Google Inc.

Patent Trials and Appeals Board

Mar 2, 2021

2020003032 (P.T.A.B. Mar. 2, 2021)

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.
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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
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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.
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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.
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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
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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
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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.
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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,
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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.
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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,”
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“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
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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
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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.
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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.’’
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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
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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
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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
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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,
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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
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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
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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