MasterCard International Incorporated

Patent Trials and Appeals Board

Jun 17, 2020

2019006971 (P.T.A.B. Jun. 17, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/007,837 01/27/2016 Maribeth Sevigny Warner P02736-US-
UTIL (M01.402)
8589
125619 7590 06/17/2020
Mastercard International Incorporated
c/o Buckley, Maschoff & Talwalkar LLC
50 Locust Avenue
New Canaan, CT 06840
EXAMINER
SHUI, MING
ART UNIT PAPER NUMBER
3684
NOTIFICATION DATE DELIVERY MODE
06/17/2020 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):
colabella@bmtpatent.com
martin@bmtpatent.com
szpara@bmtpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MARIBETH SEVIGNY WARNER, PETE KAULBACH,
ROBERT C. DUNNELL, ROBERT J. MCDONALD,
KATHY DONNELLY, THOMAS ROEWE, GHASSAN T. JABR,
MICHAEL HOCHHALTER, RUSSELL W. BALL,
WINIFRED ELIZABETH HOUSE,
PRASAD KRISHNAMOORTHY RAO, MATTHEW HANMER, and
NORA KRYZA1
____________________

Appeal 2019-006971
Application 15/007,837
Technology Center 3600
____________________

Before ROBERT E. NAPPI, BETH Z. SHAW, and
JAMES W. DEJMEK, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 3 through 22. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a) (2018). According to Appellant, Mastercard International
Incorporated is the real party in interest. Appeal Br. 2.
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INVENTION
The invention relates generally to a method for use in e-commerce,
where a request to verify a dynamic security code in a transaction request is
received, the security code is verified, and the transaction request is
modified to add a verification result and then transmitted to an issuer of
payment. Abstract. Claim 3 is reproduced below.
3. A method comprising:
receiving, by a computer, a request to verify a dynamic
security code included in a transaction authorization request
message, the transaction authorization request message
generated in connection with a payment account transaction;
performing, by the computer, a verification process with
respect to the dynamic security code to generate a verification
result;
modifying, by the computer, the transaction authorization
request message by adding the verification result to the
transaction authorization request message; and
transmitting, by the computer, the modified transaction
authorization request message to an issuer of a payment account
designated for use in the payment account transaction;
wherein the transmitting modified transaction
authorization request message includes transmitting a static
security code associated with the designated payment account.
Appeal Br. 11, Claims App.

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EXAMINER’S REJECTIONS2
The Examiner rejected claims 3 through 22 under 35 U.S.C. § 101 for
being directed to patent-ineligible subject matter. Final Act. 3–4.

PRINCIPLES OF LAW
A. Section 101
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
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.”).

2 Throughout this Decision we refer to the Appeal Brief filed June 27, 2019
(“Appeal Br.”); Reply Brief filed September 26, 2019 (“Reply Br.”) Final
Office Action mailed January 30, 2019 (“Final Act.”); and the Examiner’s
Answer mailed August 1, 2019 (“Ans.”).
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Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
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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.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. See 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) (“Step 2A, Prong One”); and

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
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(2) additional elements that integrate the judicial exception into a
practical application (see Manual of Patent Examining Procedure
“MPEP” § 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018))
(“Step 2A, Prong Two”).4
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception. 2019 Revised Guidance, 84 Fed.
Reg. at 52–56.

4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance—Section III(A)(2), 84
Fed. Reg. 54–55.
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DISCUSSION
Rejection under 35 U.S.C. § 101
The Examiner determines the claims are not patent eligible because
they are directed to a judicial exception without reciting significantly more.
Final Act. 3–4. Specifically, the Examiner determines the claims recite an
abstract ideas of gathering data about credit card transactions so that the
information can be analyzed in order to detect fraudulent transactions which
similar to that discussed in CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366 (Fed. Cir. 2011). Final Act. 3, Ans. 7. Further, the Examiner
considers the claims to not recite a practical application of the abstract
concept and to not include elements that amount to significantly more that
than the judicial exception. Final Act. 4.
Appellant argues that the Examiner erred in finding the claims do not
recite a practical application of the judicial exception, as the claims recite
performing a verification process on a dynamic security code, and thus the
claims do not cover verification without a dynamic security code. Appeal
Br. 6–7 (citing the Prong two Step 2A of the 2019 Revised Guidance).
Further, Appellant asserts the Examiner erred in concluding the claim does
not recite significantly more. Appeal Br. 7–8. Appellant reasons the
Examiner’s finding that the transmission of a static security code as part of
the modified transaction message is novel and non-obvious, demonstrates
the Examiner erred in finding the limitation the claim recites conventional
routine and well understood elements as is required in the “significantly
more” analysis. Id. Finally, Appellant argues the Examiner has not
identified the claims recite one of the three types of abstract ideas identified
in the 2019 Revised Guidance, and asserts that the claims are rooted in a
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computer technological field. Appeal Br. 8–9.
Patent eligibility under § 101 is a question of law that may contain
underlying issues of fact. “We review the [Examiner’s] ultimate conclusion
on patent eligibility de novo.” Interval Licensing LLC v. AOL, Inc., 896
F.3d 1335, 1342 (Fed. Cir. 2018) (citing Berkheimer v. HP Inc., 881 F.3d
1360, 1365 (Fed. Cir. 2018)); see also SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is drawn
to patent-eligible subject matter is an issue of law that we review de novo.”
(citation omitted)). We have reviewed Appellant’s arguments in the Appeal
Brief, the Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of all the claims under 35 U.S.C. § 101.
Discussion
The Judicial Exception
Appellant’s arguments have not persuaded us the Examiner erred in
finding the claim recites an abstract idea.
We concur with the Examiner that the claims recite an abstract
concept of gathering data about credit card transactions so that the
information can be analyzed in order to detect fraudulent transactions, a
mental process similar to that discussed in CyberSource Corp. The claims at
issue in CyberSource were directed to obtaining credit card information and
verifying the information and the court found that the claimed steps can be
performed in the human mind or by using pen a paper as the claims did not
recite or limit the scope any particular fraud detection algorithm.
CyberSource at 1372. Representative claim 3 recites a step of receiving a
request to verify a dynamic security code which is part of a message
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generated in a payment account transaction which is just a data gathering
step that can be performed by a person. The claim further recites a
limitation directed to a verification process with respect to the dynamic
security code to generate a verification result which is just a broadly claimed
data analysis of the security code. Similar to the claims in CyberSource,
representative claim 3 does not recite the specific manner in which the
verification process occurs, and thus it could be a simple comparison process
performed in the human mind (e.g., a date on the transaction, is an example
of attached dynamic code which can easily be decoded in the human mind).
See also Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057,
1067 (Fed. Cir. 2011) (claim to collecting and comparing known
information determined to be steps that can be practically performed in the
human mind); In re TLI Communications 823 F.3d 607, 613 (Fed. Cir. 2016)
(finding claims classifying and storing digital images as reciting an abstract
idea) Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l
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.”); October 2019 Update:
Subject Matter Eligibility 7 (discussing Elec. Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350 (Fed. Cir. 2016)and mental processes), available at
https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf. Modifying the transaction authorization request
by adding the verification result and transmitting the transaction
authorization request are also processes that could be performed by a human
with pen and paper, e.g., acknowledging to another that a person has
performed the verification step by signing a document. Thus, with the
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exception of the recitation of the method being performed on a computer, the
claim recites a process typically performed a person e.g. the a process
performed when notarizing a document; a document with a date (dynamic
code) is received by a person, the person verifies the date is correct, signs
and stamps the document (verification and static code) and gives it to
another person. Thus, we do not consider the Examiner to have erred in
determining the claims recite an abstract concept, and we agree with the
Examiner that the claims recite an abstract concept (a mental process)
similar to that at issue in CyberSource.
Further, we note that the claims recite that the transaction
authorization is generated in conjunction with a payment account
transaction, and as such relates to organizing human activity such as a
fundamental economic practice.
Thus, we consider representative claim 3 to recite elements of two
abstract ideas; a mental process, and a certain method of organizing human
activity, such as a fundamental economic practice. Merely combining
several abstract ideas does not render the combination any less abstract.
RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017)
(“Adding one abstract idea (math) to another abstract idea . . . does not
render the claim non-abstract.”); see also FairWarning IP, LLC v. Iatric
Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (determining the
pending claims were directed to a combination of abstract ideas). Thus, we
conclude representative claim 3 recites an abstract idea.
Integration of the Judicial Exception into a Practical Application
Appellant argues that the Examiner in the rejection made a conclusory
assertion that the judicial exception is not integrated into a practical
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application. Appeal Br. 6. Appellant asserts:
claim 3 imposes meaningful limits on this alleged judicial
exception and would not monopolize it. This is the case, for
example, because claim 3 recites performing a verification
process with respect to a dynamic security code. Thus claim 3
would not cover credit card transaction verification that does
not involve a dynamic security code. Further, claim 3 recites
modifying a transaction authorization request message and
transmitting it to an issuer of the relevant payment account.
Consequently, claim 3 would not cover a credit card transaction
verification process in which a transaction authorization request
message is not modified.
Appeal Br. 7.
Further, Appellant argues that the claims “arises from the technological field
of designing and operating computer-networked payment transaction
processing systems and is directed to a solution for problems related to
encryption based security” and that the claims are directed to a solution
rooted in computer technology that is used to overcome a problem that is
specific to or caused by the use of a computer. Appeal Br. 8.
We are not persuaded of error by these arguments. As an initial
matter, we concur with the Examiner, that Appellant’s arguments directed to
the claims not monopolizing all transaction authorizations is essentially a
preemption argument. Ans. 2. Our reviewing court has said “[w]here a
patent’s claims are deemed only to disclose patent ineligible subject matter
under the Mayo framework . . . preemption concerns are fully addressed and
made moot.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015). As we apply the guidelines which follow the Mayo
framework and find that the claims are directed to patent-ineligible subject
matter, Appellant’s preemption argument, that the claims do not monopolize
all transaction authorizations, is not persuasive of error.
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Further, we are not persuaded by Appellant’s arguments that the
claims are directed to a solution rooted in computer technology. We note
that the claims do not recite an encryption based technology, as argued,
rather representative claim 3 merely recites that a dynamic security code is
verified. Thus Appellant’s arguments are not commensurate with the scope
of the representative claim. We recognize that Appellant’s Specification
discusses, on page 11, that the verification may involve cryptographic keys,
we decline to import such limitations into the claim and note the
Specification merely identifies that it “may” be used. Further, although
representative claim 3 recites a computer which receives, performs the
verification request and transmitting the modified authorization, the use of
computer does not make the solution a to a computer based problem. As
discussed above the process of receiving a transaction request, verifying a
code on the transaction request, modifying the transaction request by adding
a verification result and providing the modified transaction request are
mental steps that can be performed by a human with pen and paper.
Appellant has not identified, nor do we find that the operation of the
computer is improved by this process, rather we consider the use of a
computer to implement these steps as merely reciting use of a computer as a
tool to implement the abstract concept. See, e.g., RecogniCorp, 855 F.3d at
1327 (“Unlike Enfish, [the claim] does not claim a software method that
improves the functioning of a computer . . . [but] claims a ‘process that
qualifies as an ‘abstract idea’ for which computers are invoked merely as a
tool.’”) (Citation omitted). Our reviewing court said “‘[the] mere
automation of manual processes using generic computers’ . . . ‘does not
constitute a patentable improvement in computer technology.’” Trading
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Techs. Int’l Inc. v. IBG LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019) (quoting
Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir.
2017)). USPTO examination procedure also requires that “the claim must
include more than mere instructions to perform the method on a generic
component or machinery to qualify as an improvement to an existing
technology.” MPEP § 2106.05(a).
Accordingly, we are not persuaded of error in the Examiner’s
rejection, and we do not consider representative claim 3 to recite a practical
application of the abstract concept.
Significantly More than the Abstract Idea
Under the 2019 Revised Guidance, if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
Appellant argues the Examiner has not presented proof that the claim
elements are a combination of well-understood, routine, and conventional
elements as required by Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir.
2018). Appeal Br. 7–8, Reply Br. 2. Specifically, Appellant argues that “the
additional elements is transmitting a static security code as part of
transmitting a modified transaction authorization request message, in the
context of the message previously having included a dynamic security
code,” which the Examiner found to be novel and non-obvious, is evidence
that the additional element is not conventional, routine, and well-understood.
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Appeal Br. 7–8.
Appellant’s arguments have not persuaded us the Examiner erred in
considering the claims to not recite significantly more than the abstract idea.
The Examiner in the rejection identifies that the additional elements of the
claims are only generic computers performing tasks. Final Act. 3–4, Ans. 4–
5. Further, the Examiner states,
To the extent that Appellant is arguing that the various
other elements of the claim such as the verification process and
modifying the transaction authorization request message are
significantly more, the examiner notes that these elements are
steps that are necessary to carry out the abstract idea and
therefore would not constitute significantly more. Factual
findings are needed only for “additional claim elements” that
are not utilized to carry out the abstract idea. In claim 3, all of
the elements, except for “a computer” are utilized to carry out
the abstract idea. Therefore, the only element that is considered
claim 3 is nothing more than a generic computer and is
considered a well-understood, routine, and conventional
element. Therefore, the examiner asserts that necessary factual
findings for Berkheimer are met.
Ans. 5.
We concur with the Examiner. The recitation of a computer that
receives a request, verifies a code (a comparison), modifies the data and
transmits it, recites a generic computer performing generic computer
functions. Appellant’s Specification identifies that the computer used to
perform the method may be “typical server computer.” Specification 6.
Thus, Appellant’s Specification does not demonstrate that a specific
computer is required to implement the method. Further, the steps of
receiving data, and transmitting data are considered a generic computer
function. See, MPEP § 2106.05(d) II (i, iv); OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015); buySAFE, Inc. v.
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Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014), (computer receives and
sends information over a network). Appellant’s argument that the
transmitted message includes a static security code, is not persuasive as it is
the act of transmission is a generic computer function, and the content of the
transmitted data is directed to the recited judicial exception.
Further, to the extent Appellant is asserting the lack of a pending
rejection under either §§ 102 or 103 suggests the instant claims do not recite
well-understood, routine, or conventional activities (see Appeal Br. 7–8;
Reply Br. 2), we are not persuaded. Subject-matter eligibility under 35
U.S.C. § 101 is a requirement separate from other patentability inquiries.
See Mayo, 566 U.S. at 90 (recognizing that the § 101 inquiry and other
patentability inquiries “might sometimes overlap,” but that “shift[ing] the
patent-eligibility inquiry entirely to these [other] sections risks creating
significantly greater legal uncertainty, while assuming that those sections
can do work that they are not equipped to do”); see also Diamond v. Diehr,
450 U.S. 175, 188–89 (1981) (“[t]he ‘novelty’ of any element or steps in a
process, or even of the process itself, is of no relevance in determining
whether the subject matter of a claim falls within the § 101 categories of
possibly patentable subject matter”); Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017) (“[e]ligibility and
novelty are separate inquiries”).
In summary, Appellant’s arguments have not persuaded us of error in
the Examiner’s determination that representative claim 3 recites an abstract
idea, a mental process and organizing human activity as it relates
fundamental economic process. Further, Appellant’s arguments have not
persuaded us that the Examiner erred in finding that the claim is not directed
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to an improvement in the functioning of the computer or to other technology
or other technical field; directed to a particular machine; directed to
performing or affecting a transformation of an article to a different state or
thing; or directed to using a judicial exception in some meaningful way
beyond linking the exception to a particular technological environment, such
that the claim as a whole is more than a drafting effort to monopolize the
judicial exception. For these reasons, we are unpersuaded that the claims
recite additional elements that integrate the judicial exception into a practical
application, nor do the claims add a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional.” See 2019
Revised Guidance, 84 Fed. Reg. at 54. Accordingly, we sustain the
Examiner’s rejection of representative claim 3, and claims 4 through 22
grouped with claim 3, under 35 U.S.C. § 101 as being directed to a patent-
ineligible abstract idea, that is not integrated into a practical application, and
does not include an inventive concept.

CONCLUSION
We affirm the Examiner’s rejection of claims 3 through 22 under
35 U.S.C. § 101.
DECISION SUMMARY
In summary:
Claim
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
3–22 101 Eligibility 3–22

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.
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§ 1.136(a)(1)(iv).
AFFIRMED