Musgrove, Timothy A. et al.

Patent Trials and Appeals Board

Dec 31, 2019

14262049 - (D) (P.T.A.B. Dec. 31, 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.
14/262,049 04/25/2014 Timothy A. Musgrove 10-348-US-C2 2711
128144 7590 12/31/2019
Rimon PC
One Embarcadero Center
Suite 400
San Francisco, CA 94111
EXAMINER
ERB, NATHAN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
12/31/2019 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):
docketing.rimonlaw@clarivate.com
eofficeaction@appcoll.com
patentdocketing@rimonlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY A. MUSGROVE, ROBIN HIROKO WALSH, and
RUSSELL GILCHRIST
Appeal 2018-008150
Application 14/262,049
Technology Center 3600
Before JOSEPH L. DIXON, JAMES R. HUGHES, and
STEPHEN E. BELISLE, Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1, 8–11, 13, 14, 20–23, and 25–29.
Claims 2–7, 12, 15–19, and 24 have been canceled. See Appeal Br. 2.2 We
have jurisdiction under 35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as CBS Interactive
Corp. See Appeal Br. 2.
2 We refer to Appellant’s Specification (“Spec.”), filed Apr. 25, 2014
(claiming benefit of US 13/298,085 (filed Nov. 16, 2011); US 12/217,095
(filed July 1, 2008); and US 10/265,189 (filed Oct. 7, 2002); Appeal Brief
(“Appeal Br.”), filed Apr. 22, 2018; and Reply Brief (“Reply Br.”), filed
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We AFFIRM.
CLAIMED SUBJECT MATTER
The claims in this patent application generally relate to rating multiple
products and, more particularly, to apparatuses “and methods that allow
rating of plural products based on their attributes.” Spec. ¶ 2; see Spec.
¶¶ 9–12 and Abstract. Claims 1 and 14 are independent. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method implemented by at least one computing
device for rating plural items comprising the steps of:
[A] identifying, by the at least one computing device, a set
of attributes associated with the items;
[B] receiving, by the at least one computing device, plural
data sets, each data set including values of the set of attributes
for a specified item;
[C] applying, by the at least one computing device, a scalar
structure to item attribute values of the items to provide a scalar
value corresponding to each attribute value for each specified
item;
[D] determining, by the at least one computing device, a
competitive index for one or more of the item attributes based on
the scalar values, wherein the competitive index for each of the
one or more item attributes comprises an average of a maximum
percentile rank and a minimum percentile rank of a percentile
rank range associated with a scalar value corresponding to that
item attribute in an ordered list of the scalar values, wherein the
maximum percentile rank and the minimum percentile rank are
not the same for the percentile rank range;

Aug. 10, 2018. We also refer to the Examiner’s Final Office Action (“Final
Act.”), mailed Jan. 23, 2018; and Answer (“Ans.”) mailed July 31, 2018.
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[E] the at least one computing device at least one of rating
and pricing each item based on the competitive index to create
item results; and
[F] transmitting, by the at least one computing device, the
item results to be displayed in an organized manner based on the
at least one of rating of each item and the pricing of each item.
Appeal Br. 12 (Claims App’x.) (bracketed limitation designations added).
REJECTION3
The Examiner rejects claims 1, 8–11, 13, 14, 20–23, and 25–29 under
35 U.S.C. § 101 as being directed to patent-ineligible subject matter. See
Final Act. 12–13.
OPINION
Subject Matter Eligibility—35 U.S.C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” The Supreme Court has “long held that
this provision contains an important implicit exception: “[l]aws of nature,
natural phenomena, and abstract ideas are not patentable.” Alice Corp. v.
CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).

3 The Examiner has withdrawn the rejection of claims 26 and 27 under
35 U.S.C. § 112, first paragraph for failing to comply with the written
description requirement. See Final Act. 9–11; Ans. 3. The Examiner has
also withdrawn the rejection of claims 1, 8–11, 13, 14, 20–23, and 25–29
under 35 U.S.C. § 112, second paragraph as being indefinite. See Final Act.
11–12; Ans. 3. Claim 16 was canceled by Appellant after the Final Office
Action.
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The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 77–80 (2012), “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice, 573 U.S. at 217. The
framework requires us first to consider “whether the claims at issue are
directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217.
If so, we then examine “the elements of [the] claim both individually and ‘as
an ordered combination’ to determine whether the additional elements
‘transform the nature of the claim’ into a patent-eligible application.” Alice,
573 U.S. at 217 (quoting Mayo, 566 U.S. at 78, 79). That is, we examine the
claim for an “inventive concept,” “an element or combination of elements
that is ‘sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.’” Alice,
573 U.S. at 217–18 (alteration in original) (quoting Mayo, 566 U.S. at 72–
73).
The Patent Office recently published revised guidance concerning this
framework and the application of § 101. USPTO’s 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(hereinafter “2019 Revised Guidance”). Under that guidance, we first look
to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, mental processes, or
certain methods of organizing human activity such as a
fundamental economic practice or managing personal behavior
or relationships or interactions between people) (hereinafter
“Step 2A, prong 1”); and
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(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(hereinafter “Step 2A, prong 2”).4
See 2019 Revised Guidance, 84 Fed. Reg. at 51–52, 55.
A claim that integrates a judicial exception into a practical application
applies, relies on, or uses the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception. See 2019
Revised Guidance, 84 Fed. Reg. at 54. When the judicial exception is so
integrated, then the claim is not directed to a judicial exception and is patent
eligible under 35 U.S.C. § 101. Id.
Only if a claim: (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then evaluate
whether the claim provides an inventive concept. See 2019 Revised
Guidance 84 Fed. Reg. at 56; Alice, 573 U.S. at 217–18.
For example, we look 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.5
See 2019 Revised Guidance, 84 Fed. Reg. at 56. With these principles in
mind, we turn to the merits of the § 101 rejection. The Examiner rejects

4 All references to the MPEP are to the Ninth Edition, Revision 08–2017
(rev. Jan. 2018).
5 Items (3) and (4) are collectively referred to as “Step 2B” hereinafter and
in the 2019 Revised Guidance.
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Appellant’s claims 1, 8–11, 13, 14, 20–23, and 25–29 as being directed to
patent ineligible subject matter. See Final Act. 3–9, 12–13. Although
Appellant argues the Examiner did not address the dependent claims (see
Appeal Br. 10), Appellant does not separately argue the independent
claims 1 and 14 or the dependent claims with specificity and, instead, argues
claims 1, 8–11, 13, 14, 20–23, and 25–29 together for this rejection. See
Appeal Br. 4–10. Accordingly, we address the Examiner’s rejection of
independent claim 1 and the claims not separately argued by Appellant as a
group based on claim 1, as permitted by 37 C.F.R. § 41.37(c)(1)(iv).
Statutory Subject Matter
We find that claim 1 recites a “method” (infra). A “method” is a
process, which is a statutory category of invention (subject matter)
(USPTO’s Step 1).
Abstract Idea
The Examiner rejects Appellant’s claim 1 as being directed to patent
ineligible subject matter. See Final Act. 3–9, 12–13; Ans. 3–26.
Specifically, the Examiner concludes claim 1 (and the other pending claims)
“is directed to a judicial exception (i.e., . . . an abstract idea) without
significantly more,” in particular, the “abstract idea of rating and/or pricing a
plurality of items.” Final Act. 12 (quotes omitted). The Examiner also
concludes the abstract idea includes “performing the steps of identifying a
set of attributes . . . , receiving plural data sets . . . , applying a scalar
structure . . . , determining a competitive index . . . , and rating and/or
pricing each item . . . . which corresponds to concepts identified as abstract
ideas by the courts,” similar to the claims in Versata. Final Act. 13 (citing
Versata, Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306 (Fed. Cir. 2015)).
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The Examiner further concludes claim 1 (and the other pending claims)
describe a concept that “is not meaningfully different than that idea of itself
found by the courts to be an abstract idea.” Final Act. 13.
Appellant contends the Examiner erred in rejecting the claims as
being directed to patent-ineligible subject matter. See Appeal Br. 4–10;
Reply Br. 1–4. Specifically, Appellant contends, with respect to the first
step of the Alice analysis, that the Examiner erred in rejecting claim 1 (and
the other pending claims) because: (1) claim 1 is not directed to an abstract
idea and the Examiner’s interpretation of the claim(s) is overbroad—“[t]he
rejection addresses broad abstractions of some of the individual claim
elements and refuses to address the combination of the elements as a whole”
(Appeal Br. 5; see Appeal Br. 4–7; Reply Br. 1–4) (emphasis omitted);
(2) the Examiner has not sufficiently explained the basis for the rejection
and has not presented a prima facie case—“[t]he rejection is based solely on
conclusion without analysis” (Appeal Br. 7; see Appeal Br. 4–7; Reply
Br. 1–4); and (3) the Examiner has overlooked the technical improvement
provided by the instant claims—“the rejection ignores the technical problem
solved by the ordered combination of claimed elements” (Appeal Br. 7;
see Appeal Br. 7–9).
For the reasons discussed below, we conclude Appellant’s claim 1
(and the other pending claims) recites abstract ideas, these abstract ideas are
not integrated into a practical application, nor do they include an inventive
concept. In view of the 2019 Revised Guidance, we clarify and expand the
Examiner’s reasoning as follows.
We begin our analysis by broadly but reasonably construing
Appellant’s claim 1 (see Appeal Br. 34–35 (Claims App’x.)). Claim 1
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recites a “method implemented by at least one computing device for rating
plural items,” i.e., a computing device performing a process (method) for
providing (numerical) ratings for multiple items. See Spec. ¶¶ 2, 9, 20. The
process comprises the steps of: “identifying . . . a set of attributes associated
with the items.” The “identifying” is performed by “the at least one
computing device.” That is, the computing device identifying data, where
the data is characterized as item attributes—a set of attributes associated
with the items (to be rated). See Spec. ¶¶ 10, 12, 25. Hereinafter, we refer
to this step (sub-process or function) as “Step A.” The “method” recited in
claim 1 includes a non-abstract element (physical structure) performing the
functionality of Step A. This additional (non-abstract) element, is the recited
at least one computing device. See Spec. ¶ 22; Fig. 1.
Claim 1 further recites “receiving . . . plural data sets, each data set
including values of the set of attributes for a specified item.” The
“receiving” is performed by “the at least one computing device.” In other
words, the process includes the computing device receiving data—multiple
data sets, each including data that is characterized as attribute values for a
specified item (item attribute values). For example different models of
cameras may have different sizes and types of displays (view screens)—
including no display, an LCD display, or a color LCD display. See Spec
¶¶ 25, 27. Hereinafter, we refer to this step as “Step B.”
Claim 1 additionally recites “applying . . . a scalar structure to item
attribute values of the items to provide a scalar value corresponding to each
attribute value for each specified item” by “the at least one computing
device.” That is, applying a scalar structure (numbering system) to item
attribute values—the computing device provides a scalar (numerical) value
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corresponding to each attribute value for each specified item—i.e., assigning
a numerical value to each item attribute value. See Spec. ¶¶ 26–27.
Continuing the earlier example, the different camera displays (view screens)
are assigned a corresponding numerical value, including: “0” for no display,
“1” for an LCD display, or “3” for a color LCD display. See Spec. ¶¶ 26,
27. Hereinafter, we refer to this step as “Step C.”
Claim 1 also recites “the at least one computing device” “determining
. . . a competitive index for one or more of the item attributes based on the
scalar values” where the competitive index “comprises an average of a
maximum percentile rank and a minimum percentile rank of a percentile
rank range associated with a scalar value corresponding to that item
attribute.” In other words, the process includes calculating a competitive
index for the item attributes based on the assigned scalar (numerical) values.
The competitive index is characterized as an average of a maximum
percentile rank and a minimum percentile rank of a percentile rank range
associated with the particular scalar values corresponding to the item
attribute (in an ordered list of the scalar values). The maximum percentile
rank and the minimum percentile rank are characterized as not being the
same for the percentile rank range. See Spec. ¶¶ 28–30, 32–34; Table 1.
Hereinafter, we refer to this step as “Step D.”
Claim 1 further recites “the at least one computing device at least one
of rating and pricing each item based on the competitive index to create item
results.” That is, the process includes the step of the computing device
providing a rating (or price) for each item based on the competitive index.
See Spec. ¶¶ 47, 49–56. Hereinafter, we refer to this step as “Step E.”
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Claim 1 then recites “transmitting . . . the item results to be displayed
in an organized manner based on the at least one of rating of each item and
the pricing of each item” by “the at least one computing device.” In other
words, the computing device transmitting the item results (the item rating or
price) such that the results may be displayed—i.e., sending (transmitting)
data. See Spec. ¶¶ 8, 57. Hereinafter, we refer to this step as “Step F.”
In summary, claim 1 recites a process for rating items (products) by
identifying item attributes (data), receiving item attribute values (data),
assigning a numerical value to each item attribute value, calculating a
competitive index for the item attributes based on the item attribute
numerical values, producing a result (a rating or price) for each item based
on the competitive index, and publishing the result. Hereinafter, we refer to
this process as the “item rating process.” This is consistent with how
Appellant describes the claimed invention—“the preferred embodiment . . .
facilitates rating plural products without the disadvantages of conventional
methods and systems for rating” by “taking into consideration the actual
number of products in a product category that have, or do not have, a
particular feature and/or attribute.” Spec. ¶ 20.
Appellant’s contentions (supra) focus on the Examiner’s purported
failure to properly characterize claim 1. See, e.g., Appeal Br. 4–7; Reply
Br. 1–4. Here, in rejecting the claims (in particular claim 1) under 35 U.S.C.
§ 101, the Examiner analyzed the claims using the Mayo/Alice two-step
framework, consistent with the guidance set forth in the USPTO’s “2014
Interim Guidance on Patent Subject Matter Eligibility,” 79 Fed. Reg. 74618
(Dec. 16, 2014), in effect at the time the rejection was made, i.e., on January
23, 2018. The Examiner notified Appellant of the reasons for the rejection
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“together with such information and references as may be useful in judging
of the propriety of continuing the prosecution of . . . [the] application.” 35
U.S.C. § 132. See Final Act. 3–9, 12–13. In doing so, the Examiner set
forth a prima facie case of unpatentability such that the burden of production
shifted to Appellant to demonstrate that the claims are patent-eligible. We
agree generally with the Examiner’s rejection under § 101. We clarify and
expand the Examiner’s reasoning in view of the 2019 Revised Guidance.
The Examiner concluded that Appellant’s claims were focused on the
abstract idea of “rating and/or pricing a plurality of items” (Final Act. 12
(quotes omitted)), which corresponds to concepts similar to those found to
be abstract in Versata, and which was “not meaningfully different than [an]
‘idea of itself’”—i.e., mental processes (Final Act. 13). See Final Act. 12–
13. In Versata, the Federal Circuit concurred with the USPTO’s conclusion
that the at-issue claims were drawn to the abstract idea of calculating a price
using organizational hierarchies, which could be accomplished mentally or
utilizing pen and paper. See Versata, 793 F.3d at 1331, 1333–35. We agree
with the Examiner that the instant claims are similar to those in Versata.
Appellant also contends (supra) that the Examiner failed to glean
from claim 1 (and the other pending claims) that the claims recite a
technological improvement (see, e.g., Appeal Br. 7–9). Claim 1, however,
recites no substantive limitations on how the item rating process calculates
the various statistical values, other than characterizing the “competitive
index” as an average of a maximum percentile rank and a minimum
percentile rank associated with particular scalar values corresponding to a
particular item attribute. The limitations are entirely functional in nature, or
characterize various data utilized in Steps A–F (supra).
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Although Appellant contends the claims describe purported
technological improvements or advances provided by the item rating
process, claim 1 (and the other pending claims) does not explicitly recite any
specific improvements to technology, i.e., performing any improved
computer processing or analysis. Claim 1, instead, simply recites identifying
and receiving data, assigning a numerical value to the data (where the data
values are not numerical), analyzing data (performing statistical analysis)
and calculating an index, and calculating ratings from the index. In each
instance, the particular means of accomplishing the functionality is not
recited in the claim. The computing device (discussed supra) is an
additional element that are not part of the abstract idea analysis.
A person can perform the functions of steps A and C–E (delineated
above) mentally, or by using pen and paper. See, e.g., Appellant’s Figs. 2, 3.
Nowhere does Appellant point to specific claim limitations that distinguish
over a human process. Performing data analysis and statistical calculations,
as well as the collection and publication (outputting) of information related
to such analysis (steps B and F), has been determined by our reviewing court
to be an abstract concept (a mental process) that is not patent eligible.
Indeed, even if such analysis requires one to access and gather data from a
database or utilize a pen and paper in the analysis (such as to graphically
represent a data set), such analysis may still be an abstract mental process.
See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed.
Cir. 2011) (“[E]ven if some physical steps are required to obtain information
from the database . . . such data-gathering steps cannot alone confer
patentability.” A claim focused on verifying credit card transaction
information is directed to “unpatentable mental processes” because the
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claim’s steps “can be performed in the human mind, or by a human using a
pen and paper.”); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
1165, 1167–68 (Fed. Cir. 2018) (Claims reciting “[a] method for providing
statistical analysis” (id. at 1165), were determined to be “directed to an
abstract idea” (id. at 1168). “As many cases make clear, even if a process of
collecting and analyzing information is limited to particular content or a
particular source, that limitation does not make the collection and analysis
other than abstract” (id. (citation and quotation marks omitted)); Intellectual
Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir.
2017) (identifying the abstract idea of collecting, displaying, and
manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing
information by steps people go through in their minds, or by mathematical
algorithms, and presenting the results of collecting and analyzing
information, without more, as matters within the realm of abstract ideas);
Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n,
776 F.3d 1343, 1345, 1347 (Fed. Cir. 2014) (finding the “claims generally
recite . . . extracting data . . . [and] recognizing specific information from the
extracted data” and that the “claims are drawn to the basic concept of data
recognition”); Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can.
(U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required
calculations could be performed more efficiently via a computer does not
materially alter the patent eligibility of the claimed subject matter.”).
In summary, we conclude Appellant’s claim 1 recites a judicial
exception (USPTO’s Step 2A, Prong 1; see 2019 Revised Guidance).
Specifically, claim 1 recites a process for rating items by identifying item
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attributes, receiving item attribute values, assigning a numerical value to
each item attribute value, calculating a competitive index for the item
attributes, producing a rating for each item based on the competitive index,
and publishing the result. The item rating process consists of mental
processes performed in the human mind (or utilizing pen and paper)
including observation, evaluation, or judgment. See 2019 Revised
Guidance, 84 Fed. Reg. at 52, 53 (listing “[m]ental processes—concepts
performed in the human mind (including an observation, evaluation,
judgment, opinion)” as one of the “enumerated groupings of abstract ideas”
(footnote omitted)). The revised guidance explains that “mental processes”
include acts that people can perform in their minds or using pen and paper,
even if the claim recites that a generic computer component performs the
acts. See 2019 Revised Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim,
under its broadest reasonable interpretation, covers performance in the mind
but for the recitation of generic computer components, then it is still in the
mental processes category unless the claim cannot practically be performed
in the mind.”). Because each of the limitations discussed above
encompasses an act that people can practically perform in their minds or
using pen and paper, claim 1 recites mental processes. Appellant’s
arguments have not persuaded us otherwise.
Practical Application
We next consider whether claim 1 integrates the abstract idea into a
practical application (USPTO’s Step 2A, Prong 2). See Revised Guidance,
84 Fed. Reg. at 51. In doing so, we consider whether there are any
additional elements beyond the abstract idea that, individually or in
combination, “integrate the [abstract idea] into a practical application, using
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one or more of the considerations laid out by the Supreme Court and the
Federal Circuit.” Revised Guidance, 84 Fed. Reg. at 54–55.
Appellant’s claim 1 recites an additional element beyond the abstract
item rating process (the judicial exception) (supra). The additional element
in claim 1 includes the recited “at least one computing device,” which
performs the functionality of Steps A–F. The written description indicates
that this element encompasses commonplace generic components—“the
rating system 10 . . . may be implemented with any type of hardware and
software, and may be a pre-programmed general purpose computing
device,” such as a “personal computer, a portable computer, a thin client, a
hand held device, a wireless phone, or any combination of such devices”
(Spec. ¶ 22) (emphasis added). Appellant does not describe the “computing
device” with any specificity. See Spec. ¶¶ 22–23; Fig. 1. The written
description also indicates the “computing device” performs commonplace
computer functions—the computing device may be “adapted to control
and/or facilitate functions of various modules of the rating system 10”
(Spec. ¶ 22; see Spec. ¶ 23) the functions including: “stor[ing] the gathered
attributes for a product category and the attributes of each product in a
database or other storage device” (Spec. ¶ 25); “provid[ing] a scalar value of
each attribute” (Spec. ¶ 26; see Spec. ¶ 27)—i.e., assigning a numerical
value (according to undisclosed means); calculating and processing
statistical data (to determine an index) (see Spec. ¶¶ 28–30, 32–34);
calculating a value (a rating or price based on the index) (see Spec. ¶ 47);
and outputting or sending (transmitting/publishing) data (see Spec. ¶ 57).
The written description simply describes the additional element
performing its accustomed functions utilizing standard techniques with no
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technical details—the computing device (CPU) identifying and receiving
attribute values (i.e., storing), assigning a numerical value to each item
attribute value, calculating an index for the item attributes based on the item
attribute numerical values (i.e., performing data analysis and manipulation),
producing a rating (i.e., also performing data analysis and manipulation),
and outputting the result. See, e.g., Spec. ¶¶ 22, 23, 25, 27–30, 32–34, 47,
57. These descriptions show that the additional elements are generic. See
Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1384 (Fed.
Cir. 1986) (“[A] patent need not teach, and preferably omits, what is well
known in the art.”); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d
1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in
implementation details that it amounts to merely a generic component
(software, hardware, or firmware) that permits the performance of the
abstract idea, i.e., to retrieve the user-specific resources.”).
Appellant contends claim 1 (as well as other pending claims) provides
a technical solution to a “technical problem.” Appeal Br. 7; see Appeal
Br. 7–9. In other words, the claims recite a technological improvement that
amounts to more than simply utilizing a computer as a tool to accomplish the
item rating process.
Appellant’s contentions correspond to the reasoning in MPEP
§§ 2106.05(a)–(c), where additional elements integrate the judicial exception
into a practical application. We, however, disagree with Appellant’s
contentions. Appellant’s additional element, the computing device, does not
apply or use the item rating process (the judicial exception) in a manner that
imposes a meaningful limit on the judicial exception, such that it is more
than a drafting effort designed to monopolize the exception. See Alice, 573
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U.S. at 221–24 (citing Mayo, 566 U.S. at 78–85). Rather, Appellant’s claim
recites a generic computer element (the computing device or a processor
(CPU)) that is utilized as a tool to carry out the functions recited in the item
rating process (discussed supra). Utilizing a computer as a tool to perform
common data processing functions that are part of a mental process
(an abstract idea) does not impose a meaningful limit on the abstract idea.
See MPEP § 2106.05(f); see also Alice, 573 U.S. at 223 (finding “if [the]
recitation of a computer amounts to a mere instruction to implement an
abstract idea on a computer that addition cannot impart patent eligibility”
(quotations and internal citations omitted)). In particular, similar to BSG
Tech., Appellant’s claims do not recite “improvements to database
functionality,” instead the “benefits . . . flow from performing an abstract
idea in conjunction with a well-known database structure.” BSG Tech., LLC
v. Buyseasons, Inc., 899 F.3d 1281, 1288 (Fed. Cir. 2018) (claims directed to
indexing user-provided database information were drawn to an abstract
concept and did not recite a technical improvement. See id. at 1286–88).
As discussed supra, nothing in claim 1, precludes a human from
performing the item rating process. Performing such data analysis
functionality is the reason computers exist. The mere automation of a
process that can be performed by a human is not sufficient to show an
improvement in computer functionality, and the fact that a computer may
increase efficiency or improve the accuracy of product ratings—see Appeal
Br. 7–9 (citing Spec. ¶¶ 16–20))—does not change the abstract-idea
analysis. See Intellectual Ventures I LLC v. Capital One Bank (USA), 792
F.3d 1363, 1370 (Fed. Cir. 2015) (holding that “merely adding computer
functionality to increase the speed or efficiency of the process does not
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confer patent eligibility on an otherwise abstract idea”); OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (“[R]elying on a
computer to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible.”); see also FairWarning IP,
LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016).
Appellant misconstrues the relevant law. Even if, arguendo,
Appellant’s claimed process includes an (undisclosed) improved algorithm
for calculating an index and rating an item based on the index—which we
did not find (supra)—claim 1 does not specify any improvement in how a
computing device performs the underlying data processing and analysis
necessary to perform the algorithm. In other words, only the abstract ideas
in claim 1 are potentially new (although we make no determination as to
novelty or obviousness), not the way a computer operates.
In summary, “the focus of the claims is not on such an improvement
in computers as tools, but on certain independently abstract ideas that use
computers as tools.” Elec. Power Grp., 830 F.3d at 1354; see also MPEP
§ 2106.05(f) (emphasis omitted) (instructing Examiners to consider
“[w]hether the claim invokes computers or other machinery merely as a tool
to perform an existing process” in determining whether the claim recites
mere instructions to apply the exception), cited in 2019 Revised Guidance,
84 Fed. Reg. at 55, n.30. Thus, we conclude the claims are directed to an
abstract idea that is not integrated into a practical application.
Inventive Concept
Having concluded Appellant’s claims are directed to an abstract idea
under the 2019 Revised Guidance (Step 2A analysis), we consider whether
claim 1 has an inventive concept, that is, whether the claim has additional
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elements that “‘transform the nature of the claim’ into a patent-eligible
application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78, 79). As
discussed above, this requires us to evaluate whether the additional claim
elements add “a specific limitation or combination of limitations that are not
well-understood, routine, conventional activity in the field” or “simply
append[] well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality.” Revised Guidance,
84 Fed. Reg. at 56. We evaluate the elements of the claims “individually
and ‘as an ordered combination.’” Alice, 573 U.S. at 217 (quoting Mayo,
566 U.S. at 78, 79); see BASCOM Glob. Internet Sers., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016) (“[A]n inventive
concept can be found in the non-conventional and non-generic arrangement
of known, conventional pieces.”).
The Examiner determined Appellant’s “claim(s) do not include
additional elements that are sufficient to amount to significantly more than
the judicial exception because the additional computer elements, which are
recited at a high level of generality, provide conventional computer
functions that do not add meaningful limits to practicing the abstract idea.”
Final Act. 12–13; see Final Act. 3–9, 12–13; Ans. 3–26.
Appellant, on the other hand, reiterates the limitations of claim 1
(see Appeal Br. 7) and portions of the Specification (see Appeal Br. 7–9
(citing Spec. ¶¶ 16–20)) and contends the claim elements (of claim 1 and the
other pending claims) “recite an inventive concept directed to ‘significantly
more’ than the alleged abstract idea.” Appeal Br. 9. Appellant also
contends the Examiner did not analyze the claim elements (of claim 1 and
the other pending claims) as an ordered combination as required by
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BASCOM. See Appeal. Br. 9–10; Reply Br. 2–4. Appellant further contends
the Examiner did not provide sufficient evidence that the claim limitations
recite well understood, routine, or conventional activities. See Reply Br. 1–
2.6
Appellant fails to persuade us of error in the Examiner’s rejection
with respect to the second Alice step (USPTO’s Step 2B). We agree with the
Examiner that Appellant’s claim 1 (and the other pending claims) does not
evince an “inventive concept” that is significantly more than the abstract
idea itself. In particular, Appellant fails to explain how the additional
elements (above) add specific limitations beyond the judicial exception that
are not well-understood, routine, and conventional in the field.
As previously discussed, claim 1 (and the other pending claims)
merely recites additional non-abstract elements (above)—specifically the
computing device—a generic computer element that carries out common
data processing functions recited in the item rating process (the abstract
idea). Specifically, Appellant’s Specification describes a computer system
(not recited in the claims), “the rating system” (Spec. ¶ 22), as a collection
of conventional (generic) computer components performing traditional
computer functions—these components include the above-discussed
computing device. See, e.g., Spec. ¶¶ 22–24; Fig. 1. Also, to the extent that

6 Appellant’s Reply Brief was filed after the publication of the Berkheimer
decision (Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)) and the
USPTO’s Berkheimer Memorandum (Changes in Examination Procedure
Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility
Decision (Berkheimer v. HP, Inc.) (April 19, 2018) available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF. Appellant makes no explicit arguments with respect to
Berkheimer.
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the written description describes the functions performed by these elements,
Appellant’s Specification describes the functions at a high level of generality
and largely does not describe the particulars of how the claimed invention
implements these functions. See discussion supra; see also Spec. ¶¶ 22, 23,
25, 27–30, 32–34, 47, 57 (describing the functions in the item rating
process). Such conventional computer processes operating on conventional
computer hardware “do not alone transform an otherwise abstract idea into
patent-eligible subject matter.” FairWarning, 839 F.3d at 1096 (citing DDR
Holdings, 773 F.3d at 1256); see also Berkheimer Memorandum at 3
(explaining that a specification that describes additional elements “in a
manner that indicates that the additional elements are sufficiently well-
known that the specification does not need to describe the particulars of such
additional elements to satisfy 35 U.S.C. § 112(a)” can show that the
elements are well-understood, routine, and conventional).
Appellant does not direct us to any disclosure in the Specification that
indicates the additional elements, either individually or as an ordered
combination, perform anything other than well-understood, routine, and
conventional processing functions, such as generating and manipulating
data. See Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (holding that considering claims reciting data
retrieval, analysis, modification, generation, display, and transmission as an
“‘ordered combination”’ reveals that they “amount to ‘nothing significantly
more’ than an instruction to apply [an] abstract idea” using generic computer
technology) (internal citation omitted). In short, as previously discussed,
claim 1 (and the other pending claims) does no more than use generic
hardware to implement the claimed abstract idea.
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To the extent Appellant contends the Examiner failed to comply with
the requirements of the Berkheimer decision (supra), we disagree. The
Examiner generally cited to Appellant’s Specification as well as extrinsic
evidence to support the Examiner’s determinations that the claims recite
well-understood, routine, and conventional components and activities.
See Final Act. 13 (citing Gilmour, Hello, good buy, Internet Magazine at 64,
EMAP Media Ltd., November 2001); Ans. 3–7.
For at least the reasons above, we are not persuaded of Examiner error
in the rejection of claim 1 under 35 U.S.C. § 101. Thus, we sustain the
Examiner’s rejection under § 101 of independent claim 1, independent
claim 14, and dependent claims 8–11, 13, 20–23, and 25–29, which depend
therefrom and were not separately argued with specificity.
CONCLUSION
For the reasons discussed above, we determine that claims 1, 8–11,
13, 14, 20–23, and 25–29 are directed to an abstract idea and do not
demonstrate an inventive concept.
Appellant has not shown that the Examiner erred in rejecting claims 1,
8–11, 13, 14, 20–23, and 25–29 under 35 U.S.C. § 101. We, therefore,
sustain the Examiner’s rejection of claims 1, 8–11, 13, 14, 20–23, and 25–29
under § 101.
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CONCLUSION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis  Affirmed Reversed
1, 8–11, 13,
14, 20–23,
25–29
101 Eligibility 1, 8–11, 13,
14, 20–23,
25–29

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED