HEWLETT PACKARD ENTERPRISE DEVELOPMENT LP

Patent Trials and Appeals Board

May 6, 2021

2020000960 (P.T.A.B. May. 6, 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.
15/340,102 11/01/2016 Avigad Mizrahi 90257422 1096
146568 7590 05/06/2021
MICRO FOCUS LLC
500 Westover Drive
#12603
Sanford, NC 27330
EXAMINER
TSUI, WILSON W
ART UNIT PAPER NUMBER
2178
NOTIFICATION DATE DELIVERY MODE
05/06/2021 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):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte AVIGAD MIZRAHI, ELAD LEVI, and RAN BAR ZIK
____________

Appeal 2020-000960
Application 15/340,102
Technology Center 2100
____________

Before JOHN A. JEFFERY, KRISTEN L. DROESCH, and
BETH Z. SHAW, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–23. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as EntIT
Software LLC. Appeal Br. 3.
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STATEMENT OF THE CASE
Appellant’s invention toggles an application’s feature flags based on
user sentiment that is inferred from the user’s biometric data while the user
uses the application to enable or disable executable code based on the
inferred sentiment. See Abstract; Spec. ¶ 10. Claim 1 is illustrative:
A non-transitory computer-readable storage medium
comprising instructions executable by a processor to:
infer a user sentiment of an end user that is interacting
with an application executing on a client computing device
based on biometric data of the end user; and
toggle a feature flag of the application to enable or
disable an associated section of executable code based on the
inferred user sentiment.
Appeal Br. 22 (Claims Appendix).

THE REJECTIONS
The Examiner rejected claims 1–23 under 35 U.S.C. § 101 as
ineligible. Ans. 3–8.2
The Examiner rejected claims 1–3, 5, 9–12, 15, 16, and 18–21 under
35 U.S.C. § 102(a)(2) as anticipated by DeLaet (US 9,669,297 B1; issued
June 6, 2017). Ans. 9–15.
The Examiner rejected claims 4 and 6–8 under 35 U.S.C. § 103 as
unpatentable over DeLaet and Kamal (US 2015/0113262 A1; published Apr.
23, 2015). Ans. 15–17.

2 Throughout this opinion, we refer to (1) the Appeal Brief filed May 31,
2019 (“Appeal Br.”); (2) the Examiner’s Answer mailed September 19, 2019
(“Ans.”); and (4) the Reply Brief filed November 18, 2019 (“Reply Br.”).
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The Examiner rejected claim 13 under 35 U.S.C. § 103 as
unpatentable over DeLaet and Rassi (US 2013/0080437 A1; published Mar.
28, 2013). Ans. 17–18.
The Examiner rejected claim 14 under 35 U.S.C. § 103 as
unpatentable over DeLaet, Rassi, and Nichols (US 2013/0127909 A1;
published May 23, 2013). Ans. 19.
The Examiner rejected claim 17 under 35 U.S.C. § 103 as
unpatentable over DeLaet and Verma (US 2007/0162256 A1; published July
12, 2007). Ans. 20.
The Examiner rejected claim 22 under 35 U.S.C. § 103 as
unpatentable over DeLaet and Abraham (US 2006/0195328 A1; published
Aug. 31, 2006). Ans. 21.
The Examiner rejected claim 23 under 35 U.S.C. § 103 as
unpatentable over DeLaet and Mills (US 2011/0016240 A1; published Jan.
20, 2011). Ans. 22–23.

THE INELIGIBILITY REJECTION
The Examiner determines that the claimed invention is directed to
an abstract idea, namely a mental process that is not integrated into a
practical application. See Ans. 3–4. According to the Examiner, the
additional recited computer elements, including the recited client computing
device, application, processor, and memory, perform generic computer
functions that do not add significantly more to the abstract idea. See Ans. 3–
4, 23–31.
Appellant argues that the claimed invention is eligible because, among
other things, it is not directed to a judicial exception. Appeal Br. 7–9; Reply
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Br. 1–2. According to Appellant, not only does the claimed invention not
fall within any of the enumerated categories under the U.S. Patent &
Trademark Office (USPTO) eligibility guidelines, it is unclear how toggling
an application’s feature flag based on an inferred user sentiment as claimed
can occur entirely mentally. Appeal Br. 7–9; Reply Br. 1–2. Appellant adds
that each claim as a whole integrates the purported recited judicial exception
into a practical application by (1) being necessarily rooted in, and
inextricably tied to, computer technology, and (2) improving that
technology, namely by improving an application based on biometric data
that is used as a basis to enable or disable feature flags. Appeal Br. 9–10;
Reply Br. 2.
Appellant also contends that each claim amounts to significantly more
than the purported judicial exception because the claims are directed to
inventive concepts. Appeal Br. 10–12; Reply Br. 2. According to
Appellant, the Examiner fails to satisfy the requisite evidentiary burden to
show that any of the purported additional elements, including toggling a
feature flag based on inferred user sentiment, are well-understood, routine,
or conventional. Appeal Br. 11–12; Reply Br. 2.

ISSUE
Under § 101, has the Examiner erred in rejecting claims 1–13 as
directed to ineligible subject matter? This issue turns on whether the claims
are directed to an abstract idea and, if so, whether the recited elements—
considered individually and as an ordered combination—transform the
nature of the claims into a patent-eligible application of that abstract idea.

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PRINCIPLES OF LAW
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. See, 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. 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.”).
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.
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(15 How.) 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S.
at 67 (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.”). That
said, 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 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.
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Under the subject matter eligibility guidance in the Manual of Patent
Examining Procedure (MPEP) (9th ed. Rev. 10.2019, June 2020), 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) (see MPEP § 2106.04); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.04, 2106.04(d),
2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception, and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not well-understood, routine, and conventional in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See MPEP § 2106.05.

ANALYSIS
Claims 1–17 and 21–23: Alice/Mayo Step One
Representative independent claim 1 recites a non-transitory computer-
readable storage medium comprising instructions executable by a processor
to perform two functions, namely (1) “infer a user sentiment of an end user
that is interacting with an application executing on a client computing device
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based on biometric data of the end user”; and (2) “toggle a feature flag of the
application to enable or disable an associated section of executable code
based on the inferred user sentiment.”
As the Specification explains, a feature flag, also known as a feature
toggle, is a coding technique where a software application’s features may be
toggled by, for example, enabling, disabling, or hiding those features. Spec.
¶ 1. Feature flags can be used to test an application with different users by
selectively deploying features of an application. Id. ¶ 8. In this
environment, a feature flag can be implemented as an “if-else” or equivalent
statement in the application’s code according to parameters, such as logged
user role, the user’s geographic location, randomly selected users, etc., and
the features toggled, namely enabled or disabled, according to those
parameters. Id. ¶ 9. This toggling, however, may not account for a
sufficient amount of user information and, therefore, features may not be
selectively deployed in a way that optimizes testing. Id.
Appellant’s invention overcomes this drawback by toggling an
application’s feature flags based on user “sentiment” that is inferred from the
user’s biometric data while the user uses the application. Spec. ¶ 10. This
“sentiment” is the end user’s attitude, for example, towards the application
being used by that user. Id. This attitude may be an affective state of the
end user, such as a feeling or emotion. Id.
To infer this user “sentiment,” biometric data is collected and logged,
including actions and states, such as (1) mouse clicks; (2) mouse
movements; (3) screen touches; (4) text inputs; (5) sequences of pressed
keyboard keys; (6) facial expressions captured by a camera on a client
computing device; (7) geolocation; (8) client computing device movements;
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etc. See Spec. ¶¶ 19, 27–30. For example, Appellant’s Table 1 shows that a
mouse movement’s speed can indicate a user sentiment with different types
of negative emotions: a very fast mouse movement can indicate an angry
user, but a slow mouse movement can indicate an upset user. See Spec.
¶ 28. On the other hand, a straight or smooth mouse movement can indicate
the user’s positive emotions. See id.
Turning to claim 1, we first note that the claim recites a computer-
readable storage medium and, therefore, falls within the manufacture
category of § 101. But despite falling within this statutory category, we
must still determine whether the claim is directed to a judicial exception,
namely an abstract idea. See Alice, 573 U.S. at 217. To this end, we must
determine whether the claim (1) recites a judicial exception, and (2) fails to
integrate the exception into a practical application. See MPEP § 2106.04(II).
If both elements are satisfied, the claim is directed to a judicial exception
under the first step of the Alice/Mayo test. See id.
The Examiner determines that claim 1 is directed to an abstract idea,
namely a mental process, which is said to lack integration into a practical
application. See Ans. 3–4, 24–26. To determine whether a claim recites an
abstract idea, we (1) identify the claim’s specific limitations that recite an
abstract idea, and (2) determine whether the identified limitations fall within
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certain subject matter groupings, namely, (a) mathematical concepts3; (b)
certain methods of organizing human activity4; or (c) mental processes.5
Here, apart from the recited (1) “computer-readable storage medium
comprising instructions executable by a processor”; (2) “application
executing on a client computing device”; (3) “toggling a feature flag of the
application”; and (4) “executable code,” all of claim 1’s recited limitations
fit squarely within at least one of the above categories of the USPTO’s
eligibility guidelines. When read as a whole, the recited limitations are
directed to allowing or prohibiting particular application features based on
the user’s sentiment determined while using the application.
That is, apart from the recited (1) “computer-readable storage medium
comprising instructions executable by a processor”; (2) “application
executing on a client computing device”; (3) “toggling a feature flag of the
application”; and (4) “section of executable code,” the claimed limitations
recite mental processes and certain methods of organizing human activity.
See MPEP §§ 2106.04(a)(2)(II)–(III).

3 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See MPEP
§§ 2106.04(a), 2106.04(a)(2)(I).
4 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See MPEP §§ 2106.04(a),
2106.04(a)(2)(II).
5 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See MPEP §§ 2106.04(a),
2106.04(a)(2)(III).
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First, the limitation calling for “infer[ring] a user sentiment of an end
user that is interacting with an application based on biometric data of the end
user” can be done entirely mentally by merely (1) observing the user’s facial
expressions, physical movements, and other behavior while the user interacts
with the application, and (2) drawing an inference from that observation
using judgment and logical reasoning. Cf. CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011) (noting that a recited
step that utilized a map of credit card numbers to determine validity of a
credit card transaction could be performed entirely mentally by using logical
reasoning to identify a likely instance of fraud by merely observing that
numerous transactions using different credit cards all originated from the
same IP address). Therefore, the recited user sentiment inference fits
squarely within the mental processes category of the USPTO’s eligibility
guidelines and, therefore, recites an abstract idea. See MPEP §§ 2106.04(a),
2106.04(a)(2)(III).
Second, the limitation calling for “enabl[ing] or disabl[ing] an
associated [application feature] based on the inferred user sentiment” also
recites an abstract idea by merely allowing or prohibiting the user to use a
particular application feature based on that inferred sentiment. That is, an
observer, such as the user’s supervisor or parent, may decide that a particular
application feature is inappropriate for that user based on the user’s observed
reaction to the application, and simply not allow the user to use that feature.
On the other hand, the observer, namely the user’s supervisor or parent,
could allow the user to use a particular application feature based on the
user’s observed reaction to the application. In either case, the observer
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effectively enables or disables that particular feature, at least with respect to
that particular user.
In short, allowing or prohibiting a user from using a particular
application feature effectively manages personal behavior, relationships, or
interactions between people, including following rules or instructions. Cf.
DISH Network Corp. v. Customedia Technologies, LLC, CBM2017-00019,
Paper 56 at 54–55 (PTAB July 25, 2018) (Final Written Decision) (holding
ineligible claim reciting a system allowing no more than a specified number
of audio, video, or music programs to be recorded onto a portable storage
device as directed to an abstract idea), aff’d, 783 F. App’x 1041 (Fed. Cir.
2019) (non-precedential) (Rule 36); VeriPath, Inc. v. Didomi, 2021 WL
422817, at *1–3 (Fed. Cir. 2021) (non-precedential) (holding ineligible
claim reciting, in pertinent part, (1) presenting an offer to a user to provide
access to an enhanced function of an application in exchange for a required
permission; and (2) providing the user with access to that enhanced function
responsive to the user providing the required permission as directed to an
abstract idea); Ericsson Inc. v. TCL Comm. Tech. Holdings Ltd., 955 F.3d
1317, 1325–31 (Fed. Cir. 2020) (holding ineligible claimed platform access
control system that recited, in pertinent part, (1) an interception module for
receiving a request from requesting application domain software to access a
software services component; (2) a security access manager for determining
if the request should be granted, and if so, granting access to the software
services component via an interface as directed to the abstract idea of
controlling access to resources). Accordingly, the recited enablement or
disablement based on inferred user sentiment fits squarely within the certain
methods of organizing human activity category of the USPTO’s eligibility
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guidelines and, therefore, recites an abstract idea. See MPEP §§ 2106.04(a),
2106.04(a)(2)(II).
Notably, the (1) “computer-readable storage medium comprising
instructions executable by a processor”; (2) “application executing on a
client computing device”; (3) “toggling a feature flag of the application”;
and (4) “section of executable code,” are the only recited elements beyond
the abstract idea, but these additional elements, considered individually and
in combination, do not integrate the abstract idea into a practical application
when reading claim 1 as a whole.
First, we are not persuaded that the claimed invention improves a
computer or its components’ functionality or efficiency, or otherwise
changes the way those devices function, at least in the sense contemplated
by the Federal Circuit in Enfish LLC v. Microsoft Corporation, 822 F.3d
1327 (Fed. Cir. 2016). The claimed self-referential table in Enfish was a
specific type of data structure designed to improve the way a computer
stores and retrieves data in memory. Enfish, 822 F.3d at 1339. To the extent
Appellant contends that the claimed invention uses such a data structure to
improve a computer’s functionality or efficiency, or otherwise change the
way that device functions, there is no persuasive evidence on this record to
substantiate such a contention.
To the extent that Appellant contends that the claimed invention is
rooted in technology because it is ostensibly directed to a technical solution
(see Appeal Br. 9–16; Reply Br. 2–8), we disagree. Even assuming, without
deciding, that the claimed invention can allow or prohibit particular
application features based on the user’s sentiment determined while using
the application faster or more efficiently than doing so manually, any speed
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or efficiency increase comes from the capabilities of the generic computer
components—not the recited process itself. See FairWarning IP, LLC v.
Iatric Systems, Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (citing Bancorp
Services, LLC v. Sun Life Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir.
2012) (“[T]he fact that the required calculations could be performed more
efficiently via a computer does not materially alter the patent eligibility of
the claimed subject matter.”)); see also Intellectual Ventures I LLC v. Erie
Indemnity Co., 711 F. App’x 1012, 1017 (Fed. Cir. 2017) (non-precedential)
(“Though the claims purport to accelerate the process of finding errant files
and to reduce error, we have held that speed and accuracy increases
stemming from the ordinary capabilities of a general-purpose computer ‘do
not materially alter the patent eligibility of the claimed subject matter.’”
(citation omitted)). Like the claims in FairWarning, the focus of claim 1 is
not on an improvement in computer processors as tools, but on certain
independently abstract ideas that use generic computing components as
tools. See FairWarning, 839 F.3d at 1095.
Nor is this invention analogous to that which the court held eligible in
McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299 (Fed.
Cir. 2016), despite Appellant’s arguments to the contrary (Appeal Br. 9).
There, the claimed process used a combined order of specific rules that
rendered information in a specific format that was applied to create a
sequence of synchronized, animated characters. McRO, 837 F.3d at 1315.
Notably, the recited process automatically animated characters using
particular information and techniques—an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
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But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here allows or prohibits particular application features based on
the user’s sentiment determined while using the application. This generic
computer implementation is not only directed to mental processes and
certain methods of organizing human activity, but also does not improve a
display mechanism as was the case in McRO. See SAP Am. v. InvestPic,
LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishing McRO).
Rather, Appellant’s claimed invention is more analogous to that which
the court held ineligible in Zuili v. Google LLC, 722 F. App’x 1027, 1029–
31 (Fed. Cir. 2018) (non-precedential). There, the court held ineligible
claims directed to abstract idea of collecting, transmitting, analyzing, and
storing data to detect fraudulent and/or invalid clicks based on the time
between two requests by the same device or client. Zuili, 722 F. App’x at
1030. Our emphasis underscores that the claimed invention in Zuili
effectively inferred a user’s “sentiment,” namely fraudulent behavior, based
on the user’s interaction with an application by measuring the time between
the user’s clicks on a certain link. See id. at 1030–31. The claimed
invention in Zuili also effectively enabled a section of executable code based
on that inferred user sentiment, namely code associated with detected
fraudulent activity. See id.
Appellant’s claimed invention is also analogous to that which the
court held ineligible in Performance Pricing Holdings, LLC v. Google LLC,
757 F. App’x 1013 (Fed. Cir. 2019) (non-precedential). There, the court
summarily affirmed the Board’s decision holding ineligible a claimed
system for presenting an advertisement message to viewers of a website
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where the system (1) detected a quantity of actions performed by users of at
least one viewer computer, and (2) decreased the advertising message’s cost
per impression as the quantity of detected actions increased. See Google
Inc. v. Performance Pricing Holdings, LLC, CBM2016-00050, Paper 33 at
4–32 (PTAB Sept. 13, 2017) (Final Written Decision), aff’d, 783 F. App’x
1041 (Fed. Cir. 2019) (non-precedential) (Rule 36). Our emphasis
underscores that the claimed invention in Google effectively inferred a
user’s “sentiment,” namely interest in a particular advertisement, based on
the user’s interaction with an application by detecting and counting the
user’s actions on a computer on which the message was viewed. See Google
at 4–5, 18–21. The claimed invention in Google also effectively enabled a
section of executable code based on that inferred user sentiment, namely
code associated with decreasing the cost per impression as the number of
detected user actions increased. See id.
Appellant’s claimed invention is likewise analogous to that which the
court held ineligible in Trading Technologies International, Inc. v. IBG LLC,
921 F.3d 1084 (Fed. Cir. 2019). There, the court held ineligible a claimed
computer-based method for facilitating and placing an order for an item that,
among other things, (1) selected and moved an order icon with a user input
device to a location associated with a price along an associated price axis;
and (2) sent an order associated with the icon, where the order’s parameters
included the particular item’s quantity and price corresponding to the
location at which the icon was moved. Trading Technologies, 921 F.3d at
1088, 1092–93. Our emphasis underscores that the claimed invention in
Trading Technologies effectively inferred a user’s “sentiment,” namely
interest in a particular item, including its quantity and price, based on the
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user’s interaction with an application by detecting the particular location on
a display where the user moved a selected icon associated with that item
with an input device. See id. The claimed invention in Trading
Technologies also effectively enabled a section of executable code based on
that inferred user sentiment, namely code associated with sending an order
consistent with the parameters indicated by the location to which the user
moved the selected icon. See id.
On this record, then, the claimed invention does not recite additional
elements that (1) improve a computer itself; (2) improve another technology
or technical field; (3) implement the abstract idea in conjunction with a
particular machine or manufacture that is integral to the claim; (4) transform
or reduce a particular article to a different state or thing; or (5) apply or use
the abstract idea in some other meaningful way beyond generally linking the
abstract idea’s use to a particular technological environment, such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP §§ 2106.04(d)(I), 2106.05(a)–(c), (e). In short, the
claim’s additional elements do not integrate the abstract idea into a practical
application when reading claim 1 as a whole.
In conclusion, although the recited functions may be beneficial by
allowing or prohibiting particular application features based on the user’s
sentiment determined while using the application, a claim for a useful or
beneficial abstract idea is still an abstract idea. See Ariosa Diagnostics, Inc.
v. Sequenom, Inc., 788 F.3d 1371, 1379–80 (Fed. Cir. 2015).
We, therefore, agree with the Examiner that claim 1 is directed to an
abstract idea.

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Claims 1–17 and 21–23: Alice/Mayo Step Two
Turning to Alice/Mayo step two, claim 1’s additional recited elements,
namely the recited (1) “computer-readable storage medium comprising
instructions executable by a processor”; (2) “application executing on a
client computing device”; (3) “toggling a feature flag of the application”;
and (4) “section of executable code”—considered individually and as an
ordered combination—do not provide an inventive concept that amounts to
significantly more than the abstract idea when reading claim 1 as a whole.
See Alice, 573 U.S. at 221; see also MPEP § 2106.05. As noted above, the
claimed invention merely uses generic computing components to implement
the recited abstract idea.
Here, the claimed (1) “computer-readable storage medium comprising
instructions executable by a processor”; (2) “application executing on a
client computing device”; (3) “toggling a feature flag of the application”;
and (4) “section of executable code” are the additional recited elements
whose generic computing functionality is well-understood, routine, and
conventional. See Fair Warning, 839 F.3d at 1096 (noting that using generic
computing components like a microprocessor or user interface do not
transform an otherwise abstract idea into eligible subject matter); accord
Spec. ¶¶ 74–77 (disclosing various general-purpose computer components
used to implement the invention); Ans. 4, 6 (citing this disclosure).
To the extent that Appellant contends that the recited limitations other
than the four additional elements enumerated above, namely those detailed
above in connection with Alice step one, add significantly more to the
abstract idea to provide an inventive concept under Alice/Mayo step two (see
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Appeal Br.), these limitations are not additional elements beyond the
abstract idea, but rather are directed to the abstract idea as noted previously.
See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir.
2018) (explaining that the Supreme Court in Alice “only assessed whether
the claim limitations other than the invention’s use of the ineligible concept
to which it was directed were well-understood, routine and conventional”
(emphasis added)); see also MPEP §§ 2106.05(II), 2106.05(d) (instructing
that additional recited elements should be evaluated in Alice/Mayo step two
to determine whether they (1) add specific limitations that are not well-
understood, routine, and conventional in the field, or (2) simply append
well-understood, routine, and conventional activities previously known to
the industry).
Rather, the claimed (1) “computer-readable storage medium
comprising instructions executable by a processor”; (2) “application
executing on a client computing device”; (3) “toggling a feature flag of the
application”; and (4) “section of executable code” are additional recited
elements whose generic computing functionality is well-understood, routine,
and conventional. See Mortgage Grader, Inc. v. First Choice Loan Servs.
Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (noting that components such
an “interface,” “network,” and “database” are generic computer components
that do not satisfy the inventive concept requirement); accord Spec. ¶ 1
(noting in the Background section that a feature flag is a coding technique
where an application’s features can be toggled); ¶¶ 8–9 (describing using
feature flags in known continuous delivery applications); ¶ 51 (describing
generic computer components used to implement the invention); Ans. 4, 24–
26, 30–31 (determining that the recited additional elements are generic
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computing components that do not add significantly more to the abstract
idea).
Appellant’s contention that the Examiner allegedly did not comply
with the USPTO’s evidentiary requirements for ineligibility rejections after
Berkheimer v. HP, Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) (Appeal Br.
11–12; Reply Br. 2) is unavailing. To be sure, the Examiner must show—
with supporting facts—that certain claim elements are well-understood,
routine, and conventional where such a finding is made. See Berkheimer,
881 F.3d at 1369 (noting that whether something is well-understood, routine,
and conventional to a skilled artisan at the time of the invention is a factual
determination). In light of this factual determination, the USPTO requires
that Examiners support a finding that an additional element, or combination
of additional elements, is well-understood, routine, and conventional. See
MPEP § 2106.05(d)(I)(2).
As noted previously, the recited (1) “computer-readable storage
medium comprising instructions executable by a processor”; (2) “application
executing on a client computing device”; (3) “toggling a feature flag of the
application”; and (4) “section of executable code” are additional recited
elements whose generic computing functionality is well-understood, routine,
and conventional. Therefore, to the extent that Appellant contends that the
Examiner failed to provide evidence that all recited elements—including
those other than the additional elements enumerated above—are well-
understood, routine, and conventional (see Appeal Br. 11–12; Reply Br. 2),
such an argument is not commensurate with the more limited scope of the
Examiner’s finding in this regard. Rather, the Examiner’s finding is that the
elements other than the abstract idea, namely the additional computer-
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based elements, provide generic computing functionality that is well-
understood, routine, and conventional. See Ans. 4, 24–26, 30–31 (noting
that the recited additional elements are conventional generic computing
components and, therefore, do not add significantly more to the abstract
idea).
As noted previously, there is ample evidence of this generic
computing functionality in not only the cited case law, but also Appellant’s
own Specification. See, e.g., FairWarning, 839 F.3d at 1096 (noting that
using generic computing components like a microprocessor or user interface
do not transform an otherwise abstract idea into eligible subject matter);
Spec. ¶ 1 (noting in the Background section that a feature flag is a coding
technique where an application’s features can be toggled); ¶¶ 8–9
(describing using feature flags in known continuous delivery applications);
¶ 51 (describing generic computer components used to implement the
invention); Ans. 30–32 (citing relevant authority).
In conclusion, the additional recited elements—considered
individually and as an ordered combination—do not add significantly more
to the abstract idea to provide an inventive concept under Alice/Mayo step
two when reading claim 1 as a whole. See Alice, 573 U.S. at 221; see also
MPEP § 2106.05.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2–17 and 21–23 not argued separately with particularity.

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Claims 18–20
We also sustain the Examiner’s ineligibility rejection of claims 18–20
for reasons similar to those indicated previously in connection with claim 1
as well as those indicated by the Examiner. See Ans. 6–8, 26–31.
Independent claim 18 recites, in pertinent part, a memory comprising
instructions executable by a processor to estimate whether a user sentiment
is positive, negative, or neutral based on biometric data units, and, based on
this estimated sentiment, toggling an application feature to enable or disable
an associated executable code section using an application feature flag.
Despite Appellant’s arguments to the contrary (Appeal Br. 8–9), the minor
recited distinctions emphasized above do not alter our determination that the
claim as a whole is directed to an abstract idea for the reasons noted above
and by the Examiner
We reach the same conclusion regarding claims 19 and 20.
Independent claim 19 recites a processor that (1) collects biometric data
associated with an end user from a client computing device hosting an
application operated by that user; (2) determining user sentiment data
representing a user sentiment based on the biometric data; and (3) toggling
an application’s feature flag to enable or disable a section of executable code
based on the determined user sentiment data. Despite Appellant’s
arguments to the contrary (Appeal Br. 9), these minor recited distinctions
emphasized above do not alter our determination that the claims as a whole
are directed to an abstract idea for the reasons noted above and by the
Examiner.
Therefore, we are not persuaded that the Examiner erred in rejecting
claims 18–20.
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THE ANTICIPATION REJECTION
Regarding independent claim 1, the Examiner finds that DeLaet
discloses a computer-readable storage medium with instructions executable
by a processor to (1) infer a user sentiment, namely the mood, of an end user
interacting with an application based on the user’s biometric data, and (2)
toggle a feature flag of the application to enable an associated section of
executable code, namely code associated with a presenting game content,
such as notification, hints, or virtual item availability, based on the inferred
sentiment. Final Act. 9; Ans. 32. In reaching this finding, the Examiner
interprets the recited feature flag as any logical action that identifies a
certain feature to invoke the feature. Ans. 32.
Appellant argues that DeLaet does not toggle an application’s feature
flag to enable or disable an enable an associated section of executable code
based on inferred user sentiment as claimed. Appeal Br. 13–14; Reply
Br. 3–4. According to Appellant, DeLaet does not disclose a feature flag,
much less toggle a feature flag as claimed. Appeal Br. 13–14; Reply Br. 3–
4. Appellant adds that DeLaet does not inherently toggle a feature flag
because identifying and presenting online game content may be done in
ways other than toggling a feature flag as claimed. Appeal Br. 13.
Appellant argues other recited limitations summarized below.

ISSUE
Under § 102, has the Examiner erred by finding that DeLaet discloses
a computer-readable storage medium with instructions executable by a
processor to:
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(1) toggle a feature flag of an application to enable or disable an
associated section of executable code based on an inferred user sentiment as
recited in claim 1?
(2) processor-executable instructions to cause a feature flag library to
be integrated with the application, where to toggle the feature flag comprises
to toggle the feature flag using the library as recited in claim 5?

ANALYSIS
Claims 1–3, 9–12, 15, 16, and 18–21
We begin by construing the key disputed limitation of claim 1 that
recites, in pertinent part, a “feature flag.” According to the Specification’s
paragraph 1, “[a] feature flag, also known as a feature toggle, is a coding
technique whereby features of an application (i.e., a software application)
may be toggled (e.g., enable, disabled, hidden, etc.).” The Specification’s
paragraphs 23 and 24 add that feature flags can be statements in application
code or, alternatively, included in an external library. Given this alternative
implementation, the Specification refers to the term “feature flag of an
application” as “a feature flag that operates on the application, regardless of
whether it is included in code of the application or in an external library.”
Spec. ¶ 24.
The import of this description is that a feature flag is a coding
technique that can toggle an application’s features to, among other things,
enable or disable those features. See Spec. 1. According to the
Specification’s paragraph 9, feature flags can be implemented in a variety of
ways including, for example, “if-else” or equivalent statements in an
application’s code according to certain parameters, such as the user’s
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geographic location, where the application’s features are toggled according
to these parameters.
Although this description informs our understanding of feature flags,
as well as exemplary forms of these flags, the Specification does not limit a
feature flag to any particular code to realize this functionality. Rather, the
Specification provides non-limiting examples to describe a “feature flag” in
terms of a technique that can toggle an application’s features via code either
internal or external to the application. Nor does the Specification define the
term “flag” to so limit its interpretation, unlike other terms whose concrete
definitions leave no doubt as to their meaning. See Spec. ¶¶ 6, 10 (defining
various terms explicitly).
We, therefore, construe the term “flag” with its plain meaning in the
art. A noted computer dictionary defines the term “flag” as “[b]roadly, a
marker of some type used by a computer in processing or interpreting
information: a signal indicating the existence or status of a particular
condition. Flags are used in such areas as communications, programming,
and information processing.” Flag, MICROSOFT COMPUTER DICTIONARY 216
(5th ed. 2002) (“Microsoft Computer Dictionary”). According to that
dictionary, “[d]epending on its use, a flag can be a code, embedded in data,
that identifies some condition, or it can be one or more bits set internally by
hardware or software to indicate an event of some type, such as an error or
the result of comparing two values.” Id. (emphasis added).
Our emphasis on the term “or” underscores that, under the first
alternative in the above definition, a flag can be embedded code that
identifies some condition.
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Given this recognized identification function of a flag, we see no error
in the Examiner’s reliance on the functionality of DeLaet’s content
adjustment module for anticipating the recited feature flag that is toggled to
enable an associated section of executable code based on an inferred user
sentiment. See Ans. 9, 32 (interpreting the term “feature flag” as any logical
action that identifies a certain feature to invoke the feature, and finding that
DeLaet’s system identifies game content and enables an associated section
of executable code).
As DeLaet’s Abstract explains, DeLaet’s system adjusts content
presented to users in an online game based on a user’s “mood profile” that
characterizes the user’s mood or emotional state, namely whether the user is
happy, sad, angry, annoyed, confused, etc.—an emotional state that can
indicate the user’s current sentiment towards game participation or
engagement. See DeLaet Abstract; col. 4, ll. 54–63; col. 8, ll. 4–18; col. 9,
ll. 38–64. To this end, a mood module 22 determines a user’s mood profile
based on biometric characteristic information, such as information regarding
the user’s facial features, retina, pulse rate, etc. DeLaet Abstract; col. 3,
ll. 37–46; col. 8, ll. 19–38; Fig. 1.
Based on the user’s mood profile, DeLaet’s content adjustment
module 24 then identifies and presents game content, such as notifications or
hints, to the user. DeLaet Abstract; col. 11, ll. 49–67; Fig. 1.
Given this content identification and presentation functionality,
DeLaet’s content adjustment module effectively toggles a feature flag,
namely via software code that enables particular application features
regarding game content identification and presentation when certain
identified conditions are satisfied. We reach this conclusion emphasizing
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that the functionality of DeLaet’s content adjustment module comports with
that of a flag under the above-noted definition of the term, namely embedded
code that identifies some condition. See Microsoft Computer Dictionary,
at 216.
To be sure, the Examiner’s interpreting the term “feature flag” as any
logical action that identifies a certain feature to invoke the feature (Ans. 32)
is somewhat inartful because, in the context of the claimed invention, a flag
is technically not an action as Appellant indicates. See Reply Br. 3–4.
Rather, as noted above, a flag is embedded code that performs an action,
namely identifying a condition. See Microsoft Computer Dictionary, at 216.
Despite this grammatical inconsistency, we nonetheless see no harmful error
in the Examiner’s interpretation, for it correctly articulates the key
identification function of a flag under the term’s meaning in the art.
Nor do we see error in the Examiner’s finding that the feature flag
associated with DeLaet’s content adjustment module is toggled, at least to
the extent that the associated software code identifies a particular condition
and associated game content, such as notifications. See Ans. 32. This
feature flag toggling effectively enables an associated section of executable
code, namely that associated with presenting the identified game content to
the user based on user’s mood profile. See DeLaet col. 11, ll. 49–67;
Ans. 32–33. That the user’s mood profile reflects an emotional state that can
indicate the user’s current sentiment towards game participation or
engagement (see DeLaet col. 8, ll. 4–18; col. 9, ll. 38–64) means that
DeLaet’s feature flag toggling based on that profile is also based on an
inferred user sentiment. Appellant’s contention, then, that DeLaet does not
disclose a feature flag, much less toggle a feature flag as claimed (Appeal
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Br. 13–14; Reply Br. 3–4) is unavailing and not commensurate with the
scope of the claim that does not preclude the functionality of DeLaet’s
content adjustment module.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2, 3, 9–12, 15, 16, and 18–21 not argued separately with
particularity.

Claim 5
We also sustain the Examiner’s rejection of claim 5 reciting
processor-executable instructions to cause a feature flag library to be
integrated with the application, where to toggle the feature flag comprises to
toggle the feature flag using the library. See Ans. 10, 33–34.
Appellant’s Specification does not define the term “feature flag
library,” unlike other terms whose concrete definitions leave no doubt as to
their meaning. See Spec. ¶¶ 6, 10 (defining various terms explicitly).
Appellant’s Specification does, however, explain that feature flag
integrator 118 may integrate a feature flag library 132 with applications 112,
where the library may (1) comprise code; (2) be stored in feature toggling
system 114; and (3) be copied to each client computing device hosting
application instances. Spec. ¶ 20. The feature flag library can then be
integrated with applications 112, for example, responsive to user input, such
that the feature flag library is accessible by, and interacts with, the
applications, such as a plugin to the applications. Spec. ¶ 21. For each
application, the feature flag library may act as a client side agent that can
toggle application feature flags based on end user sentiment data. Id.
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Although this description informs our understanding of the recited
feature flag library, it is not limiting. We, therefore, construe the term
“feature flag library” under its plain meaning in the art. The term “library”
is defined, in pertinent part, as “[a] collection of software or data files.”
Microsoft Computer Dictionary, at 309. A “feature flag library,” then, is a
collection of software or data files pertaining to feature flags.
With this interpretation, we see no error in the Examiner’s finding that
DeLaet’s content adjustment module includes a feature flag library, namely
a collection of software or data files pertaining to feature flags. See Ans. 10,
33–34 (citing DeLaet col. 1, ll. 61–67; col. 11, ll. 35–43, 61–65; col. 12,
ll. 1–29). Even assuming, without deciding, that DeLaet does not use the
term “library” explicitly as Appellant contends (Appeal Br. 15), DeLaet
nonetheless discloses a feature flag library, namely a collection of software
or data files pertaining to feature flags, that the content adjustment module
uses to toggle a feature flag as claimed. That Appellant does not squarely
address—let alone persuasively rebut—the Examiner’s additional citations
to various passages in DeLaet’s column 11 and 12 for teaching the recited
feature flag library (Ans. 33–34) further weighs in favor of the Examiner.
See Reply Br. 4–5.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 5.

THE OBVIOUSNESS REJECTION OVER DELAET AND KAMAL
Claim 6
We also sustain the Examiner’s rejection of claim 6 reciting the
feature flag is in code of the application. Despite Appellant’s arguments to
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the contrary (Appeal Br. 16–17; Reply Br. 5), we see no error in the
Examiner’s reliance on DeLaet and Kamal for collectively at least
suggesting the recited limitations. See Ans. 16, 26–37.
First, the Examiner’s obviousness rejection is not based on Kamal
alone, but rather on both DeLaet and Kamal. Therefore, Appellant’s
arguments regarding Kamal’s alleged failure to disclose a feature flag and
toggling an application’s feature flag (Appeal Br. 16–17; Reply Br. 5) are
not only unpersuasive for the reasons noted by the Examiner, these
arguments are not germane to the Examiner’s reliance on DeLaet for
teaching those particular features. As noted previously, we find no error the
Examiner’s reliance on DeLaet in that regard. In short, Appellant’s
arguments regarding Kamal’s individual shortcomings do not show
nonobviousness where, as here, the rejection is based on the cited
references’ collective teachings. See In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
Nor does Appellant persuasively rebut the Examiner’s reliance on
Kamal for at least suggesting providing a feature flag, such as that in
DeLaet, in an application’s code. Kamal’s user device 210 includes an
application that generates a program to control device 240—control that is
responsive to an identified condition, including the user’s mood. See Kamal
¶¶ 12, 17, 20.
Given this functionality, we see no error in the Examiner’s rejection
because Kamal at least suggests embedding in application code functionality
that identifies a condition for control purposes and, in light of this teaching,
it would have been obvious to embed a feature flag, such as that in DeLaet,
in application code as claimed. Notably, the very definition of a flag is
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embedded code that identifies some condition (see Microsoft Computer
Dictionary, at 216) as noted previously—a point that only further weighs in
favor of the Examiner. That Appellant does not squarely address—let alone
persuasively rebut—the Examiner’s additional citations to various passages
in Kamal’s paragraphs 17, 24, and 27 (Ans. 36–37) only further weighs in
favor of the Examiner. See Reply Br. 6.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 6.

Claim 7
For reasons similar to those indicated for claim 6, we also sustain the
Examiner’s rejection of claim 7 reciting the feature flag is in code of the
feature flag library. See Ans. 16–17, 37.
Appellant’s arguments with respect to Kamal’s purported
shortcomings regarding the alleged failure to disclose the recited feature flag
library (Appeal Br. 17–18) do not show nonobviousness where, as here, the
rejection is not based on Kamal alone, but rather the collective teachings of
both DeLaet and Kamal. See Merck, 800 F.2d at 1097.
In short, Appellant does not persuasively rebut the Examiner’s
rejection in this regard, particularly given our interpretation of the recited
feature flag library noted previously, namely a collection of software or data
files pertaining to feature flags. In short, DeLaet and Kamal collectively at
least suggest providing a feature flag in code of a feature flag library for the
reasons noted above and by the Examiner. That Appellant does not squarely
address—let alone persuasively rebut—the Examiner’s additional citations
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to various passages in Kamal’s paragraphs 17, 24, and 27 (Ans. 36–37) only
further weighs in favor of the Examiner. See Reply Br. 6.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 7.

Claim 8
We also sustain the Examiner’s rejection of claim 8 reciting toggling a
feature flag by performing a dependency injection of code from the feature
flag library to the application.
Despite Appellant’s arguments to the contrary (Appeal Br. 18–19), we
see no error in the Examiner’s reliance on the cited prior art for at least
suggesting the recited limitations for the reasons noted above and by the
Examiner. Ans. 17, 37–38. That Kamal’s user device generates a program
to control a device (see Kamal ¶¶ 12, 17, 20) also at least suggests a
dependency code injection and, accordingly, the weight of the evidence on
this record favors the Examiner.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 8.

THE OTHER OBVIOUSNESS REJECTIONS
We also sustain the Examiner’s obviousness rejections of claims 4,
13, 14, 17, 22, and 23. Ans. 15, 17–23. Despite nominally arguing these
claims separately, Appellant reiterates similar arguments made in connection
with claim 1, and alleges that the additional cited references fail to cure
those purported deficiencies. Appeal Br. 16, 19–21. We are not persuaded
by these arguments for the reasons previously discussed.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–23 101 Eligibility 1–23
1–3, 5, 9–
12, 15, 16,
18–21
102 DeLaet 1–3, 5, 9–12,
15, 16, 18–21

4, 6–8 103 DeLaet, Kamal 4, 6–8
13 103 DeLaet, Rassi 13
14 103 DeLaet, Rassi,
Nichols
14
17 103 DeLaet, Verma 17
22 103 DeLaet,
Abraham
22
23 103 DeLaet, Mills 23
Overall
Outcome
1–23

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)(1)(iv). See 37
C.F.R. § 41.50(f).

AFFIRMED