AT & T Intellectual Property I, L.P.

Patent Trials and Appeals Board

Mar 30, 2020

13675722 - (D) (P.T.A.B. Mar. 30, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/675,722 11/13/2012 Brenda HUTCHINSON 2008-0595CCON(40147/07702 4735
83719 7590 03/30/2020
AT & T Legal Department - FKM
AT & T LEGAL DEPARTMENT, One AT&T Way
ATTN: PATENT DOCKETING ROOM 2A-212
BEDMINSTER, NJ 07921
EXAMINER
FLEISCHER, MARK A
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
03/30/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
eOfficeActionDocs@att.com
mmarcin@fkmiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRENDA HUTCHINSON, MARK FAUTZ,
THOMAS C. BLACKWELL, RICKEY H. JOHNSON JR.
____________

Appeal 2019-001723
Application 13/675,722
Technology Center 3600
____________

Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and
JOHN A. EVANS, Administrative Patent Judges.

EVANS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of Claims 38, 43–45, 47–49, 52, and 53, all
pending claims. Appeal Br. 1; Claims App’x. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42. Appellant states the real party in interest is AT&T
Intellectual Property I, L.P. App. Br. 2.
2 Rather than reiterate the arguments of Appellant and the Examiner, we
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STATEMENT OF THE CASE
The claims relate to systems and methods for automating workflow,
i.e., assigning and tracking jobs. See Abstract.
Invention
Claim 38 is independent. Claims App’x. An understanding of the
invention can be derived from a reading of Claim 38, the sole independent
claim, which is reproduced in Table 1, below.
Rejections
Claims 38, 43–45, 47–49, 52, and 53 stand rejected under 35 U.S.C. §
101 as directed to a judicial exception without significantly more. Final Act.
2–5.
Objections.
Claims 38, 43, and 44 stand as objected to in view of various
informalities. Final Act. 6–7. This Board lacks jurisdiction over this subject
matter. Objections are reviewed by way of petition to the Director of the
USPTO under 37 C.F.R. § 1.181. See MPEP 706.01 (“the Board will not
hear or decide issues pertaining to objections and formal matters which are
not properly before the Board”).

refer to the Appeal Brief (filed July 30, 2018, “Appeal Br.”), the Reply Brief
(filed December 17, 2018, Reply Br.”), the Examiner’s Answer (mailed
October 17, 2018, “Ans.”), the Final Action (mailed January 29 2018, “Final
Act.”), and the Specification (filed November 13, 2012, “Spec.”) for their
respective details.
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ANALYSIS
We have reviewed the rejections of Claims 38, 43–45, 47–49, 52, and
53 in light of Appellant’s arguments that the Examiner erred. We have
considered in this Decision only those arguments Appellant actually raised
in the Brief. Any other arguments which Appellant could have made but
chose not to make in the Brief are deemed to be waived. See 37 C.F.R. §
41.37(c)(1)(iv). We provide the following explanation to highlight and
address specific arguments and findings primarily for emphasis. We
consider Appellant’s arguments as they are presented in the Appeal Brief,
pages 3–9.
CLAIMS 38, 43–45, 47–49, 52, AND 53: INELIGIBLE SUBJECT MATTER
Appellant argues these claims as a group in view of the recitations of
Claim 17. App. Br. 19. Therefore, we decide the appeal of the § 101
rejection on the basis of representative Claim 17 and refer to the rejected
claims collectively herein as “the claims.” See 37 C.F.R. § 41.37(c)(1)(iv);
In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
The Rejection and Appellant’s Contentions.
The Examiner finds the claims: “merely utilize computers to perform
clerical, messaging and record keeping functions as to a user’s availability,
job status and other such information that is typical of what any factory
foreman or manager does in managing a workflow.” Final Act. 5. The
Examiner further finds the steps of the method: “are claimed at a high and
abstract level (e.g., ‘sending [a message]’ or ‘ . . . identifying a job on a
list’). Thus, the use of these rules and the manner in which the system is
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claimed does not demonstrate any particular inventiveness and are merely a
computer-instantiated version of practices of long-standing.” Id.
Appellant argues, in analogy to Bascom, 3 that “the claims in the
present case contain an inventive concept because the claims recite an
unconventional improvement to a technological process and the claims do
not raise any preemption concerns.” Appeal Br. 5. Appellant further argues
“the relevant technological process is tracking work orders. The inventive
concept recited in the claims is automatically assigning, monitoring and
updating a work order as the job of the corresponding work order
progresses.” Id., 6.
De novo review.
We reviewed the record de novo. SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is drawn
to patent-eligible subject matter is an issue of law that we review de novo.”).
Based upon our review of the record in light of recent policy guidance with
respect to patent-eligible subject matter rejection under 35 U.S.C. § 101,4 we
affirm the rejection of Claims 38, 43–45, 47–49, 52, and 53 for the specific
reasons discussed below.
Preemption.
Appellant contends the claims do not pose any risk of preempting, or
monopolizing, any idea the Office may identify as abstract. See App. Br. 4–

3 Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (2016).
4 See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).
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5. Although preemption may denote patent ineligibility, its absence does not
demonstrate patent eligibility. See FairWarning, IP, LLC v. Iatric Sys., Inc.,
839 F.3d 1089, 1098 (Fed. Cir. 2016). For claims covering a patent-
ineligible concept, preemption concerns “are fully addressed and made
moot” by an analysis under the Mayo/Alice framework. Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). We conduct
such an analysis below.
35 U.S.C. § 101
Section 101 provides that a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has
long recognized, however, that § 101 implicitly excludes “[l]aws of nature,
natural phenomena, and abstract ideas” from the realm of patent-eligible
subject matter, as monopolization of these “basic tools of scientific and
technological work” would stifle the very innovation that the patent system
aims to promote. Alice Corp. Pty. Ltd. 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)); see also Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 72–78 (2012); Diamond v. Diehr, 450
U.S. 175, 185 (1981).
Under the mandatory Revised Guidance, we reconsider whether
Appellant’s claims recite:
1. any judicial exceptions, including certain groupings of abstract ideas
(i.e., mathematical concepts, certain methods of organizing human
interactions such as a fundamental economic practice, or mental
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processes), and
2. additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim, (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, do we then reach the
issue of 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.

A. Whether the claims recite a judicial exception.
The Revised Guidance extracts and synthesizes key concepts
identified by the courts as abstract ideas to explain that the abstract-idea
exception includes the following groupings of subject matter, when recited
as such in a claim limitation(s) (that is, when recited on their own or per se):
(a) mathematical concepts,5 i.e., mathematical relationships, mathematical

5 Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“The concept of hedging . . .
reduced to a mathematical formula . . . is an unpatentable abstract idea.”).
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formulas, equations,6 and mathematical calculations7; (b) certain methods of
organizing human activity—fundamental economic principles or practices
(including hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or behaviors; business
relations); managing personal behavior or relationships or interactions
between people (including social activities, teaching, and following rules or
instructions)8; and (c) mental processes—concepts performed in the human
mind (including observation, evaluation, judgment, opinion).9
The preamble of Claim 38 recites: “[a] system, comprising.” The
limitations recited in the body of the claim are analyzed in Table 1 against
the categories of abstract ideas as set forth in the Revised Guidance.

6 Diehr, 450 U.S. at 191 (“A mathematical formula as such is not accorded
the protection of our patent laws”); Parker v. Flook, 437 U.S. 584, 594
(1978) (“[T]he discovery of [a mathematical formula] cannot support a
patent unless there is some other inventive concept in its application.”).
7 SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018)
(holding that claims to a “series of mathematical calculations based on
selected information” are directed to abstract ideas).
8 Alice, 573 U.S. at 219–20 (concluding that use of a third party to mediate
settlement risk is a “fundamental economic practice” and thus an abstract
idea); see Revised Guidance, at 52 n.13 for a more extensive listing of
“certain methods of organizing human activity” that have been found to be
abstract ideas.
9 Mayo, 566 U.S. at 71 (“‘[M]ental processes[ ] and abstract intellectual
concepts are not patentable, as they are the basic tools of scientific and
technological work’” (quoting Gottschalk v. Benson, 409 U.S. 63, 67
(1972))).
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Claim 38 Revised Guidance, p. 52
[a]10 a memory storing a plurality of
jobs wherein each job of the
plurality of jobs represents a work
order and includes job data and a
job status;11
Insignificant extra-solution activity,
mere data-gathering. Rev. Guid.,
52, n. 31.
[b] a processor; Insignificant extra-solution activity.
[c] a job tracking tool assigning a
first job of the plurality of jobs to a
user ID corresponding to a first user
based on an availability of the first
user, wherein the availability of the
first user is based on a number of
further jobs assigned to the first user
and whether the first user accessed a
first user’s in-box during a
predetermined interval;
Certain methods of organizing
human activity, i.e., managing
personal behavior or relationships
or interactions between people.
[d] a messaging system sending the
first job to the first user’s in-box;
and
Certain methods of organizing
human activity.
[e] a work order system receiving
progress data relating to the job as
input from a second user wherein
the job tracking tool marks the job
status of the first job as complete if
the progress data includes an
indication that the first job has been
successfully completed,
Certain methods of organizing
human activity.

10 Step designators, e.g., “[a],” were added to facilitate discussion.
11 The specific information that is stored does not operate to confer patent-
eligibility because information as such is an intangible. See Microsoft Corp.
v. AT&T Corp., 550 U.S. 437, 451 n.12 (2007).
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[f] wherein, the job tracking tool
receives a list of cancelled jobs
from a database and if the job
tracking tool identifies the first job
on the list of cancelled jobs the job
status of the first job is marked as
cancelled, the job tracking tool
generates a back out job, assigns the
back out job to a third user and
sends the back out job to the third
user's in-box via the messaging
system,
Certain methods of organizing
human activity.
[g] wherein the back out job notifies
the third user: that the job tracking
tool identified the first job on the
list of cancelled jobs and populated
a cancel date in the job data of the
first job, or
that the job tracking tool removed
the first job from the workflow
because the first job did not have a
start date,
Certain methods of organizing
human activity.
[h] wherein, if the job tracking tool
does not identify the first job on the
list of cancelled jobs, the job
tracking tool ignores the list of
cancelled jobs,
Mental processes, i.e., concepts
performed in the human mind
including observation, evaluation,
judgment, opinion. Rev. Guid., 52.
[i] wherein, if the progress data
indicates that the first job includes a
problem the job tracking tool
assigns a hold category to the first
job and sends the first job to a
fourth user via the messaging
system, when further progress data
Mental processes, i.e., concepts
performed in the human mind
including observation, evaluation,
judgment, opinion. Rev. Guid., 52.
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indicates that the problem is no
longer included in the first job, the
job tracking tool removes the hold
category from the first job and
sends the first job to the first user’s
in-box via the messaging system or
assigns the first job to a fifth user
and sends the first job to a fifth
user’s in-box via the messaging
system based on a duration of the
hold category.

In view of Table 1, we find limitations [c]–[i] of independent Claim
38 recite abstract ideas, i.e., mental processes and certain methods of
organizing human behavior.
Appellant contends Claim 38 “amounts to significantly more than an
abstract idea for the same reasons that the claims at issue in Bascom . . .
amounted to significantly more than an abstract idea.” Appeal Br. 4. Under
the Revised Guidance, Appellant’s “directed to” contention is addressed at
Step 2A(ii).
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims recite a patent-ineligible concept, as we conclude above,
we proceed to the “practical application” Step 2A(ii) wherein we determine
whether the recited judicial exception is integrated into a practical
application of that exception by: (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception(s); and
(b) evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.
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For the reasons which follow, we conclude that Appellant’s claims do
not integrate the judicial exception into a practical application.
MPEP § 2106.05(a) “Improvements to the Functioning of a Computer
or to Any Other Technology or Technical Field.”
“In determining patent eligibility, examiners should consider whether
the claim ‘purport(s) to improve the functioning of the computer itself’” or
“any other technology or technical field.” MPEP § 2106.05(a).
With respect to technological improvements, Appellant analogizes to
Bascom and contends: “the relevant technological process is tracking work
orders. The inventive concept recited in the claims is automatically
assigning, monitoring and updating a work order as the job of the
corresponding work order progresses.” Appeal Br. 6. Appellant argues the:
“inventive concept is an improvement to a technological process because it
addresses well known deficiencies in the prior art in an unconventional way.
For instance, typically the telecommunication industry and utility companies
maintain various databases . . . that are affected by changes caused by work
orders.” Id. (citing Spec., ¶ 2).
However, Appellant’s own words indicate the claims focus on
organizing human activity, because as Appellant further argues: “to maintain
these databases, manual, labor intensive, clerical processes are required to
monitor and manage work orders such as, determining which work order to
work on next, assigning the work order to a job poster and routing the work
order between various parts of the organization.” Id.
We find assigning work to a job poster is a means of “managing
personal behavior.” See Rev. Guid., 52.; see Elec. Power, 830 F.3d at 1354
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(recognizing “that merely presenting the results of abstract processes of
collecting and analyzing information, without more (such as identifying a
particular tool for presentation), is abstract as an ancillary part of such
collection and analysis.”) see also 830 F.3d at 1355 (explaining that
“selecting information, by content or source, for collection analysis, and
display does nothing significant to differentiate a process from ordinary
mental processes.”). The claims collect data, recognize certain data within
the collected data set, and present the data for display, which the courts have
recognized as abstract. See Content Extraction & Transmission LLC v.
Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014).

MPEP § 2106.05(b) Particular Machine
The Bilski machine-or-transformation test is only applicable to
method (process) claims. However, “[r]egardless of what statutory category
(‘process, machine, manufacture, or composition of matter,’ 35 U.S.C. §
101) a claim’s language is crafted to literally invoke, we look to the
underlying invention for patent-eligibility purposes.” CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1374 (Fed. Cir. 2011). Here, it is
clear that the invention underlying Claim 38 is the method embodied in the
claimed system. We therefore, analyze the machine prong of the Bilski
machine-or-transformation test.
Claim 38 recites, inter alia, a “memory,” a “processor,” and a “job
tracking tool.” Appellant’s Specification (exclusive of the claims) fails to
recite (and thus to disclose), either “memory” or “processor.” Thus, the
claimed memory and processor are, by implication, generic devices.
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Appellant discloses: “the job-tracking tool 110 may be web-based software
utilizing a communication service to create, send, receive, and read
messages from the posters . . . in an outside plant records reconciliation
center.” Spec., ¶ 10. We find no indication, nor does Appellant so direct
our attention, that the claimed job-tracking tool is other than generic
software.
We therefore, conclude Appellant’s method claims fail to satisfy the
machine prong of the Bilski machine-or-transformation test.
MPEP § 2106.05(c) Particular Transformation
This section of the MPEP guides: “Another consideration when
determining whether a claim recites significantly more is whether the claim
effects a transformation or reduction of a particular article to a different state
or thing.” “‘Transformation and reduction of an article to a different state or
thing is the clue to the patentability of a process claim that does not include
particular machines.’” Bilski, 561 U.S. at 658 (quoting Benson, 409 U.S.
at 70).
The claims select and analyze certain electronic data. The selection of
electronic data is not a “transformation or reduction of an article into a
different state or thing constituting patent-eligible subject matter[.]” See In
re Bilski, 545 F.3d 943, 962 (Fed. Cir. 2008) (emphasis added); see also
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir.
2011) (“The mere manipulation or reorganization of data . . . does not satisfy
the transformation prong.”). Applying this guidance here, we conclude
Appellant’s method claims fail to satisfy the transformation prong of the
Bilski machine-or-transformation test.
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MPEP § 2106.05(e) Other Meaningful Limitations

This section of the MPEP guides:
Diamond v. Diehr provides an example of a claim that recited
meaningful limitations beyond generally linking the use of the
judicial exception to a particular technological environment.
450 U.S. 175 . . . (1981). In Diehr, the claim was directed to
the use of the Arrhenius equation (an abstract idea or law of
nature) in an automated process for operating a rubber-molding
press. 450 U.S. at 177-78 . . . . The Court evaluated additional
elements such as the steps of installing rubber in a press,
closing the mold, constantly measuring the temperature in the
mold, and automatically opening the press at the proper time,
and found them to be meaningful because they sufficiently
limited the use of the mathematical equation to the practical
application of molding rubber products. 450 U.S. at 184, 187
. . . . In contrast, the claims in Alice Corp. v. CLS Bank
International did not meaningfully limit the abstract idea of
mitigating settlement risk. 573 U.S. . . . . In particular, the
Court concluded that the additional elements such as the data
processing system and communications controllers recited in
the system claims did not meaningfully limit the abstract idea
because they merely linked the use of the abstract idea to a
particular technological environment (i.e., “implementation via
computers”) or were well-understood, routine, conventional
activity.
MPEP § 2106.05(e).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. Similarly as in Alice, we find
that “[t]aking the claim elements separately, the function performed by the
computer at each step of the process is ‘[p]urely conventional.’” Id. “In
short, each step does no more than require a generic computer to perform
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generic computer functions.” Id. We find that Appellant’s claims do not
add meaningful limitations beyond generally linking the use of the judicial
exception to a particular technological environment.
MPEP § 2106.05(f) Mere Instructions to Apply an Exception
Appellant does not persuasively argue that their claims do any more
than to merely invoke generic computer components merely as a tool in
which the computer instructions apply the judicial exception.

MPEP § 2106.05(g) Insignificant Extra-Solution Activity
The claims acquire and display data, which are classic examples of
insignificant extra-solution activity. See, e.g., Bilski, 545 F.3d at 963 (en
banc), aff’d sub nom, Bilski, 561 U.S. 593.
MPEP § 2106.05(h) Field of Use and Technological Environment.

[T]he Supreme Court has stated that, even if a claim does not
wholly pre-empt an abstract idea, it still will not be limited
meaningfully if it contains only insignificant or token pre- or
post-solution activity—such as identifying a relevant audience,
a category of use, field of use, or technological environment.
Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1346 (Fed. Cir. 2013). We
find the claims manipulate data relating to jobs which is simply a field of use
that attempts to limit the abstract idea to a particular technological
environment. We are unpersuaded by Appellant’s arguments because “[t]he
courts have also identified examples in which a judicial exception has not
been integrated into a practical application.” Revised Guidance, 84 Fed.
Reg. at 55. The claims fail to recite a practical application where the
additional element does more than generally link the use of a judicial
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exception to a particular technological environment or field of use. Id. The
mere application of an abstract idea in a particular field is not sufficient to
integrate the judicial exception into a practical application. See id. at 55
n.32. In view of the foregoing, we conclude the claims are “directed to” a
judicial exception.
3. Well-understood, routine, conventional.
Because the claims recite a judicial exception and do not integrate that
exception into a practical application, we must then reach the issue of
whether the claim adds a specific limitation beyond the judicial exception
that is not “well-understood, routine, conventional” in the field. Revised
Guidance, 84 Fed. Reg. at 56.
The written description describes the claimed computer system
consistent with its being “well-understood, routine, [and] conventional.” As
discussed above, there is no disclosure of either “memory” or “processor,”
nor is a computer disclosed. As discussed above, the software tool is also
generic.

4. Specified at a high level of generality.
It is indicative of the absence of an inventive concept where the
claims simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. Revised Guidance, 84 Fed. Reg. at 56.
The claims fail to recite any specific steps of an algorithm, nor does
Appellant cite any Specification disclosure for the required specificity.
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We find the limitations are specified at such a high level of generality
consistent with the absence of an inventive concept. Considering the claim
limitations as an ordered combination adds nothing to the abstract idea that
is not already present when the limitations are considered separately. See
Mayo, 566 U.S. at 79. The ordered combination of limitations amounts to
nothing more than certain mental processes implemented with generic
computer components that operate “in a conventional way.” See also Alice,
573 U.S. at 225–26. Therefore, we conclude that none of the claim
limitations, viewed “both individually and as an ordered combination,”
amount to significantly more than the judicial exception in order to
sufficiently transform the nature of the claims into patent-eligible subject
matter. See Alice, 573 U.S. at 217 (internal quotations omitted) (quoting
Mayo, 566 U.S. at 79).
In view of the foregoing, we sustain the rejection of claims 38, 43–45,
47–49, 52, and 53 under 35 U.S.C. § 101.

CONCLUSION

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
38, 43–45,
47–49, 52,
53
101 Eligibility 38, 43–45,
47–49, 52,
53

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
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AFFIRMED