Neil O'Connor et al.

Patent Trials and Appeals Board

Feb 11, 2020

14103972 - (D) (P.T.A.B. Feb. 11, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/103,972 12/12/2013 Neil O'Connor 413173-US-
NP/AVA080PA
4087
136582 7590 02/11/2020
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
EXAMINER
SMITH, LINDSEY B
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
02/11/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pair_avaya@firsttofile.com
pto@sspatlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NEIL O’CONNOR, DAWID NOWAK,
and TONY MCCORMACK
____________

Appeal 2018-007153
Application 14/103,972
Technology Center 3600
____________

Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE1

Neil O’Connor, Dawid Nowak, and Tony McCormack (Appellant2)
seek review under 35 U.S.C. § 134 of a final rejection of claims 1–9 and 13–

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed March 16, 2018) and Reply Brief (“Reply Br.,” filed July 3,
2018), and the Examiner’s Answer (“Ans.,” mailed May 3, 2018), and Final
Action (“Final Act.,” mailed October 16, 2017).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Microsoft,
Inc. (App. Br. 3).

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20, the only claims pending in the application on appeal. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
The Appellant invented a way for a customer to authenticate an agent
when the agent initiates an interaction with the customer. Spec. para. 2.
An understanding of the invention can be derived from a reading of
exemplary claim 13, which is reproduced below (bracketed matter and some
paragraphing added).
13. A computer-implemented method for authenticating an
agent, the method comprising:
[1] receiving a request for an agent-initiated interaction on a
customer device;
[2] generating a first secure code for authenticating the agent-
initiated interaction between the customer communication
device and an agent device;
[3] providing the first secure code to the agent device;
[4] receiving a second secure code from an authentication
device that is separate from the customer communication
device;
[5] verifying the second secure code by determining,
independently of a registry, whether the second secure code
corresponds to the first secure code; and
[6]
[6.1] providing, independently of a registry, an indication
that the second secure code corresponds to the first
secure code based on the determination that the second
secure code corresponds to the first secure code
or
[6.2] providing an indication that the second secure code
does not correspond to the first secure code based on the
determination that the second secure code does not
correspond to the first secure code.
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Claims 1–9 and 13–20 stand rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
Claims 1–9 and 13–20 stand rejected under 35 U.S.C. § 112(a) as
lacking a supporting written description within the original disclosure.
Claims 1–9 and 13–20 stand rejected under 35 U.S.C. § 112(b) as
failing to particularly point out and distinctly claim the invention.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
The issues of written description matter turn primarily on whether the
originally filed disclosure supports the phrase “independently of a registry”
in limitation 5.
The issues of indefiniteness matter turn primarily on whether one of
ordinary skill would understand the limitations.
ANALYSIS
Initially we construe the claim term “agent.” This is a term with
multiple potential meanings, including manifestations as people or as
interactive or background computer processes. The Specification uniformly
describes an agent as being one who initiates a call, and in particular, might
be an imposter. Spec. para. 6. The Specification also describes an agent as
encompassing both live and interactive embodiments. Spec. para. 37.
Accordingly, we construe an agent as one with intention to so act, and so is a
human or a software process programmed to interact, as contrasted with a
background software process that avoids interaction.
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Claims 1–9 and 13–20 rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more
STEP 13
Claim 13, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court:
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[w]hat
else is there in the claims before us? To answer that question, .
. . consider the elements of each claim both individually and “as
an ordered combination” to determine whether the additional
elements “transform the nature of the claim” into a patent-
eligible application. [The Court] described step two of this
analysis as 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.”
Alice Corp., Pty. Ltd. v CLS Bank Intl, 573 U.S. 208, 217–18 (2014)
(citations omitted) (citing Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012)). To perform this test, we must first
determine what the claims are directed to. This begins by determining
whether the claims recite one of the judicial exceptions (a law of nature, a
natural phenomenon, or an abstract idea). Then, if claims recite a judicial

3 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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exception, determining whether the claims at issue are directed to the recited
judicial exception, or whether the recited judicial exception is integrated into
a practical application of that exception, i.e., that the claims “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.” Revised Guidance at 54. If
the claims are directed to a judicial exception, then finally determining
whether the claims provide an inventive concept because the additional
elements recited in the claims provide significantly more than the recited
judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 13 recites receiving a request, generating, providing, receiving, and
verifying code data, and providing an indication. Providing data is
transmitting data. Verifying data is generic data analysis. Thus, claim 13
recites receiving, generating, transmitting, and analyzing data. None of the
limitations recite technological implementation details for any of these steps,
but instead recite only results desired by any and all possible means.
From this we see that claim 13 does not recite the judicial exceptions
of either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts4, (2) certain methods of organizing

4 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
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human activity5, and (3) mental processes6. Among those certain methods of
organizing human activity listed in the Revised Guidance are commercial or
legal interactions. Like those concepts, claim 13 recites the concept of
judging whether an agent can be trusted. Specifically, claim 13 recites
operations that would ordinarily take place in advising one to verify and
relate whether two codes received from different devices correspond. The
advice to verify and relate whether two codes received from different
devices correspond involves authenticating an agent, which is an economic
act, and receiving a request for an agent-initiated interaction, which is an act
ordinarily performed in the stream of commerce. For example, claim 13
recites “authenticating an agent,” which is an activity that would take place
whenever one is approaching an agent in a commercial interaction.
Similarly, claim 13 recites “receiving a request for an agent-initiated
interaction,” which is also characteristic of agent interaction in commerce.
The Examiner determines the claims to be directed to authenticating
an agent. Final Act. 7.
The preamble to claim 13 recites that it is a method for authenticating
an agent. The steps in claim 13 result in indicating whether two codes

Corp. of Am., 306 U.S. 86, 94 (1939); SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163 (Fed. Cir. 2018).
5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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correspond absent any technological mechanism other than a conventional
computer for doing so.
As to the specific limitations, limitations 1 and 4 recite receiving data.
Limitations 2, 3, 5, and 6 recite generic and conventional generating,
transmitting, and analyzing of code data, which advise one to apply generic
functions to get to these results. The limitations thus recite advice for
verifying and relating whether two codes received from different devices
correspond. To advocate verifying and relating whether two codes received
from different devices correspond is conceptual advice for results desired
and not technological operations.
The Specification at paragraph 2 describes the invention as relating to
a way for a customer to authenticate an agent when the agent initiates an
interaction with the customer. Thus, all this intrinsic evidence shows that
claim 13 recites judging whether an agent can be trusted. This is consistent
with the Examiner’s determination.
This in turn is an example of commercial or legal interactions as a
certain method of organizing human activity because judging whether an
agent can be trusted is a common sense measure in deciding to interact in
commerce. The concept of judging whether an agent can be trusted by
verifying and relating whether two codes received from different devices
correspond is one idea for how to help judge this. The steps recited in
claim 13 are part of how this might conceptually be premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Interval Licensing LLC v. AOL,
Inc., 896 F.3d 1335, 1338 (Fed, Cir. 2018) (Managing control over content
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usage); Easyweb Innovations LLC v. Twitter, Inc., 689 Fed. App’x. (Fed.
Cir. 2017)(non-precedential)(Authenticating participant).
From this we conclude that at least to this degree, claim 13 recites
judging whether an agent can be trusted by verifying and relating whether
two codes received from different devices correspond, which is a
commercial and legal interaction, one of certain methods of organizing
human activity identified in the Revised Guidance, and, thus, an abstract
idea.
STEP 2A Prong 2
The next issue is whether claim 13 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept i.e. integrated into a practical application.7
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, “all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.”
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. “[A]pplication[s]” of
such concepts “ ‘to a new and useful end,’ ” we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,

7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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devoid of implementation details. Steps 1 and 4 are pure data gathering
steps. Limitations describing the nature of the data do not alter this. Steps 2
and 3 recite basic conventional data operations such as generating, updating,
and storing data. Step 6 is insignificant post solution activity, such as
storing, transmitting, or displaying the results. Step 5 recites generic
computer processing expressed in terms of results desired by any and all
possible means and so present no more than conceptual advice. All
purported inventive aspects reside in how the data is interpreted and the
results desired, and not in how the process physically enforces such a data
interpretation or in how the processing technologically achieves those
results.
Viewed as a whole, Appellant’s claim 13 simply recites the concept of
judging whether an agent can be trusted by verifying and relating whether
two codes received from different devices correspond as performed by a
generic computer. This is no more than conceptual advice on the parameters
for this concept and the generic computer processes necessary to process
those parameters, and do not recite any particular implementation.
Claim 13 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The 27 pages of spell out different generic
equipment8 and parameters that might be applied using this concept and the
particular steps such conventional processing would entail based on the
concept of judging whether an agent can be trusted by verifying and relating

8 The Specification describes a computer as any computing devices, such as,
for example, a server, a workstation, a laptop, a tablet computer, smart
phone, or otherwise any processor based device configured to execute
instructions. Spec. para. 30.
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whether two codes received from different devices correspond under
different scenarios. They do not describe any particular improvement in the
manner a computer functions. Instead, claim 13 at issue amounts to nothing
significantly more than an instruction to apply judging whether an agent can
be trusted by verifying and relating whether two codes received from
different devices correspond using some unspecified, generic computer.
Under our precedents, that is not enough to transform an abstract idea into a
patent-eligible invention. See Alice, 573 U.S. at 225–26.
None of the limitations reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for
a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or 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.
We conclude that claim 13 is directed to achieving the result of
judging whether an agent can be trusted by advising one to verify and relate
whether two codes received from different devices correspond, as
distinguished from a technological improvement for achieving or applying
that result. This amounts to commercial or legal interactions, which fall
within certain methods of organizing human activity that constitute abstract
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ideas. The claim does not integrate the judicial exception into a practical
application.
STEP 2B
The next issue is whether claim 13 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two:
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea [] on a generic
computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, generating, transmitting, and analyzing data amounts
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to electronic data query and retrieval—one of the most basic functions of a
computer. All of these computer functions are generic, routine, conventional
computer activities that are performed only for their conventional uses. See
Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
Also see In re Katz Interactive Call Processing Patent Litigation, 639 F.3d
1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of
the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be
achieved by any general purpose computer without special programming”).
None of these activities are used in some unconventional manner nor do any
produce some unexpected result. Appellant does not contend they invented
any of these activities. In short, each step does no more than require a
generic computer to perform generic computer functions. As to the data
operated upon, “even if a process of collecting and analyzing information is
‘limited to particular content’ or a particular ‘source,’ that limitation does
not make the collection and analysis other than abstract.” SAP America, Inc.
v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim 13 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-generation-
transmission-analysis is equally generic and conventional. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Communications,
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LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
We conclude that claim 13 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
REMAINING CLAIMS
Claim 13 is representative. The remaining method claims merely
describe process parameters. We conclude that the method claims at issue
are directed to a patent-ineligible concept itself, and not to the practical
application of that concept.
As to the structural claims, they:
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “warn[ed] ... against” interpreting § 101“in
ways that make patent eligibility ‘depend simply on the
draftsman’s art.’
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by the commercial and
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legal interaction of judging whether an agent can be trusted by advising one
to verify and relate whether two codes received from different devices
correspond, without significantly more.
APPELLANT’S ARGUMENTS
As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Final Action 6–9 and Answer 9–14 and
reach similar legal conclusions. We now turn to the Reply Brief.
We are not persuaded by Appellant’s argument that:
in conventional approaches to the technological field of security
when using telecommunications devices, the customer must
register with a registry (see Gasparini). However, claim 1 does
not require such a registration because of the generation of this
secure code for the agent-initiated interaction. Such an
unconventional element not only makes the system more
efficient, but also limits circumvention of the system by
devious parties that may exploit a conventional system using a
registry, thus improving the technological field of security
when using telecommunications devices.
Reply Br. 3. First, an approach is a conceptual idea, not a technological
process. Conceptual ideas devoid of technological details are not patent
eligible. “The purely functional nature of the claim confirms that it is
directed to an abstract idea, not to a concrete embodiment of that idea.”
Affinity Labs of Texas, LLC v. Amazon.com Inc., 838 F.3d 1266, 1269
(2016). Appellant argues that generation of a code is inventive. But
generation of data is entirely conventional. That it may be useful is
insufficient. The issue is not that of utility. “That the automation can ‘result
in life altering consequences,’ is laudable, but it does not render it any less
abstract.” Univ. of Florida Research Found., Inc. v. Gen. Elec. Co., 916
F.3d 1363, 1369 (Fed. Cir. 2019).
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We are not persuaded by Appellant’s argument that:
[t]he Examiner has been wholly unable to find any reference or
combination of references showing a system for authenticating
an agent without a registry as claimed is well-understood,
routine, or conventional in the relevant industry. Nor has the
Examiner provided any other evidence to support the allegation
that the appellant’s claims are routine or conventional.
Reply Br. 3. The issue of whether the prior art describes the claims is
separate. “A claim for a new abstract idea is still an abstract idea. The
search for a § 101 inventive concept is thus distinct from demonstrating §
102 novelty.” Synopsys, Inc. v. Mentor Graphics Corporation, 839 F.3d
1138, 1151 (Fed. Cir. 2016). Support for determinations that the claims
recite conventional computer operation is provided supra under Step 2A-
Prong 2 and Step 2B.
Claims 1–9 and 13–20 rejected under 35 U.S.C. § 112(a) as lacking a
supporting written description within the original disclosure
The Examiner rejects the claims because the phrase “independently of
a registry” in limitation 5 is not supported by the Specification. Final
Act. 3–4. Appellant argues that the example in the Specification does not
use such a registry. App. Br. 17. But absence of evidence is not evidence of
absence. Absence of an element in one example does not demonstrate an
entire genus of deliberate omission. Appellant next argues that the whole
point of the invention is to avoid such registry. App. Br. 19. But Appellant
does not show where this is stated. Instead Appellant argues this is intrinsic
without evidence. Id. As to the remaining arguments, we adopt the
Examiner’s determinations from Answer 4–6 and reach the same legal
conclusions. Appellant does not rebut these in the Reply Brief.
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Claims 1–9 and 13–20 rejected under 35 U.S.C. § 112(b) as failing to
particularly point out and distinctly claim the invention
We are persuaded by Appellant’s argument that one of ordinary skill
would understand the limitations. App. Br. 23–26.
CONCLUSIONS OF LAW
The rejection of claims 1–9 and 13–20 under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more is proper.
The rejection of claims 1–9 and 13–20 under 35 U.S.C. § 112(a) as
lacking a supporting written description within the original disclosure is
proper.
The rejection of claims 1–9 and 13–20 under 35 U.S.C. § 112(b) as
failing to particularly point out and distinctly claim the invention is
improper.

CONCLUSION

The rejection of claims 1–9 and 13–20 is affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Basis  Affirmed Reversed
1–9,13–20 101 Eligibility  1–9,13–20
1–9,13–20 112(a) Written
Description 
1–9,13–20
1–9,13–20 112(b) Indefiniteness  1–9,13–20
Overall
Outcome
1–9,13–20

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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) (2011).

AFFIRMED