James Neal. Richter

Patent Trials and Appeals Board

Dec 18, 2019

13961509 - (D) (P.T.A.B. Dec. 18, 2019)

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.
13/961,509 08/07/2013 JAMES NEAL RICHTER ORA120925-US-
DIV-2(O-491)
3065
51444 7590 12/18/2019
Kraguljac Law Group/Oracle
4700 Rockside Road
Summit One, Suite 510
Independence, OH 44131
EXAMINER
SINGH, GURKANWALJIT
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
12/18/2019 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):
DDay@KragLaw.com
MPusti@KragLaw.com
PTOMail@KragLaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES NEAL RICHTER
___________

Appeal 2018-000768
Application 13/961,509
Technology Center 3600
____________

Before CARL W. WHITEHEAD JR., JON M. JURGOVAN and
SCOTT RAEVSKY, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 is appealing the final rejection of claims 1–12 under
35 U.S.C. § 134(a). Appeal Brief 3. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Oracle International Corporation as the real
party in interest. Appeal Brief 3.
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Introduction
The invention is directed to a “sales automation system and a
method for scoring sales representative performance and forecasting future
sales representative performance.” Specification ¶ 8.
Representative Claim
1. A sales automation method comprising:
generating, by a computer system, learned sales data
modeled from raw sales records of a subject sales person using
machine learning queuing model techniques;
storing, by the computer system, the learned sales data in
a central data repository of a business;
accessing, by the computer system, the central data
repository of the business, the central data repository having:
time stamped cached sales records,
data representing goal sales data for a top-
performing sales person,
the learned sales data, and
performance metrics of the subject sales person;
accessing, by a computer system, a repository of raw
sales records including raw sales related data of the subject
sales person;
deriving, by the computer system, sales data forecasts of
the business for a goal-revenue sales metric based on the data
representing goal sales data for the top-performing sales person,
the learned sales data, the performance metrics, and the raw
sales records;
defining, by the computer system, a desired sales goal for
the business relative to the forecasted goal-revenue sales metric;
receiving, by the computer system, an input scenario that
specifies a sequence of operations to be performed utilizing the
learned sales data, the raw sales records, and the desired sales
goal; and
deriving, by the computer system using the input
scenario, a revenue goal for the sales person required to achieve
the desired sales goal.
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Rejection on Appeal2
Claims 1–12 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more.
Final Action 9–12.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed April 12, 2017), the Reply Brief (filed
October 30, 2017), the Final Action (mailed September 16, 2016) and the
Answer (mailed August 31, 2017), for the respective details.
35 U.S.C. § 101 Rejection
The Examiner determines the claims are patent ineligible under
35 U.S.C. § 101 because the claims are directed to an abstract idea
comprising commercial practices wherein a “process of generating a learned
sales model modeled from raw sales records, deriving sales data forecasts,
defining a desired sales goal, and deriving a revenue goal for the sales
person all describe the abstract idea.” Final Action 9; see Alice Corp. v. CLS
Bank Int’l, 573 U.S. 208, 217 (2014) (describing the two-part framework
“for distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts”).
After the mailing of the Answer and the filing of the Briefs in this
case, the USPTO published revised guidance on the application of § 101.

2 The 35 U.S.C. § 112 and § 103 rejections of claims 1–12 were withdrawn
by the Examiner. See Final Rejection 2.
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2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (hereinafter “Memorandum”). Under the Memorandum, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP3 § 2106.05(a)–(c), (e)–(h) (9th
ed. 2018)).
Only if a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, do we then look to whether the
claim:
(3) adds a specific limitation beyond the judicial exception that
are not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum.
We are not persuaded the Examiner’s rejection is in error. We adopt
the Examiner’s findings and conclusions as our own and we add the
following primarily for emphasis and clarification with respect to the
Memorandum.
Appellant argues the pending claims are not directed to an abstract
idea because, “[t]he claims, as presented, do not claim a mere abstract idea
and instead are directed to proper statutory subject matter.” Appeal Brief 6.

3 Manual of Patent Examining Procedure.
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We agree with the Examiner’s determination that the claims are directed to
an abstract idea. See Final Action 9.
Alice/Mayo—Step 1 (Abstract Idea)
Step 2A–Prongs 1 and 2 identified in the Revised Guidance
Step 2A, Prong One
The Abstract discloses:
A sales automation system and method, namely a system and
method for scoring sales representative performance and
forecasting future sales representative performance. These
scoring and forecasting techniques can apply to a sales
representative monitoring his own performance, comparing
himself to others within the organization (or even between
organizations using methods described in application),
contemplating which job duties are falling behind and which are
ahead of schedule, and numerous other related activities.

The Specification discloses:
One aspect of the inventive subject matter includes a sales
automation system and a method for scoring sales representative
performance and forecasting future sales representative
performance. These scoring and forecasting techniques can
apply to a sales representative monitoring his own performance,
comparing himself to others within the organization (or even
between organizations using methods described in application),
contemplating which job duties are falling behind and which are
ahead of schedule, and numerous other related activities.
Similarly, with the sales representative providing a full set of
performance data, the system is in a position to aid a sales
manager identify which sales representatives are behind others
and why, as well as help with resource planning should
requirements, such as quotas or staffing, change.
Specification ¶ 8.
Claim 1 recites a “sales automation method” wherein:
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1. generating, by a computer system, learned sales data modeled
from raw sales records of a subject sales person using machine
learning queuing model techniques;
2. deriving, by the computer system, sales data forecasts of the
business for a goal-revenue sales metric based on the data
representing goal sales data for the top-performing sales person,
the learned sales data, the performance metrics, and the raw
sales records;
3. defining, by the computer system, a desired sales goal for the
business relative to the forecasted goal-revenue sales metric;
4. receiving, by the computer system, an input scenario that
specifies a sequence of operations to be performed utilizing the
learned sales data, the raw sales records, and the desired sales
goal; and
5. deriving, by the computer system using the input scenario, a
revenue goal for the sales person required to achieve the desired
sales goal.
These steps recite fundamental economic principles or practices
and/or commercial or legal interactions; thus, the claim recites “certain
methods of organizing human activity,” an abstract idea. See Memorandum,
Section I (Groupings of Abstract Ideas); see also Specification ¶¶ 8–13. Our
reviewing courts have found claims to be directed to abstract ideas when
they recited similar subject matter. See buySAFE, Inc. v. Google, Inc., 765
F.3d 1350, 1355 (Fed. Cir. 2014) (holding that concept of “creating a
contractual relationship—a ‘transaction performance guaranty’” is an
abstract idea); In re Ferguson, 558 F.3d 1359, 1364 (Fed. Cir. 2009)
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(holding methods “directed to organizing business or legal relationships in
the structuring of a sales force (or marketing company)” to be ineligible);
Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378
(Fed. Cir. 2017) (holding that sequence of data retrieval, analysis,
modification, generation, display, and transmission was abstract).
Therefore, we conclude the claims recite an abstract idea pursuant to Step
2A, Prong One of the Guidance. See Memorandum, Section III(A)(1)
(Prong One: Evaluate Whether the Claim Recites a Judicial Exception).
Step 2A, Prong Two
Under Prong Two of the Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception
into a practical application of the exception.” Further, a “claim that
integrates a judicial exception into a practical application will 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.” Memorandum, Section
III(A)(2).
We acknowledge that some of the considerations at Step 2A, Prong 2,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
guidance). For purposes of maintaining consistent treatment within the
Office, we evaluate them under Step 1 of Alice (Step 2A of the Office
guidance). See Memorandum at 55 n.25, 27–32.
Appellant contends that in, “DDR Holdings, LLC v. Hotels.com, L.P.,
[773 F.3d 1245, 1259 (Fed. Cir. 2014)] the Federal Circuit emphasized that
claims that do not preempt every application of an idea, and particularly
claims that provide a technical solution to a technical problem are patent
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eligible under § 101.” Appeal Brief 8. Appellant argues, “[a]s such, even if
the claims are considered to be directed to the alleged abstract idea, the
claims do not attempt to preempt every application of the allegedly abstract
idea of ‘deriving a revenue goal for a sales person.’” Appeal Brief 9.
The U.S. Supreme Court has described “the concern that drives this
exclusionary principle [i.e., the exclusion of abstract ideas from patent
eligible subject matter] as one of pre-emption.” Alice, 573 U.S. at 216.
However, characterizing preemption as a driving concern for patent
eligibility is not the same as characterizing preemption as the sole test for
patent eligibility. As our reviewing court has explained, “[t]he Supreme
Court has made clear that the principle of preemption is the basis for the
judicial exceptions to patentability,” and “[f]or this reason, questions on
preemption are inherent in and resolved by the § 101 analysis.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
(citing Alice, 573 U.S. at 216). And, although “preemption may signal
patent ineligible subject matter, the absence of complete preemption does
not demonstrate patent eligibility.” Id. Moreover, “[w]here a patent’s
claims are deemed only to disclose patent ineligible subject matter under the
[Alice/Mayo] framework . . ., preemption concerns are fully addressed and
made moot.” Id.; see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1362–63 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 701 (2015)(“[T]hat
the claims do not preempt all price optimization or may be limited to price
optimization in the e-commerce setting do not make them any less
abstract.”).
Further, we find Appellant’s claims are distinguished from those
claims that our reviewing court has found to be patent eligible by virtue of
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reciting technological improvements to a computer system. See, e.g., DDR
Holdings, 773 F.3d at 1249, 1257 (holding that claims reciting computer
processor for serving “composite web page” were patent eligible because
“the claimed solution is necessarily rooted in computer technology in order
to overcome a problem specifically arising in the realm of computer
networks”); Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259
(Fed. Cir. 2017) (holding that claims directed to “an improved computer
memory system” having many benefits were patent eligible).
In McRO4, the Federal Circuit concluded that the claim, when
considered as a whole, was directed to a “technological improvement over
the existing, manual 3-D animation techniques” through the “use [of] limited
rules . . . specifically designed to achieve an improved technological result in
conventional industry practice.” McRO, 837 F.3d at 1316.
Specifically, the Federal Circuit found that the claimed rules allowed
computers to produce accurate and realistic lip synchronization and facial
expressions in animated characters that previously could only be produced
by human animators; and the rules were limiting because they defined
morph weight sets as a function of phoneme sub-sequences. McRO, 837 F.3d
at 1313.
We find no evidence of record here that the present situation is like the
one in McRO where computers had been unable to make certain subjective
determinations, e.g., regarding morph weight and phoneme timings, which
could only be made prior to the claimed invention by human animators. The
Background section of one of the patents at issue in McRO, Rosenfeld (US

4 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1303 (Fed.
Cir. 2016).
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Patent 6,307,576 B1; issued Oct. 23, 2001), includes a description of the
admitted prior art method and the shortcomings associated with that prior
method. See McRO, 837 F.3d at 1303–06. There is no comparable
discussion in Appellant’s Specification or elsewhere of record. See Appeal
Brief 8–10. Further, as the Federal Circuit has explained, a “claim for a new
abstract idea is still an abstract idea.” Synopsis, Inc. v. Mentor Graphics
Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). Even assuming the technique
claimed was “[g]roundbreaking, innovative, or even brilliant,” that would
not be enough for the claimed abstract idea to be patent eligible. See Ass’n
for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013).
Subsequently, we do not find Appellant’s arguments persuasive
because the claims utilize a consumer’s personal computing device such as a
smart phone without any improvement to the functioning of the devices
themselves. See Specification ¶¶ 30–37; see also Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016) (“[W]e find it relevant to
ask whether the claims are directed to an improvement to computer
functionality versus being directed to an abstract idea . . . the focus of the
claims is on the specific asserted improvement in computer capabilities (i.e.,
the self-referential table for a computer database) or, instead, on a process
that qualifies as an ‘abstract idea’ for which computers are invoked merely
as a tool.”). The claims do not recite an additional element or elements that
reflect an improvement in the functioning of a computer, or an improvement
to other technology or technical field. See Alice, 573 U.S. at 222 (“In
holding that the process was patent ineligible, we rejected the argument that
‘implement[ing] a principle in some specific fashion’ will ‘automatically
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fal[l] within the patentable subject matter of § 101.’” (Alterations in
original) (quoting Parker v. Flook, 437 U.S. 584, 593 (1978))).
Accordingly, we determine the claims do not integrate the judicial
exception into a practical application. See Memorandum, Section III(A)(2)
(Prong Two: If the Claim Recites a Judicial Exception, Evaluate Whether the
Judicial Exception Is Integrated Into a Practical Application).

Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
Step 2B
Next, we determine whether the claims include additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 217–18 (quoting Mayo,
566 U.S. at 72–73). Appellant contends, “even if the claims are considered
to be directed to the alleged abstract idea, the claims do not attempt to
preempt every application of the allegedly abstract idea of ‘deriving a
revenue goal for a sales person’” and “[t]his is exemplified by the fact that
none of the claims 1 - 12 currently face rejections on § 102 or § 103
grounds.” Appeal Brief 9. We do not find Appellant’s preemption argument
persuasive nor do we find Appellant’s novelty argument persuasive for the
reason we stated above.
Appellant concludes, “[t]his is clear evidence that the claims require
‘significantly more’ than the alleged abstract idea in contradiction to the
assertions made in the Final Office Action. Final Office Action, pp. 6 - 7 and
9 - 10.” Appeal Brief 9. The Examiner determines:
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Claims 1-12 do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the steps of storing the learned sales model in
a central repository, accessing a central database, receiving an
input scenario and accessing a repository of raw sales records
merely recite insignificant presolution data gathering activity.
Final Action 9.
The Examiner also determines, “[t]he generic computer simply
performs generic computer functions of receiving and processing data.
Generic computers performing generic computer functions, alone, do not
amount to significantly more than the abstract idea.” Final Action 9–10. We
agree with the Examiner’s findings and find that the claims do not recite
additional elements that would have rendered the claim patent eligible. See
Memorandum, Section III(B); see Alice (“we consider the elements of each
claim both individually and ‘as an ordered combination’” to determine
whether the claim includes “significantly more” than the ineligible concept);
see also BASCOM5 (“an inventive concept can be found in the non-
conventional and non-generic arrangement of known, conventional
pieces.”).
Accordingly, we conclude claims 1–12 are directed to a fundamental
economic practice, which is one of certain methods of organizing human
activity identified in the Memorandum and thus an abstract idea wherein the
claims do not recite limitations that amount to significantly more than the
abstract idea itself. We sustain the Examiner’s § 101 rejection of claims 1–
12.
CONCLUSION

5 BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, No. 15-
1763 (Fed. Cir. June 27, 2016).
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In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–12 101 Eligibility 1–12

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED