McCoy, Charles et al.

Patent Trials and Appeals Board

Feb 28, 2020

13474635 - (D) (P.T.A.B. Feb. 28, 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.
13/474,635 05/17/2012 Charles McCoy 114514-086UT1 4839
103865 7590 02/28/2020
Procopio - SPE
525 B Street
Suite 2200
San Diego, CA 92101
EXAMINER
CHUNG, MONG-SHUNE
ART UNIT PAPER NUMBER
2142
NOTIFICATION DATE DELIVERY MODE
02/28/2020 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):
docketing@procopio.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES MCCOY, LEO MARK PEDLOW,
LING JUN WONG, and TRUE XIONG
Appeal 2019-001177
Application 13/474,635
Technology Center 2100
Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
SCOTT RAEVSKY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–4 and 6–27. See Final Act. 1. Claim
5 is canceled; claims 1 and 27 are independent. Appeal Br., Claims Appx.
We have jurisdiction under 35 U.S.C. § 6(b).

1 We refer to the Specification, filed May 17, 2012 (“Spec.”); Final Office
Action, mailed November 30, 2017 (“Final Act.”); Appeal Brief, filed May
29, 2018 (“Appeal Br.”); and Examiner’s Answer, mailed September 20,
2018 (“Ans.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Sony Corporation and
Sony Network Entertainment International LLC. Appeal Br. 2.
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Application 13/474,635
2
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to user customization of menus. Spec., Title.
Independent claim 1 is representative of the appealed claims. It is
reproduced below with formatting modified for clarity, adopting Appellant’s
labels as shown in brackets (see Appeal Br. 14), and with emphasis added to
the claim language that recites additional limitations beyond an abstract
idea:
1. A method of dynamically customizing menus having menu
items for a consumer electronics device, the method comprising:
[(a)] receiving a request for a menu customization at a server
from the consumer electronics device;
[(b)] for the menus having the menu items that are non-standard
predefined device menu items:
[(c)] preparing menu definitions for the menu items by the
server for the menu customization of the menus on the
consumer electronics device, wherein the menu
customization is tailored to an owner of the consumer
electronics device;
[(d)] generating menu configuration information by the server
using the prepared menu definitions;
[(e)] for the menus having the menu items that are standard
predefined device menu items:
[(f)] monitoring, tracking, and accumulating menu usage
data;
[(g)] transmitting the menu usage data to the server for
analysis; and
[(h)] performing the analysis of the menu usage data and
generate the menu configuration information by the server
using the menu usage data;
[(i)] transmitting the generated menu configuration information
by the server to the consumer electronics device; and
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Application 13/474,635
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[(j)] rearranging the ordering of the set of menu items on the
menus of the consumer electronics device using the
transmitted menu configuration information.
REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Freeman US 6,828,992 B1 Dec. 7, 2004
Hayes US 2007/0223737 Al Sept. 27, 2007
Echevers Logitech, “Harmony Tips and
Tricks: Adding Favorite
Channels & Icons to Harmony
One” available at
https://blog.logitech.com/2010/
07/13/harmony-tips-and-tricks-
adding-favorite-channels-
icons-to-harmony-one/
retrieved Apr. 15, 2014.
July 13, 2010
Techgooch Logitech Harmony One
Review available at
https://www.youtube.com/watc
h?v=4yg3gWVG-lQ retrieved
Apr. 14, 2014
Dec. 10, 2010
Logitech User
Manual
Logitech® Harmony® 700
Remote User Manual available
at https://www.logitech.com/
assets/44637/3/harmony700-
user-guide.pdf
2010
Schmidt Web page: Benedict Schmidt
IT Strategy & Architecture •
Technology go-to guy “Using
the Apple TV 2 with
Logitech’s Harmony 650
Remote” retrieved Apr. 15,
2014
Jan. 2011

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REJECTIONS
Claims 1–4 and 6–27 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to provide a written description of the invention. Final
Act. 5–6.
Claims 1–4 and 6–27 stand rejected under 35 U.S.C. § 101 as directed
to a judicial exception (i.e. abstract idea) without significantly more.. Final
Act. 6–9.
Claims 1–4, 6, 7, 22–24, 26, and 27 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Freeman. Final Act. 9–15.
Claims 8–13, 15, 17, 21, and 25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Freeman and Remote. Final Act. 15–25.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Freeman and Hayes. Final Act. 25–26.
Claim 16 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Freeman and Techgooch. Final Act. 26–27.
Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Freeman and Echevers. Final Act. 27–29.
Claims 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Freeman and Schmidt. Final Act. 29–30.

STANDARD OF REVIEW
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

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35 U.S.C. § 112, First Paragraph – Written Description
The Examiner finds inadequate written description support to the
“non-standard” menu items recited by the independent claims. Final Act. 5.
Appellant responds, directing attention to a description of standard
predefined device menus items that “can be added to the menus without
having to define the menus.” Appeal Br. 6 (citing Spec. ¶ 41). Appellant
argues:
Since the term “non-standard predefined device menu items”
refers to menu items that are not “standard predefined device
menu items”, the term would mean that when the menu definition
indicates that the menu is a non-standard pre-defined menu of the
consumer electronics device, the menus must be defined before
the menu definitions can be added to the menus.
Id. The Examiner responds, finding “it is unclear from the cited paragraph
. . . whether a standard menu includes only standard menu items or it also
includes a mixture of non-standard menu items.” Ans. 5. The Examiner
further finds no mention of the argued “non-standard” menu item or how
non-standard menu items differ from the disclosed standard menu items. Id.
“Merely mentioning the sound menu is a standard sound menu, does not
give definition to what is considered as standard and non-standard menu
items.” Id. According to the Examiner:
[T]he definition for the term “non-standard predefined device
menu items” as argue[d] by the Appellant is not found in the cited
paragraph [41] and appears to be merely the Appellant’s opinion,
because the cited paragraph makes no mention[] of [a] menu
definition indicating any menu as non-standard pre-defined
menu, and also makes no mention[] of [a] non-standard pre-
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defined menu [that] must be defined before menu definitions can
be added to the menu.
Ans. 5–6.
By statute, 35 U.S.C. § 112, first paragraph, requires “[t]he
specification shall contain a written description of the invention.” Under
this statute, a claim should be rejected for lack of written description when it
recites elements found to be without support in the original disclosure. See
In re Rasmussen, 650 F.2d 1212 (CCPA 1981). The test for written
description is summarized in Purdue Pharma, 230 F.3d at 1323:
In order to satisfy the written description requirement, the
disclosure as originally filed does not have to provide in haec
verba support for the claimed subject matter at issue. See
Fujikawa v. Wattanasin, 93 F.3d 1559, 1570 (Fed. Cir. 1996).
Nonetheless, the disclosure “must . . . convey with reasonable
clarity to those skilled in the art that . . . [the inventor] was in
possession of the invention.” Vas-Cath Inc. v. Mahurkar, 935
F.2d 1555, 1563–64 (Fed. Cir. 1991). Put another way, one
skilled in the art, reading the original disclosure, must
“immediately discern the limitation at issue” in the claims.
Waldemar Link GmbH & Co. v. Osteonics Corp., 32 F.3d 556,
558 (Fed. Cir. 1994). That inquiry is a factual one and must be
assessed on a case-by-case basis. See Vas-Cath, 935 F.2d at 1561
(“Precisely how close the original description must come to
comply with the description requirement of § 112 must be
determined on a case-by-case basis.”).
Because the sufficiency of the written description is evaluated by one of
ordinary skill in the art, details that would be known by the skilled artisan
need not be included in a patent specification. See Hyatt v. Boone, 146 F.3d
1348, 1353 (Fed. Cir. 1998). However, when an explicit limitation in a
claim is not present in the written description, the burden is on the applicant
to show that a person of ordinary skill in the art would have understood that
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the description necessarily includes that limitation. Cf. id. at 1354–55.
“One shows that one is ‘in possession’ of the invention by describing the
invention, with all of its claimed limitations, not that which makes it
obvious.” Lockwood v. Am. Airlines Inc., 107 F.3d 1565, 1572 (Fed. Cir.
1997). Thus, the written description requirement is not satisfied if the
disclosure merely would lead one to speculate as to “modifications that the
inventor might have envisioned, but failed to disclose.” Id.
The U.S. Patent and Trademark Office (USPTO) bears the initial
burden of presenting a prima facie case of unpatentability. In re Glaug, 283
F.3d 1335, 1338 (Fed. Cir. 2002). The burden regarding the written
description requirement is described in In re Alton, 76 F.3d 1168, 1175 (Fed.
Cir. 1996) (parallel citations omitted):
Insofar as the written description requirement is concerned, that
burden is discharged by “presenting evidence or reasons why
persons skilled in the art would not recognize in the disclosure a
description of the invention defined by the claims.” Wertheim,
541 F.2d at 263. Thus, the burden placed on the examiner varies,
depending upon what the applicant claims. If the applicant
claims embodiments of the invention that are completely outside
the scope of the specification, then the examiner or Board need
only establish this fact to make out a prima facie case. Id. at 263–
64. If, on the other hand, the specification contains a description
of the claimed invention, albeit not in ipsis verbis (in the identical
words), then the examiner or Board, in order to meet the burden
of proof, must provide reasons why one of ordinary skill in the
art would not consider the description sufficient. Id. at 264.
Once the examiner or Board carries the burden of making out a
prima facie case of unpatentability, “the burden of coming
forward with evidence or argument shifts to the applicant.”
Oetiker, 977 F.2d at 1445.
We have reviewed the cited portions of Appellant’s Specification and
agree with the Examiner in finding there is inadequate written description
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support for the disputed “non-standard” menu items limitation of
independent claims 1 and 27. The term “non-standard” was first introduced
into the claims by the Amendment filed July 24, 2017.3 We find no
occurrence of the term prior to its introduction into the claim language.
Thus, it is not clear how one skilled in the art would have considered
Appellant to have been in possession of the invention including preparing
menu definitions for menus having menu items that are non-standard
predefined device menu items. As explained by the Examiner, disclosing a
feature that is part of a menu that includes a standard menu without
specifying what is in the standard menu (Spec. ¶ 41) does not provide a
definition of what is required of or missing from non-standard menu items.
Furthermore, in the complete absence of any mention of non-standard items,
it is not clear how one skilled in the art would have understood non-standard
items to be part of the subject matter being claimed as the invention.
For the reasons discussed, Appellant’s contention the Examiner erred
in finding the Specification fails to comply with the written description
requirement of 35 U.S.C. § 112, first paragraph, is not persuasive. See In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (explaining arguments of
counsel cannot take the place of factually supported objective evidence); In
re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not
evidence). Therefore, we sustain the rejection of independent claim 1 and,
for the same reasons, the rejection of independent claim 27 under 35 U.S.C.

3 The Examiner refused entry of Appellant’s subsequent February 28, 2018
Rule 312 after final amendment deleting the disputed non-standard
limitation. Advisory Action mailed March 30, 2018.
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§ 112, first paragraph, together with the rejection of dependent claims 2–4
and 6–26.
35 U.S.C. § 101
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.”).
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
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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))).
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.
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”).4 “All USPTO personnel are, as a matter of

4 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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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
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).5
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.

5 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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THE § 101 REJECTION AND CONTENTIONS
The Examiner rejects all claims under 35 U.S.C. 101 as directed to a
judicial exception (i.e. abstract idea) without significantly more. Final Act.
6–7. According to the Examiner;
Claim 1 is directed to a method of collecting menu usage data
from a user device, analyzing the menu usage data, generating a
customized menu item arrangement based on the collected and
analyzed menu usage data on a server, and present the
customized menu item arrangement on the user device. The
underlying concept is merely data collection, analyzing said data,
and display certain results of the collection and analysis. This
concept is not meaningfully different than those concepts found
by the courts to be abstract (see: Electric Power Group[6],
collecting information, analyzing it, and displaying certain
results of the collection and analysis; Intellectual Ventures v. Cap
One Bank[7], customizing information and presenting it to users
based on particular characteristics; Int. Ventures v. Erie
Indemnity Co.[8], remotely accessing and retrieving user-
specified information; Classen[9], collecting and comparing
known information; Bascom[10], [f]iltering content). Thus, the
claims are directed to a judicial exception and fall within the
realm of “abstract ideas”, which is a patent-ineligible concept
(Step 2A: YES).

6 Electric Power Grp., LLC v. Alstrom S.A., 830 F.3d 1350 (Fed. Cir. 2016).
7 Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363
(Fed. Cir. 2015).
8 Intellectual Ventures I LLC v. Erie Indemnity Co. 850 F.3d 1315 (Fed. Cir.
2017).
9 Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir.
2011).
10 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016).
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Id. In addition to those reciting abstract concepts of collecting and analyzing
information, the Examiner identifies additional claim elements including: a
consumer electronics device, menu customization, server, menu definition,
menu configuration information, menu usage data, standard predefined
device menu items, non-standard predefined menu items, and rearranging
order of menu items. Id. at 7. According to the Examiner,
The additional elements . . . when considered both individually
and as a combination do not amount to significantly more than
the abstract idea because the limitations are merely instructions
to implement the abstract idea on a consumer electronics device
and require no more than a generic consumer electronics device
and a generic server to perform generic functions. The menu
customization, menu definition, menu configuration
information, menu usage data, standard predefined device menu
items, non-standard predefined device menu items, and
rearranging order of menu items are well-understood, routine and
conventional in the GUI art.
Id.
In response, Appellant addresses step 2A of the analysis, arguing,
“[s]imilar to eligible claim 1 of example 23 of the Guidance [(which is
directed to dynamically relocating textual information within a window
displayed in a graphical user interface)] . . ., the claimed process relates to
addressing several obstacles of browsing through the multiple screens
implemented in a hierarchical menu structure by enabling the user to design
and define the structure of the menu layers.” Appeal Br. 10 (citing July
2015 Update Appendix 1: Examples at 8 (available at https://
www.uspto.gov/sites/default/files/documents/ieg-july-2015-app1.pdf).)
Appellant further argues, “claim 1 does not recite a basic concept that is
similar to any abstract idea previously identified by the courts” but, instead,
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“is necessarily rooted in computer technology to overcome a problem
specifically arising in the hierarchical menu structure.” Id. at 11.
Appellant further contends the claims are similar to those found patent
eligible in McRO11 because
when looked at as a whole, independent claim 1 is directed to a
patentable, technological improvement over the existing method
of browsing through the multiple screens implemented in a
hierarchical menu structure. Further, claim 1 uses limited
rules/steps in a process specifically designed to achieve an
improved technological result in the conventional industry
practice.
Id. at 12. Appellant still further argues the Examiner fails to consider the
claims as whole when analogizing the present claims to those found patent
ineligible by the courts. Id. at 13.
The Examiner responds, finding information and data processing steps
of claim 1 are similar to those found patent ineligible in Electric Power
Group. Ans. 6–7.
Claim 1, at most, is disclosing at a high level concept of
customizing a menu including standard and non-standard menu
items. The outcome of the data collection and analysis results in
merely display of the customized menu based on the data
collection and analysis of these collected data (i.e. menu usage).
Id. at 7. The Examiner further finds claim 1 is similar to claims found to be
abstract by the court in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229 (Fed.
Cir. 2016). According to the Examiner:
Claim 1 is similar to [Apple v.] Ameranth in that both are
claiming the abstract idea of generating a second menu (e.g. new
customized menu) from a first menu (e.g. menu prior to

11 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir.
2016).
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customization), and send[ing] the second menu to another
location (e.g. sent from the server to the consumer electronic
device).
Id. The Examiner concludes:
Finally, the claimed solution is [not] necessarily rooted in
computer technology by merely reciting the use of a server and
a consumer electronic device to implement the abstract idea. The
claimed solution is not significantly different than the concept
that has long been done by a person where items in a restaurant
menu [are] rearranged over time, based on the popularity of
certain popular items so that they are in more prominent locations
in the menu, which allows more higher visibility to the restaurant
patrons. As such, the claimed solution is not significantly more
than the abstract idea.
Id. at 7–8.
ANALYSIS
Step 2A, Prong 1
We agree with the Examiner that the appealed claims recite receiving
a menu customization request, collecting menu usage data, analyzing menu
usage data, configuring and rearranging the order of menu items. Final Act.
6; Ans. 6. We further determine certain of the recited steps can be
characterized as concepts performed in the human mind (e.g., observations,
evaluations, judgments, and opinions) that are considered to be mental
processes as explained below.
Limitation (a) of claim 1 includes the following language:
receiving a request for a menu customization . . . from the
consumer . . . .
Appellant’s Specification describes events triggering such a request,
including “[w]hen a consumer desires to configure menu settings.” Spec. p.
8, ll. 6–9. However, the request itself is only generally described. Thus,
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receiving a request reasonably can be characterized as a mental process, i.e.,
a form of observation, evaluation, or judgment that can be performed in the
human mind or with the aid of pencil and paper. The 2019 Revised
Guidance recognizes such mental processes as constituting abstract ideas.
2019 Revised Guidance, 84 Fed. Reg. at 52. As such, limitation (i) recites a
mental process, which is a recognized abstract idea.
Limitation (b) recites:
for the menus having the menu items that are non-standard
predefined device menu items.
Thus, limitation (b) imposes a condition for performing the steps of
limitations (c) and (d) that follow. Determining that the stated condition has
been satisfied, i.e., the request is for menu items that are non-standard
predefined device menu items, may be performed as an observation or
evaluation that can be performed in the human mind. As such, limitation (b)
recites a mental process, which is a recognized abstract idea.
Limitation (c) recites, in part:
preparing menu definitions for the menu items . . . for the menu
customization of the menus . . . , wherein the menu customization is
tailored to an owner of the consumer electronics device.
Appellant directs attention to Spec. p. 32, ll. 4–6, p. 37, l. 14 – p. 38,
l. 10 for describing the limitation. Appeal Br. 3. The cited portions of the
Specification describe (i) determining whether a set of menus includes items
that are standard predefined device menu items; (ii) for predefined items:
leaving out details and preparing menu definitions for menu configuration
information; and (iii) if additional menus are to be defined the definitions are
prepared for the additional menus and used to generate menu configuration
information. The determining step is addressed by limitation (b) discussed
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above. In connection with the step of preparing menu definitions, the
Specification provides examples wherein the menu definition (i) “specifie[s]
in the configuration data can be of the type that provides hierarchical
arrangement of menu items” (Spec. p. 5, ll. 14–16), (ii) “may . . . restrict the
choices for a parameter that is set through the menus” (Spec. p. 6, ll. 10–1);
“include[s] a menu action” (Spec. p. 6, l. 16); (iii) “control[s] the ordering of
menus and menu items” (Spec. p. 17, ll. 9–10); (iv) “indicates that a menu is
a standard pre-defined menu of the consumer electronics device” (Spec. p.
22, ll. 16–18); and (iv) “can indicate that items from that menu are to be left
out and can specify menu items to add to the items in that menu” (Spec. p.
23, ll. 2–4). Thus, preparing step (c) involves specifying menu
characteristics that is reasonably considered to be an action that could be
performed in the human mind and/or using pen and paper and, therefore,
reasonably can be characterized as a mental step. As such, limitation (c)
recites a mental process, which is a recognized abstract idea.
Limitation (d) recites, in part:
generating menu configuration information . . . using the prepared
menu definitions.
Appellant directs attention to Spec. p. 38, ll. 6–8 for disclosing this
limitation. Appeal Br. 3. However, the cited portion of the Specification
provides no further details of what is required by generation step (d).
Instead, we find the Specification discloses “[t]he menu configuration
information provides a set of menus that can include items which are
standard predefined device menu items” (Spec. p. 5, ll. 3–5, see also id. p.
35, ll. 5–7) and that “[t]he menu configuration information 140 can be
communicated using a configuration data with markup language format such
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as Extensible Markup Language (XML) [or] JavaScript Object Notation
(JSON)” (id. p. 36, ll. 1–5). Thus, generating limitation (d) is described at a
high level of generality as providing information used in performing the step
of limitation (j), discussed further below, including rearranging the ordering
of the set of menu items on the menus of the consumer electronics device
using the transmitted menu configuration information. Determining an
appropriate organization of menu items reasonably can be considered an
evaluation, judgment or opinion that can be performed in the human mind
and/or using pen and paper. As such, limitation (d) recites a mental process,
which is a recognized abstract idea.
Limitation (e) recites, in part:
for the menus having the menu items that are standard predefined
device menu items.
Thus, limitation (e) imposes a condition for performing the steps of
limitations (f) through (h) that follow. Making a determination that the
stated condition has been satisfied, i.e., the request is for menu items that are
standard predefined device menu items, may be performed as an observation
or evaluation that can be performed in the human mind. As such, limitation
(e) recites a mental process, which is a recognized abstract idea.
Limitation (f) recites, in part:
monitoring, tracking, and accumulating menu usage data.
Appellant directs attention to Spec. p. 41, ll. 16–18 for disclosing this
limitation. Appeal Br. 3. The cited portion of the Specification provides an
example of monitoring how a user navigates through a menu. Spec. p. 41, ll.
16–18. Monitoring how a user navigates through a menu reasonably may be
considered an observation that can be performed in the human mind.
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Alternatively, it may reasonably be considered a social activity or other form
of managing personal behavior, relationships or interactions between people.
For example, a waiter in a restaurant may observe a patron’s examination of
a menu to identify particular interests in certain menu items so as to
recommend and assist in making a food order (cf. Ans. 7–8 (Examiner’s
analogy to a restaurant menu)). As such, limitation (f) may be considered a
method of organizing human activity. The 2019 Revised Guidance
recognizes mental processes and certain methods of organizing human
activity as constituting abstract ideas. 2019 Revised Guidance, 84 Fed. Reg.
at 52. As such, limitation (f) recites a mental process or certain method of
organizing human activity, both of which are recognized abstract ideas.
Limitation (g) recites, in part:
transmitting the menu usage data . . . for analysis.
Prior to the advent of the Internet, information often was delivered
manually. For example, a first party could transmit information contained
on paper or on a computer disk to a receiving party either by means of hand-
delivery or by mail. Such acts reasonably can be characterized as managing
personal interactions between people. Managing such personal interactions
constitutes a particular type of organizing human activity--a category of
abstract idea that is recognized by the 2019 Guidance. Likewise, in
Cyberfone the Court held that “using categories to organize, store, and
transmit information is well-established,” and “the well-known concept of
categorical data storage, i.e., the idea of collecting information in classified
form, then separating and transmitting that information according to its
classification, is an abstract idea that is not patent-eligible.” Cyberfone Sys.,
LLC v. CNN Interactive Grp., Inc., 558 Fed. App’x. 988, 992 (Fed. Cir.
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2014). Here, as in Cyberfone, information is received, organized, and
transmitted. Accordingly, limitation (g) recites activities corresponding to
those recognized as abstract ideas under our guidance and controlling
precedent.
Limitation (h) recites, in part:
performing the analysis of the menu usage data and generate the menu
configuration information . . . using the menu usage data;
Appellant directs attention to Spec. p. 42, l. 18 – p. 43, l. 1 in support
of this limitation. Appeal Br. 3–4. The cited and immediately following
portion of the Specification provides examples of the recited analysis as
follows:
For example, the menu usage data is analyzed to break down the
analysis by the displayed language to identify a particular
translation that may need improvement if a menu item is less
used or harder to find when the menus are displayed in a
particular language. Other examples include moving popular
menu items to places that allow quicker access including
(1) locations that need to scroll through fewer menu items,
(2) locations that need to navigate through fewer menu levels, or
(3) locations in the menus that are easiest to access.
Spec. p 42, l. 20–43, l. 6. Identifying usage and positions to relocate objects
such as menu items involves observation, evaluation, judgment, and/or
opinion that are concepts performable in the human mind. See, e.g., Ans. 7–
8 (analogizing to analysis of a restaurant menu). As such, limitation (h)
recites a mental process, which is a recognized abstract idea.
Limitation (i) recites, in part:
transmitting the generated menu configuration information . . . to the
consumer . . .
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This limitation recites a mental process for reasons similar to those
discussed above in connection with transmitting limitation (g).
Limitation (j) recites, in part:
rearranging the ordering of the set of menu items on the menus . . .
device using the transmitted menu configuration information.
In support of the limitation Appellant directs attention to Spec. p. 12, ll. 8–
18, p. 38, ll. 13–15 disclosing examples of customizing a menu to prevent
selection of objectionable content and the ordering (i.e., arranging) of menu
items. Appeal Br. 4. Rearranging menu items can be accomplished in the
mind of a human and/or using pen and paper (e.g., arranging menu items on
a printed restaurant menu). As such, limitation (j) recites a mental process,
which is a recognized abstract idea.
For these reasons, we determine that all limitations of claim 1 recite
abstract ideas.
Step 2A, Prong 2
Under step 2A, prong 2, of the 2019 Revised Guidance, we analyze
whether any of the additional elements beyond the abstract idea integrate the
abstract ideas into a practical application. 2019 Revised Guidance, 84 Fed.
Reg. at 54.
In addition to the concept of collecting menu usage data, analyzing the
menu usage data and generating a customized menu item arrangement based
on the collected and analyzed menu usage data (which we determine
corresponds to subject matter identified as abstract ideas according to the
2019 Revised Guidance for the reasons discussed above under Prong 1 of
our analysis), claim 1 requires a consumer electronics device and a server.
The consumer electronics device is disclosed as an “off-the-shelf” device
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such as a television. Spec. p. 7, ll. 21–22. Similarly, the server is described
at a high level of generality as implemented by a conventional computer
system hosting a menu customizer functionality. Spec. p. 43, l. 7 – 45, l.
19. As disclosed the computer system includes a controller, memory, user
interface (e.g., keyboard, mouse, speakers, and display), input/output (I/O)
and network interfaces and “additional hardware and software typical of
computer systems.” Id. Thus, we agree with the Examiner the additional
elements “require no more than a generic consumer electronics device and a
generic server to perform generic functions.” Final Act. 7.
Furthermore, in addition to determining the actions required by
limitations (a), (g), and (i) are mental processes identified by the 2019
Revised Guidance as abstract ideas, we further determine these limitations
are also considered insignificant extra-solution activity to the judicial
exception. In particular, receiving limitation (a) defines a data-gathering
activity. Transmitting limitations (g) and (i) merely require supplying menu
usage data to a server for analysis (limitation (g)) and menu configuration
information to a consumer electronics device (limitation (i)). Thus,
limitations (a), (g), and (i) recite the type of extra-solution activity (i.e., in
addition to the judicial exception) the courts have determined insufficient to
transform judicially excepted subject matter into a patent-eligible
application. See MPEP § 2106.05(g); 2019 Revised Guidance, 84 Fed. Reg.
at 55 n.31; Bancorp Servs., LLC v. Sun Life Assur. Co. of Can., 771 F. Supp.
2d 1054, 1066 (E.D. Mo. 2011) aff'd, 687 F.3d 1266 (Fed. Cir. 2012)
(explaining that “storing, retrieving, and providing data . . . are
inconsequential data gathering and insignificant post solution activity”);
Bilski, 561 U.S. at 612 (holding the use of well-known techniques to
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establish inputs to the abstract idea as extra-solution activity that fails to
make the underlying concept patent eligible); Elec. Power Grp., 830 F.3d at
1355 (explaining that “selecting information, by content or source, for
collection, analysis, and display does nothing significant to differentiate a
process from ordinary mental processes”).
Addressing Appellant’s contentions of error, we are unpersuaded by
argument the pending claims are similar to claim 1 of example 23 in
Appendix 1 of the July 2015 Update. Appeal Br. 7–11. As an initial matter,
we note that the Update Appendix simply presents hypothetical examples.
(See Update Appendix 1.) Moreover, “[e]ligibility-related guidance issued
prior to the Ninth Edition, R–08.2017, of the MPEP (published Jan. 2018)
should not be relied upon.” 2019 Revised Guidance, 84 Fed. Reg. at 51.
Nonetheless, we further note that claim 1 of Example 23 recites a “method
for dynamically relocating textual information within an underlying window
displayed in a graphical user interface.” The Update Appendix explains that
this method, unlike claim 1 in the present application, “is necessarily rooted
in computer technology to overcome a problem specifically arising in
graphical user interfaces.” (Update Appendix 9.) Appellant does not
persuasively explain how or why claim 1, which does not recite any
technological implementation details other than use of a computer (i.e., a
server) and consumer electronics device (e.g., television), is rooted in
computer technology to overcome a technological problem.
Rather than being directed to a technological problem, Appellant’s
invention is directed to the underlying concept of creating customized menus
tailored to specific requirements. See Ans. 6–7. This concept may be
characterized as directed to methods of organizing human activities. For
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example, to assist patrons in selecting a meal, a restaurant’s printed menu
may be organized to include sections directed to specific categories (e.g.,
breakfast, lunch, dinner, and children’s menus) and appropriate
subcategories (e.g., appetizers, entrées, salads, sandwiches, light fare, meat,
fish, pasta, vegan, and desserts). Popular items may be more prominently
displayed than less popular items as judged appropriate. Id. at 7–8. Thus,
rather than being directed to solving a technological problem, the claims
reasonably may be characterized as addressing the management of personal
behavior or relationships or interaction between people that are considered
certain methods of organizing human activity. Cf. id. Thus, we are
unpersuaded by Appellant’s argument that the claims are directed toward a
technological problem and solution analogous to that of claim 1 of example
23.
We are also unpersuaded by Appellant’s analogy to claim 1 in McRO.
Appeal Br. 11–12. Specifically, Appellant argues:
Similar to the conclusion reached in [McRO] and the
memorandum (“the Memo”) issued by the Deputy
Commissioner for Patent Examination Policy (November 2,
2016), the use of the specific steps for menu customization that
is tailored to an owner of the consumer electronics device for
non-standard menu items and monitoring, tracking, and
accumulating menu usage data and performing the analysis of the
menu usage data for the standard menu items relates to
addressing several obstacles of browsing through the multiple
screens implemented in a hierarchical menu structure by
enabling the user to design and define the structure of the menu
layers.

(Id. at 12.)
The reasons claim 1 in McRO was found patent-eligible do not apply
to Appellant’s claims. “The claimed improvement [in McRO] was to how
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the physical display operated (to produce better quality images), unlike
(what is present here) a claimed improvement in [an associating] technique
with no improved display mechanism.” SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1167 (Fed. Cir. 2018). In other words, in McRO, data was
used to improve the technology, i.e., the display mechanism. Here, although
claim 1 recites, e.g., “receiving”, “preparing”, “generating”, “monitoring”,
“transmitting, “performing”, and “rearranging”, it merely recites the
functional results to be achieved. For example, claim 1 does not recite
technical implementation details of how the claimed method generates menu
configuration information using prepared menu definitions or menu usage
data or how the method arrives at the rearranged ordering of sets of menu
items using the configuration information. “Indeed, the claim language here
provides only a result-oriented solution, with insufficient detail for how a
computer accomplishes it. Our law demands more.” Intellectual Ventures I
LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017).
We are also unpersuaded the Examiner failed to consider the claim as
whole. See Appeal Br. 12–13. As discussed above, the Examiner
determines the claims are directed to the concept of creating customized
menus tailored to specific requirements. See Ans. 6–7. According to the
Examiner, this concept is analogous to “a restaurant menu . . . being
rearranged over time, based on the popularity of certain popular items so that
they are in more prominent locations in the menu, which allows more higher
visibility to the restaurant patrons. As such, the claimed solution is not
significantly more than the abstract idea.” Id. at 7–8. Accordingly, contrary
to Appellant’s argument, the Examiner has considered the claim as a whole.
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For the reasons discussed above, Appellant has not persuaded us that
the additionally claimed elements, viewed both individually and as an
ordered combination, either improve the functioning of a computer, recite a
particular machine or transformation, or provide any other meaningful
limitations. MPEP § 2106.05(a)–(c), (e). That is, Appellant does not
demonstrate that the invention integrates that recited abstract ideas of
claim 1 into a practical application within the meaning of the 2019 Revised
Guidance.
Step 2B
As noted above, the only claim elements beyond the recited abstract
idea are a consumer electronics device and server. Claim 1, limitations (i)–
(iv). Although the Examiner’s identification of additional elements differs
somewhat from ours12, we nonetheless agree the additional elements under
either analysis simply append well-understood, routine, and conventional
activities known to the industry specified at a high level of generality to the
judicial exception. Final Act. 7. Appellant’s Specification does not
reasonably indicate, and Appellant does not argue that, at the time of the
invention, there was anything technologically challenging about configuring
a consumer electronics device or computer to perform the steps of claim 1.
See generally Spec. To the contrary, as discussed above, Appellant’s

12 We note our reviewing court recognizes that “[a]n abstract idea can
generally be described at different levels of abstraction.” Apple v.
Ameranth, 842 F.3d at 1240. That need not and, in this case does not,
“impact the patentability analysis.” Id. at 1241. Further,
“[a]n abstract idea can generally be described at different levels of
abstraction. . . . The Board’s slight revision of its abstract idea analysis does
not impact the patentability analysis.” Id.
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Specification discloses that all of the required functionality may be provided
by conventional devices such as computers and televisions.
Eligibility Conclusion
Appellant has not adequately demonstrated that the Examiner erred in
determining that claim 1 recites one or more abstract ideas, that the claim
fails to integrate the abstract idea into a practical application, or that the
additional claim elements add significantly more to the abstract idea.
Accordingly, Appellant does not persuade us of that the Examiner erred in
concluding that claim 1 is directed to patent-ineligible subject matter.
Accordingly, we sustain the § 101 rejection of independent claim 1.
We also affirm this rejection of claims 2–4 and 6–27, which Appellant does
not argue separately. Appeal Br. 13.

REJECTION OF CLAIMS AS BEING OBVIOUS
OVER THE PRIOR ART
The Examiner rejects independent claims 1 and 27 under 35 U.S.C.
§ 102(b) as being anticipated by Freeman. Final Act. 9–15. In relevant part,
the Examiner finds Freeman’s buttons that are sorted into a list by usage
count, i.e., are not yet grouped, disclose the non-standard predefined device
menu items of limitation (b). Final Act. 10 (citing Freeman col. 4, ll. 30–
45). According to the Examiner, Freeman’s further disclosure of
partitioning the list of buttons based on the number of buttons that fit on a
screen discloses the recited menus having menu items that are non-standard
predefined device menu items. Id. The Examiner finds limitation (c) of
preparing menu definitions for the menu items by the server for the menu
customization of the menus on the consumer electronics device, wherein the
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menu customization is tailored to an owner of the consumer electronics
device is disclosed by Freeman’s remote having different button
configurations for each user. Id. (citing13 Freeman col 4, ll. 46–64)
Appellant contends Freeman’s disclosure is deficient, first generally
alleging the reference fails to disclose limitations (a) through (h). Appeal
Br. 16–17. Appellant further contends Freeman’s ungrouped buttons do not
disclose the recited non-standard predefined device menu items, arguing
there is no indication that “the menus must be defined before the menu
definition can be added to the menus.” Id. at 17. Appellant further argues
Freeman’s grouped channel buttons do not disclose the standard predefined
device menu items of claim 1 because the reference does not disclose that
the standard predefined device menu items require menu definitions that can
be added to the menus without having to define the menus. Id.
The Examiner responds, finding the Specification does not mention or
provide a definition of the argued “non-standard predefined device menu
items.” Ans. 8. According to the Examiner:
In view of lack of written description and definition of the term
“non-standard predefined device menu items”, the [E]xaminer
interprets the term as equivalent to the additional ungrouped
buttons that are not grouped numerical TV channel buttons of
Freeman. The examiner interprets the standard predefined
device menu items as equivalent to the numerical TV channel
buttons that are grouped of Freeman, which is known by one or
ordinary skill in the art as standard buttons for a remote control.
Finally, the limitation “the menus must be defined before the
menu definitions can be added to the menus” as argued by the

13 The Examiner appears to have omitted the column number (i.e., column 4)
in the citation to the Freeman reference with respect to limitation (c).
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Appellant above, is [not] required by claim 1; therefore, the
arguments are not persuasive.
Id. (citing Freeman col. 3, ll. 31–39; col. 3, l. 51 – col. 4, l. 2; col. 4, ll. 15–
23, 30–48; col. 5, ll. 14–27, 46–51; Figs. 3–5.
Appellant’s contentions are unpersuasive of reversible Examiner
error. During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under
the broadest reasonable interpretation standard, claim terms are given their
ordinary and customary meaning as would be understood by one of ordinary
skill in the art in the context of the entire disclosure. In re Translogic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). However, a particular
embodiment appearing in the written description must not be read into the
claim if the claim language is broader than the embodiment. See In re Van
Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (“[L]imitations are not to be
read into the claims from the specification.”). Construing claims broadly
during prosecution is not unfair to the applicant, because the applicant has
the opportunity to amend the claims to obtain more precise claim coverage.
Acad. of Sci. Tech Ctr., 367 F.3d at 1364. See also In re Skvorecz, 580 F.3d
1262, 1267–68 (Fed. Cir. 2009) (“Applicant always has the opportunity to
amend the claims during prosecution, and broad interpretation by the
examiner reduces the possibility that the claim, once issued, will be
interpreted more broadly than is justified.” (quoting Manual of Patent
Examining Procedure § 2111)).
Appellant’s general allegation that Freeman fails to disclose limitation
(a) through (h) is unpersuasive absent further explanation and evidence.
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Merely citing a claim limitation and asserting it is not present falls short of
identifying an error in the Examiner’s rejection as required on appeal. See
37 C.F.R. § 41.37(c)(1)(iv); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”); In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.”).
Appellant’s argument focused on the proffered interpretation of “non-
standard predefined device menu items” (Appeal Br. 17) is also unpersuasive
in the absence of sufficient evidence that the Examiner’s interpretation is
unreasonable or inconsistent with the Specification. In particular, Appellant
provides insufficient evidence that a proper interpretation of the claims
requires that the menus must be defined before the menu definitions can be
added to the menus. Id. Therefore, we agree with the Examiner that
Appellant’s argument that Freeman fails to disclose: (i) menus of non-
standard predefined device menu items must be defined before menu
definitions can be added and (ii) menus having standard predefined device
menu items permit the addition of menu definitions without having to define
the menus, is not commensurate in scope with the claims. Instead, we agree
with the Examiner in finding the argued limitations are disclosed by
Freeman. Ans. 8.
For the reasons discussed above, Appellant’s contentions of error in
connection with the anticipation rejection of independent claims 1 and 27 are
unpersuasive of reversible Examiner error. Accordingly, we sustain the
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rejection of independent claims 1 and 27 under 35 U.S.C. § 102 together
with the rejection dependent claims 2–4, 6, 7, 22–24, and 26 that are not
argued separately with particularity. Furthermore, we sustain the rejections
of dependent claims 8–21 and 25 under 35 U.S.C. § 103(a), which are also
not argued separately with particularity.
CONCLUSION
The rejection of claims 1–4 and 6–27 under 35 U.S.C. § 112, first
paragraph, is affirmed.
The rejection of claims 1–4 and 6–27 under 35 U.S.C. § 101 is
affirmed.
The rejection of claims 1–4, 6, 7, 22–24, 26, and 27 under 35 U.S.C.
§ 102(b) is affirmed.
The rejections of claims 8–21 and 25 under 35 U.S.C. § 103(a) are
affirmed.

Claims Rejected 35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 6–27 112 Written Description 1–4, 6–27
1–4, 6–27 101 Eligibility 1–4, 6–27
1–4, 6, 7, 22–24,
26, 27
102(b) Freeman 1–4, 6, 7, 22–24,
26, 27

8–13,15, 17, 21, 25 103(a) Freeman, Remote 8–13, 15, 17, 21,
25

14 103(a) Freeman, Hayes 14
16 103(a) Freeman, Techgooch 16
18, 19 103(a) Freeman, Echevers 18, 19
20 103(a) Freeman, Schmidt 20
Overall Outcome 1–4, 6–27
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED