EBAY INC.

Patent Trials and Appeals Board

Mar 3, 2020

14206808 - (D) (P.T.A.B. Mar. 3, 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.
14/206,808 03/12/2014 Kamal Zamer P2400US1/17666.0241US01 8492
145704 7590 03/03/2020
M&G eBay
P.O. Box 2903
Minneapolis, MN 55402
EXAMINER
HENRY, MATTHEW D
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
03/03/2020 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):
USPTO145704@merchantgould.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAMAL ZAMER
Appeal 2019-002277
Application 14/206,808
Technology Center 3600
Before: JAMES R. HUGHES, CATHERINE SHIANG, and
JASON J. CHUNG, Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Claims 1–15 and 21–25 are pending, stand rejected, are appealed by
Appellant,1 and are the subject of our decision under 35 U.S.C. § 134(a).
See Final Act. 1–2.2 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) (2015). Appellant identifies the real party in interest as eBAY Inc.
Appeal Br. 3.
2 Throughout our decision we refer to Appellant’s Specification filed Mar.
12, 2014 (“Spec.”); Appeal Brief filed Sept. 25, 2018 (“Appeal Br.”); and
Reply Brief filed Jan. 22, 2019 (“Reply Br.”). We also refer to the
Examiner’s Final Office Action mailed Jan. 26, 2018 (“Final Act.”); and
Answer mailed Nov. 21, 2018 (“Ans.”).
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CLAIMED SUBJECT MATTER
The invention “generally relates to merchant physical locations, and
more particularly to a service experience score system that quantifies
customer service experiences at merchant physical locations.” Spec. ¶¶ 1;
see Spec. ¶¶ 2–4, 29, and Abstract. Claims 1 (reciting a system), 7 (reciting
a method), and 22 (reciting a system) are independent. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A physical location service experience score
system, comprising:
a non-transitory memory storing computer executable
instructions that, when executed by one or more hardware
processors, cause the service experience score system to
perform a method, comprising:
[A] receiving a first sensor signal from a first beacon
device through a first wireless communication system using a
first wireless communication protocol, wherein the first sensor
signal is based on a communication between the first beacon
device and a user device through a second wireless
communication system using a second wireless communication
protocol, and wherein the first beacon device is located at a first
physical location and is associated with a first wireless
coverage area;
[B] determining a start of a user service experience when
the first sensor signal is received;
[C] receiving a second sensor signal from a second
beacon device through a third wireless communication system
using the first wireless communication protocol, wherein the
second sensor signal is based on a communication between the
second beacon device and the user device through a fourth
wireless communication system associated with the second
beacon device using the second wireless communication
protocol, and wherein the second beacon is located at a second
physical location and is associated with a second wireless
coverage area, and wherein at least a portion of the second
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wireless coverage area overlaps with the first wireless coverage
area to provide a combined coverage area;
[D] determining, based at least in part, on the second
sensor signal, that a first service event has occurred subsequent
to the start of the user service experience;
[E] determining an end of the user service experience
when the first sensor signal is no longer received;
[F] generating a first service experience score that is
based, at least in part, on:
the start of the user service experience;
the end of the user service experience; and
a second service experience score based on the first
service event;
[G] generating a total service experience score based, at
least in part, on the first service experience score and the second
service experience score;
[H] storing the total service experience score, the first
service experience score, and the second service experience
score in a database associated with a client device associated
with one or more of the first beacon device and the second
beacon device; and
[I] generating a service experience score map on a
display device that includes the total service experience score,
the first service experience score and the second service
experience score associated with one or more of the first
physical location and the second physical location.
Appeal Br. 24–25 (Claims App.) (bracketed claim limitation designations
added).

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REFERENCES
The prior art relied upon by the Examiner as evidence is:

Name Reference Date
Sabongi et al.
(“Sabongi”)
US 2003/0200147 A1 Oct. 23, 2003

Takaki et al.
(“Takaki”)
US 2004/0224703 A1 Nov. 11, 2004

Stephens US 2010/0267387 A1 Oct. 21, 2010
Moshfeghi US 2013/0030931 A1 Jan. 31, 2013
Gauba et al.
(“Gauba”)
US 8,818,403 B1 Aug. 26, 2014
(filed Feb. 14, 2012)

REJECTIONS3
1. The Examiner rejects claims 1–15 and 21–25 under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Act. 10–15.
2. The Examiner rejects claims 1–5, 7–14, and 21–24 under 35
U.S.C. § 103(a) as being unpatentable over Sabongi, Stephens, and Takaki.
Final Act. 14–28.
3. The Examiner rejects claims 6 and 15 under 35 U.S.C. § 103(a)
as being unpatentable over Sabongi, Stephens, Takaki, and Moshfeghi.
Final Act. 28–30.

3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
Stat. 284 (2011), amended 35 U.S.C. § 103, e.g., to rename 35 U.S.C.
§ 103’s subsections. Because the present application has an effective filing
date after to the AIA’s effective date for applications, this decision refers to
the AIA version of 35 U.S.C. § 103.
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4. The Examiner rejects claim 25 under 35 U.S.C. § 103(a) as
being unpatentable over Sabongi, Stephens, Takaki, and Gauba. Final Act.
30–31.
ANALYSIS
Subject Matter Eligibility—35 U.S.C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for “any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof.” The Supreme Court has “long held that
this 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) (quoting Association for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 77–80 (2012). “[F]or distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim patent-
eligible applications of those concepts.” Alice, 573 U.S. at 217. The
framework requires us first to consider “whether the claims at issue are
directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217.
If so, we then examine “the elements of [the] claim both individually and ‘as
an ordered combination’ to determine whether the additional elements
‘transform the nature of the claim’ into a patent-eligible application.” Alice,
573 U.S. at 217 (quoting Mayo, 566 U.S. at 78, 79). That is, we examine the
claim for an “inventive concept,” “an element or combination of elements
that is ‘sufficient to ensure that the patent in practice amounts to
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significantly more than a patent upon the [ineligible concept] itself.’” Alice,
573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73).
The Patent Office has published revised guidance concerning this
framework and the application of § 101. USPTO’s 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(hereinafter “2019 Revised Guidance”). Under that guidance, we first look
to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, mental processes, or
certain methods of organizing human activity such as a
fundamental economic practice or managing personal behavior
or relationships or interactions between people) (hereinafter
“Step 2A, prong 1”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(hereinafter “Step 2A, prong 2”).4
See 2019 Revised Guidance, 84 Fed. Reg. 51–52, 55.
A claim that integrates a judicial exception into a practical application
applies, relies on, or uses 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 2019
Revised Guidance, 84 Fed. Reg. 54. When the judicial exception is so
integrated, then the claim is not directed to a judicial exception and is patent
eligible under 35 U.S.C. § 101. See 2019 Revised Guidance, 84 Fed. Reg.
54.

4 All references to the MPEP are to the Ninth Edition, Revision 08-2017
(rev. Jan. 2018).
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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 evaluate
whether the claim provides an inventive concept. See 2019 Revised
Guidance, 84 Fed. Reg. 56; see also Alice, 573 U.S. at 217–18.
For example, we 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
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.5
See 2019 Revised Guidance, 84 Fed. Reg. 56. With these principles in
mind, we turn to the merits of the § 101 rejection. The Examiner rejects
Appellant’s claims 21–28, 30–38, 41, and 47–53 as being directed to patent-
ineligible subject matter. See Final Act. 4–5; Ans. 3–4. Appellant does not
separately argue the claims with specificity and, instead, argues the claims
together for this rejection. See Appeal Br. 7. Accordingly, we address the
Examiner’s rejection of independent claim 21 and the claims not separately
argued by Appellant as a group based on claim 21, as permitted by 37 C.F.R.
§ 41.37(c)(1)(iv).
Statutory Subject Matter
Claim 1 recites a “system” (supra). Appellant’s “system” uses a
processor (“one or more hardware processors”) and a “memory” that stores
“computer executable instructions,” which “when executed by [the

5 Items (3) and (4) are collectively referred to as “Step 2B” hereinafter and
in the 2019 Revised Guidance.
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processor] cause the service experience score system to perform a method”
comprising a number of functions or steps. Appeal Br. 24 (Claims App.)
(claim 1). Accordingly, we analyze Appellant’s system as a process, which
is a statutory category of invention (subject matter) (USPTO’s Step 1).
Abstract Idea
The Examiner rejects Appellant’s claim 1 as being directed to patent-
ineligible subject matter. See Final Act. 10–12; Ans. 3–11. Specifically, the
Examiner concludes claim 1 and the other independent claims are directed
an “idea of itself,” which is an “abstract idea[]” and the recited functionality
“(collecting information, analyzing it, and displaying it . . .)” is similar to
Electric Power Group (Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350 (Fed. Cir. 2016)), “which are concepts held by the courts to be
abstract.” Final Act. 11. The Examiner further concludes the recited
functionality (“receiving, determining, . . . generating, [and] storing”) is
“directed toward the abstract concept of collecting information, analyzing it,
and displaying it because the collected signals are used to generate . . .
service experience scores . . . then adding up the first and second service
experience score[s] to get a total service experience score (e.g. analysis) and
then displaying that data on a service experience score map.” Final Act. 11–
12.
Appellant contends the Examiner erred in rejecting the claims as
being directed to patent-ineligible subject matter. See Appeal Br. 9–13;
Reply Br. 3–5. Specifically, Appellant contends, with respect to the first
step of the Alice analysis, that the instant claims “are similar to the claims in
Thales” (Thales Visionix Inc. v. United States, 850 F.3d. 1343, 1349 (Fed.
Cir. 2017)) and
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the claims at issue are not merely directed to the abstract idea of
collecting information, analyzing the information, and
displaying the information. Rather, the claims are directed to
systems and methods that use signals from beacon devices
positioned in and/or around a physical location of a merchant to
generate service experience scores associated with the merchant.
Accordingly, Appellant[] submit[s] that the claims are not
directed to an abstract idea and instead recite patent eligible
subject matter.
Appeal Br. 11. Appellant also contends “the claims have been
oversimplified and the Examiner fails to account for the specific
requirements of the claims.” Appeal Br. 11. Appellant further contends the
claims (in particular claim 1) embody a technical improvement—“claim 1
recites specific, technical features to overcome problems that arise in the
realm of service experience score systems that quantify, score, and/or
provide feedback regarding customer service experiences.” Appeal Br. 12.
Appellant additionally contends claim 1 is (and the other pending claims are)
similar to the claims in DDR Holdings (DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245 (Fed. Cir. 2014)). Appeal Br. 12.
For the reasons discussed below, we conclude Appellant’s claim 1
(and the other pending claims) recites abstract ideas, these abstract ideas are
not integrated into a practical application, nor do they include an inventive
concept. In view of the 2019 Revised Guidance, we clarify and expand the
Examiner’s reasoning as follows.
We begin our analysis by broadly but reasonably construing
Appellant’s claim 1(see Appeal Br. 24–25 (Claims App.)). Omitting the
portions of the claim invoking use of generic technology (which are
discussed separately below), claim 1 focuses on (as stated in the preamble)
“[a] physical location service experience score system” that “perform[s] a
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method, comprising” several functions or steps. These steps (functions)
elaborate on the functionality of the service experience scoring process, and
comprise “receiving” or collecting information—(A) “receiving a first
sensor signal from a first beacon device through a first wireless
communication system using a first wireless communication protocol” that
is “based on a communication between the first beacon device and a user
device through a second wireless communication system using a second
wireless communication protocol,” and (C) “receiving a second sensor
signal from a second beacon device through a third wireless communication
system using the first wireless communication protocol” that is “based on a
communication between the second beacon device and the user device
through a fourth wireless communication system associated with the second
beacon device using the second wireless communication protocol.” The
service experience scoring process also comprises analyzing and
manipulating the collected information—(B) “determining a start of a user
service experience when the first sensor signal is received,” (D)
“determining” “a first service event has occurred subsequent to the start of
the user service experience” based on “the second sensor signal,” (E)
“determining an end of the user service experience when the first sensor
signal is no longer received,” (F) “generating a first service experience score
“based” “on” “the start of the user service experience,” “the end of the user
service experience,” and “a second service experience score based on the
first service event,” and (G) “generating a total service experience score
based” “on the first service experience score and the second service
experience score.” The service experience scoring process further comprises
storing the experience score information and displaying the experience score
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information—(H) “storing the total service experience score, the first service
experience score, and the second service experience score in a database,”
and (I) “generating a service experience score map on a display device that
includes the total service experience score, the first service experience score
and the second service experience score associated with one or more of the
first physical location and the second physical location.”
Apart from the use of generic technology (discussed further below),
each of the limitations of claim 1 describes “‘collecting information,
analyzing it, and displaying certain results of the collection and analysis,’
where the data analysis steps are recited at a high level of generality such
that they could practically be performed in the human mind.” October 2019
Update: Subject Matter Eligibility 7, available at https://www.uspto.gov
/sites/default/files/documents/peg_oct_2019_update.pdf (hereinafter
“October 2019 Update”). The service experience scoring process amounts
to a mental process (“idea of itself”—see Final Act. 11) that is very similar
to Electric Power Group. See Elec. Power Grp., 830 F.3d at 1351–54.
A person can practically perform the function of limitations B and D–
G (the “determining” and “generating” steps) mentally, or by using pen and
paper. Nowhere does Appellant point to specific claim limitations that
distinguish over a human process. Further, the revised guidance explains
that “mental processes” include acts that people can perform in their minds
or using pen and paper, even if the claim recites that a generic computer
component performs the acts. See 2019 Revised Guidance, 84 Fed. Reg. 52
n.14 (“If a claim, under its broadest reasonable interpretation, covers
performance in the mind but for the recitation of generic computer
components, then it is still in the mental processes category unless the claim
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cannot practically be performed in the mind.”) Because each of the
limitations discussed above encompasses an act that people can perform in
their minds or using pen and paper, claim 1 recites mental processes.
Appellant’s arguments have not persuaded us otherwise. See 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); Content Extraction & Transmission LLC v. Wells Fargo
Bank, Nat’l Ass’n, 776 F.3d 1343, 1345, 1347 (Fed. Cir. 2014) (Finding the
“claims generally recite . . . extracting data [and] recognizing specific
information from the extracted data” and that the “claims are drawn to the
basic concept of data recognition.”). Even where the analysis requires one
to access and gather data, or utilize a pen and paper in the analysis, such
analysis may still be an abstract mental process. See CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011) (“[E]ven if
some physical steps are required to obtain information from the database . . .
such data-gathering steps cannot alone confer patentability.”). Additionally,
The “receiving” steps (limitations A and C), as well as the storing and
displaying steps (limitations H and I) amount to extra-solution activity to the
mental process.
Also, apart from the use of generic technology (discussed further
below), each of the limitations of claim 1 describes activities that would
normally be performed in evaluating a customer’s service experience:
limitations (A)–(C) describe collecting information (sensor signals),
limitations (B) and (D–G) describe analyzing the collected information to
determine user experience start and end times and generate experience
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scores based on thereon, and limitations (H) and (I) involve storing and
displaying the information.
As stated in the Revised Guidance, subject matter relating to
commerce is an example of organizing human activity, and in particular a
fundamental economic practice. October 2019 Update 5; Revised Guidance,
84 Fed. Reg. 52. The interaction between a customer and a service provider
(e.g., tracking a consumer entering a merchant’s physical location, paying
for a purchase, and leaving a merchant’s physical location (see Spec. ¶ 29 (p.
4, ll. 5–23) to provide a wait time for service (see Spec. ¶ 3) falls under this
description. Analogous authority includes, e.g., Secured Mail Solutions LLC
v. Universal Wilde, Inc., 873 F.3d 905, 911 (Fed. Cir. 2017) (tracking an
object or “using a marking affixed to the outside of a mail object to
communicate information about the mail object” is an abstract idea).
Appellant’s contentions (supra) focus on the Examiner’s purported
improper interpretation of the claims (in particular claim 1). See Appeal Br.
11. Here, in rejecting the claims (in particular claim 1) under 35 U.S.C.
§ 101, the Examiner analyzed the claims using the Mayo/Alice two-step
framework, consistent with the guidance set forth in the USPTO’s “2014
Interim Guidance on Patent Subject Matter Eligibility,” 79 Fed. Reg. 74618
(Dec. 16, 2014), in effect at the time the rejection was made on Jan. 26,
2018. The Examiner notified Appellant of the reasons for the rejection
“together with such information and references as may be useful in judging
of the propriety of continuing the prosecution of . . . [the] application.”
35 U.S.C. § 132; see Final Act. 10–12. In doing so, the Examiner set forth a
prima facie case of unpatentability such that the burden of production shifted
to Appellant to demonstrate that the claims are patent eligible.
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Appellant also contends the at-issue claims are similar to the claims in
Thales, are not abstract, and that the claims (in particular claim 1)
demonstrate a technical improvement. See Appeal Br. 11–12. Claim 1 (and
the other pending claims), however, are not similar to the patent-eligible
claims of Thales. In Thales, the issue involved whether the claims were
directed to a mathematical concept, not a mental process or organizing
human activity as in claim 1 (and the other pending claims). See supra;
Thales, 850 F.3d. at 1347–49; see also October 2019 Update 3 (discussing
Thales. The claims in Thales were found to be “directed to systems and
methods that [used] inertial sensors in a non-conventional manner to reduce
errors in measuring the relative position and orientation of a moving object
on a moving reference frame,” as well as “a new and useful technique for
using sensors to more efficiently track an object on a moving platform,”
rather than a mathematical concept. Thales, 850 F.3d. at 1348–49. In other
words, Thales is directed to a new way of tracking an object utilizing
common inertial sensors (in an uncommon manner).
Claim 1, however, recites no substantive limitations on how the
service experience scoring process determines and generates the service
experience scores (except that the data/information is received (collected)
from the beacons, which is in turn provided via a network using a particular
protocol). The limitations are functional in nature, or characterize various
data utilized in limitations (B) and (D–G). The recited system devices (e.g.,
the processor, beacons, and user device) are additional elements that are not
part of the abstract idea analysis.
Although Appellant contends the claims describe purported
technological improvements or advances provided by service experience
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scoring process, claim 1 (and the other pending claims) does not explicitly
recite any specific improvements to technology, i.e., the system performing
any improved processing or analysis. Claim 1, instead, simply recites
receiving information and analyzing the information to generate service
experience scores.
To the extent Appellant argues utilizing devices (e.g., the processor
and beacons) to perform the recited functionality is not abstract, Appellant
misconstrues the inquiry. As we explained supra, the devices are additional
elements that are not part of this part of the abstract idea analysis. The
relevant inquiry is whether the processes (functionality) recited in the claims
(in particular claim 1) are abstract.
In summary, we conclude Appellant’s claim 1 recites a judicial
exception (USPTO’s Step 2A, Prong 1; see 2019 Revised Guidance).
Specifically, claim 1 recites a process for providing service experience
scores—the service experience scoring process—by receiving sensor signals
(information from beacons) to determine user experience start and end times
and generate experience scores based thereon as discussed supra. The
service experience scoring process consists of methods of organizing human
activity and mental processes that can be practically performed in the human
mind (or utilizing pen and paper) including observation, evaluation, or
judgment. See 2019 Revised Guidance, 84 Fed. Reg. 52, 53 (listing
“[c]ertain methods of organizing human activity—fundamental economic
principles or practices” and “[m]ental processes—concepts performed in the
human mind (including an observation, evaluation, judgment, opinion)” as
some of the “enumerated groupings of abstract ideas” (footnote omitted)).
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Practical Application
Having determined that claim 1 recites an abstract idea, we next
determine, under Step 2A, Prong 2 of the 2019 Revised Guidance, whether
the claims are directed to that abstract idea, or whether the claims integrate
the abstract idea into a practical application of that abstract idea. See 2019
Revised Guidance, 84 Fed. Reg. 54. In doing so, we evaluate the claim as a
whole to determine whether the claim “integrate[s] the [abstract idea] into a
practical application, using one or more of the considerations laid out by the
Supreme Court and the Federal Circuit.” 2019 Revised Guidance, 84 Fed.
Reg. 55; see also October 2019 Update 12 (discussing the practical
application analysis). That is, we consider any additional elements recited in
the claim along with the limitations that recite an abstract idea to determine
whether the claim integrates the abstract idea into a practical application.
See October 2019 Update 12.
Claim 1 recites additional elements beyond the abstract service
experience scoring process (the judicial exception). The additional elements
in claim 1 include the processor (“one or more hardware processors”),
memory (“non-transitory memory storing computer executable
instructions”), beacon devices (“first beacon device” and “second beacon
device”), wireless communication systems (“first wireless communication
system using a first wireless communication protocol,” “second wireless
communication system using a second wireless communication protocol,”
“third wireless communication system using the first wireless
communication protocol,” and “fourth wireless communication system . . .
using the second wireless communication protocol”), user device, database
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(“a database associated with a client device”), and a display device. Appeal
Br. 24–25 (Claims App.) (claim 1).
Appellant’s Specification describes “a system and method for
providing a service experience score for a merchant physical location”
utilizing a “plurality of beacon devices provided at the merchant physical
location” that “communicate with customer devices around and throughout
the merchant physical location during customer visits to the merchant
physical location” to “determine a start of a user service experience” (“[f]or
example, the system . . . may communicate with the user device of a
customer entering the merchant physical location”), “to determine an end of
the user service experience” ([f]or example, the system . . . may
communicate with the user device of a customer paying a bill or leaving the
merchant physical location”), and generate “service experience score[s].”
Spec. ¶ 29 (see p. 4, ll. 5–23). The “generated service experience score[s]
[are] stored in a database in association with a merchant that is associated
with the merchant physical location” and the “generated and stored user
service experience scores from a plurality of different customers may be
used to provide any customer with . . . information regarding a possible visit
to the merchant physical location” (e.g., “an overall time that may be
required for their visit to the merchant physical location” or “a variety of
other expected service times during a service experience”). Spec. ¶ 29 (see
p. 4, ll. 5–23).
The Specification describes the operations and structure of the
beacons and communication systems. See Spec. ¶ 32, and Fig. 2.
Specifically the Specification describes the beacons and communication
systems as generic network (computer system) components—“beacon
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device 200 includes a chassis that houses a first communications system 204
such as, for example, a Wifi communications system;” “a beacon engine 206
that may be provided by instruction on a memory system” “that, when
executed by a processing system” “cause[s] the processing system to
perform the functions of the beacon device;” and “a second communication
system 208 such as, for example, a Bluetooth® Low Energy (BLE)
communication system.” Similarly, the Specification also describes the
“service experience score system” (claim 1), its processor(s), and
memor(ies), as well as the user (customer) device(s). See Spec. ¶¶ 73–77,
and Fig. 8. Specifically the Specification describes the system, processor(s),
memories, and user device(s) as generic computer system components—the
“system 800 may comprise . . . a plurality of servers” (Spec. ¶ 73) such as
“merchant device 804 . . . and/or system provider device 810[, which] may
each include one or more processors, memories, and other appropriate
components for executing instructions such as program code” (Spec. ¶ 75)
and “the customer devices 802” (the recited user device(s)) “may be a smart
phone, personal digital assistant (PDA), laptop computer, and/or other types
of computing devices” (Spec. ¶ 77).
Further, Appellants Specification describes a generic computer system
that can be used to implement any of the enumerated devices—“Fig. 10,
[illustrates] an embodiment of a computer system 1000 suitable for
implementing, for example, the customer devices 700 or 802, merchant
device 804, [and] beacon devices 200, 504” (Spec. ¶¶ 84). See Spec. ¶¶ 84–
90, and Fig. 10. Appellants Specification also describes a generic display
(for displaying the service experience information)—“a display component
1014” may be, for example, a “CRT or LCD.” Spec. ¶ 85. Thus,
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Appellant’s Specification describes the additional elements at a high level of
generality. See Spec. ¶¶ 73–77, 84–90, and Figs. 8, 10.
In summary, Appellant’s written description does not portray the
processor, beacons, communications systems, or other enumerated
additional elements as anything but standard computer components. Nor
does Appellant’s written description portray these components as operating
in a new way. Instead the written description depicts these components as
generic components operating in their accustomed manner.
Accordingly, Appellant’s written description shows that additional
elements are generic. See Hybritech Inc. v. Monoclonal Antibodies, Inc.,
802 F.2d 1367, 1384 (Fed. Cir. 1986) (“[A] patent need not teach, and
preferably omits, what is well known in the art.”); Intellectual Ventures I
LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The
claimed mobile interface is so lacking in implementation details that it
amounts to merely a generic component (software, hardware, or firmware)
that permits the performance of the abstract idea, i.e., to retrieve the user-
specific resources.”).
None of these additional elements, whether taken alone or in the
context of the claims as a whole, integrate the judicial exception into a
practical application. In particular, the recited limitations including the
additional elements may improve the mental process and fundamental
economic practice of providing service experience scores, but do not
describe an improvement in the functioning of a computer, or an
improvement to other technology or technical field. See Revised Guidance,
84 Fed. Reg. 55.
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Appellant contends claim 1 (and the other pending claims) provides a
technical improvement similar to the claims in DDR Holdings. See Appeal
Br. 12–13. In other words, Appellant contends the claims recite a
technological improvement that amounts to more than simply utilizing a
computer as a tool to accomplish the service experience scoring process.
Appellant’s contentions correspond to the reasoning in MPEP
§ 2106.05(a)–(c), where additional elements integrate the judicial exception
into a practical application. We, however, disagree with Appellant’s
contentions. Appellant’s additional elements do not apply or use the service
experience scoring process (the judicial exception) in a manner that imposes
a meaningful limit on the judicial exception, such that it is more than a
drafting effort designed to monopolize the exception. See Alice, 573 U.S. at
221–24 (citing Mayo, 566 U.S. at 78–85). Rather, Appellant’s claim recites
generic computer elements (e.g., the processor and beacons) that are utilized
as tools to carry out the collection of information and information analysis to
determine user experience start and end times and generate experience
scores as discussed supra. Utilizing computers as tools to perform common
data information analysis and data collection functions that can be mental
processes (an abstract idea) does not impose a meaningful limit on the
abstract idea. See MPEP § 2106.05(f); see also Alice, 573 U.S. at 223
(Finding “if [the] recitation of a computer amounts to a mere instruction to
implement an abstract idea on a computer that addition cannot impart patent
eligibility.”) (quotations and citations omitted).
Appellant’s claim 1 (and the other pending claims) can be
distinguished from patent-eligible claims such as those in McRO, Enfish,
BASCOM, and DDR Holdings that are directed to “a specific means or
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method that improves the relevant technology” (McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016)), or “a
specific improvement to the way computers operate” (Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016)), solving a
technology-based problem (BASCOM Global Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1349–52 (Fed. Cir. 2016)), or a method
“rooted in computer technology in order to overcome a problem specifically
arising in the realm of computer [technology]” (DDR Holdings, 773 F.3d at
1257). Contrary to Appellant’s arguments, claim 1 is not a technological
improvement or an improvement in a technology. Appellant’s claim 1 does
not “improve the functioning of the computer itself” or “any other
technology or technical field.” Alice, 573 U.S. at 225. Nor does it provide a
technological solution to a technological problem. See DDR Holdings, 773
F.3d at 1257; MPEP § 2106.05(a). Appellant fails to explain sufficiently
and persuasively how the instant claim(s) are directed to an improvement in
the way computers operate, nor has Appellant identified any technical
advance or improvement or specialized computer components. See Appeal
Br. 12–13.
In summary, “the focus of the claims is not on such an improvement
in computers as tools, but on certain independently abstract ideas that use
computers as tools.” Elec. Power Grp., 830 F.3d at 1354; see also MPEP
§ 2106.05(f) (instructing Examiners to consider “[w]hether the claim
invokes computers or other machinery merely as a tool to perform an
existing process” in determining whether the claim recites mere instructions
to apply the exception) (cited in 2019 Revised Guidance, 84 Fed. Reg. 55,
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n.30) (emphasis omitted). Thus, we conclude the claims are directed to an
abstract idea that is not integrated into a practical application.
Inventive Concept
Having concluded Appellant’s claims are directed to an abstract idea
under the 2019 Revised Guidance (Step 2A analysis), we consider whether
claim 1 has an inventive concept, that is, whether the claim has additional
elements that “‘transform the nature of the claim’ into a patent-eligible
application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78, 79). As
discussed above, this requires us to evaluate whether the additional claim
elements add “a specific limitation or combination of limitations that are not
well-understood, routine, conventional activity in the field” or “simply
append[] well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality.” 2019 Revised
Guidance, 84 Fed. Reg. 56.
The Examiner determined that Appellant’s claim 1 (and the other
pending claims)
as a whole, do not amount to significantly more than the
abstract idea itself. This is because the claims do not affect an
improvement to another technology or technical field; the
claims do not amount to an improvement to the functioning of a
computer itself; and the claims do not move beyond a general
link of the use of an abstract idea to a particular technological
environment. The claims merely amount to the application or
instructions to apply the abstract idea using a computer and
generic hardware/software, and is considered to amount to
nothing more than requiring a computer workstation and
generic hardware/software to merely carry out the abstract idea
itself.
Ans. 6; see Final Act. 12–13; Ans. 4–11.
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Appellant does not address explicitly which additional elements are
not well-known, routine, or conventional, or how the additional elements
perform functions that are not well-known, routine, and conventional with
respect to the second step of the Alice analysis. Appellant does, however,
contend claim 1 (as well as the other pending claims) should be upheld
under the Step 2B analysis. Appeal Br. 11; see Appeal Br. 11–13.
Specifically, Appellant contends the Examiner “oversimplified” the claims
(Appeal Br. 11), and “claim 1 recites specific, technical features to
overcome problems that arise in the realm of service experience” (Appeal
Br. 12), i.e., a technical improvement similar to the claims in DDR Holdings.
Appeal Br. 11–13. Appellant also contends “the Examiner fails to provide
support for the allegation that the additional elements in the claims represent
well-known, routine, and conventional functions.” Appeal Br. 13 (citing
Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)).
In the Reply Brief, Appellant contends claim 1 “recites specific,
technical features to overcome problems that arise in the realm of service
experience score systems that quantify, score, and/or provide feedback
regarding customer service experiences” (Reply Br. 7); that “the claims add
specific limitations or combinations of limitations that are not well-
understood, routine, conventional activities in the field of service experience
score systems” (Reply Br. 7); “the present invention provides a variety of
benefits to merchants and/or customers” (Reply Br. 7); and “the claims are
directed towards processing that amounts to significantly more than mere
instructions performed by a general purpose computer” (Reply Br. 8),
similar to the claims in DDR Holdings. See Reply Br. 6–8. Appellant also
reiterates the argument that the “Examiner does not provide express written
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support” that “the additional elements . . . are well-known, routine, and
conventional.” Reply Br. 8.
Appellant fails to persuade us of error in the Examiner’s rejection
with respect to the second Alice step (USPTO’s Step 2B). We agree with the
Examiner that Appellant’s claim 1 (as well as the other pending claims) does
not evince an “inventive concept” that is significantly more than the abstract
idea itself. In particular, Appellant fails to explain how the additional
elements (supra) add specific limitations beyond the judicial exception that
are not well-understood, routine, and conventional in the field.
As previously discussed, claim 1 merely recites additional non-
abstract elements (processor(s), beacons, communications systems user
device(s), database(s), and display device(s)) that perform the service
experience scoring process. The record supports the Examiner’s findings
(see Final Act. 12–13; see also Ans. 4–11) that the additional elements,
individually and as an ordered combination, are generic computer
components that carry out common information collection and analysis
functions recited in the service experience scoring process (the abstract
idea), and that the additional elements are well-understood, routine, and
conventional, specified at a high level of generality. See, e.g., Spec. ¶¶ 73–
77, 84–90; see also Revised Guidance, 84 Fed. Reg. 56.
Such conventional computer processes operating on conventional
computer hardware “do not alone transform an otherwise abstract idea into
patent-eligible subject matter.” FairWarning IP, LLC v. Iatric Sys., Inc.,
839 F.3d 1089, 1096 (Fed. Cir. 2016) (citing DDR Holdings, 773 F.3d at
1256). Further, generically claimed elements of processor(s), memories, and
program instructions have been found to be no more than well-understood,
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routine, and conventional activity in the context of gathering, assembling,
and analyzing information. See, e.g., Berkheimer, 881 F.3d at 1370 (“These
conventional limitations of claim 1, combined with limitations of analyzing
and comparing data and reconciling differences between the data . . . .
amount to no more than performing the abstract idea of parsing and
comparing data with conventional computer components.”).
To the extent that Appellant argues that the purported technical
improvements and benefits of the service experience score system as a
whole (the service experience scoring process (the abstract idea) in
conjunction with the additional elements) provide significantly more than
the abstract idea, we are not persuaded. See Appeal Br. 11–13; Reply Br. 6–
8. The purported benefits and improvements—e.g., that “the service
experience scores may provide a customer with a breadth of information . . .
including an overall time that may be required for their visit to the merchant
physical location,” or that the “mapped service experience scores may be
used to assist customers in selecting between different merchant physical
locations” (Appeal Br. 12–13; Reply Br. 7–8)—flow from the abstract idea
and not the additional elements. That is, other than using generic
technology, the purported benefits and improvements are elaborations on the
basic abstract idea itself. “It is clear from Mayo that the ‘inventive concept’
cannot be the abstract idea itself.” Aatrix Software, Inc. v. Green Shades
Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018).
Appellant also fails to persuade us that the Examiner did not support
the determination that the additional elements are well-known, routine, and
conventional. The Examiner provides citations to case precedent to support
the determination—see, e.g., Final Act. 12 (citing Electric Power Group):
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displaying/presenting data (references in Electric Power Group
p. 9-10) have been identified as well-known, routine, and
conventional steps/functions . . . . For example[,] . . . [the
claims] present non-transitory memory, processors, storage
devices, user device, database, a first and second
communication system, first/second sensor signals, display
device, and first/second beacon devices; however, these
elements merely facilitate the claimed functions at a high level
of generality and they perform conventional functions.
Final Act. 12 (citing Elec. Power Grp., 830 F.3d at 1355 (“[S]electing
information, by content or source, for collection, analysis, and display does
nothing significant to differentiate a process from ordinary mental
processes.”)). The Examiner also provides citations to Appellant’s
Specification to support the determination. See, e.g., Ans. 9 (citing Spec.
¶ 97 (“mere instructions to implement an abstract idea on a general
computer[] (as disclosed in Paragraph 0097 — ‘software identified herein
may be implemented using one or more general purpose or specific purpose
computers and/or computer systems’ of Appellant’s [S]pecification) is
insufficient for qualifying as ‘significantly more.’”)).
“The second step of the Alice test is satisfied when the claim
limitations ‘involve more than performance of []well-understood, routine,
[and] conventional activities previously known to the industry.’”
Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (quoting
Content Extraction, 776 F.3d at 1347–48 and Alice, 573 U.S. at 225).
“Whether something is well-understood, routine, and conventional to a
skilled artisan at the time of the patent is a factual determination.”
Berkheimer, 881 F.3d at 1369; see 2019 Revised Guidance, 84 Fed. Reg. 56.
Accordingly, we find the Examiner has supported the finding that that
the additional elements are well-known, routine, and conventional, and we
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agree with the Examiner (Final Act. 12–13; Ans. 4–11) that the Additional
Elements (supra) are well-known, routine, and conventional. The Examiner
has provided support from categories 1 and 2 (below) of the four categories
of information required by the USPTO’s guidance in its Berkheimer Memo:6
1. A citation to an express statement in the specification or to
a statement made by an applicant during prosecution that
demonstrates the well-understood, routine, conventional
nature of the additional element(s) . . . .
2. A citation to one or more of the court decisions discussed
in MPEP § 2106.05(d)(II) as noting the well-understood,
routine, conventional nature of the additional element(s).
3. A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional
element(s) . . . .
4. A statement that the examiner is taking official notice of
the well-understood, routine, conventional nature of the
additional element(s) . . . .
Berkheimer Memo at 3–4.
For at least the reasons above, Appellant has not persuasively shown
the additional elements amount to significantly more than the abstract idea
when considered either individually or as a combination, and we are not
persuaded of Examiner error in the rejection of claim 1 under 35 U.S.C.
§ 101. Thus, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of
independent claim 1, independent claims 7 and 22, and dependent claims 2–

6 Memorandum from Robert W. Bahr, entitled “Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.),” dated April 19, 2018
(“Berkheimer Memo”). The Berkheimer Memo is available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF (last visited Feb. 25, 2019).
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6, 8–15, 21, and 23–25, which depend from claims 1, 7, and 22, respectively,
and which were not argued separately with specificity.
Obviousness Rejections of Claims 1–5, 7–14, and 21–24
The Examiner rejects independent claim 7 (as well as independent
claims 1 and 22, and dependent claims 2–5, 8–14, 21, 23, and 24) over
Sabongi, Stephens, and Takaki. See Final Act. 14–21; Ans. 12–15.
Appellant contends Sabongi, Stephens, and Takaki do not teach the disputed
limitations of claims 1 and 7. See Appeal Br. 13–18; Reply Br. 8–10.
Specifically, Appellant contends, inter alia, that Stephens does not “teach[]
or suggest[] receiving first and second sensor signals from first and second
beacon devices through wireless communication systems using a first
wireless communication protocol, where the first and second signals are
based on communications between the first and second beacon devices and a
user device through wireless communication systems using a second
wireless communication protocol. Appeal Br. 16–17.
We agree with Appellant that the Examiner-cited portions of Stephens
(in combination with Sabongi and Takaki) do not teach “receiving a first
sensor signal from a first beacon device through a first wireless
communication system using a first wireless communication protocol
wherein the first sensor signal is based on a communication between the first
beacon device and a user device through a second wireless communication
system using a second wireless communication protocol” as recited in claim
1 (Appeal Br. 24 (Claims App.)). See Appeal Br. 16–17; Reply Br. 8–9.
The Examiner-cited portions of Stephens may disclose different protocols
for different embodiments—Stephens ¶ 7 discusses 3GPP (3rd generation
protocol) in the Background of the Invention, and Stephens ¶ 26 discusses
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GSM LTE (GSM is technically a 3rd generation protocol, but LTE is an
evolutionary (4th generation) protocol for data communication) as an
embodiment of Stephen’s invention. See Final Act. 17–20 (citing Stephens
¶¶ 7, 26, 28, 40, 42). The Examiner-cited portions of Stephens also disclose
cell overlap and handover control. See Final Act. 17–20 (citing Stephens
¶¶ 34–36, 44–46, 48, 50–52, 62, 75, 76). But, even if different
communication protocols are described by Stephens, the Examiner-cited
portions of the reference do not teach multiple communication systems each
utilizing different communication protocols to receive signals. Rather,
Stephens simply teaches different base stations having distinct cell coverage
that overlap one another. See Stephens ¶¶ 34–36, and Fig. 2. The
Examiner’s interpretation of Stephens—“each of the seven stations has a
different communication protocol because they cover different areas and
come from different/separate beacon devices” (Ans. 13)—is unreasonably
broad and is not consistent with the reference itself (the base stations all use
GSM (see Stephens ¶¶ 33, 40)), nor Appellant’s Specification (protocols for
different communication systems (networks) include Wifi and BLE (see
Spec. ¶ 32 and Fig. 2).
Nowhere does Stephens teach different networked devices comprising
different communication systems that communicate using distinct and
different communication protocols as required by claim 1 and 7. See Spec. ¶
32. The Examiner does not explain sufficiently how the cited portions of
Stephens (in combination with Sabongi and Takaki) at least suggest the
disputed features.
Consequently, we are constrained by the record before us to find that
the Examiner erred in finding that the combination of Sabongi, Stephens,
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and Takaki render obvious Appellant’s claims 1 and 7. Independent claim
22 includes limitations of commensurate scope. Claims 2–5, 8–14, 21, 23,
and 24 depend from and stand with claims 1, 7, and 22, respectively.
Obviousness Rejection of Claims 6, 15, and 25
The Examiner rejects claims 6 and 15 over Sabongi, Stephens,
Takaki, and Moshfeghi. See Final Act. 28–30. The Examiner also rejects
claim 25 over Sabongi, Stephens, Takaki, and Gauba. See Final Act. 30–31.
The Examiner does not suggest, and we do not find, that the additional cited
references (Moshfeghi or Gauba) cure the deficiencies of Stephens (in
combination with Sabongi and Takaki) (supra). Therefore, we do not
sustain the Examiner’s obviousness rejections of dependent claims 6, 15,
and 25 for the same reasons set forth for their respective base claims (supra).
CONCLUSION
For the reasons discussed above, we determine that claims 1–15 and
21–25 are directed to an abstract idea and do not demonstrate an inventive
concept. We also determine that claims 1–15 and 21–25 are not obvious in
view of the cited prior art.
Appellant has not shown that the Examiner erred in rejecting claims
1–15 and 21–25 under 35 U.S.C. § 101. Appellant has shown that the
Examiner erred in rejecting claims 1–15 and 21–25 under 35 U.S.C. § 103.
We therefore affirm the Examiner’s rejection of claims 1–15 and 21–25
because we sustain at least one ground of rejection for each of claims 1–15
and 21–25. See 37 C.F.R. § 41.50(a)(1) (“The affirmance of the rejection of
a claim on any of the grounds specified constitutes a general affirmance of
the decision of the examiner on that claim.”).
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–15, 21–25 101 Patent-Eligible
Subject Matter
1–15, 21–
25

1–5, 7–14,
21–24
103 Sabongi, Stephens,
Takaki
1–5, 7–
14, 21–24
6, 15 103 Sabongi, Stephens,
Takaki, Moshfeghi
6, 15
25 103 Sabongi, Stephens,
Takaki, Gauba
25
Overall
Outcome
1–15, 21–
25

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