Google Inc.Download PDFPatent Trials and Appeals BoardMar 2, 20212020003032 (P.T.A.B. Mar. 2, 2021) Copy Citation 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. 14/879,714 10/09/2015 Shi Zhong 098981-4107 2788 10575 7590 03/02/2021 FOLEY & LARDNER LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 EXAMINER WHITAKER, JONATHAN J ART UNIT PAPER NUMBER 3622 NOTIFICATION DATE DELIVERY MODE 03/02/2021 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): ipdocketing@foley.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SHI ZHONG and ROBERT LEE MARSA ____________ Appeal 2020-003032 Application 14/879,7141 Technology Center 3600 ____________ Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and NINA L. MEDLOCK, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1–20. 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(a). Appellant identifies Google Inc. as the real party in interest. Appeal Br. 2. Appeal 2020-003032 Application 14/879,714 2 THE INVENTION Appellant states: “This invention relates generally to the field of building advertising analytics platforms and specifically to the field of system, method and architecture for advertising conversion fractional attribution analysis, including scenarios in which user-level data may not be available for non-converting user paths.” Spec. ¶ 3. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A method for determining fractional attribution using user-level data and aggregate-level data, comprising: accessing, by one or more processors, user-level attribution data from a plurality of client devices responsive to ad tags executing on each of the plurality of client devices, the user-level attribution data of each of the plurality of client devices associated with a plurality of event items; converting, by one or more processors, the user-level attribution data into aggregate attribution data for one or more defined online channels, the aggregate attribution data determined for each of the one or more defined online channels comprising a number of attributable conversions for the each of the one or more defined online channels and a number of impressions for the each of the one or more defined online channels, the aggregate attribution data including attribution data from one or more offline channels; determining, by one or more processors, a weight for each of the defined online channels and the one or more offline channels based on the aggregate attribution data for the one or more defined online channels, a number of total number conversions, and a number of impressions for each of the one or more offline channels; determining, by one or more processors, marginal conversion probabilities for one or more attributes based on the aggregate attribution data for each of the one or more defined online channels, wherein each attribute has one or more attributes values, wherein each marginal conversion probability is Appeal 2020-003032 Application 14/879,714 3 determined by determining a total number of users that converts with a defined attributes value and a total number of users that are reached with the defined attributes value; accessing, by one or more processors, a plurality of defined event items for a converting path, each of the plurality of defined event items associated with at least one of the one or more attributes; determining, by one or more processors, for each of the plurality of defined event items, an importance weight by combining the determined marginal conversion probabilities for the attributes that are associated with the defined event item, wherein the importance weight is further determined based at least in part on a channel weight for the channel of the defined event item; and normalizing, by one or more processors, the importance weights across the plurality of defined event items of the converting path, the normalized importance weights representing attribution fractions for the converting path. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Williams US 2011/0246267 A1 Oct. 6, 2011 Briggs US 2013/0124302 A1 May 16, 2013 Chittilappilly US 2013/0332264 A1 Dec. 12, 2013 The following rejections are before us for review. Claims 1–20 under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. Claims 1–20 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Williams in view of Chittilappilly and Briggs. Appeal 2020-003032 Application 14/879,714 4 FINDINGS OF FACT We adopt the Examiner’s findings as set forth on pages 2–11 in the Final Office Action2 and on pages 3–8 in the Examiner’s Answer, concerning only the 35 U.S.C. § 101 rejection. ANALYSIS 35 U.S.C. § 101 REJECTION We will affirm the rejection of claims 1–20 under 35 U.S.C. § 101. The Appellant argues independent claim 1 as the representative claim for claims 1–20 (Appeal Br. 7–11), and so the remaining claims stand or fall with claim 1. 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.” 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 2 All references to the Final Office Action refer to the Final Office Action mailed on March 8, 2019. Appeal 2020-003032 Application 14/879,714 5 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 (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 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 environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace Appeal 2020-003032 Application 14/879,714 6 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. In January 2019, the U.S. Patent and Trademark Office (USPTO) published revised guidance on the application of § 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”).3 “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” Id. at 51; see also October 2019 Update at 1.4 3 In response to received public comments, the Office issued further guidance on October 17, 2019, clarifying the 2019 Revised Guidance. USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”) (available at https://www.uspto.gov/sites/default/files/ documents/peg_oct_2019_update.pdf). 4 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) § 2106.04 and also supersedes all versions of the USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.” See 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, Appellant’s arguments challenging the Appeal 2020-003032 Application 14/879,714 7 Under the 2019 Revised Guidance and the October 2019 Update, 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) (“Step 2A, Prong One”); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).5 Guidance, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under 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. Guidance, 84 Fed. Reg. at 52–56. 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. sufficiency of the Examiner’s rejection will not be addressed to the extent those arguments are based on now superseded USPTO guidance. 5 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54– 55. Appeal 2020-003032 Application 14/879,714 8 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 §§ 2106.04–2106.05. The Specification states: In some cases, user-level data may not be available. For example, for a direct mail advertising channel, it may be possible to tie converted direct mail users to their online events (i.e., an ad exposure) by matching information collected at conversion time such as registration forms, surveys, questionnaires, etc. to online user activities, for instance, via online cookies, etc. However, there is no way to track users who received/opened their mail but never converted. This example illustrates that it can be very difficult, if not impossible, to connect a non-converting user’s offline touch points with the user’s online touch points. Consequently, it can be difficult to ascertain the effectiveness or influence of an offline ad campaign on an online user’s behavior. Spec. ¶ 8. The preamble of claim 1 states it is for “determining fractional attribution using user-level data and aggregate-level data.” Claim 1 recites in pertinent part, Appeal 2020-003032 Application 14/879,714 9 accessing, . . . user-level attribution data from a plurality of client devices responsive to ad tags executing on each of the plurality of client devices, the user-level attribution data of each of the plurality of client devices associated with a plurality of event items; converting, . . . the user-level attribution data into aggregate attribution data for one or more defined online channels, the aggregate attribution data determined for each of the one or more defined online channels comprising a number of attributable conversions for the each of the one or more defined online channels and a number of impressions for the each of the one or more defined online channels, the aggregate attribution data including attribution data from one or more offline channels; determining, . . . a weight for each of the defined online channels and the one or more offline channels based on the aggregate attribution data for the one or more defined online channels, a number of total number conversions, and a number of impressions for each of the one or more offline channels; determining, . . . marginal conversion probabilities for one or more attributes based on the aggregate attribution data for each of the one or more defined online channels, wherein each attribute has one or more attributes values, wherein each marginal conversion probability is determined by determining a total number of users that converts with a defined attributes value and a total number of users that are reached with the defined attributes value; accessing, . . . a plurality of defined event items for a converting path, each of the plurality of defined event items associated with at least one of the one or more attributes; determining, . . . for each of the plurality of defined event items, an importance weight by combining the determined marginal conversion probabilities for the attributes that are associated with the defined event item, wherein the importance weight is further determined based at least in part on a channel weight for the channel of the defined event item; and normalizing, . . . the importance weights across the plurality of defined event items of the converting path, the normalized importance weights representing attribution fractions for the converting path. Appeal 2020-003032 Application 14/879,714 10 The Examiner found: “These steps describe/set-forth the idea of advertisement fractional attribution, which is a method of organizing human activities, and/or a mathematical relationship/formula.” Final Act. 4. Accordingly, all this intrinsic evidence shows that claim 1 recites a method for determining fractional attribution of a consumer with numerous touch points using user-level data and aggregate-level data. This is consistent with the Examiner’s determination. We find that limitations such as, “accessing, . . . user-level attribution data from a plurality of client devices responsive to ad tags executing on each of the plurality of client devices”; “converting, . . . the user-level attribution data into aggregate attribution data for one or more defined online channels”; “determining, . . . a weight for each of the defined online channels and the one or more offline channels”; “determining, . . . marginal conversion probabilities for one or more attributes based on the aggregate attribution data for each of the one or more defined online channels”; “accessing, . . . a plurality of defined event items for a converting path”; “determining, . . . for each of the plurality of defined event items, an importance weight by combining the determined marginal conversion probabilities for the attributes that are associated with the defined event item”; and “normalizing, . . . the importance weights across the plurality of defined event items of the converting path,” mimic human thought processes of selecting certain information over others, i.e., evaluation, and creating perhaps with paper and pencil, graphic data interpretation perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016). Also, steps such as “converting, . . . the user-level attribution data,” Appeal 2020-003032 Application 14/879,714 11 “determining, . . . marginal conversion probabilities,” “determining, . . . a weight,” “determining, . . . marginal conversion probabilities,” determining, . . . an importance weight, and “normalizing, . . . importance weights” are mathematical calculations which are an enumerated judicial exception. Guidance, 84 Fed. Reg. at 52, see also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing information by steps people go through in their minds, or by mathematical algorithms, and presenting the results of collecting and analyzing information, without more, as matters within the realm of abstract ideas). Thus, under the first prong, claim 1 recites the patent ineligible judicial exceptions of a mental process and a mathematical calculation. Turning to the second prong of the “directed to” test, claim 1 only generically requires “a plurality of client devices,” “online channels,” and “one or more processors.” These components are described in the Specification at a high level of generality. See Spec. ¶¶ 31–43, Figs. 1, 2. 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 find no indication in the Specification, nor does Appellant direct us to any indication, that the operations recited in independent claim 1 invoke any assertedly inventive programming, require any specialized computer hardware or other inventive computer components, i.e., a particular machine, or that the claimed invention is implemented using other than generic computer components to perform generic computer Appeal 2020-003032 Application 14/879,714 12 functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.”). Thus, we find that claim 1 recites the judicial exceptions of a mental process and a mathematical calculation that are not integrated into a practical application. That the claim does not preempt all forms of the abstraction or may be limited to calculating fractional attribution, 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 1 is directed to abstract ideas/judicial exceptions, the claim must 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, 566 U.S. at 72–73). Concerning this step, the Examiner found that “[v]iewing the limitations in combination also fails to amount to significantly more than the abstract idea. When considered as an ordered combination, the additional components of the Independent claims add nothing that is not already present when the steps are considered separately.” Final Act. 10. We agree with the Examiner. “[T]he relevant question is whether the claims here do Appeal 2020-003032 Application 14/879,714 13 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 retrieve, select, and apply decision criteria to data and modify the data as a result amounts to electronic data query and retrieval—one of the most basic functions of a computer. Limitations such as, “the aggregate attribution data determined for each of the one or more defined online channels comprising a number of attributable conversions for the each of the one or more defined online channels and a number of impressions for the each of the one or more defined online channels, the aggregate attribution data including attribution data from one or more offline channels” are but a recitation of data characterization, viz. an expectation, which is aspirational. All of these computer functions are well-understood, routine, conventional activities previously known to the industry. See Elec. Power Grp., 830 F.3d at 1354; 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 functions can be achieved by any general purpose computer without special programming.”). The claims do not, for example, purport to improve the functioning of the computer itself. In addition, as we stated above, the claims do 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., Spec. ¶¶ 31–43, Figs. Appeal 2020-003032 Application 14/879,714 14 1, 2). Thus, the claims at issue amount 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 claims add nothing that is not already present when the steps are considered separately. The sequence of data reception-analysis (accessing/converting/determining/accessing/determining/normalizing) 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 sequence of processing, routing, controlling, and monitoring was abstract). The ordering of the steps is, therefore, ordinary and conventional. The remaining method claims merely describe process parameters. We conclude that the method claims at issue are directed to a patent- ineligible concept itself, and not to the practical application of that concept. As to the structural claims 15–20, they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long ‘warn[ed] . . . against’ interpreting § 101 ‘in ways that make patent eligibility ‘depend simply on the draftsman’s art.’’ Appeal 2020-003032 Application 14/879,714 15 Alice, 573 U.S. at 226 (quoting Mayo, 566 U.S. at 72). As a corollary, the claims are not directed to any particular machine. We have reviewed all the arguments Appellant has submitted concerning the patent eligibility of the claims before us that stand rejected under 35 U.S.C. § 101 (Appeal Br. 7–11; Reply Br. 2). 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: “Accordingly, Appellant submits that the present claims, when viewed as a whole, ‘impose a meaningful limit’ on the subject matter to a practical application.” Appeal Br. 8–9. First, as we found above, claim 1 only generically requires “a plurality of client devices” and “one or more processors.” These components are described in the Specification at a high level of generality. See Spec. ¶¶ 31– 43, Figs. 1, 2. These generic recitations of basic computer components and/or of a system fail to integrate 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. Second, there is a fundamental difference between computer functionality improvements, on the one hand, and uses of existing computers as tools to perform a particular task, on the other which is the case with the claims before us on appeal. See Enfish, 822 F.3d at 1335–36. The alleged improvement seeks to “ascertain the effectiveness or influence of an offline ad campaign on an online user’s behavior.” Spec. ¶ 8. This does not concern an improvement to computer capabilities. Instead, at best, it relates Appeal 2020-003032 Application 14/879,714 16 to an alleged improvement to the abstract idea of determining fractional attribution of a consumer with numerous touch points — a process in which a processor is used as a tool in its ordinary capacity not as a particular machine that is integral to the claim. This is not enough for patent eligibility. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1170 (Fed. Cir. 2018) (“[P]atent law does not protect such claims[, i.e., claims to an asserted advance in the realm of abstract ideas], without more, no matter how groundbreaking the advance.”). Although we agree with Appellant that claim 1 must be read as a whole (Appeal Br. 10), we nevertheless find, on balance, that claim 1 is directed to determining fractional attribution of a consumer with “numerous touch points” (Spec. ¶ 10, 11), for the reasons specified above with respect to our “directed to” findings. As found supra, claim 1 only includes the following generically recited device limitations: “a plurality of client devices,” “online channels,” and “one or more processors.” What remains in the claim after disregarding these device limitations, as set forth above in our “directed to” analysis, are abstractions, i.e., mental steps and/or mathematical calculations. Appellant argues, “the present claims recite a specific combination of limitations that [is] not well-understood, routine, conventional activity in the field, and therefore recite significantly more than any alleged judicial exception.” Appeal Br. 9. Appellant does not identify the allegedly “non-conventional” arrangement of elements. At best, Appellant references paragraphs 138, 141, and 142 of the Specification, but not the ordering of claim limitations. (Appeal Br. 9). When Appellant does list claim limitations on page 10 of Appeal 2020-003032 Application 14/879,714 17 the Appeal brief, it enumerates almost the entire body of the claim 1 without explanation as to why the ordered combination of the listed limitations is not well-understood, routine, or conventional in the field. Claim 1 simply recites functional results to be achieved by any means. See, e.g., Content Extraction and Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014). As to Appellant’s underlining of “responsive to ad tags executing on each of the plurality of client devices,” in the list of claim limitations set forth on page 10 of the Appeal Brief, we note that although the use of embedded information on internet pages, such as “ad tags,” is in some sense technological, its use on the internet can be said to be so notoriously settled that merely invoking it is no more than abstract conceptual advice to use well known technology for its intended purpose. See TLI Commc’ns, 823 F.3d at 612–613. Appellant cannot reasonably deny that the operation of “ad tags” are well-understood, routine, or conventional. Indeed, the Federal Circuit, in accordance with Alice, has “repeatedly recognized the absence of a genuine dispute as to eligibility” where claims have been defended as involving an inventive concept based “merely on the idea of using existing computers or the Internet to carry out conventional processes, with no alteration of computer functionality.” Berkheimer v. HP Inc., 890 F.3d 1369, 1373 (Fed. Cir. 2018) (Moore, J., concurring). The alleged improvement lies in the abstract idea itself, not to any technological improvement. See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287–88 (Fed. Cir. 2018). Although the claim 1 purports to efficiently facilitate the normalizing of probabilities (to “avoid useless results” (Appeal Br. 10)), our reviewing court has held that speed and Appeal 2020-003032 Application 14/879,714 18 accuracy increases stemming from the ordinary capabilities of a general purpose computer “do[] not materially alter the patent eligibility of the claimed subject matter.” Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012). 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 1–20. 35 U.S.C. § 103(a) REJECTION Each of independent claims 1, 8, and 15 recites in pertinent part : determining, by one or more processors, marginal conversion probabilities for one or more attributes based on the aggregate attribution data for each of the one or more defined online channels, wherein each attribute has one or more attributes values, wherein each marginal conversion probability is determined by determining a total number of users that converts with a defined attributes value and a total number of users that are reached with the defined attributes value. The Examiner found, concerning these limitations that Williams discloses, the following: Williams: [0015], disclosing that recorded user actions include conversions and reach/views; [0152], “the DSP’s insight and analytics capabilities can . . . identify the relative success of ad channels and/or publishers (e.g., with respect to order volume and/or user actions), and characterize or classify conversions. In certain embodiments, the DSP can provide analysis pertaining to creatives. For example and in some embodiments, the DSP can profile or summarize the attributes of creatives applied in ad campaigns. The DSP may determine which creative concepts are driving performance in terms of sales and/or different types of user actions.”; [0170], “predict module may comprise logic, Appeal 2020-003032 Application 14/879,714 19 functions and operations to calculate, identify and/or present the probability of click and conversion for a set of creatives”, “transactional environment provides one or more reporting modules that provide performance and operation metrics, information and data on any level of granularity from transaction level to campaign level to exchange level. Each reporting module may provide performance and operation metrics, information and data on any aggregation of agency, campaigns, transactions, exchanges including cross-transaction, cross-campaign and crossexchange information.” Final Act. 12–13. Appellant argues the following: Williams mentions the word “probability” only once in the entire specification, stating that the “predict module may comprise logic, functions and operations to calculate, identify and/or present the probability of click and conversion for a set of creatives” as mentioned in the Finals Office Action (emphasis added). See Williams, paragraph [0170]. Williams does not teach or suggest “determining . . . marginal conversion probabilities for one or more attributes . . . by determining a total number of users that converts with a defined attributes value and a total number of users that are reached with the defined attributes value” as recited in claim 1 (emphasis added). Appeal Br. 12. We agree with Appellant. In paragraph 150, Williams discloses a DSP (Demand Side Platform) that provides “comprehensive reporting capabilities” “constantly update[ing] bidding modules as statistically significant variables are discovered and/or pockets of performing media are unlocked.” But, other than mentioning updating modules as “statistically significant variables,” there is nothing disclosed about determining the claimed probability marginal conversion probabilities for one or more attributes based on the aggregate attribution data for each of the one or more Appeal 2020-003032 Application 14/879,714 20 defined online channels. In paragraph 170, Williams, discloses: “The predict module may comprise logic, functions and operations to calculate, identify and/or present the probability of click and conversion for a set of creatives.” In paragraph 177, Williams discloses: “Each of the exchanges may support or identify variables for the creative such as those identified in parameter P6.” In paragraph 176, Williams discloses that parameter P6 is “a time zone identification.” But, the independent claims require that the “marginal conversion probability is determined by determining a total number of users that converts with a defined attributes value and a total number of users that are reached with the defined attributes value.” It is not apparent and the Examiner does not explain how determining a probability for a creative, such as a parameter like, “a time zone identification,” as disclosed in paragraph 170 of Williams, leads to the claimed marginal conversion probability calculation based on: 1. a total number of users that converts with a defined attributes value, and 2. a total number of users that are reached with the defined attributes value. Accordingly, we will not sustain the rejection of independent claims 1, 8, and 15. Because claims 2–7, 9–14, and 16–20 depend from claims 1, 8, and 15, and because we cannot sustain the rejection of claims 1, 8, and 15, the rejection of claims 2–7, 9–14, and 16–20 likewise cannot be sustained. Appeal 2020-003032 Application 14/879,714 21 CONCLUSIONS OF LAW We conclude the Examiner did not err in rejecting claims 1–20 under 35 U.S.C. § 101. We conclude the Examiner erred in rejecting claims 1–20 under 35 U.S.C. § 103. DECISION SUMMARY 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 1–20 101 Eligibility 1–20 1–20 103 Williams, Chittilappilly, Briggs 1–20 Overall Outcome 1–20 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 Copy with citationCopy as parenthetical citation