us arising to this level of technical improvement
in the claimed “a policy server device,” and “an interface.” Instead, we find
the claims are focused on authorizing user access to a protected content unit.
Claim 2 simply recites functional results to be achieved by generic devices.
See, e.g., Content Extraction and Transmission LLC v. Wells Fargo Bank,
Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014).
Appellant maintains the claims cover a solution to a problem in the
software arts without providing evidence that they are improvements in the
computer as contrasted with a rules based mental permission process. (See
Appeal Br. 12–13). Instead, Appellant appears to be relying on attorney
argument alone. At best, the Specification describes only a desired result
without a written description of the means by which the result is achieved,
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e.g., “all requested authentication schemes 360 have equal priority and the
reader application 140 is free to choose the most appropriate scheme.”
Specification ¶ 25. Hence, even the asserted improvement is, at best, an
improvement to the abstract idea. “No matter how much of an advance in
the . . . field the claims recite, the advance lies entirely in the realm of
abstract ideas, with no plausibly alleged innovation in the non-abstract
application realm.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163
(Fed. Cir. 2018). Although machine based entities are by definition in some
sense technological, their use has become so notoriously settled that merely
invoking them is no more than abstract conceptual advice to use well known
technology for its intended purpose. See In re TLI Commc’ns LLC Pat.
Litig., 823 F.3d 607, 612–13 (Fed. Cir. 2016) (Using a generic telephone for
its intended purpose was a well–established “basic concept” sufficient to fall
under Alice step 1.).
Citing to BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d
1341, 1350 (Fed. Cir. 2016), Appellant asserts, “an inventive concept can be
found in the non-conventional and non-generic arrangement of known,
conventional pieces.” (Appeal Br. 15). But, Appellant’s reliance on
BASCOM is misplaced. In BASCOM, the Federal Circuit determined that
the claimed installation of a filtering tool at a specific location, remote from
the end-users with customizable filtering features specific to each end user,
provided an inventive concept in that it gave the filtering tool both the
benefits of a filter on a local computer and the benefits of a filter on the ISP
server. BASCOM, 827 F.3d at 1350. The court, thus, held that the second
step of the Mayo/Alice framework was satisfied because the claimed
invention “represents a ‘software-based invention[ ] that improve[s] the
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performance of the computer system itself.’” BASCOM, 827 F.3d at 1351
(stating that like DDR Holdings, where the patent “claimed a technical
solution to a problem unique to the Internet,” the patent in BASCOM claimed
a “technology-based solution . . . to filter content on the Internet that
overcomes existing problems with other Internet filtering systems . . .
making it more dynamic and efficient”) (internal citations omitted).
Here, Appellant does not identify, and we do not find, any
improvement to computer technology analogous to the ordered combination
described in BASCOM or any additional element or elements recited in
claim 2 that yield an improvement in the functioning of a computer, or an
improvement to another technology or technical field. Instead, Appellant
again appears to be relying on attorney argument alone. To the extent
Appellant is arguing that the generically recited “a policy server device,”
and “an interface” are additional elements constituting an inventive concept,
such features cannot constitute the “inventive concept.” “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 221.
We further fail to see the similarities asserted by Appellant (Appeal
Br. 14–15) between the claims on appeal here and those adjudicated in DDR
Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245 (Fed. Cir. 2014). In
DDR Holdings, the court evaluated the eligibility of claims “address[ing]
the problem of retaining website visitors that, if adhering to the routine,
conventional functioning of Internet hyperlink protocol, would be
instantly transported away from a host’s website after ‘clicking’ on an
advertisement and activating a hyperlink.” DDR Holdings, 773 F.3d at
1257. There, the court found that the claims were patent eligible because
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they transformed the manner in which a hyperlink typically functions to
resolve a problem that had no “pre-Internet analog.” DDR Holdings,
773 F.3d at 1258. In contrast, the problem to be resolved in the case on
appeal here is addressing “a security risk and a threat to the value of
copyrighted material contained in the media.” Spec. ¶ 6. This is a problem
related to an interaction between parties to a commercial transaction, and not
to an innovation in technology, such as an improvement in hyperlink
functions.
Appellant lists various claim limitations (Appeal Br. 17, 20) as
examples of such improvements without providing evidence that they are
improvements in the computer as contrasted with commercial interactions.
Specifically Appellant argues,
the policy server device controls access to the digital content by
associating a unit of digital content with a set of authentication
schemes in a digital rights management policy that includes a
first authentication scheme for authorizing a first set of
permissions and a second authentication scheme for authorizing
a second set of permissions and authorizing permissions in
accordance with whether the first authentication scheme or
second authentication scheme is used.

(Appeal Br. 18).
We disagree with Appellant because Appellant’s broadly claimed
sequence of information analysis and output (receive, associate, authenticate,
and apply decision criteria to data), which focuses on the result rather than
the technical details of its implementation, is generic and conventional and is
similar to language otherwise held to be abstract (see Ultramercial, Inc.,
772 F.3d at 715 (sequence of receiving, selecting, offering for exchange,
display, allowing access, and receiving payment recited an abstraction)).
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Appellant also argues, “[t]hese features [listed limitations of the
independent claims] do not appear in any widely known industry references,
standards, or other publications, and the Office has not provided any
evidence supporting the contrary.” (Appeal Br. 20).
First, “[t]he ‘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.” Diamond v. Diehr, 450 U.S. 175, 188–89 (1981). Also, the
Federal Circuit in Berkheimer v. HP, Inc., 881 F.3d 1360, 1368 (Fed. Cir.
2018) made clear that “not every § 101 determination contains genuine
disputes over the underlying facts material to the § 101 inquiry.” In fact, the
Federal Circuit in Berkheimer did not require evidentiary support for
independent claim 1 because “[t]he limitations [of claim 1] amount to no
more than performing the abstract idea of parsing and comparing data with
conventional computer components.” Berkheimer, 881 F.3d at 1370.
Appellant’s other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-
related guidance issued prior to the Ninth Edition, R–08.2017, of the MPEP
(published Jan. 2018) should not be relied upon.”))).
Accordingly, because all claims stand or fall with representative
claim 2, and are directed to an abstract idea and do not present an “inventive
concept,” we sustain the Examiner's determination that they are directed to
ineligible subject matter under 35 U.S.C. § 101. Cf LendingTree, LLC v.
Zillow, Inc., 656 F. App’x 991, 997 (Fed. Cir. 2016) (“We have considered
all of Lending Tree's remaining arguments and have found them
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unpersuasive. Accordingly, because the asserted claims of the patents in suit
are directed to an abstract idea and do not present an ‘inventive concept,’ we
hold that they are directed to ineligible subject matter under 35 U.S.C.
§ 101.”).
For the reasons identified above, we determine there are no
deficiencies in the Examiner’s prima facie case of patent ineligibility of the
rejected claims. Therefore, we will sustain the Examiner’s § 101 rejection
of claims 2, 10, 17, 29–33, 35–38, and 40–46.

35 U.S.C. § 103(a) REJECTIONS
Claims 2, 10, 17, 29–33, 35–38, and 40–46 were rejected under
35 U.S.C. § 103(a) as being unpatentable over Chiviendacz in view of
Igarashi.
Each of independent claims 2, 10, and 41 requires, in one form or
another, “the set of authentication schemes comprising at least a first
authentication scheme corresponding to a first set of permissions for the unit
of digital content and a second authentication scheme corresponding to a
second set of permissions for the unit of digital content.” Appeal Br. 29–30,
33.
The Examiner found, concerning these limitations, that Igarashi
discloses, “the set of authentication schemes comprising at least a first
authentication scheme (first authentication code, see [0080]) corresponding
to a first set of permissions (peruse/access, see [0080]) for the unit of digital
content (image data, see [0080]) and a second authentication scheme (second
authentication code, see [0082-0083]) corresponding to a second set of
permissions (moving/copying, see [0083]) for the unit of digital content.”
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(Final Act. 8).
Appellant argues the following:
The Examiner suggests that Igarashi’s disclosure of using the
first and second codes to first allow a user to peruse reduced
images and then to authorize use of additional services teaches
the claimed first authentication scheme and the second
authentication scheme. The first and second authentication
codes in Igarashi, however, are the same authentication scheme:
a combination of an authentication code and a password. What
is actually entered by the user when utilizing the code-and-
password authentication scheme will determine the permissions
granted, such as viewing reduced images or use of additional
services. Accordingly, Igarashi merely teaches use of a single
authentication scheme with the scheme having different
substance (different codes and passwords) in different instances
to provide different permissions. Using the same type of
authentication scheme for different permissions fails to provide
different levels of security that may be utilized with different
authentication schemes. Accordingly, Igarashi does not teach a
first authentication scheme corresponding to a first set of
permissions for a unit of digital content and a second
authentication scheme corresponding to a second set of
permissions for the unit of digital content, as recited by the
claims.
(Appeal Br. 26–27).
We agree with Appellant. According to the Specification at
paragraph 16, “[a]n authentication scheme may employ any technology
accepted by a policy server 110 as a means to authenticate the identity of an
end user.” “The reader application 140 may support [] different
authentication schemes using, for example but not by way of limitation,
biometric devices, Kerboros tickets, tokens, or passwords. Biometric
authentication may include fingerprint identification or retinal scan
identification.” Specification ¶ 17. As such, it is clear from the
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21

Specification each scheme constitutes a different technology, i.e., token
versus password. At best, Igarashi discloses, “enter[ing] the above-
mentioned new authentication code and the password.” Igarashi ¶ 83. But,
both a code and password do not constitute respective first and second
permissions as required by the independent claims. Therefore, we will not
sustain the Examiner’s obviousness rejection of independent claims 2, 10,
and 41.
Because claims 17, 29–33, 35–38, 40, 42–46 depend from one of
claims 2, 10, and 41, and because we cannot sustain the Examiner’s
obviousness rejection of claims 2, 10, and 41, the Examiner’s obviousness
rejection of these dependent claims likewise cannot be sustained.

CONCLUSION
We conclude the Examiner did not err in rejecting claims 2, 10, 17,
29–33, 35–38, and 40–46 under 35 U.S.C. § 101.
We conclude the Examiner erred in rejecting claims 2, 10, 17, 29–33,
35–38, and 40–46 under 35 U.S.C. § 103.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed.
See 37 C.F.R. § 41.50(a)(1).

In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
2, 10, 17, 29–
33, 35–38,
101 Eligibility 2, 10, 17,
29–33, 35–

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Application 11,311,758

22

40–46 38, 40–46
2, 10, 17, 29–
33, 35–38,
40–46
103 Chiviendacz,
Igarashi
2, 10, 17,
29–33, 35–
38, 40–46
Overall
Outcome
2, 10, 17,
29–33, 35–
38, 40–46

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED