Haramaty, Lior

Patent Trials and Appeals Board

Jun 11, 2020

2019002124 (P.T.A.B. Jun. 11, 2020)

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.
14/274,151 05/09/2014 Lior Haramaty P4231972 8749
40401 7590 06/11/2020
Hershkovitz and Associates, PLLC
2845 Duke Street
Alexandria, VA 22314
EXAMINER
TAPP, AMELIA L
ART UNIT PAPER NUMBER
2144
NOTIFICATION DATE DELIVERY MODE
06/11/2020 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):
USPTO@hershkovitz.net
patent@hershkovitz.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LIOR HARAMATY
____________________

Appeal 2019-002124
Application 14/274,151
Technology Center 2100
____________________

Before ALLEN R. MacDONALD, JAMES B. ARPIN, and
MICHAEL J. ENGLE, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection of claims 14–20. Non-final Act. 3–13. Appellant
cancelled claims 1–13. Id. at 2. Appellant withdrew claims 21–26 from
consideration as directed to a non-elected invention. Appeal Br. 3. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellant identifies Lior Haramaty (Inventor and Applicant) as the real
party in interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
Claims 14 and 15 are illustrative of the claimed subject matter
(emphasis, formatting, and bracketed material added):
14. A closed loop, dynamic method for continuously
optimizing a website according to continuously updated data
comprising:
[A.] monitoring via at least one processor various
parameters on a website or part of a website on which
[i.] an activity,
[ii.] an activity level, or
[iii.] a plurality of activities
is carried out;
[B.] changing via at least one processor, at least one
element on the website or on part of the website according to
changes in monitored parameters; and
[C.] optimizing automatically via said at least one
processor, an effectiveness of the website or part of the website
to achieve
[i.] a desired activity,
[ii.] a desired activity level or
[iii.] a desired plurality of activities
as a result of at least one changed element;
[D.] wherein the at least one processor
[i.] runs for a period of time and then stops, or
[ii.] runs continuously
to optimize and dynamically change at least one of the website,
a part of the website, or a plurality of websites.
15. The method according to claim 14,
[E.] wherein the at least one element includes one or more
of
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[i.] a design;
[ii.] a content;
[iii.] an image;
[iv.] a video;
[v.] a hyperlink;
[vi.] an audio;
[vii.] a media file;
[viii.] any element that influences accessibility and/or
performance of the website such as, but not limited
to,
[a.] speed,
[b.] resolution, and
[c.] color depth;
[ix.] an element that can be perceived by a user
[a.] consciously or
[b.] subconsciously;
[x.] any offering on the website such as, but not limited
to,
[a.] a price,
[b.] a shipping option,
[c.] a sale,
[d.] a deal,
[e.] a product packaging,
[f.] a name,
[g.] a monetary incentive, and
[h.] a referral incentive; and
[i.] any functionality of the website.
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17. The method according to claim 16,
[E] wherein a dynamically measured feature of the activity
or the plurality of activities relates to one of
[i.] a date,
[ii.] a time of day,
[iii.] a geographical location of a user,
[iv.] a best approximation of the user’s geographical
location,
[v.] a season of year either at the user’s geographical
location or at another location,
[vi.] a language setting of a machine accessing the
website,
[vii.] any information that is known about the machine
and/or a user accessing the website,
[viii.] any information that is assumed about the user
accessing the website,
[ix.] any information that was pre-evaluated about the
user accessing the website,
[x.] any information that was pre-acquired about the
user accessing the website, and
[xi.] any information either dynamic or predefined.
REFERENCES2
The Examiner relies on the following references:
Name Reference Date
Blinnikka US 2013/0117663 A1 May 9, 2013
Siroker US 8,839,093 B1 Sept. 16, 2014

2 All citations herein to patent and pre-grant publication references are by
reference to the first named inventor only.
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REJECTIONS3
A.
The Examiner rejects claims 14–20 under 35 U.S.C. § 101 “because
the claimed invention is directed to a judicial exception . . . without
significantly more” (Non-final Act. 4), i.e., the claimed invention is directed
to patent-ineligible subject matter . Non-final Act. 3–5.
We select independent claim 14 as representative for this rejection.
Except for our ultimate decision, we do not discuss the merits of the § 101
rejection of claims 15–20 further herein.
B.
The Examiner rejects claims 14, 15, 19, and 20, under 35 U.S.C.
§ 102(a)(2) as anticipated by Blinnikka. Non-final Act. 5–8. We select
claim 14 as the representative claim for this rejection. Appellant does not
present separate arguments challenging the rejection of claims 15, 19, and
20. Except for our ultimate decision, we do not address the merits of the
§ 102(b) rejection of claims 15, 19, and 20 further herein.
C.
The Examiner rejects dependent claims 16–18 under 35 U.S.C. § 103
as unpatentable over the combined teachings of Blinnikka and Siroker.
Non-final Act. 9–11. The Examiner does not rely on Siroker to cure the
deficiencies of Blinnikka for independent claim 14 discussed below, so the

3 All citations to the “Non-final Act.” are to the Non-final Action mailed on
February 8, 2018.
All citations to the “Appeal Br.” are to the Appeal Brief filed on August 8,
2018.
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contentions discussed herein as to claim 14 are determinative as to this
rejection.
Except for our ultimate decision, we do not address the merits of the
§ 103 rejection of claims 16–18 further herein.
OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner errs. We highlight the following points.
A. Section 101
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 U.S. 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 Court’s two-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See Alice, 573 U.S. at
219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
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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 waterproof 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
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 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. (citation omitted)
(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 part
of the Alice and Mayo framework, where “we must examine the elements of
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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.
B. USPTO § 101 Guidance
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)
(“2019 Revised Guidance”).4 “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.
Under the 2019 Revised Guidance and the October 2019 Update, we
first determine 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

4 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).
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(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
2019 Revised 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 determine
under Step 2B 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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.
C. Examiner’s § 101 Rejection - Alice/Mayo - Parts 1 and 2
C.1. 2019 Revised Guidance Step 2A – Prong One
Applying the Alice/Mayo framework, the Examiner determines that
claim 14 recites an abstract idea:
Independent claim 14 is directed to a method for optimizing a
website, including monitoring parameters on a website,
changing at least one element on the website according to
changes in monitored parameters, and optimizing an

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 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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effectiveness of the website to achieve a desired activity, activity
level, or a desired plurality of activities as a result of the at least
one changed element. Therefore, claim 14 is directed to the
abstract idea of monitoring parameters on a website and
changing an element on the website according to changes in the
monitored parameters, and as such is not meaningfully different
from ideas found to be abstract by the courts in other cases
because the claim is directed to “certain methods of organizing
human activity.” See Bilski, Alice.
Ans. 3 (emphasis added).
C.2. 2019 Revised Guidance Step 2A – Prong Two6
Further applying the Alice/Mayo framework, the Examiner determines
claim 14 is directed to an abstract idea.
[T]he purported advantages of dynamic change to a website
element and testing effectiveness and changing elements of the
website according to test results in an automatic way, were held
by the court in Int. Ventures to not amount to inventive concepts,
and instead were identified as abstract ideas. Int. Ventures [v.
Capital One Bank, 792 F.3d 1363, 1371 (Fed. Cir. 2015)].
The ’382 patent of Int. Ventures recited in claim 1 “an
interactive interface configured to provide dynamic web site
navigation data to the user.” Int. Ventures, 1370. In Int.
Ventures, the court found that tailoring information on a website
was equivalent to an abstract idea, and that making a
determination to present certain information based on a user’s
falling into a certain category and presenting information based
on the determination was an abstract idea that did not confer
patent eligibility. Id. Here, appellant’s invention makes a similar

6 We acknowledge that some of the considerations at Step 2A, Prong Two,
properly may be evaluated under the second part of Alice/Mayo framework
(Step 2B of the Office’s guidance). For purposes of maintaining consistent
treatment within the Office, we evaluate those considerations under first part
of the Alice/Mayo framework (Step 2A of the Office’s guidance). See 2019
Revised Guidance, 84 Fed. Reg. at 55 nn.25, 27–32.
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determination to tailor content on a website, as disclosed in the
specification “an algorithm finds the best option or options for
changing various elements on the website, then changes those
elements by zooming into the actual website which is modified
to use the best performing parameter or parameters through a
process by which the best performers survive.” (Specification, p.
2, par. 0004). In the case of the invention claimed in claim 14,
the determination of which information to present on the website
is made by an algorithm finding the best option or options for
changing elements on the website, and is therefore similarly
directed to an abstract idea.
Ans. 4–5.
Unlike Core Wireless, appellant’s specification does not point
out any specific deficiencies of the prior art to provide a solution
amounting to significantly more than an abstract idea, but rather
makes a general assertion that the generic abstract idea itself is
an advantage over the prior art.
Ans. 6.
C.3. 2019 Revised Guidance Step 2B
Applying the Alice/Mayo framework, the Examiner determines:
Applying step two of the Alice test, claim 14 has no
inventive concept which would cause the claimed invention to
amount to significantly more than an abstract idea. The
invention claimed in independent claim 14 is similar to the
website display claimed in Int. Ventures v. Capital One Bank,
where the court held that an “interactive interface” is a generic
computer element and not a patent-eligible inventive concept.
Here, claim 14 recites the generic computer elements of
“website” and “processor,” which are both generic computer
components which perform generic computer functions.
Ans. 4 (emphasis omitted).
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D. Appellant’s § 101 Arguments & Panel’s § 101 Analysis
D.1. 2019 Revised Guidance Step 2A, Prong 1
D.1.a.
Claim 14 recites a method for optimizing a website including the
following limitations:
A closed loop, dynamic method for continuously optimizing a
website according to continuously updated data comprising:
[A.] monitoring via at least one processor various
parameters on a website or part of a website on which
[i.] an activity,
[ii.] an activity level, or
[iii.] a plurality of activities
is carried out;
[B.] changing via at least one processor, at least one
element on the website or on part of the website
according to changes in monitored parameters; and
[C.] optimizing automatically via said at least one
processor, an effectiveness of the website or part of the
website to achieve
[i.] a desired activity,
[ii.] a desired activity level or
[iii.] a desired plurality of activities
as a result of at least one changed element;
[D.] wherein the at least one processor
[i.] runs for a period of time and then stops, or
[ii.] runs continuously
to optimize and dynamically change at least one of
the website, a part of the website, or a plurality of
websites.
Claim 14 (formatting and bracketed material added).
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Claim 15 further recites:
The method according to claim 14, wherein the at least one
element includes one or more of . . .
[x.] any offering on the website such as, but not limited to,
[a.] a price,
[b.] a shipping option,
[c.] a sale,
[d.] a deal,
[e.] a product packaging,
[f.] a name,
[g.] a monetary incentive, and
[h.] a referral incentive; and
[i.] any functionality of the website.
Claim 15 (formatting and bracketed material added).
Claim 17 (depending from claim 16 in-turn depending from claim 14)
further recites.
The method according to claim 16, wherein a dynamically
measured feature of the activity or the plurality of activities
relates to one of . . .
[i.] a date,
[ii.] a time of day,
[iii.] a geographical location of a user,
. . .
[v.] a season of year either at the user’s geographical
location or at another location,
. . .
[xi.] any information either dynamic or predefined.
Claim 17 (formatting and bracketed material added).
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D.1.b.
Appellant acknowledges that the claimed invention encompasses
improving effectiveness of sales. Appeal Br. 10; see also Appeal Br. 16.
Further, Appellant’s claim 15 recites that the “at least one element” of claim
14 can be “a price” or “a sale.” Furthermore, Appellant points out that the
“parameter” of claim 14 may include the user’s season, time of day, or
geographical location. Spec. 31–34; see also Appellant’s claim 17.
D.1.c.
As evidenced by Appellant’s claims 15–17 and Specification at
paragraphs 31–34, claim 14 encompasses sales activities related to the
parameter of a date, a season, or any other information. We determine that
claim 14 (specifically, the limitations italicized in claim 14 directly above)
relates to improving (or optimizing) sales activities (i.e., commercial
interaction); and a commercial interaction is one of certain methods of
organizing human activity identified in the 2019 Revised Guidance, and,
thus, an abstract idea. 84 Fed. Reg. at 52. We conclude the Examiner
correctly determines that claim 14 recites an abstract idea.

D.2. 2019 Revised Guidance Step 2A, Prong 2
D.2.a.
Having determined that claim 14 recites an abstract idea, we now
determine whether claim 14 is directed to that abstract idea, or instead
integrates the judicial exception into a practical application.
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D.2.b.i.
Appellant essentially contends the claim is directed to making
“non-abstract improvements to computer technology.” Appeal Br. 9.
As far as Appellant knows, no one is testing effectiveness
(sales, time on website click through etc.), and changing elements
of the website according to test results in an automatic way that
feeds back each process based on the changing information to
make the website better and better, while continuously adapting
to changes in the monitored effectiveness (changes due for
instance to changing elements such seasons, color preferences,
popular music, etc.).
Appeal Br. 10 (emphasis added).
This consideration also has been referred to as the search for a
technological solution to a technological problem. See Amdocs (Isr.) Ltd. v.
Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016) (“[T]his claim
entails an unconventional technological solution . . . to a technological
problem . . . .”). As discussed above, we conclude that Appellant’s claim 14
is solving the problem of “improving (or optimizing) sales activities,” which
is a business problem, not a technological problem. We do not agree with
Appellant that “changing a sales element based on a date or based on a
season” are a “technological field,” a “technological problem,” or a
“technological solution.” Rather, we determine that these additional
elements are directed to the field of business/commerce and its problems and
solutions. Appellant’s argument is not persuasive.
D.2.c.
In view of Appellant’s Specification, and consistent with the
Examiner’s determinations, we conclude that claim 14 does not integrate the
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judicial exception into a practical application. We determine claim 14 does
not recite:
(i) an improvement to the functioning of a computer;
(ii) an improvement to another technology or technical field;
(iii) an application of the abstract idea with, or by use of, a
particular machine;
(iv) a transformation or reduction of a particular article to a
different state or thing; or
(v) other meaningful limitations beyond generally linking the
use of the abstract idea to a particular technological
environment.
See MPEP §§ 2106.05(a)–(c), (e)–(h). We agree with the Examiner that
claim 14 is directed to a judicial exception, i.e., certain methods of
organizing human activity, and does not integrate that judicial exception into
a practical application. Ans. 3.

D.3. 2019 Revised Guidance Step 2B
D.3.a.
Appellant contends:
[C]laim 14, and therefore all claims dependent on claim 14, as
well as claim 20, recite “significantly more than the judicial
exception” as being directed to an activity or activities that are
not merely a “concept” of monitoring, changing and optimizing
website data, also are not just a function of a generic computer.
A generic computer could not perform the tasks set by the
method without the explicit limitations recited in claims 14
and 20.
Appeal Br. 8.
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Appellant’s argument is not persuasive. Appellant appears to
reference the Office’s Berkheimer memorandum (Appeal Br. 8 (next to last
paragraph)),7 and argues the significantly more analysis requires inclusion of
determining whether the “explicit limitations” directed to the abstract idea
represent well-understood, routine, conventional activity. We disagree with
Appellant’s argument on two points.
First, we find no such “including the abstract idea” requirement set
forth in the Berkheimer memorandum or any case law. To the contrary,
“[i]t has been clear since Alice that a claimed invention’s use of the
ineligible concept to which it is directed cannot supply the inventive concept
that renders the invention ‘significantly more’ than that ineligible concept.”
BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
Under the Berkheimer memorandum (directed to the second part of
the Alice/Mayo framework), the Examiner is only required to show that the
additional elements—such as a processor—are well-understood, routine, and
conventional features in the prior art. The Examiner is not required to show
(a) the abstract idea, or (b) the abstract idea in combination with the argued
additional elements, is similarly well-understood, routine, and conventional.
See, e.g., Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 591 (2013) (“Groundbreaking, innovative, or even brilliant discovery
does not by itself satisfy the § 101 inquiry.”); see also Aatrix Software, Inc.
v. Green Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018) (“It is

7 USPTO memorandum issued on April 19, 2018, titled “Changes in
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.).”
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clear from Mayo that the ‘inventive concept’ cannot be the abstract idea
itself.”).
Second, Appellant’s argument is wrapping the conventional functions
(e.g., generic computer functions) with a business solution of improved sales
activity. We determine that Appellant’s business solution (even if novel)
does not supply an inventive concept that renders the recited method
“significantly more” than that judicial exception. “[U]nder the Mayo/Alice
framework, a claim directed to a newly discovered law of nature (or natural
phenomenon or abstract idea) cannot rely on the novelty of that discovery
for the inventive concept necessary for patent eligibility.” Genetic Techs.
Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016); see Diehr, 450
U.S. at 188–89.
D.3.b.
We agree that the Examiner correctly determines that in addition to
the abstract idea, claim 14 recites only well-understood, routine,
conventional elements/combination of elements previously known in the
industry. E.g., Alice, 573 U.S. at 222–23 (“the mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention”). In view of Appellant’s Specification, and consistent
with the Examiner’s determinations, we determine that beyond the abstract
idea, the claims do not recite:
(vi) a specific limitation other than what is well-understood,
routine, conventional activity in the field or
unconventional steps that confine the claim to a particular
useful application.
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See MPEP § 2106.05(d). Consequently, we conclude that the claims are
directed to an abstract idea without significantly more, and we sustain he
Examiner’s rejection of the claims under 35 U.S.C. § 101.
E. § 102(a)(2) – Claim 14
E. 1.
Appellant’s claim 14 recites in-part.
monitoring via at least one processor various parameters
on a website or part of a website on which an activity, an activity
level, or a plurality of activities is carried out;
changing via at least one processor, at least one element
on the website or on part of the website according to changes in
monitored parameters; and
The Examiner rejects claim 14 under 35 U.S.C. § 102(a)(2), reasoning
in-part:
Blinnikka teaches monitoring user activities such as selection, to
change elements in a web site according to changes in selection
or other monitored parameters (par. 0031–0035). Blinnikka
further teaches that user interactions with a first amount of
content may influence the display of a second amount of content
(par. 0037).
Non-final Act. 6.
Appellant contends the Examiner erred in rejecting claim 14 under 35
U.S.C. § 102(a)(2). In particular, Appellant contends:
Blinnikka does not suggest, “dynamically monitoring
performance and adjusting web page and/or website elements
accordingly or randomly or as a combination of the two, while
optionally dynamically changing test parameters” (Abstract,
emphasis added).
Appeal Br. 12.
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The Examiner responds:
[A]ppellant’s arguments are directed to features which are not
recited in the rejected claims, i.e., . . . “dynamically monitoring
performance and adjusting web page and/or website elements
accordingly or randomly or as a combination of the two, while
optionally dynamically changing test parameters.” (Page 12 of
the Brief).
Ans. 7 (emphasis added). We do not find where the Examiner otherwise
meaningfully responds to Appellant’s “dynamically monitoring” argument.
E.2.
Although we agree with the Examiner that the specific “dynamically
monitoring” language argued by Appellant, is not found in claim 14, we
disagree that the argument is “directed to features which are not recited in”
rejected claim 14. We determine that Appellant’s argument is reasonably
directed to the “monitoring” and “changing” steps recited in claim 14.
Upon consideration of Appellant’s argument and reviewing the
Blinnikka reference , we are unable to locate support for the Examiner’s
findings as to the claimed “monitoring” and “changing” steps in cited
paragraphs 31–35 and 37 of Blinnikka. We conclude the Examiner’s
analysis fails to explain adequately the findings of fact.
We conclude, consistent with Appellant’s arguments, that there is
insufficient articulated reasoning to support the Examiner’s finding that
Blinnikka teaches the argued claim limitation. Therefore, we conclude that
there is insufficient articulated reasoning to support the Examiner’s finding
that claim 14 is anticipated by Blinnikka. We do not sustain the rejection of
claim 14 or claims 15, 19, and 20, which depend therefrom, under 35 U.S.C.
§ 102(a)(2)
Appeal 2019-002124
Application 14/274,151

21
CONCLUSION
The Examiner does not err in rejecting claims 14–20 under 35 U.S.C.
§ 101, as directed to patent-ineligible subject matter.
Appellant shows the Examiner errs in rejecting claims 14, 15, 19, and
20 as anticipated under 35 U.S.C. § 102(a)(2).
Appellant shows the Examiner errs in rejecting claims 16–18 as
unpatentable under 35 U.S.C. § 103.
The Examiner’s rejection of claims 14–20 under 35 U.S.C. § 101, as
directed to patent-ineligible subject matter, is affirmed.
The Examiner’s rejection of claims 14, 15, 19, and 20 as anticipated
under 35 U.S.C. § 102(a)(2) is reversed.
Because claims 16–8 depend from independent claim 14, the
Examiner’s rejection of claims 16–18 as unpatentable under 35 U.S.C. § 103
is reversed.
Appeal 2019-002124
Application 14/274,151

22
DECISION SUMMARY
Because we affirm the Examiner’s rejection of each of the pending
claims, we affirm the Examiner’s rejection of claims 14–20.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
14–20 101 Eligibility 14–20
14, 15, 19,
20
102(a)(2) Blinnikka 14, 15, 19,
20
16–18 103 Blinnikka, Siroker 16–18
Overall
Outcome

14–20
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED