Robert Crites

Patent Trials and Appeals Board

Dec 2, 2019

10015548 - (D) (P.T.A.B. Dec. 2, 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.
10/015,548 12/11/2001 Robert Crites CAM920115006US1_8150-0146 4275
73109 7590 12/02/2019
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, FL 33498
EXAMINER
STOLTENBERG, DAVID J
ART UNIT PAPER NUMBER
3682
NOTIFICATION DATE DELIVERY MODE
12/02/2019 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT CRITES

Appeal 2018–002040
Application 10/015,548
Technology Center 3600

BEFORE HUBERT C. LORIN, MICHAEL C. ASTORINO, and
BRADLEY B. BAYAT, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, and 4–31. 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 the real party in interest as International
Business Machines Corporation. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claimed subject matter “relate[s] to contact optimization” (Spec.,
1:3). Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A computer-implemented method of determining a
prioritized list of offers for use to contact potential customers,
the method comprises:
receiving by a computer expected profits for each offer in
a set of offers for each potential customer in a group of potential
customers;
generating by the computer an ordered list of offers, by
which to contact a potential customer from the group of potential
customers, the offers in the ordered list of offers selected
from the set of offers based on expected, composite profit of
combinations of the offers for others of the potential customers
in the group of potential customers,
ordering by the computer offers in the list of offers
according to the expected profit;
repeating generating by the computer for subsequent
others of the potential customers to produce corresponding
ordered lists based on expected, composite profit of
combinations of the offers for the subsequent potential customers
independent from expected, composite profit of combinations of
the offers for others of the potential customers in the group of
potential customers; and
producing by the computer a second list of offers that is a
list provided from the ordered lists of offers from the one and
subsequent others of the potential customers, with the second list
based upon a budget for contacting the potential customers in the
group.
App. Br. 16 (Claims Appendix).
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REJECTION
Claims 1, 2, and 4–31 are rejected under 35 U.S.C. § 101 as being
directed to judicially-excepted subject matter.
OPINION
The Appellant argued these claims as a group. See App. Br. 6–14.
We select claim 1 as the representative claim for this group, and the
remaining claims 2, and 4–31 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).

Preliminary comment
Previous guidance such as the “2014 IEG” (e.g., App. Br. 7); “2015
Guidelines Update” (App. Br. 6); and “2016 Guidelines Update” and “2016
Bahr Memo” (e.g., App. Br. 6) discussed in the Appeal Brief have been
superseded by the 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019), hereinafter “2019 Revised 101 Guidance”.
Id. 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, we will not address the sufficiency of the Examiner’s position
against those guidelines. See App. Br. 814 which challenges the Examiner’s
position in that it “has improperly gone beyond those concepts identified by
the courts as abstract ideas” (App. Br. 11). Rather, our analysis will comport
with the 2019 Revised 101 Guidance.

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Introduction
35 U.S.C. § 101 provides that “[w]hoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof, may obtain a patent therefor.”
In that regard, claim 1 covers a “process” and is thus statutory subject
matter for which a patent may be obtained.2 This is not in dispute.
However, the § 101 provision “contains an important implicit
exception: Laws of nature, natural phenomena, and abstract ideas are not
patentable.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216
(2014). (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics,
Inc., 569 U.S. 576, 589 (2013)).
In that regard, notwithstanding claim 1 covers statutory subject
matter, the Examiner has raised a question of patent–eligibility on the
ground that claim 1 is directed to an abstract idea.
Alice identifies a two-step framework for determining whether
claimed subject matter is directed to an abstract idea. Id. at 217.
Alice step one – the “directed to” inquiry
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept.” Id. at 218
(emphasis added).

2 This corresponds to Step 1 of the 2019 Revised 101 Guidance which
requires determining whether “a claim is to a statutory category.” Id. at 53.
See also sentence bridging pages 53 and 54 (“consider[ ] whether the
claimed subject matter falls within the four statutory categories of patentable
subject matter identified by 35 U.S.C. 101 ... .”).
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The Examiner determined that claim 1 is directed to, inter alia, “a
particular type of list-creation; that is, prioritized-listing or contact-
prioritization on the basis of expected profit and the creation of a second list
based upon a budget.” Final Act. 3.
Appellant argues that the claim is not directed to an abstract idea
because
the claimed invention provides a set of rules by which an order
list of offers is generated and by which offers is this list are
ordered. Additionally, the claimed invention provides another set
of rules for producing additional ordered lists and as well as a set
of rules for generating a second list of offers from the prior
ordered lists of offers. … these rules permit a computer to
perform functions not previously performable by a computer.
App. Br. 14. The Reply Brief adds that “the claimed invention is directed to
addressing this issue [e.g., “the use of linear programming to solve contact
optimization can be ‘too computationally expensive.’” (Reply Br. 2)], and
consequently, the claimed invention is directed in the improvement of the
functionality of a computer system itself, which has been held to not be an
abstract idea.” Reply Br. 3.
Accordingly, there is a dispute over whether claim 1 is directed to an
abstract idea. Specifically, is claim 1 directed to creating a list (Final Act. 3)
or an improvement in computer functionality (App. Br. 14; Reply Br. 3)?
Claim Construction3

3 “[T]he important inquiry for a § 101 analysis is to look to the claim.”
Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336,
1345 (Fed. Cir. 2013). “In Bancorp Servs., L.L.C. v. Sun Life Assurance Co.
of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012), the court observed that
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We consider the claim as a whole4 giving it the broadest reasonable
construction5 as one of ordinary skill in the art would have interpreted it in
light of the specification6 at the time of filing.
Claim 1 calls for a “computer-implemented method of determining a
prioritized list of offers for use to contact potential customers” comprising
five steps:
1. “receiving by a computer” information A;
2. “generating by the computer” information B;
3. “ordering” information B;

‘claim construction is not an inviolable prerequisite to a validity
determination under § 101.’ However, the threshold of § 101 must be
crossed; an event often dependent on the scope and meaning of the claims.”
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1347–48
(Fed. Cir. 2015).

4 “In determining the eligibility of respondents’ claimed process for patent
protection under § 101, their claims must be considered as a whole.”
Diamond v. Diehr, 450 U.S. 175, 188 (1981).

5 2019 Revised 101 Guidance, page 53, footnote 14 (If a claim, under its
broadest reasonable interpretation … .”) (emphasis added.)

6 “First, it is always important to look at the actual language of the claims.
… Second, in considering the roles played by individual limitations, it is
important to read the claims ‘in light of the specification.’” Smart Systems
Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1387 (Fed.
Cir. 2017) (J. Linn, dissenting in part and concurring in part), citing Enfish,
LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016), among
others.

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4. “repeating generating by the computer for subsequent others of [ ]
potential customers to produce” information C; and,
5. “producing by the computer” information D;
where:
A is “expected profits for each offer in a set of offers for each
potential customer in a group of potential customers”;

B is “an ordered list of offers, by which to contact a potential
customer from the group of potential customers, the offers in the
ordered list of offers selected from the set of offers based on
expected, composite profit of combinations of the offers for
others of the potential customers in the group of potential
customers”;

C is “corresponding ordered lists based on expected, composite
profit of combinations of the offers for the subsequent potential
customers independent from expected, composite profit of
combinations of the offers for others of the potential customers
in the group of potential customers”;

D is “a second list of offers that is a list provided from the ordered
lists of offers from the one and subsequent others of the potential
customers, with the second list based upon a budget for
contacting the potential customers in the group.”
A, B, C, and D are types of information; more specifically, in the case of B,
C, and D “ordered lists” and “a second list.”
Putting it all together, the claim reasonably broadly covers a computer
receiving, generating, ordering, repeating generating, and producing
different types of information; that is, mainly in the form of ordered lists.
The Specification describes contact optimization.
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According to an aspect of the present invention, a method
of determining a prioritized listing of offers for use to contact
potential customers includes generating an ordered listing of
offers from a set of offers, by which to contact a potential
customer from a group of potential customers by considering the
potent customer independently from others of the potential
customers in the group, during generating of the ordered listing
of offers for the potential customer.
Spec. 1: 27– 2:4.
Given the method as claimed as reasonably broadly construed and in
light of the Specification’s description of the invention as being related to
contact optimization, based on the record before us, we reasonably broadly
construe claim 1 as being directed to a scheme for creating ordered lists.
The Abstract Idea7
Above, where we reproduce claim 1, we identify in italics the
limitations we believe recite an abstract idea.8 Based on our claim
construction analysis (above), we determine that the identified limitations
describe a scheme for creating ordered lists. Creating ordered lists is a
“fundamental activity” that humans have performed for hundreds of years.
Cf. Voter Verified, Inc. v. Election Systems & Software, LLC, 887 F.3d 1376

7 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A
determines “whether a claim is ‘directed to’ a judicial exception,” such as an
abstract idea. Step 2A is two prong inquiry.

8 This corresponds to Prong One (a) of Step 2A of the 2019 Revised 101
Guidance. “To determine whether a claim recites an abstract idea in Prong
One, examiners are now to: (a) Identify the specific limitation(s) in the claim
under examination (individually or in combination) that the Examiner
believes recites an abstract idea . . ..” Id. at 54.

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(Fed. Cir. 2018) (cited in footnote 13 of the 2019 Revised 101 Guidance). It
falls within the enumerated “Certain methods of organizing human activity"
as grouping of abstract ideas set forth in the 2019 Revised 101 Guidance.9
Improvement In the Functioning of a Computer10 (Appellant’s
Argument)

9 This corresponds to Prong One [“Evaluate Whether the Claim Recites a
Judicial Exception”] (b) of Step 2A of the 2019 Revised 101 Guidance. “To
determine whether a claim recites an abstract idea in Prong One, examiners
are now to: … (b) determine whether the identified limitation(s) falls within
the subject matter groupings of abstract ideas enumerated in Section 1 of the
[2019 Revised 101 Guidance].” Id. at 54. This case implicates subject matter
grouping “(b)”:
(b) Certain methods of organizing human activity—fundamental
economic principles or practices (including hedging, insurance,
mitigating risk); commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations);
managing personal behavior or relationships or interactions between
people (including social activities, teaching, and following rules or
instructions);
Id. at 52.

10 This corresponds to Prong Two [“If the Claim Recites a Judicial
Exception, Evaluate Whether the Judicial Exception Is Integrated Into a
Practical Application”] of Step 2A of the 2019 Revised 101 Guidance. “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.” Id. at 54. One
consideration, implicated here, that is “indicative that an additional element
(or combination of elements) may have integrated the exception into a
practical application” (id., at 55) is if “[a]n additional element reflects an
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The Examiner’s characterization of what the claim is directed to (list
creation) is similar to ours (creating ordered lists).
We have reviewed the record and are unpersuaded as to error in our or
the Examiner’s characterization of what claim 1 is directed to.
A principle argument Appellant makes is that the claimed subject
matter is directed to an improvement in computer functionality. Appellant
argues that the claimed method overcomes “the use of linear programming
to solve contact optimization can be ‘too computationally expensive.’”
(App. Br. 2). This is not a persuasive argument.
Claim 1 does not preclude using linear programming. Accordingly,
that part of the argument is unpersuasive as to error in the Examiner’s
determination under Alice step one because it is not commensurate in scope
with what is claimed. “Many of appellant’s arguments fail from the outset
because, . . . they are not based on limitations appearing in the claims . . . .”
In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
We understand from reading the Specification that using linear
programming was known in the field of contact optimization and that there
are problems with it. Spec. 1: 14–24. The Specification details a contact
optimization process (pp. 11–21) that “can be viewed as a general solution
… [that] could be applied to many other types of problems that are evaluated
by linear programming techniques.” 21:1–5. But none of those details are
presented in claim 1. Claim 1 reasonably broadly covers a computer

improvement in the functioning of a computer, or an improvement to other
technology or technical field” (id. at 55).

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receiving, generating, ordering, repeating generating, and producing
different types of information in the form of ordered lists. Appellant does
not explain in what way the method as so broadly as it is now claimed
overcomes problems associated with linear programming, especially given
that claim 1 is so broad as to cover the use of linear programming.
We have carefully reviewed the Specification but can find no
disclosure that the recited “computer” is improved by receiving, generating,
ordering, repeating generating, and producing different types of information
in the form of ordered lists as claimed. Rather than being directed to any
specific asserted improvement in computer capabilities, the record supports
the view that the claimed subject matter is directed to creating ordered lists
using a generic computer as a tool. See Spec. 4:25–27 (“Referring now to
FIG. 1, a computer system 10 includes a CPU 12, main memory 14 and
persistent storage device 16 all coupled via a computer bus 18.”)
The claim provides no additional structural details11 that would
distinguish said “computer” from those that were well known at the time the
application was filed.
Also, claim 1 calls upon said “computer” to perform only basic
functions – i.e., receiving, generating, ordering, repeating generating, and
producing. The Specification attributes no special meaning to any of these
terms. In our view, consistent with the Specification, these are common

11 Cf. Move, Inc. v. Real Estate Alliance Ltd., 721 Fed. Appx. 950, 954 (Fed.
Cir. 2018) (Nonprecedential). “Claim 1 is aspirational in nature and devoid
of any implementation details or technical description that would permit us
to conclude that the claim as a whole is directed to something other than the
abstract idea identified by the district court.”
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processing functions that one of ordinary skill in the art at the time of the
invention would have known generic processors were capable of performing
and would have associated with generic processors. Cf. OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015):
Beyond the abstract idea of offer-based price optimization, the claims
merely recite “well-understood, routine conventional activit[ies],”
either by requiring conventional computer activities or routine data-
gathering steps. Alice, 134 S. Ct. at 2359 (quoting Mayo, 132 S.Ct. at
1294) (alterations in original). … For example, claim 1 recites
“sending a first set of electronic messages over a network to devices,”
the devices being “programmed to communicate,” storing test results
in a “machine-readable medium,” and “using a computerized system
... to automatically determine” an estimated outcome and setting a
price. Just as in Alice, “all of these computer functions are ‘well-
understood, routine, conventional activit[ies]’ previously known to the
industry.” Alice, 134 S.Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294)
(alterations in original); see also buySAFE[, Inc. v. Google, Inc.], 765
F.3d [1350,] 1355 [(Fed. Cir. 2014)] (“That a computer receives and
sends the information over a network—with no further specification—
is not even arguably inventive.”).
At best, the claimed “computer” distinguish over other generic
processors known at the time the application was filed in the type of
electronic information – that is, ordered lists. But that alone is not
patentably consequential. This is so because “[c]laim limitations directed to
the content of information and lacking a requisite functional relationship are
not entitled to patentable weight because such information is not patent
eligible subject matter under 35 U.S.C. § 101.” Praxair Distribution, Inc. v.
Mallinckrodt Hospital Products IP Ltd., 890 F.3d 1024, 1032 (Fed. Cir.
2018).
Accordingly, within the meaning of the 2019 Revised 101 Guidance,
we find there is no integration into a practical application.
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We have considered Appellant’s other arguments challenging the
Examiner’s determination under step one of the Alice framework and find
them unpersuasive. For the foregoing reasons, the record supports the
Examiner’s determination that claim 1 is directed to an abstract idea.

Alice step two – Does the Claim Provide an Inventive Concept?12
Step two 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.’” Alice, 573 U.S. at 221 (quoting Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 73 (2012)).
In that regard, the Examiner determined, inter alia, that:
The claims do not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because the additional limitations of performing the
steps with a computer, and memory encoded with program
instructions represents insignificant data gathering and data
processing steps requiring no more than a generic computer to
perform generic computer functions that are well understood,
routine and conventional activities previously known to the
industry.).

12 This corresponds to Step 2B of the 2019 Revised 101 Guidance (see p.
56).

[I]f a claim has been determined to be directed to a judicial exception
under revised Step 2A, examiners should then evaluate the additional
elements individually and in combination under Step 2B to determine
whether they provide an inventive concept (i.e., whether the additional
elements amount to significantly more than the exception itself).
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Final Act. 4. We agree.
We addressed this matter of whether there were any purported specific
asserted improvements in computer capabilities in our analysis above under
step one of the Alice framework. This is consistent with the case law. See
Ancora, 908 F.3d at 1347 (“We have several times held claims to pass
muster under Alice step one when sufficiently focused on such
improvements.”) Such an argument can also challenge a determination
under step two of the Alice framework. See buySAFE, 765 F.3d at 1354–55.
“[R]ecent Federal Circuit jurisprudence has indicated that eligible subject
matter can often be identified either at the first or the second step of the
Alice/Mayo [framework].” 2019 Revised 101 Guidance at 53; see also id. n.
17.
Be that as it may, we are unpersuaded that claim 1 presents an element
or combination of elements indicative of a specific asserted improvement in
computer capabilities, thereby rendering the claimed subject matter
sufficient to ensure that the patent in practice amounts to significantly more
than a patent upon the creating ordered lists abstract idea itself.
We have reviewed the Specification and, as explained above, we can
find no suggestion of any improvements to the system as a result of
performing the recited steps as broadly as they are recited.
We cited the Specification in our earlier discussion. It is intrinsic
evidence that the claimed “computer” is conventional. In doing so, we have
followed “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP
Inc.[, 881 F.3d 1360 (Fed. Cir. 2018)],” USPTO Memorandum, Robert W.
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Bahr, Deputy Commissioner for Patent Examination Policy, April 19, 2018
(the “Berkheimer Memo”)).
The court in Berkheimer held that “[t]he patent eligibility inquiry may
contain underlying issues of fact.” Berkheimer, 881 F.3d at 1365 (quoting
Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314,
1325 (Fed. Cir. 2016) (“The § 101 inquiry ‘may contain underlying factual
issues.”’)). But the court also held that “[w]hen there is no genuine issue of
material fact regarding whether the claim element or claimed combination is
well-understood, routine, [and] conventional to a skilled artisan in the
relevant field, this issue can be decided on summary judgment as a matter of
law.” Id. at 1368 (emphasis added). This qualification has been
subsequently reiterated.
If there is a genuine dispute of material fact, Rule 56 requires
that summary judgment be denied. In Berkheimer, there was
such a genuine dispute for claims 4–7, but not for claims 1–3
and 9 . . . . [I]n accordance with Alice, we have repeatedly
recognized the absence of a genuine dispute as to eligibility for
the many claims that 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, 1371–73 (Fed. Cir. 2018) (Order, On
Petition for rehearing en banc, May 31, 2018); see also Aatrix Software, Inc.
v. Green Shades Software, Inc., 890 F.3d 1354, 1368 (Fed. Cir. 2018) (“A
factual allegation or dispute should not automatically take the determination
out of the court’s hands; rather, there needs to be justification for why
additional evidence must be considered—the default being a legal
determination.”). Here, the Specification indisputably shows the claimed
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“computer” was conventional at the time of filing. Accordingly, no genuine
issue of material fact exists as to the well–understood, routine, or
conventional nature of the claimed “computer” as claimed.
No other persuasive arguments having been presented, we conclude
that no error has been committed in the determination under Alice step two
that claim 1 does not include an element or combination of elements
circumscribing the patent-ineligible concept it is directed to so as to
transform the concept into an inventive application.
We have considered all of the Appellant’s arguments (including those
made in the Reply Brief) and find them unpersuasive.
Accordingly, because we are not persuaded as to error in the
determinations that representative claim 1, and claims 2, 4–31, which stand
or fall with claim 1, are directed to an abstract idea and do not present an
“inventive concept,” we sustain the Examiner’s conclusion that they are
directed to patent-ineligible subject matter for being judicially-excepted
from 35 U.S.C. § 101. Cf. LendingTree, LLC v. Zillow, Inc., 656 Fed. Appx.
991, 997 (Fed. Cir. 2016) (“We have considered all of LendingTree’s
remaining arguments and have found them unpersuasive. Accordingly,
because the asserted claims of the patents in suit are directed to an abstract
idea and do not present an ‘inventive concept,’ we hold that they are directed
to ineligible subject matter under 35 U.S.C. § 101.”); see, e.g., OIP Techs.,
788 F.3d at 1364; FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089,
1098 (Fed. Cir. 2016).
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CONCLUSION
The decision of the Examiner to reject claims 1, 2, and 4–31 is
affirmed.
More specifically:
The rejection of claims 1, 2, and 4–31 under 35 U.S.C. § 101 as being
directed to judicially-excepted subject matter is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4–31 101 1, 2, 4–31

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