International Business Machines CorporationDownload PDFPatent Trials and Appeals BoardOct 1, 20212021002130 (P.T.A.B. Oct. 1, 2021) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/854,867 09/15/2015 Paul R. Bastide SVL920150095US1_8150-0573 3359 112978 7590 10/01/2021 Cuenot, Forsythe & Kim, LLC 20283 State Road 7, Suite 300 Boca Raton, FL 33498 EXAMINER MISIASZEK, AMBER ALTSCHUL ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 10/01/2021 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL R. BASTIDE, MATTHEW E. BROOMHALL, SEAN CALLANAN, and SANDRA L. KOGAN Appeal 2021-002130 Application 14/854,867 Technology Center 3600 Before HUBERT C. LORIN, CYNTHIA L. MURPHY, and BRADLEY B. BAYAT, Administrative Patent Judges. LORIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s non-final decision to reject claims 1–4, 6–11, 13–18, and 20.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies International Business Machines Corporation as the real party in interest. Appeal Br. 4. Appeal 2021-002130 Application 14/854,867 2 CLAIMED SUBJECT MATTER The claimed subject matter relates “to performance management systems” (Spec. para. 1). Claim 1, reproduced below with emphasis added, is illustrative of the claimed subject matter: 1. A method, comprising: receiving first information indicating at least a first goal for a first user and storing the first information to a storage device; monitoring electronic communications communicated in at least one social system and performing natural language processing, using a processor, on the electronic communications to identify at least one of the electronic communications comprising second information related to the first goal; determining a health of the first goal by processing the second information related to the first goal contained in the identified at least one of the electronic communications by deriving a computer-understandable representation of the second information contained in the electronic communication by performing, using the processor, natural language processing and semantic analysis on the second information contained in the electronic communication; responsive to determining the health of the first goal, automatically generating, based on the health of the first goal, a first electronic message prompting a second user to provide to the first user feedback regarding the first goal and communicating the first electronic message for presentation to at least the second user; presenting to the second user a plurality of proposed feedback messages, each of the proposed feedback messages generated by a performance management system and corresponding to an importance of the first goal and customized for the first user based on information of the first user obtained by the performance management system; configuring, by the processor, the plurality of proposed feedback messages for a manner in which at least one of the Appeal 2021-002130 Application 14/854,867 3 plurality of proposed feedback messages will be communicated to the first user; receiving from the second user a selection of at least one of the plurality of proposed feedback messages; and communicating to at least the first user the selected at least one of the plurality of proposed feedback messages. REJECTION Claims 1–4, 6–11, 13–18, and 20 are rejected under 35 U.S.C. § 101 as being directed to judicially-excepted subject matter without significantly more. OPINION The Appellant argues claims 1–4, 6–11, 13–18, and 20 as a group. See Appeal Br. 10–27. We select claim 1 as the representative claim for this group, and the remaining claims 2–4, 6–11, 13–18, and 20 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2020). Introduction 35 U.S.C. § 101 provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” In that regard, claim 1 covers a “process” and is thus statutory subject matter for which a patent may be obtained.2 This is not in dispute. 2 This corresponds to Step 1 of the 2019 Revised 101 Guidance which requires determining whether “the claim is to a statutory category.” 84 Fed. Reg. at 53. See also id. at 53–54 (“consider[] whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101.”). Appeal 2021-002130 Application 14/854,867 4 However, the 35 U.S.C. § 101 provision “contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). In that regard, notwithstanding claim 1 covers statutory subject matter, the Examiner has raised a question of patent eligibility on the ground that claim 1 is directed to an abstract idea. Alice identifies a two-step framework for determining whether claimed subject matter is directed to an abstract idea. Alice, 573 U.S. at 217. Alice step one — the “directed to” inquiry: According to Alice step one, “[w]e must first determine whether the claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S. at 218 (emphasis added). The Examiner determined that claim 1 is directed to, inter alia, “receiving a set of data (receiving information for a goal of a user) based on a communication in a social system (such as by monitoring a communication, determining a health goal and generating a message and communicating said message)” which falls into the 2019 Revised 101 Guidance’s mental processes and organizing human activity groupings of abstract ideas. Final Act. 4. Appellant argues, inter alia, that the claimed subject matter “results in a specific improvement over prior art systems.” Appeal Br. 19. Appeal 2021-002130 Application 14/854,867 5 Accordingly, a dispute over whether claim 1 is directed to an abstract idea is present. Specifically, is claim 1 directed to “receiving a set of data . . .” (Final Act. 4) or a technological improvement (Appeal Br. 19)? Claim Construction3 We consider the claim as a whole giving it the broadest reasonable construction as one of ordinary skill in the art would have interpreted it in light of the Specification at the time of filing.4,5,6 Claim 1 describes a method comprising 10 steps: steps of “receiving,” “storing,” “monitoring,” “performing,” “determining,” “generating,” “presenting,” “configuring,” “receiving,” and “communicating” using generic devices. 3 “[T]he important inquiry for a § 101 analysis is to look to the claim.” Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013). “In Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012), the court observed that ‘claim construction is not an inviolable prerequisite to a validity determination under § 101.’ However, the threshold of § 101 must be crossed; an event often dependent on the scope and meaning of the claims.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1347–48 (Fed. Cir. 2015). 4 “In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole.” Diamond v. Diehr, 450 U.S. 175, 188 (1981). 5 “First, it is always important to look at the actual language of the claims. . . . Second, in considering the roles played by individual limitations, it is important to read the claims ‘in light of the specification.’” Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1378 (Fed. Cir. 2017) (J. Linn, dissenting in part and concurring in part) (citing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)), among others. 6 See 2019 Revised 101 Guidance, 84 Fed. Reg. at 52 n.14 (“If a claim, under its broadest reasonable interpretation . . . .”) (emphasis added). Appeal 2021-002130 Application 14/854,867 6 The first “receiving” step calls for receiving first goal information from a first user. The second “storing” step stores the first information to a “storage device.” The third “monitoring” step monitors electronic communications communicated in a social system. The fourth “performing” step identifies second information related to the first information. This performing step involves “natural language processing” (“NLP”) which the Specification defines generically: NLP is a field of computer science, artificial intelligence and linguistics which implements computer processes to facilitate interactions between computer systems and human (natural) languages. NLP enables computers to derive computer- understandable meaning from natural language input. The International Organization for Standardization (ISO) publishes standards for NLP, one such standard being ISO/TC37/SC4. Spec. para. 29. The fifth “determining” step determines “a health of a first goal.” The Specification defines “health” as “a state of activity pertaining to a goal. Examples of a state of activity pertaining to a goal include, but are not limited to, inactive, active, failure and success. Thus, the health of a goal can be inactive, active, failure or success.” Spec. para. 12. This step involves performing NLP “and semantic analysis” on the second information. The Specification defines “semantic analysis” generically: Semantic analysis is the implementation of computer processes to generate computer-understandable representations of natural language expressions. Semantic analysis can be used to construct meaning representations, semantic underspecification, anaphora resolution, presupposition projection and quantifier scope Appeal 2021-002130 Application 14/854,867 7 resolution, which are known in the art. Semantic analysis is frequently used with NLP to derive computer-understandable meaning from natural language input. Id. para. 29. The sixth “generating” step calls for generating an electronic message based on the “health of the first goal” to, inter alia, prompt “a second user to provide to the first user feedback regarding the first goal.” The seventh “presenting” step presents the second user with proposed feedback messages generated by a “performance management system.” The eighth “configuring” step configures the proposed feedback messages “in a manner . . . [to be] communicated to the first user.” The ninth “receiving” step receives a proposed feedback message form the second user. And the tenth “communicating” step communicates the proposed feedback message to the first user. As for the devices being used, they are all generic. The “storing” involves a generic “storage device”; the “performing,” “determining,” and “configuring” steps, and presumably the “automatic generating” step, are conducted via a generic “processor”; the “performing” and “determining” steps employ generic NLP techniques; and the “presenting” involves a generic “performance management system” (see Spec. para. 50). The “monitoring,” two "receiving,” and "communicating" steps are not attached to any device. Putting it together, the claimed subject matter is reasonably broadly construed as a scheme for determining the health of a user’s goals providing feedback to the user. Appeal 2021-002130 Application 14/854,867 8 According to the Specification, an objective of the invention is to provide “a performance management system that prompts managers to provide feedback to employees regarding their progress at achieving goals.” Spec. para. 10. Given the method as claimed as reasonably broadly construed above and in light of the Specification’s description of the objective of the invention in the personnel-management realm, we reasonably broadly construe claim 1 as being directed to a scheme for evaluating a person’s goals and providing feedback. The Abstract Idea7 Above, where we reproduce claim 1, we identify in italics the limitations that recite an abstract idea.8 Based on our claim construction analysis (above), we determine that the identified limitations describe a scheme for evaluating a person’s goals and providing feedback. Evaluating a person’s goals falls within the enumerated “[c]ertain methods of organizing human activity” grouping of abstract ideas set forth in the 2019 Revised 101 Guidance.9 2019 Revised 101 Guidance, 84 Fed. Reg. at 52. 7 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A determines “whether a claim is ‘directed to’ a judicial exception,” such as an abstract idea. Step 2A is a two prong inquiry. 8 This corresponds to Prong One (a) of Step 2A of the 2019 Revised 101 Guidance. “To determine whether a claim recites an abstract idea in Prong One, examiners are now to: (a) Identify the specific limitation(s) in the claim under examination (individually or in combination) that the examiner believes recites an abstract idea.” 84 Fed. Reg. at 54. 9 This corresponds to Prong One [“Evaluate Whether the Claim Recites a Judicial Exception”] (b) of Step 2A of the 2019 Revised 101 Guidance. “To determine whether a claim recites an abstract idea in Prong One, examiners are now to: . . . (b) determine whether the identified limitation(s) falls within Appeal 2021-002130 Application 14/854,867 9 Technical Improvement10 (Appellant’s Argument) Our characterization of what the claim is directed to is similar to the Examiner’s, albeit the Examiner’s characterization is described at a somewhat lower level of abstraction. Nevertheless, “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240–41 (Fed. Cir. 2016) (“The Board’s slight revision of its abstract idea analysis does not impact the patentability analysis.”). We have reviewed the record and are unpersuaded as to error in our or the Examiner’s characterization of what claim 1 is directed to. the subject matter groupings of abstract ideas enumerated in Section 1 of the [2019 Revised 101 Guidance].” 84 Fed. Reg. at 54. This case implicates subject matter grouping “(b)”: “(b) Certain methods of organizing human activity—fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions).” Id. at 52. 10 This corresponds to Prong Two [“If the Claim Recites a Judicial Exception, Evaluate Whether the Judicial Exception Is Integrated Into a Practical Application”] of Step 2A of the 2019 Revised 101 Guidance. “A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” 84 Fed. Reg. at 54. One consideration, implicated here, that is “indicative that an additional element (or combination of elements) may have integrated the exception into a practical application” is if “[a]n additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field.” Id. at 55. Appeal 2021-002130 Application 14/854,867 10 On pages 19 and 20 of the Appeal Brief, Appellant reproduces much of claim 1 and then states that “this results in a specific improvement over prior art system” (id. at 20). But Appellant does not further explain what exactly the specific improvement is. The system as claimed describes, in very general terms, processing (via “receiving,” “storing,” “monitoring,” “performing,” “determining,” “generating,” “presenting,” “configuring,” “receiving,” and “communicating” steps) certain information. The system as claimed is not focused on improving technology. It appears to provide, for example, a way for managers to encourage employees. See Spec. para. 39. But that is insufficient to show the claimed system yields a technical improvement as Appellant argues. Cf. Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019) (“The claims are focused on providing information to traders in a way that helps them process information more quickly, ’556 patent at 2:26–39, not on improving computers or technology.”). We have carefully reviewed the claim. Per our previous claim construction analysis, claim 1 is reasonably broadly construed as covering a scheme for evaluating a person’s goals and providing feedback. We see no specific asserted improvement in, for instance, computer capabilities recited in the claim. The claim provides no additional structural details that would distinguish any device required to be employed to practice the claimed subject matter as claimed, such as the recited “storage device,” “processor,” Appeal 2021-002130 Application 14/854,867 11 “NLP,” and “performance management system” from its generic counterparts.11 With respect to the “receiving,” “storing,” “monitoring,” “performing,” “determining,” “generating,” “presenting,” “configuring,” “receiving,” and “communicating” functions, the Specification attributes no special meaning to any of these operations, individually or in the combination, as claimed. In our view, these are common computer processing functions that one of ordinary skill in the art at the time of the invention would have known generic computers were capable of performing and would have associated with generic computers. Cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) Beyond the abstract idea of offer-based price optimization, the claims merely recite “well-understood, routine conventional activit[ies],” either by requiring conventional computer activities or routine data-gathering steps. Alice, 134 S.Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294) . . . . For example, claim 1 recites “sending a first set of electronic messages over a network to devices,” the devices being “programmed to communicate,” storing test results in a “machine-readable medium,” and “using a computerized system . . . to automatically determine” an estimated outcome and setting a price. Just as in Alice, “all of these computer functions are ‘well-understood, routine, conventional activit[ies]’ previously known to the industry.” Alice, 134 S.Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294) (alterations in original); see also buySAFE[, Inc. v. Google, Inc.], 765 F.3d [1350,] 1355 [(Fed. Cir. 2014)] (“That a computer 11 Cf. Move, Inc. v. Real Estate Alliance Ltd., 721 F. App’x 950, 954 (Fed. Cir. 2018) (non-precedential) (“Claim 1 is aspirational in nature and devoid of any implementation details or technical description that would permit us to conclude that the claim as a whole is directed to something other than the abstract idea identified by the district court.”). Appeal 2021-002130 Application 14/854,867 12 receives and sends the information over a network—with no further specification—is not even arguably inventive.”). We find the Appellant’s contention that the claim presents a technical- improvement solution unpersuasive as to error in the Examiner’s or our characterization of what the claim is directed to because the system as claimed fails to adequately support it. We are unable to point to any claim language suggestive of an improvement in technology. An argument that such an improvement exists is alone insufficient. See generally In re Schulze, 346 F.2d 600, 602 (CCPA 1965); In re Glass, 474 F.2d 1015, 1019 (CCPA 1973); In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974); and In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Accordingly, within the meaning of the 2019 Revised 101 Guidance, we find there is no integration of the abstract idea into a practical application. We have considered Appellant’s other arguments challenging the Examiner’s determination under step one of the Alice framework and find them unpersuasive. For the foregoing reasons, the record supports the Examiner’s determination that claim 1 is directed to an abstract idea. Alice step two — Does the Claim Provide an Inventive Concept?12 Step two is “a search for an ‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in 12 This corresponds to Step 2B, of the 2019 Revised 101 Guidance, 84 Fed. Reg. at 56 “if a claim has been determined to be directed to a judicial exception under revised Step 2A, examiners should then evaluate the additional elements individually and in combination under Step 2B to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself).” Appeal 2021-002130 Application 14/854,867 13 practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217–18 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 73 (2012)). In that regard, the Examiner determined that taken individually or as a whole the additional elements of claim 1 do not provide an inventive concept (i.e. they do not amount to “significantly more” than the exception itself). This is because the claim simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. For example, the additional elements of claim 1 utilize operations the courts have held to be well-understood, routine, and conventional (see: MPEP 2106.05(d)(II)), including: • receiving or transmitting data over a network (e.g. receive a user request. . . , transmit the first data to the user) • storing and retrieving information in memory (e.g. store, in a database, data . . . , determine a level of authorization . . . ) Furthermore, the operation of “receiving information . . . . and determining a first goal. . . ” represents little more than the mere automation of manual processes, which is insufficient to result in an inventive concept (“significantly more”) (see: Bancorp Services., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), and, Credit Acceptance Corp. v. Westlake Services). Even considered as an ordered combination (as a whole), the additional elements of claim 1 do not add anything further than when they are considered individually. Further, under step 2B of the Alice/Mayo framework, it must finally be considered whether the claim includes any additional element or combination of elements that provide an inventive concept (i.e., whether the additional element or elements are sufficient to amount to significantly more than the abstract idea). Communicating information (i.e., receiving or transmitting data over a network) has been repeatedly considered well-understood, routine, and conventional activity by the Courts (See MPEP 2106.05(d)). Applicant's own Specification indicates Appeal 2021-002130 Application 14/854,867 14 the conventionality of the claimed devices (see at least para. 18, “the term “processor” means at least one hardware circuit (e.g., an integrated circuit) configured to carry out instructions contained in program code. Examples of a processor include, but are not limited to, a central processing unit (CPU), an array processor, a vector processor, a digital signal processor (DSP), a field-programmable gate array (FPGA), a programmable logic array (PLA), an application specific integrated circuit (ASIC), programmable logic circuitry, and a controller”. Accordingly, the Examiner asserts that the additional elements, considered both individually, and as an ordered combination, do not provide an inventive concept, and the claim is ineligible for patent. Final Act. 6–7. We agree. Pages 20–23 of the Appeal Brief reproduce verbatim nearly all the steps of claim 1 and then Appellant argues that “each of those limitations are [not] well-understood, routine and conventional.” Appeal Br. 23. In effect, Appellant is arguing that the very scheme (“receiving,” “storing,” “monitoring,” “performing,” “determining, “ “generating,” ”presenting,” “configuring,” ”receiving,” and “communicating”) for evaluating a person’s goals and providing feedback, that we have characterized as being an abstract idea, is unconventional and counterintuitive. But the §101 inquiry does not turn on the novelty and counter intuitiveness of an abstract idea. Cf. Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1315 (Fed. Cir. 2016). Indeed, “[t]he ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.” Diamond v. Diehr, 450 U.S. 175, 188–89 (1981) (emphasis added); see also Mayo, 132 S. Ct. at 1303–04 (rejecting “the Government’s invitation to substitute §§ 102, 103, and 112 inquiries for the better established inquiry under § 101”).[] Here, the jury’s Appeal 2021-002130 Application 14/854,867 15 general finding that Symantec did not prove by clear and convincing evidence that three particular prior art references do not disclose all the limitations of or render obvious the asserted claims does not resolve the question of whether the claims embody an inventive concept at the second step of Mayo/Alice. On pages 23–24 Appellant points to the use of NLP and semantic analysis as “recit[ing] significantly more than automation of a manual process.” Id. at 23. We disagree. The Specification (see para. 29) discloses NLP and semantic analysis as conventional. The claim asks nothing more of NLP and semantic analysis than what they are well known for. Simply using an NLP system to do what was previously done manually does not add significantly more to the abstract idea. See Bancorp Servs., 687 F.3d at 1279 (“the computer simply performs more efficiently what could otherwise be accomplished manually”). Appellant also argues that the “configuring” step is “not performed manually. In this regard, electronic messages include headers, footers, etc. that must be formatted for the manner in which they will be communicated, and these typically are not user configurable.” Appeal Br. 24. However, the “configuring” step requires only a generic “processor” to practice it. Also, the “configuring” step is not limited to formatting the message. It is much broader than that. Finally, Appellant cites Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356 (Fed. Cir. 2018) and DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). Appeal Br. 24–27. We think Appellant means by these citations to argue that, like those decisions, the claimed method yields a technological improvement. We disagree for the reasons discussed. We addressed the matter of whether the claim presented Appeal 2021-002130 Application 14/854,867 16 any purported specific asserted technical improvements in our analysis above under step one of the Alice framework. This is consistent with the case law. See Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d 1343, 1347 (Fed. Cir. 2018) (“We have several times held claims to pass muster under Alice step one when sufficiently focused on such improvements.”). We have cited the Specification in our earlier discussion as evidence that the claimed “storage device,” “processor,” “NLP,” and “performance management system” as claimed are conventional. In doing so, we have followed “Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP Inc.[, 881 F.3d 1360 (Fed. Cir. 2018)],” USPTO Memorandum, Robert W. Bahr, Deputy Commissioner For Patent Examination Policy, April 19, 2018 (the “Berkheimer Memo”)). Here, the Specification indisputably shows the recited “storage device,” “processor,” ”NLP,” and “performance management system” individually and in the context of the evaluation/feedback scheme as claimed were conventional at the time of filing. Accordingly, there is sufficient factual support for the well-understood, routine, or conventional nature of the claimed “storage device,” “processor,” “NLP,” and “performance management system” individually or in the combination as claimed. No other persuasive arguments having been presented, we conclude that no error has been committed in the determination under Alice step two that claim 1 does not include an element or combination of elements circumscribing the patent-ineligible concept it is directed to so as to transform the concept into a patent-eligible application. Appeal 2021-002130 Application 14/854,867 17 We have considered all of the Appellant’s arguments, including those presented in the Reply Brief which are substantially the same, and find them unpersuasive. Accordingly, because we are not persuaded as to error in the Examiner’s determinations that representative claim 1, and claims 2–4, 6– 11, 13–18, and 20 which r fall with claim 1, are directed to an abstract idea and do not present an “inventive concept,” we sustain the Examiner’s conclusion that they are directed to patent-ineligible subject matter for being judicially-excepted from 35 U.S.C. § 101. Cf. LendingTree, LLC v. Zillow, Inc., 656 F. App’x 991, 997 (Fed. Cir. 2016) (“We have considered all of LendingTree’s remaining arguments and have found them unpersuasive. Accordingly, because the asserted claims of the patents in suit are directed to an abstract idea and do not present an ‘inventive concept,’ we hold that they are directed to ineligible subject matter under 35 U.S.C. § 101.”). CONCLUSION The decision of the Examiner to reject claims 1–4, 6–11, 13–18, and 20 is affirmed. More specifically: The rejection of claims 1–4, 6–11, 13–18, and 20 under 35 U.S.C. § 101 as being directed to judicially-excepted subject matter is affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6–11, 13–18, 20 101 Eligibility 1–4, 6–11, 13–18, 20 Appeal 2021-002130 Application 14/854,867 18 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation