Lyft, Inc.

Patent Trials and Appeals Board

Sep 10, 2021

2021000610 (P.T.A.B. Sep. 10, 2021)

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).
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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;
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[(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).
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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).
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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.
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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
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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
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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
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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
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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
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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).
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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
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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).
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(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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.,
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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.”).