Rodrigo Alejandro. Acuna Agost et al.Download PDFPatent Trials and Appeals BoardOct 11, 201914174196 - (D) (P.T.A.B. Oct. 11, 2019) Copy Citation 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. 14/174,196 02/06/2014 Rodrigo Alejandro ACUNA AGOST 13289.0026-00000 6403 22852 7590 10/11/2019 FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP 901 NEW YORK AVENUE, NW WASHINGTON, DC 20001-4413 EXAMINER STERRETT, JONATHAN G ART UNIT PAPER NUMBER 3623 NOTIFICATION DATE DELIVERY MODE 10/11/2019 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): regional-desk@finnegan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RODRIGO ALEJANDRO ACUNA AGOST, THIERRY DELAHAYE, and THILO PFEIFFER ____________ Appeal 2018-002506 Application 14/174,196 Technology Center 3600 ____________ Before ANTON W. FETTING, NINA L. MEDLOCK, and AMEE A. SHAH, Administrative Patent Judges. MEDLOCK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2018-002506 Application 14/174,196 2 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 36–44. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED INVENTION Appellant’s claimed invention “generally relates to computers and computer software and, in particular, to methods, systems, and computer program products for assigning scheduled vehicles to stands” (Spec. § 1). Claims 36, 39, and 42 are the independent claims on appeal. Claim 36, reproduced below with bracketed notations added, is illustrative of the claimed subject matter: 36. A method for assigning airplanes to stands, comprising: [(a)] receiving, during a planning phase, a schedule for an airport that specifies arrival times and departure times for flights; [(b)] receiving, during the planning phase, historical schedule deviations comprising arrival deviations and departure deviations for the flights; [(c)] generating, using at least one processor during the planning phase, a stand allocation plan that allocates flights to stands of the airport based on the schedule and the historical schedule deviations, generation comprising: 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,” filed September 6, 2017) and Reply Brief (“Reply Br.,” filed January 8, 2018), and the Examiner’s Answer (“Ans.,” mailed November 8, 2017) and Final Office Action (“Final Act.,” mailed March 10, 2017). Appellant identifies the real party in interest as Amadeus S.A.S. Appeal Br. 1. Appeal 2018-002506 Application 14/174,196 3 [(c1)] determining, by the at least one processor for pairs of consecutive flights, each pair comprising an arriving flight and a departing flight, pairwise individual buffer times satisfying a collision likelihood criterion based on the departure deviations of the departing flights and the arrival deviations of the arriving flights, determining pairwise individual buffer times comprising: (i) determining probability distribution functions for the departing flights based on the departure deviations of the departing flights, (ii) determining probability distribution functions for the arriving flights based on the arrival deviations of the arriving flights, (iii) determining combined probability distribution functions for the pairs of consecutive flights based on the probability distribution functions for the arriving flights and the probability distribution functions for the departing flights, and (iv) determining the pairwise individual buffer times based on the combined probability distribution functions, [(c2)] determining, by the at least one processor for the pairs of consecutive flights, time intervals based on the specified departure times of the departing flights and the arrival times of the arriving flights, [(c3)] determining, for the pairs of consecutive flights, pairs of consecutive flights satisfying at least a buffer time constraint based on the pairwise individual buffer times and the time intervals, and [(c4)] assigning one of the stands to one of the pairs of consecutive flights satisfying at least the buffer time constraint; and [(d)] assigning, during an operational phase, arriving flights to the stands according to the stand allocation plan. Appeal 2018-002506 Application 14/174,196 4 REJECTION Claims 36–44 are rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. ANALYSIS Appellant argues the pending claims as a group (Appeal Br. 13–24). We select independent claim 36 as representative. The remaining claims stand or fall with claim 36. See 37 C.F.R. §41.37(c)(1)(iv). Under 35 U.S.C. § 101, an invention is patent eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101 to include an implicit exception: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). The Supreme Court, in Alice, reiterated the two-step framework previously set forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217. The first step in that analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are not directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry ends. Otherwise, the inquiry proceeds to the second step where the elements of the claims are considered “individually and ‘as an ordered combination’” to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., an Appeal 2018-002506 Application 14/174,196 5 element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. at 217–18 (alteration in original). In rejecting the pending claims under 35 U.S.C. § 101, the Examiner determined that the claims are directed to “generating a schedule for aircraft terminals (e.g.[,] gates at an airport with arriving and departing flights) based on a statistical analysis of arriving and departing flights,” which the Examiner concluded is an abstract idea similar to other concepts that the courts have held abstract (Final Act. 2, 5–7, and 11–12). The Examiner also determined that the claims do not include additional elements that are sufficient to amount to significantly more than the abstract idea itself (id. at 7–12). After Appellant’s briefs were filed, and the Examiner’s Answer mailed, the U.S. Patent and Trademark Office (the “USPTO”) published revised guidance for use by USPTO personnel in evaluating subject matter eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57 (Jan. 7, 2019) (the “2019 Revised Guidance”). That guidance revised the USPTO’s examination procedure with respect to the first step of the Mayo/Alice framework by (1) “[p]roviding groupings of subject matter that is considered an abstract idea”; and (2) clarifying that a claim is not “directed to” a judicial exception if the judicial exception is integrated into a practical application of that exception. Id. at 50. The 2019 Revised Guidance, by its terms, applies to all Appeal 2018-002506 Application 14/174,196 6 applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id.2 Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A) The first step in the Mayo/Alice framework, as mentioned above, is to determine whether the claims at issue are “directed to” a patent-ineligible concept, e.g., an abstract idea. Alice Corp., 573 U.S. at 217. This first step, as set forth in the 2019 Revised Guidance (i.e., Step 2A), is a two-prong test; in Step 2A, Prong One, we look to whether the claim recites a judicial exception, e.g., one of the following three groupings of abstract ideas: (1) mathematical concepts; (2) certain methods of organizing human activity, e.g., fundamental economic principles or practices, commercial or legal interactions; and (3) mental processes. 2019 Revised Guidance, 84 Fed. Reg. at 54. If so, we next consider whether the claim includes additional elements, beyond the judicial exception, that “integrate the [judicial] exception into a practical application,” i.e., that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception (“Step 2A, Prong Two”). Id. at 54–55. Only if the claim (1) recites a judicial exception and (2) does not integrate 2 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) § 2106.04(II) and also supersedes all versions of the USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.” See 2019 Revised 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. Appeal 2018-002506 Application 14/174,196 7 that exception into a practical application do we conclude that the claim is “directed to” the judicial exception, e.g., an abstract idea. We are not persuaded here that the Examiner erred in determining that claim 36 is directed to an abstract idea (Appeal Br. 13–16). The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335–36. Here, it is clear from the Specification, including the claim language, that the claims focus on an abstract idea, and not on any improvement to technology and/or a technical field. The Specification is entitled “VEHICLE STAND ALLOCATION,” and states that the invention relates, in particular, “to methods, systems, and computer program products for assigning scheduled vehicles to stands” (Spec. ¶ 1). The Specification describes, in the “Background” section, that vehicle stand allocation may be planned far in advance of the actual arrival of the vehicles at their assigned stands; however, a difficulty with planning stand allocation stems from the inability to anticipate, during the planning phase, future schedule deviations (i.e., a vehicle arriving or departing either earlier or later than scheduled) (id. ¶ 2) — deviations that may create conflicts (e.g., a stand being occupied when the next vehicle assigned to that stand arrives) requiring additional effort and costs to resolve (id.). The Appeal 2018-002506 Application 14/174,196 8 Specification describes that a solution to the conflicts issue is to add a fixed buffer time between scheduled departures and scheduled arrivals of successive vehicles that are assigned to the same stand (id. ¶ 3). The buffer time provides a reserve in time that allows a vehicle to depart the stand later than scheduled or to arrive at the stand earlier than scheduled without causing a conflict or collision with another vehicle (id.). Although lengthening the fixed buffer time can reduce the likelihood of a conflict, the Specification describes that this may adversely affect other key performance indicators, and ultimately, the efficiency of the stand allocation plan, e.g., longer buffer times may reduce stand utilization and the throughput of vehicles (id.). “Consequently, improved methods, systems, and computer program products are needed for assigning scheduled vehicles to stands” (id. ¶ 4). The claimed invention is ostensibly intended to address this need by generating a stand allocation plan with pairwise individual buffer times that differ between pairs of consecutive flights, i.e., an arriving flight and a departing flight. The Specification, thus, describes a method of assigning at least a first vehicle and a second vehicle, each having a scheduled arrival time and a scheduled departure time, to a plurality of stands (id. ¶ 5). In accordance with the method, a minimum buffer time between a departure of the first vehicle and an arrival of the second vehicle is calculated based on a distribution of a deviation from the scheduled departure time of the first vehicle and/or a distribution of a deviation from the scheduled arrival time of the second vehicle (id.). The vehicles are then assigned to different ones of the plurality of stands based on the time interval between the scheduled Appeal 2018-002506 Application 14/174,196 9 departure time of the first vehicle and the scheduled arrival time of the second vehicle being less than the minimum buffer time (id.). Consistent with this disclosure, claim 36 recites a method for assigning airplanes to airport stands comprising: (1) receiving an airport schedule, including flight arrival and departure times, and historical arrival and departure deviations for the flights i.e., “receiving, during a planning phase, a schedule for an airport that specifies arrival times and departure times for flights” and “receiving, during the planning phase, historical schedule deviations comprising arrival deviations and departure deviations for the flights” (steps (a) and (b)); (2) generating a stand allocation plan based on the airport schedule and the historical schedule deviations by determining pairwise individual buffer times for pairs of consecutive flights, determining a buffer time constraint based on the pairwise individual buffer times and the time intervals for the pairs of consecutive flights, and assigning a stand to a pair of consecutive flights that satisfies the buffer time constraint, i.e., generating, using at least one processor during the planning phase, a stand allocation plan that allocates flights to stands of the airport based on the schedule and the historical schedule deviations, generation comprising: determining, by the at least one processor for pairs of consecutive flights, each pair comprising an arriving flight and a departing flight, pairwise individual buffer times satisfying a collision likelihood criterion based on the departure deviations of the departing flights and the arrival deviations of the arriving flights, determining pairwise individual buffer times comprising: (i) determining probability distribution functions for the departing flights based on the departure deviations of the departing flights, Appeal 2018-002506 Application 14/174,196 10 (ii) determining probability distribution functions for the arriving flights based on the arrival deviations of the arriving flights, (iii) determining combined probability distribution functions for the pairs of consecutive flights based on the probability distribution functions for the arriving flights and the probability distribution functions for the departing flights, and (iv) determining the pairwise individual buffer times based on the combined probability distribution functions, determining, by the at least one processor for the pairs of consecutive flights, time intervals based on the specified departure times of the departing flights and the arrival times of the arriving flights, determining, for the pairs of consecutive flights, pairs of consecutive flights satisfying at least a buffer time constraint based on the pairwise individual buffer times and the time intervals, and assigning one of the stands to one of the pairs of consecutive flights satisfying at least the buffer time constraint (step (c)); and (3) assigning flights to the stands according to the stand allocation plan, i.e., “assigning, during an operational phase, arriving flights to the stands according to the stand allocation plan” (step (d)). Simply put, claim 36 recites assigning airplanes to stands by (1) collecting information (i.e., scheduled flight arrival and departure times and historical schedule deviations); (2) analyzing the information (i.e., generating a stand allocation plan based on the schedule and historical schedule deviations, including performing a series of calculations to determine pairwise individual buffer times based on probability distribution functions); and (3) reporting the results of the collection and analysis (i.e., assigning flights to the stands according to the stand allocation plan). Given their broadest reasonable Appeal 2018-002506 Application 14/174,196 11 interpretation, these limitations, thus, recite a commercial interaction, i.e., managing airport terminal operations, which is a method of organizing human activity, and, therefore, an abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 52. The limitations also recite mathematical calculations — determining pairwise individual buffer times for pairs of consecutive flights based on probability distribution functions — which is a mathematical concept and, therefore, an abstract idea. See id. The Federal Circuit has held similar concepts to be abstract. Thus, for example, the Federal Circuit has held that abstract ideas include the concepts of collecting data, analyzing the data, and reporting the results of the collection and analysis, including when limited to particular content. See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (identifying the abstract idea of collecting, displaying, and manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing information by steps people go through in their minds, or by mathematical algorithms, and presenting the results of collecting and analyzing information, without more, as matters within the realm of abstract ideas). The court also has held that claims directed to a “process of organizing information through mathematical correlations” are directed to an abstract idea. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (holding that claims to “a series of mathematical calculations based on selected information” are directed to an abstract idea). And the law is clear that “[a]dding one abstract idea . . . to another abstract idea . . . does not render [a] claim non-abstract.” Appeal 2018-002506 Application 14/174,196 12 RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017); see also Fair Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (patent-ineligible claims were directed to a combination of abstract ideas). Having concluded that claim 36 recites a judicial exception, i.e., an abstract idea (Step 2A, Prong 1), we next consider whether the claim recites additional elements that integrate the judicial exception into a practical application (Step 2A, Prong 2). The only additional element recited in claim 36, beyond the abstract idea, is the claimed “at least one processor” — an element that, as the Examiner observes (Final Act. 10), is described in the Specification at a high level of generality, i.e., as a generic computer component (see, e.g., Spec. ¶ 64 (describing that “computer 50 may represent practically any type of computer, computer system or other programmable electronic device”)). We find no indication in the Specification, nor does Appellant direct us to any indication, that the operations recited in claim 36 require any specialized computer hardware or other inventive computer components, i.e., a particular machine, invoke any assertedly inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.”). We also find no indication in the Specification that the claimed invention effects a transformation or reduction of a particular article to a different state or thing. Nor do we find anything of record, short of attorney Appeal 2018-002506 Application 14/174,196 13 argument, that attributes an improvement in technology and/or a technical field to the claimed invention or that otherwise indicates that the claimed invention integrates the abstract idea into a “practical application,” as that phrase is used in the 2019 Revised Guidance.3 Appellant argues that the pending claims are not directed to an abstract idea because the claims focus on a specific improvement in generating stand allocation plans (Appeal Br. 13–16). Citing the Background section of the Specification, Appellant notes that existing systems generate stand allocation plans that assign airplanes to stands with fixed buffer times between scheduled departures and arrivals (id. at 13). And Appellant argues that the claimed system improves upon these existing systems by generating an airport stand allocation plan with pairwise individual buffer times that differ between pairs of airplanes (id. at 14). Appellant, thus, maintains that the pending claims, like those held patent eligible in McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299 (Fed. Cir. 2016), “set out specific requirements that allow for the improvement realized by the invention” (id. at 16; see also Reply Br. 2–3). Appellant’s argument is not persuasive at least because the Federal Circuit premised its determination that the claim in McRO was patent eligible, not merely on the specificity of the claimed animation scheme, but 3 The 2019 Revised Guidance references MPEP § 2106.05(a)–(c) and (e) in describing the considerations that are indicative that an additional element or combination of elements integrates the judicial exception, e.g., the abstract idea, into a practical application. 2019 Revised Guidance, 84 Fed. Reg. at 55. If the recited judicial exception is integrated into a practical application, as determined under one or more of these MPEP sections, the claim is not “directed to” the judicial exception. Appeal 2018-002506 Application 14/174,196 14 on the fact that the claim, when considered as a whole, was directed to a technological improvement over existing, manual 3-D animation techniques, and used limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice. McRO, 837 F.3d at 1316. Appellant ostensibly maintains that, as in McRO, the claims provide a technological improvement because they enable the generation and use of a more efficient and robust stand allocation plan (see Appeal Br. 13). Yet, Appellant does not adequately explain why, and we fail to see why generating a more efficient and robust stand allocation plan, amounts to a technological improvement, as opposed to an improvement in a business practice. It clearly appears from the Specification that the problem the claimed invention addresses is one prompted by the need to account for flight schedule deviations (which can disrupt a planned stand allocation and create conflicts) without unnecessarily lengthening fixed buffer times between consecutive flights and, thereby, reducing stand utilization and vehicle throughput (see Spec. ¶ 3; see also id. ¶ 20 (describing that increasing the robustness of a stand allocation reduces the probability of conflicts during the operational phase, and, thus, improves service quality and reduces efforts during the operational phase, e.g., the need for re-planning the stand allocation, re-assignment of vehicles, and/or intermediate parking (during the operational phase))). We agree with the Examiner that the problem being solved “has to do with the variability in gate scheduling to ensure that if Flight I is late leaving the gate, it does not conflict with Flight J which is arriving and may do so earlier than scheduled” (Ans. 4–5), i.e., a matter of Appeal 2018-002506 Application 14/174,196 15 resource allocation (id. at 7). This is not a technical problem; instead, it is a business concern related, as Appellant describes, to ensuring against a reduction in the efficiency of the stand allocation plan and avoiding the wasted time and potential for conflicts associated with conventional systems using fixed buffer times (Appeal Br. 12–13). In McRO, as described above, the Federal Circuit concluded that the claim, when considered as a whole, is directed to a “technological improvement over the existing, manual 3-D animation techniques” and “uses the limited rules in a process 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 allow 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 are limiting because they define morph weight sets as a function of phoneme sub-sequences. Id. at 1313. Appellant has not identified any comparable improvement here that is attributable to the claimed invention. Although generating pairwise individual buffer times and using the buffer times in combination with time intervals to identify pairs of aircraft that can be assigned to a single stand may improve a business process, i.e., managing the allocation of airport gates, it does not achieve an improved technological result. This is particularly so where, as here, we find no indication in the Specification that the operations recited in claim 36 require any specialized computer hardware or other inventive computer components, invoke any assertedly inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. Appeal 2018-002506 Application 14/174,196 16 We also do not agree with Appellant that the pending claims are similar to the claim in Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016) (Reply Br. 4). There, the Federal Circuit held the claim was patent eligible because the claim entails an unconventional technological solution (enhancing data in a distributed fashion) to a technological problem (massive record flows which previously required massive databases). Although the solution requires generic components, the court determined that “the claim’s enhancing limitation necessarily requires that these generic components operate in an unconventional manner to achieve an improvement in computer functionality” and that the “enhancing limitation depends not only upon the invention’s distributed architecture, but also depends upon the network devices and gatherers –– even though these may be generic –– working together in a distributed manner.” Amdocs, 841 F.3d at 1300–01. Appellant ostensibly maintains that claim 36 provides a technological solution to a technological problem (Reply Br. 4). But, Appellant does not identify any “distributed architecture” comparable to that in Amdocs or otherwise establish that the generic components recited in the claim operate in an unconventional manner. Nor, as described above, does claim 36 achieve a technological result comparable to that in McRO. There also is no parallel between the present claims and those at issue in Diamond v. Diehr, 450 U.S. 175 (1981) (Reply Br. 6–7). The claims in Diehr were directed to a process for curing synthetic rubber, and recited a series of steps (e.g., loading a molding press with raw, uncured rubber, closing the press, constantly determining the temperature inside the press, constantly recalculating the cure time, and automatically opening the press at Appeal 2018-002506 Application 14/174,196 17 the proper time) that together provided a significant and novel practical application of the well-known Arrhenius equation and transformed uncured synthetic rubber into a new state or thing. See Diehr, 450 U.S. at 184–87. Unlike the process claimed in Diehr, which was directed to a specific industrial process, i.e., “a physical and chemical process for molding precision synthetic rubber products,” id. at 184, claim 36 here merely recites a computer-implemented system and method for assigning aircraft to particular airport gates. As described above, this is not a technical problem but rather a resource allocation problem, falling squarely within the realm of business management. Finally, to the extent Appellant maintains that claim 36 is patent eligible because there is no risk of preemption (Reply Br. 3), we note that preemption is not the sole test of patent-ineligibility. Although “preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). We conclude that claim 36 recites a commercial interaction, i.e., an abstract idea, and that the “at least one processor” recited in the claim is no more than a generic computer component used as a tool to perform the abstract idea of generating a stand allocation plan. As such, it does not integrate the recited abstract idea into a practical application. See Alice Corp., 573 U.S. at 223–24 (“[W]holly generic computer implementation is not generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77)). Appeal 2018-002506 Application 14/174,196 18 Accordingly, we agree with the Examiner that claim 36 is directed to an abstract idea. Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B) Having determined under step one of the Mayo/Alice framework that claim 36 is directed to an abstract idea, we next consider under Step 2B of the 2019 Revised Guidance, the second step of the Mayo/Alice framework, whether claim 36 includes additional elements or a combination of elements that provides an “inventive concept,” i.e., whether the additional elements amount to “significantly more” than the judicial exception itself. 2019 Revised Guidance, 84 Fed. Reg. at 56. Appellant argues that claim 36 recites additional elements that set forth the “innovative concept of using ‘variable buffer times that better match the typical behaviors of [airplanes] with regard to their expected deviations from their schedule’” (Appeal Br. 17), and that these additional elements amount to significantly more than an abstract idea because “they constitute improvements to another technology and specific limitations that are not well-understood, routine and conventional in the field” (id. at 17). The difficulty with that argument is that the limitations Appellant identifies (i.e., limitations (c1) through (c4) recited in claim 36 (see id. at 17–18)) are part of the abstract idea itself; they are not additional elements to be considered when determining whether claim 36 includes additional elements or a combination of elements that is sufficient to amount to significantly more than the judicial exception. It could not be clearer from Alice, that under step two of the Mayo/Alice framework, the elements of each claim are considered both individually and “as an ordered combination” to determine whether the Appeal 2018-002506 Application 14/174,196 19 additional elements, i.e., the elements other than the abstract idea itself, “transform the nature of the claim” into a patent-eligible application. Alice Corp., 573 U.S. at 217 (internal quotations and citation omitted); see Mayo, 566 U.S. at 72–73 (requiring that “a process that focuses upon the use of a natural law also contain other elements or a combination of elements, sometimes referred to as an ‘inventive concept,’ sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law itself” (emphasis added) (internal citation omitted). In other words, the inventive concept under step two of the Mayo/Alice test cannot be the abstract idea itself: It is clear from Mayo that the “inventive concept” cannot be the abstract idea itself, and Berkheimer . . . leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged “inventive concept” is the abstract idea. Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring in the denial of rehearing en banc); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed invention’s use of the ineligible concept to which it is directed cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.”) (internal citation omitted). The Examiner determined here, and we agree, that the only claim element beyond the abstract idea is the claimed “at least one processor,” i.e., a generic computer component used to perform generic computer functions Appeal 2018-002506 Application 14/174,196 20 (Final Act. 10) — a determination amply supported by, and fully consistent with the Specification (see, e.g., Spec. ¶ 64).4 Appellant cannot reasonably contend, nor does Appellant, that there is a genuine issue of material fact regarding whether the operation of this component is well-understood, routine, or conventional, where, as here, there is nothing in the Specification to indicate that the operations recited in claim 36 require any specialized hardware or inventive computer components or that the claimed invention is implemented using other than generic computer components to perform generic computer functions, e.g., receiving and processing information. Indeed, the Federal Circuit, in accordance with Alice, has “repeatedly recognized the absence of a genuine dispute as to eligibility” where claims have been defended as involving an inventive concept based “merely on the idea of using existing computers or the Internet to carry out conventional processes, with no alteration of computer functionality.” Berkheimer, 890 F.3d at 1373 (Moore, J., concurring) (internal citations omitted); see also BSG Tech, 899 F.3d at 1291 (“BSG Tech does not argue that other, non-abstract features of the claimed inventions, alone or in combination, are not well-understood, routine and 4 The Office’s April 19, 2018 Memorandum to the Examining Corps from Deputy Commissioner for Patent Examination Policy, Robert W. Bahr, entitled, “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.),” available at https://www.uspto.gov/sites/default/files/documents/ memo-berkheimer-20180419.pdf, expressly directs that an examiner may support the position that an additional element (or combination of elements) is not well-understood, routine or conventional with “[a] citation to an express statement in the specification . . . that demonstrates the well- understood, routine, conventional nature of the additional element(s)” (id. at 3). Appeal 2018-002506 Application 14/174,196 21 conventional database structures and activities. Accordingly, the district court did not err in determining that the asserted claims lack an inventive concept.”). Appellant also misapprehends the controlling precedent to the extent Appellant maintains that the claims are patent eligible, i.e., that the claims include additional elements that amount to “significantly more” than an abstract idea, because the claims has been indicated as allowable over the art of record (Appeal Br. 18–19). Neither a finding of novelty nor a non- obviousness determination automatically leads to the conclusion that the claimed subject matter is patent eligible. Although the second step in the Mayo/Alice framework is termed a search for an “inventive concept,” the analysis is not an evaluation of novelty or non-obviousness, but rather, a search for “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 Corp., 573 U.S. at 217–18 (citation omitted). “Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and non- obvious claim directed to a purely abstract idea is, nonetheless, patent ineligible. See Mayo, 566 U.S. at 90; see also Diehr, 450 U.S. at 188–89 (“The ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.”). We are not persuaded, on the present record, that the Examiner erred in rejecting claim 36 under 35 U.S.C. § 101. Therefore, we sustain the Appeal 2018-002506 Application 14/174,196 22 Examiner’s rejection of claim 36, and claims 37–44, which fall with claim 36. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 36–44 101 Eligibility 36–44 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 Copy with citationCopy as parenthetical citation