NEWHOUSE GROUP, INC.

Patent Trials and Appeals Board

Apr 20, 2021

2020006786 (P.T.A.B. Apr. 20, 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.
15/285,975 10/05/2016 GEMEZ MARSHALL 381401-1010 5256
24504 7590 04/20/2021
THOMAS | HORSTEMEYER, LLP
3200 WINDY HILL ROAD, SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
NGUYEN, NGA B
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
04/20/2021 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):
docketing@thomashorstemeyer.com
ozzie.liggins@tkhr.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GEMEZ MARSHALL and BRANDEIS MARSHALL

Appeal 2020 -006786
Application 15/285,975
Technology Center 3600
____________

Before DONALD E. ADAMS, RICHARD M. LEBOVITZ, and
RYAN H. FLAX, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
The Examiner rejected the claims under 35 U.S.C. § 103 as obvious
and 35 U.S.C. § 101 as lacking patent-eligibility. Pursuant to 35 U.S.C.
§ 134(a), Appellant1 appeals from the Examiner’s decision to reject the
claims. 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. Appellant identifies the real party in interest as Newhouse
Group, Inc. Appeal Br. 2.
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STATEMENT OF THE CASE
The Examiner rejected claims 1–5 and 14–28 in Final Office Action
as follows:
1. Claims 1, 2, 14, 15, 17–22, and 24–28 under 35 U.S.C. § 103(a) as
obvious in view of Milman et al. (US 2007/0100693 A1, published May 3,
2007) (“Milman”) and Zimmerman et al. (US 2014/0026094 A1, published
Jan. 23, 2014) (“Zimmerman”). Final Act. 7.
2. Claim 3 under 35 U.S.C. § 103(a) as obvious in view of Milman,
Zimmerman, and Wilson et al. (US 2015/0302488 A1, published Oct. 22,
2015) (“Wilson”). Final Act. 19.
3. Claim 4 under 35 U.S.C. § 103(a) as obvious in view of Milman,
Zimmerman, and Schmidt-Lackner et al. (US 2014/0232522 A1, published
Aug. 21, 2014) (“Schmidt-Lackner”). Final Act. 20.
4. Claim 5 under 35 U.S.C. § 103(a) as obvious in view of Milman,
Zimmerman, and Goel et al. (US 2017/0004548 A1, published Jan. 5, 2017)
(“Goel”). Final Act. 22.
5. Claims 16 and 23 under 35 U.S.C. § 103(a) as obvious in view of
Milman, Zimmerman, and Mozayeny et al. (US 2002/0046077 A1,
published Apr. 18, 2002) (“Mozayeny”). Final Act. 23.
6. Claims 1–5 and 14–28 under 35 U.S.C. § 101 “because the claim
invention is directed to a judicial exception (i.e., law of nature, natural
phenomenon, or abstract idea) without significantly more.” Final Act. 2.
There are three independent claims on appeal, claims 1, 14, and 21.
Claim 1 is directed a computer-readable medium; claim 14 to a method; and
claim 21 to a system. Each of the three claims involve executing the same
method. We therefore have selected independent claim 1 as representative.
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The findings and conclusions with respect to this claim apply to claims 14
and 21. Claim 1 is annotated with bracketed numbering and lettering for
reference to the limitations throughout this Decision, and the formatting has
been changed to emphasize certain claim limitations.
1. A non-transitory computer-readable medium
embodying a program executable in at least one computing
device, wherein when executed the program causes the at least
one computing device to at least:
[1] determine that a first user corresponding to a first
potential buyer has expressed an interest in a listing for a
property by [1a] interacting with an electronic user interface
corresponding to an electronic listing for an interaction
threshold, [1b] performing an action via the electronic user
interface to add the electronic listing to a watchlist, [1c] sharing
the electronic listing with one or more other users via an
electronic network, or [1d] automatically determining via a
location-finding subsystem of a mobile device of the first user
that the first user has physically visited the property; and
[2] in response to determining that the first user has
expressed the interest in the listing for the property:
[2a] automatically determine an agent associated
with the first user;
[2b] automatically generate a first notification to
an offeror of the property or to a listing agent of the property;
and
[2c] automatically generate a second notification
[2ci] to a second user, corresponding to a second potential
buyer, that also has expressed interest in the property or [2cii]
to an agent associated with the second user, the second user
being unassociated with the first user,
the first notification and the second notification
including an identification of the agent associated with the first
user and excluding an identification of the first user.

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OBVIOUSNESS REJECTIONS
We have addressed the obviousness rejections under one heading
because Appellant did not argue the different rejections separately, but rather
addressed them by claim.
Claim 1 is directed to a non-transitory computer-readable medium
embodying a program executable in at least one computing device. A
computing device, as explained in the Specification, comprises a processor
and memory. Spec. ¶ 100. The program causes the computing device to
execute the steps we have numbered as [1] and [2]. In the first step, it is
determined that a first potential buyer has an interest in a property listing.
This determination is made based on the occurrence of at least one of four
alternatives [1a]–[1d] recited in the claim. In the second step of the claim, in
response to determining that the first potential buyer (the “first user”), three
automatic steps are accomplished: [2a] an agent is automatically determined
for the first potential buyer, [2b] an automatic notification is sent to the
property offeror or the listing agent of the property, and [2c] a notification is
sent to a second potential buyer who has also expressed the interest in the
property.
The Examiner found that Milman describes the steps of claim 1,
including limitations [1a]–[1c], but not limitation [1d] of “automatically
determining via a location-finding subsystem of a mobile device of the first
user that the first user has physically visited the property.” Final Act. 7–10.
For this limitation, the Examiner cited Zimmerman. Final Act. 10. The
Examiner found that it would have been obvious to one of ordinary skill in
the art to incorporate Zimmerman’s feature of determining location into
Milman “for the purpose of providing more effectiveness in monitoring
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potential buyer’s activities.” Final Act. 11. The Examiner made similar
findings for claim 14 and 21, relying on Zimmerman for teaching the
physical location aspects of these claims. Final Act. 12–14, 17.
Appellant argues that Milman does not describe “[2c] automatically
generate a second notification [2ci] to a second user, corresponding to a
second potential buyer, that also has expressed interest in the property or
[2cii] to an agent associated with the second user” as recited in claim 1.
Appeal Br. 13. Appellant makes this same argument for claims 14 and 21.
Appeal Br. 15, 17–18.
The disputed limitation involves automatically sending a notification
(the “second notification”) to a second potential buyer, or the buyer’s agent,
who has expressed an interest in a property [2c] “in response to determining
that the first user has expressed the interest in the listing for the property.” In
other words, after a first user (the first potential buyer) has expressed an
interest in specific property, automatic notifications are sent to a second user
(the second potential buyer), who has also expressed an interest in the same
property, or their agent.
To meet this limitation of the claim, the Examiner cited the
description in Milman of an agent sending notifications of an open house to
agents of users expressing an interest in a property. Final Act. 10; see
Milman ¶ 52.
Appellant contends this disclosure is insufficient to meet the claim
limitation because Milman’s notices are not sent to the agent [2] in response
to the condition of a first potential buyer expressing an interest in the
property. Appeal Br. 14. In the Reply Brief, for claim 1 only, Appellant
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argues that the notifications sent to agents for the open house are not
automatic. Reply Br. 12.
We are not persuaded by Appellant’s argument that the Examiner
erred. Milman describes an agent making the determination to promote a
property:
As shown generally in FIG. 2A, the agent may first select a
promotion to create from the list (stage 210). Once the agent
has selected the desired promotion, the agent 103 may identify
the property to be promoted and define the various properties
associated with the promotion (stage 212).
Milman ¶ 48.
Milman identifies one of the reasons that an agent may decide to
promote a property:
A Buyer Featured Listing (BFL) promotion 244 can be used to
promote a property that the agent or the seller feels deserves
additional promotion, perhaps because it is no longer receiving
buyer/agent attention or because of a change in circumstance,
such as price or feature. In both of these promotions, an agent
103 is able to send information on the property to buyers and
agents of these buyers who have search criteria in their profiles
that match the features associated with the featured listing.
Milman ¶ 51.
In making this promotion, the agent may “choose to promote an Agent
Open House (AOH) 252, an open house that is only promoted to and
attended by agents.” Milman ¶ 52. Milman explains:
Through an [AOH] 252, an agent can promote an OH [(open
house)] to other agents who represent or might represent buyers
who might purchase the property. In a preferred embodiment,
the notices of a AOH are sent to agents having one of more
buyers with key elements of the search criteria matching the
elements of the BOH [(buyer open house)] property.
Milman ¶ 52.
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In sum, when an agent determines that a specific property is no longer
getting attention (Milman ¶ 51), the agent can decide to promote the house
to other buyers and their agents who have shown an interest in the property
(Milman ¶¶ 51, 52). This description meets the claim limitation [2] (“in
response to determining that the first user has expressed the interest in the
listing for the property”) and [2c] (“automatically generate a second
notification [2ci] to a second user, corresponding to a second potential
buyer, that also has expressed interest in the property or [2cii] to an agent
associated with the second user”) because first potential buyers initially
expressed an interest in the property, but the interest waned, so in response
to these first users/potential buyers showing interest in the property, the
agent sends promotions to second potential buyers of the property. See
Milman ¶¶ 51, 52. To be clear, the first potential buyers of step [1] of claim
1 are those who initially gave the property attention (“promote a property
that the agent or the seller feels deserves additional promotion, perhaps
because it is no longer receiving buyer/agent attention”) and the second
potential buyers are the buyers who receive the promotion notice of an open
house (“an agent 103 is able to send information on the property to buyers
and agents of these buyers who have search criteria in their profiles that
match the features associated with the featured listing”). Milman ¶ 51; see
also Milman ¶ 52. The second notices sent to the second potential buyers (or
their agents) are clearly sent “in response to determining that the first user
has expressed the interest in the listing for the property,” because the agent
determines that the interest (“attention”) of the first potential buyers is not
sufficient, prompting the agent to send the promotion to second potential
buyers of the property.
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With respect to the argument made for claim 1 only that the
notification is not automatic, once the agent decides to send the promotion, it
is paid for the by the agent and automatically generated by the system by the
RE Manager (Milman ¶¶ 31, 48) (“After the payment information has been
entered, the promotion may be displayed to one or more buyers and/or
agents, as determined by RE Manager 104.”).
Thus, the foregoing reasons, the obviousness rejection of claim 1 is
affirmed. Claims 2, 14, 17–19, 21, and 24–27 fall with claim 1 because they
either have the same limitations or are dependent claims that were not
separately argued. 37 C.F.R. 41.37(c)(1)(iv) (2019).

Claims 15, 22
Claims 15 and 22, which are separately argued by Appellant, are
copied below:
15. The method of claim 14, wherein the first notification
includes a ranking associated with the first user indicating a
level of interest of the first user as compared to the second user.
22. The method of claim 14, wherein the first notification
includes a ranking associated with the first user indicating a
level of interest of the first user as compared to the second user.
To meet this limitation, the Examiner cites Figure 9A of Milman.
Final Act. 14. Figure 9A is reproduced in part below.

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The figure copied above shows an agent report listing how many
times two different buyers logged into the system and how many properties
were viewed by each.
Appellant argues that the report does not “indicate that either the
number of logins or the number of properties viewed corresponds to a ‘level
of interest,’ nor is a ranking assigned.” Appeal Br. 20.
This argument does not persuade us that the Examiner erred. The
claims require a ranking indicating a level of interest. The claim does
indicate what the “level of interest” must be with respect to. Therefore, the
report showing the number of times a user logged into the system can
constitute a level of interest in the real estate system, itself, and the number
of viewed properties, can indicate a level of interest in viewing properties.
While the users are not assigned numbers based on their level of interest in
the system or property, the users are ranked because the numbers (471 and
14 for logins; 1 and 2 for properties) show the relative position or order of
the two users with respect to each other. Consequently, we affirm the
rejection of claims 15 and 22.

Claim 20
Claim 20, which is separately argued by Appellant, is copied below:
20. The method of claim 14, further comprising:
identifying a quantity of previous visits of the first user to
the property from a data store; and
wherein the first notification indicates the quantity of
previous visits.

The Examiner additionally cites paragraph 65 and Figure 3K of
Milman as disclosing the limitations in claim 20. Appellant argues that
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paragraph 65 does not describe the visits of a first user to the property as
required by the claim. Appeal Br. 21.
We are not persuaded by Appellant’s argument that the Examiner
erred.
The system described in Milman can generate reports. Milman ¶¶ 6,
25, 30, 37. Paragraph 65 of Milman discloses that a report can “include the
number of buyers and agents that viewed property details of the property.” It
is evident from this paragraph that the system is therefore identifying visits
of each specific user to the property. This is made clear in the paragraph that
precedes paragraph 65, where Milman states “RE Manager 102 keeps track
of each time a buyer views any property as well as each time an agent views
a property, by recording responses and storing the responses for future
analysis and use.” Milman ¶ 64. Milman discloses that the information “may
be stored in accounts database 108 under the respective agent account.” Id.
Thus, it is clear that the system described by Milman tracks individual
buyers of the system as part of monitoring the number of buyers viewing a
specific property, and that an agent can view the individual buyer visits
through the information stored in the accounts database. While Milman does
explicitly state in these paragraphs that a report or notification contains this
information pertaining to an individual buyer, agents have the ability to
select what information they want the system to provide in a report,
including a buyer’s profile.2 Such a report, when provided to the agent

2 Milman ¶ 37 (“The agent can activate any of these features to view specific
reports. For example, if the agent wants to review buyer information, he
selects buyer services from the menu bar. In a preferred embodiment, the
system then provides the agent with the option of viewing a variety of
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would serve as the claimed [2b] first notification. It would be obvious to
provide this information so the agent can gauge the buyer’s interest in the
property. We thus discern no error in the Examiner’s determination that
claim 20 is obvious based on the combination of Milman and Zimmerman.

Claim 28
Claim 28, which is separately argued by Appellant, is copied below
(with bracketed numbering added):
28. The system of claim 21, wherein when executed the
at least one application further causes the at least one
computing device to at least:
[1] receive a request for property information from the
first user;
[2] generate a user interface configured to render a
description of the property, wherein the description of the
property indicates whether at least one showing of the property
to a third user is scheduled and whether at least one active offer
for the property has been submitted by the third user; and
[3] send data encoding the user interface to the mobile
device via a network.
The Examiner finds that Zimmerman discloses the limitations of
claim 28 in paragraphs 35, 42, and 47 and in Figure 5. Final Act. 17–18.
Appellant argues that the cited publications do not describe the second
limitation in claim 28. Appeal Br. 21.
The user interface of FIG. 5 in Zimmerman simply shows a list
of addresses and does not include anything indicating “whether
at least one showing of the property to a third user is scheduled
and whether at least one active offer for the property has been
submitted by the third user,” as claimed.

reports, such as a buyer's report, or a viewed list, or a tagged List, or a buyer
profile.”).
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Appeal Br. 22.
Figure 5 of Zimmerman shows lists of addresses of properties that are
still available. Zimmerman ¶ 47. The agent has the option to check “to make
sure the seller is still interested in selling their home, has not yet sold their
home, and has not yet removed their home from the MLS.” Id. ¶ 48. The
Examiner, however, in response to Appellant’s argument, did not explain
how these disclosures suggest “a user interface configured to render a
description of the property, wherein the description of the property indicates
whether at least one showing of the property to a third user is scheduled and
whether at least one active offer for the property has been submitted by the
third user.” See Ans. 11. The Examiner just repeated what Zimmerman
discloses, without explaining how this disclosure describes property
showings of a third user and property offers by a third user, or reasonably
suggests it. An examiner bears the initial burden of presenting a prima facie
case of obviousness. In re Huai-Hung Kao, 639 F.3d 1057, 1066 (Fed. Cir.
2011). In this case, the burden was not met. We therefore are compelled to
reverse the rejection of claim 28.

Claim 5
Claim 5, which is separately argued by Appellant, is copied below:
5. The non-transitory computer-readable medium of
claim 1, wherein when executed the program further causes the
at least one computing device to at least:
determine a list of friends of the first user on a social
network;
determine a set of agents previously used by one or more
of the list of friends to purchase or rent property; and
send a recommendation of one or more of the set of
agents to the first user.
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Claim 5 comprises identifying a real estate agent based on
recommendations from a friend of a user of a social network. The Examiner
finds that Goel teaches using the social network to find real estate agents,
citing paragraph 38 of Goel as support for this finding.
Appellant argues that Goel does not “indicate that the ‘person within a
first degree connection’ has actually used the agent to ‘purchase or rent
property,’ as claimed.” Appeal Br. 24. Appellant states that “[i]t is common
knowledge that individuals may recommend, endorse, or give reviews of
others without having actually used the services of that person.” Id.
We are not persuaded by the argument that the Examiner erred in
rejecting the claim.
Goel discloses:
In still further example embodiments, the analysis
module 240 determines the service provider’s professional
expertise based on positive reviews, recommendations, or
endorsements made by other members in the professional
network. The number of reviews and who the reviews came
from (relative to the degree of network of the reviewer to the
member) affects the trust factor and thus affects the list ranking
of the query result. . . . A real estate agent that has been
recommended, endorsed, or given a positive review by a person
within a first degree connection (directly within the network)
would increase the member’s trust in that real estate agent than
compared to a person within a second degree connection
(connection of a connection).
Goel ¶ 38.
While it may be true that not every positive review is by a member of
the social network who actually used the agent, the disclosure in Goel
reproduced above is broad enough to include recommendations by members
who used the agent’s services. It would have been obvious to the skilled
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worker that at least some of the recommendations made by social network
members meet this criteria. Appellant’s conjecture that none of the
recommendations would reflect actual knowledge and use of the agent’s
services is not credible since the purpose of the analysis module in Goel, as
explained in paragraph 38, is to establish trust in the recommendation and
endorsement of the agent. Appellant has not provided any evidence or
reason to believe that none of the recommendations or endorsements in Goel
are based on actual knowledge of the agent as required in the claim. We
conclude that the Examiner did not err in rejecting claim 5 over the
combination of Milman, Zimmerman, and Goel.

Claims 16, 23
Claims 16 and 23 are separately argued by Appellant. Representative
claim 16 is copied below:
16. The method of claim 14, further comprising sending a
request for feedback about the property to the mobile device at
a predefined time relative to a completion of a visit of the first
user to the property.
According to claim 14, the mobile device of claim 16 is “associated
with the first user.”
The Examiner additionally cited Mozayeny for teaching providing
feedback about a property within a predefined time as recited in the claim.
Final Act. 24 (citing ¶ 70 of Mozayeny). The Examiner found it would have
been obvious to one of ordinary skill in the art before the effective filing
date of the claim to modify Milman to incorporate the features taught by
Mozayeny “by sending a request for feedback about the property, for the
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purpose of providing more effectiveness in monitoring potential buyer's
activities.” Final Act. 24.
Appellant contends that Examiner erred. Appellant states that
Mozayeny “fails to show that a request for feedback is sent to a mobile
device, much less a mobile device associated with a user who corresponds to
a potential buyer. Moreover, Mozayeny does not show or suggest” sending
feedback at a predefined time. Appeal Br. 25–26.
This argument does not persuade us that the Examiner erred in
rejecting claims 16 and 23.
Mozayeny, as found by the Examiner, has the following disclosure:
After a property has been shown by a showing agent 18,
the appointment server 100 may automatically request feedback
from the showing agent 18, as indicated by numeral 320 in FIG.
3. To automatically request this feedback, the appointment
server 100 may simply request the feedback the day of the
showing or the day after a showing was scheduled. The
feedback may be requested by IVR, web page forms, or by e-
mail. After the feedback has been received by the appointment
server 100 from the showing agent 18, the feedback may be
automatically communicated by e-mail or otherwise to the
listing agent 12 (numeral 322 of FIG. 3). In another
embodiment, the feedback request may be directed to the
showing agent 18 but then sent via e-mail directly to the listing
agent 12. The listing agent 12 may then communicate feedback
and other information to the seller 10 of the property via
traditional methods to ensure that a personal and professional
relationship is maintained. FIG. 3 also depicts a thank you
message 321 that may be sent from the listing agent 12 to the
showing agent 18 after feedback has been received by the
listing agent 12.
Mozayeny ¶ 70.
Although Mozayeny teaches the feedback is requested from the agent,
Mozayeny states that feedback requested may also solicit “the potential
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buyer’s 5 likes 812 and dislikes 814.” Mozayeny ¶ 71. There is no limitation
in paragraph 70 that the feedback request is necessarily directed to the
agent’s device (“the feedback request may be directed to the showing agent
18”). Id. ¶ 70 (emphasis added). Thus, when soliciting feedback from the
buyer, it would be obvious to send it to the buyer’s mobile device to make
the process more efficient. There is no evidence that the mobile device to
which the request for feedback is sent is critical to the process described in
Mozayeny, and when the feedback is from the buyer, it would satisfy the
purpose of Mozayeny to send the request directly to the buyer.
Setting the time for a response for feedback at “the day of the showing
or the day after a showing was scheduled” (Mozayeny ¶ 70) is a “predefined
time” as required by the claim because setting an appointment to occur with
a specific day or days is a predefined amount of time, namely the
appointment server defines the response time as a day or two.
Mozayeny does not limit the time for feedback to the showing day or
day after. Rather, this is an example. The disclosure from Mozayeny
therefore reasonably suggests that any predefined time to provide feedback
can be used without changing the goal of Mozayeny to schedule a time at
which the feedback must be completed.
Consequently, we are unpersuaded that the Examiner erred in
rejecting claims 16 and 23 are obvious in view of Milman, Zimmerman, and
Mozayeny.
PATENT ELIGIBILITY
Principles of Law
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
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However, not every discovery is eligible for patent protection. Diamond v.
Diehr, 450 U.S. 175, 185 (1981). “Excluded from such patent protection are
laws of nature, natural phenomena, and abstract ideas.” Id. The Supreme
Court articulated a two-step analysis to determine whether a claim falls
within an excluded category of invention. Alice Corp. v. CLS Bank Int’l, 573
U.S. 208 (2014); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 75–77 (2012).
In the first step, it is determined “whether the claims at issue are
directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If
it is determined that the claims are directed to an ineligible concept, then the
second step of the two-part analysis is applied in which it is asked “[w]hat
else is there in the claims before us?” Id. (alteration in original) (citation and
quotation marks omitted). The Court explained that this step involves
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 (alteration in original) (citing from Mayo, 566
U.S. at 75–77).
Alice, relying on the analysis in Mayo of a claim directed to a law of
nature, stated that in the second part of the analysis, “the elements of each
claim both individually and ‘as an ordered combination’” must be
considered “to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217
(citation omitted).
The PTO published revised guidance on the application of 35 U.S.C.
§ 101, USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
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Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Eligibility Guidance”) (throughout the decision, we cite to the Federal
Register where the Eligibility Guidance was published). This guidance
provides additional direction on how to implement the two-part analysis of
Mayo and Alice.
Step 2A, Prong One, of the Eligibility Guidance looks at the specific
limitations in the claim to determine whether the claim recites a judicial
exception to patent eligibility. In Step 2A, Prong Two, the claims are
examined to identify whether there are additional elements in the claims that
integrate the exception in a practical application, namely, is there a
“meaningful limit on the judicial exception, such that the claim is more than
a drafting effort designed to monopolize the judicial exception.” Eligibility
Guidance, 84 Fed. Reg. at 54 (Step 2A, Prong Two).
If the claim recites a judicial exception that is not integrated into a
practical application, then as in the Mayo/Alice framework, Step 2B of the
Eligibility Guidance instructs us to determine whether there is a claimed
“inventive concept” to ensure that the claims define an invention that is
significantly more than the ineligible concept itself. Eligibility Guidance, 84
Fed. Reg. at 56.
With these guiding principles in mind, we proceed to determine
whether the claimed subject matter in this appeal is eligible for patent
protection under 35 U.S.C. § 101.
Discussion
Claim 1 is directed to a non-transitory computer-readable medium
embodying a program executable in at least one computing device, which is
an article of manufacture, one of the broad statutory categories of patent-
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eligible subject matter listed in 35 U.S.C. § 101. The instructions encode a
process, which is another category of statutory inventions. Therefore,
following the first step of the Mayo/Alice analysis, we find that the claim is
directed to a statutory class of invention. We thus proceed to Step 2A, Prong
One, of the 2019 Eligibility Guidance.

Step 2A, Prong One
In Step 2A, Prong One, of the Eligibility Guidance, the specific
limitations in the claim are examined to determine whether the claim recites
a judicial exception to patent eligibility, namely, whether the claim recites an
abstract idea, law of nature, or natural phenomenon. The Eligibility
Guidance directs each limitation in the claim to be examined to determine
whether it recites an abstract idea. Eligibility Guidance, 84 Fed. Reg. at 54.
The Examiner found that the claimed method carried out by the
system is a method of organizing human activity, one of the categories of
abstract ideas listed in the Eligibility Guidance. Final Act. 3. Appellant
disputes this finding. Appellant contends that the claims “cannot be properly
characterized within” the category of methods of organizing human activity
listed in the Eligibility Guidance. Appeal Br. 7. Appellant also states that the
recited limitations in the claim “involve purely human-device interaction,
rather than interaction among people.” Id. at 8.
Claim 1 comprises the step of determining whether a first potential
buyer has expressed an interest in a property (step [1]). In response to
determining this expressed interest, the agent of the potential buyer is
determined automatically (step [2a]) a notification is sent automatically to
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the offeror of the property of the listing agent (step [2b]), and a notification
is sent to a second potential buyer (step [2c]).
The Specification explains that the “present disclosure relates to a
real-time, property-associated communication system used to facilitate real
estate transactions.” Spec. ¶ 8. The transactions are between buyers, sellers,
and real estate agents. See, e.g., Spec. ¶¶ 8–10. The communication system
can be between networked processors that facilitate communication. See,
e.g., Spec. ¶¶ 14, 36, 37, 105. The purpose of the transactions is to sell real
estate. Therefore, the claimed method can also be characterized as
“commercial . . . interactions,” which is an example of methods of
organizing human activity listed in the Eligibility Guidance (84 Fed. Reg.
52), because commerce is the exchange of goods and service, and real estate
transactions involve both since property is exchanged between parties and a
service is performed by an agent to facilitate the sale of the property. The
Eligibility Guidance also lists “sales activities or behaviors” as methods of
organizing human activity and therefore facilitating the sale of real estate
falls into this category. Appellant’s argument that the claim does not fall into
a method organizing human activity is therefore unpersuasive.
With respect to Appellant’s argument that the interactions are human-
device and not human-human, we note initially, there is no indication from
either the Eligibility Guidance or court cases that an actual human actor
must participate in the claim for it be classified as a method of organizing
human activity. Rather, a claim recites a method of organizing human
activity, for example, when the claim is performed for the purpose of selling
or marketing to a human. In Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709
(Fed. Cir. 2014), the court found a method of advertising to be an abstract
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idea even though it was performed on the internet using steps that did not
involve a human actor. Moreover, while the claims use devices to
communicate, the communication is between humans. For example, when a
human has shown interest in a property (step [2]), a communication is sent
to the offeror of the property or the listing agent (step [2b]) and to a second
potential buyer or the buyer’s agent [step [2c]). Thus, as indicated by the
Specification, the communication system is used to facilitate the
communication between the humans.
The recited steps of the claim in which the interest in a property
listing of a first potential buyer is determined (step [1]) and then in response,
automatically determining the buyer’s agent, notifying the offeror or listing
agent of the interest, and then notifying a second potential buyer (step [2])
are each part of the process of organizing human activity because they are
integral to the commercial interaction and sales activity of selling real estate.
We thus proceed to the next step in the analysis of determining whether the
abstract idea is integrated into a practical application.

Step 2A, Prong Two
Prong Two of Step 2A under the Eligibility Guidance asks whether
there are additional elements that integrate the exception into a practical
application. We must look at the claim elements individually and “as an
ordered combination” to determine whether the additional elements integrate
the recited abstract idea into a practical application. As explained in the
Eligibility Guidance, integration may be found when an additional element
“reflects an improvement in the functioning of a computer, or an
improvement to other technology or technical field” or “applies or uses the
judicial exception in some other meaningful way beyond generally linking
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the use of the judicial exception to a particular technological environment,
such that the claim as a whole is more than a drafting effort designed to
monopolize the exception.” 84 Fed. Reg. 55.
Appellant contends that any abstract idea recited in the claim is
integrated into a practical application because the claim provides “a realtime,
property-associated communication system.” Appeal Br. 9. Appellant states
that “automatically generated notifications would not occur without the
ability to determine that a user is expressing an interest in a property” by
limitations [1a]–[1d] as recited in the claim. Id. Appellant further states that
“the efficiency of use of the electronic device can be improved by providing
a real-time communication system” and “completely automate notifications
driven by mere expressions of interest.” Id. Appellant explains that the
computing devices recited in the claims “are crucial to the performance of
the claims because the computing devices are necessary to detect expression
of interest and generate notifications automatically.” Id.
We are not persuaded by Appellant’s arguments.
To confer eligibility on the claim, the claim must recite an additional
element that is beyond the judicial exception. 84 Fed. Reg. 54–55. Here,
Appellant argues that the communication system, electronic device, and
computing devices integrate any abstract idea into a practical application.
We agree that such elements are beyond the judicial exception, namely, they
are not an abstract idea. Therefore, the question is whether these confer
eligibility on the claim, for example, by providing a technological
improvement to the claimed method. 84 Fed. Reg. at 55 (“An additional
element reflects an improvement in the functioning of a computer, or an
improvement to other technology or technical field.”).
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We are not persuaded that claim 1 provides a technical improvement
to the recited abstract idea of organizing human behavior. Specifically, we
find that the asserted additional elements are generic. For example, once a
buyer shows an interest in the property, three steps automatically occur (step
[2]). First, an agent of the buyer is determined. Second, the offeror of the
property or the listing agent is notified. Third, a notification is send to a
second potential buyer. Each of these steps could be performed without a
computing device, for example, by asking the buyer who is their agent,
notifying the listing agent by phone of the interest, and then calling another
buyer and letting them know that the property is listed for sale. The claim
does not improve upon these steps by using a specific technical process.
Rather, the improvement is an improvement in the efficiency of the process
by utilizing computing devices and networks to facilitate automated
communications between the parties. Appellant did not provide evidence
that the computing device, etc., which perform these functions are anything
other than a generic computing device programmed to perform the steps in
accordance with its generic computer functions. See Spec. ¶ 100 which
describes computing devices generically having a processor and memory.
While automating the steps improves the efficiency of the process, it is well-
established that automation is not sufficient to confer patent eligibility on the
claims. See Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044,
1055 (Fed. Cir. 2017) (“mere automation of manual processes using generic
computers does not constitute a patentable improvement in computer
technology.”).
The focus of the claims is improving the communication process by
automating it, not on the technical devices used to accomplish the
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automation. In contrast, in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327,
1339 (Fed. Cir. 2016), the claims were found to recite patent eligible subject
matter because “the self-referential table recited in the claims on appeal is a
specific type of data structure designed to improve the way a computer
stores and retrieves data in memory.” See also Visual Memory LLC v.
NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017) (“Our review of the
’740 patent claims demonstrates that they are directed to an improved
computer memory system, not to the abstract idea of categorical data
storage.”). Here, Appellant has not pointed to a limitation in the claim which
improves or changes the way the communication system, electronic device,
and computing devices accomplish the steps recited in the claim. It is well-
established that simply automating an abstract process by using a computer
is not enough to avoid the prohibition on patenting an abstract idea.
The claim also does not recite how the automation is accomplished in
response to the determination that a user has expressed interest in the
property. Absent such a recitation in the claims, and an explanation in the
Specification, the Examiner had basis to reasonably conclude that the recited
steps are performed on generic devices and without a technological
improvement to the process.
Indeed, as found by the Examiner, each of the elements described by
Appellant as conferring eligibility to the claim are stated in functional terms.
The claim does not describes how each of the recited elements accomplish
the recited function, specifically how the automation is accomplished. As
explained in McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,
1314 (Fed. Cir. 2016), we must “look to whether the claims . . . focus on a
specific means or method that improves the relevant technology or are
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instead directed to a result or effect that itself is the abstract idea and merely
invoke generic processes and machinery.” Dropbox, Inc. v. Synchronoss
Techs., Inc., 815 Fed. Appx. 529, 533 (Fed. Cir. 2020) (nonprecedential),
further summarized:
The patent has to describe how to solve the problem in a
manner that encompasses something more than the “principle in
the abstract.” See [ChargePoint, Inc. v. SemaConnect, Inc., 920
F.3d 759, 769 (Fed. Cir. 2019)] (explaining that an invention
may not be patent eligible if the “claims ‘were drafted in such a
result-oriented way that they amounted to encompassing the
‘principle in the abstract’ no matter how implemented’ ”
(quoting Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335,
1343 (Fed. Cir. 2018))).
The steps for performing the automation are recited in a “result-
oriented way” and therefore do not provide a specific technological solution
to the claim beyond the judicial exception.
Because we find that the abstract idea is not integrated into a practical
application under Step 2, Prong Two, we proceed to Step 2B of the analysis.

Step 2B
Step 2B of the Eligibility Guidance asks whether there is an inventive
concept. In making this Step 2B determination, we must consider whether
there are specific limitations or elements recited in the claim “that are not
well-understood, routine, conventional activity in the field, which is
indicative that an inventive concept may be present” or whether the claim
“simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
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exception, which is indicative that an inventive concept may not be present.”
84 Fed. Reg. at 56 (footnote omitted).
Appellant argues that the steps of the claim, when considered as an
ordered combination, provide an inventive concept. Appellant does not
identify the specific elements in the claim which provide this concept, but
point to BASCOM Glob. Internet Servs. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016) as providing a similar reasoning as to why the claims
should be found patent-eligible. Appeal Br. 10.
The improvement described in BASCOM, upon which patent
eligibility hinged, is of a different type than claimed here. The court in
BASCOM determined that the claimed subject matter was patent-eligible
under 35 U.S.C. § 101 because the claims were found to “carve out a
specific location for [an Internet traffic] filtering system (a remote ISP
server) and require the filtering system to give users the ability to customize
filtering for their individual network accounts.” BASCOM, 827 F.3d at 1352.
The court stated that while filtering content was “already a known concept,”
the claims “recite a specific, discrete implementation of the abstract idea of
filtering content.” Id. at 1350. In BASCOM, the claims provided “a
technology-based solution . . . to filter content on the Internet that overcomes
existing problems with other Internet filtering systems.” Id. at 1351.
In contrast, Appellant has not identified a specific, discrete
implementation of the abstract idea that provides a technology-based
solution to the communication between buyers, sellers, and agents.
Appellant has not identified an improvement in how the communication is
accomplished by the parties. The improvement, if any, is in carrying out the
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steps on a computing device.3 There is no detail on how the message
automation is accomplished in step 2. These steps, as explained above,
involve the abstract idea of organizing human activity. There is no technical
improvement to the activity of communicating between the parties. Rather,
the steps are carried out on generic devices.
Appellant also cites to Amdocs (Israel) Limited v. Openet Telecom,
Inc., 841 F.3d 1288 (Fed. Cir. 2016), asserting that “the claims here relate to
a specific computer based approach” and then reciting steps 1 and 2. Appeal
Br. 11–12.
The rejected claims are distinguishable from Amdocs. In Amdocs, the
claims were found to be patent eligible because, while reciting generic
components, the components were found to “operate in an unconventional
manner to achieve an improvement in computer functionality.” Amdocs, 841
F.3d at 1300–1301. The court found that the claim was “tied to a specific
structure of various components (network devices, gatherers, ISMs, a central
event manager, a central database, a user interface server, and terminals or
clients)” which “does not merely combine the components in a generic
manner, but instead purposefully arranges the components in a distributed
architecture to achieve a technological solution to a technological problem
specific to computer networks.” Id. at 1301.

3 NetSoc, LLC v. Match Group, LLC, 838 Fed. Appx. 544, 549 (Fed. Cir.
2020) (non-precedential) (“The claim limitations fail to add a technological
improvement to the computer or otherwise provide “something more” to
‘transform’ the claims. See [Alice] at 217, 134 S.Ct. 2347. Rather, the ’107
patent claims are quintessential ‘apply it with a computer’ claims. See id. at
223, 134 S.Ct. 2347 (‘Stating an abstract idea while adding the words ‘apply
it with a computer’ simply combines those two steps, with the same deficient
result.’).)
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Here, Appellant has not identified an unconventional arrangement of
elements in claim 31, but rather the additional elements cited by Appellant
are not recited in the claim to be arranged in a particular structure as in
Amdocs. Indeed, there is no structure recited at all as to how the devices are
arranged in the claim.
For the foregoing reasons, we affirm the rejection of clams 1–5 and
14–28 as lacking patent eligibility.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 14, 15,
17–22, 24–
28
103 Milman,
Zimmerman
1, 2, 14, 15,
17–22, 24–
27
28
3 103 Milman,
Zimmerman,
Wilson
3
4 103 Milman,
Zimmerman,
Schmidt-Lackner
4
5 103 Milman,
Zimmerman, Goel
5
16, 23 103 Milman,
Zimmerman,
Mozayeny
16, 23
1–5, 14–28 101 Eligibility 1–5, 14–28
Overall
Outcome
1–5, 14–28

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TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED