James Barry et al.

Patent Trials and Appeals Board

May 7, 2021

2020005289 (P.T.A.B. May. 7, 2021)

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.
11/780,811 07/20/2007 James Barry 40125/02502 4728
30636 7590 05/07/2021
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
NELSON, FREDA ANN
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
05/07/2021 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):
mmarcin@fkmiplaw.com
okaplun@fkmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES BARRY, JAMES COLE, JEFFREY DEVANEY,
THOMAS O’HALLORAN, and MATT MARCELLA
____________

Appeal 2020-005289
Application 11/780,8111
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1–11 and 13–19. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Passur
Aerospace, Inc. (f/k/a Megadata Corporation). (Appeal Br. 2.)
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CLAIMED SUBJECT MATTER
Appellants’ invention relates to a method and system for determining
fuel pricing for aircraft. (Spec. ¶ 3.)
Claims 1 and 11 are the independent claims on appeal. Claim 1 is
illustrative. It recites:
1. A non-transitory computer-readable storage medium
storing a set of instructions executable by a processor, the set of
instructions being operable to:
receive, from a radar in communication with the
processor, an aircraft identifier corresponding to an arriving
aircraft within range of the radar;
retrieve information on the basis of the aircraft identifier,
the information comprising a comparison between a predicted
fuel requirement determined from at least one previous visit and
an actual fuel purchase from the at least one previous visit;
determine an attractiveness of an operator of the aircraft as
a potential customer, based on at least the retrieved information,
the attractiveness being decreased when the comparison
indicates at least a predetermined disparity between the predicted
fuel requirement and the actual fuel purchase;
determine a suggested fuel price based on at least the
attractiveness of the operator as a potential customer, wherein a
suggested fuel price for an operator having a high attractiveness
is lower than a suggested fuel price for an operator having a low
attractiveness; and
alerting the operator to a fuel price at a next destination
airport for the aircraft.

REJECTION
Claims 1–11 and 13–19 are rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more.

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ANALYSIS
“Whoever 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, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. Section 101, however,
“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)).
Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(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, 573 U.S. at 217.
Under the two-step framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the
claims are determined to be directed to a patent-ineligible concept, e.g., an
abstract idea, then the second step of the framework is applied to determine
if “the elements of the claim . . . contain[] an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Id. at 221 (internal quotation marks omitted) (citing Mayo, 566 U.S. at 72–
73, 79).
With regard to step one of the Alice framework, we apply a “directed
to” two-prong test to: 1) evaluate whether the claim recites a judicial
exception, and 2) if the claim recites a judicial exception, evaluate whether
the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner
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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,” i.e., whether the claim integrates the judicial exception into a
practical application. See USPTO, 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019
Guidance”).
Here, the Examiner determines that claim 1 recites certain methods of
organizing human activity, including commercial or legal interactions.
(Answer 4.) In particular, the Examiner finds that “Appellant’s specification
describes that the invention is used to maximize fuel sale[s], [and] encourage
customer[s] to bring repeat business.” (Id. (citing Spec. ¶¶ 7, 10, 26).)
Appellant does not present an argument regarding prong one of step
one under the Alice framework. Nonetheless, we undertake this analysis
before considering Appellant’s arguments under prong two.
Under step one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
The “directed to” inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural phenomenon
. . . . Rather, the “directed to” inquiry applies a stage-one filter
to claims, considered in light of the specification, based on
whether “their character as a whole is directed to excluded
subject matter.” Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015).

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Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In
other words, the first step of the Alice framework “asks whether the focus of
the claims is on the specific asserted improvement in [the relevant
technology] or, instead, on a process that qualifies as an ‘abstract idea’ for
which computers are invoked merely as a tool.” Id. at 1335–36; see also
2019 Guidance at 54–55.
The Specification provides evidence as to what the claimed invention
is directed. In this case, the Specification discloses that the invention relates
to a method and system for determining fuel pricing. (Spec., Title.) Claim 1
provides further evidence. Claim 1 recites “a set of instructions executable
by a processor . . . to receive, from a radar . . . , an aircraft identifier,”
“retrieve information on the basis of the aircraft identifier,” “determine an
attractiveness of an operator of the aircraft as a potential customer,”
“determine a suggested fuel price,” “alert[] the operator to a fuel price at a
next destination.”
The intrinsic evidence shows that claim 1 recites receiving data,
retrieving data, analyzing data (determining an attractiveness of a customer
and a fuel price), and transmitting data (alerting the operator).
Receiving data, retrieving data, analyzing data, and transmitting data
have been determined to be directed to an abstract idea. See, e.g., Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d
1343, 1347 (Fed. Cir. 2014) (treating as an abstract idea “1) collecting data,
2) recognizing certain data within the collected data set, and 3) storing that
recognized data”), FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089,
1093–94 (Fed. Cir. 2016) (determining “that the ‘realm of abstract ideas’
includes ‘collecting information, including when limited to particular
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content’” as well as analyzing and presenting information), OIP Techs., Inc.
v. Amazon.com, Inc., 788 F.3d 1359, 1361–62 (Fed. Cir. 2015) (testing
prices, gathering statistics about customer reactions, using that data to
estimate outcomes, and automatically offering a new price determined to be
directed to an abstract idea), Bridge & Post, Inc. v. Verizon Commc’ns, Inc.,
778 F. App’x 882, 886–87 (Fed. Cir. 2019) (obtaining user information,
analyzing the user information, and presenting customized information to
the user based on the analyzed information determined to be directed to an
abstract idea).
Claim 1 does not recite how the radar communicates with the
processor, how or from where information is retrieved on the basis of the
aircraft identifier, how the attractiveness of the operator is determined, how
the suggested fuel price is determined, or how the operator is alerted to a
fuel price. Moreover, the recitations in claim 1 of identifying an aircraft and
its operator, determining the attractiveness of the operator as a customer, and
determining a suggest price based on at least the attractiveness of the
operator, clearly recite commercial interactions including “advertising,
marketing or sales activities or behaviors.” (See 2019 Guidance at 52; see
also Answer 4.) In view of the foregoing, and with regard to prong one, we
are not persuaded that the Examiner erred in determining that claim 1 recites
elements of certain methods of organizing human activity. (See 2019
Guidance at 52.)
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Appellant argues that “claim 1 is directed to ‘significantly more’ and
therefore is not directed to an abstract idea but an improvement to a
computer implemented system.” (Appeal Br. 3–4.) We disagree.2
As an initial matter, we note that the limitations of claim 1 do not
recite technological implementation details for any of the elements. As
discussed above, claim 1 does not, e.g., recite how the radar communicates
with the processor, how or from where information is retrieved on the basis
of the aircraft identifier, how the attractiveness of the operator is determined,
how the suggested fuel price is determined, or how the operator is alerted to
a fuel price. “Indeed, the claim language here provides only a result-
oriented solution, with insufficient detail for how a computer accomplishes
it. Our law demands more.” Intellectual Ventures I LLC v. Capital One Fin.
Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017).
Claim 1 is “focused on providing information . . . , not on improving
computers or technology.” Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d
1378, 1384 (Fed. Cir. 2019). “Like Electric Power, the purported advance
‘is a process of gathering and analyzing information of a specified content,
then displaying the results, and not any particular assertedly inventive
technology for performing those functions.’ We thus conclude that the
claim[ is] directed to an abstract idea.” Id. at 1385 (citation omitted).
In cases involving software innovations, such as we have here, the
inquiry as to whether the claims are directed to an abstract idea “often turns

2 We acknowledge that some of these considerations could instead be
evaluated under step two of the Alice framework. However, for purposes of
maintaining consistent treatment within the USPTO, we evaluate them under
step one. See 2019 Guidance.
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on whether the claims focus on ‘the specific asserted improvement in
computer capabilities . . . or, instead, on a process that qualifies as an
“abstract idea” for which computers are invoked merely as a tool.’” Finjan,
Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018) (quoting
Enfish, 822 F.3d at 1335–36). Here, the recited processor and radar are
invoked merely as tools. The asserted improvement is to the data analyzed
and sent, i.e., the fuel price determined and the fuel price sent to the
operator. In short, “the focus of the claims is not a physical-realm
improvement but an improvement in wholly abstract ideas––the selection
and mathematical analysis of information, followed by reporting or display
of the results.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed.
Cir. 2018).
In the Reply Brief, Appellant argues for the first time in this appeal
that “[t]he recitation of ‘receive, from a radar in communication with the
processor, an aircraft identifier corresponding to an arriving aircraft within
range of the radar’ means that claim 1 is required to take very specific input
(‘aircraft identifier’) from a particular source (‘radar in communication with
the processor’)” and that “[t]he recitation of ‘alerting the operator to a fuel
price at a next destination airport for the aircraft’ incorporates a further
practical application into the claimed subject matter.” (Reply Br. 4.)
Appellants’ new arguments in the Reply Brief were not responsive to
a new argument raised in the Examiner’s Answer. Under 37 CFR
§ 41.41(b)(2), we need not consider new arguments absent a showing of
good cause. No showing was made. Nonetheless, we note that “[a] claim
does not cease to be abstract for section 101 purposes simply because the
claim confines the abstract idea to a particular technological environment in
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order to effectuate a real-world benefit.” In re Mohapatra, 842 F. App’x
635, 638 (Fed. Cir. 2021). Moreover, “[a]s many cases make clear, even if a
process of collecting and analyzing information is ‘limited to particular
content’ or a particular ‘source,’ that limitation does not make the collection
and analysis other than abstract.” SAP Am., Inc., 898 F.3d at 1168. The
“character of [the] information simply invokes a separate category of
abstract ideas.” Id. In short, we do not find Appellant’s new arguments
persuasive.
Additionally, we do not find any indication in the Specification that
the claimed invention effects a transformation or reduction of a particular
article to a different state or thing. Nor do we find anything of record that
attributes an improvement in computer technology or functionality to the
claimed invention or that otherwise indicates that the claimed invention
“appl[ies], rel[ies] on, or use[s] the judicial exception in a manner that
imposes a meaningful limit on the judicial exception, such that the claim is
more than a drafting effort designed to monopolize the judicial exception.”
(See 2019 Guidance at 54–55.)
Therefore, under prong one of the two prong test in the 2019
Guidance, claim 1 recites at least the abstract idea of certain methods of
organizing human activity; and, under prong two, additional elements in
claim 1 do not “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.”
(See 2019 Guidance at 54.) As such, under step one of the Alice framework,
claim 1 is directed to an abstract idea, and we move to step two.
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Step two of the Alice framework has been described “as a search for
an ‘ “inventive concept” ’––i.e., an element or combination of elements that
is ‘sufficient to ensure that the patent in practice amounts to significantly
more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S.
at 217–18 (brackets in original) (quoting Mayo, 566 U.S. at 72–73). Under
step two, we examine, inter alia, whether an additional element or
combination of elements “[a]dds a specific limitation or combination of
limitations that are not well-understood, routine, conventional activity in the
field, which is indicative that an inventive concept may be present.” (2019
Guidance at 56.)
Taking the claim elements separately, the functions performed in
claim 1 by the generic processor to receive data (from a radar), retrieve data,
analyze data, and transmit data are purely conventional. Receiving data,
retrieving/gathering data, analyzing data, and outputting results are well-
understood, routine, and conventional functions previously known to the
industry. See Elec. Power Grp., 830 F.3d at 1356 (The claims “do not
include any requirement for performing the claimed functions of gathering,
analyzing, and displaying in real time by use of anything but entirely
conventional, generic technology. The claims therefore do not state an
arguably inventive concept . . . .”); see also Versata Dev. Group, Inc. v. SAP
America, Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (determining claims
requiring “arranging, storing, retrieving, sorting, eliminating, determining”
to “involve the normal, basic functions of a computer” and to be
“conventional, routine, and well-known”), In re Katz Interactive Call
Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a
possible narrower construction of the terms ‘processing,’ ‘receiving,’ and
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‘storing,’ . . . those functions can be achieved by any general purpose
computer without special programming.”).
Considered as an ordered combination, the generic processor (and
radar) recited in claim 1 add nothing that is not already present when the
limitations are considered separately. For example, claim 1 does not purport
to improve the functioning of the processor or the radar themselves. Nor
does it effect an improvement in any other technology or technical field.
Instead, claim 1 amounts to nothing significantly more than an instruction to
apply the abstract ideas using a generic processor performing routine
processor functions. That is not enough to transform an abstract idea into a
patent-eligible invention. See Alice, 573 U.S. at 225–26. We are not
persuaded that the Examiner erred in rejecting claim 1. Claims 2–11 and
13–19 are not separately argued and fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).

CONCLUSION
The Examiner’s rejection of claims 1–11 and 13–19 under 35 U.S.C.
§ 101 is affirmed.
Specifically:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11, 13–19 101 Eligibility 1–11,
13–19

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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