24/7 Customer, Inc.

Patent Trials and Appeals Board

May 26, 2020

2019005849 (P.T.A.B. May. 26, 2020)

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.
14/294,005 06/02/2014 Mathangi SRI 110524-8082.US01 1951
22918 7590 05/26/2020
PERKINS COIE LLP - PAO General
P.O. BOX 1247
SEATTLE, WA 98111-1247
EXAMINER
CHOY, PAN G
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
05/26/2020 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):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)

hUNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MATHANGI SRI, RAKESH REDDY,
and PALLIPURAM V. KANNAN
____________

Appeal 2019-005849
Application 14/294,005
Technology Center 3600
____________

Before BIBHU R. MOHANTY, AMEE A. SHAH, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

MOHANTY, 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 1–14, 16–31, and 33. We have
jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
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 24/7 Customer,
Inc. (App. Br. 1).
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Application 14/294,005

2

CLAIMED SUBJECT MATTER
Appellant’s claimed invention relates to online services and managing
online visitor interactions (Spec., para. 1). Claim 1, reproduced below with
the italics added, is representative of the subject matter on appeal.

1. A computer-implemented method comprising:
detecting, by a processor, a website access event corresponding
to a website visitor among a plurality of website visitors;
determining by the processor, upon detecting the website access
event, an interaction invitation is available from among a maximum
number of interaction invitations computed to be offered to the
plurality of website visitors for facilitating visitor interactions with
agents, the maximum number of interaction invitations computed
based on a number of active agents;
providing, by the processor, the interaction invitation to the
website visitor in response to determining the interaction invitation
available;
determining, by the processor, an interaction invitation decay
rate for individual website visitors among the plurality of website
visitors based on historical data associated with website visitor
interactions;
detecting, by the processor, an invitation ignore event upon a
failure to receive a website visitor action event corresponding to one
of an invitation acceptance event and an invitation decline event
based on a time threshold associated with the determined interaction
invitation decay rate; and
providing, by the processor, the interaction invitation to
another website visitor in response to detecting the invitation ignore
event.

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THE REJECTION
The following rejection is before us for review:
Claims 1–14, 16–31, and 33 are rejected under 35 U.S.C. § 101 as
being directed to non-statutory subject matter.

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence2.

ANALYSIS
Rejection under 35 U.S.C. § 101
Appellant argues that the rejection of claim 1 is improper because the
claim is not directed to an abstract idea (App. Br. 3, 4; Reply Br. 2–4).
Appellant argues further that the claim is “significantly more” than the
alleged abstract idea (App. Br. 5-8; Reply Br. 4, 5).
In contrast, the Examiner has determined that the rejection of record is
proper (Final Action 3-6, 8-14; Ans. 3-10).
We agree with the Examiner. 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 implicit exceptions: “[l]aws of nature, natural
phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS
Bank Int’l, 573 U.S. 208, 216 (2014).

2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
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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. Id. 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 Alice,
573 U.S. 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, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 192
(1981)); “tanning, dyeing, making waterproof 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
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
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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. (internal citation omitted) (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.”).
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the 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); and
(2) additional elements that integrate the judicial exception into
a practical application, i.e., 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.” (see Guidance, 84 Fed. Reg.
at 54; see also MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look 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
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance.
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 (citation 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.
The Specification at paragraph 3 states that the invention relates to a
computer implemented method for managing visitor interactions. Here, the
Examiner has determined that the claim sets forth a method for determining
if an interaction invitation is available to be offered to visitors for facilitating
visitor interactions with agents (Final Action, 10). We substantially agree
with the Examiner. We determine that the claim sets forth the subject matter
in italics above which describes the concept of determining if an interaction
invitation is available, and extending the invitation if available, which is a
certain method of organizing human activity or a mental process, i.e., a
judicial exception.
A method, like the claimed method, is “a process that employs
mathematical algorithms to manipulate existing information to generate
additional information [and] is not patent eligible.” Digitech Image Techs,
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LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014).
Similarly, in Intellectual Ventures I LLC v. Capital One Bank (USA) 792 F.
3d 1363, 1369 (Fed. Cir. 2015), tailoring content on a website based on a
user’s location and time of day was held to be a directed to an abstract idea.
And in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir.
2016), collecting information, analyzing it, and displaying results from
certain results of the collection and analysis was held to be an abstract idea.
We next determine whether the claims recite additional elements in
the claims to integrate the judicial exception into a practical application. See
Guidance, 84 Fed. Reg. at 54–55. The Revised Guidance references the
MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) §§ 2106.05(a)–(c)
and (e)–(h).
Here, the claims do not improve computer functionality, improve
another field of technology, utilize a particular machine, or effect a
particular physical transformation. Rather, we determine that nothing in the
claims imposes a meaningful limit on the judicial exception, such that the
claims are more than a drafting effort to monopolize the judicial exception.
For example, in claim 1, the steps of [1] “detecting… a website access
event corresponding to a website visitor among a plurality of website
visitors”; [2] “determining…an interaction invitation is available from
among a maximum number of interaction invitations computed to be offered
to the plurality of website visitors”; [3] “providing… the interaction
invitation to the website visitor”; [4] “determining… an interaction
invitation decay rate for individual website visitors among the plurality of
website visitors based on historical data”; [5] “detecting… an invitation
ignore event upon a failure to receive a website visitor action event
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corresponding to one of an invitation acceptance event and an invitation
decline event”; and [6] “providing… the interaction invitation to another
website visitor in response to detecting the invitation ignore event, are
merely steps performed by the claimed additional element of a generic
processor and do not improve computer functionality. That is, these recited
steps [1]–[6] “do not purport to improve the functioning of the computer
itself” but are merely generic functions performed by a conventional
processor. Likewise, these same steps [1]–[6] listed above do not improve
the technology of a technical field and merely use a generic computer
component and functions to perform the steps. Also, the recited method
steps [1]–[6] above do not require a “particular machine” and can be utilized
with a general purpose computer, and the steps performed are purely
conventional. In this case, the general purpose computer, i.e., the processor,
is merely an object on which the method operates in a conventional manner.
Further, the claim as a whole fails to effect any particular transformation of
an article to a different state. The recited steps [1]–[6] fail to provide
meaningful limitations to limit the judicial exception and rather are mere
instructions to apply the method to a generic computer or processor.
Considering the elements of claim 1 both individually and as “an
ordered combination,” the functions performed by the processor at each step
of the process are purely conventional. Each step of the claimed method
does no more than require a generic processor to perform a generic computer
function. Thus, the claimed elements have not been shown to integrate the
judicial exception into a practical application as set forth in the Revised
Guidance which references the MANUAL OF PATENT EXAMINING PROCEDURE
(“MPEP”) §§ 2106.05(a)–(c) and (e)–(h).
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Turning to the second step of the Alice and Mayo framework, we determine
that the claims do not contain an inventive concept sufficient to “transform”
the abstract nature of the claim into a patent-eligible application.
Considering the elements of claim 1, for example, both individually and as
an ordered combination fails to add subject matter beyond the judicial
exception that is not well-understood, routine, and conventional in the field.
Rather, the claim uses well-understood, routine, and conventional activities
previously known in the art that are recited at a high level of generality. The
Specification at paragraphs 18–20 for example describes using conventional
computer components such as a processor and memory in a conventional
manner. The claim specifically includes recitations for a processor to
implement the method but this computer component is used in a manner that
is well-understood, routine, and conventional in the field. Here, the claimed
generic computer component used to implement the claimed method is well
understood, routine, or conventional in the field. Here, claim 1 has not been
shown to be “significantly more” than the abstract idea.
For these above reasons the rejection of claim 1 is sustained.
Appellant has provided the same arguments for the remaining claims which
are drawn to similar subject matter, and the rejection of these claims is
sustained for the same reasons given above.

CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1–14, 16–31, and 33 under 35 U.S.C. § 101.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–14,
16–31, 33
101 Eligibility 1–14,
16–31, 33

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