Flockhart, Andrew D. et al.

Patent Trials and Appeals Board

Apr 15, 2020

13540906 - (D) (P.T.A.B. Apr. 15, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/540,906 07/03/2012 Andrew D. Flockhart 4366-442-DIV 2175
48500 7590 04/15/2020
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
DICKERSON, TIPHANY B
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
04/15/2020 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANDREW D. FLOCKHART and ROBERT C. STEINER
____________

Appeal 2019-003980
Application 13/540,906
Technology Center 3600
____________

Before HUBERT C. LORIN, NINA L. MEDLOCK, and
BRUCE T. WIEDER, 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 5–22 and 24. 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 November 19, 2018) and Reply Brief (“Reply Br.,” filed April 25,
2019), and the Examiner’s Answer (“Ans.,” mailed February 25, 2019), and
Final Office Action (“Final Act.,” mailed May 31, 2018). Appellant
identifies Avaya Inc. as the real party in interest. Appeal Br. 2.
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CLAIMED INVENTION
Appellant describes that “[t]he present invention is directed generally
to servicing a contactor in a contact center and specifically to allocating
work items among contact center resources” (Spec. 1:11–12).
Claims 5 and 9 are the independent claims on appeal. Claim 5,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
5. A method for servicing work items in a contact
center, each work item representing a customer contact with the
contact center and being represented in the contact center as a
data structure stored in a tangible, non-transitory computer
readable medium of the contact center, the contact center having
a plurality of contact center performance goals, comprising:
[(a)] selecting a multi-skilled agent for servicing one of
a plurality of different types of queued work items;
[(b)] determining, for each contact center performance
goal, a status of goal realization based on data related to the
contact center performance goal, wherein each of the contact
center performance goals is based on a service level value for a
set of contact center data and is not based on a particular agent;
[(c)] after determining the status of goal realization,
selecting one of the multi-skilled agent’s skills based, at least in
part, on the status of goal realization;
[(d)] selecting, after selecting of the multi-skilled agent
and based on the selected skill, one of the plurality of different
types of queued work items for servicing by the multi-skilled
agent, wherein the multi-skilled agent is an agent that services
the selected queued work item; and
[(e)] servicing the selected queued work item by the
multi-skilled agent.
REJECTION
Claims 5–22 and 24 are rejected under 35 U.S.C. § 101 as directed to
a judicial exception without significantly more.
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ANALYSIS
Under 35 U.S.C. § 101, an invention is patent eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
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).
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 (alteration in original).
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
determined that the claimed invention “describes a routing algorithm that is
based on . . . selecting and assigning an agent [in a contact center] to
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perform a task based on business performance goals and the agent’s skill and
performance of a generic task,” and that the method is “achieved by
obtaining information about the contact center’s performance goals and
about the agent profiles and then comparing the two to select an agent with
the skill proficiency to achieve the performance goal for the contact center”
— a concept that the Examiner concluded “is similar to cases relating to data
comparisons that can be performed mentally or are analogous to human
mental work such as CyberSource Corp. v. Retail Decisions, Inc.[, 654 F.3d
1366, 1370 (Fed. Cir. 2011),] which involved obtaining and comparing
intangible data” (Final Act. 4–5). The Examiner also determined that the
claims do not include additional elements that are sufficient to amount to
significantly more than the abstract idea itself (id. at 5).
After Appellant’s Appeal Brief was filed, 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, 57 (Jan. 7, 2019) (the “2019
Revised Guidance”). That guidance revised the USPTO’s examination
procedure with respect to the first step of the Mayo/Alice 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 2019 Revised Guidance, by its terms, applies to all
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applications, and to all patents resulting from applications, filed before, on,
or after January 7, 2019. Id.2,3
Independent Claims 5 and 9
Appellant argues independent claims 5 and 9 together (Appeal Br. 5–
14). We select independent claim 5 as representative. Claim 9, thus, stands
or falls with claim 5. See 37 C.F.R. §41.37(c)(1)(iv).
Step One of the Mayo/Alice Framework (2019 Revised Guidance,
Step 2A)
The first step in the Mayo/Alice framework, as mentioned above, is to
determine whether the claims at issue are “directed to” a patent-ineligible
concept, e.g., an abstract idea. Alice Corp., 573 U.S. at 217. This first step,
as set forth in the 2019 Revised Guidance (i.e., Step 2A), is 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 consider whether the claim includes

2 The Examiner, in the Answer, entered a new ground of rejection of
claims 5 and 9 under § 101 as patent ineligible (Ans. 3–5). Applying the
2019 Revised Guidance, the Examiner determined that the claims are
directed to a judicial exception, i.e., that the claims recite an abstract idea,
namely, a mental process, that is not integrated into a practical application,
and that the claims do not include additional elements that are sufficient to
amount to significantly more than the judicial exception (id.).
3 The USPTO issued an update on October 17, 2019 (the “October 2019
Update: Subject Matter Eligibility,” available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) clarifying the
2019 Revised Guidance in response to comments solicited from the public.
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additional elements, beyond the judicial exception, that “integrate the
[judicial] exception into a practical application,” i.e., that 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 (“Step 2A, Prong Two”). 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.
We are not persuaded by Appellant’s argument that the Examiner
erred in determining that claim 5 is directed to an abstract idea (Appeal
Br. 5–11). 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 5 focuses on an abstract idea, and not on any
improvement to technology and/or a technical field.
The Specification is titled “DYNAMIC WORK ASSIGNMENT
STRATEGIES BASED ON MULTIPLE ASPECTS OF AGENT
PROFICIENCY,” and describes, in the Background section, that contact
centers, such as Automatic Call Distribution or ACD systems, are employed
by many enterprises to service customer contacts (Spec. 1:15–16). Thus, “in
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present-day ACDs when the ACD system’s controller detects that an agent
has become available to handle a contact, the controller identifies all
predefined contact-handling skills of the agent . . . and delivers to the agent
the highest-priority oldest contact that matches the agent’s highest priority
skill” (id. at 1:25–29). The Specification describes that in existing skills-
based contact routing algorithms, “the skill level is normally a simple integer
assigned to each skill that the agent can perform and is a composite of all of
the various and numerous aspects of agent proficiency or expertise” (id.
at 3:6–8); however, these contact allocation algorithms can have drawbacks,
i.e., by focusing solely on a composite score, they ignore other aspects of
agent proficiency, e.g., agent effectiveness, speed, efficiency, experience,
cross-sell ability, and the like (id. at 3:25–27). “They also fail to consider
the interplay between contact center goals and aspects of agent proficiency”
(id. at 3:27–28).
The claimed invention is ostensibly intended to address these
shortcomings by providing a method for routing a work item to a servicing
destination based on various agent proficiency aspects and the current
conditions of the contact center, e.g., whether particular contact center goals
have been met (id. at 4:12 – 5:25). Consistent with this disclosure, claim 5
recites a method for servicing work items in a contact center, having a
plurality of contact center performance goals, comprising: (1) “selecting a
multi-skilled agent for servicing one of a plurality of different types of
queued work items” (step (a)); (2) determining the realization status of each
performance goal, i.e.,
determining, for each contact center performance goal, a
status of goal realization based on data related to the contact
center performance goal, wherein each of the contact center
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performance goals is based on a service level value for a set of
contact center data and is not based on a particular agent
(step (b)); (3) “after determining the status of goal realization, selecting one
of the multi-skilled agent’s skills based, at least in part, on the status of goal
realization” (step (c)); (4) selecting one of the queued work items based on
the selected skill for servicing by the multi-skilled agent, i.e.,
selecting, after selecting of the multi-skilled agent and based on
the selected skill, one of the plurality of different types of
queued work items for servicing by the multi-skilled agent,
wherein the multi-skilled agent is an agent that services the
selected queued work item
(step (d)); and (5) “servicing the selected queued work item by the multi-
skilled agent” (step (e)).
These limitations, when given their broadest reasonable interpretation,
recite assigning a contact center agent to a work item based on the agent’s
skill and current contact center conditions, i.e. the status of the center’s
performance goals. Simply put, claim 5 recites a method of managing
personal behavior or relationships or interactions between people, which is a
method of organizing human activity and, therefore, an abstract idea, similar
to other concepts that the courts have held abstract. See 2019 Revised
Guidance, 84 Fed. Reg. at 52. See also, e.g., Accenture Global Services,
GmbH v. Guidewire Software, 728 F.3d 1336, 1344 (Fed. Cir. 2013)
(generating task-based rules based on an event); In re Ferguson, 558 F.3d
1359, 1364 (Fed. Cir. 2009) (structuring a sales force or marketing
company); In re Maucorps, 609 F. 2d 481 (CCPA 1979) (using an algorithm
for determining the optimal number of visits by a business representative to
a client).
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Having concluded that claim 5 recites a judicial exception, i.e., an
abstract idea (Step 2A, Prong One), we next consider whether the claim
recites additional elements that integrate the judicial exception into a
practical application (Step 2A, Prong Two).
The only additional element recited in claim 5, beyond the abstract
idea, is a “tangible, non-transitory computer readable medium” that stores
work items as a data structure — an element that, as the Examiner
concluded, is a generic computer component (Ans. 4), and disclosed as such
in the written disclosure (see, e.g., Spec. 11:9–12, 18:2–4). We find no
indication in the Specification that the operations recited in claim 5 invoke
any assertedly inventive programming or require any specialized computer
hardware or other inventive computer components.4
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes an improvement in technology and/or a technical
field to the claimed invention or that otherwise indicates that the claimed

4 Indeed, as the Examiner observes, “claim 5 does not clearly require that
the claimed computer readable medium execute the limitations.
Accordingly, under the broadest reasonable interpretation in light of the
specification, each limitation in claim 5 could be performed by a human
operator by visually observing the claimed data structure on a computer
screen” (Final Act. 3; see also Ans. 4 (observing that “[e]ach of the above
limitations [i.e., steps (a) through (e) of claim 5] are [sic] processes that,
under its broadest reasonable interpretation, covers performance of the
limitation in the mind but for recitation of [a] generic computer
component[ ] (i.e., the data structure stored in a tangible, non-transitory
computer-readable medium of claim 5)”)).
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invention integrates the abstract idea into a “practical application,” as that
phrase is used in the 2019 Revised Guidance.5
Appellant attempts in the Appeal Brief to draw a parallel between
claim 5 and the patent eligible claims at issue in Visual Memory LLC v.
NVIDIA Corp., 867 F.3d 1253 (Fed. Cir. 2017) and Enfish, arguing that “the
specification clearly discloses that the claimed invention is directed to
specific improvements to the way computer systems operate” (Appeal
Br. 8). Appellant asserts that claim 5 recites features that improve the
servicing of work items in a contact center, including allocating work items
among contact center resources, by considering the interplay between
contact center goals and aspects of agent proficiency, and that a person of
ordinary skill in the art “would understand and appreciate how the presently
claimed inventions improve, for example, resource allocations by
dynamically and automatically applying different work item destination
routing algorithms under different contact center conditions” (id. at 8–9; see
also Reply Br. 3 (“Also, the claimed invention is directed to specific
improvements to the way computer systems operate.”)). Yet, importantly
here, there is a fundamental difference between computer functionality
improvements, on the one hand, and uses of existing computers as tools to
perform a particular task, on the other — a distinction that the Federal

5 The 2019 Revised Guidance references MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) § 2106.05(a)–(c) and (e) in describing the
considerations that are indicative that an additional element or combination
of elements integrates the judicial exception, e.g., the abstract idea, into a
practical application. 2019 Revised Guidance, 84 Fed. Reg. at 55. If the
recited judicial exception is integrated into a practical application, as
determined under one or more of these MPEP sections, the claim is not
“directed to” the judicial exception.
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Circuit applied in Enfish, in rejecting a § 101 challenge at the first stage of
the Mayo/Alice framework because the claims at issue focused on a specific
type of data structure, i.e., a self-referential table, designed to improve the
way a computer stores and retrieves data in memory, and not merely on
asserted advances in uses to which existing computer capabilities could be
put. See Enfish, 822 F.3d at 1335–36. The alleged improvements that
Appellant touts do not concern an improvement to computer capabilities but
instead relate to alleged improvements in servicing work items in a contact
center — a process in which a computer is used as a tool in its ordinary
capacity.
We also are not persuaded that there is any parallel between claim 5
and the patent-eligible claim in McRO, Inc. v. Bandai Namco Games
America, Inc., 837 F.3d 1299 (Fed. Cir. 2016) (Appeal Br. 10–11).
Appellant argues that “[l]ike McRO, the instant claims do not recite
conventional methods of servicing work items that have been used by
humans or by existing machines” (id. at 11). Yet, the claim in McRO was
not held patent eligible merely because the claim did not “recite
conventional methods of servicing work items that have been used by
humans or by existing machines.” Instead, the Federal Circuit determined
that claim 1 of the ’576 patent,6 at issue in McRO, was not directed to an
abstract idea because the claim when considered as a whole, is directed to a
technological improvement over existing, manual 3–D animation techniques,
and uses limited rules in a process specifically designed to achieve an
improved technological result relative to conventional industry practice.

6 U.S. Patent No. 6,307,576, issued October 23, 2001.
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McRO, 837 F.3d at 1316. We are not persuaded that a comparable situation
is presented here.
Responding to the Examiner’s Answer, and specifically referencing
steps (a) through (e), as recited in claim 5, Appellant argues in the Reply
Brief that these claim elements “apply a practical application” in that they
“reflect an improvement to the technical field” and that the “various
elements of claim 5 (e.g., servicing of the work items as claimed) are
necessarily rooted in computer-related technology” (Reply Br. 3–5).
Appellant, thus, maintains that by focusing on different aspects of agent
proficiency to address unmet business goals, the claimed invention improves
the servicing of work items in a contact center by dynamically and
automatically applying different work item destination routing algorithms
under different contact center conditions (id.). Yet, we are not persuaded
that allocating resources, e.g., agents, to work items in a contact center is
“necessarily rooted in computer technology” or that basing the allocation on
different contact center conditions is a technological improvement as
opposed to an improvement in a business practice.
Assigning tasks to employees with the skills needed to achieve a
business goal existed before, and still exists outside of computer technology
and computer networks. And the purported solution here of, at best, generic
computer components performing generic computer functions, is not
necessarily rooted in computer technology.
Appellant argues that the “subject matter of [the pending] claims is
specifically limited to the use of electronic contact centers and [is]
specifically limited to addressing these issues existing solely in the realm of
contact centers” (Reply Br. 5). Yet, the law is clear that limiting the use of
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an abstract idea to a particular technological environment is not enough for
patent eligibility. See Alice Corp., 573 U.S. at 222–23.
The Federal Circuit, in DDR Holdings, moreover, expressly cautioned
that “not all claims purporting to address Internet-centric challenges are
eligible for patent.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1258 (Fed. Cir. 2014). And the court contrasted the claims in DDR
Holdings to those at issue in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709
(Fed. Cir. 2014) in that, in DDR Holdings, the computer network was not
operating in its “normal, expected manner” and the claims did not “recite an
invention that is . . . merely the routine or conventional use of the Internet.”
Id. at 1258–59.
Here, we do not find, and Appellant does not identify, any analogous
modification to the routine and conventional functioning of computer
network technology. At best, the claimed invention appears to use generic
computer components to perform an abstract business practice (i.e.,
assigning employee resources to work items).
Considered in light of the Specification, the claimed invention clearly
appears focused on achieving a business objective (i.e., improving the
servicing of work items in a contact center by considering the interplay
between contact center goals and aspects of agent proficiency in allocating
resources to particular work items (see Spec. 3–4)), and not on any claimed
means for accomplishing this goal that improves technology.
We conclude, for the reasons outlined above, that claim 5 recites a
method of organizing human activity, i.e., an abstract idea, and that the
additional element recited in the claim is no more than a generic computer
component used as a tool to perform the recited abstract idea. As such, it
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does 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)).
Accordingly, we agree with the Examiner that claim 5 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 5 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 5 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether the additional elements
amount to “significantly more” than the judicial exception itself.
2019 Revised Guidance, 84 Fed. Reg. at 56.
Appellant attempts to draw an analogy between claim 5 and the
claims at issue in BASCOM Global Internet Services, Inc. v. AT&T Mobility
LLC, 827 F.3d 1341 (Fed. Cir. 2016) (Appeal Br. 11–13). Yet, we can find
no parallel between claim 5 and the claims at issue in BASCOM.
There, the Federal Circuit determined that the claims were directed to
a technology-based solution to filter Internet content that overcame existing
problems with other Internet filtering systems by taking a known filtering
solution — i.e., a “one-size-fits-all” filter at an Internet Service Provider
(“ISP”) — and making it more dynamic and efficient by providing
individualized filtering at the ISP. Id. at 1351. The court, thus, held that the
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second step of the Mayo/Alice framework was satisfied because the claimed
invention “represents a ‘software-based invention[ ] that improve[s] the
performance of the computer system itself.’” Id.
Appellant argues that, similar to the claims of BASCOM, the present
claims are directed to “a technology-based solution to improve, for example,
resource allocations by dynamically and automatically applying different
work item destination routing algorithms under different contact center
conditions” (Appeal Br. 12). But, unlike the filtering system improvements
in BASCOM that added significantly more to the abstract idea in that case,
the claimed invention here merely uses generic computing components to
implement an abstract idea, i.e., allocating contact center resources (agents)
to work items.
The Examiner determined here, and we agree, that the only claim
element beyond the abstract idea is a “tangible, non-transitory computer
readable medium” that stores work items as a data structure, i.e., a generic
computer component (Ans. 4) — a determination amply supported by, and
fully consistent with the Specification (see, e.g., Spec. 11:9–12, 18:2–4).7,8

7 The Office’s April 19, 2018 Memorandum to the Examining Corps from
Deputy Commissioner for Patent Examination Policy, Robert W. Bahr,
entitled, Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.), available at https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.PDF, expressly directs that an examiner may
support the position that an additional element (or combination of elements)
is well-understood, routine or conventional with “[a] citation to an express
statement in the specification . . . that demonstrates the well-understood,
routine, conventional nature of the additional element(s)” (id. at 3).
8 Appellant identifies steps (a) through (e) of claim 5 as elements “beyond
any judicial exception” (Reply Br. 5–6). Yet, these limitations are part of
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Appellant cannot reasonably contend, nor does Appellant, that there is
inadequate factual support for the Examiner’s finding that the operation of
this component is well-understood, routine, or conventional, where, as here,
there is nothing in the Specification to indicate that the operations recited in
claim 5 require any specialized hardware or inventive computer components
or that the claimed invention is implemented using other than a generic
computer component to perform generic computer functions. 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 v. HP, Inc.,
890 F.3d 1369, 1373 (Fed. Cir. 2018) (Moore, J., concurring) (internal
citations omitted); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d
1281, 1291 (Fed. Cir. 2018) (“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.
Accordingly, the district court did not err in determining that the asserted
claims lack an inventive concept.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 5 under 35 U.S.C. § 101. Therefore, we

the abstract idea; they are not additional elements to be considered when
determining whether claim 5 includes additional elements or a combination
of elements that is sufficient to amount to significantly more than the
judicial exception.
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sustain the Examiner’s rejection of claim 5, and claim 9, which falls with
claim 5.
Dependent Claims 6–8, 10–22, and 24
Addressing each of dependent claims 6–8, 10–22, and 24 individually,
Appellant asserts that the claim is patent eligible “for at least the same
reasons as the independent claims” and, in addition, is “necessarily rooted in
computer technology in order to overcome a problem specifically arising in
the realm of computer networks” (Appeal Br. 14–22). Paraphrasing the
claim language, Appellant also maintains that “a person of ordinary skill in
the art would understand and appreciate, [that] these [claim] limitations
advantageously provide specific and non-generic technical improvements,
for example, to resource allocations by dynamically and automatically
applying different work item destination routing algorithms under different
contact center conditions” (id. at 15–23).
Appellant’s arguments are substantially similar to the arguments
addressed above with respect to independent claim 5, and are similarly
unpersuasive. Therefore, we sustain the Examiner’s rejection of dependent
claims 6–8, 10–22, and 24 under 35 U.S.C. 101.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
5–22, 24 101 Eligibility 5–22, 24
Appeal 2019-003980
Application 13/540,906

18
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