HITACHI, LTD.Download PDFPatent Trials and Appeals BoardAug 25, 20212021000043 (P.T.A.B. Aug. 25, 2021) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/443,118 05/15/2015 Masataka SHIRAI H&A-9852 1051 24956 7590 08/25/2021 MATTINGLY & MALUR, PC 1800 DIAGONAL ROAD SUITE 210 ALEXANDRIA, VA 22314 EXAMINER SKIBINSKY, ANNA ART UNIT PAPER NUMBER 1631 NOTIFICATION DATE DELIVERY MODE 08/25/2021 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): ptomail@mmiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MASATAKA SHIRAI, HIDEKI KAMBARA, and KIYOMI TANIGUCHI ____________ Appeal 2021-000043 Application 14/443,118 Technology Center 1600 ____________ Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and ULRIKE W. JENKS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s decision to reject claims 1 and 3–20 (Appeal Br. 3). 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 “Hitachi, Ltd.” (Appellant’s April 13, 2020, Appeal Brief (Appeal Br.) 3). Appeal 2021-000043 Application 14/443,118 2 STATEMENT OF THE CASE Appellant’s disclosure “relates to a technique for clustering and analyzing sample data” (Spec.2 ¶ 1). Appellant’s independent claims 1, 11, and 12 are reproduced below: 1. An analysis apparatus for clustering and analyzing sample data, comprising: [A] a storage medium storing the sample data which represents a plurality of gene expression values of a plurality of single cells; and [B] a processor coupled to the storage medium and programmed to: [C] receive an experimental error datum which describes information about an experimental error of the sample data, [D] obtain in advance a cluster range parameter for stretching a cluster boundary during clustering according to a range of the experimental error which the experimental error datum describes, [E] cluster the sample data in a clustering space according to a temporarily set total cluster number, [F] determine that an exceptional datum among the sample data which does not belong to any cluster belongs to a cluster when an area at a distance determined by the cluster range parameter from the exceptional datum in the clustering space is contained in the cluster, and determine that the exceptional datum forms an independent cluster when the area is not contained in any cluster, and [G] output a result of the clustering, and [H] wherein the processor is further programmed to: [I] determine an optimal total cluster number by repeating a process of calculating a first log-likelihood which indicates the likelihood that the sample data belong to respective clusters obtained by the clustering and a second log-likelihood which 2 Appellant’s May 15, 2015, Specification. Appeal 2021-000043 Application 14/443,118 3 indicates the likelihood that the sample data do not belong to the respective clusters obtained by the clustering until the clustering result calculated using the first log-likelihood and the second log-likelihood reaches a preset threshold, [J] decide a final clustering result of the sample data according to the obtained optimal total cluster number, and [K] output the final clustering result of the sample data in which the single cells are arranged in clusters according to the obtained optimal total cluster number. (Appeal Br. 20–21 (annotated to facilitate discussion below).) 11. A data analysis method for clustering and analyzing sample data, containing: [A] receiving the sample data which represents a plurality of gene expression values of a plurality of single cells; [B] receiving an experimental error datum which describes information about an experimental error of the sample data; [C] obtaining a cluster range parameter for stretching a cluster boundary during clustering according to a range of the experimental error which the experimental error datum describes; [D] clustering the sample data according to a temporarily set total cluster number; [E] determining an exceptional datum among the sample data which does not belong to any cluster belongs to a cluster when an area at a distance determined by the cluster range parameter from the exceptional datum in the clustering space is contained in the cluster, and determining the exceptional datum forms an independent cluster when the area is not contained in any cluster; and [F] outputting a result of the clustering, [G] wherein an optimal total cluster number is determined by repeating a process of calculating a first log-likelihood which indicates the likelihood that the sample data belong to respective clusters obtained by the clustering and a second log- likelihood which indicates the likelihood that the sample data Appeal 2021-000043 Application 14/443,118 4 do not belong to the respective clusters obtained by the clustering until the clustering result calculated using the first log-likelihood and the second log-likelihood reaches a preset threshold, [H] wherein a final clustering result of the sample data is decided according to the obtained optimal total cluster number, and [I] wherein the final clustering result of the sample data in which the single cells are arranged in clusters according to the obtained optimal total cluster number is output. (Id. at 24–25 (annotated to facilitate discussion below).) 12. An analysis apparatus for clustering and analyzing sample data, comprising: [A] a storage medium configured to store the sample data which represent gene expression levels of a plurality of single cells and are a measurement result of the plurality of single cells by single cell analysis; and [B] a processor coupled to the storage medium and programmed to: [C] receive a clustering resolution (CR) value, [D] wherein the processor is further programmed to perform a process of clustering the sample data one or more times, the process including: [E] performing a provisional clustering of the sample data into a plurality of ‘k’ clusters, where k is greater than or equal to 2; [F] for each cluster in the provisional clustering: [G] determine whether an exceptional datum is present in the sample data of the respective cluster; [H] when the exceptional datum is not present in the respective cluster: [I] calculate a cluster center and a standard deviation of the sample data in the respective cluster, and normalize the sample data, Appeal 2021-000043 Application 14/443,118 5 [J] calculate an inverse matrix of a correlation matrix of the sample data in the respective cluster, and [K] calculate a first distance between each of the sample datum and the cluster center of the respective cluster; [L] when the exceptional datum is present in the respective cluster: [M] calculate the cluster center of the sample data in the respective cluster, and normalize the sample data using the cluster center and the CR value, and [N] calculate a second distance between each of the sample datum and the cluster center of the respective cluster; [O] calculate, for each sample datum not in the respective cluster, a probability that the respective sample datum does not belong to the respective cluster using a first distribution in which the probability increases with distance of the respective sample datum from the cluster center; [P] calculate, for each sample datum in the respective cluster, a probability that the respective sample datum belongs to the respective cluster using a second distribution in which the probability decreases with distance of the respective sample datum from the cluster center; [Q] calculate, for each sample datum, a log-likelihood value from the calculated probability thereof; [R] calculate a sum of the log-likelihood values of all the sample data to determine a likelihood of the respective cluster; and [S] sum the log-likelihoods of all of the clusters in the provisional clustering, and divide the calculated sum by k, [T] wherein the sample data are repeatedly provisionally clustered into different k provisional clusters until the summed Appeal 2021-000043 Application 14/443,118 6 log-likelihood of all of the clusters in the provisional clustering is less than or equal to a predetermined threshold, and [U] wherein the processor is further programmed to store and output the summed log-likelihood of the provisional clustering which is less than or equal to the predetermined threshold and the clusters of the sample data corresponding to the summed log-likelihood of the provisional clustering which is less than or equal to the predetermined threshold. (Id. at 25–27 (annotated to facilitate discussion below).) Claims 1 and 3–20 stand rejected under 35 U.S.C. § 101. ISSUE Does the preponderance of evidence of record support Examiner’s finding that Appellant’s claimed invention is directed to patent-ineligible subject matter? PRINCIPLES OF LAW 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. 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, Appeal 2021-000043 Application 14/443,118 7 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. 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 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 Appeal 2021-000043 Application 14/443,118 8 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 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 (internal 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 Section 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) (“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. 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). Appeal 2021-000043 Application 14/443,118 9 Under the 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”).4 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. ANALYSIS Appellant’s independent claims 1, 11, and 12 are reproduced above. Appellant’s claims 3–10 depend directly or indirectly from Appellant’s 4 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See Guidance — Section III(A)(2), 84 Fed. Reg. at 54–55. Appeal 2021-000043 Application 14/443,118 10 claim 1. Appellant’s claims 13–20 depend directly or indirectly from Appellant’s claim 20. (Step 1) We first consider whether the claimed subject matter falls within the four statutory categories set forth in § 101, namely “[p]rocess, machine, manufacture, or composition of matter.” Guidance, 84 Fed. Reg. at 53–54; see 35 U.S.C. § 101. Appellant’s independent claims 1 and 12 are directed to an apparatus, i.e., a machine. Appellant’s independent claim 11 is directed to a method, i.e., a process. Thus, Appellant’s claims 1, 11, and 12 are directed to statutory subject matter. Therefore, we proceed to the next steps of the analysis. (Step 2A, Prong 1) The apparatus of Appellant’s claim 1 comprises, inter alia, a processor [B] and [H] programmed to, inter alia,: [E] cluster the sample data in a clustering space according to a temporarily set total cluster number, [F] determine that an exceptional datum among the sample data which does not belong to any cluster belongs to a cluster when an area at a distance determined by the cluster range parameter from the exceptional datum in the clustering space is contained in the cluster, and determine that the exceptional datum forms an independent cluster when the area is not contained in any cluster, [I] determine an optimal total cluster number by repeating a process of calculating a first log-likelihood which indicates the likelihood that the sample data belong to respective clusters obtained by the clustering and a second log-likelihood which indicates the likelihood that the sample data do not belong to the respective clusters obtained by the clustering until the clustering result calculated using the first log-likelihood and the second log-likelihood reaches a preset threshold, and Appeal 2021-000043 Application 14/443,118 11 [J] decide a final clustering result of the sample data according to the obtained optimal total cluster number. The method of Appellant’s claim 11 comprises, inter alia,: [D] clustering the sample data according to a temporarily set total cluster number, [E] determining an exceptional datum among the sample data which does not belong to any cluster belongs to a cluster when an area at a distance determined by the cluster range parameter from the exceptional datum in the clustering space is contained in the cluster, and determining the exceptional datum forms an independent cluster when the area is not contained in any cluster, [G] wherein an optimal total cluster number is determined by repeating a process of calculating a first log-likelihood which indicates the likelihood that the sample data belong to respective clusters obtained by the clustering and a second log- likelihood which indicates the likelihood that the sample data do not belong to the respective clusters obtained by the clustering until the clustering result calculated using the first log-likelihood and the second log-likelihood reaches a preset threshold, and [H] wherein a final clustering result of the sample data is decided according to the obtained optimal total cluster number. The apparatus of Appellant’s claim 12 comprises, inter alia, a processor [B], [D], and [H] programmed to, inter alia,: [D] perform a process of clustering the sample data one or more times, [E] performing a provisional clustering of the sample data into a plurality of ‘k’ clusters, where k is greater than or equal to 2, [F] for each cluster in the provisional clustering: Appeal 2021-000043 Application 14/443,118 12 [G] determine whether an exceptional datum is present in the sample data of the respective cluster, [H] when the exceptional datum is not present in the respective cluster: [I] calculate a cluster center and a standard deviation of the sample data in the respective cluster, and normalize the sample data, [J] calculate an inverse matrix of a correlation matrix of the sample data in the respective cluster, [K] calculate a first distance between each of the sample datum and the cluster center of the respective cluster, [L] when the exceptional datum is present in the respective cluster: [M] calculate the cluster center of the sample data in the respective cluster, and normalize the sample data using the cluster center and the CR value, [N] calculate a second distance between each of the sample datum and the cluster center of the respective cluster, [O] calculate, for each sample datum not in the respective cluster, a probability that the respective sample datum does not belong to the respective cluster using a first distribution in which the probability increases with distance of the respective sample datum from the cluster center, [P] calculate, for each sample datum in the respective cluster, a probability that the respective sample datum belongs to the respective cluster using a second distribution in which the probability decreases with distance of the respective sample datum from the cluster center, [Q] calculate, for each sample datum, a log-likelihood value from the calculated probability thereof, [R] calculate a sum of the log-likelihood values of all the sample data to determine a likelihood of the respective cluster, [S] sum the log-likelihoods of all of the clusters in the provisional clustering, and divide the calculated sum by k, and Appeal 2021-000043 Application 14/443,118 13 [T] wherein the sample data are repeatedly provisionally clustered into different k provisional clusters until the summed log-likelihood of all of the clusters in the provisional clustering is less than or equal to a predetermined threshold. Determining, deciding, summing, calculating, and clustering of data steps are mental processes as well as comprising mathematical concepts. See Guidance, 84 Fed. Reg. at 52; see also Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (“[A]n invention directed to collection, manipulation, and display of data was an abstract process”); see also Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (“Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible”); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) (“The mere manipulation or reorganization of data . . . does not satisfy the transformation prong”). Alice, 573 U.S. at 221 (“[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.”). Thus, we find no error in Examiner’s finding that Appellant’s claims 1, 11, and 12 recite judicial exceptions (see Ans.5 3–5). (Step 2A, Prong 2) Having determined that Appellant’s claims recite a judicial exception, the Guidance requires an evaluation as to whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. See Guidance, 84 Fed. Reg. at 54. 5 Examiner’s July 21, 2020, Answer. Appeal 2021-000043 Application 14/443,118 14 As discussed above, the determining, deciding, summing, calculating, and clustering of data steps are abstract ideas, specifically mental processes and mathematical concepts. Looking, however, at the claim as a whole, we find that Appellant’s independent claims 1, 11, and 12 comprise the following additional steps or limitations: Claim 1: [A] a storage medium storing the sample data which represents a plurality of gene expression values of a plurality of single cells; and [B] a processor coupled to the storage medium and programmed to: [C] receive an experimental error datum which describes information about an experimental error of the sample data, [D] obtain in advance a cluster range parameter for stretching a cluster boundary during clustering according to a range of the experimental error which the experimental error datum describes, [G] output a result of the clustering, and [H] wherein the processor is further programmed to: [K] output the final clustering result of the sample data in which the single cells are arranged in clusters according to the obtained optimal total cluster number. Claim 11: [A] receiving the sample data which represents a plurality of gene expression values of a plurality of single cells; [B] receiving an experimental error datum which describes information about an experimental error of the sample data; [C] obtaining a cluster range parameter for stretching a cluster boundary during clustering according to a range of the experimental error which the experimental error datum describes; Appeal 2021-000043 Application 14/443,118 15 [F] outputting a result of the clustering, [I] wherein the final clustering result of the sample data in which the single cells are arranged in clusters according to the obtained optimal total cluster number is output. Claim 12: [A] a storage medium configured to store the sample data which represent gene expression levels of a plurality of single cells and are a measurement result of the plurality of single cells by single cell analysis; and [B] a processor coupled to the storage medium and programmed to: [C] receive a clustering resolution (CR) value, [D] wherein the processor is further programmed to [U] wherein the processor is further programmed to store and output the summed log-likelihood of the provisional clustering which is less than or equal to the predetermined threshold and the clusters of the sample data corresponding to the summed log-likelihood of the provisional clustering which is less than or equal to the predetermined threshold. The storage medium and processor limitations of Appellant’s apparatus claims are generic computer limitations and, therefore, fail to integrate the judicial exception into a practical application. See Alice, 573 U.S. at 221 (“[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.”); see also Guidance, 84 Fed. Reg. at 55 (Discussing “examples in which a judicial exception has not been integrated into a practical application,” include recitations that “merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea”). Appeal 2021-000043 Application 14/443,118 16 The remaining storing, receiving, obtaining, outputting limitations add insignificant extra-solution activity to the judicial exception and, thus, are not sufficient to integrate the judicial exception into a practical application. See also Guidance, 84 Fed. Reg. at 55; see also Ans. 5–6; MPEP § 2106.05(g). (Step 2B) Having determined that Appellant’s claims: (1) recite a judicial exception and (2) do not integrate that exception into a practical application, the Guidance requires that we evaluate whether Appellant’s claims: (a) add a specific limitation beyond the judicial exception that is not “well- understood, routine, conventional” in the field or (b) 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. On this record, we find no additional limitations that are not the judicial exceptions or insignificant extra-solution activity discussed above (see Ans. 6 (Examiner finds that Appellant’s “claims do not include additional elements that are sufficient to amount [to] . . . significantly more than the judicial exception”)). Thus, we find that Appellant’s claims do not add a specific limitation beyond the judicial exception that is not “well- understood, routine, conventional” in this field as required by the Guidance. Appellant contends that Examiner failed to consider claims 1, 11, and 12 as a whole under the second prong of Step 2A, because Examiner failed to consider the additional elements together with the judicial exceptions (Appeal Br. 12–17). We are not persuaded. Claim limitations describing the Appeal 2021-000043 Application 14/443,118 17 excluded subject matter cannot satisfy the second step of the Alice analysis. See BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It 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.”). We are not persuaded by Appellant’s contention that Examiner failed to properly evaluate claims 1, 11, and 12 under Step 2B (see Appeal Br. 17– 18). In support of this assertion, Appellant directs attention to limitations, which as discussed above, are either abstract ideas or extra-solution activity (see id.). Claim limitations describing the excluded subject matter cannot satisfy the second step of the Alice analysis. See SAP Am. Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (“No matter how much of an advance in the finance field the claims recite, the advance lies entirely in the realm of abstract ideas, with no plausibly alleged innovation in the non- abstract application realm. An advance of that nature is ineligible for patenting.”); BSG Tech, 899 F.3d at 1290 (“It 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.”); Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring) (“Berkheimer. . . leave[s] untouched the numerous cases from [the Federal Circuit] which have held claims ineligible because the only alleged ‘inventive concept’ is the abstract idea.”). For the foregoing reasons, we are not persuaded by Appellant’s contention that “Examiner has failed to comply with the requirements of the Berkheimer Memorandum and MPEP [§] 2106.05(d)” (Appeal Br. 18). Appeal 2021-000043 Application 14/443,118 18 CONCLUSION The preponderance of evidence of record supports Examiner’s finding that Appellant’s claimed invention is directed to patent-ineligible subject matter. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–20 101 Eligibility 1, 3–20 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) (2019). AFFIRMED Copy with citationCopy as parenthetical citation