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Patent Trials and Appeals Board

Oct 25, 2019

14291237 - (D) (P.T.A.B. Oct. 25, 2019)

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.
14/291,237 05/30/2014 Denis Boulanger PT1173US00 1114
132326 7590 10/25/2019
Thompson Hine LLP
10050 Innovation Drive
Suite 400
Dayton, OH 45342-4934
EXAMINER
JOSEPH, TONYA S
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
10/25/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENIS BOULANGER, LUC CHOUBERT, RAPHAEL SABAN,
and MATHIEU CHAN NOON CHUNG
Appeal 2019-000596
Application 14/291,237
Technology Center 3600

Before DANIEL N. FISHMAN, ADAM J. PYONIN, and MELISSA A.
HAAPALA, Administrative Patent Judges.

PYONIN, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. 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 the real party in interest as Amadeus
S.A.S. Br. 3.
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Application 14/291,237

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STATEMENT OF THE CASE
Introduction
The Application is directed to “assigning seats of passenger-transport
vehicles to passengers.” Spec. ¶ 1. Claims 1, 3–9, and 11–17 are pending;
claims 1, 9, and 17 are independent. Br. 3. Claim 1 is reproduced below for
reference (emphasis added):
1. A method comprising:
identifying unoccupied seats on a passenger-transport
vehicle;
accessing a reservation database to retrieve data indicative
of existing bookings associated with the passenger-transport
vehicle;
partitioning passengers, based on the data indicative of
existing bookings, into passengers seated by a reservation link
resulting from an existing booking and remaining passengers not
seated by a reservation link resulting from an existing booking;
obtaining social-network relation data for the remaining
passengers from a social network database;
subdividing, by a processor, the remaining passengers into
a plurality of groups, each group among the plurality of groups
including a sub-set of the passengers having at least one social-
network relation in common based on the social-network relation
data, each passenger among the sub-set of the passengers in each
group having less than a maximum number of social-network
relations to other passengers outside of that group based on the
social-network relation data, wherein the passengers are
subdivided into the plurality of groups such that breaks of the
social-network relations between the passengers are minimized
when the passengers are subdivided into the groups;
identifying an excluded passenger among the remaining
passengers, the excluded passenger not included in any group
among the plurality of groups upon subdividing the remaining
passengers;
determining, by the processor, one group among the
plurality of groups that includes at least one remaining passenger
having at least one of the social-network relations in common
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with the excluded passenger based on the social-network relation
data;
adding the excluded passenger to the one group that
includes the at least one remaining passenger having at least one
social-network relation in common with the excluded passenger;
and
allocating the unoccupied seats to the remaining
passengers based on the plurality of groups.
Rejections
Claim 1 is rejected under 35 U.S.C. § 112(b), as being indefinite.
Final Act. 5.
Claims 1, 3–9, and 11–17 are rejected under 35 U.S.C. § 101 as being
patent ineligible. Final Act. 3; Advisory Act. 1.
OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). We
discuss each of the statutory grounds of rejection in turn, below.

Indefiniteness
The Examiner rejects claim 1 as failing to particularly point out and
distinctly claim the subject matter:
Claim 1 still recites the limitations regarding, subdividing, by a
processor … each group are connected by social-network
relations and have less than a maximum number of social-
network relations to other passengers outside of that group ...
breaks of the social-network relations between the passengers
are minimized when the passengers are subdivided into the
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groups; The plain meaning of the underlined portions remain
unclear.
Final Act. 5.
Appellant argues the Examiner errs, because the rejection provides no
reasoning why each of the claims would be indefinite. Br. 22. Appellant
further argues “the current indefiniteness rejection is both legally and
factually deficient,” and “one skilled in the art would be reasonably apprised
of the scope of the claimed invention with the benefit of Appellant’s
specification.” Br. 23 (citing Spec. ¶¶ 22–25, 29, 32, 41, 42).
We agree with Appellant’s arguments. The Examiner has provided no
analysis other than the bare assertion that the quoted claim portion is
“unclear.” Final Act. 5; see also Ans. 5. Such analysis is insufficient to
support a rejection. See MPEP § 2173.02 (9th ed., rev. 08.2017 (Jan. 2018))
(“[T]he examiner should clearly communicate in an Office action any
findings and reasons which support the rejection and avoid a mere
conclusion that the claim term or phrase is indefinite.”). Additionally,
Appellant persuades us that one of ordinary skill in the art “would
understand what is claimed when the claim is read in light of the
specification.” Id.; Br. 23; see also Spec. ¶ 25 (“[B]reaking a relation means
cutting an edge in the graph corresponding to that relation. After seat
assignment, those broken relations may result in (former) related passengers
being seated spatially apart from each other.”); ¶ 33 (“The most suitable
group assignment for non-included [passengers] . . . is the group assignment
that breaks the fewest connections between [passengers] . . . .”).
Accordingly, we do not sustain the Examiner’s indefiniteness
rejection of independent claim 1.

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Patent Eligibility
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101, because “the claimed invention is directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more.” Final Act. 3; see also Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 573 U.S. 208, 217 (2014) (Describing the two-step
framework “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.”).
After the docketing of this Appeal, the USPTO published revised
guidance on the application of § 101. See USPTO’s 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Memorandum”). Under Step 2A of the guidance, the office looks to
whether the claim recites:
(1) Prong One: any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain
methods of organizing human activity such as a fundamental
economic practice, or mental processes); and
(2) Prong Two: additional elements that integrate the judicial
exception into a practical application (see MPEP § 2106.05(a)–
(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then look, under Step
2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not well-understood, routine, conventional in the field (see
MPEP § 2106.05(d)); or
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum, 84 Fed. Reg. at 56.
We are not persuaded the Examiner’s rejection is in error. We adopt
the Examiner’s eligibility findings and conclusions as our own, and we add
the following primarily for emphasis and clarification with respect to the
guidance.

A. Step 2A, Prong One
We agree with Appellant “the claimed invention is directed towards a
particular technique of allocating unoccupied seats on a passenger-transport
vehicle to passengers not seated by a reservation link resulting from an
existing booking.” Br. 15. We determine that claim 1 recites an abstract
concept pursuant to the guidance. See Final Act. 3–4. Particularly, Claim 1
includes limitations that we determine recite judicial exceptions pursuant to
the guidance, as discussed herein.
Claim 1 recites the following limitations regarding obtaining
information and identifying seats and passengers as part of the “particular
seat assignment process” (Br. 15):
identifying unoccupied seats on a passenger-transport
vehicle;
accessing a reservation database to retrieve data indicative
of existing bookings associated with the passenger-transport
vehicle;
. . .
obtaining social-network relation data for the remaining
passengers from a social network database;
. . .
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identifying an excluded passenger among the remaining
passengers, the excluded passenger not included in any group
among the plurality of groups upon subdividing the remaining
passengers.
These limitations are, pursuant to the guidance, concepts of “observation,
evaluation,” and are thus the abstract concept of “[m]ental processes.”
Memorandum, 84 Fed. Reg. at 52; see also Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the
exception of generic computer-implemented steps, there is nothing in the
claims themselves that foreclose them from being performed by a human,
mentally or with pen and paper.”). The limitations are also “business
relations[,] . . . social activities, . . . and following rules or instructions,”
which are “commercial or legal interactions” and “managing personal
behavior or relationships or interactions between people.” Memorandum, 84
Fed. Reg. at 52. Pursuant to the guidance, the limitations are the abstract
concept of “[c]ertain methods of organizing human activity.” Id.
Claim 1 further recites the following limitations performed as part of
the “particular seat assignment process” (Br. 15):
partitioning passengers, based on the data indicative of
existing bookings, into passengers seated by a reservation link
resulting from an existing booking and remaining passengers not
seated by a reservation link resulting from an existing booking;
. . .
subdividing . . . the remaining passengers into a plurality
of groups, each group among the plurality of groups including a
sub-set of the passengers having at least one social-network
relation in common based on the social-network relation data,
each passenger among the sub-set of the passengers in each
group having less than a maximum number of social-network
relations to other passengers outside of that group based on the
social-network relation data, wherein the passengers are
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subdivided into the plurality of groups such that breaks of the
social-network relations between the passengers are minimized
when the passengers are subdivided into the groups;
. . .
determining . . . one group among the plurality of groups
that includes at least one remaining passenger having at least one
of the social-network relations in common with the excluded
passenger based on the social-network relation data;
adding the excluded passenger to the one group that
includes the at least one remaining passenger having at least one
social-network relation in common with the excluded passenger;
and
allocating the unoccupied seats to the remaining
passengers based on the plurality of groups.
These limitations are, pursuant to the guidance, concepts of “observation,
evaluation, judgement, opinion,” and are the abstract concept of “[m]ental
processes.” Memorandum, 84 Fed. Reg. at 52. The limitations are also
“business relations[,] . . . social activities, . . . and following rules or
instructions,” which are “commercial or legal interactions” and “managing
personal behavior or relationships or interactions between people.”
Memorandum, 84 Fed. Reg. at 52. Pursuant to the guidance, the limitations
are the abstract concept of “[c]ertain methods of organizing human activity.”
Id.
Accordingly, we agree with the Examiner that the claim recites an
abstract idea under Prong One of the guidance. Id. at 52, 54; Final Act. 3; cf.
In re Maucorps, 609 F.2d 481, 482 (CCPA 1979) (Determining a claimed
algorithm for “optimizing the organization of sales representatives in a
business” is not patent eligible.).

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B. Step 2A, Prong Two
Appellant contends the Examiner’s eligibility rejection is in error,
because “[a]t best, the Examiner has demonstrated that claim 1 involves or
relates to a patent-ineligible concept” (Br. 14), but “the Examiner fails to
consider the language of claim 1 pertaining to the claim elements related to
the social-network relation data” (Br. 15). Particularly, Appellant contends
the claim is not directed to an abstract concept, because “the claimed
invention provides a solution that is . . . inextricably linked with an online
social networking environment” (Br. 16) and saves “significant processing
time and processing power” (Br. 21).
We are not persuaded the Examiner’s rejection is insufficiently
supported, or otherwise is in error, pursuant to Step 2A, Prong Two of the
guidance. As discussed above, the social-network related limitations are
part of the recited judicial exception. See Ans. 4. That is, the disputed
limitations do not comprise additional element(s) imparting eligibility. See
Memorandum, 84 Fed. Reg. at 55, n.24 (“USPTO guidance uses the term
‘additional elements’ to refer to claim features, limitations, and/or steps that
are recited in the claim beyond the identified judicial exception.”).
Other than the recited judicial exception, claim 1 requires a processor.
We disagree with Appellant that the claim will provide “technical
improvements over the prior art” (Br. 20), because the claim limitations
merely uses the ordinary capabilities of a general-purpose computer. See
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir.
2016) (“[T]he fact that the required calculations could be performed more
efficiently via a computer does not materially alter the patent eligibility of
the claimed subject matter.”); Memorandum 84 Fed. Reg. at 55 (“The courts
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have also identified examples in which a judicial exception has not been
integrated into a practical application: [] An additional element merely
recites the words ‘apply it’ (or an equivalent) with the judicial exception.”).
Accordingly, we determine claim 1 does not integrate the judicial
exception into a practical application. See Memorandum, 84 Fed. Reg. at
54. As the “claim recites a judicial exception and fails to integrate the
exception into a practical application” (id. at 51), “the claim is directed to
the judicial exception” (id. at 54). Cf. In re Morinville, 767 F. App’x 964,
969 (Fed. Cir. 2019) (“[T]he Board correctly viewed claim 1[, being]
directed to the general concept of reorganizing an organization in conformity
with function . . . . and recit[ing] a computer ‘merely as a tool,’ is [therefore]
a general abstract idea.”).

C. Step 2B
The Examiner determines the claimed additional elements comprise a
“recitation of generic computer structure that serves to perform generic
computer functions that are well-understood, routine, and conventional
activities previously known to the pertinent industry.” Final Act. 4.
Appellant does not persuade us the Examiner is incorrect, as Appellant’s
arguments focus on the recited “computer-implemented functions” such as
using social network data. Br. 19. As discussed above, such steps are part
of the judicial exception rather than an additional element. See
Memorandum, 84 Fed. Reg. at 56.
Pursuant to Step 2B of the guidance, we find the Examiner’s analysis
regarding the additional elements of the claims to be reasonable. See Ans. 4;
see also Spec. ¶¶ 40, 64–69; Alice, 573 U.S. at 226. Accordingly, we are not
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persuaded the Examiner errs in determining claim 1 does not include an
inventive concept which amounts to significantly more than the exception
itself.
We sustain the Examiner’s patent eligibility rejection of independent
claim 1, as well as independent claims 9 and 17, for which Appellant does
not provide separate, substantive arguments. See Br. 18.

D. Dependent Claims
Appellant argues the Examiner’s eligibility rejection of the dependent
claims is in error. See Br. 18. We are not persuaded of error. Contrary to
Appellant’s arguments, the Examiner addresses the dependent claims and
concludes the claims do not remedy the deficiencies of the independent
claims. See Final Act. 50; Ans. 4. We note Appellant does not attempt to
explain why the Examiner’s conclusions are not applicable to the dependent
claims. See Br. 18. Accordingly, we sustain the Examiner’s patent
eligibility rejection of dependent claims 3–8 and 11–16.
CONCLUSION
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1 112(b) Indefiniteness

1
1, 3–9, 11–
17
101 Eligibility

1, 3–9, 11–
17

Overall
Outcome
1, 3–9, 11–
17

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Application 14/291,237

12
TIME PERIOD FOR RESPONSE
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