Ex Parte Deshpande et al

Patent Trial and Appeal Board

Feb 14, 2019

11938061 (P.T.A.B. Feb. 14, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/938,061 11/09/2007
89885 7590 02/14/2019
FERENCE & ASSOCIATES LLC
409 BROAD STREET
PITTSBURGH, PA 15143
FIRST NAMED INVENTOR
Prasad Manikarao Deshpande
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
790.297 3088
EXAMINER
GURSKI, AMANDA KAREN
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
02/14/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PRASAD MANIKARAO DESHPANDE and DINESH GARG
Appeal2017-009529
Application 11/938,061
Technology Center 3600
Before BIBHU R. MOHANTY, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.
SHAH, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1--4, 7-13, and 16-26, which are all of the
pending claims, under 35 U.S.C. § 101 as directed to non-statutory subject
matter. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Throughout this decision, we refer to the Appellants' Reply Brief ("Reply
Br.," filed June 26, 2017), Appeal Brief ("Appeal Br.," filed Jan. 31, 2017),
and Specification ("Spec.," filed Nov. 9, 2007), and to the Examiner's
Answer ("Ans.," mailed Apr. 26, 2017), and Final Office Action ("Final
Act.," mailed July 29, 2016).
2 According to the Appellants, the real party in interest is International
Business Machines Corporation. Appeal Br. 3.
Appeal2017-009529
Application 11/938,061
STATEMENT OF THE CASE
The Appellants' invention relates to "queuing systems for allocating
scarce resources, and in particular, a reverse auction allocation system for
applying resources to incoming service request calls." Spec. ,r 1.
Claims 1, 10, and 19 are the independent claims on appeal. Claim 1
(Appeal Br. 36-37 (Claims App.)) is exemplary of the subject matter on
appeal and is reproduced below (with bracketing added for reference).
1. A method of directing a telephone call to a winning
agent among a plurality of agents, the method comprising:
[(a)] providing one or more storage drives configured to
store an auction rules database that includes a plurality of
auction rules;
[ (b)] receiving, via the telephone call, an order at a call
center from a customer for technical service, the technical
service being described in a problem ticket;
[(c)] placing the order in a queue comprising received
orders, wherein the queue and orders in the queue are
monitored and allocated using an auction house application;
[ ( d)] calculating, using the auction house application, a
first deadline for completing a bidding process to allocate the
problem ticket to the winning agent;
[ ( e)] calculating, using the auction house application and
said auction rules, a second deadline for completing the
problem ticket based upon a complexity estimate for the
problem ticket;
[(f)] inviting, using the auction house application, a
bidder's list of potential agents from among the plurality of
agents to bid on the problem ticket;
[ (g)] receiving, at the auction house application, bids
back from one or more of the potential agents;
[(h)] evaluating, using the auction house application, the
bids to select a winning bid associated with the winning agent;
and
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[(i)] allocating, using the auction house application, the
problem ticket to the winning agent and directing the telephone
call to said winning agent;
[(j)] wherein the bidder's list of the potential agents
comprises those among at least one agent identified with
relevant skills for solving the problem ticket, and scheduled to
be present at work for the call center from at least an auction
closing time until said second deadline for completing the
problem ticket.
ANALYSIS
The Appellants argue the claims as a group. See Appeal Br. 22. We
select claim 1 from the group; claims 2--4, 7-13, and 16-26 stand or fall
therewith. See 37 C.F.R. § 4I.37(c)(l)(iv).
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bankint'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 ( citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework,
we first determine what concept the claim is "directed to." See Alice,
573 U.S. at 219 ("On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk."); see also Bilski v. Kappas, 561 U.S. 593, 611 (2010)
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("Claims 1 and 4 in petitioners' application explain the basic concept of
hedging, or protecting against risk .... ").
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219-20; Bilski, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes ( Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as "molding rubber products" (Diamond v. Diehr, 450 U.S. 175, 192
( 1981) ); "tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores" (id. at 1842 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267---68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 187; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment."
Id. (internal citation omitted) ( citing Benson and Flook); see, e.g., id. at 187
("It is now commonplace that an application of a law of nature or
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mathematical formula to a known structure or process may well be deserving
of patent protection.").
If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an "'inventive
concept'" sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( citation omitted). "A claim
that recites an abstract idea must include 'additional features' to ensure 'that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea]."' Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
Preliminary Matter
Before turning to the Mayo/Alice framework, we address the
Appellants' contention that the Examiner's rejection is in error because the
Examiner fails to set forth a prima facie case of subject matter ineligibility.
See Appeal Br. 22-24; Reply Br. 21-23. Specifically, the Appellants argue
that the Examiner fails to: (1) "specifically point out the factors that are
relied upon in making the determination that the claims are directed to an
abstract idea" (Appeal Br. 22; Reply Br. 22); (2) "identif[y] the specific
limitations considered or any rationale as to why these limitations are not
enough to qualify as 'significantly more"' (Appeal Br. 23; Reply Br. 22);
and (3) "identif[y] any particular abstract idea allegedly claimed as
corresponding to the abstract idea defined by the courts" (Appeal Br. 24
(citing the USPTO Memorandum, "Formulating a Subject Matter Eligibility
Rejection and Evaluating the Applicant's Response to a Subject Matter
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Eligibility Rejection," May 4, 2016 ("May 2016 Memo")); Reply Br. 23.
We are not persuaded of Examiner error.
Here, in rejecting the claims under § 101, the Examiner analyzes the
claims using the Mayo/Alice two-step framework. Specifically, the
Examiner looks to the language of claim 1, as representative of all of the
claims, identifies particular specific limitations of receiving an order,
calculating deadlines, inviting bidders having relevant skills, receiving bids,
evaluating and selecting winning bids, and allocating the order to the winner,
and determines that all of the claims are directed to a reverse auction to best
allocate tasks to workers, an "idea of itself' and "an essential task in
commerce." Final Act. 5 (citing the JULY 2015 UPDATE ON SUBJECT
MATTER ELIGIBILITY ("July Update"), 80 Fed. Reg. 45429 (July 30, 2015));
Ans. 3. The Examiner further compares the claims to those in judicial
decisions. See Final Act. 5; Ans. 4. 3 The Examiner further determines that
the additional elements of the claims, taken alone and as an ordered
combination, do not ensure that the claims amount to significantly more than
the abstract idea. Final Act. 3-5; Ans. 3--4. Although we agree with the
Appellants that additional explanation is always helpful, the Examiner has
clearly articulated the reasons for the rejection and has notified the
Appellants of the reasons for the rejection "together with such information
and references as may be useful in judging of the propriety of continuing the
prosecution of [the] application." 35 U.S.C. § 132. And, we find that, in
3 We note that under the 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 52-54 (Jan. 7, 2019) ("2019
Revised Guidance"), there is no requirement that the Examiner must cite to
judicial decisions as evidence that the claims are directed to an abstract idea.
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doing so, the Examiner set forth a prima facie case of unpatentability. See In
re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011); 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 First Step
Under the first step of the Mayol Alice framework, the Examiner
determines that claim 1 is directed to the abstract idea of a reverse auction to
best allocate tasks to workers, an idea of itself and an essential commercial
task. Final Act. 5; Ans. 3. The Appellants disagree that the claim is directed
to an abstract idea (see Appeal Br. 24--26) and contend that the claim is
"directed to a technique for allocating workload in an IT service delivery
industry by using a reverse auction method which subsequently results in the
tickets being pulled from the queue as opposed to traditional techniques of
pushing the tickets from the queue" (id. at 26).
The step-one analysis requires us to consider the claims "in their
entirety to ascertain whether their character as a whole is directed to
excluded subject matter." Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015). The Court acknowledged in Mayo,
that "all inventions at some level embody, use, reflect, rest upon, or apply
laws of nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71.
The question is whether the claim as a whole "focus[ es] on a specific means
or method that improves the relevant technology" or is "directed to a result
or effect that itself is the abstract idea and merely invoke generic processes
and machinery." McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
1299, 1314 (Fed. Cir. 2016). We, therefore, look to "whether the focus of
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the claims is on [a] specific asserted improvement in computer
capabilities ... or, instead, on a process that qualifies as an 'abstract idea'
for which computers are invoked merely as a tool." Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016).
The Specification provides evidence as to what the claimed invention
is directed. Here, the Specification is titled "A Reverse Auction Based Pull
Model Framework for Workload Allocation Problems in IT Service Delivery
Industry." The Field section of the Background section of the Specification
provides that the invention relates "in particular, [to] a reverse auction
allocation system for applying resources to incoming service request calls."
Spec. ,r 1. In the Description of Related Art section, the Specification
discusses the drawbacks of the push model of manually or automatically
allocating tickets by a manager or computer program to agents (see id. ,r 2)
including: (1) the difficulty for the manger to keep track of individual
agents' proficiencies in a sizable/global/national team (id. ,r 3); (2) the use of
managers' own intuition and/or judgment to estimate proficiencies can be
inaccurate and outdated (id. ,r,r 3, 15); (3) the use of records indicating
expertise to allocate tickets "suffers from inefficiency since it is difficult to
accurately capture and represent the skill of an agent" (id. ,r 4); and (4) the
lack of consideration of the complicity of the problem in measuring an
agent's performance provides little incentive for agents to fix or address
complex tickets (id.). The claimed invention provides "an improved system
for allocating problem tickets in a call center or service delivery organization
responsible for incoming service request calls" (id. ,r 5) by using a pull
model that eliminates the need for a human manager (id. ,r 18).
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Claim 1 provides for "[a] method of directing a telephone call to a
winning agent among a plurality of agents, the method comprising:"
(a) providing a storage drive configured to store a database including rules;
(b) receiving, via a telephone call, an order for a service described in a
ticket; ( c) placing the order in a queue and monitoring and allocating the
order and queue using an application; ( d) calculating, using the application, a
first deadline; ( e) calculating, using the application and rules, a second
deadline; (f) inviting, using the application, a bidder's list of potential
agents; (g) receiving, at the application, bids back from the agents;
(h) evaluating, using the application, the bids to select a winning bid;
(i) allocating, using the application, the ticket to the winning agent and
directing the call to that agent; and (j) wherein the bidder's list comprises an
agent with relevant skills and scheduled to be present at work during specific
times. See Appeal Br. 36-37 (Claims App.). We note that the steps are
performed manually by using an application. To the extent the application
performs any functions, the application may be "a software application
program or other logic to control and perform various activities of the ticket
auction house" (Spec. ,r 18), a computer system that includes a processor,
memory, storage drives, communication interfaces, and input/output devices,
i.e., a generic compute system (id. ,r,r 52-55), or "any sort of processing
units, processors and controllers (e.g., processor 701 of FIG. 7) capable of
executing a program of instructions for performing the stated functions and
activities" (id. ,r 57). The claim recites the functional results to be achieved
by any and all possible means without details on how to accomplish those
results.
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The Specification, similarly, does not provide technological details for
how to perform the steps of the method. The Appellants direct attention,
generally, to paragraphs 6, 17, 18, and 22-27 of the Specification as support
for all of the limitations. Appeal Br. 7-11. The portions provide for
receiving an order at a call-in center (limitation (b)) (Spec. ,r 6), pulling
tickets by expressing an interest (id. ,r 17), a ticket entering a queue
(limitation ( c)) (id. ,r 18), implementing the pull model as a software
application program or logic (id.), sending the ticket to a deadline calculator
configured to compute deadlines based on service level agreement specified
time durations (limitation ( d)) (id. ,r 22 ), and sending the ticket to a
complexity estimator, which can be a implemented as a machine-leaming-
based software program, configured to estimate the time required by a
skilled agent to fix the problem based on one or more estimating factors
(limitation (e)) (id. ,r 23). Paragraph 24 describes developing a bid invitation
using the output from the deadline calculator and complexity estimator (not
claimed) and computing which agents have suitable characteristics ( also not
claimed). A bid invitation component sends a bid invitation message to all
participating agents with an invitation to submit bids (limitation (f)) (id.
,r 25), the bids given as input to a winner determination unit (limitation (g))
(id. ,r 26). The Specification provides that the winner determination unit
determines the winner based on rules stored in a database (id. ,r 27), but does
not provide the technological manner or algorithm how the unit makes this
determination.
Considering the claim in light of the Specification and on its
"character as a whole" (Enfish, 822 F.3d at 1335), we find supported the
Examiner's determination that claim 1 is directed to a reverse auction to best
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allocate tasks to workers, a method of organizing human activity of a
commercial interaction and fundamental economic practice. Cf Appeal
Br. 25. We note that this is not dissimilar to the Appellants' characterization
of the claims as being directed to "allocating workload in an IT service
delivery industry by using a reverse auction method." Appeal Br. 26. The
claim here is akin to ones our reviewing court has deemed abstract in In re
Schrader, 22 F.3d 290, 291, 293-94 (Fed. Cir. 1994) (bidding at an auction),
and Priceplay.com, Inc. v. AOL Advert., Inc., 83 F. Supp. 3d 577, 583
(D. Del. 2015) ("Auctions, competitive activities, and sales transactions are
all abstract ideas, and do not become non-abstract when combined and
conducted over the Internet."), ajfd mem., 627 F. App'x 925 (Fed. Cir.
2016); see also Advanced Auctions LLC v. eBay Inc., No. 13CV1612 BEN
JLB, 2015 WL 1415265, at *4 (S.D. Cal. Mar. 27, 2015) ("Like hedging
financial risk, intermediated settlement, or using advertising as currency, an
auction is a 'fundamental economic practice long prevalent in our system of
commerce.' Alice Corp., [573 U.S. at 219].").
We disagree with the Appellants' contention that the claim is not
directed to an abstract idea because it "represent[ s] an improvement to the
technical field of allocating workload in an IT service delivery industry by
using a reverse auction method." Appeal Br. 24 see also Reply Br. 23.
Rather, we determine that the claim does not "apply, rely on, or use 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," i.e., the claim does not integrate the
abstract idea, i.e., judicial exception, into a practical application. See 2019
Revised Guidance, 84 Fed. Reg. at 54. As discussed above, there are no
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technological details for implementing the method or further description of a
particular technological manner for performing the steps. See TDE
Petroleum Data Sols., Inc., v. AKM Enter., Inc., 657 F. App'x 991,993 (Fed.
Cir. 2016) ("As we discussed at greater length in Electric Power, the claims
of the '812 patent recite the what of the invention, but none of the how that
is necessary to tum the abstract idea into a patent-eligible application."
(citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353
(Fed. Cir. 2016))), cert. denied, 137 S. Ct. 1230 (2017); see also Internet
Patents, 790 F.3d at 1348 ("As the district court observed, claim 1 contains
no restriction on how the result is accomplished."); Enfish, 822 F.3d at 1336
(focusing on whether the claim is "an improvement to [the] computer
functionality itself, not on economic or other tasks for which a computer is
used in its ordinary capacity"). And, allocating workload is a longstanding
commercial practice, not a technical field. That the allocation is of IT
tickets, i.e., in the area of technology, does not make the claim not abstract.
See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014)
(limiting the use of the abstract idea "to a particular technological
environment" does not make the abstract idea patent-eligible).
We are not persuaded by the Appellants' argument that "like the
claims in DDR Holdings, the present claims are 'necessarily rooted in
computer technology,' due to the fact that the problem is necessarily a
computer problem (i.e., allocating specific computer problems (i.e.,
technical service requests) to an agent to fix the computer problem)."
Appeal Br. 27 (internal citation omitted) ( citing DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014)); see also Reply
Br. 23-27. The problem of workload allocation existed prior to the Internet.
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See Spec. ,r,r 2, 3. And, the purported solution comprises the use of a
generic computer application or system operating in its normal and ordinary
capacity. See Spec. ,r,r 18, 52-55, 57; see also supra. That the claim may
require the computer to be specially programmed (Appeal Br. 27, 29; Reply
Br. 26-27) does not claim a solution "necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks" (DDR Holdings, 773 F.3d at 1257). See EON Corp.
IP Holdings LLC v. AT & T Mobility LLC, 785 F.3d 616, 623 (Fed. Cir.
2015) ("A general purpose computer is flexible-it can do anything it is
programmed to do.").
We find unpersuasive of error the Appellants' argument that the claim
is not directed to an abstract idea because it is "directed to a far more
particular invention. Here, there is clearly no risk that the claims will 'tie
up' the subject matter." Appeal Br. 28; see also Reply Br. 27-28. Although
the Supreme Court has described "the concern that drives this exclusionary
principle [i.e., the exclusion of abstract ideas from patent eligible subject
matter] as one of pre-emption," see Alice, 573 U.S. at 216, characterizing
pre-emption as a driving concern for patent eligibility is not the same as
characterizing pre-emption as the sole test for patent eligibility. "The
Supreme Court has made clear that the principle of preemption is the basis
for the judicial exceptions to patentability" and "[ f]or this reason, questions
on preemption are inherent in and resolved by the§ 101 analysis." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
( citing Alice, 573 U.S. at 216). Although "preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
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demonstrate patent eligibility." Id. The aforementioned concept is not
sufficiently limiting so as to fall clearly on the side of patent-eligibility.
We are also not persuaded by the Appellants' argument that the claim
is similar to those of Enfzsh and McRO in that it "represent[ s] a software
improvement to ticket allocation ... an improvement that is novel and non-
obvious as compared to prior art techniques." Appeal Br. 30-31; see also
Reply Br. 28-30. Unlike Enfzsh, where the court determined the claims
were directed to a self-referential table for a computer database and were
directed to "a specific improvement to the way computers operate" (Enfzsh,
822 F.3d at 1336), here, the claims are not directed to an improvement in the
way computers operate. Rather, any purported improvement lies in the
allocating process itself using the ordinary capabilities of a general purpose
computer. See Elec. Power, 830 F.3d at 1354. The computer for performing
the claimed functions comprises a generic computer. See supra. The
Appellants do not point to anything in the claims that resembles the
improvement to the technical field of computer animation that was not
simply the use of a generic computer in McRO. The Specification, including
the claims, does not discuss or claim how any technical aspect of the
computer itself is improved. As discussed above, the Specification does not
provide details on the technological manner in which the steps are
performed.
In response to the Appellants' argument that the claim is not abstract
because it is novel and unobvious (Appeal Br. 30-31; Reply Br. 30), we note
that an abstract idea does not transform into an inventive concept just
because the prior art does not disclose or suggest it. See Mayo, 566 U.S. at
89-90. "Groundbreaking, innovative, or even brilliant discovery does not by
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itself satisfy the§ 101 inquiry." Ass 'nfor Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 591 (2013). Indeed, "[t]he 'novelty' of any
element or steps in a process, or even of the process itself, is of no relevance
in determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter." Diehr, 450 U.S.
at 188-89; see also Mayo, 566 U.S. at 91 (rejecting "the Government's
invitation to substitute§§ 102, 103, and 112 inquiries for the better
established inquiry under § 101 ").
The Second Step
The second step of the Mayo/Alice framework is to "search for an
'inventive concept'-i.e., an element or combination of elements that is
'sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the [ineligible concept] itself."' Alice, 573 U.S.
at 217-18 (alteration in original) (quoting Mayo, 566 U.S. at 72-73).
Under the second step, we agree with the Examiner's determination
that the elements of claim 1, individually or as an ordered combination, do
not amount to significantly more than an abstract idea. We are not
persuaded of Examiner error by the Appellants' arguments that assert the
opposite. See Appeal Br. 31-34; Reply Br. 30-33.
For the reasons discussed above, we find unpersuasive the Appellants'
arguments that claim 1 comprises elements that are significantly more than
the abstract idea because it recites "specific technical improvements to
problem ticket allocation in novel, non-obvious ways," "do[ es] not claim
'generic' components that are unimproved by the claimed embodiments," is
"delimited to a particular improvement, i.e., a method for programming a
computer to act as an auction house application," and is limited "to a
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specific technique." Appeal Br. 32; see also Reply Br. 31. As discussed
above, the claims do not purport to improve the functioning of the computer
itself, nor do they effect an improvement in any other technology or
technical field. See Alice, 573 U.S. at 225. As also noted above, the
functions are claimed generically. And, there is no further description of a
particular technological manner for performing the steps.
Unlike the claims found non-abstract in McRO, the claim here uses
generic computer technology to perform data storage, gathering, sorting,
calculating, evaluating, and transmitting and does not recite an improvement
to a particular computer technology. See McRO, 837 F.3d at 1314--15
(finding claims not abstract because they "focused on a specific asserted
improvement in computer animation"); cf Appeal Br. 33; Reply Br. 32-33.
The Appellants provide no further arguments how the claim is similar, such
as why the claim's particular arrangement and/or integration of elements is a
technical improvement or is a "non-conventional and non-generic
arrangement of known, conventional pieces." BASCOM Glob. Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016); cf
Appeal Br. 33; Reply Br. 32.
The claimed generic computing system operates in its ordinary and
conventional capacity to perform the well-understood, routine, and
conventional functions of providing a database/storing data, receiving order
data, placing/sorting the data, calculating deadlines, inviting bidders,
receiving bid data, evaluating the bid data, and allocating/transmitting ticket
data based on the evaluation. See Spec. ,r,r 18, 52-55, 57; see also supra
(describing a generic computer); Elec. Power, 830 F.3d at 1354--55
(gathering, sending, monitoring, analyzing, selecting, and presenting
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information does not transform the abstract process into a patent-eligible
invention); Alice, 573 U.S. at 226 ("Nearly every computer will include a
'communications controller' and 'data storage unit' capable of performing
the basic calculation, storage, and transmission functions required by the
method claims."); Priceplay.com, 83 F. Supp. 3d at 582 ("The addition of an
auction and a competitive activity to a sales transaction is nothing more than
the addition of 'well-understood, routine, conventional activity."'). The
introduction of a conventional computer to implement an abstract idea is not
a patentable application of the abstract idea. Alice, 573 U.S. at 222.
Based on the foregoing, we sustain the Examiner's rejection under
35 U.S.C. § 101 of independent claim 1 and of claims 2--4, 7-13, and 16-26,
which fall with claim 1.
DECISION
The Examiner's rejection of claims 1--4, 7-13, and 16-26 under
35 U.S.C. § 101 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
17