Marcus Sacco et al.

Patent Trials and Appeals Board

Jul 18, 2019

13927742 - (D) (P.T.A.B. Jul. 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.
13/927,742 06/26/2013 Marcus Sacco 058407/433592 6295
826 7590 07/18/2019
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
EXAMINER
CHOI, PETER H
ART UNIT PAPER NUMBER
3622
NOTIFICATION DATE DELIVERY MODE
07/18/2019 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MARCUS SACCO, SHAFIQ SHARIFF,
JADAM KAHN, MIKE APARICIO, JOE BANKS,
LOGAN TYLER JENNINGS, SERGEY VARAKSIN,
DMITRII ABRAMOV, ARTEM IGNATYEV,
TANYA KOSHY, and NATHAN KOCH
____________________

Appeal 2018-0063991
Application 13/927,742
Technology Center 3600
____________________

Before JEAN R. HOMERE, CARL W. WHITEHEAD JR., and
ADAM J. PYONIN, Administrative Patent Judges.

PYONIN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Groupon, Inc., is identified as the real party in interest. Appeal Brief 2.
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STATEMENT OF THE CASE
Introduction
The Application is directed to, “in some example embodiments,
efficient management of sales calls and/or visits to nearby sales leads,
tracking of follow-up communications, sales lead planning, sales trip
planning, day planning and/or the like” (Spec. ¶ 35) in which “sales leads
may be assigned to sales resources (e.g., salespersons), so that a designated
sales resource may communicate with a provider and ultimately close a
contract to offer a promotion and maintain a business relationship enabling
future sales” (Spec. ¶ 37). Claims 1–4, 6–14, 16, 17, 20–222, and 88–90 are
pending; of these, claims 1, 10, and 20 are independent. Appeal Brief 26–
35. Claim 1 is reproduced below for reference (with emphasis added):
1. A method for mobile location based sales lead
identification and sales lead status maintenance via a plurality of
sales resources devices operative in a network, the method
comprising:
receiving a reference location indication based on at least
a real-time detected current location of a sales resource device,
wherein a geographical area is defined based on the reference
location indication;
calculating, with a processor, a forecasted demand for one
or more promotions in the geographical area, the forecasted
demand comprising at least one or more promotions and a
demanded quantity of at least a portion of the one or more
promotions;

2 We note the Appeal Brief claims appendix states “22. (Previously
Presented),” but fails to list any recited limitations with respect to claim 22.
Appeal Brief 34. Neither Appellants nor the Examiner provide any
indication that claim 22 is canceled; accordingly, we treat claim 22 as
pending and currently rejected. See Final Action 2; Appeal Brief 11, 20.
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identifying one or more providers in the geographical area
that are identified as able to supply at least a portion of the
forecasted demand for the one or more promotions;
causing a display to be altered to display provider
information for each of the one or more providers identified in
the geographical area defined based on the real-time detected
current location of the sales resource device and identified as able
to supply at least a portion of the forecasted demand for the one
or more promotions, the provider information comprising a
provider location indication, a promotion indication of a good or
service, a promotion quantity suggested for each of the providers
based on the forecasted demand, and a sales status of the sales
lead indicating a last communication with the sales lead by any
of the plurality of sales resources devices operative in the
network;
providing a list of the one or more providers in an order
of proximity to the sales resource device;
generating a next provider indication, wherein the next
provider indication provides the sales resource device with a
suggested next provider of the one or more providers to visit next
based at least in part on proximity of the sales resource device
to the suggested next provider in the geographical area;
receiving a user input via the sales resource device to
update the sales status of a particular sales lead and enter a
follow-up task associated with the particular sales lead; and
storing on a server, remote from the sales resource device,
an updated sales status of the sales lead and the follow-up task
such that the updated sales status and the follow-up task is
provided via another sales resource device and via the network.

References and Rejections
The Examiner relies on the following prior art relied in rejecting the
claims on appeal:
Hunt
Rowell
Tekwani
US 2008/0294996 A1
US 2011/0258067 A1
US 2012/0066393 A1
Nov. 27, 2008
Oct. 20, 2011
Mar. 15, 2012
Oksman US 2013/0030872 A1 Jan. 31, 2013
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Johnson US 2013/0346981 A1 Dec. 26, 2013

Claims 1–4, 6–14, 16, 17, 20–22, and 88–90 stand rejected under 35
U.S.C. § 101 as being patent ineligible. Final Action 8.
Claims 1–4, 6–14, 16, 17, and 20–22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rowell, Hunt, Tekwani, and Oksman.
Final Action 15.
Claims 88–90 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rowell, Hunt, Tekwani, Oksman, and Johnson. Final
Action 45–48.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments. Arguments Appellants could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We adopt the
Examiner’s findings and conclusions as our own, and we add the following
primarily for emphasis.

A. § 101
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101, because “the claimed invention is directed to a judicial
exception (i.e., law of nature, natural phenomenon, or abstract idea) without
significantly more.” Final Action 8; see also Alice Corp. Pty. Ltd. v. CLS
Bank Int’l, 573 U.S. 208, 217 (2014) (Describing the two-step framework
“for distinguishing patents that claim laws of nature, natural phenomena, and
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abstract ideas from those that claim patent-eligible applications of those
concepts.”).
After the docketing of this Appeal, the USPTO published revised
guidance on the application of § 101 (“Guidance”). See USPTO’s 2019
REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Memorandum”). Under Step 2A of the Guidance, the office
looks to whether the claim recites:
(1) Prong One: 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) Prong Two: additional elements that integrate the judicial
exception into a practical application (see MPEP § 2106.05(a)–
(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then look, under Step
2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is 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, 84 Fed. Reg. at 56.
Appellants do not separately argue the claims. See Appeal Brief 20–
25. We select claim 1 as representative. We agree with the Examiner’s
determination that claim 1 is not patent eligible (see Final Action 8–14;
Answer 19–30); we add the following primarily for emphasis and
clarification with respect to the Guidance.
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I. Step 2A, Prong One
Pursuant to the Guidance, we agree with the Examiner that claim 1
recites an abstract concept. See Answer 19–20. The claim recites a method
for managing “sales lead[s],” which is directing salespersons to contact
various commercial enterprises regarding promotions. Claim 1; see also
Spec. ¶ 36. That is, the claim recites the abstract idea of organizing human
activity (i.e, organizing the human activity of the salespersons). See 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 is not
patent eligible); see also Glengarry Glen Ross (New Line Cinema 1992)
Synopsis, IMDB, https://www.imdb.com/title/tt0104348/
plotsummary?ref_=tt_ql_stry_3#synopsis (last visited June 21, 2019)
(Describing a system of assigning leads, in which the sales staff “start
complaining about the type of potential customers, or leads, they have been
getting from their sales company.”).
Such determination accords with our review pursuant to the Guidance.
Claim 1 recites the following limitations:
receiving a reference location indication based on at least
a real-time detected current location . . ., wherein a geographical
area is defined based on the reference location indication;
calculating . . . a forecasted demand for one or more
promotions in the geographical area, the forecasted demand
comprising at least one or more promotions and a demanded
quantity of at least a portion of the one or more promotions;
identifying one or more providers in the geographical area
that are identified as able to supply at least a portion of the
forecasted demand for the one or more promotions;
. . . display[ing] provider information for each of the one
or more providers identified in the geographical area defined
based on the real-time detected current location . . . and identified
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as able to supply at least a portion of the forecasted demand for
the one or more promotions, the provider information comprising
a provider location indication, a promotion indication of a good
or service, a promotion quantity suggested for each of the
providers based on the forecasted demand, and a sales status of
the sales lead indicating a last communication with the sales lead
. . . ;
providing a list of the one or more providers in an order of
proximity . . .;
generating a next provider indication, wherein the next
provider indication provides . . . a suggested next provider of the
one or more providers to visit next based at least in part on
proximity . . . to the suggested next provider in the geographical
area;
receiving a user input . . . to update the sales status of a
particular sales lead and enter a follow-up task associated with
the particular sales lead; and
storing . . . an updated sales status of the sales lead and the
follow-up task such that the updated sales status and the follow-
up task is provided . . . .
These are steps of “advertising, marketing or sales activities or behaviors;
business relations” and “following rules or instructions,” which are
examples of “commercial or legal interactions” and “managing personal
behavior or relationships or interactions between people” under the
Guidance. See Memorandum, 84 Fed. Reg. at 52. Accordingly, claim 1
recites the abstract concept of “[c]ertain methods of organizing human
activity.” Id.
Consequently, claim 1 “recites a judicial exception [and] . . . requires
further analysis in Prong Two” of the Guidance. Memorandum, 84 Fed.
Reg. at 54.

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II. Step 2A, Prong Two
Appellants argue claim 1 is not directed to an abstract idea, because
the “claims address problems specifically arising in user interfaces for the
provision of real-time updates to a sales resource device regarding nearby
providers that meet a forecasted demand relating to promotions,” by
“provid[ing] an interface that enables real-time location based updates to the
real-time location and relevancy of nearby providers and their ability to fulfil
demand.” Appeal Brief 22–23; see also Appeal Brief 24; Reply Brief 10.
We are not persuaded that “the pending claims are directed to far
more than the . . . idea presented in the Office Action.” Appeal Brief 22.
Other than broadly reciting, at a high level of generality, using “a display”
and “receiving a user input via the sales resource device,” claim 1 provides
no detailed limitations regarding a user interface that would integrate the
judicial exception into a practical application. See Memorandum, 84 Fed.
Reg. at 54 (“more than a drafting effort designed to monopolize the judicial
exception.”). The recited limitations do not reflect an improvement in the
functioning of a computer or other technology or technical field. See
Memorandum, 84 Fed. Reg. at 55; cf. Trading Techs. Int’l, Inc. v. IBG LLC,
No. 2017-2257, 2019 WL 1716242, at *3 (Fed. Cir. Apr. 18, 2019) (“This
invention makes the trader faster and more efficient, not the computer. This
is not a technical solution to a technical problem.”). Further, the limitations
regarding the real time location of the salesperson are not additional
elements of the claim; rather, these limitations are part of the abstract idea of
organizing human activity as discussed above. See Memorandum, 84 Fed.
Reg. at 54–55 (“any additional elements recited in the claim beyond the
judicial exception.”).
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We agree with the Examiner that the additional elements, individually
and in combination, “merely include[] instructions to implement an abstract
idea on a computer, or merely use[] a computer as a tool to perform an
abstract idea.” Memorandum, 84 Fed. Reg. at 55; see also Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir.
2015) (“[M]erely adding computer functionality to increase the speed or
efficiency of the process does not confer patent eligibility on an otherwise
abstract idea.”). Accordingly, we determine claim 1 does not integrate the
judicial exception into a practical application. See Memorandum, 84 Fed.
Reg. at 54. As the “claim recites a judicial exception and fails to integrate
the exception into a practical application” (id. at 51), “the claim is directed
to the judicial exception” (id. at 54).

III. Step 2B
Appellants argue “the Office has failed to address the additional claim
features recited in the claims that go beyond the alleged abstract idea, and
has therefore failed to explain why the concepts, as a whole, are thought to
be routine and conventional.” Reply Brief 9. Particularly, Appellants
contend “the Office has failed to satisfy its burden of making sufficient
factual findings concerning all of the claim elements that are not part of the
alleged abstract idea.” Id.
We are not persuaded the Examiner’s rejection is in error, pursuant to
Step 2B of the Guidance. Other than the recited judicial exception, claim 1
recites the use of hardware limitations variously comprising “sales resource
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devices,”3 a “processor,” a “display,” a “network,” and a “server.” These
additional elements are all recited at a high level of generality and are
implemented by well-understood, routine, and conventional components.
See Answer 25–28; Specification ¶¶ 34, 50, 96–106, 119–120; see also
Alice, 573 U.S. at 226 (“Nearly every computer will include a
‘communications controller’ and ‘data storage unit’ capable of performing
the basic calculation, storage, and transmission functions required by the
method claims”); OIP Techs. v. Amazon.com, 788 F.3d 1359, 1363 (Fed.
Cir. 2015) (claims reciting, inter alia, sending messages over a network,
gathering statistics, using a computerized system to automatically determine
an estimated outcome, and presenting offers found to merely recite “well-
understood, routine conventional activities”). We agree with the Examiner
that the additional elements, individually and combination, do not provide
for an inventive concept that is significantly more than the recited judicial
exception. See Final Act 10–11; Memorandum, 84 Fed. Reg. at 56.
Accordingly, we sustain the Examiner’s patent eligibility rejection of
independent claim 1.

B. § 103
I. Independent Claim 1
Appellants argue the Examiner’s obviousness rejection of independent
claim 1 is in error, because the Examiner’s proffered reasoning, “‘to increase
the scope and integration information derived from leads[,]’ has no relation
to any recognized problem, deficiency, or purpose of any of the cited

3 A Sale Resource Device may be implemented as a cellular phone. See
Specification ¶ 104.
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references, and/or the pending claims,” and thus “lacks sufficient basis as
why one skilled in the art would have been motived to combine the
references.” Appeal Brief 14. Appellants further contend that all of the
claim limitations are not obvious in view of the cited references:
the cited references fail to teach or suggest, “providing a list of
the one or more providers in an order of proximity to the sales
resource device,” and “generating a next provider indication,
wherein the next provider indication provides the sales resource
device with a suggested next provider of the one or more
providers to visit next based at least in part on proximity of the
sales resource device to the suggested next provider in the
geographical area,” as set forth by the independent claims in
some form or another.

Id. at 16.
We are not persuaded the Examiner’s rejection is in error.
Appellants’ arguments against the Examiner’s rationale presume only a
limited range of problems to be solved by the ordinarily skilled artisan can
supply the reasoning for obviousness. See Appeal Brief 14–15. As the
Supreme Court instructs us, “[u]nder the correct analysis, any need or
problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007) (emphasis added). Furthermore, this is only “[o]ne of the ways in
which a patent’s subject matter can be proved obvious.” Id. at 419–420.
“A person of ordinary skill is also a person of ordinary creativity, not an
automaton,” and “familiar items may have obvious uses beyond their
primary purposes, and in many cases a person of ordinary skill will be able
to fit the teachings of multiple patents together like pieces of a puzzle.” Id.
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In the instant case, we agree with the Examiner that one of ordinary
skill would combine the references in the manner claimed. See Final Action
15–30. Rowell, as correctly cited by the Examiner, is directed to a system
for “distributing sales leads to salespeople” (Rowell ¶ 2), including
“teach[ing] real-time location of a sales resource device, lists and location of
providers within a relevant geographic area” (Answer 14). See Rowell Figs
7–9 ¶ 146. The Examiner finds, and we agree, that one of ordinary skill
would modify Rowell’s system with the additional functionality claimed, in
light of the teachings of Hunt, Tekwani, and Oksman, for the benefits taught
by the references and in order to increase the scope and integration
information derived from leads. See Answer 5, 9–10; Hunt ¶193 (“give a
list of nearest sample stores”); Tekwani (“system for real time delivery of
context based information”); Oksman ¶ 60 (“tools to customize a sales
information packet”). We find the Examiner’s reasoning to be sufficient to
support the legal conclusion of obviousness, as this is a case where the
ordinary artisan would fit the teachings of the cited references together like
pieces of a puzzle. See Answer 13–17.
Accordingly, we are not persuaded the Examiner errs in finding the
limitations of claim 1 to be obvious in view of the combined teachings of
Rowell, Hunt, Tekwani, and Oksman.

II. Dependent Claim 88
Appellants argue the Examiner’s obviousness rejection of dependent
claim 88 is in error because “Johnson fails to teach or suggest the features”
of the claim. Appeal Brief 20. Particularly, Appellants contend the
following:
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In Johnson, the tasks are created by the user, such that the display
of task indicators on a map are indeed trivial in comparison to
the benefits provided by embodiments of claims 88-90. The
claims, in contrast to Johnson, provide indicators representative
of providers identified in the geographical area and identified as
able to supply at least the portion of the forecasted demand for
the one or more promotions.
Id.
We are not persuaded the Examiner’s rejection is in error. Appellants
argue the teachings of Johnson individually, whereas the rejection is based
on the combined teachings of the cited references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981) (“[O]ne cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references.”); Answer 18 (“Appellant’s argument ignores
that Johnson is included for a very limited purpose where the majority of the
limitations Appellant references as not being taught by Johnson, were in fact
already taught by the combination of the other prior art references as
indicated in the prior Office Action.”). Here, the Examiner finds, and
Appellants do not challenge, that Rowell and Hunt teach displaying
indicators representative of suitable providers based on proximity. See Final
Action 45–46; Rowell ¶ 41; Hunt ¶¶ 193–24, 285–292. Nor do Appellants
challenge the Examiner’s finding that one of ordinary skill would modify
Rowell and Hunt to display “numerical indicators,” as taught by Johnson.
Final Action 47; Answer 18–19; Johnson ¶ 49.
Accordingly, we are not persuaded the Examiner errs in finding the
combination of cited references teaches or suggests the limitations of
dependent claim 88.

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CONCLUSION
We sustain the Examiner’s 35 U.S.C. § 101 rejection of independent
claim 1 and the Examiner’s 35 U.S.C. § 103 rejection of independent claim
1 and dependent claim 88. Appellants advance no further argument on the
remaining claims. See Appeal Brief 6–11. Accordingly, we sustain the
Examiner’s rejections of these claims for the same reasons discussed above.

DECISION
The Examiner’s decision rejecting claims 1–4, 6–14, 16, 17, 20–22,
and 88–90 is affirmed.
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)(iv).

AFFIRMED