Microsoft Technology Licensing, LLC

Patent Trials and Appeals Board

Jul 30, 2021

2021000967 (P.T.A.B. Jul. 30, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/481,776 04/07/2017 Jaskaran Singh 401941-US-NP 1153
69316 7590 07/30/2021
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
STIVALETTI, MATHEUS R
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
07/30/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
chriochs@microsoft.com
jkarr@microsoft.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JASKARAN SINGH and DIPAK S. PAWAR
____________

Appeal 2021-000967
Application 15/481,776
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, JAMES P. CALVE, and AMEE A. SHAH,
Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection2 of claims 1–19. We have jurisdiction under
35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Microsoft Technology Licensing,
LLC, as the real party in interest. (Appeal Br. 3).

2 All references to the Final Office Action refer to the Final Office Action
mailed on February 6, 2020.
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SUMMARY OF DECISION
We affirm.
THE INVENTION
Appellant states the invention relates to “calendar operations . . .
scheduling operations, such as scheduling meetings for one or more
attendees, scheduling appointments, etc.” Spec. ¶ 1.
Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A computing system, comprising:
a calendar system configured to:
receive scheduling inputs;
generate, based on the scheduling inputs, calendar data
representing calendar items on a user calendar corresponding to
a user; and
store the calendar data in a data store associated with the
calendar system;
a scheduling system configured to:
receive, from a requesting system, a scheduling request
for the user;
access the calendar data to identify availability of the
user during a given time frame identified by the scheduling
request; and
send a free/busy indicator, to the requesting system, that
notifies the requesting system of the availability of the user
during the given time frame; and
a free/busy listening system configured to:
receive the given time frame;
access the calendar system to detect a change in the user
calendar during the given time frame; and
send a change signal that notifies the requesting system
that the availability of the user during the given time frame has
changed.

Appeal Br. 32 (Claims App.).
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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Claims 1–19 are rejected under 35 U.S.C. §101 because the claimed
invention is directed to non-statutory subject matter3.
Claims 1–19 are rejected under 35 U.S.C. § 103 as being obvious by
the combination of Sundstrom (US 2008/0155404 A1, published June 26,
2008) in view of Wang et al. (US 2016/0350719 A1, published Dec. 1,
2016).
FINDINGS OF FACT
We adopt the Examiner’s findings as set forth on pages 6–10 in the
Final Office Action and on pages 4–7 in the Examiner’s Answer, concerning
only the 35 U.S.C. § 101 rejection.
ANALYSIS
35 U.S.C. § 101 REJECTION
We will affirm the rejection of claims 1–19 under 35 U.S.C. § 101.
The Appellant argues claims 1–19 as a group. Appeal Br. 5–15. We
select claim 1 as the representative claim for this group, and so the
remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv)
(2015).
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include

3 The Examiner withdraws the part of the 35 U.S.C. § 101 Rejection which
addresses “software per se.” (Answer 3).
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implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed to.”
See id. at 219 (“On their face, the claims before us are drawn to the concept
of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “a claim drawn to subject matter otherwise
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statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment.”
Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace
that an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
“A claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
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(“Guidance”).4 “All USPTO personnel are, as a matter of internal agency
management, expected to follow the guidance.” Id. at 51;5 see also October
2019 Update at 1.
Under the 2019 Revised Guidance, 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).6
Guidance, 84 Fed. Reg. at 52–55.

4 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
5 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) § 2106.04 and also supersedes all versions of the
USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.”
See Guidance, 84 Fed. Reg. at 51 (“Eligibility-related guidance issued prior
to the Ninth Edition, R-08.2017, of the MPEP (published Jan. 2018) should
not be relied upon.”). Accordingly, Appellant’s arguments challenging the
sufficiency of the Examiner’s rejection will not be addressed to the extent
those arguments are based on now superseded USPTO guidance.
6 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54–
55.
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Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we 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.
Guidance, 84 Fed. Reg. at 52–56. The U.S. Court of Appeals for the Federal
Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter
to claims, considered in light of the [S]pecification, 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 Enfish,
822 F.3d at 1335–36.
In so doing, as indicated above, we apply a “directed to” two prong
test: 1) evaluate whether the claim recites a judicial exception, and 2) if the
claim recites a judicial exception, evaluate whether the claim “appl[ies],
rel[ies] on, or use[s] 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.” Guidance, 84
Fed. Reg. at 53; see also MPEP §§ 2106.04–2106.05.
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The Specification states:
Scheduling a meeting with a number of different attendees can
present problems. For instance, in one scenario, the user who is
scheduling the meeting (the meeting organizer) often needs to
access the calendar data for the various attendees in an attempt
to identify a free time during a designated time frame. By way
of example, if a meeting organizer wishes to schedule a meeting
with three other users on Monday next week, then the meeting
organizer often needs to access the calendar data for the other
three users, corresponding to Monday next week, in an attempt
to identify a time when all of the attendees are free for the
duration of the meeting. This can be time consuming and
cumbersome. Similarly, if no free times are available when the
meeting organizer first checks, then the meeting organizer often
needs to continue to check back with the calendars for the other
attendees to see whether any changes have been made so that a
free time opens up during the desired time frame.
Spec. ¶ 3.
Claim 1 recites in pertinent part:
[R]eceive scheduling inputs; generate, based on the scheduling
inputs, calendar data representing calendar items on a user
calendar corresponding to a user; and store the calendar data in a
data store…: receive, …a scheduling request for the user;
access the calendar data to identify availability of the user during
a given time frame identified by the scheduling request; and send
a free/busy indicator,…, that notifies …of the availability of the
user during the given time frame; and …: receive the given time
frame; …detect a change in the user calendar during the given
time frame; and …notif[y]…that the availability of the user
during the given time frame has changed.

The Examiner found claim 1 is directed to “Certain Methods Of
Organizing Human Activity,” specifically, “managing personal behavior or
relationships or interactions between people (including social activities,
teaching, and following rules or instructions).” Final Act. 7–8.
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Accordingly, all this intrinsic evidence shows that claim 1 recites a
away of determining availability of a person/attendee during a given time
frame identified by a scheduling request. This is consistent with the
Examiner’s determination. Scheduling a meeting between people or would–
be attendees is a form of managing personal behavior or interactions because
it fixes a date and time certain for people to meet. Guidance, 84 Fed. Reg.
at 52.
In addition, we find that the verbs identified above in italics in the
truncated version of claim 1 are mental steps because they mimic human
thought processes, perhaps with paper and pencil, where the data
interpretation is perceptible only in the human mind. See In re TLI
Commc’ns Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning
IP, v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016).
The limitation “send a change signal that notifies the requesting system
that the availability of the user during the given time frame has changed,” is
considered an outputting result step considered insignificant extra-solution
activity, at least as to our mental process finding. See In re TLI Commc’ns,
823 F.3d at 611–12; see also Bilski, 561 U.S. at 610–11 (“Flook stands for
the proposition that the prohibition against patenting abstract ideas ‘cannot
be circumvented by attempting to limit the use of the formula to a particular
technological environment’ or adding ‘insignificant post solution activity.”’)
(quoting Diehr, 450 U.S. at 191–92).
Turning to the second prong of the “directed to” test, claim 1 only
generically requires a calendar system, a scheduling system, and a free/busy
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listening system.7 These components are described in the Specification at a
high level of generality. See Spec. ¶¶ 16–20, Figs. 1 and 2. We fail to see
how the generic recitations of these most basic computer components and/or
of a system so integrates the judicial exception as to “impose[] a meaningful
limit on the judicial exception, such that the claim is more than a drafting
effort designed to monopolize the judicial exception.” Guidance, 84 Fed.
Reg. at 53.
Thus, we find that the claims recite the judicial exception of a certain
method of organizing human activity and a mental process.
That the claims do not preempt all forms of the abstraction or may be
limited to meeting coordination, does not make them any less abstract. See
OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir.
2015) (“And that 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.”).
Turning to the second step of the Alice analysis, because we find that
the claims are directed to abstract ideas/judicial exceptions, the claims must
include an “inventive concept” in order to be patent-eligible, i.e., there must
be an element or combination of elements sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73).

7 Although the preamble of claim 1 recites “a computer system,” it not
subsequently used in the body of the claim. Pitney Bowes, Inc. v. Hewlett-
Packard Co., 182 F.3d 1298, 1305, 1306 (Fed. Cir. 1999). Since the body of
the claim does not incorporate the term “computer system,” we do not count
it as one of the device limitations of claim 1.
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Concerning this step the Examiner found the following:
[C]laim 1 does not include additional elements that are sufficient
to amount to significantly more than the judicial exception
because the additional elements when considered both
individually and as an ordered combination do not amount to
significantly more than the abstract idea.
Final Act. 9. We agree with the Examiner. “[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 to retrieve, select, and apply decision criteria to data and modify
the data as a result amounts to electronic data query and retrieval—one of
the most basic functions of a computer. In short, each step does no more
than require a generic computer to perform generic computer functions. The
claims do not, for example, purport to improve the functioning of the
computer itself. The Specification spells out different generic equipment
and parameters that might be applied using this concept and the particular
steps such conventional processing would entail based on the concept of
information access under different scenarios. See, e.g., Spec. ¶¶ 16–20,
Figs. 1 and 2. Thus, the claims at issue amount to nothing significantly
more than instructions to apply the abstract idea 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.
Considered as an ordered combination, the computer components of
Appellant’s claims add nothing that is not already present when the steps are
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considered separately. The sequence of data reception-analysis
(receive/generate/store/receive/access/send/receive/access/notify) and
storing is equally generic and conventional or otherwise held to be abstract.
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)
(holding that sequence of data retrieval, analysis, modification, generation,
display, and transmission was abstract); Two-Way Media Ltd. v. Comcast
Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding
sequence of processing, routing, controlling, and monitoring was abstract).
The ordering of the steps is, therefore, ordinary and conventional.
We have reviewed all the arguments Appellant has submitted
concerning the patent eligibility of the claims before us that stand rejected
under 35 U.S.C. § 101 (Appeal Br. 7–13; Reply Br. 1–4). We find that our
analysis above substantially covers the substance of all the arguments, which
have been made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
Appellant argues:
There has been no showing that the present subject matter
is analogous to any of these examples. Rather, the Office Action
merely alleges that the claims including social activities,
teaching, and following rules or instructions. However, there has
been no showing of social or human activities in claim 1. Rather,
as noted above, claim l is directed to a computing system having
a scheduling system that receives a request from a requesting
system, access calendar data generated by a calendar system, and
a listening system that detects changes to the state of the
computing system (e.g., a change in the calendar items).
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Appeal Br. 9.
We disagree with Appellant. First, to the extent Appellant argues that
the Examiner erred in not providing evidence to adequately support this
determination, we are unpersuaded. All that is required of the USPTO to
meet its burden is that the Examiner set forth the statutory basis of the
rejection and the reference or references relied upon in a sufficiently
articulate and informative manner as to meet the notice requirement of 35
U.S.C. § 132. As the statute itself instructs, the Examiner must “notify the
applicant,” “stating the reasons for such rejection,” “together with such
information and references as may be useful in judging the propriety of
continuing prosecution of his application.” 35 U.S.C. § 132; see also In re
Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011) (declining “to impose a
heightened burden on examiners beyond the notice requirement of § 132).
Here, as we found above, the Examiner has made these findings as required
by the statute. See Final Act. 6–10.
Specifically, in rejecting the pending claims under § 101, the
Examiner analyzed the claims using the Mayo/Alice two-step framework,
consistent with the guidance set forth in the USPTO’s 2019 GUIDANCE.
Specifically, the Examiner notified Appellant that the claims are broadly
directed to the judicial exception of ‘“Certain Methods Of Organizing
Human Activity’, specifically ‘managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions).’” Final Act. 7–8.
We find no error with the Examiner’s finding that claim 1 is directed
one of certain methods of organizing human activity. As we found above,
the subject matter of claim 1 schedules meetings between people/attendees,
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and thus is a form of managing personal behavior or interactions because it
fixes a date and time certain for people to meet.
And, we are not precluded from finding that two judicial exceptions
apply here–additionally, a mental process.8 But, for purposes of this
analysis, we confine our analysis to arguments addressing why the claims
are not directed to one of certain methods of organizing human activity.
Citing to paragraph 44 of the Specification, Appellant asserts a patent
eligible improvement because “[b]y configuring a listener to automatically
listen for free/busy status changes for the attendees of a desired meeting, the
network bandwidth and processing overhead needed to schedule a meeting is
significantly reduced.” Appeal Br. 10.
We disagree with Appellant because improvements to computer
functionality overcoming a problem specifically arising in the realm of
computers does not cause the claims to be automatically patent eligible. See
DDR Holdings v. Hotels.com, 773 F.3d 1245,1265 (Fed. Cir. 2014) (Mayer,
dissenting); see also, Berkheimer v. HP, 881 F.3d 1360, 1369–1370 (Fed.
Cir. 2018) (Fed. Cir. 2018). Here, Appellant asserts improvement by way of
“configuring a listener to automatically listen for free/busy status changes
for the attendees of a desired meeting.” Appeal Br. 10. Improvements to
computer functionality need to be claim based. See Berkheimer, 881 F.3d at
1369. Here we find no claim limitation reciting how the claimed
“configuring a listener to automatically listen for free/busy status changes”

8 An abstract idea may be described at different levels of abstraction, to what
the claims are directed, it is recognized that “[a]n abstract idea can generally
be described at different levels of abstraction.” Apple, Inc. v. Ameranth,
Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016); see also Guidance, 84 Fed. Reg.
at 52.
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is effected. Also, as we found above, the claimed sequence of data
reception-analysis (receive/generate/store/receive/ access/send/
receive/access/notify) and storing is generic and conventional or otherwise
held to be abstract. Taken with the abstract concepts of determining
availability of a person/attendee during a given time frame identified by a
scheduling request, they “fail to transform th[e] abstract idea into a patent-
eligible invention.” Alice, 573 U.S. at 221.
Although the claims purport to reduce the “the network bandwidth
and processing overhead needed to schedule a meeting” (Appeal Br. 10), our
reviewing court has held that speed and accuracy increases stemming
from the ordinary capabilities of a general purpose computer “do[] not
materially alter the patent eligibility of the claimed subject
matter.” Bancorp Servs. v. Sun Life Assurance Co. of Can. (U.S.), 687
F.3d 1266, 1278 (Fed. Cir. 2012).
We fail to see the similarities asserted by Appellant (Appeal
Br. 11–12) between the claims on appeal here and those adjudicated in DDR
Holdings. Appeal Br. 16–17. In DDR Holdings, the Court evaluated the
eligibility of claims “address[ing] the problem of retaining website
visitors that, if adhering to the routine, conventional functioning of
Internet hyperlink protocol, would be instantly transported away from a
host’s website after ‘clicking’ on an advertisement and activating a
hyperlink.” Id. at 1257. There, the Court found that the claims were
patent eligible because they transformed the manner in which a hyperlink
typically functions to resolve a problem that had no “pre-Internet
analog.” Id. at 1258.
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We find nothing recited in the claims before us here which amounts to
the claimed Internet hyperlink protocol of DDR. Instead, claim 1 before us
here recites generically named systems (a calendar system, a scheduling
system, a free/busy listening system) tied to functional results to be achieved
by any means. See, e.g., Content Extraction and Transmission v. Wells
Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014).
Appellant argues, “In light of Federal Circuit Court’s decision in
Berkheimer9, the Office Action fails to make a detailed factual finding and
provide details of why the claimed subject matter is well-understood,
routine, and conventional.” Appeal Br. 13.
We disagree with Appellant. The Federal Circuit in Berkheimer made
clear that “not every § 101 determination contains genuine disputes over the
underlying facts material to the § 101 inquiry.” Berkheimer, 881 F.3d at
1368. In fact, the Federal Circuit in Berkheimer did not require evidentiary
support for independent claim 1 because “[t]he limitations [of claim 1]
amount to no more than performing the abstract idea of parsing and
comparing data with conventional computer components.” Id. at 1370.
Appellant has offered no persuasive argument or technical reasoning
to demonstrate that the “a free/busy listening system” recited in claim 1
involves more than well-understood, routine, and conventional computer
activities, i.e., generic computer functions. Cf. In re Katz Interactive Call
Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Katz has
not claimed a specific function performed by a special purpose computer,
but has simply recited the claimed functions of ‘processing,’ ‘receiving,’ and

9 Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir 2018).
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‘storing.’ Absent a possible narrower construction of the terms ‘processing,’
‘receiving,’ and ‘storing,’ discussed below, those functions can be achieved
by any general purpose computer without special programming.”).
For the reasons identified above, we will sustain the Examiner’s § 101
rejection of claims 1–19.
35 U.S.C. § 103 REJECTION
Each of independent claims 1, 11, and 18 recites in one form or
another,
access the calendar data to identify availability of the user during
a given time frame identified by the scheduling request; and send
a free/busy indicator, to the requesting system, that notifies the
requesting system of the availability of the user during the given
time frame.

The Examiner maps this claim language to Sundstrom as follows:
[A]ccess the calendar data to identify availability of the
user during a given time frame identified by the scheduling
requested: (Sundstrom ¶ 58 rule monitor then performs an
availability analysis for each period of time included in the set of
availability transition points for Bob, Paul, Stephen, and Ted,
which is [11:30, 13:00, 14:00, 14:30, 15:00]. For each time
period, rule monitor determines the number of users available to
provide coverage).

send a free/busy indicator, to the requesting system, that notifies
the requesting system of the availability of the user during the
given time frame: (Sundstrom ¶¶ 58-60 rule monitor then
performs an availability analysis for each period of time included
in the set of availability transition points for Bob, Paul Stephen,
and Ted, which is [11:30, 13:00, 14:00, 14:30, 15:00]. For each
time period, rule monitor determines the number of users
available to provide coverage, and then generates and sends a
notification of a coverage rule violation based on a given time
period).
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Final Act. 12–13.

Appellant argues,
the alleged ‘access the calendar data’ at cited paragraph [0058]
of Sundstrom (see bottom of page 12 of Office Action) does not
‘identify availability of the user during a given time frame
identified by the scheduling request’, as recited in claim l.
Paragraph [0058] discusses availability analysis ‘for each period
of time included in the set of availability transition points for
covering entities Bob, Paul, Stephen, and Ted . . . For each time
period, rule monitor l08 determines the number of covering
entities available to provide coverage.’ This does not describe or
suggest anything about ‘a given time frame identified by the
[alleged] scheduling request’ at cited paragraph [0055] and
[0063]-[0064] discussed above.
Moreover, paragraphs [0058]-[0060], cited at the top of
page 13 of the Office Action, do not teach or suggest sending the
alleged free/busy indicator ‘to the [alleged] requesting system.’
Again, as noted above, the alleged requesting system from which
a scheduling request is received is the user interface for the
covering entity. There is no teaching, let alone a suggestion, to
send a free/busy indicator to this alleged requesting system.

Appeal Br. 18.
We agree with Appellant that the “transition points” do not constitute
“a given time frame” which “access the calendar data to identify availability
of the user during a given time frame identified by the scheduling request.”
According to Sundstrom at paragraph 57, “the availability analysis
performed by availability analysis function 122 can include an analysis of
transition points associated with more than one calendar event per covering
entity 106 which are merged into a single availability status, such as ‘busy,’
for a period of time representing multiple calendar events.” According to
Sundstrom at paragraph 58, “Rule monitor 108 then performs an availability
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analysis for each period of time included in the set of availability transition
points for [the] covering entities…For each time period, rule monitor 108
determines the number of covering entities available to provide coverage.”
It is not apparent and the Examiner has not explained how accessing
“transition points associated with more than one calendar event per covering
entity 106 which are merged into a single availability status” to “determine[]
the number of covering entities available to provide coverage,” meets the
claim language of “access[ing] the calendar data to identify availability of
the user during a given time frame identified by the scheduling request; and
send[ing] a free/busy indicator, to the requesting system, that notifies the
requesting system.” In other words, Sundstrom merges calendar events into
a single status for each covered entity to “determine[] the number of
covering entities available to provide coverage attendees (emphasis added).”
Sundstrom ¶ 58. But, this leaves unanswered how “access[ing] the calendar
data to identify availability of [a] user [(singular)] during a given time
frame” is accomplished. We note that claim 18 even requires that the
free/busy indicators are “indicative of the availability of each attendee
(emphasis added).”
Therefore, we will not sustain the rejection of independent claims 1,
11, and 18. Since claims 2–10, 12–17, and 19 depend from claim 1, 11, and
18, respectively, and since we cannot sustain the rejection of claims 1, 11
and 18, the rejection of claims 2–10, 12–17, and 19 likewise cannot be
sustained.
CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1–19 under
35 U.S.C. § 101.
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We conclude the Examiner erred in rejecting claims 1–19 under
35 U.S.C. § 103.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed.
See 37 C.F.R. § 41.50(a)(1).
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–19 101 Eligibility 1–19
1–19 103 Sundstrom, Wang 1–19
Overall
Outcome
1–19

TIME PERIOD FOR RESPONSE
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