Jason Carter et al.Download PDFPatent Trials and Appeals BoardNov 12, 20202020002009 (P.T.A.B. Nov. 12, 2020) 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. 13/551,599 07/17/2012 Jason A. Carter 058083-0857865(2234US01) 6041 72058 7590 11/12/2020 Kilpatrick Townsend & Stockton LLP/Adobe Adobe Systems, Inc. 58083 Mailstop: IP Docketing - 22 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 EXAMINER BUSCH, CHRISTOPHER CONRAD ART UNIT PAPER NUMBER 3681 NOTIFICATION DATE DELIVERY MODE 11/12/2020 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): KTSDocketing2@kilpatrick.foundationip.com ipefiling@kilpatricktownsend.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JASON A. CARTER and KEVIN G. SMITH ____________ Appeal 2020-002009 Application 13/551,599 Technology Center 3600 ____________ Before HUBERT C. LORIN, CYNTHIA L. MURPHY, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant2 appeals from the Examiner’s final decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We note prior Decision, appeal 2016-007341, mailed May 3, 2018, affirming the rejections under 35 U.S.C. §§ 112, 101 and reversing the rejections under 35 U.S.C. § 103(a). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as “Adobe Systems Incorporated.” Appeal Br. 1. Appeal 2020-002009 Application 13/551,599 2 CLAIMED SUBJECT MATTER The Appellant’s invention relates to “methods and systems for keyword-based traffic refinement,” particularly for use in marketing campaigns and displaying advertisements. Spec. ¶ 4. Claims 1, 10, and 15 are the independent claims on appeal. Claim 1 (Appeal Br. 27–28 (Claims App.)) is exemplary of the subject matter on appeal and is reproduced below (lettered bracketing added for reference). 1. A method for modifying how one or more search engines return search results in response to use of keywords in search engine queries, the method comprising: performing by one or more computers: [(a)] receiving queries at the one or more search engines, wherein the queries use a keyword as a search criteria; [(b)] displaying advertisements from a network site in search results based on an advertisement group associating the displayed advertisements with the keyword; [(c)] receiving analytics data, at a keyword traffic refinement manager, for each of the displayed advertisements by identifying analytics data for a network site accessed by the respective displayed advertisement being activated in the search results; [(d)] segmenting the analytics data, using an analytics data segmenter of the keyword traffic refinement manager, for the keyword in the displayed advertisements; [(e)] calculating performance data, using a performance analyzer of the keyword traffic refinement manager, for the displayed advertisements using the segmented analytics data; [(f)] storing results of the analytics data segmenter and the performance analyzer at a data store of the keyword traffic refinement manager; Appeal 2020-002009 Application 13/551,599 3 [(g)] moving the displayed advertisements between advertisement groups based on the calculated performance data for the displayed advertisements by identifying advertisements that are candidates for a new advertisement group that includes a second keyword used m a keyword- based search engine marketing campaign, wherein the new advertisement group associates the identified advertisements with the second keyword such that the identified advertisements are displayed in search results for queries that use the second keyword; [(h)] receiving additional queries at the one or more search engines, wherein the additional queries use the second keyword as the search criteria; and [(i)] selecting and displaying the identified advertisements of the new advertisement group in response to use of the second keyword in the additional queries received by the one or more search engines. THE REJECTION Claim 1–20 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. OPINION The Appellant argues claims 1–20 together. See Appeal Br. 5, 6, 25. Therefore, we consider these claims as a group with claim 1 representative and the rejections of claims 2–20 standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). 35 U.S.C. § 101 Framework 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. Appeal 2020-002009 Application 13/551,599 4 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.”). 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))). Appeal 2020-002009 Application 13/551,599 5 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 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. USPTO Section 101 Guidance We are also guided by U.S. Patent and Trademark Office (“USPTO”) Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility Appeal 2020-002009 Application 13/551,599 6 Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”), incorporated into the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104–06, Rev. 10.2019 (“MPEP”) in June 2020. “The guidance sets out agency policy with respect to the USPTO’s interpretation of the subject matter eligibility requirements of 35 U.S.C. § 101 in view of decisions by the Supreme Court and the Federal Circuit.” Guidance, 84 Fed. Reg. at 51. Although “[a]ll USPTO personnel are, as a matter of internal agency management, expected to follow the guidance,” the guidance “does not create any right or benefit, substantive or procedural, enforceable by any party against the USPTO.” Id. The Guidance, by its terms, applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id. at 50. Under USPTO Guidance, we first look to whether the claim recites: (1) any judicial exceptions, including laws of nature, natural phenomena, and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b)) (“Step 2A, Prong One”); and (2) additional elements that integrate the judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2), 2106.04(d)) (“Step 2A, Prong Two”).3 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 additional elements, individually or in combination, 3 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, MPEP § 2106.04(d). Appeal 2020-002009 Application 13/551,599 7 provide an inventive concept. See MPEP §§ 2106(III), 2106.05. “An inventive concept ‘cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376, (Fed. Cir. 2016)). Among the considerations in determining whether the additional elements, individually or in combination, amount to significantly more than the exception itself, we look to whether they add a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field or simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56. Step One of the Mayo/Alice Framework Under the first step of the Mayo/Alice framework and Step 2A, Prong One of USPTO guidance, the Examiner determines that independent claim 1 is “directed to the abstract idea of selecting and displaying advertisements based on the analysis of their performance data,” which the Examiner characterizes as “a mental process (i.e. a process that can be performed in the human mind, or by a human using a pen and paper) and a method of organizing human activity (i.e. advertising and marketing activities).” Final Act. 2 (citing Guidance). Under Prong Two of USPTO guidance, the Examiner also determines that “this judicial exception is not integrated into a practical application because it merely uses a computer as a tool to perform the abstract idea, and generally links the use of the judicial exception to a particular technological environment (i.e. the internet).” Id. at 2–3. Appeal 2020-002009 Application 13/551,599 8 The Appellant disagrees and contends that, under Prong One, claim 1 is “directed to modifying how one or more search engines return search results, rather than being directed to the abstract ideas of ‘collecting data, analyzing the data, and providing results of the data collection and analysis,’ as alleged in the Office Action at page 3.’” Appeal Br. 8. Under Prong Two, the Appellant contends that the claim integrates the judicial exception into a practical application, as the term is used in USPTO Guidance because it is “directed to a technical improvement of how search engines return search results” (id. at 7), and especially to “a particular solution to problems associated with computing systems that use keyword search queries in search engine marketing campaigns” (id. at 8). See also id. at 9–18; Reply Br. 2–3. Under the first step of the Mayo/Alice framework and Step 2A USPTO guidance, we first determine to what claim 1 is directed, i.e., whether claim 1 recites an abstract idea and if so, whether claim 1 is directed to that abstract idea. The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claim is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335–36. Here, it is clear from the Specification, including the claim language, that claim 1 focuses on an abstract idea, and not on any improvement to technology and/or a technical field. Appeal 2020-002009 Application 13/551,599 9 Reciting a Judicial Exception The Specification provides for “Systems And Methods For Keyword- Ad Pairing.” Spec., Title. In the “BACKGROUND” section, the Specification discusses known internet search engines “(e.g., Google™, Bing™, Yahoo!™),” that offer the capability to search for websites based on keywords. Id. ¶ 1. “To increase the volume of traffic to their website, business owners create a Search Engine Marketing (SEM) campaign to bid on keywords that correspond to terms entered by users at a search engine,” the campaigns including advertisement group(s) with advertisement(s) and keyword(s). Id. Businesses with higher bids may have their advertisements appear higher in the search results presented to the user and expect to achieve greater visibility for their business as a result. See id. “To assist business owners managing their campaigns, search engines offer data for analyzing their respective SEM campaigns,” such as the number of impressions (the number of times the advertisement appeared in the results to a query), the number of clicks (the number of times a user selected the advertisement), tracking costs, and other data such as keyword recommendations. Id. ¶ 2. The Specification discusses the problem with this approach in that while the data provides basic information regarding the campaign, there is not a direct method for optimizing the keywords or advertisements based on the performance of the keywords or advertisements in the SEM campaign. Thus, businesses can not effectively manage their keyword bid costs and refine the traffic to their website to ensure a high return on investment. Id. ¶ 3. The invention ostensibly aims to address this problem by providing “[v]arious embodiments of methods and systems for keyword-based traffic Appeal 2020-002009 Application 13/551,599 10 refinement,” comprising receiving a plurality of queries entered at a search engine that resulted in advertisements associated with the keyword being displayed in response, receiving analytics data for those associated advertisements, segmenting that analytics data, and analyzing that data “per keyword to determine advertisements that are candidates for new advertisement groups in the keyword-based search engine marketing campaign.” Id. ¶ 4. Claim 1, however, recites “[a] method for modifying how one or more search engines return search results in response to use of keywords in search engine queries, the method comprising” nine steps performed by one or more computers. Appeal Br. 27–28 (Claims App.) We consider claim 1 as a whole4 giving it the broadest reasonable construction5 as one of ordinary skill in the art would have interpreted it in light of the Specification6 at the time of filing. The steps performed by the computer(s) of claim 1 are: (a), (c), and (h) of receiving data of queries that “use a keyword as a search criteria,” analytics data, and additional queries that use a second keyword; (b) and (i) of displaying data of advertisements based on and in response to their association with the keywords; (d) “segmenting the analytics data”; 4 “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diehr, 450 U.S. at 188. 5 Revised Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation . . . .”) (emphasis added). 6 “First, it is always important to look at the actual language of the claims. . . . Second, in considering the roles played by individual limitations, it is important to read the claims ‘in light of the specification.’” Smart Sys. Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1378 (Fed. Cir. 2017) (J. Linn, dissenting in part and concurring in part) (citing Enfish, 822 F.3d at 1335, among others). Appeal 2020-002009 Application 13/551,599 11 (e) “calculating performance data”; (f) storing the results of the segmenting and calculating; (g) moving the displayed advertisements based on the calculating by identifying candidates of a new group that include a second keyword, and (i) selecting the identified advertisements for display. Appeal Br. 27–28 (Claims App.). The computer or computing system is a generic, conventional computing device that includes general-purpose processor(s), memory, input/output interface, network interface, and input/output devices including a display. See Spec. ¶¶ 69–78. We note that there are no recited steps for performing searches or how those searches are performed, and the Specification refers to search engines as known, available search engines. See id. ¶¶ 1, 19 (providing examples such as “Google™, Bing™, Yahoo!™”). Receiving and displaying data (limitations (a), (b), (c), (h), and (i)) are extra-solution activities. See Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–54 (Fed. Cir. 2016); In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc), aff’d sub nom Bilski v. Kappos, 561 U.S. 593 (2010) (characterizing data gathering steps as insignificant extra-solution activity). Storing data (limitation (f)) is a mental process. See Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (“The concept of data collection, recognition, and storage is undisputedly well-known. Indeed, humans have always performed these functions.”). The limitations of segmenting and calculating data and moving advertisements (limitations (d), (e), and (g)) are recited functionally without details on how, technologically or by what algorithm, they are performed. Appeal 2020-002009 Application 13/551,599 12 Segmenting data, for which the Specification provides no further detail, is a way of organizing content by, for example, dividing and grouping similar data, which is a mental process. See Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1333–34 (Fed. Cir. 2015) (using hierarchies “is a building block, a basic conceptual framework for organizing information”). Calculating performance data is also a mental process. See Electric Power, 830 F.3d at 1354 (Fed. Cir. 2016) (citing cases) (“we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes”). Moving advertisements is performed by identifying advertisements that are candidates, i.e., a mental process of evaluation, into a new group of advertisements, i.e., a mental process of organizing data. Limitation (i) of selecting and displaying the identified advertisements is merely presenting the results of the analyses. See Electric Power, 830 F.3d at 1354 (“merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation) is abstract as an ancillary part of such collection and analysis.”). When considered collectively and under the broadest reasonable interpretation, we agree with the Examiner that the limitations of claim 1 recite a way of “selecting and displaying advertisements based on the analysis of their performance data” by receiving, organizing, analyzing data and selecting and displaying data based on the results of the analyses.7 This 7 We note that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 Appeal 2020-002009 Application 13/551,599 13 is an abstract idea comprising “[m]ental processes—concepts performed in the human mind (including an observation, evaluation, judgment, opinion)” and a “[c]ertain method[] of organizing human activity— . . . commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations).” Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(II)(B). Our reviewing court has held similar concepts to be abstract. For example, the Federal Circuit has held abstract the concepts of “customizing a user interface” such as with targeted advertising based on demographic information in Affinity Labs. of Texas, LLC v. Amazon.com, Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016), “customizing web page content as a function of navigation history and information about the user” in Intellectual Ventures I LLL v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (“Capital One Bank”), collecting, analyzing, and displaying the results in Electric Power, 830 F.3d at 1354, “receiving or collecting data queries, analyzing the data query, retrieving and processing the information constituting a response to the initial data query, and generating a visual or audio response to the initial data query” in West View Research, LLC v. Audi AG, 685 F. App’x 923, 926 (Fed. Cir. 2017), “targeted advertising and bidding to display the advertising, which are both abstract ideas relating to customizing information based on the user and matching them to the advertiser” in In re Morsa, 809 F. App’x 913, 917 (Fed. Cir. 2020), cert. denied sub nom. Morsa v. Iancu, No. 20-32, 2020 WL 5883301 (U.S. Oct. 5, 2020), and “filter[ing] information for relevance to a user’s query using (Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. at 1241. Appeal 2020-002009 Application 13/551,599 14 combined content and collaborative data” in I/P Engine, Inc. v. AOL Inc., 576 F. App’x 982, 994 (Fed. Cir. 2014) (J. Mayer, concurring). We disagree with the Appellant’s contention that claim 1 recites a way of “modifying how search engines return search results.” Appeal Br. 8; see also Reply Br. 3. None of the limitations recites modifying the basic structure or method of search engines to return results. The claim only uses known, available search engines to receive queries using first and second keywords as search criteria. Thereafter, advertisements are displayed in the search results – the claim does not recite how those search results are determined or how the known search engines’ method(s) of determining results are modified. Rather, as discussed above, the claim recites a way of using search engines, analyzing data, and performing the action of moving/adjusting the display of advertisements based on the analysis, which may or may not be part of the search results. Having concluded that claim 1 recites a judicial exception under the Revised Guidance, Step 2A, Prong One, we next consider whether the claim recites additional elements that integrate the judicial exception into a practical application. Integration into a Practical Application We look to whether the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception,” i.e., “integrates a judicial exception into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP § 2106.04(d). We note that, as stated above, the question is whether the claims as a whole “focus on a specific means or method that improves the Appeal 2020-002009 Application 13/551,599 15 relevant technology” or are “directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016). Here, the only additional elements recited in claim 1 beyond the abstract idea are the “one or more computers,” “one or more search engines,” “network site,” “keyword traffic refinement manager,” “analytics data segmenter,” “performance analyzer,” and “data store” — elements that are described in the Specification as generic computer and available, off-the- shelf components. See, e.g., Spec. ¶¶ 19–23, 69–79, 173; Figs. 1, 10 (e.g., ¶ 78 “the computer system and devices may include any combination of hardware or software that can perform the indicated functions, including computers, network devices, internet appliances, PDAs, wireless phones, pagers, etc.”). We note that the Specification does not provide a specific structural component for “network site,” “analytics data segmenter,” or “performance analyzer,” but they appear to comprise a conventional webpage or website, a conventional server, or a conventional processor or software, respectively. See id. ¶¶ 18–21; Fig. 1. As is clear from the Specification, there is no indication that the operations recited in claim 1 require any specialized computer hardware or other inventive computer components, i.e., a particular machine, invoke any asserted inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent- eligible.”). We also find no indication in the Specification that the claimed Appeal 2020-002009 Application 13/551,599 16 invention as recited in claim 1 effects a transformation or reduction of a particular article to a different state or thing. We are not persuaded of Examiner error by the Appellant’s argument that “the claims are directed to a technical improvement of how search engines return search results.” Appeal Br. 7; see also Reply Br. 3–4. The Appellant argues that the “claims recite a particular solution to problems associated with computing systems that use keyword search queries in search engine marketing campaigns. See Specification, ¶¶ [0002]-[0003],” in particular to “optimizing keyword and advertisement performance.” Appeal Br. 8; see also Reply Br. 3–4. However, the Appellant does not provide adequate reasoning or evidence, and we do not see from the claim, how the limitations claim a technological solution to a computer-based problem, i.e., a solution “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” DDR Holdings, 773 F.3d at 1257. The court in DDR noted that “not all claimed purporting to address Internet-centric challenges are eligible for patent.” Id. As discussed above, the Specification provides that the problem the invention aims to address is that the lack of “a direct method for optimizing the keywords or advertisements based on the performance of the keywords or advertisements in the SEM campaign” leads to businesses “not effectively manag[ing] their keyword bid costs and refine the traffic to their website to ensure a high return on investment.” Spec. ¶ 3. This problem with cost-effective, better advertising is a problem that existed prior to the Internet. See, e.g., Capital One Bank, 792 F.3d at 1369–71 (determining that tailoring advertisements in television commercials and newspaper ads has been long prevalent and not a Appeal 2020-002009 Application 13/551,599 17 problem unique to the Internet). At best, the problems are computer-based, but are not specifically arising in the realm of computer networks. See Bridge and Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 887, 891 (finding that “targeted marketing and market segmentation were developed to increase the effectiveness of advertisements placed in traditional media such as radio, television, and printed newspapers and magazines” are not “problems necessarily rooted in computer technology,” but “recite the performance of a business practice known from the pre- internet world.”). Further, the purported solution of segmenting the analytics data, calculating performance data, and moving the displayed advertisements based on analyzing the analytics data (Appeal Br. 9; see also Reply Br. 4) is not rooted in computer technology. This purported solution requires the use of a generic computer or computer system. See supra; see also Alice, 573 U.S. at 224–26. The Appellant does not, and cannot, claim to have invented the use of the computer or search engine. The “focus” of the claim is not “on the specific asserted improvement in computer capabilities” (Enfish, 822 F.3d at 1336), but rather on using the computer as a tool to implement the abstract idea in the particular field of online searches and advertising. The claim recites steps that are mental processes and uses a computer in its ordinary capacity to receive, display, segment/organize, calculate, store, move/organize, and select data. That the claim uses the results of the analysis to provide better information to online search engines (see Appeal Br. 9) combined with the additional elements outside the abstract idea at best limit the invention to a particular technical/computer environment of online searches and advertising and do not make the claim less abstract. See Alice, Appeal 2020-002009 Application 13/551,599 18 573 U.S. at 223 (holding that attempting to limit the use of an abstract idea to a particular technological environment does not make a claim patent- eligible) (quoting Bilski, 561 U.S. at 610–11); Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016) (“The Supreme Court and [the Federal Circuit] have repeatedly made clear that merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract.”). Any purported improvement lies in the analysis and organizing of data, i.e., an improvement in the abstract idea itself, not an improvement to any technological component or functionality. Segmenting, calculating, and moving data do not comprise “an improvement in networking or computer functionality” as they do not “enable[] a computer . . . to do things it could not do before.” Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. 2018). Rather, the claim’s focus is “not a physical-realm improvement but an improvement in a wholly abstract idea,” that is not eligible for patenting.” SAP Am., 898 F.3d 1161 at 1168; see also Bridge & Post, 778 at 893 (Fed. Cir. 2019) (“Where a claim’s ‘essential advance’ is abstract, a novel method of performing the advance ‘does not avoid the problem of abstractness.’”) (quoting Affinity Labs, 838 F.3d at1263). Regarding the Appellant’s argument that claim 1 is similar to those of McRO (see Appeal Br. 7–14; Reply Br. 5–6), the claims there were directed to a specific improvement in computer technology. In McRO, the claims were directed to computer animation and used rules to automate a subjective task of humans to create a sequence of synchronized, animated characters. See McRO, 837 F.3d at 1314–15. Unlike Flook, Bilski, and Alice, it was not Appeal 2020-002009 Application 13/551,599 19 the use of the computer, but the incorporation of the rules that improved an existing technological process. Id. at 1314. Here, as discussed above, there is no such improvement to technology or a technological process. The Appellant does not assert an improvement in the technical or technological aspects of the process, but merely that the process is not the same as previous techniques. See Appeal Br. 13. And, there is no requirement of “control[ling] when certain visual content will be displayed” (id. (emphasis added)), but merely that certain content, “i.e., clickable advertisements,” (id.) is displayed based on the results of the analyses. As discussed above, any improvement to selecting and displaying certain advertisements lies in the process itself, not to any technological improvement. See BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287–88 (Fed. Cir. 2018). The Appellant also does not direct our attention to anything in the Specification to indicate that the invention provides a technical improvement in the analysis or display of data or that claim 1 incorporates rules to automate a subjective task of humans, similar to those in McRO. We similarly disagree with the Appellant’s contention that claim 1 is similar to those of Data Engine Technologies, LLC v. Google LLC, 906 F.3d 999 (Fed. Cir. 2018). See Appeal Br. 14–17. In Data Engine, the Federal Circuit found the claims did not recite patent ineligible subject matter because they recited a specific, user interface solution to known problems with computerized spreadsheets, in particular, “a specific structure (i.e., notebook tabs) within a particular spreadsheet display that performs a specific function (i.e., navigating within a three-dimensional spreadsheet).” Data Engine, 906 F.3d at 1010–11. Specifically, the court credited an article Appeal 2020-002009 Application 13/551,599 20 identifying the technological problem at issue, namely, “the industry’s view that ‘keeping large, complex worksheet projects organized, manageable, and reliable ha[d] long been a major concern.’” Id. at 1004 (alteration in original); see also id. at 1008. For the technological solution, the court credited seven articles that “tout[ed] the advantages of its use of notebook tabs to improve navigation through three-dimensional spreadsheets.” Id. at 1004. In particular, the Federal Circuit noted, in one article, that “[t]he invention was applauded by the industry for improving computers’ functionality as a tool able to instantly access all parts of complex three- dimensional electronic spreadsheets.” Id. at 1008. In contrast, claim 1 here does not recite specific implementation details of any particular user interface, computer, or search engine technology, and the claim lacks any specific means or technological detail for achieving the Appellant’s asserted improvement — the “functionality” of a search engine “for accessing and displaying relevant information.” Appeal Br. 14. As discussed above, the claim merely requires the available search engine(s) to receive queries (and at best using those keywords as search criteria), but the actual displaying, receiving, segmenting, calculating, segmenting, moving, and selecting are performed by the conventional computer. As discussed above, claim 1 does not provide a technical solution to then-existing technological problems in computers and search engines. At best, the process is improved but not the particular technological components. Rather, claim 1 more resembles those claims in Data Engine that were found patent ineligible because they were more general and did not recite a “specific technical solution and improvement in electronic spreadsheet functionality.” Data Engine, 906 F.3d at 1012. Appeal 2020-002009 Application 13/551,599 21 We are not persuaded that the claim is integrated into a practical application by the Appellant’s argument that “The Board has found similar claims patent eligible for integrating any abstract idea into a practical application.” Appeal Br. 17; see also id. at 16 (citing non-precedential cases); Reply Br. 6–7. The Specifications, inventions, and claims at issue in each of the cited non-precedential cases are different than those here. In any event, we are not bound by non-precedential decisions of other panels of the Board. We thus agree with the Examiner that the additional elements of claim 1 do not integrate the judicial exception into a practical application, as the term is used in USPTO Guidance, because they “merely use a computer as a tool to perform the abstract idea(s), and generally link the use of the judicial exception to a particular technological environment (e.g., the internet).” Final Act. 3. Thus, we are not persuaded of error in the Examiner’s determination that claim 1 is directed to an abstract idea. Step Two of the Mayo/Alice Framework Under the second step in the Alice framework and USTPO guidance Step 2B, we “[e]valuat[e] additional elements to determine whether they amount to an inventive concept [which] requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” MPEP § 2106.05(I). Here, the Examiner finds that “the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an Appeal 2020-002009 Application 13/551,599 22 ordered combination do not amount to significantly more than the abstract idea.” Final Act. 4. Specifically, the Examiner finds that the additional elements beyond the abstract idea are “recited at a high level of generality and are recited as performing generic computer functions routinely used in computer applications.” Id. The Appellant contends that claim 1 “requires an unconventional combination of claim elements for preventing transmission of certain electronic content, and also addresses an Internet centric problem via a solution that is necessarily rooted in computing technology.” Appeal Br. 18. The Appellant argues that the claim “effect[s] the same type of technical improvement found in” Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016) and Enfish. Appeal Br. 19, 21; see also id. at 20, 22; Reply Br. 7–9. We disagree. First, we note that the claim does not recite “preventing transmission of certain electronic content” or any technological way of doing do, but merely recites selecting and displaying content based on the results of analysis. Second, as discussed above, there is no claimed improvement to technology or a technical field. In Amdocs, the Federal Circuit held the claim was patent eligible because the claim entailed an unconventional technological solution (enhancing data in a distributed fashion) to a technological problem (massive record flows which previously required massive databases). Although the solution required generic components, the court adopted the district court’s interpretation of the claim term “enhance,” stating, it approved “reading the ‘in a distributed fashion’ and the ‘close to the source’ of network information requirements into the term ‘enhance,’” and determined that “the claim’s enhancing limitation necessarily requires that Appeal 2020-002009 Application 13/551,599 23 these generic components operate in an unconventional manner to achieve an improvement in computer functionality” and that the “enhancing limitation depends not only upon the invention’s distributed architecture, but also depends upon the network devices and gatherers––even though these may be generic––working together in a distributed manner.” Amdocs, 841 F.3d at 1300–01. Here, there is no similar evidence that the architecture of the generic computer, search engine, network site, keyword traffic refinement manager, analytics data segmenter, performance analyzer, and data store is comparable to the components in Amdocs or otherwise establishes that the connection or devices operate in an unconventional manner. The Appellant contends that the claimed method “is unconventional because, even if the individual components of the architecture are generic, as in Amdocs, the arrangement of these components in the method provides a solution (e.g., the optimization of keywords and advertisements in search queries) that was not solved by the individual components in the prior art.” Appeal Br. 20. However, the Appellant does not establish how, as in Amdocs, “these generic components operate in an unconventional manner to achieve an improvement in computer functionality.” Rather, as discussed more fully below, the components operate in their conventional capacities to receive, display, segment, calculate, store, move, and select data. Similarly, in Enfish, the court held that the focus of the claims was to “a specific improvement to the way computers operate, embodied in the self- referential table.” 822 F.3d at 1336. Specifically, “the claims [were] not simply directed to any form of storing tabular data, but instead [were] specifically directed to a self-referential table for a computer database.” Id. Appeal 2020-002009 Application 13/551,599 24 at 1337. The Specification provided that “the self-referential table function[ed] differently than conventional database structures” (id. at 1337) and improved “the way a computer stores and retrieves data in memory” (id. at 1339). Here, as discussed above, the claim performs the functions using conventional computer components and search engine(s). Under the claimed method, query data is received from a conventional search engine, advertisement displayed based on an analysis of association, analytics data are identified by some unknown process, received, and segmented, performance data is calculated, the results are stored, displayed advertisements are moved into groups based on the calculations, additional query data is received from the search engines, and advertisements from the new group are selected and displayed. The Appellant does not purport to have invented the claimed computer or search engine. As discussed above, these are conventional components. The claim does not recite any improvement to technology analogous to the self-referential table in Enfish. As discussed above, there is no claimed improvement to technology or a technical field. “[E]fficiently servic[ing] queries and provid[ing] search results to an audience that are particularly relevant to the search query” (Appeal Br. 21) are not technical improvements. See Capital One Bank, 792 F.3d at 1370 (“the fact that the web site returns the pre-designed ad [selected based on analysis of the user’s information] more quickly than a newspaper could send the user a location-specific advertisement insert does not confer patent eligibility.”) At best, the claim provides an improved analytical way, i.e., an improved abstract idea, for providing more cost-effective, relevant advertising using conventional components. Yet, as the court expressly Appeal 2020-002009 Application 13/551,599 25 recognized in Enfish, there is a fundamental difference between computer functionality improvements, on the one hand, and uses of existing computers as tools to perform a particular task, on the other. The alleged advantages that the Appellant touts do not concern an improvement to computer capabilities, but instead relate to an alleged improvement in a method of selecting and displaying advertisements based on the analysis of their performance data — a process in which computer components are used as tools in their ordinary capacities. The Appellant further argues that “the Examiner fails to address all of the additional limitations of the claim (e.g., the limitations not emphasized in the example claim above),” which are limitations (b), (f), (g), and (h) of displaying advertisements based on analysis of associating data, storing results of the calculating analysis, moving advertising data between groups based on analysis, and receiving additional query data. Appeal Br. 23–24. As discussed above, under Step 2B we look to whether the additional elements beyond the abstract idea, individually or in combination, provide an inventive concept. 84 Fed. Reg. at 55. Alice is clear, as described above, that under step two of the Mayo/Alice framework, the elements of each claim are considered both individually and “as an ordered combination” to determine whether the additional elements, i.e., the elements other than the abstract idea itself, “transform the nature of the claim” into a patent-eligible application. Alice, 573 U.S. at 217; see also Mayo, 566 U.S. at 72–73 (requiring that “a process that focuses upon the use of a natural law also contain other elements or a combination of elements, sometimes referred to as an ‘inventive concept,’ sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law itself”). In Appeal 2020-002009 Application 13/551,599 26 other words, the inventive concept under step two of the Mayo/Alice framework cannot be the abstract idea itself: “It is clear from Mayo that the ‘inventive concept’ cannot be the abstract idea itself, and Berkheimer . . . leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged ‘inventive concept’ is the abstract idea.” Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Order, On Petition for rehearing en banc, May 31, 2018) (Moore, J., concurring) (Berkheimer II); see also 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.”). Here, the Examiner addresses the elements other than the abstract idea and concludes that they, individually or in combination, do not amount to significantly more than the abstract idea. See Final Act. 3–4; Ans. 9–11. The limitations to which the Appellant refers, i.e., limitations (b), (f), (g), and (h) of displaying, storing, moving/organizing, and receiving, are not additional elements outside the abstract idea. Rather, as discussed above, these are extra-solution activities, abstract ideas themselves, and part of the abstract idea as a whole, and cannot supply the inventive concept. The Appellant also argues that “the Examiner has not established that the combination of elements beyond any abstract idea, including the elements ignored in the Examiner’s ‘directed to’ analysis, is well understood, routine, or conventional.” Appeal Br. 22. The Appellant argues that the Examiner fails to provide evidence otherwise in accordance with Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) (“Berkheimer”). Id. at 22–24; Reply Br. 9–10. Appeal 2020-002009 Application 13/551,599 27 However, the Examiner cites to the Specification, case law, and the MPEP as support for the finding that the claimed generic systems perform functions that are well understood, routine, and conventional. See Ans. 11–13. In doing so, the Examiner follows the guidance set forth in “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP Inc.),” USPTO Memorandum, Robert W. Bahr, Deputy Commissioner for Patent Examination Policy, April 19, 2018 (the “Berkheimer Memo”). The court in Berkheimer held that “[t]he patent eligibility inquiry may contain underlying issues of fact.” Berkheimer, 881 F.3d at 1365 (quoting Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016) (“The § 101 inquiry ‘may contain underlying factual issues.’”)). But, the court also held that “[w]hen there is no genuine issue of material fact regarding whether the claim element or claimed combination is well-understood, routine, [and] conventional to a skilled artisan in the relevant field, this issue can be decided on summary judgment as a matter of law.” Berkheimer, 881 F.3d at 1368 (emphasis added). This qualification has been subsequently reiterated. If there is a genuine dispute of material fact, Rule 56 requires that summary judgment be denied. In Berkheimer, there was such a genuine dispute for claims 4–7, but not for claims 1–3 and 9. . . . [I]n accordance with Alice, we have repeatedly recognized the absence of a genuine dispute as to eligibility for the many claims that have been defended as involving an inventive concept based merely on the idea of using existing computers or the Internet to carry out conventional processes, with no alteration of computer functionality. Berkheimer II, 890 F.3d at 1371–73 (Moore, J., concurring); see also Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1368 (Fed. Appeal 2020-002009 Application 13/551,599 28 Cir. 2018) (“A factual allegation or dispute should not automatically take the determination out of the court’s hands; rather, there needs to be justification for why additional evidence must be considered—the default being a legal determination.”). Here, the Specification indisputably shows the claimed computing elements were conventional at the time of filing. See supra; Spec. ¶¶ 18, 19, 69–81, Fig. 10. Accordingly, based on the Appellant’s description, we find these components to be well understood, routine, or conventional. We note that the claim simply recites the functional results to be achieved by the components. The claim “provides only a result-oriented solution[] with insufficient detail for how a computer accomplishes it. Our law demands more.” Capital One Fin., 850 F.3d at 1342. Taking the claimed elements separately, the functions performed by the device and computer systems are purely conventional. The claimed generic components operate in their ordinary and conventional capacities to perform the well-understood, routine, and conventional functions of receiving data (i.e., limitations (a), (c), and (h)), displaying data (i.e., limitations (b) and (i)), organizing data (i.e.,, limitations (d) and (g)), analyzing data (i.e., limitations (d) and (g)), storing data (i.e., limitation (f)), and selecting and displaying data based on the results of the analysis (i.e., limitation (i)). See Spec. ¶¶ 18, 19, 69–31 (describing generic computer components); see also, e.g., Capital One Bank, 792 F.3d at 1369–71 (holding that “the entry of data into a computer database, the breakdown and organization of that data according to some criteria, . . . and the transmission of information derived from that entered data to a computer user, all through the use of conventions components, such as a database and processors, operation in a convention Appeal 2020-002009 Application 13/551,599 29 manner” did not transform a patent-ineligible process into something more); Elec. Power, 830 F.3d at 1355 (gathering, sending, monitoring, analyzing, selecting, and presenting information does not transform the abstract process into a patent-eligible invention); I/P Engine, 576 F. App’x at 986 (“search engines, content-based filtering, and collaborative filtering were all well- known in the art at the time of the claimed invention”); Alice, 573 U.S. at 226 (“Nearly every computer will include a ‘communications controller’ and ‘data storage unit’ capable of performing the basic calculation, storage, and transmission functions required by the method claims.”). Considered as an ordered combination, the components of Appellant’s claim add nothing that is not already present when the steps are considered separately. The sequence of receiving, displaying receiving, organizing, analyzing, storing, organizing, receiving, selecting and displaying data, receiving and transmitting data, gathering data, analyzing data, and selecting and displaying data based on the analysis is equally generic and conventional or otherwise held to be abstract. See, e.g., Elec. Power, 830 F.3d at 1354–56 (holding that the sequence of gathering, analyzing, and displaying in real-time was abstract); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (generating a rule related to accessing information, applying the rule, and storing and announcing the result did not transform the abstract idea into a patent-eligible invention); Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that sequence of data retrieval, analysis, modification, generation, display, and transmission was abstract). Thus, we are not persuaded of error in the Examiner’s determination that the additional elements of claim 1, considered individually and as an Appeal 2020-002009 Application 13/551,599 30 ordered combination, do amount to significantly more than the abstract idea itself. We sustain the Examiner’s rejection under 35 U.S.C. § 101 of independent claim 1 and thus also of claims 2–20. CONCLUSION The Examiner’s decision to reject claims 1–20 is sustained. In summary: Claims Rejected 35 U.S.C. § References/ Basis Affirmed Reversed 1–20 101 Eligibility 1–20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation