Ex Parte Uba et al

Patent Trials and Appeals Board

Jun 28, 2019

13930652 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/930,652 06/28/2013
48500 7590 07/02/2019
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
FIRST NAMED INVENTOR
Gene Uba
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.
4366-623 1730
EXAMINER
HATCHER, DEIRDRE D
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
07/02/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
cjacquet@sheridanross.com
pair_Avaya@firsttofile.com
edocket@sheridanross.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GENE UBA and ROBERT C. STEINER
Appeal2018-001733
Application 13/930,652
Technology Center 3600
Before CARLL. SILVERMAN, JOYCE CRAIG, and JASON M. REPKO,
Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-20. App. Br. 2. 2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 According to Appellants, the real party in interest is Avaya Inc.
App. Br. 2.
2 Throughout this opinion, we refer to the Final Office Action ("Final Act.")
mailed December 15, 2016; the Appeal Brief ("App. Br.") filed June 2,
2017; the Examiner's Answer ("Ans.") mailed October 6, 2017; and the
Reply Brief ("Reply Br.") filed December 6, 2017.
Appeal2018-001733
Application 13/930,652
THE INVENTION
Appellants' invention relates to calendars for contact centers.
See Spec. ,r,r 1-3. In a contact center, a work-assignment engine typically
consults hours of operation, emergency hours, and holiday schedules.
Id. ,r 2. To find a resource's availability, the work-assignment engine must
review several calendars or call external systems. Id. According to the
Specification, this is expensive. Id. The invention "simply provides a
mechanism for incorporating calendar information into a work item routing
decision." Id. ,r 56.
Claim 1 is reproduced below:
1. A method, comprising:
rece1vmg, by a microprocessor, textual calendar
description information for a first entity's calendar;
segmenting, by the microprocessor, the first entity's
textual calendar description information into segments of
predetermined amounts of time that span a calendar window
within the first entity's calendar, wherein the calendar window
comprises a first event;
analyzing, by the microprocessor, each segment within the
calendar window to determine events occurring within the
calendar window;
based on the analysis, identifying, by the microprocessor,
that the first event is in a first time segment within the calendar
window;
determining, by the microprocessor, a first value for the
first event;
building, by the microprocessor, a rich calendar for the
first entity, the rich calendar comprising data for the first value
and for each of the segments within the calendar window; and
using the microprocessor to cause the rich calendar to be
stored in computer memory.
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THE EVIDENCE
The Examiner relies on the following as evidence:
Brotman
Purohit et al.
Chen et al.
US 2006/0064338 Al
US 2007 /0208604 Al
US 2011/0208591 Al
THE REJECTIONS 3
Mar. 23, 2006
Sept. 6, 2007
Aug. 25, 2011
The Examiner rejects claim 20 under 35 U.S.C. § 112(a) as failing to
comply with the written-description requirement. Ans. 2.
The Examiner rejects claims 1-18 under 35 U.S.C. § 101 as directed
to patent-ineligible subject matter. Ans. 3-5. 4
The Examiner rejects claim 19 under 35 U.S.C. § I02(a)(l) as
anticipated by Brotman. Ans. 26-27.
The Examiner rejects claims 1, 4, 8-12, and 14--18 under 35 U.S.C.
§ 103 as unpatentable over Brotman and Purohit. Ans. 6-17.
The Examiner rejects claims 2, 3, 5-7, and 13 5 under 35 U.S.C. § 103
as unpatentable over Brotman, Purohit, and Chen. Ans. 17-24.
3 In the Answer, the Examiner withdraws the rejections of claims 15, 19, and
20 under 35 U.S.C. § 112(b), and the rejection of claims 19 and 20 under
35 U.S.C. § 101. See Ans. 27-29.
4 The Examiner notes that "if claims 19-20 were amended to fall into one of
the four statutory classes of invention, they would also be rejected for
similar reasons that applied to Claims 1-10." Ans. 5. But the Examiner has
not presented that rejection. Instead, the Examiner states that only claims 1-
18 are rejected under § 101. See id. at 3.
5 The Examiner omitted claim 13 from the rejection's heading. Ans. 17;
Final Act. 19. But the Examiner did provide a rejection for claim 13 in the
substantive part of that section. Ans. 23-24; Final Act. 25-26. So we treat
claim 13 as rejected under§ 103.
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The Examiner rejects claim 20 under 35 U.S.C. § 103 as unpatentable
over Brotman and Chen. Ans. 24--25.
ANALYSIS
I. The Written-Description Rejection
Claim 20 recites, in part, "the value comprises ... a value indicating
an importance of the one work item." App. Br. 37-38.
The Examiner rejects claim 20 as failing to comply with the written-
description requirement of§ 112 because the originally filed Specification
lacks support for "a value indicating an importance of the one work item."
Final Act. 2-3 ( emphasis omitted). According to the Examiner, paragraphs
44 through 46 and 50 through 51 do not discuss a work item's importance.
Ans. 29.
Appellants argue that "the specification does explicitly and clearly
disclose the corresponding structure and acts as now claimed in the claim
limitations." App. Br. 10 (citing Spec. ,r,r 44--46, 50-51) (emphasis in
original). According to Appellants, paragraph 44 describes calendar values
that can relate to currency ( e.g., costs, perceived revenue), percentages,
floating point, or integer values. Reply Br. 2. Appellants argue that
paragraph 50 describes that "'a single time segment may have more than one
event, and each event may comprise a different event type and
corresponding value."' Id. ( emphasis in original). In Appellants' view, an
entity may be a work item, and "an importance of a work item is a type of
value." Id. Also, Appellants argue that paragraph 47 "describes that an
entity may be a work item." Id.
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"The test for the sufficiency of the written description 'is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date."' Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F .3d
671,682 (Fed. Cir. 2015) (citingAriad Pharms., Inc. v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010) (en bane)).
It may be true that the Specification discloses values generally. See,
e.g., Spec. ,r 50. But the issue here is whether the Specification reasonably
conveys that the inventor had possession of a specific type of value-i.e., "a
value indicating an importance of the one work item."
The meaning of the term "importance" can vary by context. On one
hand, importance can mean that the work item is urgent. On the other,
Appellants' arguments suggest that importance relates to cost. See, e.g.,
Reply Br. 2 ( citing Spec. ,r 44). For instance, the cited paragraph discusses
"costs" and "perceived revenue." Spec. ,r 44.
As the Examiner points out, the Specification does not use the term
"importance." Ans. 29. Nor does the Specification describe how cost,
urgency, or other considerations are used in assessing importance. At best,
the Specification describes numerical data types: currency, percentage,
floating point, or integer values. Spec. ,r 44. Also, the Specification
describes that each event may comprise a value. Id. ,r 50. The Specification,
however, lacks sufficient detail to demonstrate to one of ordinary skill in the
art that the inventor possessed the claimed invention of using a value to
indicate an importance of the one work item.
Thus, we sustain the written-description rejection of claim 20.
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II. The Rejection Under 35 U.S.C. § 1 OJ
A. Principles of Law
Section 101 defines patent-eligible subject matter as "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." 35 U.S.C. § 101. But courts have long
held that laws of nature, natural phenomena, and abstract ideas are not
patentable. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S.
66, 70-71 (2012) (citing Diamond v. Diehr, 450 U.S. 175, 185 (1981)).
These ineligible concepts are implicit exceptions to the statutory categories.
Id. at 71.
The Supreme Court articulated a two-step subject-matter eligibility
test in Mayo and Alice Corp. v. CLS Bank International, 573 U.S. 208
(2014). Alice/Mayo step one asks whether a claim is "directed to" a judicial
exception. Alice, 573 U.S. at 217. In Alice/Mayo step two, we consider "the
elements of each 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." Id. ( quoting Mayo, 566 U.S. at 79,
78). Step two is described as a search for an "inventive concept." Id.
The USPTO recently published revised guidance on patent subject
matter eligibility. 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (USPTO Jan. 7, 2019) ("Guidance"). Step 1 of the
USPTO's eligibility analysis asks whether the claimed subject matter falls
within the four statutory categories of invention. Id. at 53-54. Under Step
2A, Prong One of the Guidance, we determine if the claim recites a judicial
exception, including particular groupings of abstract ideas (i.e.,
mathematical concepts, certain methods of organizing human activity, or
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mental processes). Id. at 52-53. If so, we then analyze the claim to
determine whether the recited judicial exception is integrated into a practical
application of that exception under Step 2A, Prong Two of the Guidance.
Id. at 53-55; MPEP §§ 2106.05(a}-(c), (e}-(h) (9th ed. Rev. 08.2017, Jan.
2018).
Only if the claim fails to integrate the exception and thus is "directed
to" the judicial exception, do we then look to whether the claim adds a
specific limitation beyond the judicial exception that is not well-understood,
routine, and conventional activity in the field or whether the claim simply
appends well-understood, routine, and conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception. Guidance, 84 Fed. Reg. at 56.
B. The Examiner's Rejection
The Examiner determines that, although claim 1 is a process, it is
directed to a judicial exception: an abstract idea. Ans. 3. According to the
Examiner, the claim recites steps that can be performed mentally or with the
assistance of pen and paper. Id. at 4. The Examiner further finds that the
microprocessor and memory are well-understood, routine, and conventional.
Id. at 5.
C. Does the claim recite ajudicial exception?
Viewing the Examiner's rejection through the lens of the Guidance,
we first consider whether the claim recites a judicial exception. Guidance,
84 Fed. Reg. at 51. The Guidance synthesizes the key concepts identified by
the courts as abstract ideas into three primary subject-matter groupings:
mathematical concepts, certain methods of organizing human activity ( e.g., a
fundamental economic practice), and mental processes. Id. at 52. For the
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reasons discussed below, claim 1 recites an abstract idea that falls in the
Guidance's mental-processes category.
"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
cannot practically be performed in the mind." Id. at 52 n.14. In the sections
that follow, we explain how the segmenting, analyzing, and determining
steps can practically be performed in the mind or with the assistance of pen
and paper. Id.
i. "segmenting"
Claim 1 recites, in part, "segmenting, by the microprocessor, the first
entity's textual calendar description information into segments of
predetermined amounts of time that span a calendar window within the first
entity's calendar, wherein the calendar window comprises a first event."
As to the recited "textual calendar description information," the
Specification states that "'textual' as used herein may correspond to any
traditional representation of a calendar." Spec. ,r 4 7 ( emphasis added).
Segmenting this information may result in, for example, twenty segments
that are fifteen minutes long. Id. ,r 48. So in this example, the calendar
window may correspond to approximately five hours. Id.
Essentially, the recited segmentation is an evaluation that can be
practically performed in the mind by reviewing the textual calendar
description information-i.e., "any traditional representation of a
calendar"-and determining the segments with the assistance of pen and
paper. See id. ,r,r 47--48.
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ii. "analyzing"
Claim 1 recites, in part, "analyzing, by the microprocessor, each
segment within the calendar window to determine events occurring within
the calendar window."
The Specification explains that the analysis may include comparing
the event-type values in each of the corresponding segments to find the best
entity for a work assignment at that time. Spec. ,r 55. For instance, a
common time segment for multiple resources may be analyzed. Id. For
each resource, the corresponding time segment's values are compared with
the values of the other resources. Id. Thus, the recited analyzing can be
mentally performed by merely reviewing and comparing the segments and
the corresponding values.
iii. "identifying"
Claim 1 recites, in part, "based on the analysis, identifying, by the
microprocessor, that the first event is in a first time segment within the
calendar window." This step can be practically performed in the mind for
reasons similar to those discussed in connection with the analyzing step. See
supra § II.C.ii. Specifically, the recited identification can be mentally
performed by merely reviewing and comparing the segments and the
corresponding events.
iv. "determining"
Claim 1 recites, in part, "determining, by the microprocessor, a first
value for the first event." According to the Specification, "dynamic event
type information stored in the calendar 208 of an entity may correspond to
the values determined for an event type in the entity's textual calendar
information 304." Spec. ,r 50. A single time segment may have multiple
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events. Id. Each event may have a different event type and corresponding
value. Id. Thus, the recited determining may be performed mentally by
reading this information about the event. See id.
In sum, claim 1 recites an evaluation that, when considered in the
context of the claim as a whole, can practically be performed in the mind.
So claim 1 recites a concept that falls within the Guidance's mental-
processes grouping. Guidance, 84 Fed. Reg. at 52 nn.14 & 15.
For all the above reasons, claim 1 recites an abstract idea.
D. Is the claim "directed to" the recited judicial exception?
Because claim 1 recites an abstract idea, we now proceed to determine
whether the recited judicial exception is integrated into a practical
application. Guidance, 84 Fed. Reg. at 51. When a claim recites a judicial
exception and fails to integrate the exception into a practical application, the
claim is "directed to" the judicial exception. Id.
We use the term "additional elements" for claim features, limitations,
or steps that are recited in the claim beyond the identified judicial exception.
See id. at 55 n.24. In claim 1, the additional elements include (1) the step of
"receiving" the textual calendar, (2) the microprocessor, (3) the step of
"building" a rich calendar, and ( 4) the step of storing the rich calendar in
computer memory. In the analysis below, we consider these additional
elements-individually and in combination-and conclude that claim 1 as a
whole does not integrate the recited judicial exception into a practical
application. See id. at 55 nn.25 & 27-32 (citing MPEP §§ 2106.05(a}-(c),
(e }-(h)).
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. '' . . '' z. recezvzng
Claim 1 recites, in part, "receiving, by a microprocessor, textual
calendar description information for a first entity's calendar."
A data-collection step may not render a claim patent eligible by its
mere presence. In re Grams, 888 F.2d 835, 840 (Fed. Cir. 1989). Claim 1
here does not purport to improve how to send and receive the textual
calendar description information. Rather, claim 1 broadly recites that the
processor receives the information. In this way, claim 1 's receiving step is
similar to gathering statistics in OIP Technologies, Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1363-64 (Fed. Cir. 2015). In OIP, the Federal Circuit
determined that the recited routine data gathering did not meaningfully limit
the abstract idea. Id., cited in MPEP § 2106.05(g). We, likewise, determine
that the recited receiving step here does not meaningfully limit the abstract
idea.
Because the receiving step is insignificant extra solution activity when
considered individually and in combination with the other limitations, it does
not indicate that the claim integrates the abstract idea into a practical
app li cation.
.. '' . '' zz. a mzcroprocessor
Claim 1 recites, in part, that the claimed steps are performed "by a
microprocessor."
In Appellants' view, "as a person of ordinary skill in the art at the
time of the invention would understand and appreciate, using a
microprocessor as claimed cannot be performed mentally." App. Br. 18.
Yet "[ c ]ourts have examined claims that required the use of a
computer and still found that the underlying, patent-ineligible invention
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could be performed via pen and paper or in a person's mind." Versata Dev.
Grp. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015), quoted in
Guidance, 84 Fed. Reg. at 52 n.14. So although claim 1 recites a
microprocessor, this does not preclude the claim from being directed to the
recited abstract idea.
As discussed in§§ II.C.i.-iv. above, the processor performs
operations that can practically be performed mentally. Indeed, the recited
processor may perform the calculations faster than a human. Using a
computer to achieve a solution more quickly, though, may not be sufficient
to show an improvement to computer technology. See Versata, 793 F.3d at
1335; see also MPEP § 2106.05(a)(II) (instructing examiners that a
"commonplace business method being applied on a general purpose
computer" may not be sufficient to show an improvement). Here, the
microprocessor is a token addition; it is used as a tool in its ordinary
capacity.
Essentially, the recited microprocessor executes the abstract idea. The
Specification discloses that the microprocessor can be a general-purpose
processor executing a program. Spec. ,r 58. To be sure, a particular machine
or manufacture that is integral to the claim indicates that the abstract idea
has been integrated into a practical application. Guidance, 84 Fed. Reg.
at 55. But a general-purpose processor that merely executes the judicial
exception-as is the case here-is not a particular machine. Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 716-17 (Fed. Cir. 2014), cited in MPEP
§ 2106.05(b )(I).
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For all these reasons, the claimed method does not use the processor
in a way that indicates that the judicial exception has been integrated into a
practical application.
iii. "building"
Claim 1 recites, in part, "building, by the microprocessor, a rich
calendar for the first entity, the rich calendar comprising data for the first
value and for each of the segments within the calendar window."
The "rich calendar" is merely a calendar with additional data.
Building the rich calendar is nothing more than collecting the values for the
above-discussed abstract idea. See supra§§ II.C.i.-iv. For instance, after
the analysis is complete and the events have been assigned values, the
system stores the rich-calendar information. Spec. ,r 52. The rich-calendar
information simply contains event-type information and the time segments.
Id.
Building a calendar here is similar to building the index recited in the
claims in Intellectual Ventures I LLC v. Erie Indemnity Co., 850 F.3d 1315
(Fed. Cir. 2017), cited in MPEP § 2106.05(g). In that case, the Federal
Circuit determined that "merely using XML tags-as opposed to other kinds
of tags-to build an index is still abstract." Id. at 1328. The Federal Circuit
explained that "[t]he claims are not focused on how usage of the XML tags
alters the database in a way that leads to" an improvement to database
technology; "the claims simply call for XML-specific tags in the index
without any further detail." Id.
Similarly, the claim here merely calls for building a rich calendar with
a "first value" and the calendar-window segments. Claim 1 lacks any further
detail that would suggest a technical improvement. Adding insignificant
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extra-solution activity to the judicial exception in this way does not indicate
that the exception has been integrated into a practical application. Guidance,
84 Fed. Reg. at 55; see also MPEP § 2106.05(g) (instructing examiners that
"examples of activities that the courts have found to be insignificant extra-
solution activity" include selecting a particular data source or type of data to
be manipulated) (citing Intellectual Ventures, 850 F.3d at 1328-29).
For all these reasons, the recited building step does not indicate that
the judicial exception has been integrated into a practical application.
iv. "stored in a computer memory"
Claim 1 recites, in part, "using the microprocessor to cause the rich
calendar to be stored in computer memory." This step does not recite how
the calendar is to be stored in memory. Instead, this step uses the processor
and memory in their ordinary capacities as tools to write and store data. In
this way, storing data is insignificant extra-solution activity, which does not
indicate that the claim has integrated the exception into a practical
application. See Guidance, 84 Fed. Reg. at 55 n.31 (collecting cases).
Because the claim recites a microprocessor and memory, Appellants
argue that "these claims confront only the underlying technology of
computerized calendar information." App. Br. 15. Yet a claim may not
integrate the abstract idea when it generally links the judicial exception to a
particular technological environment or field, as is the case here. Guidance,
84 Fed. Reg. at 55 n.32 (citing MPEP § 2106.05(h)). Thus, the
microprocessor and memory do not indicate that the exception has been
integrated into a practical application.
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v. The Combination
One way that a claim may integrate the judicial exception is by
reciting an improvement to a technology or a technical field. Id. at 55.
Appellants argue that the improvement is to "the logic and structures
involved in providing improved calendar information." App. Br. 14. In
Appellants' view, the claims "solve a technical problem with existing
computerized calendar information." Id. at 16. Appellants argue that the
claims "do not recite general-purpose computer components after the fact to
a fundamental economic practice or mathematical equation, but are 'directed
to a specific implementation of a solution to a problem in the software arts."'
Id. (citing Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir.
2016)). We disagree.
Apart from the abstract idea, claim 1 uses a generic microprocessor
and a generic memory to receive and store data (i.e., receiving the textual
information, building a rich calendar, and using the processor to store data in
memory). The problem being solved relates to assigning work in a contact
center, workforce optimization, staffing, or other optimization scenarios.
See Spec. ,r,r 56-57. The Specification states that the invention solves the
problem because it "simply provides a mechanism for incorporating calendar
information into a work item routing decision." Id. ,r 56. This is not an
improvement to computers. Instead, claim 1 uses the computer as a tool to
receive the information, execute the recited abstract idea, and store the
results.
Because Appellants' claim does not solve a problem in the software
arts, claim 1 is unlike the technology-based integrations cited by Appellants.
For example in Enfzsh, the patent-eligible claim was directed to a self-
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referential table to improve computer databases. 822 F.3d at 1337,
discussed in App. Br. 15-17; Reply Br. 4--5. Likewise, in McRO, the patent-
eligible claim focused on a specific asserted improvement in computer
animation. McRO, Inc. v. Bandai Namco Games Am., 837 F.3d 1299 (Fed.
Cir. 2016), discussed in Reply Br. 6-7. By contrast, Appellants' claimed
invention incorporates calendar information into a work-item routing
decision. Id. ,r 56. Considering the claim as a whole, Appellants' invention
lacks a technical solution to a technical problem like the claims in these
cases.
Appellants further argue that "[t ]he claims are specifically limited to
addressing issues existing solely in the realm of computer contact centers
and are not so broad as to cover the practice of using calendar information in
any other way except within this field of technology." App. Br. 15. But a
claim may not integrate the abstract idea into a practical application when it
generally links the judicial exception's use to a particular technological
environment or field. Guidance, 84 Fed. Reg. at 55 n.32 (citing
MPEP § 2106.05(h)).
vi. Other Indicia of Integration
The Guidance lists other indicia of integration. Guidance, 84 Fed.
Reg. at 55. None are present in claim 1.
For example, "[t]ransformation and reduction of an article 'to a
different state or thing' is the clue to patentability of a process claim that
does not include particular machines." Bilski v. Kappas, 561 U.S. 593, 604
(2010) ( emphasis added), quoted in MPEP § 2106.05( c ). Yet "not all
transformations ... infuse an otherwise ineligible claim with an 'inventive
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concept.'" DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256
(Fed. Cir. 2014).
Claim 1 's method does not transform a physical object or substance.
In this way, the claim is unlike the transformations found in some eligible
claims. See, e.g., Diehr, 450 U.S. at 184 (a process that transforms rubber).
On this record, claim 1 is directed to the recited abstract idea.
E. Does the claim provide an inventive concept?
To determine whether a claim provides an inventive concept, the
additional elements are considered-individually and in combination-to
determine whether they (1) add a specific limitation beyond the judicial
exception that is not well-understood, routine, and conventional in the field
or (2) simply append well-understood, routine, and conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. Guidance, 84 Fed. Reg. at 56. Also, we reevaluate
our conclusions about the additional elements discussed in the previous step.
Id.
We agree with the Examiner that the recited microprocessor's activity
is well-understood, routine, and conventional in the field. Ans. 5.
Specifically, using a computer "only for its most basic function, the
performance of repetitive calculations," may not impose meaningful limits
on the claim's scope. Bancorp Servs. v. Sun Life Assurance Co. of Can.
(U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012). Similarly, the MPEP instructs
examiners that courts recognize that using a computer for performing
repetitive calculations may be well-understood, routine, and conventional
activity when claimed generically. MPEP § 2106.05( d)(II)(ii) ( citing Parker
v. Flook, 437 U.S. 584, 594 (1978); Bancorp, 687 F.3d at 1278).
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The recited processor performs operations that can practically be
performed mentally. See supra §§ II.C.i.-iv. This suggests that the method
only requires a computer with basic functions. Indeed, the Specification
discloses that the recited microprocessor can be a general-purpose processor.
Spec. ,r 58. Because claim 1 's method uses this general-purpose processor
to execute the abstract idea, the recited processor adds nothing more than
well-understood, routine, and conventional activity, specified at a high level
of generality, to the abstract mental process. See MPEP § 2106.05( d)(II)(ii).
We also agree with the Examiner that the recited computer memory is
used in a well-understood, routine, and conventional way. Ans. 5. In
particular, courts recognize that storing and retrieving information in
memory may be well-understood, routine, and conventional activity when
claimed generically. Versata, 793 F.3d at 1334; OIP Techs., 788 F.3d at
1363, cited in MPEP § 2106.05(d)(II)(iv). Claim 1 does not describe a
specific way that the rich calendar is stored; it merely recites that the
calendar is stored using a microprocessor, without more.
We also reevaluate our conclusions about whether the recited
additional elements integrate the abstract idea into a practical application.
See supra§ II.D. Because the additional elements add nothing more than
well-understood, routine, and conventional activity, those conclusions stand.
Considering both our previous conclusions and the findings about well-
understood, routine, and conventional activity, we determine that the
claimed method does not use the additional elements in a way that indicates
that the claim provides an inventive concept.
Appellants argue that "a new combination of steps in a process may
be patentable even though all the constituents of the combination were well
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known and in common use before the combination was made." App. Br. 20
(citing Diehr, 450 U.S. at 188).
Appellants' claims, though, are unlike those that the Federal Circuit
has found to be directed to a patent-eligible combination of elements. For
example, the claims in BASCOM Global Internet Services, Inc. v. AT&T
Mobility LLC involved an inventive distribution of function between a local
computer and a server. See 827 F.3d 1341, 1350-51 (Fed. Cir. 2016). The
Federal Circuit noted "[t]he inventive concept described and claimed in the
'606 patent is the installation of a filtering tool at a specific location, remote
from the end-users, with customizable filtering features specific to each end
user." Id. at 1350. "Because the filtering tool on the ISP server contains
each user's customized filtering mechanism, the filtering tool working in
combination with the ISP server can apply a specific user's filtering
mechanism to the websites requested by that user." Id. at 1345.
Unlike the claims in BASCOM, claim 1 does not recite an inventive
distribution of function between the recited microprocessor and memory, for
example. Rather, the processor simply executes the abstract idea and stores
the result in memory.
Appellants also argue that the claim recites a new combination of
steps. App. Br. 15, 20. For instance, Appellants argue that the claim
"cannot be equated to a traditional method of using calendar information."
Id. at 15. Appellants argue that the recited segmenting is unconventional.
Id. at 20-21.
The segmenting, though, is part of the abstract idea itself. See supra
§ II.C. And "a claim for a new abstract idea is still an abstract idea."
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
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2016). So the limitations on the mental process do not make claim 1 any
less abstract. None of these limitations provide an inventive concept in the
non-abstract application realm. Unlike BASCOM, claim 1 is simply an
"abstract-idea-based solution implemented with generic technical
components in a conventional way." 827 F.3d at 1351.
Thus, the limitations----considered individually and in combination-
do not provide an inventive concept.
Appellants have not persuaded us of error in the rejection of claim 1
under 35 U.S.C. § 101. So we sustain the§ 101 rejection of representative
claim 1. We also sustain the rejection of claim 11, which is not argued
separately.
F. Dependent Claims
As for the dependent claims, Appellants argue that "no proper
rejection under 35 U.S.C. § 101 has been made regarding the dependent
claims, as no analysis has been provided and no explanation has been made
by the Office Action." App. Br. 21. According to Appellants, "[t]he Office
Action in the present case provided no such explanation for any claim other
than the independent claims" and "the rejection is incomplete and should be
withdrawn." Id. We disagree.
The procedural burden of establishing a prima facie case is carried
when the rejection satisfies the requirements of 35 U.S.C. § 132. In re Jung,
637 F.3d 1356, 1363 (Fed. Cir. 2011). "Section 132 is violated when a
rejection is so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection." Chester v. Miller, 906
F.2d 1574, 1578 (Fed. Cir. 1990). That is, the Examiner must set forth the
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rejection's statutory basis "in a sufficiently articulate and informative
manner as to meet the notice requirement of§ 132." Jung, 637 F.3d at 1363.
But this is not a case where the "rejection is so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection." Id. at 1362. Rather, the Examiner has provided a rationale
that identifies the abstract idea recited in the claim and why it is considered
an exception. See Final Act. 4--7.
Specifically, the Examiner determines that claim 1 recites a mental
process (Final Act. 6; Ans. 4) and claims 2-10 only further "limit that
Abstract idea by further defining the types of values, the types of time
segments, selection of entities to perform work, [ and] types of rules"
(Final Act. 7; Ans. 5). According to the Examiner, "the dependent claims do
not recite additional elements beyond the Abstract idea, but instead only
recite limitations that further narrow the Abstract idea." Ans. 48. Indeed,
we agree that "[a] narrow claim directed to an abstract idea, however, is not
necessarily patent-eligible." Intellectual Ventures I LLC v. Symantec Corp.,
838 F.3d 1307, 1321 (Fed. Cir. 2016); see also Synopsys, 839 F.3. at 1151
("[A] claim for a new abstract idea is still an abstract idea.").
As to the merits of the Examiner's determination, Appellants have not
provided a persuasive rebuttal. See Reply Br. 3-7 (discussing only the
independent claims); Reply Br. 19 ( reasserting the argument in the Appeal
Brief).
On this record, Appellants have not persuaded us of error in the
rejection of claims 2-10 and 12-18 under 35 U.S.C. § 101.
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III. The Obviousness Rejection over Brotman and Purohit
A. Introduction
The Examiner finds that the subject matter of representative 6 claim 1
would have been obvious over Brotman and Purohit. Final Act. 8-10. The
Examiner finds that Brotman teaches all limitations except for the recited
predetermined time. Id. In concluding that the claimed subject matter
would have been obvious, the Examiner finds that Purohit teaches using
predetermined two-hour intervals to partition a time window. Id. at 10.
B. "textual calendar description information"
Appellants argue that Brotman does not teach the recited segmenting.
App. Br. 26-27. In particular, claim 1 recites, in part, "segmenting, by the
microprocessor, the first entity's textual calendar description information
into segments of predetermined amounts of time that span a calendar
window within the first entity's calendar." Id. at 33 (emphasis added).
According to Appellants, Brotman teaches only that a schedule is tracked,
but Brotman does not mention any "textual calendar description
information," as recited. Id. at 26. Appellants argue that one can track
appointments without textual calendar information because "appointments,
meetings, time off, and obligations may merely be marked as reserved on a
schedule without any accompanying textual description." Id.
The first issue here is whether Brotman teaches or suggests "textual
calendar description information." The Specification states that "'textual' as
6 Appellants argue claims 1, 4, 8-12, and 14--18 as a group. See
App. Br. 25-30. So we select independent claim 1 as representative of this
group. See 37 C.F.R. § 4I.37(c)(l)(iv).
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used herein may correspond to any traditional representation of a calendar."
Spec. ,r 4 7 ( emphasis added).
Brotman teaches a traditional calendar representation. In particular,
Brotman's schedule-database server tracks a user's schedule, which includes
a user's appointments, meetings, time off, and obligations. Brotman ,r 32.
The server can receive "direct manual input" from the users associated with
terminals. Id. Brotman's Figure 1 shows that these terminals can be phones.
Id. Fig. 1. Also, client 104 can be a workstation with a keyboard. Id. ,r 35.
So Brotman suggests that the user's "direct manual input" involves entering
some textual representation into these devices. Id.
Likewise, Brotman teaches that calendrical time indicates a time, one
or more temporal designations ( e.g., day of the week, month), events ( e.g.,
birthdays, holidays), and a time span. Id. ,r,r 19-23. These are textual
descriptions of time.
For all these reasons, we agree with the Examiner that Brotman
teaches or suggests "textual calendar description information." Final Act. 8
( citing Brotman ,r 32); Ans. 52-53.
C. "segments of predetermined amounts of time"
Appellants argue that Brotman's intervals "are determined only by
times during which a resource is occupied, and such intervals cannot be said
to teach or suggest segmenting amounts of time within a calendar window."
Reply Br. 10.
Appellants' arguments here (id.) raise the issue of whether Brotman
and Purohit collectively teach or suggest the recited "segments of
predetermined amounts of time."
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Notably, claim 1 does not recite how to segment. To be sure, claim 1
recites what is segmented-i.e., the first entity's textual calendar description
information. And claim 1 recites the result of the segmentation-i.e.,
segments of predetermined amounts of time that span a calendar window
within the first entity's calendar. Claim 1, though, does not limit the
segmentation to a particular algorithm.
Like the recited segments, Brotman' s intervals represent a time
span-i.e., "from 1 :00 pm to 4:00 pm on Monday." Brotman ,r 60.
Brotman's schedule is made up of these intervals. Id. Thus, we agree with
the Examiner that the term "segments," as recited, encompasses Brotman's
intervals. Final Act. 8.
The Examiner, however, notes that Brotman's intervals are not
predetermined. Final Act. 10. Thus, the Examiner finds that Brotman does
not teach segments of predetermined amounts of time, as recited. Id. As for
this feature, the Examiner finds Purohit teaches using predetermined two-
hour intervals to partition a time window. 7 Id.
Appellants argue that Purohit, like Brotman, relates to scheduling
activities. App. Br. 30; Reply Br. 12-13. In Appellants' view, Purohit "is
limited to teaching how to find a time slot in a schedule where a particular
activity will fit, considering the timeframe of the particular activity."
App. Br. 30 ( citing Purohit ,r,r 96-97).
We are not persuaded that these features weigh against the Examiner's
obviousness conclusion. In fact, the similarities between Purohit and
7 We note that Appellants argue that Brotman does not segment into
"predetermined amounts of time," as recited. App. Br. 27; Reply Br. 10-11.
But the Examiner does not rely on Brotman for this feature. Final Act. 10.
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Brotman that Appellants note here (App. Br. 30; Reply Br. 12-13) only
bolster the Examiner's position.
Specifically, Purohit teaches that a predetermined amount of time is
two hours for an appointment window. See Purohit ,r 97. Purohit further
teaches a workday from 8 AM to 5 PM-i.e., the recited window. Id. This
window is "partitioned into four time slots of 8-10 AM, 10-12 PM, 1-3 PM,
and 3-5 PM." Id. Purohit uses this information to schedule an appointment.
Id.
The Examiner reasons that it would have been obvious to modify
Brotman' s schedule with Purohit' s predetermined amounts of time.
Final Act. 10 (citing Purohit ,r 6). We agree. Because Purohit's schedules
are scalable and defined with a desired size and complexity, Brotman's
schedule can be optimized by applying Purohit's teachings. Purohit ,r 6.
In sum, we agree with the Examiner that ( 1) Brotman' s intervals are
segments and (2) it would have been obvious to modify Brotman's intervals
with Purohit's predetermined amounts of time. See id.
D. "analyzing"
Claim 1 recites, in part, "analyzing, by the microprocessor, each
segment within the calendar window to determine events occurring within
the calendar window."
Appellants argue that Brotman does not analyze each segment as
recited. App. Br. 27-28. According to Appellants, "scheduling resources is
an action that is distinct from analyzing segments," "detecting events is
distinct from ... the action of analyzing segments," and "looking for
available amounts of time does not teach or suggest determining events that
occur by analyzing segments." Id. In Appellants' view, Brotman merely
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looks for amounts of time, which is different from determining events by
analyzing segments. Reply Br. 11.
Apart from these conclusory statements, Appellants do not explain
why Brotman's functions are different from the recited analyzing.
App. Br. 27-28.
The Specification discloses that "[i]n some embodiments, the analysis
may include comparing the event type values in each of the corresponding
segments." Spec. ,r 55 ( emphasis added). The Specification further
discloses that "[a]s a non-limiting example, the work assignment engine 120
may analyze a common time segment for five resources 112 and compare
the values in each time segment of each resource with the values of the other
resources." Id. ( emphasis added). We emphasize "may" and "non-limiting
example" here because this language shows that the analysis can be
performed in other ways. Considering these examples, a broad, but
reasonable, interpretation of the recited analyzing encompasses-but is not
limited to------comparing values.
Like the recited analyzing, Brotman' s analysis includes comparing
availability information with time and geographic requirements. Ans. 53
( citing Brotman ,r 80). For example, Brotman' s candidate list contains
"resources"-i.e., workers. Brotman ,r,r 2, 79. Processor 202 compares a
resource's availability information with table 301 's time-requirement field.
Id. ,r 79. For example, the availability information may show that the
resource is on a business trip until Friday. Id. ,r 80. So in this case,
comparing the information will show that the resource is unavailable to
complete tasks by 5:00 pm on Friday. Id. In another example, the
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comparison may show that a resource that has one hour of free time and is
available to complete a one-hour task by the end of the day. Id. ,r 81.
Because Brotman compares information in this way (id. ,r,r 2, 79-80),
we agree with the Examiner that Brotman teaches analyzing, by the
microprocessor, each segment within the calendar window to determine
events occurring within the calendar window (e.g., a resource's business
trip). Ans. 53.
E. "identifying"
Claim 1 recites, in part, "based on the analysis, identifying, by the
microprocessor, that the first event is in a first time segment within the
calendar window."
Appellants argue that "these limitations require that an event in a time
segment is identified based on the analysis," and "Brotman is silent
regarding any such identification that is based on such an analysis, as
claimed." App. Br. 28; Reply Br. 11-12. In Appellants' view, Brotman
only discusses whether a resource is occupied or not. App. Br. 28;
Reply Br. 12 ( citing Brotman ,r,r 60, 80-81 ). We disagree.
Specifically, Brotman' s processor 202 compares a resource's
availability information with the time-requirement field in table 301.
Brotman ,r 79. The Examiner finds that this analysis is the basis for
Brotman's identification. Ans. 53 (citing Brotman ,r 80). We agree with the
Examiner because Brotman's identification of a first event----e.g., the
resource's business trip----follows from processor 202's comparison of the
availability information. See Brotman ,r,r 79-80.
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On this record, we agree with the Examiner that the Brotman-Purohit
combination teaches or suggests, based on the analysis, identifying that the
first event is in a first time segment within the calendar window.
F. "building a rich calendar"
Claim 1 recites, in part, "building, by the microprocessor, a rich
calendar for the first entity, the rich calendar comprising data for the first
value and for each of the segments within the calendar window."
According to Appellants, Brotman is silent as to "any determining of a
first value for a first event and building a rich calendar." App. Br. 29.
Appellants argue that "Brotman merely discloses scheduling activities and
resources using a calendar," and the cited parts of Brotman are "limited to
merely showing whether a resource is occupied or not." Id. ( citing
Brotman ,r,r 60-61); Reply Br. 12. In Appellants' view, the mere existence
of a schedule is insufficient to show that Brotman teaches or suggests the
recited determination. App. Br. 29; Reply Br. 12.
The issue raised by Appellants' arguments (App. Br. 29;
Reply Br. 12) is whether Brotman builds a rich calendar. The issue turns on
the meaning of "rich calendar." "In some embodiments, each entity may
have its own rich calendar information 208 that contains event type
information stored in time segments." Spec. ,r 52 ( emphasis added). "The
event type information may include a bit, multiple bits, hexadecimal bits,
and/or a multi-bit vector configured to return an integer value or an index
into a dictionary of values or functions." Id. ( emphasis added). We
emphasize "may" here because it shows that the rich calendar is not limited
to this embodiment. Accord id. ,r 62 ( explaining that the embodiments are
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illustrative). Rather, the recited rich calendar comprises only "data for the
first value and for each of the segments within the calendar window."
The Examiner finds that Brotman's resource information table
corresponds to the recited rich calendar because it contains the recited data.
Ans. 60; Final Act. 9.
Specifically, as for the recited "first value," the Examiner finds that
Brotman teaches that this value includes whether the resource is
geographically available at the required time. Final Act. 9. We agree
because Brotman's resource information table stores a task's geographic
requirement and a resource's geo-location. Brotman ,r 55.
As for the recited "data for ... each of the segments," Brotman's
schedule is made up of intervals (i.e., the recited segments). Id. ,r 60. And
Brotman's resource information table also includes that schedule. See, e.g.,
id. ,r 55. Thus, we are unpersuaded that Brotman merely discloses a
schedule. App. Br. 29; Reply Br. 12. Rather, Brotman teaches a resource
information table that includes the data for the first value and the recited
segments. Ans. 60; Final Act. 9.
G. Conclusion
We sustain the obviousness rejection of representative claim 1. We
also sustain the rejection of claims 4, 8-12, and 14--18, which are argued
together with claim 1. See supra n.6.
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IV. The Anticipation Rejection
A. "analyze a first entity's textual schedule"
Claim 19 recites, in part, "the work assignment engine causes the
microprocessor to execute strategy rules that analyze a first entity's textual
schedule." App. Br. 37 (emphasis added).
The Examiner finds that Brotman teaches every limitation of claim
19, including the recited strategy rules that analyze a first entity's textual
schedule. Final Act. 28 ( citing Brotman ,r,r 68, 85).
Appellants argue that Brotman does not analyze a first entity's textual
schedule because "Brotman is silent regarding any analysis of a textual
schedule." App. Br. 24. In Appellants' view, the cited paragraphs are
entirely silent about any textual schedule. Id. ( citing Brotman ,r,r 68, 85).
For reasons similar to those discussed above (see supra § III.D.), we
are unpersuaded by Appellants' arguments about the textual schedule and its
analysis.
As for the textual schedule, the Specification states that "'textual' as
used herein may correspond to any traditional representation of a calendar."
Spec. ,r 47 (emphasis added).
Brotman discloses a traditional representation of a calendar that is
used for a schedule. In particular, Brotman's schedule database server tracks
a user's schedule. Brotman ,r 32. The server receives "direct manual input"
from the users, which are associated with terminals. Id. Figure 1 shows that
these terminals can be phones. Id. Fig. 1. Also, client 104 can be a
workstation with a keyboard. Id. ,r 35. So Brotman discloses that a user's
"direct manual input" involves entering a textual representation into these
devices. Id.
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Likewise, Brotman discloses that calendrical time indicates a time,
one or more temporal designations (e.g., day of the week, month), events
(e.g., birthdays, holidays), and a time span. Id. ,r,r 19-23. For all these
reasons, we agree with the Examiner that Brotman discloses a "textual
schedule." Final Act. 28; Ans. 49.
As for the analysis of the schedule, a broad, but reasonable,
interpretation of analyzing encompasses-but is not limited to------comparing
values. See Spec. ,r 55; supra§ III.D.
Like the recited analyzing, the Examiner finds that Brotman's analysis
includes comparing availability information with time and geographic
requirements. Ans. 49 ( discussing Brotman ,r 80). Processor 202 compares
a resource's availability information with the time-requirement field in table
301. Brotman ,r 79. The availability information may indicate that the
resource is on a business trip until Friday, and thus the comparison (i.e., the
analysis) will indicate that the resource is unavailable to complete tasks by
5:00 pm on Friday. Id. ,r 80. In another example, the comparison may
indicate that a resource that has one hour of free time and is available to
complete a one-hour task by the end of the day. Id. ,r 81.
On this record, we agree with the Examiner that Brotman discloses
that the work assignment engine causes the microprocessor to execute
strategy rules that analyze a first entity's textual schedule.
B. "build a rich calendar"
Claim 19 recites, in part, "a scheduling module that causes the
microprocessor to build a rich calendar for the first entity based on the first
entity's textual schedule."
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Appellants argue that Brotman does not build a rich calendar as
recited, because Brotman only refers to segments that correspond to event
times and is silent on a "textual schedule." App. Br. 24. In Appellants'
view, "Brotman is directed towards scheduling activities and resources." Id.
( citing Brotman ,r,r 33, 55---60).
We are unpersuaded by Appellants' arguments about the textual
schedule for reasons similar to those discussed above. See supra§ IV.A. As
for the recited "data for ... each of the segments," Brotman's schedule is
made up of intervals (i.e., the recited segments). Brotman ,r 60. And
Brotman's resource information table (i.e., the recited rich calendar) also
includes that schedule. See, e.g., id. ,r 55. In this way, Brotman discloses a
microprocessor to build a rich calendar for the first entity based on the first
entity's textual schedule. Final Act. 28 ( citing Brotman ,r 55); Ans. 49.
Next, we discuss the rich calendar's values.
C. "the value represents and outcome"
Claim 19 recites, in part, "the rich calendar comprising a value
assigned to a calendar segment, wherein the value represents an outcome
associated with selecting the first entity in the calendar segment as part of
the execution of the strategy rules."
The Examiner finds that Brotman's resource information table
includes a resource's skills, which corresponds the recited value. Ans. 51.
Appellants argue that "Brotman is silent regarding any value that
represents an outcome associated with selecting a first entity in a calendar
segment as part of execution of strategy rules, as claimed." Reply Br. 8. In
Appellants' view, scheduling activities and resources using a calendar, as in
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Brotman, are different and distinct activities than building a rich calendar, as
recited. Id.
According to Appellants, even assuming Brotman' s skills are the
recited values, ( 1) "Brotman is silent regarding any skill being an outcome
associated with a selection of an entity," and (2) "Brotman is silent regarding
any skill being an outcome associated with a selection of an entity in a
calendar segment." Reply Br. 8-9 (emphasis in original). We disagree.
The Examiner finds that Brotman' s skill values represent an outcome
associated with selecting the first entity in the calendar segment, as recited.
Ans. 51. We agree because Brotman assigns resources (i.e., the outcome) by
their skills and availability at that time (i.e., the calendar segment). See id.
For instance, processor 202 selects a resource based on whether the resource
has the skills, availability, and time that the task requires. Brotman ,r 68,
cited in Final Act. 28. As discussed above, Brotman's schedule is made up
of intervals (i.e., the recited segments). Id. ,r 60. We agree with the
Examiner that if Brotman' s value indicates the resource has the necessary
skill, then "the routing decision will have a more positive outcome."
Ans. 51.
On this record, Appellants have not shown that the Examiner erred in
finding that Brotman' s "value represents an outcome associated with
selecting the first entity in the calendar segment as part of the execution of
the strategy rules."
Thus, we sustain the anticipation rejection of claim 19.
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V. The Remaining Obviousness Rejections
Claims 2, 3, 5-7, 13, and 20 depend, directly or indirectly, from
claims 1, 11, or 19. In arguing for the patentability of claims 2, 3, 5-7, 13,
and 20, Appellants refer to the arguments presented for the independent
claims 1, 11, or 19. App. Br. 31-32; Reply Br. 16-19. As discussed above,
these arguments are unpersuasive. So for the reasons discussed in
connection with claims 1, 11, or 19, we also sustain the rejections of claims
2, 3, 5-7, 13, and 20.
CONCLUSIONS
We sustain the rejection of claim 20 under 35 U.S.C. § 112(a) as
failing to comply with the written-description requirement.
We sustain the rejection of claims 1-18 under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter.
We sustain the rejection of claim 19 under 35 U.S.C. § 102(a)(l) as
anticipated by Brotman.
We sustain the rejection of claims 1, 4, 8-12, and 14--18 under
35 U.S.C. § 103 as unpatentable over Brotman and Purohit.
We sustain the rejection of claims 2, 3, 5-7, and 13 under 35 U.S.C.
§ 103 as unpatentable over Brotman, Purohit, and Chen.
We sustain the rejection of claim 20 under 35 U.S.C. § 103 as
unpatentable over Brotman and Chen.
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DECISION
We affirm the Examiner's decision to reject claims 1-20.
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).
AFFIRMED
35