Mark Rabkin

Patent Trials and Appeals Board

Aug 5, 2019

13717510 - (D) (P.T.A.B. Aug. 5, 2019)

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.
13/717,510 12/17/2012 Mark Rabkin 26295-20634/US 2858
87851 7590 08/05/2019
Facebook/Fenwick
Silicon Valley Center
801 California Street
Mountain View, CA 94041
EXAMINER
SPAR, ILANA L
ART UNIT PAPER NUMBER
3600
NOTIFICATION DATE DELIVERY MODE
08/05/2019 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):
fwfacebookpatents@fenwick.com
ptoc@fenwick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MARK RABKIN
____________________

Appeal 2018-005784
Application 13/717,5101
Technology Center 3600
____________________

Before JOSEPH L. DIXON, JAMES W. DEJMEK, and
STEPHEN E. BELISLE, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 1, 2, 4–6, 8–17, 19–21, 23–34, and 36–40. Appellant
has canceled claims 3, 7, 18, 22, and 35. See App. Br. 27–33. We have
jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). See
Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BPAI 1994) (precedential).
We affirm.

1 Appellant identifies Facebook, Inc. as the real party in interest. App. Br. 1.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to using
negative feedback received regarding an advertisement to refine the targeted
delivery of the advertisement, or related advertisement, to either the user that
provided the negative feedback or to other subsequent users of a social
networking system. Spec. ¶¶ 1–4, Title. In a disclosed embodiment, a user
of a social networking system may be presented with an advertisement and
provide negative feedback, including a reason for the negative feedback,
associated with the advertisement. Spec. ¶ 4. Based on the reason provided
for the negative feedback, the system may categorize the reason as user-
specific or advertisement-specific. Spec. ¶ 5. For reasons categorized as
user-specific, the social networking system may reduce the rate at which
related advertisements are presented to the user. Spec. ¶ 5. For reasons
categorized as advertisement-specific, the social networking system may
reduce the rate at which the advertisement is presented to other users.
Spec. ¶ 6.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
1. A computer implemented method comprising:
sending, by a computer, an advertisement for presentation to a
user, the user associated with a user profile;
receiving a negative signal for the advertisement, wherein the
negative signal comprises one or more reasons corresponding to a
possible cause for the negative signal, each reason categorized as one
or more of a user-specific reason and an advertisement-specific reason;
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determining to apply the negative signal to one or more of the
advertisement and the user profile of the user based on the
categorization of the one or more reasons;
responsive to determining to apply the negative signal to the user
profile of the user because the negative signal comprises the user-
specific reason, augmenting the user profile of the user indicating
dislike for a topic related to the advertisement and presenting other
advertisements related to the topic to the user at a reduced rate; and
responsive to determining to apply the negative signal to the
advertisement because the negative signal comprises the
advertisement-specific reason, augmenting the advertisement with a
negative attribute and presenting the advertisement to other users at a
reduced rate of presentation of the advertisement.

The Examiner’s Rejections2
1. Claims 31–34, 36, 37, and 40 stand rejected under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement. Non-
Final Act. 2.
2. Claims 1, 2, 4–6, 8–17, 19–21, 23–34, and 36–40 stand rejected
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
Non-Final Act. 3–6.
3. Claims 1, 2, 4–6, 8, 12–17, 19–21, 23, 27–30, 38, and 39 stand
rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over
McAfee (US 2009/0287566 A1; Nov. 19, 2009); Bachman (US
2013/0124301 A1; May 16, 2013 (filed Nov. 10, 2011)); and Conant (US
2008/0092182 A1; Apr. 17, 2008). Non-Final Act. 6–13.

2 For several of the rejections, the Examiner’s listing of the claims does not
agree with the claims identified in the body of rejection (e.g., canceled
claims may be included). Appellant does not allege any prejudice as to the
error. Accordingly, we treat the Examiner’s typographical error as harmless
and identify the claims from the body of the rejections.
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4. Claims 9–11 and 24–26 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over McAfee, Bachman, Conant, and
Hegeman et al. (US 2011/0106630 A1; May 5, 2011) (“Hegeman”). Non-
Final Act. 13–14.
5. Claims 31–34 and 37 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over McAfee, Bachman, and Dellovo
(US 2008/0040175 A1; Feb. 14, 2008). Non-Final Act. 14–18.
6. Claims 36 and 40 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over McAfee, Bachman, Dellovo, and
Conant. Non-Final Act. 18.

ANALYSIS3
Rejection under 35 U.S.C. § 112(a)
Claim 31 generally relates to receiving from a user negative feedback
associated with a first advertisement. Additionally, it is determined whether
a second advertisement comprises a component identified by the negative
feedback. Further, based on whether the negative feedback is categorized as
user-specific or advertisement-specific, a determination is made whether to
provide the second advertisement to a “subsequent user of the online system
other than the user. . . .” Claim 31 (emphasis added).
In rejecting independent claim 31 (and dependent claims 32–34, 36,
37, and 40), the Examiner finds a lack of written description support for a

3 Throughout this Decision, we have considered the Appeal Brief, filed
February 13, 2018 (“App. Br.”); the Reply Brief, filed May 7, 2018 (“Reply
Br.”); the Examiner’s Answer, mailed March 13, 2018 (“Ans.”); and the
Non-Final Office Action, mailed April 13, 2017 (“Non-Final Act.”), from
which this Appeal is taken.
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subsequent user of the online system “other than the user.” Non-Final
Act. 2. In particular, the Examiner finds that although the Specification
describes presenting advertisements at a different (i.e., reduced) rate to
future users, the Specification does not exclude the user providing the
feedback from the potential future users. Ans. 8. As such, the Examiner
finds this element to be new matter not supported by the Specification as
filed. Ans. 8.
To satisfy the written description requirement, the disclosure must
reasonably convey to skilled artisans that Appellant possessed the claimed
invention as of the filing date. See Ariad Pharms., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). Specifically, the
description must “clearly allow persons of ordinary skill in the art to
recognize that [the inventor] invented what is claimed” and
the test requires an objective inquiry into the four corners of the
specification from the perspective of a person of ordinary skill in
the art. Based on that inquiry, the specification must describe an
invention understandable to that skilled artisan and show that the
inventor actually invented the invention claimed.
Ariad Pharms., Inc., 598 F.3d at 1351 (internal quotations and citations
omitted). Additionally, the Examiner has the initial burden of presenting
evidence or reasons why persons skilled in the art would not recognize in an
applicant’s disclosure a description of the invention defined by the claims.
In re Wertheim, 541 F.2d 257, 265 (CCPA 1976).
Here, we find the Specification as originally filed provides adequate
written description support for a subsequent user “other than the user,” as
recited in claim 31. In particular, the Specification describes that if a user
provides negative feedback for an advertisement that is categorized as
advertisement-specific (rather than user-specific), a quality score for the
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advertisement “may be used to determine whether to deliver the
advertisement to other users of the social networking system.” Spec. ¶ 6
(emphasis added). Thus, we find Appellant was in possession of presenting
an advertisement to subsequent users other than the user that provided the
negative feedback based on whether the received negative feedback was
advertisement-specific feedback rather than user-specific.
Accordingly, we do not sustain the Examiner’s rejection under
35 U.S.C. § 112(a) of claims 31–34, 36, 37, and 40.

Rejection under 35 U.S.C. § 101
Appellant disputes the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter. App. Br. 4–15; Reply
Br. 1–6. In particular, Appellant argues the claimed invention is “directed to
a specific implementation of a solution to a problem in the software arts.”
App. Br. 6–7 (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed.
Cir. 2016)). Additionally, Appellant asserts that the claims recite an
unconventional configuration of elements to achieve the desired results.
App. Br. 11–14; Reply Br. 2, 4–5. Moreover, Appellant asserts the claims
recite “significantly more” than the alleged abstract idea and are, therefore,
patent eligible. App. Br. 13–15; Reply Br. 2–6.
The Supreme Court’s two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 217 (2014). In addition, the Office recently published revised
guidance for evaluating subject matter eligibility under 35 U.S.C. § 101,
specifically with respect to applying the Alice framework. USPTO, 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
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2019) (“Office Guidance”). If a claim falls within one of the statutory
categories of patent eligibility (i.e., a process, machine, manufacture, or
composition of matter) then the first inquiry is whether the claim is directed
to one of the judicially recognized exceptions (i.e., a law of nature, a natural
phenomenon, or an abstract idea). Alice, 573 U.S. at 217. As part of this
inquiry, we must “look at the ‘focus of the claimed advance over the prior
art’ to determine if the claim’s ‘character as a whole’ is directed to excluded
subject matter.” Affinity Labs of Tex., LLC v. DirecTV, LLC, 838 F.3d 1253,
1257–58 (Fed. Cir. 2016) (internal citations omitted). Per Office Guidance,
this first inquiry has two prongs of analysis: (i) does the claim recite a
judicial exception (e.g., an abstract idea), and (ii) if so, is the judicial
exception integrated into a practical application. 84 Fed. Reg. at 54. Under
the Office Guidance, if the judicial exception is integrated into a practical
application, see infra, the claim passes muster under § 101. 84 Fed. Reg. at
54–55. If the claim is directed to a judicial exception (i.e., recites a judicial
exception and does not integrate the exception into a practical application),
the next step is to determine whether any element, or combination of
elements, amounts to significantly more than the judicial exception. Alice,
573 U.S. at 217; 84 Fed. Reg. at 56.
Here, we conclude Appellant’s claims recite an abstract idea.
Appellant’s claims are generally directed to presenting disliked
advertisements at a reduced rate to a user or subsequent users (which is akin
to targeted advertising).4 This is consistent with how Appellant describes

4 See, e.g., Spec. ¶¶ 3 (describing “us[ing] negative feedback to learn about
the advertisements themselves and refin[ing] the targeted delivery of the
advertisements based on the learned information”), 29 (incorporating
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the claimed embodiment of the invention. See, e.g., Spec. ¶¶ 4 (“processing
negative signals associated with advertisements”), 47 (“results of the
feedback may be propagated differently to the user, related users, and the
advertisement itself”), 52 (“In one embodiment, the social networking
system 100 reduces the rate at which advertisements associated with the
objects on the negative interests list are displayed to the user.”), 53 (“In one
embodiment, the social networking system 100 reduces the rate at which the
advertisement is displayed to the users of the system 100.”).
The claims of the present application are directed to reducing a
frequency with which an advertisement is presented to other
users or a reducing a frequency with which other advertisements
having a topic related to the advertisement to a user who
provided a negative signal regarding the advertisement based on
whether the negative signal includes an advertisement-specific
reason or a user-specific reason, respectively.
App. Br. 10–11. “[T]argeted advertising is [a well-known] concept, insofar
as matching consumers with a given product or service ‘has been practiced
as long as markets have been in operation.’” Morsa v. Facebook, Inc.,
77 F. Supp. 3d 1007, 1013 (C.D. Cal. 2014), aff’d, 622 F. App’x 915 (Fed.
Cir. 2015) (quoting Tuxis Techs., LLC v. Amazon.com, Inc., No. CV 13-
1771-RGA, 2014 WL 4382446, at *5 (D. Del. Sept. 3, 2014)). In other
words, “[t]he concept of gathering information about one’s intended market
and attempting to customize the information then provided is as old as the
saying, ‘know your audience.’” Morsa, 77 F. Supp. 3d at 1013 (quoting
OpenTV, Inc. v. Netflix Inc., 76 F. Supp. 3d 886, 893 (N.D. Cal. 2014)).

Application No. 13/689,160, entitled “Targeted Advertisements in Mobile
Applications”).
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Consistent with our Office Guidance and case law, we conclude that
presenting disliked advertisements at a reduced rate to a user or subsequent
users is a certain method of organizing human activity (e.g., a commercial
interaction, such as marketing or sales activity)—i.e., an abstract idea.5 See
84 Fed. Reg. at 52; see also Intellectual Ventures I LLC v. Capital One Bank
(USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (holding that “tailoring content
based on the viewer’s location” (i.e., a function of the user’s personal
characteristics) is the type of information tailoring that is a fundamental
practice long prevalent in our system and is an abstract idea); Affinity Labs
of Tex., LLC v. Amazon.com Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016)
(concluding “[l]ike the basic concept of tailoring content to a user, as in
Intellectual Ventures I, the basic concept of customizing a user interface is
an abstract idea”) cf. App. Br. 9 (“the claimed selection of content is based
on specific information”).

5 Alternatively, the claims may be considered to recite an abstract idea
within the category of certain methods of organizing human activity as,
more specifically, a fundamental economic practice. See 84 Fed. Reg. at 52;
see also Ex Parte Bruich, Appeal No. 2016-006500, 2018 WL 2967119, at
*4 (PTAB May 29, 2018) (“Determining the effectiveness of an
advertisement with respect to owners of the particular type of client device is
a fundamental economic practice of a transaction because the more
successful an advertisement is, the higher probability the sale will occur.”);
Ex Parte Mason, Appeal No. 2016-004127, 2017 WL 6034320, at *3 (PTAB
Nov. 30, 2017) (explaining predicting advertising effectiveness is a
fundamental economic practice because “[d]etermining the effectiveness of
advertising allows modification of advertising to maximize product/service
exposure while controlling advertising expenditures and determination of a
pricing point that results in profitability.”).
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Claim 1 is reproduced below and includes the following claim
limitations that recite presenting disliked advertisements at a reduced rate to
a user or subsequent users, emphasized in italics:
1. A computer implemented method comprising:
sending, by a computer, an advertisement for presentation to a
user, the user associated with a user profile;
receiving a negative signal for the advertisement, wherein the
negative signal comprises one or more reasons corresponding to a
possible cause for the negative signal, each reason categorized as one
or more of a user-specific reason and an advertisement-specific reason;
determining to apply the negative signal to one or more of the
advertisement and the user profile of the user based on the
categorization of the one or more reasons;
responsive to determining to apply the negative signal to the user
profile of the user because the negative signal comprises the user-
specific reason, augmenting the user profile of the user indicating
dislike for a topic related to the advertisement and presenting other
advertisements related to the topic to the user at a reduced rate; and
responsive to determining to apply the negative signal to the
advertisement because the negative signal comprises the
advertisement-specific reason, augmenting the advertisement with a
negative attribute and presenting the advertisement to other users at a
reduced rate of presentation of the advertisement.
More particularly, presenting disliked advertisements at a reduced rate
to a user or subsequent users comprises (i) presenting an advertisement to a
user (i.e., the claimed step of sending an advertisement for presentation to a
user); (ii) receiving negative feedback for the advertisement (i.e., the
claimed step of receiving a negative signal for the advertisement);
(iii) categorizing the feedback (i.e., the claimed step of determining whether
the negative feedback is user-specific or advertisement-specific); and
(iv) presenting the advertisement or related advertisements to the users
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and/or subsequent users at a reduced rate based on the categorization of the
negative feedback (i.e., the claimed steps of augmenting either the user
profile or advertisement and reducing the rate at which related
advertisements are presented to the user or reducing the rate at which the
advertisement is presented to subsequent users).
Because the claim recites an abstract idea, we next determine whether
the claim integrates the abstract idea into a practical application. 84 Fed.
Reg. at 54. To determine whether the judicial exception is integrated into a
practical application, we identify whether there are “any additional elements
recited in the claim beyond the judicial exception(s)” and evaluate those
elements to determine whether they integrate the judicial exception into a
recognized practical application. 84 Fed. Reg. at 54–55 (emphasis added);
see also Manual of Patent Examining Procedure (“MPEP”) § 2106.05(a)–
(c), (e)–(h) (9th ed., Rev. 08.2017, Jan. 2018).
Here, we find the additional limitation(s) do not integrate the judicial
exception into a practical application. More particularly, the claims do not
recite (i) an improvement to the functionality of a computer or other
technology or technical field (see MPEP § 2106.05(a)); (ii) use a “particular
machine” to apply or use the judicial exception (see MPEP § 2106.05(b));
(iii) a particular transformation of an article to a different thing or state (see
MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP
§ 2106.05(e)). See also 84 Fed. Reg. at 55.
Rather, the additional limitations merely recite that “a computer”
sends an advertisement for presentation to a user, and indicate that the
negative feedback signal further comprises one or more reasons
corresponding to a possible cause for the negative feedback. The computer
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is generically recited and described and the incorporation of reasons for the
negative feedback does not otherwise confer patent eligibility to the claims.
Additionally, the claims do not address a problem necessarily rooted in
computer technology or a problem in the software arts (see App. Br. 6–7,
14–15); see also MPEP § 2106.05(a); Ans. 6.
In DDR Holdings, the Federal Circuit determined “the claimed
solution amount[ed] to an inventive concept for resolving [a] particular
Internet-centric problem,” i.e., a challenge unique to the Internet. DDR
Holdings, 773 F.3d 1245, 1257–59 (Fed. Cir. 2014); see Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (noting that
“[i]n DDR Holdings, we held that claims ‘directed to systems and methods
of generating a composite web page that combines certain visual elements of
a “host” website with content of a third-party merchant’ contained the
requisite inventive concept”). The Federal Circuit explained that the patent-
eligible claims specified “how interactions with the Internet are manipulated
to yield a desired result . . . that overrides the routine and conventional
sequence of events ordinarily triggered by the click of a hyperlink.” DDR
Holdings, 773 F.3d at 1258. The court reasoned that those claims recited a
technological solution “necessarily rooted in computer technology” that
addressed a “problem specifically arising in the realm of computer
networks.” DDR Holdings, 773 F.3d at 1257.
Also, the claims at issue in McRO, Inc. v. Bandai Namco Games Am.,
Inc., 837 F.3d 1299 (Fed. Cir. 2016)—unlike the claims here—recited a
“specific . . . improvement in computer animation” using “unconventional
rules” that related “sub-sequences of phonemes, timings, and morph weight
sets” to automatically animate lip synchronization and facial expressions for
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three-dimensional characters that only human animators could previously
produce. McRO, 837 F.3d at 1302–03, 1307–08, 1313–15. In McRO, “the
incorporation of the claimed rules” improved an existing technological
process. McRO, 837 F.3d at 1314.
Here, unlike the claims at issue in DDR Holdings or McRO,
Appellant’s claims do not address a problem specifically arising in the realm
of computer networks (i.e., reducing the rate at which an advertisement is
presented does not arise in the realm of computer networks), nor do they
improve an existing technological process, but rather merely use computers
and computer devices that operate in their normal, expected manner. See
DDR Holdings, 773 F.3d at 1258–59; see also Enfish, 822 F.3d at 1335–36
(distinguishing between claims wherein the focus of the claims is on an
improvement in computer capabilities and those that invoke a computer as a
tool).
In addition, in BASCOM, the court found “the patent describes how its
particular arrangement of elements is a technical improvement,” and, when
construed in favor of BASCOM,6 the claims may be read to improve an
existing technological process. BASCOM, 827 F.3d at 1350. As discussed
above, the claims do not improve an existing technological process, but
rather use the existing process (gathering feedback on an advertisement) to
perform the abstract idea. Additionally, unlike the arrangement of elements
(i.e., installation of a filtering tool at a specific location) in BASCOM, 827
F.3d at 1349–50, and contrary to Appellant’s arguments (see App. Br. 13–

6 In BASCOM, BASCOM appealed the district court’s granting of a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). BASCOM Glob. Internet Servs.,
Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016).
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15; Reply Br. 4–6), Appellant’s claims do not recite a non-conventional and
non-routine arrangement of known elements. Rather, Appellant’s claims
recite the conventional arrangement of a computer sending an advertisement
to a user (i.e., user device) and the user providing feedback to the originating
computer where the rest of the judicial exception is performed. See also
Spec. ¶¶ 20–22, 36–38, 76–80, Fig. 2.
For at least the foregoing reasons, the claims do not integrate the
judicial exception into a practical application.
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to “significantly more” than
the abstract idea. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73, 77–79 (2012)). As
stated in the Office Guidance, many of the considerations to determine
whether the claims amount to “significantly more” under step two of the
Alice framework are already considered as part of determining whether the
judicial exception has been integrated into a practical application. 84 Fed.
Reg. at 56. Thus, at this point of our analysis, we determine if the claims
add a specific limitation, or combination of limitations, that is not well-
understood, routine, conventional activity in the field, or simply appends
well-understood, routine, conventional activities at a high level of generality.
84 Fed. Reg. at 56.
Here, Appellant’s claims do not recite specific limitations (or a
combination of limitations) that are not well-understood, routine, and
conventional. As discussed above, sending or receiving information (e.g., an
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advertisement for presentation, or negative feedback regarding an
advertisement) merely requires the well understood function of a
computer/computer network. See buySAFE, Inc. v. Google, Inc., 765 F.3d
1350, 1355 (Fed. Cir. 2014) (“That a computer receives and sends the
information over a network—with no further specification—is not even
arguably inventive.”). Moreover, Appellant’s recitation of the claim
limitations and conclusory statement that the features “amount to
substantially or significantly more than simply the alleged abstract idea” (see
App. Br. 14–15) is not supported by persuasive evidence or reasoning. It is
well settled that mere attorney arguments and conclusory statements, which
are unsupported by factual evidence, are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence).
Additionally, to the extent Appellant contends the claims do not seek
to tie-up (i.e., preempt) an abstract idea (see App. Br. 11), we are
unpersuaded of Examiner error. “‘[W]hile preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility.’” FairWarning IP, LLC v. Iatric Sys., Inc.,
839 F.3d 1089, 1098 (Fed. Cir. 2016) (quoting Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)); see also OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015) (“[T]hat
the claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract.”). Further, “[w]here a patent’s claims are deemed only to disclose
patent ineligible subject matter under the Mayo framework, as they are in
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this case, preemption concerns are fully addressed and made moot.” Ariosa,
788 F.3d at 1379.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claims 1, 2, 4–6,
8–17, 19–21, 23–34, and 36–40 under 35 U.S.C. § 101. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2017).

Rejections under pre-AIA 35 U.S.C. § 103(a)
a. Claims 1, 2, 4–6, 8–17, 19–21, 23–30, and 38–40
In rejecting independent claim 1, inter alia, the Examiner relies on the
combined teachings of McAfee, Bachman, and Conant. Non-Final Act. 7–
10. In particular, the Examiner finds McAfee teaches most of the limitations
of claim 1 but (i) relies on Bachman to teach determining to apply the
negative signal exclusively to either a user or the advertisement based on the
categorization of the provided reason for the negative signal,7 and (ii) relies
on Conant to teach augmenting a user profile by indicating dislike for a
topic. Non-Final Act. 7–10.
Appellant provides a review of the individual references and asserts
that each of the references contains a deficiency as it relates to claim 1. See

7 The Examiner notes, as do we, the claim language recites the provided
reason for the negative signal may be categorized as “one or more of a user-
specific reason and an advertisement-specific reason.” Claim 1 (emphasis
added); Non-Final Act. 8. Thus, the reason could be categorized as being
both user-specific and advertisement-specific. The Examiner finds McAfee
teaches interpreting and applying the reason as being both user-specific and
advertisement-specific. Non-Final Act. 8. The Examiner relies on Bachman
to teach categorizing the reason as applying to a single category. Non-Final
Act. 8–9.
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App. Br. 16–22; see also Reply Br. 7–14. In particular, Appellant asserts
McAfee is limited to temporarily or permanently suspending the
presentation of an advertisement, which does not reduced the rate at which
other related advertisements related to the topic of the negatively received
advertisement are presented to the user. App. Br. 17; Reply Br. 8. Further,
Appellant argues McAfee teaches a single action in response to questionable
(i.e., negatively received) advertisement, whereas the claimed approach
performs different actions based on whether the reasons for the negative
signal were user-specific or advertisement-specific. App. Br. 17–18; Reply
Br. 8–10. Moreover, Appellant argues McAfee does not teach that the
reasons for negative feedback are correlated with the user providing the
feedback. App. Br. 18.
In addition, Appellant asserts Bachman is limited to taking action only
on the advertisement that was presented (as opposed to reducing the rate of
presentation of other advertisements related to a topic to an advertisement
for which negative feedback was received) and also fails to teach
augmenting the user profile based on user-specific reasons for a negative
signal. App. Br. 18–20; Reply Br. 10. Also, Appellant argues Conant fails
to teach (i) distinguishing between user-specific and advertisement-specific
negative feedback, and (ii) presenting to other users at a reduced rate other
advertisements related to a topic related to the negatively received
advertisement. App. Br. 20–21; Reply Br. 11–13.
Appellant’s arguments are not persuasive of Examiner error because
they are not responsive the to the Examiner’s findings as set forth in the
rejection. See Non-Final Act. 7–10. As discussed above, Bachman (not
Conant) is relied on to teach categorizing the provided reason for the
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negative signal. See Non-Final Act. 8–9; see also Ans. 10, 12–13; Bachman
¶¶ 46, 55 (describing filtering the feedback based on the category of
feedback). Conant (not Bachman) is relied on to teach augmenting a user
profile by indicating dislike for a topic. See Non-Final Act. 9; see also
Ans. 13; Conant ¶¶ 163, 183 (describing updating a user’s profile to reflect a
user’s experience with an ad and whether the user liked or disliked the
content).
Regarding McAfee, we disagree with Appellant that McAfee is
limited to only suspending the presentation of a negatively received
advertisement. Rather, as the Examiner finds (see Non-Final Act. 7–8;
Ans. 9–11, 13), McAfee teaches (or reasonably suggests) reducing the rate at
which a negatively received advertisement is presented to other users (see
McAfee ¶ 43 (describing preventing a “bad ad” from being viewed by many
more users)) and reducing the rate at which related advertisements are
presented to the user (see McAfee ¶ 50 (describing not selecting ads that are
dislike by the user and selecting those that are likely to be acceptable)). We
also disagree that McAfee fails to teach correlating feedback with the user
providing the feedback. As shown in Figure 2B, McAfee illustrates a table
comprising a User Identity along with reasons the user liked or disliked an
advertisement.
Appellant also argues the combination of McAfee, Bachman, and
Conant “applies feedback to a specific object” and, accordingly, “would
apply all feedback for an advertisement to both the advertisement itself and a
profile of the user providing feedback . . . .” App. Br. 22–23; Reply Br. 13–
14.
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As discussed above, we do not find Appellant’s argument persuasive
of Examiner error. As an initial matter, the claim language recites the
provided reasons for the negative signal (i.e., feedback) may be categorized
into “one or more” of a user-specific category or an advertisement-specific
category. Thus, the claim language does not preclude the feedback from
being applied to both the user profile and to the advertisement itself.
Moreover, as discussed above, the Examiner finds, and we agree, Bachman
teaches categorizing reasons for negative feedback by using a filter.
See Non-Final Act. 8–9; see also Bachman ¶¶ 46, 55.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claim 1. For
similar reasons, we also sustain the Examiner’s rejection under pre-AIA
35 U.S.C. § 103(a) of independent claim 16, which recites commensurate
limitations and was not argued separately. See App. Br. 23; see also
37 C.F.R. § 41.37(c)(1)(iv). Additionally, we also sustain the Examiner’s
rejection under pre-AIA 35 U.S.C. § 103(a) of claims 2, 4–6, 8–15, 17, 19–
21, 23–30, and 38–40, which depend directly or indirectly therefrom and
were not argued separately. See App. Br. 23; see also 37 C.F.R.
§ 41.37(c)(1)(iv).

b. Claims 31–34, 36, and 37
Independent claim 31 also recites presenting an advertisement to a
user, receiving a negative signal (i.e., feedback) comprising a reason for the
negative signal that is categorized as being either user-specific or
advertisement specific. Additionally, claim 31 recites a second
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advertisement comprising a component identified by the negative feedback.8
The second advertisement is not provided to a subsequent user if the reason
is advertisement-specific, but may be provided to a subsequent user (other
than the user that provided the negative feedback on the initial
advertisement) if the reason for the negative feedback is user-specific.
In rejecting independent claim 31, the Examiner relies on the
combined teaching of McAfee, Bachman, and Dellovo. Non-Final Act. 14–
16. In addition to the Examiner’s findings regarding McAfee and Bachman
(discussed above), the Examiner finds Dellovo teaches determining that a
second advertisement comprises the negatively received component and
whether to provide the second advertisement to a subsequent user (different
from the user that provided the initial negative feedback). Non-Final
Act. 15–16 (citing Dellovo ¶¶ 44, 57, 63, 65, Fig. 4).
Appellant asserts McAfee is limited to affecting the presentation of
the advertisement for which feedback was provided, and not the presentation
of another advertisement. App. Br. 24. Regarding Dellovo, Appellant
asserts Dellovo fails to teach categorizing the received feedback as user-
specific or advertisement-specific. App. Br. 24–25; Reply Br. 15–16.
Non-obviousness cannot be established by attacking references
individually where, as here, the ground of unpatentability is based upon the
teachings of a combination of references. In re Keller, 642 F.2d 413, 426
(CCPA 1981). Rather, the test for obviousness is whether the combination
of references, taken as a whole, would have suggested the patentee’s
invention to a person having ordinary skill in the art. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).

8 We note there is a lack of antecedent basis for “the negative feedback.”
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As the Examiner explains, McAfee is not limited to restricting the
presentation of only the advertisement that was negatively received, but also
teaches receiving feedback for “types of advertisements.” Ans. 14 (citing
McAfee, Abstract). In addition, McAfee describes selecting ads that are
likely acceptable to the user and not selecting ads that the user dislikes.
McAfee ¶ 50. Thus, McAfee teaches or reasonably suggests restricting the
presentation of additional advertisements based on received negative
feedback. Also, as discussed above, Bachman (not Dellovo) is relied on to
teach categorizing the reason for negative feedback. See Bachman ¶¶ 46,
55; see also Ans. 13–14.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
claim 31. Additionally, we sustain the Examiner’s rejection under pre-AIA
35 U.S.C. § 103(a) of claims 32–34, 36, and 37, which depend directly or
indirectly therefrom and were not argued separately. See App. Br. 26; see
also 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
We reverse the Examiner’s decision rejecting claims 31–34, 36,
and 37 under 35 U.S.C. § 112(a).
We affirm the Examiner’s decision rejecting claims 1, 2, 4–6, 8–17,
19–21, 23–34, and 36–40 under 35 U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 1, 2, 4–6, 8–17,
19–21, 23–34, and 36–40 under pre-AIA 35 U.S.C. § 103(a)
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Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner’s decision rejecting claims 1, 2, 4–6, 8–
17, 19–21, 23–34, and 36–40 is affirmed. See 37 C.F.R. § 41.50(a)(1).
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.
§ 41.50(f).

AFFIRMED