Yieldmo, Inc.

Patent Trials and Appeals Board

Mar 16, 2022

2021005526 (P.T.A.B. Mar. 16, 2022)

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. 16/427,303 05/30/2019 Indu Narayan YIEL-M14-US 6574 129794 7590 03/16/2022 Run8 Patent Group, LLC 1108 Bryant Street Unit B San Francisco, CA 94103 EXAMINER SPAR, ILANA L ART UNIT PAPER NUMBER 3622 NOTIFICATION DATE DELIVERY MODE 03/16/2022 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): agents@r8pg.com docketing@r8pg.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte INDU NARAYAN, DAVID SEBAG, MAZIAR HOSSEINZADEH, ROHIT MATTHEWS, JASMINE NOACK, MELODY LI, ANDREW HOLZ, SERGEI IZRAILEV, and FARID JAWDE Appeal 2021-005526 Application 16/427,303 Technology Center 3600 ____________ Before NINA L. MEDLOCK, BRUCE T. WIEDER, and ROBERT J. SILVERMAN, Administrative Patent Judges. SILVERMAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision rejecting claims 1 and 22-40. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Yieldmo, Inc. Appeal Br. 4. Appeal 2021-005526 Application 16/427,303 2 ILLUSTRATIVE CLAIM 1. A method for an advertising campaign comprising: • at a first time, accessing a first set of engagement data representing a first set of interactions between a first user and a first digital advertisement in a first advertising campaign, the first digital advertisement inserted into a first advertisement slot displayed within a window rendered on a display of a first computing device of the first user; • accessing a model associating user interactions with the first digital advertisement in the first advertising campaign and user interactions with a set of advertisements in the first advertising campaign; • predicting a first outcome score for the first user interacting with a second digital advertisement in the first advertising campaign based on the first set of engagement data and the model, the first outcome score representing a probability of the first user interacting with the second digital advertisement according to a first target outcome defined by the first advertising campaign; and • in response to the first outcome score exceeding a threshold outcome score, selecting the second digital advertisement in the first advertising campaign for presentation to the first user within a second advertisement slot accessed by the first computing device. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Anand et al. (“Anand”) US 2008/0140508 A1 June 12, 2008 Catlin et al. (“Catlin”) US 2009/0282343 A1 Nov. 12, 2009 Goodhart et al. (“Goodhart”) US 2017/0316431 A1 Nov. 2, 2017 Ronquillo US 2018/0101862 A1 Apr. 12, 2018 Appeal 2021-005526 Application 16/427,303 3 REJECTIONS I. Claims 1 and 22-40 are rejected under 35 U.S.C. § 101 as ineligible subject matter. II. Claims 1, 22-26, 29-34, 37, and 38 are rejected under 35 U.S.C. § 103 as unpatentable over Anand and Catlin. III. Claims 27, 28, 36, 39, and 40 are rejected under 35 U.S.C. § 103 as unpatentable over Anand, Catlin, and Ronquillo. IV. Claim 35 is rejected under 35 U.S.C. § 103 as unpatentable over Anand, Catlin, and Goodhart. FINDINGS OF FACT The findings of fact relied upon, which are supported by a preponderance of the evidence, appear in the following Analysis. ANALYSIS Subject-Matter Eligibility Under 35 U.S.C. § 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. Yet, subject matter belonging to any of the statutory categories may, nevertheless, be ineligible for patenting. The Supreme Court has interpreted 35 U.S.C. § 101 to exclude laws of nature, natural phenomena, and abstract ideas, because they are regarded as the basic tools of scientific and technological work, such that including them within the domain of patent protection would risk inhibiting future innovation premised upon them. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013) (“Myriad”). Of course, “[a]t some level, ‘all inventions . . . embody, use, reflect, rest upon, or apply’” these basic tools of scientific and technological work. Appeal 2021-005526 Application 16/427,303 4 Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014). Accordingly, evaluating ineligible subject matter, under these judicial exclusions, involves a two-step framework for “distinguish[ing] between patents that claim the buildin[g] block[s] of human ingenuity and those that integrate the building blocks into something more, thereby transform[ing] them into a patent- eligible invention.” Id. (alterations in original) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 88-89 (2012) (internal citation and quotation marks omitted)). The first step determines whether the claim is directed to judicially excluded subject matter (such as a so- called “abstract idea”); the second step determines whether there are any “additional elements” recited in the claim that (either individually or as an “ordered combination”) amount to “significantly more” than the identified judicially excepted subject matter itself. Id. at 217-18. In 2019, the Office published revised guidance on the application of § 101, in accordance with judicial precedent. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 52 (Jan. 7, 2019) (“2019 Revised Guidance”).2 Under the 2019 Revised Guidance, a claim is “directed to” an abstract idea, only if the claim recites any of (1) mathematical concepts, (2) certain methods of organizing human activity, and (3) mental processes - without integrating such abstract idea into a “practical application,” i.e., without “apply[ing], rely[ing] on, or 2 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). The Manual of Patent Examining Procedure (“MPEP”) incorporates the revised guidance and subsequent updates at § 2106 (9th ed. Rev. 10.2019, rev. June 2020). Appeal 2021-005526 Application 16/427,303 5 us[ing] 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.” Id. at 52-55. The considerations articulated in MPEP § 2106.05(a)-(c) and (e)-(h) bear upon whether a claim element (or combination of elements) integrates an abstract idea into a practical application. Id. at 55 (referring to MPEP 9th ed. Rev. 08.2017, rev. Jan. 2018). A claim that is “directed to” an abstract idea constitutes ineligible subject matter, unless the claim recites an additional element (or combination of elements) amounting to significantly more than the abstract idea. Id. at 56. Although created “[i]n accordance with judicial precedent,” the 2019 Revised Guidance enumerates the analytical steps differently than the Supreme Court’s Alice opinion. 2019 Revised Guidance, 84 Fed. Reg. at 52. Step 1 of the 2019 Revised Guidance addresses whether the claimed subject matter falls within any of the statutory categories of 35 U.S.C. § 101. Id. at 53-54. Step 2A, Prong One, concerns whether the claim at issue recites ineligible subject matter; if an abstract idea is recited, Step 2A, Prong Two, addresses whether the recited abstract idea is integrated into a practical application. Id. at 54-55. Unless such integration exists, the analysis proceeds to Step 2B, in order to determine whether any additional element (or combination of elements) amounts to significantly more than the identified abstract idea, which would render a claim patent-eligible, even though it is directed to judicially excepted subject matter. Id. at 56. With regard to Step 1 of the 2019 Revised Guidance, the Examiner regards all of claims 1 and 22-40 as “drawn to one of the statutory Appeal 2021-005526 Application 16/427,303 6 categories of invention.” Final Act. 3. The Appellant does not dispute the Examiner’s determination, as to Step 1. In view of the Appellant’s distinct treatment of particular claims (see Appeal Br. 9-32), we address the Appellant’s arguments for independent claim 1, under Steps 2A and 2B of the 2019 Revised Guidance (see id. at 9- 22), before proceeding to the other claims. As to claim 1, with regard to Step 2A, Prong One, the Examiner delineates the claim language that recites a judicial exception, providing descriptions of the corresponding quoted claim language: [C]laim[ 1] recite[s] limitations for serving advertising content (“a first set of interactions between a first user and a first digital advertisement in a first advertising campaign, the first digital advertisement inserted into a first advertisement slot”), receiving engagement data indicating interaction with advertising content (“at a first time, accessing a first set of engagement data, representing a first set of interactions between a first user and a first digital advertisement in a first advertising campaign, the first digital advertisement inserted into a first advertisement slot”), placing interaction data and target data into a mathematical formula/association model for predicting interactions with associated scores (“accessing a model associating user interactions with the first digital advertisement in the first advertising campaign and user interactions with a set of advertisements in the first advertising campaign”, “predicting a first outcome score for the first user interacting with a second digital advertisement in the first advertising campaign based on the first set of engagement data and the model, the first outcome score representing a probability of the first user interacting with the second digital advertisement according to a first target outcome defined by the first advertising campaign”), and then serving advertising content based on a threshold score requirement from the analyzed engagement data (“in response to the first outcome score exceeding a threshold outcome score, selecting the second digital advertisement in the first Appeal 2021-005526 Application 16/427,303 7 advertising campaign for presentation to the first user within a second advertisement slot”). Answer 3-4. The Examiner goes on to explain that the quoted language of claim 1 recites a judicial exception, in the categories of patent-ineligible “methods of organizing human activity and/or mathematical concepts”: These claim limitations regarding collecting advertising engagement data and then choosing another advertisement to serve based on an analysis of this data are directed to the commercial interactions of advertising, marketing or sales activities or behaviors, which are methods of organizing human activity. The user interactions model and predicted score limitations of the claims are directed to mathematical relationships, formulas, equations, or calculations which are mathematical concepts. These claimed methods of organizing human activity (advertising) and mathematical concepts describe/set-forth the abstract idea of tailoring content based on collected and analyzed content performance data. These claimed methods of organizing human activity and/or mathematical concepts are ineligible abstract ideas. Id. at 4; see also Final Act. 6. Asserting error in the rejection, the Appellant argues that “the Examiner has not identified a specific limitation in the claims that the Examiner believes recites an abstract idea.” Appeal Br. 10. This argument is not persuasive, in view of the articulation in the Examiner’s Answer, quoted above. The Appellant further argues that the Examiner’s characterization of the judicial exception (“tailoring content based on collected and analyzed content performance data”) “is not a mathematical concept, an identified method of organizing human activity, or a mental process,” such that the Examiner fails to show that the claims recite “an ineligible abstract idea.” Appeal Br. 10 (quoting Final Act. 6). See also id. at 10-15. Appeal 2021-005526 Application 16/427,303 8 As an initial matter, the Examiner does not characterize the identified claim limitations as reciting a mental process, contrary to the Appellant’s contention. See Appeal Br. 10. We agree with the Appellant, insofar as the Examiner’s identified limitations in claim 1 surpass what could be characterized as a mathematical concept. Although certain language of claim 1 that the Examiner regards as reciting a judicial exception (e.g., “predicting a first outcome score for the first user interacting with a second digital advertisement in the first advertising campaign based on the first set of engagement data and the model, the first outcome score representing a probability of the first user interacting with the second digital advertisement according to a first target outcome defined by the first advertising campaign”) could involve mathematics, there are other claim limitations (likewise so identified by the Examiner) which do not appear to involve mathematics (e.g., “at a first time, accessing a first set of engagement data, representing a first set of interactions between a first user and a first digital advertisement in a first advertising campaign, the first digital advertisement inserted into a first advertisement slot”). However, the Examiner’s identified claim limitations neatly describe a practice for tailoring the delivery of content, which courts have regarded as an ineligible method of organizing human activity. See Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1362 (Fed. Cir. 2020) (using a computer to deliver targeted advertising to a user constitutes an abstract idea); Affinity Labs of Tex., LLC v. Amazon.com, Inc., 838 F.3d 1266, 1271 (Fed. Cir. 2016) (“[T]ailoring of content based on information about the user - such as where the user lives or what time of day the user views the content - is an abstract idea that is as old as providing different newspaper Appeal 2021-005526 Application 16/427,303 9 inserts for different neighborhoods.”); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“Tailoring information based on the time of day of viewing is also an abstract, overly broad concept long-practiced in our society. There can be no doubt that television commercials for decades tailored advertisements based on the time of day during which the advertisement was viewed.”) Therefore, the Appellant does not persuasively argue that claim 1 stands rejected erroneously, under Step 2A, Prong One. Turning Step 2A, Prong Two, unless a claim that recites a judicial exception (such as an abstract idea) “integrates the recited judicial exception into a practical application of that exception,” the claim is “directed to” the judicial exception. 2019 Revised Guidance, 84 Fed. Reg. at 53. The analysis of such an “integration into a practical application” involves “[i]dentifying . . . any additional elements recited in the claim beyond the judicial exception(s)” and “evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application.” Id. at 54-55. Among the considerations “indicative that an additional element (or combination of elements) may have integrated the exception into a practical application” is whether “[a]n additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field.” Id. at 55 (footnote omitted). “[W]hether an additional element or combination of elements integrate[s] the exception into a practical application should be evaluated on the claim as a whole.” Id. at 55 n.24. Beyond the claim language identified as reciting the judicial exception, the Examiner regards the remaining subject matter of claim 1 - Appeal 2021-005526 Application 16/427,303 10 relating to a “window rendered on a display of a first computing device of the first user” and the “access[ing]” of the “advertisement slot” by the “first computer device” - as generally linking the judicial exception to a particular technological environment or field of use, but not integrating the judicial exception into a practical application thereof. Answer 9-10; see also Final Act. 7-9. As to Step 2A, Prong Two, the Appellant, in one aspect, contends that the computer-implementation features of claim 1 render the claim patent eligible, arguing that the subject matter of claim 1 is “necessarily rooted in computer technology or tied to the computer system described in the instant Application.” Appeal Br. 17.3 The Appellant’s reference to claimed subject matter that is “necessarily rooted in computer technology” (Appeal Br. 17), refers to the Federal Circuit’s description of claim features determined to constitute a type of technological improvement that supported patent-eligibility in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). See also 2019 Revised Guidance, 84 Fed. Reg. at 55 & n.25. The claims considered in DDR involved a modified Internet hyperlink protocol that produced a dual-source hybrid webpage. DDR, 773 F.3d at 1257-59. Thus, the Federal Circuit determined that the claims in DDR were “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” Id. at 1257. 3 The Appellant includes similar arguments in the portion of the Appeal Brief addressing Step 2A, Prong One, of the 2019 Revised Guidance. See Appeal Br. 11, 13. Appeal 2021-005526 Application 16/427,303 11 By contrast with the claims in DDR, the computer-network features of claim 1 in this Appeal simply provide a technological environment for implementing the identified judicial exception. The Appellant does not explain how the judicial exception might be integrated into a practical application thereof. The Appellant further argues that “the Examiner has ignored many key additional elements of the claims” that would establish patent eligibility: The computer system . . . solves the technical issue of selecting advertisements for placement in advertisement slots in near real-time based on a user’s current (e.g., at this time, on this webpage, during this browse session) “intent” or propensity to interact with certain types (e.g., formats) of advertisements, therefore enabling selection of advertisements that the user may be more likely to interact with (e.g., based on the format of these advertisements) while increasing a likelihood of achieving target outcomes defined by advertising campaigns. Appeal Br. 19. This argument does not persuade us of error in the application of Step 2A, Prong Two. The Appellant relies upon several features that are not recited in claim 1: “in near real-time”; “a user’s current (e.g., at this time, on this webpage, during this browse session) ‘intent’ or propensity to interact with certain types (e.g., formats) of advertisements”; and “certain types (e.g., formats) of advertisements.” Appeal Br. 19. Moreover, what the Appellant calls “the technical issue of selecting advertisements for placement in advertising slots” (id.), notwithstanding the unclaimed features, repeats the subject matter reciting the Examiner’s identified judicial exception. See Answer 5 (“[S]electing advertisement content served to a user based on user interactions with prior advertising content is an advertising analysis abstract idea associated with the organized human activity of commercial practices.”) Appeal 2021-005526 Application 16/427,303 12 Therefore, the Appellant does not persuasively argue that claim 1 stands rejected erroneously, under the inquiries of Step 2A, Prong Two. Under Step 2B of the 2019 Revised Guidance, 84 Fed. Reg. at 56, a claim that recites a judicial exception (such as an abstract idea) might, nevertheless, be patent-eligible, if the claim contains “additional elements amount[ing] to significantly more than the exception itself” - i.e., “a specific limitation or combination of limitations that [is] not well- understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present.” See Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent- ineligible abstract idea into a patent-eligible invention.”) The Examiner maintains that the additional elements of claim 1 are well-understood, routine, and conventional features of computer network environments. See Answer 16-17; see also Final Act. 9-12. The Appellant argues that the Examiner’s characterization of the additional elements refers to “many court decisions” delineating the well- understood, routine, and conventional nature of various computer functions, but “the Examiner fails to link the ‘additional elements’ (as identified by the Examiner) to these decisions.” Appeal Br. 21-22. This argument is not persuasive. The Examiner cites case law identifying generic computer network functionality that fails to amount to unconventional techniques that might render a claim patent eligible. See Final Act. 11-12, Answer 16-17. The additional elements of claim 1, beyond the claim limitations deemed to recite a judicial exception, relate to a “window rendered on a display of a first computing device of the first user” and the “access[ing]” of Appeal 2021-005526 Application 16/427,303 13 the “advertisement slot” by the “first computer device.” The recited generic activities of computer-implemented communication and display have not been shown to constitute unconventional techniques. Claim 1’s recitation of computer network and display features, like those in Electric Power Group, LLC v. Alstom SA, 830 F.3d 1350, 1355 (Fed. Cir. 2016), “do not require any nonconventional computer, network, or display components” or any non-conventional arrangement thereof, whereby the “invocation of computers, networks, and displays does not transform the claimed subject matter into patent-eligible applications.” Nor are we persuaded by the Appellant’s argument that “the Examiner has relied upon outdated guidance in issuing this rejection,” on account of the Examiner’s reference (see Final Act. 10) to the USPTO’s July 2015 Update: Subject Matter Eligibility. Appeal Br. 22. The identified information in this example of USPTO guidance constituted case law, which is not properly characterized as being “outdated.” See id. As the Examiner explains: The examiner notes that the examiner did not rely on this past guidance in issuing the 101 rejection but merely provided the July 2015 update information as an example of generic computer functions the courts have recognized as being generic. These court decisions still serve as guidance in distinguishing which claim elements refer to generic computer functions. Answer 17. Therefore, the Appellant does not persuasively argue that claim 1 stands rejected erroneously, under the inquiries of Step 2B, such that we sustain the rejection of claim 1 under 35 U.S.C. § 101. Appeal 2021-005526 Application 16/427,303 14 As noted above, the Appellant presents additional arguments asserting the eligibility of other claims in the Appeal. See Appeal Br. 22-32. We now turn to these additional arguments. The Appellant acknowledges that the other two independent claims (aside from claim 1) in the Appeal - independent claims 29 and 37 - “include similar elements and limitations as Claim 1.” Appeal Br. 22. However, the Appellant argues that “the Examiner has failed to address elements and/or limitations in Claims 29 and 37 that are distinct from Claim 1.” Id. at 23. “Therefore,” the Appellant continues, “the Examiner has failed to set forth a prima facie case that Claims 29 and 37 are directed to an abstract idea and/or ‘fail to include any additional elements.’” Id. According to the Appellant, “Claim 29 recites the following additional elements”: • “accessing a viewability model associating engagement data for users interacting with the first digital advertisement and viewability scores of users interacting with a set of digital advertisements presented within advertisement slots within webpages” • “predicting a first viewability score . . .” • “in response to the first viewability score of the second digital advertisement falling below the threshold viewability score, rejecting the second digital advertisement for presentation to the first user within the second advertisement slot” Appeal Br. 23. Consequently, the Appellant contends: Claim 29 is directed toward a method for: predicting viewability (e.g., view duration, proportion of digital advertisement visible) for a user interacting with a digital advertisement based on the user’s interactions with an initial digital advertisement served to this user; and selectively serving Appeal 2021-005526 Application 16/427,303 15 this digital advertisement to the user based on the predicted viewability. Id. Further, the Appellant maintains, “Claim 37 recites additional elements”: • “accessing a first set of engagement data representing interactions between a first user and a first digital advertisement of a first advertisement format, in a set of advertisement formats” • “accessing a model associating user interactions with digital advertisements of the first advertisement format and user interactions with digital advertisements of the set of advertisement formats” • “predicting an engagement score for the first user interacting with a second digital advertisement of a second advertisement format” • “in response to the engagement score falling below the threshold engagement score, selecting a third digital advertisement of a third advertisement format for presentation to the first user within the second advertisement slot” Id. at 23-24. In view of these limitations, the Appellant argues: Claim 37 is directed toward a method for: predicting engagement (e.g., interactions) for a user interacting with a digital advertisement of a particular advertisement format (e.g., responsive to scroll, responsive to swipe, video) based on the user’s interactions with an initial digital advertisement of an initial advertisement format served to this user; and selectively serving this digital advertisement of the particular advertisement format to the user based on the predicted viewability and/or selecting a different digital advertisement of a different advertisement format better matched to the predicted user interactions. Id. at 24. We are not persuaded that the Examiner’s rejection of claims 29 and 37 fails to establish a prima facie case of ineligibility, as the Appellant Appeal 2021-005526 Application 16/427,303 16 contends. See Appeal Br. 22. Our reviewing court has explained that “the prima facie case is merely a procedural device that enables an appropriate shift of the burden of production.” Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The Office “satisfies its initial burden of production by ‘adequately explain[ing] the shortcomings it perceives so that the applicant is properly notified and able to respond.”’ In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (quoting Hyatt, 492 F.3d at 1369-70). The Office’s burden comports with the notice requirement of 35 U.S.C. § 132 to provide the basis of the rejection. Id. See also Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990) (“Section 132 is violated when a rejection is so uninformative that it prevents the applicant from recognizing and seeking to counter the grounds for rejection.”) The Examiner’s rejection satisfied § 132 and established a prima facie case of patent ineligibility for claims 29 and 37. With respect to the Appellant’s arguments relating to the claim language of claims 29 and 37, the Appellant mistakenly refers to the identified limitations of these claims as “additional elements” (see Appeal Br. 23, 24). As discussed above, in subject-matter eligibility analyses, the term “additional elements” refers to claim limitations that do not recite subject matter that is judicially excepted from patent-eligibility. See 2019 Revised Guidance, 84 Fed. Reg. at 54-55. As the Examiner maintains - notwithstanding the textual differences among claims 1, 29, and 37 - the Appellant’s purported “additional elements” of claims 29 and 37 (see Appeal Br. 23, 24) recite the same judicial exception identified in claim 1: “tailoring content based on collected and analyzed content performance data.” Answer 18. According to the Examiner, the use of the terms Appeal 2021-005526 Application 16/427,303 17 “viewability score” (in claim 29) and “engagement score” (in claim 37) is not meaningfully distinct from claim 1’s “outcome score.” Id. Indeed, as the Examiner points out, claim 27 (which depends from claim 1) indicates that the recited “outcome score” comprises a “viewability score.” See id. Notably, our reviewing court has recognized that the verbal formulations sometimes used to describe judicial exceptions “can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir 2016). More fundamentally, the Appellant’s identified claim limitations of claims 29 and 37 (see Appeal Br. 23, 24) recite an ineligible method of organizing human activity for the same reasons that the Examiner articulated, with respect to the Step 2A, Prong One, analysis of claim 1. See Answer 3-4. Therefore, the Appellant does not persuasively argue that the Examiner erred in rejecting claims 29 and 37, such that we sustain the rejection of claims 29 and 37 under 35 U.S.C. § 101. The Appellant further contends that the Examiner’s rejection of dependent claims 22-28, 30-36, and 38-40 is improper because “the Examiner has not set forth a prima facie case that the dependent claims are allegedly directed to an abstract idea and, in fact, is merely an unsubstantiated conclusion without any analysis of the actual features of these claims” and that “the Examiner has rejected the Claims generally and has failed to provide specificity regarding reasons for rejecting each claim individually.” Appeal Br. 25. These arguments are not persuasive of error. The Examiner’s rejection explained that the limitations of claims 22-28, 30-36, and 38-40 “[n]arrow[ ]” certain recitations of their respective independent claims, but Appeal 2021-005526 Application 16/427,303 18 recite the identified judicial exception, without adding any additional element that would render the claims patent eligible under Step 2A, Prong Two, or Step 2B. Final Act. 12-13. See also Answer 22. The Appellant also presents further arguments for dependent claims 27, 28, and 34-36. See Appeal Br. 27-32. For each of these claims, the Appellant quotes portions of the respective claim language and contends that the claims “are necessarily rooted in computer technology or tied to the computer system described in the instant Application.” Appeal Br. 29, 30, 32. The Appellant’s arguments for claims 27, 28, and 34-36 are not persuasive of error in the rejection. Like the Appellant’s argument that claim 1 is “necessarily rooted in computer technology” (see Appeal Br. 17), discussed above, the Appellant does not indicate why the referenced limitations of claims 27, 28, and 34-36 might accomplish a technological improvement, or otherwise integrate the identified judicial exception into a practical application thereof. In addition, for each of these claims, the Appeal Brief essentially quotes portions of respective claim language and provides summaries thereof. See id. at 28-32. Such “[a] statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” 37 C.F.R. § 41.37(c)(iv). Accordingly, we sustain the rejection of claims 1 and 22-40 under 35 U.S.C. § 101. Obviousness In addressing the obviousness rejections, the Appellant presents separate arguments for each of the independent claims (claims 1, 29, and 37), and also presents separate arguments for various dependent claims. As Appeal 2021-005526 Application 16/427,303 19 explained below, we are persuaded of error in the rejection of independent claim 29 (and, consequently, its dependent claims 30-36). Further, the Appellant’s separate arguments for dependent claims 27, 28, and 34 persuade us of independent bases of error in the rejections of these claims. Therefore, based upon the following analysis, we sustain the rejection of claims 1, 22-26, and 37-40, and we do not sustain the rejection of claims 27-36, under 35 U.S.C. § 103. Independent Claim 1 and Dependent Claims 23-26 The Appellant advances four arguments, relating to independent claim 1, which we address in the order presented. See Appeal Br. 32-40. First, the Appellant (Appeal Br. 32-36) disputes the Examiner’s reliance on the Anand reference, in view of Anand’s disclosure of “updating advertising content based on user interest” (id. at 36), which the Appellant regards as “distinct” (id.) from claim 1’s recitations of user interactions with advertisements. This argument, however, does not bear upon whether any teaching of Anand fails to satisfy any requirement of the claim language, per the Examiner’s analysis. Even though claim 1 might not recite features explicitly involving a user’s interests, the Appellant points to nothing in claim 1 that would preclude the Examiner’s reliance on a reference, such as Anand, that includes such features. Moreover, as the Examiner points out, Anand discloses the use of data relating to a user’s interaction with past advertisement content, in order to determine the user’s interest for the purpose of selecting future advertising content. Answer 28 (citing Anand ¶ 32). Appeal 2021-005526 Application 16/427,303 20 Second, the Appellant contends (Appeal Br. 36-37) that the rejection of claim 1 is erroneous, because the Catlin reference does not teach or suggest claim 1’s limitation: “in response to the first outcome score exceeding a threshold outcome score, selecting the second digital advertisement in the first advertising campaign for presentation to the first user within a second advertisement slot.” However, the Examiner does not rely upon Catlin alone, for the identified limitation of claim 1; rather, the Examiner relies upon Catlin (specifically, ¶¶ 48-49 and claim 34 thereof) only for the feature of employing a “threshold.” See Final Act. 18-20; Answer 29-30. Furthermore, insofar as the Appellant (see Appeal Br. 37) relies upon claim 1’s recitation that the “selecting” is based upon “the first outcome score exceeding a threshold outcome score” (emphasis added) - whereas paragraph 49 of Catlin refers to including an item, “[i]f the test statistic is below a specified threshold” (emphasis added) - the Appellant’s argument is unpersuasive nevertheless. As the Examiner explains, “Catlin is cited to show the usage of a threshold requirement in determining an advertisement to display based on a score predicting user expected response/interaction.” Answer 30. Whether the triggering factor is regarded as exceeding a threshold, as opposed to falling below it, simply depends upon the terminology and metrics employed. The Appellant does not persuade us that Examiner erred in determining that Catlin teaches or suggests the “threshold” limitation of claim 1. Appeal 2021-005526 Application 16/427,303 21 Third, the Appellant argues that the cited Anand reference fails to teach or suggest the following recitations of claim 1: predicting a first outcome score for the first user interacting with a second digital advertisement in the first advertising campaign based on the first set of engagement data and the model, the first outcome score representing a probability of the first user interacting with the second digital advertisement according to a first target outcome defined by the first advertising campaign. Appeal Br. 38-39. The Appellant contends that the Examiner, in mapping the identified limitation to Anand, mistakenly relies upon Anand’s disclosure of an “ad server” that bases the selection of a subsequently displayed advertisement upon “the past performance of similar advertisements determined by the optimization module 408,” in order “to determine which of the qualified ad campaigns will have the highest likelihood of resulting in a desired action by the user.” Id. (quoting Anand ¶ 50). The Appellant argues that “these ‘similar’ and ‘subsequently displayed’ advertisements,” of the Examiner’s analysis, “are not equivalent to a first and second advertisement in a first advertising campaign,” as recited in claim 1. Id. at 39. The Appellant explains: For example, a computer system executing the method of Claim 1 can leverage a relationship (i.e., the model) or correlation between user interactions with advertisements (specifically) in the first advertising campaign in order to predict user interactions with other advertisements in this first advertising campaign. Id. We understand the Appellant’s proposed distinction to rest upon claim 1’s recitation of “predicting a first outcome score for the first user interacting with a second digital advertisement in the first advertising Appeal 2021-005526 Application 16/427,303 22 campaign,” whereas Anand’s system purportedly predicts a user’s interaction with an advertisement in a different advertising campaign. This argument is not persuasive of error in the rejection, because Anand’s teachings are not as narrow as the Appellant indicates. As the Examiner finds, Anand teaches or suggests “leveraging a correlation between user interactions with advertisements in a first advertising campaign in order to place subsequently displayed advertisements from that same campaign based on predictions of user interactions/performance with those subsequently displayed advertisements from that same advertising campaign.” Answer 32. See also Final Act. 17-18, Answer 30-32. Indeed, Anand discloses the presentation of distinct “deals” - which may be regarded as distinct advertisements, or as components of distinct advertisements (see Anand ¶ 28) - to a user, within an advertising campaign, in view of predictions based upon analyses of user behavior embodied in an “optimization table”: [I]f multiple deals exist within an ad campaign that match the user’s profile, the deal server 404 may look to the optimization table in real time to determine which of the deals may have the highest likelihood of resulting in a click or other user action based on the current user’s profile and pass that description of the deal to the graphics program. Id. ¶ 62. Anand’s “optimization table,” referenced in the passage just quoted, is created by the “optimization module 408” (id. ¶ 61) and is derived from “log data related to past impressions served, user profile data, and the tracked user interaction with the impressions, such as clicks” (id. ¶ 60). Anand further describes using the “optimization module 408” as a tool to select subsequent advertisements to show to a user, based upon the performance of previous advertisements in eliciting particular user actions: Appeal 2021-005526 Application 16/427,303 23 [T]he placement associated with a particular ad campaign may be changed if the optimization module 408 determines that the ad campaign has a low CTR [“Click Through Rate”] at that placement. The graphics associated with a particular ad campaign may also be changed if the optimization module 408 determines that the graphics associated with the ad campaign are not performing well. Id. ¶ 63. Fourth, the Appellant also argues that the cited Anand reference fails to teach or suggest the following recitations of claim 1: accessing a model associating user interactions with the first digital advertisement in the first advertising campaign and user interactions with a set of advertisements in the first advertising campaign. See Appeal Br. 39-40. This argument is not persuasive of error in the rejection, because the use of a “model,” such as claim 1 recites, is disclosed in Anand’s “optimization module 408” and the “optimization table” created thereby, which are described above. See Anand ¶¶ 60-63. In view of the foregoing analysis, the Appellant does not persuade us that the Examiner erred in rejecting independent claim 1 and dependent claims 23-26 (which are not argued separately) under 35 U.S.C. § 103. Independent Claim 29 and Dependent Claims 30-36 The Appellant argues that the cited Anand reference does not teach or suggest claim 29’s limitation of “predicting a first viewability score,” which recites: predicting a first viewability score for the first user interacting with a second digital advertisement in a second ad slot outside a viewing window of the display, based on the first set of engagement data and the viewability model, the first Appeal 2021-005526 Application 16/427,303 24 viewability score representing a probability of user interactions between the first user and the second digital advertisement anticipating a target outcome. See Appeal Br. 42-44. The Examiner maintains that claim 29’s “predicting a first viewability score” limitation is substantially identical to claim 1’s limitation of “predicting a first outcome score.” Answer 35. According to the Examiner, “[t]he outcome score of claim 1 and the viewability score of claim 29 are the same score with slightly different phrasing,” because “[b]oth of these claimed scores represent the probability/likelihood of a user interacting with an advertisement according to a target outcome (likelihood of a desired action by a user).” Id. Thus, the Examiner maintains that Anand teaches claim 29’s “predicting a first viewability score” limitation. See id. at 35-36 (citing Anand ¶¶ 32, 50, 58, 62). See also Final Act. 40-41 (citing Anand ¶¶ 50, 58-60). However, claim 29 recites the particular feature of “predicting a first viewability score for the first user interacting with a second digital advertisement in a second ad slot outside a viewing window of the display.” (Emphasis added). The language “ad slot outside a viewing window of the display” relates to a specific embodiment, described in the Appellant’s Specification as “the computer system . . . serv[ing] a visual element containing ‘floating’ advertising content.” Spec. ¶ 55. In such an embodiment, “the advertisement slot is located outside of the visible viewing window of the web browser rendered on the user's computing device.” Id. ¶ 57. The Examiner does not identify any portion of Anand (or any other reference) that teaches or suggests this feature. Appeal 2021-005526 Application 16/427,303 25 Accordingly, we do not sustain the rejection of independent claim 29, as well as its dependent claims 30-36, under 35 U.S.C. § 103. Independent Claim 37 and Dependent Claims 39 and 40 Independent claim 37 recites: 37. A method comprising: • at a first time, accessing a first set of engagement data representing interactions between a first user and a first digital advertisement of a first advertisement format, in a set of advertisement formats, the first digital advertisement inserted at a first advertisement slot and rendered on a display of a first computing device of the first user; • accessing a model associating user interactions with digital advertisements of the first advertisement format and user interactions with digital advertisements of the set of advertisement formats; • predicting an engagement score for the first user interacting with a second digital advertisement of a second advertisement format based on the first set of engagement data and the model, the engagement score representative of a probability of a target outcome for the first user interacting with the second digital advertisement, the target outcome defined by the second digital advertisement; and • at a second time succeeding the first time: o in response to the engagement score exceeding a threshold engagement score, selecting the second digital advertisement of the second advertisement format for presentation to the first user within a second advertisement slot accessed by the first computing device; and o in response to the engagement score falling below the threshold engagement score, selecting a third digital advertisement of a third advertisement Appeal 2021-005526 Application 16/427,303 26 format for presentation to the first user within the second advertisement slot. (Emphasis added). The Appellant argues that independent claim 37 stands rejected erroneously, because the cited Anand reference fails to teach or suggest the recited “predicting an engagement score for the first user interacting with a second digital advertisement of a second advertisement format based on the first set of engagement data and the model.” See Appeal Br. 44-47. As set forth in claim 37, the “first set of engagement data represent[s] interactions between a first user and a first digital advertisement of a first advertisement format, in a set of advertisement formats” and the “model associat[es] user interactions with digital advertisements of the first advertisement format and user interactions with digital advertisements of the set of advertisement formats.” The Appellant argues that “none of the cited sections of Anand mention[s] ‘advertisement formats’ or selecting an advertisement based on the predicted interactions between the user and ads of a particular advertisement format.” Appeal Br. 46. The Examiner maintains that Anand’s “controllable variables” (see Anand ¶ 59) constitute the “advertisement format[s]” of claim 37, and that Anand’s “optimization module” satisfies the recited features of the claimed “model.” Answer 37. The Specification states that “the format of the advertisement” includes “e.g., static or interactive with video, catalog, virtual reality, or hotspot content” and is part of the “metadata of an advertisement.” Spec. ¶ 31. Appeal 2021-005526 Application 16/427,303 27 The operation of Anand’s “optimization module,” in regard to the “controllable variables” is described as follows: The optimization module 408 determines the best ad campaign to display to the user that will have the highest likelihood of resulting in a click or other action by the user by manipulating a variety of controllable variables within the constraints associated with each of the available ad campaigns. . . . The controllable variables are any variables or parameters that may be controlled by the system 100, such as the Cost Per Click (“CPC”), Cost Per Action (“CPA”), the ad campaign, the deal, the types of web pages that the impressions are served on, the placement of the impressions, the timeframe in which the impressions are delivered, the user profiles used to select the impressions, the graphical component associated with the impressions, the size of the impressions, or any other system 100 controllable variables derivable from the log data. It will be appreciated that the comparisons performed by the optimization module 408 will become more complex as the number of variables is increased. Anand ¶ 59. Among Anand’s “controllable variables,” the “graphical component associated with the impressions” aligns with what the Specification (¶ 31) includes within the description of the “format of the advertisement” - especially in view of Anand’s description of the selection of graphical features, based upon logged data relating to user interactions with advertisements. See Anand ¶ 63 (“The graphics associated with a particular ad campaign may also be changed if the optimization module 408 determines that the graphics associated with the ad campaign are not performing well”). See also id. ¶¶ 64-70. Appeal 2021-005526 Application 16/427,303 28 Accordingly, the Appellant does not persuade us of error in the Examiner’s rejection of claim 37, such that we sustain the rejection of claim 37 and dependent claims 39 and 40, which are not argued separately. Separate Argument for Dependent Claims 22, 30, and 38 The Appellant argues claims 22, 30, and 38 together as a group, with claim 22 identified as representative. See Appeal Br. 50-52. Claim 22 recites, in relevant part: • accessing a first corpus of engagement data representing interactions between users in a test population of users and the first digital advertisement, in the first advertising campaign, presented within a first set of advertisement slots accessed by a set of computing devices; • accessing a second corpus of engagement data representing interactions between users in the test population of users and the second digital advertisement, in the first advertising campaign, presented within a second set of advertisement slots accessed by the set of computing devices; and • deriving a model linking user interactions with the first digital advertisement and user interactions with the second digital advertisement based on the first corpus of engagement data for first digital advertisement and the second corpus of engagement data for the second digital advertisement in the test population of users. The Appellant argues that the Examiner fails to identify disclosure in Anand that teaches claim 22’s recitation of “deriving a model linking user interactions with the first digital advertisement and user interactions with the second digital advertisement.” Appeal Br. 52. To the contrary, as the Examiner finds, the “deriving a model” limitation reads on Anand’s disclosure of the “optimization module,” which Appeal 2021-005526 Application 16/427,303 29 has been discussed above. See Answer 41-42 (citing Anand ¶¶ 32, 37, 38, 61). Accordingly, the Appellant’s argument relating to dependent claims 22, 30, and 38 does not persuade us of error in the rejection of these claims. (As noted above, the Appellant’s persuasive argument for independent claim 29 applies to its dependent claims - including claim 30.) Separate Arguments for Dependent Claims 27, 28, and 34 The Appellant argues that the cited Anand reference fails to teach or suggest the features of “accessing a target viewability” recited in dependent claim 27. Appeal Br. 52-54. Claim 27 recites, in part: • accessing a target viewability defined by the second digital advertisement, the target viewability comprising: o a position of the second advertisement in a viewing window; o a minimum proportion of pixels of the second advertisement rendered in the viewing window; and o a minimum duration of time that pixels of the second advertisement were rendered in the viewing window These features of “accessing a target viewability” recite the determination of a specified minimum number or portion of pixels of an advertisement being positioned for viewing, in the “viewing window” of a display of a user’s device, for “a minimum duration of time” - features described in the Specification. See Spec. ¶¶ 15, 16, 24, 66, 102. For example, the Specification describes a “viewability score” indicating the “total time that the instance of the advertisement was in view on the user’s Appeal 2021-005526 Application 16/427,303 30 computer system weighted by the proportion of the advertisement that was rendered on the user’s computing device” - a score that may be based upon “a proportion of pixels in the advertisement contained within a viewing window rendered on a display of the user’s computing device per time interval (e.g., per 200-millisecond time interval) that the instance of the advertisement is loaded on the user’s computing device.” Id. ¶ 66. The Examiner maintains that Anand teaches the “accessing a target viewability” limitation. See Final Act. 77-78 (citing Anand ¶¶ 28, 31, 32, 42-45, 50, 51, 58, 59, 62); Answer 42-44 (citing Anand ¶¶ 45, 50, 59). However, as the Appellant argues, these portions of Anand do not disclose the determination of a portion of an advertisement (e.g., the recited “minimum proportion of pixels”) that remains viewable, on a user’s display device, for a particular length of time. See Appeal Br. 52-54. The Examiner’s cited portions of Anand relate to a different issue, described in Anand, as, for example, “the specified number of impressions to be served, the specified number of clicks or other user actions, the timeframe to satisfy a specified number [of] impressions or performance, the frequency cap established for an ad campaign, etc.” Anand ¶ 59. Therefore, we are persuaded of error in the rejection of claim 27. The Appellant also argues that the cited prior art does not teach or suggest claim 27’s limitations: a “second advertisement slot outside the window of the display”; and “predicting a second scroll event that brings the second digital advertisement in view of the window.” See Appeal Br. 54. In this aspect of the embodiment of claim 27, the “second advertisement slot outside the window of the display” is not within the “window of the display” Appeal 2021-005526 Application 16/427,303 31 (on the user’s computing device) until the user scrolls down to the initially obscured webpage location. See Spec. ¶ 48. The Examiner relies upon the Ronquillo reference for teaching the act of “scrolling.” See Answer 45-46. Yet, neither Ronquillo nor the other cited references are shown to teach the claimed “predicting a second scroll event that brings the second digital advertisement in view of the window,” as claimed. The cited portions of Anand (¶¶ 32, 50, 58-60, 62) teach predicting various user behaviors (see Answer 45-46) - but not what is recited in the identified limitation of claim 27. Therefore, for this additional reason, the Appellant persuades us of error in the rejection of claim 27. Claim 28 depends from claim 27, such that the Appellant’s persuasive arguments for claim 27 also apply to claim 28. In addition, the Appellant presents a separate argument for claim 28. See Appeal Br. 47-49. Claim 28 recites, in relevant part, the feature of predicting that a user would scroll down a webpage to the location where the “second digital advertisement” would be inserted - with the goal that the user will have this second location (i.e., the “second advertisement slot”) within the user’s view (i.e., in the “window of the display”): wherein selecting the second digital advertisement . . . for presentation to the first user within the second advertisement slot, comprises selecting the second digital advertisement . . . prior to the second scroll event that locates the second advertisement slot in view of the window of the display of the first computing device. The Specification describes such an embodiment, wherein: “The computer system can . . . serve [a] particular advertisement to the user’s computing device for immediate insertion into . . . the second advertisement slot on the Appeal 2021-005526 Application 16/427,303 32 webpage before the user scrolls down to the second advertisement.” Spec. ¶ 48. The Examiner maintains that Anand teaches or suggest the identified features of claim 28. See Answer 39-41 (citing Anand ¶¶ 31-33, 51, 62, 74). Although the portions of Anand, cited by the Examiner, refer to predictions about user activities - e.g., “determin[ing] which of the deals may have the highest likelihood of resulting in a click or other user action based on the current user’s profile” (Anand ¶ 62) - the Examiner does not identify teachings in Anand that predict user activity that would “locate[ ] the second advertisement slot in view of the window of the display of the first computing device,” as claim 28 recites. Therefore, the Appellant persuasively argues that claim 28 stands erroneously rejected, on this basis. The Appellant presents a similar argument for dependent claim 34 (depending from claim 29), which recites limitations similar to those just addressed for claim 28. See Appeal Br. 49. Notably, claim 34 recites that “selecting the second digital advertisement for presentation . . . within the second advertisement slot comprises” making the selection “prior to a click event that opens a second webpage and locates the second ad slot within the viewing window at the computing device.” (Emphasis added). In view of the Examiner’s reliance on the same portions of Anand referenced in regard to the similar limitation of claim 28 (see Answer 39-41), we are likewise persuaded of such a basis for error in the rejection of claim 34. Separate Argument for Dependent Claim 31 The Appellant argues that the cited Anand reference does not teach or suggest claim 31’s recitation of “calculating the first set of viewability scores” that comprises “accessing a first test proportion of pixels of the Appeal 2021-005526 Application 16/427,303 33 second digital advertisement rendered on a display of a computing device of the first user during a first test sampling period” and “accessing a second test proportion of pixels of the second digital advertisement rendered on a display of the computing device of the first user during a second test sampling period offset in time from the first test sampling period,” and, based thereupon, “calculating a first test cumulative pixel exposure.” See Appeal Br. 55-57. The Appellant also argues that Anand fails to teach or suggest claim 31’s further recitation: wherein deriving the viewability model linking user interactions with the first digital advertisement and viewability scores of the second digital advertisement comprises deriving the viewability model linking user interactions with the first digital advertisement and cumulative pixel exposures of the second digital advertisement based on the first corpus of engagement data of the first digital advertisement and the first set of test cumulative pixel exposures of the second digital advertisement in the test population of users. See id. The Examiner maintains that claim 31’s recitations of “accessing” “proportion[s] of pixels” of a “digital advertisement rendered on a display” - along with the recited calculations based thereon - are “equivalent to accessing the impressions logs of an advertisement and calculating how many impressions of an advertisement occurred during a period of time (cumulative pixel exposure)” disclosed in the Anand reference. Answer 46. However, the cited portions of Anand - see Final Act. (citing Anand ¶¶ 31-33, 37, 38, 60, 61, 63, 64, 66, 67); Answer 46-47 (citing Anand ¶¶ 60, 61, 63, 64, 73, 74) - fail to teach or suggest claim 31’s “proportion[s] of pixels” of a “digital advertisement rendered on a display.” The Examiner’s citations to Anand do not teach or suggest accessing fractional portions (e.g., Appeal 2021-005526 Application 16/427,303 34 “proportion[s] of pixels”) of digital advertisements rendered on a display. Therefore, for this additional reason, we are persuaded of error in the rejection of claim 31. Separate Argument for Dependent Claims 32 and 33 Claim 32 recites: 32. The method of Claim 30, further comprising, during the test period: • accessing a target outcome, defined by the second digital advertisement; • accessing a set of outcomes, based on the target outcome, of consumption of the second digital advertisement at the set of computing devices; • calculating a correlation between the first set of viewability scores for the second digital advertisement and the set of outcomes; and • defining the threshold viewability score, associated with a threshold probability of the target outcome, based on the correlation. The Appellant argues that the cited prior art does not teach or suggest the recited “defining the threshold viewability score, associated with a threshold probability of the target outcome, based on the correlation.” Appeal Br. 57-58. As to the references the Examiner relies upon to teach this limitation (see Final Act. 57-59), the Appellant argues that Anand does not teach defining a highest viewability score (associated with the probability of the target outcome, based upon the correlation), and that Catlin does not teach “defining the threshold viewability score.” See Appeal Br. 58. The Examiner maintains that Anand teaches the determination of scores associated with the probability of a user taking a particular action in Appeal 2021-005526 Application 16/427,303 35 response to a particular advertisement - i.e., the recited “viewability score[s]” “associated with” a “probability of the target outcome, based on the correlation” of claim 32. See Answer 49-50 (citing Anand ¶¶ 32, 50, 51, 58, 59, 62, 74). Indeed, Anand discloses, for example: [T]he system 100 utilizes logged user profile data by employing one or more heuristic techniques, such as behavior targeting based on the user’s browsing or other navigational activity, search-related activity, declared personal data submitted in a user account registration, or other online engagement or interaction. The system 100 selects an ad campaign to display to the user based on the competing ad campaigns, user profile data, constraints provided by the advertiser or system 100, and performance metrics data based on user interaction with past displayed advertisements. The deal therefore relates to the user’s interests and has a high likelihood of resulting in a click or other desired action by the user. Anand ¶ 32. Anand further discloses: In the event that multiple ad campaigns qualify for the particular placement, the ad server 402 may look to the optimization table in real time to determine which of the available ad campaigns may have the highest likelihood of resulting in a click or other user action based on the current web page position, user profile, time of day, and other variables that the system 100 may take into consideration, and send the JavaScript code associated with that ad campaign to the user's web browser. Similarly, if multiple deals exist within an ad campaign that match the user’s profile, the deal server 404 may look to the optimization table in real time to determine which of the deals may have the highest likelihood of resulting in a click or other user action based on the current user’s profile and pass that description of the deal to the graphics program. Id. ¶ 62. Therefore, Anand teaches claim 32’s determination of “viewability scores” associated with the “probability of the target outcome” - such as a Appeal 2021-005526 Application 16/427,303 36 user clicking on an advertisement or taking some other interaction - based upon correlation information relating to a user’s activities. The Examiner relies upon Catlin only for the feature of employing a “threshold.” See Answer (citing Catlin ¶ 49, claim 34). For example, Catlin discloses the use of a threshold, in order to winnow the number of webpages for potential display to a user. Catlin ¶ 49. The Appellant does not persuasively argue that Catlin fails to teach the “threshold” feature of claim 32. Therefore, the Appellant’s separate argument, discussed above, does not persuade us of error in the rejection of claim 32 (or claim 33, depending therefrom, which is not argued separately). (Notwithstanding the insufficiency of the separate argument for claims 32 and 33, the Appellant’s persuasive argument for independent claim 29 applies to its dependent claims - including claims 32 and 33.) CONCLUSION The Examiner’s rejection of claims 1 and 22-40 under 35 U.S.C. § 101 is affirmed. The Examiner’s rejection of claims 1, 22-26, and 37-40 under 35 U.S.C. § 103 is affirmed. The Examiner’s rejection of claims 27- 36 under 35 U.S.C. § 103 is reversed. More specifically: We affirm the rejection of claims 1 and 22-40 under 35 U.S.C. § 101 as ineligible subject matter. We affirm the rejection of claims 1, 22-26, 37, and 38 under 35 U.S.C. § 103 as unpatentable over Anand and Catlin. We reverse the rejection of claims 29-34 under 35 U.S.C. § 103 as unpatentable over Anand and Catlin. Appeal 2021-005526 Application 16/427,303 37 We affirm the rejection of claims 39 and 40 under 35 U.S.C. § 103 as unpatentable over Anand, Catlin, and Ronquillo. We reverse the rejection of claims 27, 28, and 36 under 35 U.S.C. § 103 as unpatentable over Anand, Catlin, and Ronquillo. We reverse the rejection of claim 35 under 35 U.S.C. § 103 as unpatentable over Anand, Catlin, and Goodhart. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 22-40 101 Ineligibility 1, 22-40 1, 22-26, 29-34, 37, 38 103 Anand, Catlin 1, 22-26, 37, 38 29-34 27, 28, 36, 39, 40 103 Anand, Catlin, Ronquillo 39, 40 27, 28, 36 35 103 Anand, Catlin, Goodhart 35 Overall Outcome 1, 22-40 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