ASAPP, INC

Patent Trials and Appeals Board

Oct 23, 2020

2020002333 (P.T.A.B. Oct. 23, 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.
15/649,061 07/13/2017 Denisa Anca Olteanu Roberts ASAP-0005-
U01 -TRACK1
6918
156979 7590 10/23/2020
GTC Law Group PC & Affiliates (ASAPP, INC.)
One University Ave., Ste. 302B
Westwood, MA 02090
EXAMINER
KYEREME-TUAH, AKOSUA P
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
10/23/2020 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):
USPATENTS@gtclawgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DENISA ANCA OLTEANU ROBERTS,
SHAWN HENRY, and HUI DAI1
____________________

Appeal 2020-002333
Application 15/649,061
Technology Center 3600
____________________

Before ROBERT E. NAPPI, LARRY J. HUME, and
JULIET MITCHELL DIRBA Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1 through 23. 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). According to Appellant, ASAPP Inc. is the real party in interest.
Appeal Br. 2.
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INVENTION
The invention relates generally to using mathematical models to
determine whether to dispatch a technician for customer support purposes.
Spec. ¶ 1. Claim 1 is reproduced below.
1. A computer-implemented method for responding
to a customer support request:
receiving first text of a first customer support request
from a first customer, wherein the first customer receives a
service from a first company;
computing a first feature vector for input into a
mathematical model, wherein the first feature vector comprises
(i) features computed using the first text of the first customer
support request and (ii) features relating to one or more of an
operational status of the service, previous customer support
requests of the first customer, information obtained from an
account of the first customer, or customer support requests
received from other customers;
determining to dispatch a technician to assist in resolving
the first customer support request by processing the first feature
vector with a dispatch model, wherein the dispatch model is a
mathematical model configured to process a feature vector and
output a decision regarding dispatch of a technician;
selecting a first action from a plurality of possible actions
by processing a second feature vector with a first analysis
model, wherein the first analysis model is a mathematical
model configured to process a feature vector and output values
indicating an action to be performed in response to a customer
support request, and wherein the second feature vector
comprises a feature vector for input into a mathematical model,
and further comprises the first feature vector or another feature
vector;
transmitting to a first person (i) information about the
determination to dispatch a technician to assist in resolving the
first customer support request and (ii) information about the
selected first action;
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receiving second text of a second customer support
request from a second customer, wherein the second customer
receives the service from the first company;
computing a third feature vector for input into a
mathematical model, wherein the third feature vector comprises
(i) features computed using the second text of the second
customer support request and (ii) features relating to one or
more of an operational status of the service,
previous customer support requests of the second
customer, information obtained from an account of the second
customer, or customer support requests received from other
customers determining not to dispatch a technician to assist in
resolving the second customer support request by processing
the third feature vector with the dispatch model;
selecting a second action from a plurality of possible
actions by processing a fourth feature vector with a second
analysis model, wherein the second analysis model is the first
analysis model or another mathematical model configured to
process a feature vector and output values indicating an action
to be performed in response to a customer support request, and
wherein the fourth feature vector comprises a feature vector for
input into a mathematical model, and further comprises the
third feature vector or another feature vector; and
transmitting to a second person (i) information about the
determination not to dispatch a technician to assist in resolving
the second customer support request and (ii) information about
the selected second action.
EXAMINER’S REJECTION2
The Examiner rejected claims 1 through 23 under 35 U.S.C. § 101 for
being directed to patent-ineligible subject matter. Final Act. 2–9.

2 Throughout this Decision we refer to the Appeal Brief filed November 12,
2019 (“Appeal Br.”); Reply Brief filed February 3, 2020 (“Reply Br.”) Final
Office Action mailed May 16, 2019 (“Final Act.”); and the Examiner’s
Answer mailed December 11, 2019 (“Ans.”).
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PRINCIPLES OF LAW
A. Section 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.
However, the U.S. 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).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part 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, 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 waterproof cloth, vulcanizing India
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rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); 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
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 products and not as an
attempt to patent a mathematical formula.”). Having said that, the 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 (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.
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B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. See 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, 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”).4
2019 Revised Guidance, 84 Fed. Reg. at 52–55.

3 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).
4 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 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.
DISCUSSION
Rejection under 35 U.S.C. § 101
The Examiner determines the claims are not patent eligible because
they are directed to a judicial exception without reciting significantly more.
Final Act. 4–9. Specifically, the Examiner determines the claims “recite
receiving a customer support request, computing features of the request and
determining whether to dispatch a technician to assist in resolving the
support request. Thus, the claims recite certain methods of organizing
human activity.” Id. at 6. Additionally, the Examiner considers the
additional limitations (directed to a server, comprising a processor and
memory, and the transmission of information) not to “ integrate the abstract
idea into a practical application because it does not impose any meaningful
limits on practicing the abstract idea.” Id. at 8. Rather the Examiner
considers these limitations to merely recite applying the exception using a
computer and thus the additional limitations only further limit the abstract
idea. Id. Further, the Examiner finds that the additional limitations do not
amount to significantly more as they are “no more than recitation of
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ubiquitous structure recited at a high level of generality such as processor,
memory (see original specification paragraphs [0075]).” Id. at 9.
Patent eligibility under § 101 is a question of law that may contain
underlying issues of fact. “We review the [Examiner’s] ultimate conclusion
on patent eligibility de novo.” Interval Licensing LLC v. AOL, Inc., 896
F.3d 1335, 1342 (Fed. Cir. 2018) (citing Berkheimer v. HP Inc., 881 F.3d
1360, 1365 (Fed. Cir. 2018)); see also SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319, 1331 (Fed. Cir. 2010) (“Whether a claim is drawn
to patent-eligible subject matter is an issue of law that we review de novo.”).
We have reviewed Appellant’s arguments in the Appeal Brief and the Reply
Brief, the Examiner’s rejections, and the Examiner’s response to Appellant’s
arguments. We concur with the Examiner’s findings and conclusions in the
Final Rejection and the Answer. Appellant’s arguments have not persuaded
us of error in the Examiner’s rejection of all the claims under 35 U.S.C.
§ 101 and we address them as they apply to the 2019 Revised Guidance.
Appellant argues the Examiner has overgeneralized the claims and
that the claims do not recite a method of organizing human activity as
identified in the 2019 Revised guidelines. Appeal Br. 18–21, Reply Br. 3.
Appellant argues the claims are similar to those at issue in McRO, Inc. v.
Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) and Enfish,
LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) as the current
claims recite a specific implementation to a problem in customer service
execution and customer service logistics. Appeal Br. 19–20. Appellant
argues that as in Enfish, the claims are not directed to an abstract idea but
rather
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[t]he claims include a technical solution – mathematically
transforming and processing the text into a feature vector, and
processing the feature vector with a model – that results in
greater efficiency and accuracy for dispatching technicians,
saving technician dispatches where they are not needed, and
providing activities that are to be performed by the technicians.
Appeal Br. 19, Reply Br. 4. Additionally, Appellant argues the claims recite
an ordered combination of specific rules and thus are similar to the claims at
issue in McRO. Appeal Br. 20. Further, Appellant argues that the claims
recite significantly more than the abstract idea. Id. at 21. Appellant argues
that the claims are similar to those at issue in BASCOM Global Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) as they
recite an ordered combination of elements that transform the abstract idea
into a practical application. Id.. Appellant argues:
The present claims are directed to a technology-based
solution that overcomes existing problems with customer
service logistics. The neural network and modeling operations
of the present claims improve technician dispatch decisions,
reducing the significant costs associated with an improper
dispatch of a technician where the technician is not needed at
the customer location.
Id. Finally, Appellant argues the Examiner has not presented proof that the
claim elements are a combination of well-understood, routine, and
conventional elements as is required by Berkheimer v. HP Inc., 881 F.3d
1360 (Fed. Cir. 2018). Reply Br. 4.
The Judicial Exception
We concur with the Examiner that the claims recite a concept of
certain methods of organizing human activity. As Appellant has argued
rejection of claims 1 through 23 as a group, we select claim 1 as
representative and address the rejection as it applies to claim 1. The 2019
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Revised Guidance identifies certain method of organizing human activity as
abstract and as including “managing personal behavior or relationships or
interactions between people (including social activities, teaching, and
following rules or instructions).” 2019 Revised Guidance, 84 Fed. Reg. at
52. The Examiner has provided an analysis of the limitations in claim 1
which recite “receiving a customer support request, computing features of
the request and determining whether to dispatch a technician to assist in
resolving the support request.” Final Act. 5–6. We concur with the
Examiner’s analysis, and consider the claim to recite a method of managing
relationships or interactions between people (whether to dispatch a
technician and actions of the technician). Further, we note that Appellant’s
statement “[t]he present claims transform the information from the text of
the customer request into a feature vector, and control the physical
movement of a technician in response to the transformed information” on
page 17 of the Appeal Brief, further supports the conclusion that the claim
recites an abstract concept of managing personal behavior, as Appellant
acknowledges the claim recites control of the physical movement of a
technician. Thus, Appellant’s arguments have not persuaded us the
Examiner erred in determining the claims recite an abstract concept.
Integration of the Judicial Exception into a Practical Application
Further, Appellant’s arguments have not persuaded us the claims
recite a practical application of the abstract concept. We are not persuaded
of error by Appellant’s arguments that the claims at issue are similar to those
at issue in McRO and Enfish. Appeal Br. 19–20. In Enfish, the invention
was directed to a data structure which included a very specifically defined
means for configuring a logical data table that required a four-step algorithm
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to render the table self-referential. Enfish, 822 F.3d at 1336. Further, the
Enfish court found “the plain focus of the claims is on an improvement to
computer functionality itself, not on economic or other tasks for which a
computer is used in its ordinary capacity.” Id. Here, Appellant has not
shown nor does the Specification identify that the system improves the
operation of the computer functionality, rather the Specification identifies
that the invention “relates to using mathematical models to determine
whether to dispatch a technician for customer support purposes” and that the
use of the invention on a computer is to lower the expense associated with
dispatching a technician and improve customer service. Spec. ¶ 0001, 0004.
Thus, we do not consider the claims to be directed to an improvement to
computer functionality itself as in Enfish, but rather an improvement to the
abstract idea.
Similarly, we are unpersuaded of error by Appellant’s arguments that
the claims are similar to those at issue in McRO and BASCOM. In McRO,
the court reviewed claims which use “a combined order of specific rules that
renders information into a specific format that is then used and applied to
create desired results: a sequence of synchronized, animated characters.”
McRO, 837 F.3d at 1315. The court found that the claims did not “simply
use a computer as a tool to automate conventional activity,” but instead used
the computer to “perform a distinct process” that is carried out in a different
way than the prior non-computer method to improve the technology (of 3-D
animation techniques). See McRO, 837 F.3d at 1314–16. Here
representative claim 1 recites computing a feature vector for input to a
model using text from a customer service request and features of a request
for the status of the service, and determining to dispatch a technician, and an
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action, to resolve the customer support. The claim does not recite the
specific steps performed to arrive at the determination of whether or not to
dispatch the technician, or the action to be performed, and the claim does not
recite the specific parameters of the mathematical model. As such the claim
is broad enough to encompass the method a human goes through to make a
decision (e.g. the customer service representative implementing a policy that
if the request is the third request from the same customer in a two week time
frame, deciding to dispatch a technician). Thus, we disagree with Appellant
that representative claim 1 is patent eligible as recites an ordered
combination of specific rules as in McRO.
Further, we are not persuaded by Appellant’s argument on page 21 of
the Appeal Brief, that the clam recites a technology-based solution that
overcomes existing problems with the use of a neural network and modeling
operations. Initially, we note that argument is not commensurate with the
scope of representative claim 1, which does not recite use of a neural
network. Further, as discussed above, we consider the claim to be directed
to a method of organizing human activity (an abstract idea) implemented on
a computer and not an improvement to the operation of the computer (a
technological improvement). Thus, Appellant has not persuaded us the
Examiner erred in not considering the claim to recite a practical application
of the abstract concept.
Significantly More than the Abstract Idea
Under the 2019 Revised Guidance, if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
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conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
In response to Appellant’s Berkheimer argument (Reply Br. 4),
identified supra, we note the Examiner found that “[t]he additional elements
are server, processor, memory, output, and transmit. . . . are no more than
mere instructions to apply the exception using computer components” and
cites to Appellant’s Specification to support the finding that additional
elements are using generic computer components. Ans. 4. (citing
Specification ¶ 75). We concur with the Examiner. Appellant’s
Specification in paragraph 75 states the processor “may be any kind of
computational or processing device” and does not specify any specific or
unique types or operations or arrangements of memory. Further, the act of
transmitting data is considered a generic computer function. See MPEP §
2106.05(d) II (iv), OIP Techs., Inc., v. Amazon.com, Inc. 788 F.3d 1359,
1363 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v.
Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (computer receives and
sends information over a network).
In summary, Appellant’s arguments have not persuaded us of error in
the Examiner’s determination that representative claim 1 recites an abstract
idea, a method of organizing human activity. Further, Appellant’s
arguments have not persuaded us that the Examiner erred in finding that the
claim is not directed to an improvement in the functioning of the computer
or to other technology or other technical field; directed to a particular
machine; directed to performing or affecting a transformation of an article to
a different state or thing; or directed to using a judicial exception in some
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meaningful way beyond linking the exception to a particular technological
environment, such that the claim as a whole is more than a drafting effort to
monopolize the judicial exception.
For these reasons, we are unpersuaded that the claims recite additional
elements that integrate the judicial exception into a practical application, nor
do the claims add a specific limitation beyond the judicial exception that is
not “well-understood, routine, conventional.” See 2019 Revised Guidance,
84 Fed. Reg. at 54. Accordingly, we sustain the Examiner’s rejection of
representative claim 1, and claims 2 through 23 grouped with claim 1, under
35 U.S.C. § 101 as being directed to a patent-ineligible abstract idea, that is
not integrated into a practical application, and does not include an inventive
concept.
CONCLUSION
We affirm the Examiner’s rejection of claims 1 through 23 under 35
U.S.C. § 101.
In summary:
Claim
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–23 101 Eligibility 1–23
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED