Lyft, Inc.Download PDFPatent Trials and Appeals BoardSep 10, 20212021000610 (P.T.A.B. Sep. 10, 2021) Copy Citation 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. 15/675,422 08/11/2017 Asif Haque 20077.133 7646 149525 7590 09/10/2021 Keller Jolley Preece/ Lyft 1010 North 500 East Suite 210 North Salt Lake, UT 84054 EXAMINER VETTER, DANIEL ART UNIT PAPER NUMBER 3628 NOTIFICATION DATE DELIVERY MODE 09/10/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docketing@kjpip.com gjolley@kjpip.com ljohnson@kjpip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ASIF HAQUE, JAMES KEVIN MURPHY, and YUANYUAN PAO ____________ Appeal 2021-000610 Application 15/675,422 Technology Center 3600 ____________ Before ANTON W. FETTING, NINA L. MEDLOCK, and ROBERT J. SILVERMAN, Administrative Patent Judges. MEDLOCK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 22–41. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,” filed May 21, 2020) and Reply Brief (“Reply Br.,” filed October 30, 2020), and the Examiner’s Answer (“Ans.,” mailed September 2, 2020), Advisory Action (“Adv. Act.” Mailed January 21, 2020), and Final Office Action (“Final Act.,” mailed August 30, 2019). Appellant identifies Lyft Inc. as the real party in interest (Appeal Br. 3). Appeal 2021-000610 Application 15/675,422 2 CLAIMED INVENTION The Specification describes the present invention as “a dynamic transportation matching system” that, “in matching requestors (e.g., riders) and providers (e.g., drivers), can account for the constantly changing location of the provider’s vehicle as a result of the movement of the vehicle by predicting a location of the provider vehicle in the short term future” (Spec. ¶ 14). Claims 22, 31, and 38 are the independent claims on appeal. Claim 22, reproduced below with bracketed notations added, is illustrative of the claimed subject matter: 22. A method comprising: [(a)] receiving a transport request from a requestor computing device, the transport request associated with a request location; [(b)] identifying a first provider computing device and a second provider computing device based on the transport request; [(c)] determining a probability for one or more available travel paths for the first provider computing device using location data and speed data received from a first GPS receiver associated with the first provider computing device; [(d)] identifying, from the one or more available travel paths for the first provider computing device, a travel path for the first provider computing device based on the probability of the one or more available travel paths for the first provider computing device; [(e)] determining, for the travel path for the first provider computing device, a first estimated time of arrival to the request location; [(f)] determining a probability for one or more available travel paths for the second provider computing device using location data and speed data received from a second GPS receiver associated with the second provider computing device; Appeal 2021-000610 Application 15/675,422 3 [(g)] identifying, from the one or more available travel paths for the second provider computing device, a travel path for the second provider computing device based on the probability of the one or more available travel paths for the second provider computing device; [(h)] determining, for the travel path for the second provider computing device, a second estimated time of arrival to the request location; [(i)] assigning the transport request to the first provider computing device based on determining an optimal future location match by identifying that the first estimated time of arrival is less than the second estimated time of arrival; and [(j)] based on assigning the transport request to the first provider computing device, providing navigation information that guides the first provider computing device on a route to the request location. REJECTION Claims 22–41 are rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. ANALYSIS Appellant argues the pending claims as a group (Appeal Br. 13–40). We select independent claim 22 as representative. The remaining claims stand or fall with claim 22. See 37 C.F.R. § 41.37(c)(1)(iv). Under 35 U.S.C. § 101, “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” 35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101 to include an implicit exception: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). Appeal 2021-000610 Application 15/675,422 4 The Supreme Court, in Alice, reiterated the two-step framework previously set forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217. The first step in that analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are not directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry ends. Otherwise, the inquiry proceeds to the second step where the elements of the claims are considered “individually and ‘as an ordered combination’” to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 566 U.S. at 79, 78). This is “a 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.’” Id. at 217–18 (citation omitted) (alteration in original). The U.S. Patent and Trademark Office (the “USPTO”) published revised guidance on January 7, 2019, for use by USPTO personnel in evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (the “2019 Revised Guidance”).2 That guidance revised the USPTO’s examination procedure with respect to the first step of the Mayo/Alice 2 The MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) incorporates the revised guidance and subsequent updates at Section 2106 (9th ed. Rev. 10.2019, rev. June 2020). Appeal 2021-000610 Application 15/675,422 5 framework by (1) “[p]roviding groupings of subject matter that [are] considered an abstract idea”; and (2) clarifying that a claim is not “directed to” a judicial exception if the judicial exception is integrated into a practical application of that exception. Id. at 50. The first step, as set forth in the 2019 Revised Guidance (i.e., Step 2A), is, thus, a two-prong test. In Step 2A, Prong One, we look to whether the claim recites a judicial exception, e.g., one of the following three groupings of abstract ideas: (1) mathematical concepts; (2) certain methods of organizing human activity, e.g., fundamental economic principles or practices, commercial or legal interactions; and (3) mental processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next determine, in Step 2A, Prong Two, whether the claim as a whole integrates the recited judicial exception into a practical application, i.e., whether the additional elements recited in the claim beyond the judicial exception, 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. Id. at 54–55. Only if the claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application do we conclude that the claim is “directed to” the judicial exception, e.g., an abstract idea. Id. If the claim is determined to be directed to a judicial exception under revised Step 2A, we next evaluate the additional elements, individually and in combination, in Step 2B, to determine whether they provide an inventive concept, i.e., whether the additional elements or combination of elements amounts to significantly more than the judicial exception itself; only then, is the claim patent eligible. 2019 Revised Guidance, 84 Fed. Reg. at 56. Appeal 2021-000610 Application 15/675,422 6 Here, in rejecting the pending claims under 35 U.S.C. § 101, the Examiner determined that independent claims 22, 31, and 38 recite “assigning travel requests to providers based on providers’ path probabilities and estimated times of arrival,” which the Examiner concluded is a method of organizing human activity, and, therefore, an abstract idea (Final Act. 4–5). The Examiner also determined that the recited abstract idea is not integrated into a practical application; that the independent claims do not include additional elements sufficient to amount to significantly more than the abstract idea itself; and that the dependent claims are patent ineligible for substantially the same reasons (id. at 5–8). Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A) We are not persuaded by Appellant’s argument that the Examiner erred in determining that claim 22 is directed to an abstract idea (Appeal Br. 14–34). The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335–36. Here, it is clear from the Specification (including the claim language) that claim 22 focuses on an abstract idea, and not on an improvement to technology and/or a technical field. The Specification is titled “TRAVEL PATH AND LOCATION PREDICTIONS,” and describes, in the Background section, that although Appeal 2021-000610 Application 15/675,422 7 traditionally, people have requested and received services at fixed locations from specific service providers, many services can now be accessed through mobile computing devices and fulfilled at arbitrary locations, often by service providers that are activated on demand (Spec. ¶ 1). These on- demand service offerings are convenient for users in that they need not be at fixed locations to receive the services; yet, matching a requestor and a provider can be difficult when both the requestor and the provider are moving (id.). “Additionally, locations provided by requestor computing devices and provider computing devices can be inaccurate and not represent [the] location where the requestor and the provider are [currently in place]” (id.); inaccurate identification, as well as inefficient identification, of the requestor and provider locations can, thus, lead to poor matching and inefficient resource allocation (id.). For example, a first provider’s current location may be in close proximity to a requestor, but a second provider, though farther away, may be a better match and result in a faster pickup, if the second provider is driving in the direction of the requestor while the first provider is driving in the opposite direction such that redirecting the first provider would result in unnecessary delay and disrupt the efficient allocation of resources in the geographical area (id.). The Specification describes that the claimed invention provides a dynamic transportation matching system that, in matching requestors and providers, accounts for the changing location of a provider’s vehicle by predicting where the provider vehicle will travel in the short term future so as to more accurately match the requestor with the provider that will result in the most efficient and/or fastest pickup time to the requestor (Spec. ¶ 14). Claim 22, thus, recites a method comprising: (1) receiving a transport Appeal 2021-000610 Application 15/675,422 8 request, including a requested pickup location, i.e., “receiving a transport request from a requestor computing device, the transport request associated with a request location” (step (a)); (2) “identifying a first provider computing device and a second provider computing device based on the transport request” (step (b)); (3) for each provider, determining a projected travel path, a confidence level/probability for the projected path, and an estimated time of arrival (“ETA”) at the requested pickup location, i.e., determining a probability for one or more available travel paths for the first provider computing device using location data and speed data received from a first GPS receiver associated with the first provider computing device; identifying, from the one or more available travel paths for the first provider computing device, a travel path for the first provider computing device based on the probability of the one or more available travel paths for the first provider computing device; determining, for the travel path for the first provider computing device, a first estimated time of arrival to the request location; determining a probability for one or more available travel paths for the second provider computing device using location data and speed data received from a second GPS receiver associated with the second provider computing device; identifying, from the one or more available travel paths for the second provider computing device, a travel path for the second provider computing device based on the probability of the one or more available travel paths for the second provider computing device; [and] determining, for the travel path for the second provider computing device, a second estimated time of arrival to the request location (steps (c) through (h)); and (4) if the first provider’s ETA is earlier than the ETA of the second provider, assigning the first provider to the request and Appeal 2021-000610 Application 15/675,422 9 providing the first provider with navigation information to the requested pickup location, i.e., assigning the transport request to the first provider computing device based on determining an optimal future location match by identifying that the first estimated time of arrival is less than the second estimated time of arrival; and based on assigning the transport request to the first provider computing device, providing navigation information that guides the first provider computing device on a route to the request location. (steps (i) and (j)). We agree with the Examiner that these limitations, when given their broadest reasonable interpretation, recite “assigning travel requests to providers based on providers’ path probabilities and estimated times of arrival,” i.e., a method of organizing human activity, and, therefore, an abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 52. Appellant first argues that the rejection of claim 22 cannot be sustained because the claimed subject matter does not fall within any of the three groupings of abstract ideas enumerated in the 2019 Revised Guidance (Appeal Br. 15–26). More particularly, Appellant argues that the claim does not recite a method of organizing human activity because the claim neither recites a commercial or legal interaction nor managing personal behavior or relationships or interactions between people (id. at 22–26). We disagree. The Specification describes the claimed invention as a dynamic transportation matching system, i.e., a system designed to match an individual requestor of transportation services with the service provider best positioned to provide the requested services, e.g., based on the provider’s travel path and estimated time of arrival at the requested pickup location (see, e.g., Spec. ¶ 16). Appellant cannot reasonably deny that the express purpose, indeed, the only purpose, of this matching operation is to pair the Appeal 2021-000610 Application 15/675,422 10 requestor with an appropriate service provider and, thus, facilitate a commercial interaction between the two parties. As such, Appellant cannot reasonably deny that clam 22 recites a method of organizing human activity. Claim 22 contemplates selecting a service provider from among a first provider and a second provider based on a comparison of their respective estimated time of arrival at the requested pickup location, and providing the selected provider with navigation information to the pickup location. To that extent, claim 22, when construed as broadly as reasonable, also recites managing personal behavior or relationships between persons, including following rules or instructions — a method of organizing human activity and, therefore, an abstract idea. We also are not persuaded by Appellant’s further argument that, even if claim 22 recites an abstract idea, the claim is nonetheless patent eligible because any alleged abstract idea is integrated into a practical application, i.e., that claim 22 improves a technical field and/or improves the functionality of a computing device (Appeal Br. 26–34). The 2019 Revised Guidance references MPEP, Ninth Edition (rev. Jan 2018) (available at https://www.uspto.gov/web/offices/pac/ mpep/old/mpep_E9R08-2017.htm) § 2106.05(a)–(c) and (e) in non-exhaustively listing considerations indicative that an additional element or combination of elements may have integrated a recited judicial exception into a practical application. 2019 Revised Guidance, 84 Fed. Reg. at 55. In particular, the Guidance describes that an additional element may have integrated the judicial exception into a practical application if the additional element (1) reflects an improvement in the functioning of a computer or an improvement to other technology or technical field; (2) applies or uses the Appeal 2021-000610 Application 15/675,422 11 judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition; (3) implements the judicial exception with, or uses the judicial exception with, a particular machine or manufacture integral to the claim; (4) effects a transformation or reduction of an article to a different state or thing; or (5) applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Id. At the same time, the Guidance makes clear that merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea; adding insignificant extra-solution activity to the judicial exception; or only generally linking the use of the judicial exception to a particular technological environment or field are not sufficient to integrate the judicial exception into a practical application. Id. Appellant argues here that “the independent claims provide specific improvements to transportation technology platforms through improving the accuracy of transportation provider selection based on the probabilities of the one or more available travel paths for a plurality of transportation providers” (Appeal Br. 27). Citing paragraphs 1 and 19–20 of the Specification, Appellant, thus, notes that “inaccurate and/or inefficient identification of locations of the providers . . . can lead to poor matching and inefficient resource allocation” and that “these inaccuracies are due to ‘the difficulty in matching requests with providers using sub-optimal geographic- based location estimates,’” which leads to mismanagement of provider resources as well as increased system resources usage (id. at 27–28). Appeal 2021-000610 Application 15/675,422 12 Appellant asserts that the claimed invention combats “these technical issues. . . [by] identif[ying] future locations for multiple provider computing devices based on probabilities of available travel paths of the multiple provider computing devices”; “determin[ing] which of the multiple provider computing devices has the shortest estimated arrival time to the request location”; and “selecting the provider computing device having the optimal future location match” (Appeal Br. 28–29). Yet, that argument is not persuasive of Examiner error at least because claim 22 merely recites “determining a probability for one or more available travel paths” for a provider computing device “using location data and speed data received from a . . . GPS receiver” associated with the provider computing device and “identifying. . . a travel path” for the provider computing device “based on the probability of the one or more available travel paths.” The claim provides no technical details regarding how the available travel paths or their probability is determined, beyond stating that location and speed data received from a GPS receiver are used, and there is no indication that the GPS receiver (or, for that matter, the computer systems recited in independent claims 31 and 38) is used in other than in its normal and ordinary capacity. Similar to the claims at issue in Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332 (Fed. Cir. 2017), 3 “the 3 There, the claims concerned a system and method for editing XML documents of varying (and incompatible) formats and syntaxes; in accordance with the claimed method, a “dynamic document” containing data extracted from an original XML document was created and presented to a user; the user could make changes to the data displayed in the dynamic document, and the changes were then “dynamically propagated” back into the original XML document. Intellectual Ventures, 850 F.3d at 1339. Plaintiffs argued that the claims, thus, set forth a unique solution to a Appeal 2021-000610 Application 15/675,422 13 claim language here provides only a result-oriented solution with insufficient detail for how a computer accomplishes it. Our law demands more.” Intellectual Ventures, 850 F.3d at 1342 (citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1356 (Fed. Cir. 2016)). Further referencing paragraph 20, Appellant observes, “as noted by the Specification, ‘the problem of inefficient travel paths. . . leads to mismanagement of provider resources as well as . . . increased data processing, bandwidth utilization, memory usage, and system communications as delay accumulates and cascading requests and cancellations are sent to a dynamic transportation matching system’” (Appeal Br. 28). Appellant maintains that the claimed invention alleviates these technical problems (id. at 29, 31). But, as the Examiner observes, and we agree, “there is no sufficient technical explanation” in the Specification, including in the cited portions on which Appellant relies,4 to support Appellant’s “conclusory assertion that the claims solve problems related to ‘increased data processing, bandwidth utilization, memory usage, and system communications as delay accumulates and cascading requests and cancellations are sent to a dynamic transportation matching system’” problem with contemporary XML documents, i.e., the problem of “the ‘incompatibility of XML documents with different ‘XML syntax[es]’ and different ‘XML formats, relational database schemes, and messages formats.’” Id. at 1342. Yet, the Federal Circuit rejected that argument, observing that although the claims purport to modify the underlying XML document in response to modifications made in the dynamic document, “[n]othing in the claims indicate[s] what steps are undertaken to overcome the stated incompatibility problems with XML documents to propagate those modifications into the XML document.” Id. 4 Appellant cites paragraphs 21, 33, 37, 39, 41, 42, 51, 53, 61, and 70 and Figures 2–7 of the Specification to support its position (Appeal Br. 31). Appeal 2021-000610 Application 15/675,422 14 (Ans. 8). Instead, that assertion appears to be no more than unsupported attorney argument. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney argument cannot take the place of evidence in the record). Responding to the Examiner’s Answer, Appellant argues in the Reply Brief that “the claims themselves provide technical details that support the claim of reduced data processing, bandwidth usage and memory usage” and that “the Specification [further] supports these assertions” (Reply Br. 4–5; see also Appeal Br. 31). Citing paragraph 14 of the Specification, Appellant, thus, maintains that the claimed use of projected future locations to determine matching decisions “results in more efficient use of system processing resources by minimizing cancelations and duplicate requests as well as lowering provider downtime and increased responsiveness to requests” (id. at 5). Appellant also argues that paragraph 37 provides technical details of “how the pending claims can arrive at a counterintuitive solution of selecting a transportation provider device that is farther away from the requestor computing device . . . than closer-located transportation provider devices” (id. at 5). But again, we find nothing to support Appellant’s assertion that the claims solve problems related to increased data processing, bandwidth utilization, memory usage, and/or system communications. Paragraphs 14 and 37, at best, merely evidence that the claimed invention provides improved ride matching. They do not demonstrate, as Appellant ostensibly maintains, an improvement in computer-related technology. In other words, to the extent the use of projected future locations, confidence scores, and statistical probabilities for each of a plurality of potential provider devices results in any improvement at all, that Appeal 2021-000610 Application 15/675,422 15 improvement is to the abstract idea of assigning travel requests to providers, which is not enough for patent eligibility. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1170 (Fed. Cir. 2018) (“[P]atent law does not protect such claims [i.e., claims to an asserted advance in the realm of abstract ideas], without more, no matter how groundbreaking the advance.”). That is particularly so, where, as here, there is no indication that the operations recited in claim 22 require any specialized computer hardware or other inventive computer components, invoke any allegedly inventive programming, or that the claimed invention is implemented using other than generic computer components as tools operating in their normal and ordinary capacity. It also is significant here that the relevant question under Step 2A, Prong 2 is not whether the claimed invention itself (i.e., identifying future locations for multiple provider computing devices based on probabilities of available travel paths of the multiple provider computing devices, determining which of the multiple provider computing devices has the shortest estimated arrival time to a requested location, and then selecting the provider computing device having the optimal estimated arrival time) is a practical application; instead, the question is whether the claim includes additional elements beyond the judicial exception that integrate the judicial exception into a practical application. The Examiner determined here, and we agree, that the only additional elements recited in claim 22 beyond the abstract idea are “a requestor computing device”; “a first provider computing device”; a second provider computing device”; a “first GPS receiver”; and “a second GPS receiver” — elements that, as the Examiner observed, are recited at a high level of generality, i.e., as generic computer Appeal 2021-000610 Application 15/675,422 16 components (Final Act. 6); they also are described as such in Appellant’s Specification (see, e.g., Spec. ¶¶ 77, 81, 97). “And after Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014). Appellant attempts to draw an analogy between the present claims and those held patent eligible in Enfish (Appeal Br. 29–31), arguing that the pending independent claims, “[s]imilar to Enfish, . . . provide specific improvements to transportation technology platforms through improving the accuracy of transportation provider selection based on the probabilities of the one or more available travel paths for a plurality of transportation providers” (Appeal Br. 29). Yet, we can find no parallel between claim 22 and the claims at issue in Enfish. There, the Federal Circuit held that claims reciting a self-referential table for a computer database were not directed to an abstract idea under step one of the Mayo/Alice framework, and were patent eligible, because the claims were directed to an improvement in computer functionality. Enfish, 822 F.3d at 1336. The specification described the benefits of using a self- referential table – faster searching and more effective data storage – and highlighted the differences between the claimed self-referential table and a conventional database structure. Id. at 1333, 1337. The Federal Circuit, thus, rejected the district court’s characterization of the claims as directed to the abstract idea of “storing, organizing, and retrieving memory in a logical table,” id. at 1337 (citation omitted), emphasizing that the key question is whether the focus of the claims is on the specific asserted improvement in Appeal 2021-000610 Application 15/675,422 17 computer capabilities or, instead, on a process that qualifies as an abstract idea for which computers are invoked merely as a tool. Id. at 1335–36. Appellant asserts here that although “the technology in the pending application differs from Enfish, the claimed invention is no less directed to an improvement in computer technology and qualifies as patent eligible under the principles of Enfish” (Appeal Br. 30). But, we are not persuaded that improving the accuracy of transportation provider selection amounts to an improvement in computer technology as opposed to an alleged improvement in the abstract idea of assigning travel requests to providers — a process in which computer components are used as tools in their ordinary capacity. Appellant further argues that “[t]he claims integrate any alleged abstract idea into a practical application by providing improvements to the functioning of a computing device” (Appeal Br. 32). Appellant asserts that these improvements are provided by “the additional elements” of “determining a probability for one or more available travel paths for the first provider computing device using location data and speed data received from a first GPS receiver associated with the first provider computing device” and “identifying, from the one or more available travel paths for the first provider computing device, a travel path for the first provider computing device based on the probability of the one or more available travel paths for the first provider computing device” (id.). Appellant’s argument is not persuasive, even putting aside whether the identified steps are properly characterized as “additional elements,” at least because there is a fundamental difference between computer functionality improvements, on the one hand, and uses of existing computers Appeal 2021-000610 Application 15/675,422 18 as tools to perform a particular task, on the other. The Federal Circuit, in fact, applied this distinction in Enfish in rejecting the § 101 challenge at the step one stage in the Mayo/Alice analysis because the claims focused on a specific type of data structure, i.e., the self-referential table, designed to improve the way a computer carries out its basic functions of storing and retrieving data, and not merely on asserted advances in uses to which existing computer capabilities could be put. Enfish, 822 F.3d at 1335–36. The “additional elements” that Appellant touts do not provide an improvement in computer capabilities, i.e., an improvement in the way a computer performs basic functions, but instead provide an alleged improvement in assigning travel requests to providers, using generic computer components as tools operating in their ordinary capacity. We conclude, for the reasons outlined above, that claim 22 recites a method of organizing human activity, i.e., an abstract idea, and that the additional elements recited in the claim beyond the abstract idea are no more than generic computer components used as tools to perform the recited abstract idea. As such, they do not integrate the abstract idea into a practical application. See Alice Corp., 573 U.S. at 223–24 (“[W]holly generic computer implementation is not generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77) (alterations in original)). Accordingly, we agree with the Examiner that claim 22 is directed to an abstract idea. Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B) Having determined under step one of the Mayo/Alice framework that claim 22 is directed to an abstract idea, we next consider under Step 2B of Appeal 2021-000610 Application 15/675,422 19 the 2019 Revised Guidance, the second step of the Mayo/Alice framework, whether claim 22 includes additional elements or a combination of elements that provides an “inventive concept,” i.e., whether an additional element or combination of elements adds specific limitations beyond the judicial exception that are not “well-understood, routine, conventional activity” in the field (which is indicative that an inventive concept is present) or simply appends well-understood, routine, conventional activities previously known to the industry to the judicial exception. 2019 Revised Guidance, 84 Fed. Reg. at 56. Citing BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), Appellant asserts that the USPTO has interpreted BASCOM to mean that an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces (Appeal Br. 34). And Appellant argues that “[s]imilar to BASCOM, the pending claims are patent eligible because they solve a technological problem that hindered computer-based transportation matching system from accurately and efficiently assigning transportation requests to provider computing devices” by “proposing an unconventional system that determines projected locations . . . based on current velocity and acceleration of the vehicle from GPS readings” (id. at 35–36). Appellant asserts that the limitations reciting the “determination of available travel paths based on location data and speed data received from a GPS receivers associated with the provider computing devices” and “utilizing the available travel paths to determine future locations of the provider computing devices for the purposes of assigning a transportation request” provide the “‘inventive concept’ beyond any alleged abstract idea Appeal 2021-000610 Application 15/675,422 20 and make the pending claims patent eligible” (Appeal Br. 36). But, that argument is not persuasive at least because the features that Appellant identifies, i.e., at least steps (c), (d), (e), and (f), are part of the abstract idea itself; they are not additional elements to be considered in determining whether claim 22 includes additional elements or a combination of elements sufficient to amount to significantly more than the judicial exception. It could not be clearer from Alice, that under step two of the Mayo/Alice framework, the elements of each claim are considered both individually and “as an ordered combination” to determine whether the additional elements, i.e., the elements other than the abstract idea itself, “transform the nature of the claim” into a patent-eligible application. Alice Corp., 573 U.S. at 217 (citation omitted); see Mayo, 566 U.S. at 72–73 (requiring that “a process that focuses upon the use of a natural law also contain other elements or a combination of elements, sometimes referred to as an ‘inventive concept,’ sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law itself” (citation omitted)). In other words, the inventive concept under step two of the Mayo/Alice test cannot be the abstract idea itself: It is clear from Mayo that the “inventive concept” cannot be the abstract idea itself, and Berkheimer . . . leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged “inventive concept” is the abstract idea. Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring) (citation omitted); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed invention’s use of the ineligible concept to which it is directed Appeal 2021-000610 Application 15/675,422 21 cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.”). Here, the Examiner determined and we agree, that the only additional elements recited in claim 22 beyond the abstract idea are “a requestor computing device”; “a first provider computing device”; a second provider computing device”; a “first GPS receiver”; and “a second GPS receiver,” i.e., generic computer components (Final Act. 6) — a determination amply supported by and fully consistent with the Specification (see, e.g., Spec. ¶¶ 77, 81, 97). Appellant cannot reasonably maintain that there is insufficient factual support for the Examiner’s determination that the operation of these components is well-understood, routine, or conventional, where, as here, there is nothing in the Specification to indicate that the operations recited in claim 22 require any specialized hardware or inventive computer components or that the claimed invention is implemented using other than generic computer components to perform generic computer functions, e.g., receiving and processing information. Indeed, the Federal Circuit, in accordance with Alice, has “repeatedly recognized the absence of a genuine dispute as to eligibility” where claims have been defended as involving an inventive concept based “merely on the idea of using existing computers or the Internet to carry out conventional processes, with no alteration of computer functionality.” Berkheimer, 890 F.3d at 1373 (Moore, J., concurring) (internal citations omitted); see also BSG Tech LLC, 899 F.3d at 1291 (“BSG Tech does not argue that other, non-abstract features of the claimed inventions, alone or in combination, are not well- understood, routine and conventional database structures and activities. Appeal 2021-000610 Application 15/675,422 22 Accordingly, the district court did not err in determining that the asserted claims lack an inventive concept.”). Appellant’s Additional Arguments We have considered Appellant’s further arguments that the Examiner has mischaracterized the independent claims and also failed to follow Federal Circuit precedent (Appeal Br. 37–40). And we find those arguments unpersuasive. Appellant ostensibly maintains otherwise (Appeal Br. 38–39); but, there is no requirement (whether under Supreme Court or Federal Circuit precedent, USPTO guidance, or otherwise), that an examiner, in order to maintain a rejection under § 101, identify a case in which the same abstract idea previously was held ineligible by the Supreme Court or the Federal Circuit. And, contrary to Appellant’s assertion (id.), the Examiner’s characterization of the claims is, in our view, fully consistent with the Specification, as described above, including the claim language. Appellant charges that “the Office Action’s alleged abstract idea is ‘untethered from the language of the claims,’ Enfish, 882 F.3d at 1337, because it ignores significant features recited in the pending claims” (Appeal; Br. 38). But, there also is no requirement that an examiner’s formulation of the abstract idea must copy the claim language. That the Examiner, thus, articulates the abstract idea at a different level of abstraction than would Appellant is, accordingly, an insufficient basis to persuasively argue that the claim language has been mischaracterized or that the Examiner has failed to consider the claim as a whole. Cf. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240–41 (Fed. Cir. 2016) (“An abstract idea can generally be described at different levels of abstraction. As the Board Appeal 2021-000610 Application 15/675,422 23 has done, the claimed abstract idea could be described as generating menus on a computer, or generating a second menu from a first menu and sending the second menu to another location. It could be described in other ways, including, as indicated in the specification, taking orders from restaurant customers on a computer.”). We are not persuaded, on the present record, that the Examiner erred in rejecting independent claim 22 under 35 U.S.C. § 101. Therefore, we sustain the Examiner’s rejection of claim 22, and claims 23–41, which fall with claim 22.5 5 Appellant argues, for the first time, in its Reply Brief, that the Examiner has failed to support a § 101 rejection of the dependent claims because “[l]ike the Office Action, the Examiner’s Answer ignores the substance of these claims” (Reply Br. 11–12). That argument is untimely and, therefore, waived here in the absence of any showing of good cause why the argument could not have been timely presented in Appellant’s Appeal Brief. See In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an argument not first raised in the brief to the Board is waived on appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010) (informative) (explaining that arguments and evidence not timely presented in the Principal Brief, will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Principal Brief); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) (“Properly interpreted, the Rules do not require the Board to take up a belated argument that has not been addressed by the Examiner, absent a showing of good cause.”). But, even if Appellant’s argument were not waived, it is not persuasive of Examiner error. There is no dispute that examiners are to evaluate the patent eligibility of each claim individually. But, consideration of each claim individually does not require a separate written analysis for each individual claim. Moreover, we agree with the Examiner that the dependent claims are directed to the same abstract idea as the independent claims, albeit at differing levels of specificity (Final Act. 8). Cf. Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., Appeal 2021-000610 Application 15/675,422 24 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 22–41 101 Eligibility 22–41 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 776 F.3d 1343, 1348 (Fed. Cir. 2014) (explaining that when all claims are directed to the same abstract idea, “addressing each claim of the asserted patents [is] unnecessary.”). 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