Ex Parte KadabaDownload PDFPatent Trial and Appeal BoardNov 27, 201814035723 (P.T.A.B. Nov. 27, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/035,723 09/24/2013 Nagesh Kadaba 143177 7590 11/29/2018 Shook, Hardy & Bacon L.L.P. (United Parcel Service, Inc.) 2555 Grand Blvd. Kansas City, MO 64108-2613 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 ATTORNEY DOCKET NO. CONFIRMATION NO. IPP2013 28800/289041 3096 EXAMINER KONERU, SUJAY ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 11/29/2018 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): IPDOCKET@SHB.COM IPRCDKT@SHB.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NAGESH KADABA Appeal2017-009161 Application 14/035,723 Technology Center 3600 Before ST. JOHN COURTENAY III, JASON J. CHUNG, and STEVEN M. AMUNDSON, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a second Non-Final Rejection of claims 1-22. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Introduction Embodiments of Appellant's invention are generally related to "systems, methods, and computer program products for applying a shipping incentive for a customer receiving inbound shipments from a plurality of 1 According to Appellant, the real party in interest is United Parcel Service of America, Inc., which is the assignee of the present application. App. Br. 3. Appeal2017-009161 Application 14/035,723 parties." Spec. ,r 3. Exemplary Claim 1. A computer-implemented method for applying a shipping incentive to at least one customer, the method comprising of [sic] the steps of: receiving and storing in one or more memory storage areas information on one or more shipments scheduled to be made to a plurality of locales for a particular time period and shipped using a common carrier; for each locale, determining, via execution of one or more computer processors, whether the one or more shipments being made to the particular locale meet a maximum capacity the common carrier can ship to the particular locale for the particular time period, said maximum capacity representing a maximum volume of shipments that one or more vehicles operated by the common carrier can transport for the particular time period; and for at least one locale in which the maximum capacity is not being met by the one or more shipments being made to the at least one locale for the particular time period: identifying, via execution of the one or more computer processors, one or more customers making the one or more shipments to the at least one locale for the particular time period; determining, via execution of the one or more computer processors, an incentive potentially available for the one or more identified customers, the determined incentive being based upon: (a) one or more new shipments being made by the one or more identified customers to the at least one locale for the particular time period in addition to the one or more shipments already being made by the one or more identified customers to the at least one locale for the particular time period, and (b) a comparison of an actual 2 Appeal2017-009161 Application 14/035,723 volume of total shipments being made against a historical average volume of total shipments made by the one or more identified customers; generating, via execution of the one or more computer processors, an indication of the determined potentially available incentive and transmitting said indication over a distributed network and to an interface, said interface being remotely accessible by the one or more identified customers; subsequent to generating said indication and within the particular time period of interest, periodically querying, via execution of the one or more computer processors, a separate tracking system of the common carrier to determine whether one or more new shipments have been made by the one or more identified customers to the at least one locale for the particular time period; and upon identifying the presence of one or more new shipments made by the one or more identified customers: automatically applying, via execution of the one or more computer processors, the determined incentive against one or more benefits available for the one or more identified customers, the one or more benefits comprising at least one alteration in a handling of said one or more new shipments via said one or more vehicles operated by the common carrier; and automatically generating, via execution of the one or more computer processors and based upon said one or more benefits against which the determined incentive is applied, computer-readable program instructions configured to automatically implement said at least one alteration of said handling of said one or more new shipments via said one or more vehicles operated by the common carrier. App. Br. 47--48 (Claims App.). 3 Appeal2017-009161 Application 14/035,723 Rejection Claims 1-22 are rejected under 35 U.S.C. § 101, as being directed to a judicial exception, without significantly more. Non-Final Act. 5. Issue on Appeal Did the Examiner err in rejecting claims 1-22 under 35 U.S.C. § 101, as being directed to a judicial exception, without significantly more? ANALYSIS We have considered all of Appellant's arguments and any evidence presented. We highlight and address specific findings and arguments for emphasis in our analysis below. Mayo/Alice Analysis 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 Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor 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 Services v. Prometheus Laboratories, Inc., 566 U.S. 66, 82-84 (2012), "for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent- eligible applications of those concepts." Alice, 134 S. Ct. at 2355. 4 Appeal2017-009161 Application 14/035,723 The first step in that analysis is to determine whether the claims at issue are directed to one of those patent-ineligible concepts, such as an abstract idea. Abstract ideas may include, but are not limited to, fundamental economic practices, methods of organizing human activities, an idea of itself, and mathematical formulas or relationships. Id. at 2355-57. If the "acts" of a claimed process manipulate only numbers, abstract concepts or ideas, or signals representing any of the foregoing, the acts are not being applied to appropriate subject matter. See Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972). "'Phenomena of nature, thoughjust discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work."' In re Ferguson, 558 F.3d 1359, 1363 (Fed. Cir. 2009) (quoting Gottschalk, 409 U.S. at 67). Moreover, if a method can be performed by human thought alone, or by a human using pen and paper, it is merely an abstract idea and is not patent eligible under§ 101. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011). If the claims are not directed to a patent-ineligible concept, the inquiry ends. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1262 (Fed. Cir. 2017). Otherwise, the inquiry proceeds to the second step in which the elements of the claims are considered "individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application." Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 79, 78). For example, we consider the question of whether the claims are directed to a specific improvement in the capabilities of the computing devices, or, instead, "a process that qualifies as 5 Appeal2017-009161 Application 14/035,723 an 'abstract idea' for which computers are invoked merely as a tool." Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). We, therefore, decide under step two, whether the claims: (a) set forth an inventive concept that provides a specific means or method that improves the relevant technology, or (b) are directed to a result or effect that itself is the abstract idea, in which the claims merely invoke generic processes and machinery. See id. The Examiner's Rejection Regarding the first step of the Alice/Mayo analysis, the Examiner concludes that claims 1-22 are directed to a judicial exception, i.e., an abstract idea: the claims are a type of organizing human activities because the shipments are human activities and that type of data is being organized to provide incentives to humans or customers. Managing the way shipments are organized is similar to managing a game of bingo, which was an abstract idea in Planet BingoPJ In addition, the claims are abstract for being an idea itself because the claims merely use determinations to present indications of data, which is similar to the abstract idea in Fair Warning where applying rules to detect events and provide notifications of that was an abstract idea. [3J 2 The Examiner is referring to the post-Alice non-precedential Federal Circuit opinion: Planet Bingo, LLC v. VKGS LLC, 576 F.App'x 1005 (Fed. Cir. 2014) (managing a game of bingo). 3 The Examiner is referring to the post-Alice precedential Federal Circuit opinion: FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) ("[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter."). 6 Appeal2017-009161 Application 14/035,723 Non-Final Act. 6-7. 4 finds: Regarding the second step of the Mayo/Alice analysis, the Examiner [ t ]he claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the elements individually or in combination [with] ... memory storage areas, [and] computer processors, ... require nothing more than a generic computer to perform routine and conventional computer functions and other potential use of hardware or computers is for mere data gathering or data transforming or extra solution activity. Non-Final Act. 7. 5 For the aforementioned reasons, the Examiner concludes that all claims 1-22 on appeal are not patent eligible under 35 U.S.C. § 101. Mayol Alice Analysis - Step 1 Regarding Alice step 1, Appellant contends the Examiner has not considered the claims as a whole "wherein an abstract idea may admittedly form part of the recitation, but not the entirety thereof, as required to conclude that the claims are 'directed to' merely an abstract idea." App. Br. 31 ( emphasis added). Appellant avers that claims 1-22 satisfy Alice step 1, 4 "Patent eligibility under§ 101 presents an issue of law." Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1340-41 (Fed. Cir. 2013). 5 The patent-eligibility inquiry may contain underlying issues of fact. Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016). In particular, "[t]he question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact." Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). 7 Appeal2017-009161 Application 14/035,723 because the Examiner "does not provide a sufficiently detailed review of the claims under either part of the two-part analysis." App. Br. 33. In support, Appellant recites the claim language and urges that the claimed configuration is "described in at least paragraph [0050] of Appellant's original disclosure, emphasizing the manner in which the incentive - once physically applied - accrues into a tangible of concrete benefit to the customer, such as a drop-off or a pick-up at a preferred location, or at a preferred time, or the like." App. Br. 34. We note paragraph 47 of Appellant's Specification describes: "in various embodiments, the discount application 300 may also include a volume discount (VD) module configured to calculate and apply a discount to one or more entities' shipping costs as a result of shipping a particular volume to an identified location." Emphasis omitted. Paragraph 50 of the Specification describes targeting customers "who have shipped and/or received shipments in the particular location ... to obtain additional volume of shipments to be shipped to the particular location for the specified time period." Appellant argues that the potentially available incentive may also be based upon "a comparison of an actual volume of total shipments being made against a historical average volume of total shipments made by the one or more identified customers." App. Br. 35 (emphasis omitted). Appellant summarizes the Alice step 1 arguments: It is with this multi-level nuanced analysis that the claimed configuration is able to--in a near real-time manner----determine and generate instructions to automatically implement an adjustment to the physical handling of the package being shipped upon querying of a separate tracking system that notifies-again in a near real-time manner-the 8 Appeal2017-009161 Application 14/035,723 claimed configuration of one or more new shipments having been made, so as to earn the discount. App. Br. 35-36. Appellant further urges the claims on appeal advantageously arrange "certain known and conventional features alongside novel features in a nonconventional manner," analogizing the claims to BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), "stating that uniqueness (and therefore eligibility) can be ... found in the non-conventional and non-generic arrangement of known, conventional pieces." App. Br. 36. 6 In response, the Examiner disagrees, and further explains the basis for the rejection: [The E]xaminer has provided two explanations for why the claims are abstract. The claims are a type of organizing of human activities because the claims show organizing shipments (which are human activities) and organizing those shipments to provide incentives to humans (customers). [The] Examiner then properly compared this type of organizing of human activities with Planet Bingo,[7J which is a court decision that showed organizing human activities are abstract ideas. Similarly, [the E]xaminer properly showed that the claims are abstract for being an idea itself because the claims merely are making determinations on data to present determined indications of that data which is similar to the abstract idea in Fair Warning where applying rules to detect events and provide notifications of that was an abstract idea. [SJ Ans. 3--4. 6 We address BASCOM infra, under Alice, step 2. 7 See supra, n.2. 8 See supra, n.3. 9 Appeal2017-009161 Application 14/035,723 We note the FairWarning court agreed with the District Court below that Fair Warning's subject claims were directed to the abstract idea of "analyzing records of human activity to detect suspicious behavior." FairWarning, 839 F.3d at 1093 (internal quotation marks and citation omitted). In support, the FairWarning court determined that the subject claims collected information, analyzed information, and provided notification in the event a specified condition was met (e.g., improper access to a patient's personal health information). Id. The Examiner explains that the claims before us on appeal have been considered as a whole: [The] Examiner has considered the claims as a whole as well as the combination of features. Nothing in the combination of features establishes the claims as not being an abstract idea nor has appellant provided any sort of explanation or argument of how the combination or sequence of features makes the claims not directed to an abstract idea. Ans. 5 ( emphasis added). Our reviewing court has held that claims directed to data collection, analysis, and display are directed to an abstract idea. Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing it, and displaying certain results of the collection and analysis" are "a familiar class of claims 'directed to' a patent ineligible concept"); see also In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning, 839 F.3d at 1093-94. The Federal Circuit further guides that abstract ideas include the concepts of collecting data, recognizing certain data within the collected data set, and storing the data in memory. Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014); see 10 Appeal2017-009161 Application 14/035,723 also Smart Sys. Innovations, LLC v. Chi. Transit Auth., 873 F.3d 1364, 1372 (Fed. Cir. 2017) (concluding "claims directed to the collection, storage, and recognition of data are directed to an abstract idea"). The court also guides that data gathering is a classic example of insignificant extra-solution activity. See, e.g., In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en bane), aff'd sub nom, Bilski v. Kappas, 561 U.S. 593 (2010). Here, we do not find persuasive Appellant's attempts to analogize the claims to the subject claims considered by the court in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), and Enfish. App. Br. 27. We note the subject claim considered by the McRO court concerned a method for automatically animating lip synchronization and facial expressions. McRO, 837 F.3d at 1303. The McRO court concluded the subject claims did not recite an abstract idea because the computer animation improved the prior art through the use of rules, rather than artists, to set morph weights and transitions between phonemes. Id. at 1308. Thus, the claimed invention in McRO allowed for computer performance of animation steps that previously had to be performed by human animators. Id. at 1309. The subject claims in McRO used "limited rules in a process specifically designed to achieve an improved technological result" over "existing, manual 3-D animation techniques." Id. at 1316 (emphasis added). Here, Appellant's claimed invention does not apply positively recited rules, per se. The invention under appeal merely adapts to a technological setting ( e.g., generic memory storage areas and one or more generic computer processors) the broad concepts of "automatically applying, via execution of the one or more computer processors, the determined incentive 11 Appeal2017-009161 Application 14/035,723 against one or more benefits available for the one or more identified customers" ( emphasis added), and: automatically generating, via execution of the one or more computer processors and based upon said one or more benefits against which the determined incentive is applied, computer-readable program instructions configured to automatically implement said at least one alteration of said handling of said one or more new shipments via said one or more vehicles operated by the common earner. Claim 1. Thus, the invention under appeal is directed to the result of the determined incentives and the alteration of the handling of new shipments via common carrier vehicles. Claim 1. We emphasize that McRO (837 F.3d at 1312) guides that "[t]he abstract idea exception prevents patenting a result where 'it matters not by what process or machinery the result is accomplished."' (Quoting O'Reilly v. Morse, 56 U.S. 62, 113 (1854).) (Emphasis added.) Here, it is our view that Appellant's claims merely implement generic computer components to perform the recited functions (see, e.g., system claim 11) and steps (see, e.g., computer-implemented method claim 1). Regarding Appellant's arguments analogizing Enfzsh to the claims before us on appeal (App. Br. 26-27), we note the Enfzsh court (822 F .3d at 1336) concluded that there was no abstract idea under Alice step 1 ("Accordingly, we find that the claims at issue in this appeal are not directed to an abstract idea within the meaning of Alice. Rather, they are directed to a specific improvement to the way computers operate, embodied in the self- referential table."). 12 Appeal2017-009161 Application 14/035,723 Thus, the court concluded the claimed self-referential database table was a specific type of data structure designed to improve the way a computer stores and retrieves data in memory. Enfish, 822 F.3d at 1339. Because the analysis stops if there is no abstract idea under Alice step 1, the Enfish court concluded the subject claims were patent eligible. Here, Appellant has not persuasively shown that any features of the claimed invention improve the way the recited generic "one or more memory storage areas" (independent claims 1, 7, 11, and 17) and/or one or more processors (independent claims 1, 7, 11, 17, 21, and 22) store and retrieve data in a manner analogous to that found by the court in Enfzsh. Therefore, we are not persuaded that Appellant's claimed invention improves the functionality or efficiency of the recited memory storage areas or processors, or otherwise changes the way the claimed generic computer components function, at least in the sense contemplated by the Federal Circuit in Enfzsh. Regarding Appellant's additional contention asserting the absence of preemption (App. Br. 33), 9 our reviewing court provides applicable guidance: "While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); Ultramercial, Inc. v. Hulu LLC, 722 F.3d 1335, 1346 (Fed. Cir. 2013). Therefore, we are not persuaded by Appellant's arguments regarding the absence of complete preemption. 9 Appellant repeats essentially the same preemption argument on page 3 8 of the Appeal Brief. 13 Appeal2017-009161 Application 14/035,723 Moreover, but for the recitations of a memory storage area, and one or more processors ( claim 1 ), we are of the view that the recited functions or steps could be performed as mental steps, or with the aid of pen and paper. See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146-47 (Fed. Cir. 2016) ("While the Supreme Court has altered the § 101 analysis since CyberSource in cases like Mayo and Alice, we continue to 'treat[] analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category."' (Brackets in original) (quoting Elec. Power Grp., 830 F.3d at 1354)); see also CyberSource, 654 F.3d at 1375 ("That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson."). "Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." Gottschalk, 409 U.S. at 67. (Emphasis added.) Moreover, "merely selecting information, by content or source, for collection [and] analysis ... does nothing significant to differentiate a process from ordinary mental processes .... " Elec. Power Grp., 830 F.3d at 1355. Data gathering, such as receiving and analyzing (or identifying data), by itself, does not transform an otherwise-abstract process or system of information collection and analysis. See id. It is also our view that Appellant's claims on appeal are similar to the claims held to be directed to an abstract idea by the court in Smart Sys. Innovations, 873 F.3d 1364. In Smart Sys. Innovations, the court concluded that the subject claims "really only cover an abstract concept: paying for a subway or bus ride with a credit card." Id. at 1371 (internal quotation marks 14 Appeal2017-009161 Application 14/035,723 and citation omitted). Similar to Appellant's claims, the Smart Sys. Innovations court held that claims which merely invoke computers in the collection and arrangement of data are directed to an abstract idea: the claims recite the collection of financial data from third parties, the storing of that financial data, linking proffered credit cards to the financial data, and allowing access to a transit system based on the financial data. The claims are not directed to a combined order of specific rules that improve any technological process, but rather invoke computers in the collection and arrangement of data. Claims with such character do not escape the abstract idea exception under Alice step one. Id. at 1372-73 (emphasis added). For at least these reasons, we are not persuaded the Examiner erred in concluding that each of claims 1-22 on appeal is directed at least to the abstract idea of a method of organizing human (i.e., shipment) activities, similar to the abstract ideas identified by our reviewing courts ( as discussed above) that could additionally be performed as mental steps, albeit with the aid of pen and paper. Appellant provides no further substantive arguments regarding Alice step 1. Arguments not made are waived. See 37 C.F.R. § 4I.37(c)(l)(iv). Therefore, we proceed to Alice step 2. Mayo/Alice Analysis -Step 2 Because we conclude the claims are directed to an abstract idea for essentially the same reasons articulated by the Examiner (Non-Final Act. 3; Ans. 4---6), we tum to the second part of the Alice/Mayo analysis. We analyze the claims to determine if there are additional limitations that individually, or as an ordered combination, ensure the claims amount to 15 Appeal2017-009161 Application 14/035,723 "significantly more" than the abstract idea. Alice, 134 S. Ct. at 2357 (internal quotations and citation omitted). Regarding Alice step 2, Appellant addresses the purported inventive concept of the claims. Appellant urges: assuming arguendo that the pending claims were directed to be an abstract idea, Appellant respectfully submits that each claim as a whole amounts to significantly more than the exception itself. Specifically, Appellant respectfully submits that the claims ( 1) apply the judicial exception with, or by use of, a particular machine; (2) add specific limitations other than what is well-understood, routine and conventional in the field; and/or (3) provide meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. App. Br. 37 (emphasis added). The "Machine-or-Transformation" (MoT) test As recognized by the Federal Circuit in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-16 (Fed. Cir. 2014), the "machine-or- transformation" ("MoT") test, as outlined in Bilski (545 F.3d at 954), can provide a "useful clue" in the second step of the Alice framework. Under Bilski 's MoT test, a claimed process is patent-eligible under§ 101 if: ( 1) it is tied to a particular machine or apparatus; or (2) the process transforms a particular article into a different state or thing. Bilski, 545 F.3d at 954 (citing Gottschalk, 409 U.S. at 70). Here, however under Bilski 's MoT test, we conclude that none of Appellant's claims 1-22 is tied to a particular machine or apparatus; nor are any of Appellant's claims involved in any type of transformation of any 16 Appeal2017-009161 Application 14/035,723 particular article. 10 Contrary to Appellant's contentions (id.), we find the claims on appeal are silent regarding specific limitations directed to an improved computer system, processor, memory, network, database, or Internet. Therefore, we find Appellant's claimed invention does not provide a solution "necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks," as considered by the court in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) (emphasis added). Further regarding the use of the recited generic memory storage areas and/or processors ( claim 1 ), the Supreme Court held "the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention." Alice, 134 S. Ct. at 2358. Appellant's analogy to BASCOM 11 is similarly unavailing. See App. Br. 32. The Federal Circuit concluded in BASCOM that the subject claims (a method and system for filtering Internet content) were directed to an abstract idea; however, the court found that the claimed Internet content filtering, featuring an implementation "versatile enough that it could be adapted to 10 See Accenture Glob. Servs., 728 F.3d at 1344--45 (claims reciting "generalized software components arranged to implement an abstract concept [of generating insurance-policy-related tasks based on rules to be completed upon the occurrence of an event] ... on a computer" not patent eligible); Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012) ("[s]imply adding a 'computer aided' limitation to a claim covering an abstract concept, without more, is insufficient to render [a] claim patent eligible" (internal citation omitted)). 11 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). 17 Appeal2017-009161 Application 14/035,723 many different users' preferences while also installed remotely in a single location," expressed an inventive concept in "the non-conventional and non- generic arrangement of known, conventional pieces." BASCOM, 827 F.3d at 1346, 1350. The BASCOM court concluded the claims did not preempt the use of the abstract idea of filtering content on the Internet or on generic computer components performing conventional activities. The court concluded that the claims carved out a specific location for the filtering system, namely, a remote Internet service provider (ISP) server, and required the filtering system to give users the ability to customize filtering for their individual network accounts. Id. at 1352. Here, we are not persuaded that Appellant claims a particular non- conventional and non-generic arrangement of structural elements in the claims, so as to provide a technical improvement over prior methods for providing shipping incentives. Appellant fails to identify the particular structural arrangement of conventional elements in the claims that provides the purported technical improvement. See BASCOM, 827 F.3d at 1348 ("An abstract idea on 'an Internet computer network' or on a generic computer is still an abstract idea"). Therefore, on this record, we are of the view that Appellant's claims do not operate the recited generic computer components in an unconventional manner to achieve an improvement in computer functionality. Our reviewing court provides additional guidance: OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (claims reciting, inter alia, sending messages over a network, gathering statistics, using a computerized system to automatically determine an estimated outcome, 18 Appeal2017-009161 Application 14/035,723 and presenting offers to potential customers found to merely recite "'well-understood, routine conventional activities'" by either requiring conventional computer activities or routine data-gathering steps) (internal citation omitted); see also Elec. Power Grp., 830 F.3d at 1355 ("We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are 'insufficient to pass the test of an inventive concept in the application' of an abstract idea" ( quoting buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1353, 1355 (Fed. Cir. 2014))); Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332, 1341 (Fed. Cir. 2017) ("Rather, the claims recite both a generic computer element-a processor-and a series of generic computer 'components' that merely restate their individual functions . . . . That is to say, they merely describe the functions of the abstract idea itself, without particularity. This is simply not enough under step two"). The Supreme Court additionally guides that the "prohibition against patenting abstract ideas 'cannot be circumvented by attempting to limit the use of the formula to a particular technological environment' or [by] adding 'insignificant post[-]solution activity."' Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (quoting Diamond v. Diehr, 450 U.S. 175, 191-92 (1981)). Appellant further contends: like the claims in DDR Holdings (addressed further below), eligible subject matter was identified wherein the claims were directed toward the Internet-centric challenge of alerting subscribers (i.e., users) to time-sensitive information. In an analogous fashion, the claims herein are configured for [sic] in a near real-time fashion determine an incentive potentially available for the one or more identified customers, the determined incentive being based upon: (a) one or more new 19 Appeal2017-009161 Application 14/035,723 shipments being made by the one or more identified customers to the at least one locale for the particular time period in addition to the one or more shipments already being made by the one or more identified customers to the at least one locale for the particular time period, and (b) a comparison of an actual volume of total shipments being made against a historical average volume of total shipments made by the one or more identified customers. App. Br. 42. In response to Appellant's arguments (id.), we do not find Appellant's claims are similar to the claimed solution the court held to be patent eligible in DDR. In particular, we note the court in DDR emphasized that the '399 patent claims did not "recite a fundamental economic or longstanding commercial practice." DDR, 773 F.3d at 1257. As distinguished from the claims considered by the court in DDR, we are of the view that Appellant's claims 1-22, which provide shipping incentives, are directed to longstanding commercial practices, i.e., at least the commercial practices of shipping goods and providing incentives. In DDR, the Federal Circuit applied the Supreme Court's Alice two-step framework, and upheld the validity of DDR's '399 patent on its web-page display technology. DDR, 773 F.3d at 1255. However, we find the problem addressed by Appellant's claims (providing shipping incentives) is also not similar or, otherwise, analogous to the specific technical problem addressed by the subject claims in DDR, which were directed to retaining a website visitor when the visitor clicked on a third-party merchant's advertisement on the host website. Instead of taking the visitor to the third-party merchant's website (and, thus, losing the visitor to the third-party merchant), DDR's claimed system generated a hybrid web page that: 20 Appeal2017-009161 Application 14/035,723 (1) displayed product information from the third-party merchant, but also (2) retained the host website's "look and feel." As distinguished from the claims considered by the court under § 101 in DDR, Appellant's claims 1-22 are not directed to generating a hybrid web page that retains the host website's "look and feel" while displaying product information from a third-party merchant. See DDR, 773 F.3d at 1257. Nor has Appellant analogized the claimed "interface ... remotely accessible by the one or more identified customers" ( claim 1) to the hybrid web page of the type considered by the court in DDR. Appellant also urges that the "claimed configuration [] queries a separate tracking system periodically, so as to in a near real-time manner identify a new shipment qualifying the customer for the incentive." App. Br. 41 ( emphasis added). However, performing (by Appellant's recited processor or processors) the claimed steps or functions in real time does not render the claims non- abstract See Two-Way Media Ltd. v. Comcast Cable Commc 'ns, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017) (holding claims directed to monitoring delivery of real-time information to users or measuring such delivery as directed to an abstract idea); see also id. (citing Elec. Power Grp., 830 F.3d at 1351-53 (noting that collecting information, analyzing it, and displaying results is an abstract idea, even when undertaken in real time)). Although the steps or functions recited in Appellant's claims may be performed faster or more efficiently with the recited computer processor ( or processors), we find the resultant speed increase comes from a "general- purpose computer, rather than from the patented method itself," and does 21 Appeal2017-009161 Application 14/035,723 "not materially alter the patent eligibility of the claimed [invention]." FairWarning, 839 F.3d at 1095 (citation omitted). Although Appellant's invention is directed to the result of "automatically applying, via execution of the one or more computer processors, the determined incentive against one or more benefits available for the one or more identified customers" ( claim 1 ), we find no language in the claims on appeal that focuses on a specific means or method that improves the recited generic memory storage areas and/or processors which are used to perform all the recited steps or functions of claims 1-22. Because we find Appellant has not established that claims 1-22 are directed to an improvement in the recited generic memory storage areas and/ or processors ( claim 1 ), we conclude that none of the claim limitations, viewed both individually and as an ordered combination, amount to significantly more than the judicial exception in order to sufficiently transform the nature of the claims into patent-eligible subject matter. In light of the foregoing, we conclude, under the Mayo/Alice analysis, that each of Appellant's claims 1-22, considered as a whole, is directed to a patent-ineligible abstract idea (under step one), and under step two, does not recite something significantly more to transform the nature of the claim into a patent-eligible application. Accordingly, for the reasons discussed above, we sustain the Examiner's rejection under 35 U.S.C. § 101 of claims 1-22, as being directed to a judicial exception, without significantly more. 12 12 To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. See 37 C.F.R. § 4I.37(c)(l)(iv). 22 Appeal2017-009161 Application 14/035,723 Reply Brief To the extent Appellant may advance new arguments in the Reply Brief not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner's Answer will not be considered except for good cause. See 37 C.F.R. § 41.41(b)(2). CONCLUSIONS The Examiner did not err in rejecting claims 1-22 under 35 U.S.C. § 101, as being directed to a judicial exception, without significantly more. DECISION We affirm the Examiner's decision rejecting claims 1-22 under 35 U.S.C. § 101. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See 37 C.F.R. § 4I.50(f). AFFIRMED 23 Copy with citationCopy as parenthetical citation