Rodrigo Alejandro. Acuna Agost et al.

Patent Trials and Appeals Board

Oct 11, 2019

14174196 - (D) (P.T.A.B. Oct. 11, 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.
14/174,196 02/06/2014 Rodrigo Alejandro ACUNA AGOST 13289.0026-00000 6403
22852 7590 10/11/2019
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
STERRETT, JONATHAN G
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
10/11/2019 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RODRIGO ALEJANDRO ACUNA AGOST,
THIERRY DELAHAYE, and THILO PFEIFFER
____________

Appeal 2018-002506
Application 14/174,196
Technology Center 3600
____________

Before ANTON W. FETTING, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 36–44. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
CLAIMED INVENTION
Appellant’s claimed invention “generally relates to computers and
computer software and, in particular, to methods, systems, and computer
program products for assigning scheduled vehicles to stands” (Spec. § 1).
Claims 36, 39, and 42 are the independent claims on appeal.
Claim 36, reproduced below with bracketed notations added, is illustrative
of the claimed subject matter:
36. A method for assigning airplanes to stands,
comprising:
[(a)] receiving, during a planning phase, a schedule for
an airport that specifies arrival times and departure times for
flights;
[(b)] receiving, during the planning phase, historical
schedule deviations comprising arrival deviations and departure
deviations for the flights;
[(c)] generating, using at least one processor during the
planning phase, a stand allocation plan that allocates flights to
stands of the airport based on the schedule and the historical
schedule deviations, generation comprising:

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Our decision references Appellant’s Appeal Brief (“Appeal Br.,”
filed September 6, 2017) and Reply Brief (“Reply Br.,” filed January 8,
2018), and the Examiner’s Answer (“Ans.,” mailed November 8, 2017) and
Final Office Action (“Final Act.,” mailed March 10, 2017). Appellant
identifies the real party in interest as Amadeus S.A.S. Appeal Br. 1.
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[(c1)] determining, by the at least one processor for
pairs of consecutive flights, each pair comprising an
arriving flight and a departing flight, pairwise
individual buffer times satisfying a collision
likelihood criterion based on the departure
deviations of the departing flights and the arrival
deviations of the arriving flights, determining
pairwise individual buffer times comprising:
(i) determining probability distribution
functions for the departing flights based on the
departure deviations of the departing flights,
(ii) determining probability distribution
functions for the arriving flights based on the arrival
deviations of the arriving flights,
(iii) determining combined probability
distribution functions for the pairs of consecutive
flights based on the probability distribution
functions for the arriving flights and the probability
distribution functions for the departing flights, and
(iv) determining the pairwise individual
buffer times based on the combined probability
distribution functions,
[(c2)] determining, by the at least one processor for
the pairs of consecutive flights, time intervals based on the
specified departure times of the departing flights and the
arrival times of the arriving flights,
[(c3)] determining, for the pairs of consecutive
flights, pairs of consecutive flights satisfying at least a
buffer time constraint based on the pairwise individual
buffer times and the time intervals, and
[(c4)] assigning one of the stands to one of the pairs
of consecutive flights satisfying at least the buffer time
constraint; and
[(d)] assigning, during an operational phase, arriving
flights to the stands according to the stand allocation plan.
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REJECTION
Claims 36–44 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
ANALYSIS
Appellant argues the pending claims as a group (Appeal Br. 13–24).
We select independent claim 36 as representative. The remaining claims
stand or fall with claim 36. See 37 C.F.R. §41.37(c)(1)(iv).
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.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth 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 Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 79, 78). This is “a search for an ‘inventive concept’ — i.e., an
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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.’” Id. at 217–18 (alteration in original).
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
determined that the claims are directed to “generating a schedule for aircraft
terminals (e.g.[,] gates at an airport with arriving and departing flights)
based on a statistical analysis of arriving and departing flights,” which the
Examiner concluded is an abstract idea similar to other concepts that the
courts have held abstract (Final Act. 2, 5–7, and 11–12). The Examiner also
determined that the claims do not include additional elements that are
sufficient to amount to significantly more than the abstract idea itself (id.
at 7–12).
After Appellant’s briefs were filed, and the Examiner’s Answer
mailed, the U.S. Patent and Trademark Office (the “USPTO”) published
revised guidance for use by USPTO personnel in evaluating subject matter
eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50, 57 (Jan. 7, 2019) (the “2019
Revised Guidance”). That guidance revised the USPTO’s examination
procedure with respect to the first step of the Mayo/Alice framework by
(1) “[p]roviding groupings of subject matter that is considered an abstract
idea”; and (2) clarifying that a claim is not “directed to” a judicial exception
if the judicial exception is integrated into a practical application of that
exception. Id. at 50. The 2019 Revised Guidance, by its terms, applies to all
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applications, and to all patents resulting from applications, filed before, on,
or after January 7, 2019. Id.2
Step One of the Mayo/Alice Framework (2019 Revised Guidance, Step 2A)
The first step in the Mayo/Alice framework, as mentioned above, is to
determine whether the claims at issue are “directed to” a patent-ineligible
concept, e.g., an abstract idea. Alice Corp., 573 U.S. at 217. This first step,
as set forth in the 2019 Revised Guidance (i.e., Step 2A), is a two-prong test;
in Step 2A, Prong One, we look to whether the claim recites a judicial
exception, e.g., one of the following three groupings of abstract ideas:
(1) mathematical concepts; (2) certain methods of organizing human
activity, e.g., fundamental economic principles or practices, commercial or
legal interactions; and (3) mental processes. 2019 Revised Guidance,
84 Fed. Reg. at 54. If so, we next consider whether the claim includes
additional elements, beyond the judicial exception, that “integrate the
[judicial] exception into a practical application,” i.e., that 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 (“Step 2A, Prong Two”). Id. at 54–55.
Only if the claim (1) recites a judicial exception and (2) does not integrate

2 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) § 2106.04(II) and also supersedes all versions of the
USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.”
See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-related
guidance issued prior to the Ninth Edition, R-08.2017 of the MPEP
(published Jan. 2018) should not be relied upon.”). Accordingly,
Appellant’s arguments challenging the sufficiency of the Examiner’s
rejection will not be addressed to the extent those arguments are based on
now superseded USPTO guidance.
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that exception into a practical application do we conclude that the claim is
“directed to” the judicial exception, e.g., an abstract idea.
We are not persuaded here that the Examiner erred in determining that
claim 36 is directed to an abstract idea (Appeal Br. 13–16). The Federal
Circuit has explained that “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.’” Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015)). It asks whether the focus of the claims is on a specific improvement
in relevant technology or on a process that itself qualifies as an “abstract
idea” for which computers are invoked merely as a tool. See id. at 1335–36.
Here, it is clear from the Specification, including the claim language, that the
claims focus on an abstract idea, and not on any improvement to technology
and/or a technical field.
The Specification is entitled “VEHICLE STAND ALLOCATION,”
and states that the invention relates, in particular, “to methods, systems, and
computer program products for assigning scheduled vehicles to stands”
(Spec. ¶ 1). The Specification describes, in the “Background” section, that
vehicle stand allocation may be planned far in advance of the actual arrival
of the vehicles at their assigned stands; however, a difficulty with planning
stand allocation stems from the inability to anticipate, during the planning
phase, future schedule deviations (i.e., a vehicle arriving or departing either
earlier or later than scheduled) (id. ¶ 2) — deviations that may create
conflicts (e.g., a stand being occupied when the next vehicle assigned to that
stand arrives) requiring additional effort and costs to resolve (id.). The
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Specification describes that a solution to the conflicts issue is to add a fixed
buffer time between scheduled departures and scheduled arrivals of
successive vehicles that are assigned to the same stand (id. ¶ 3). The buffer
time provides a reserve in time that allows a vehicle to depart the stand later
than scheduled or to arrive at the stand earlier than scheduled without
causing a conflict or collision with another vehicle (id.). Although
lengthening the fixed buffer time can reduce the likelihood of a conflict, the
Specification describes that this may adversely affect other key performance
indicators, and ultimately, the efficiency of the stand allocation plan, e.g.,
longer buffer times may reduce stand utilization and the throughput of
vehicles (id.). “Consequently, improved methods, systems, and computer
program products are needed for assigning scheduled vehicles to stands” (id.
¶ 4).
The claimed invention is ostensibly intended to address this need by
generating a stand allocation plan with pairwise individual buffer times that
differ between pairs of consecutive flights, i.e., an arriving flight and a
departing flight. The Specification, thus, describes a method of assigning at
least a first vehicle and a second vehicle, each having a scheduled arrival
time and a scheduled departure time, to a plurality of stands (id. ¶ 5). In
accordance with the method, a minimum buffer time between a departure of
the first vehicle and an arrival of the second vehicle is calculated based on a
distribution of a deviation from the scheduled departure time of the first
vehicle and/or a distribution of a deviation from the scheduled arrival time
of the second vehicle (id.). The vehicles are then assigned to different ones
of the plurality of stands based on the time interval between the scheduled
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departure time of the first vehicle and the scheduled arrival time of the
second vehicle being less than the minimum buffer time (id.).
Consistent with this disclosure, claim 36 recites a method for
assigning airplanes to airport stands comprising: (1) receiving an airport
schedule, including flight arrival and departure times, and historical arrival
and departure deviations for the flights i.e., “receiving, during a planning
phase, a schedule for an airport that specifies arrival times and departure
times for flights” and “receiving, during the planning phase, historical
schedule deviations comprising arrival deviations and departure deviations
for the flights” (steps (a) and (b)); (2) generating a stand allocation plan
based on the airport schedule and the historical schedule deviations by
determining pairwise individual buffer times for pairs of consecutive flights,
determining a buffer time constraint based on the pairwise individual buffer
times and the time intervals for the pairs of consecutive flights, and
assigning a stand to a pair of consecutive flights that satisfies the buffer time
constraint, i.e.,
generating, using at least one processor during the
planning phase, a stand allocation plan that allocates flights to
stands of the airport based on the schedule and the historical
schedule deviations, generation comprising:
determining, by the at least one processor for pairs
of consecutive flights, each pair comprising an
arriving flight and a departing flight, pairwise
individual buffer times satisfying a collision
likelihood criterion based on the departure
deviations of the departing flights and the arrival
deviations of the arriving flights, determining
pairwise individual buffer times comprising:
(i) determining probability distribution
functions for the departing flights based on the
departure deviations of the departing flights,
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(ii) determining probability distribution
functions for the arriving flights based on the arrival
deviations of the arriving flights,
(iii) determining combined probability
distribution functions for the pairs of consecutive
flights based on the probability distribution
functions for the arriving flights and the probability
distribution functions for the departing flights, and
(iv) determining the pairwise individual
buffer times based on the combined probability
distribution functions,
determining, by the at least one processor for the
pairs of consecutive flights, time intervals based on the
specified departure times of the departing flights and the
arrival times of the arriving flights,
determining, for the pairs of consecutive flights,
pairs of consecutive flights satisfying at least a buffer time
constraint based on the pairwise individual buffer times
and the time intervals, and
assigning one of the stands to one of the pairs of
consecutive flights satisfying at least the buffer time
constraint
(step (c)); and (3) assigning flights to the stands according to the stand
allocation plan, i.e., “assigning, during an operational phase, arriving flights
to the stands according to the stand allocation plan” (step (d)). Simply put,
claim 36 recites assigning airplanes to stands by (1) collecting information
(i.e., scheduled flight arrival and departure times and historical schedule
deviations); (2) analyzing the information (i.e., generating a stand allocation
plan based on the schedule and historical schedule deviations, including
performing a series of calculations to determine pairwise individual buffer
times based on probability distribution functions); and (3) reporting the
results of the collection and analysis (i.e., assigning flights to the stands
according to the stand allocation plan). Given their broadest reasonable
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interpretation, these limitations, thus, recite a commercial interaction, i.e.,
managing airport terminal operations, which is a method of organizing
human activity, and, therefore, an abstract idea. See 2019 Revised
Guidance, 84 Fed. Reg. at 52. The limitations also recite mathematical
calculations — determining pairwise individual buffer times for pairs of
consecutive flights based on probability distribution functions — which is a
mathematical concept and, therefore, an abstract idea. See id.
The Federal Circuit has held similar concepts to be abstract. Thus, for
example, the Federal Circuit has held that abstract ideas include the concepts
of collecting data, analyzing the data, and reporting the results of the
collection and analysis, including when limited to particular content. See,
e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332,
1340 (Fed. Cir. 2017) (identifying the abstract idea of collecting, displaying,
and manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1354 (Fed. Cir. 2016) (characterizing collecting information,
analyzing information by steps people go through in their minds, or by
mathematical algorithms, and presenting the results of collecting and
analyzing information, without more, as matters within the realm of abstract
ideas). The court also has held that claims directed to a “process of
organizing information through mathematical correlations” are directed to an
abstract idea. Digitech Image Techs., LLC v. Elecs. for Imaging, Inc.,
758 F.3d 1344, 1350 (Fed. Cir. 2014); see also SAP Am., Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (holding that claims to “a series
of mathematical calculations based on selected information” are directed to
an abstract idea). And the law is clear that “[a]dding one abstract idea . . . to
another abstract idea . . . does not render [a] claim non-abstract.”
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RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017);
see also Fair Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94
(Fed. Cir. 2016) (patent-ineligible claims were directed to a combination of
abstract ideas).
Having concluded that claim 36 recites a judicial exception, i.e., an
abstract idea (Step 2A, Prong 1), we next consider whether the claim recites
additional elements that integrate the judicial exception into a practical
application (Step 2A, Prong 2).
The only additional element recited in claim 36, beyond the abstract
idea, is the claimed “at least one processor” — an element that, as the
Examiner observes (Final Act. 10), is described in the Specification at a high
level of generality, i.e., as a generic computer component (see, e.g., Spec.
¶ 64 (describing that “computer 50 may represent practically any type of
computer, computer system or other programmable electronic device”)).
We find no indication in the Specification, nor does Appellant direct
us to any indication, that the operations recited in claim 36 require any
specialized computer hardware or other inventive computer components,
i.e., a particular machine, invoke any assertedly inventive programming, or
that the claimed invention is implemented using other than generic computer
components to perform generic computer functions. See DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter
Alice, there can remain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible.”).
We also find no 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, short of attorney
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argument, that attributes an improvement in technology and/or a technical
field to the claimed invention or that otherwise indicates that the claimed
invention integrates the abstract idea into a “practical application,” as that
phrase is used in the 2019 Revised Guidance.3
Appellant argues that the pending claims are not directed to an
abstract idea because the claims focus on a specific improvement in
generating stand allocation plans (Appeal Br. 13–16). Citing the
Background section of the Specification, Appellant notes that existing
systems generate stand allocation plans that assign airplanes to stands with
fixed buffer times between scheduled departures and arrivals (id. at 13).
And Appellant argues that the claimed system improves upon these existing
systems by generating an airport stand allocation plan with pairwise
individual buffer times that differ between pairs of airplanes (id. at 14).
Appellant, thus, maintains that the pending claims, like those held patent
eligible in McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d
1299 (Fed. Cir. 2016), “set out specific requirements that allow for the
improvement realized by the invention” (id. at 16; see also Reply Br. 2–3).
Appellant’s argument is not persuasive at least because the Federal
Circuit premised its determination that the claim in McRO was patent
eligible, not merely on the specificity of the claimed animation scheme, but

3 The 2019 Revised Guidance references MPEP § 2106.05(a)–(c) and (e) in
describing the considerations that are indicative that an additional element or
combination of elements integrates the judicial exception, e.g., the abstract
idea, into a practical application. 2019 Revised Guidance, 84 Fed. Reg.
at 55. If the recited judicial exception is integrated into a practical
application, as determined under one or more of these MPEP sections, the
claim is not “directed to” the judicial exception.
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on the fact that the claim, when considered as a whole, was directed to a
technological improvement over existing, manual 3-D animation techniques,
and used limited rules in a process specifically designed to achieve an
improved technological result in conventional industry practice. McRO,
837 F.3d at 1316.
Appellant ostensibly maintains that, as in McRO, the claims provide a
technological improvement because they enable the generation and use of a
more efficient and robust stand allocation plan (see Appeal Br. 13). Yet,
Appellant does not adequately explain why, and we fail to see why
generating a more efficient and robust stand allocation plan, amounts to a
technological improvement, as opposed to an improvement in a business
practice.
It clearly appears from the Specification that the problem the claimed
invention addresses is one prompted by the need to account for flight
schedule deviations (which can disrupt a planned stand allocation and create
conflicts) without unnecessarily lengthening fixed buffer times between
consecutive flights and, thereby, reducing stand utilization and vehicle
throughput (see Spec. ¶ 3; see also id. ¶ 20 (describing that increasing the
robustness of a stand allocation reduces the probability of conflicts during
the operational phase, and, thus, improves service quality and reduces efforts
during the operational phase, e.g., the need for re-planning the stand
allocation, re-assignment of vehicles, and/or intermediate parking (during
the operational phase))). We agree with the Examiner that the problem
being solved “has to do with the variability in gate scheduling to ensure that
if Flight I is late leaving the gate, it does not conflict with Flight J which is
arriving and may do so earlier than scheduled” (Ans. 4–5), i.e., a matter of
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resource allocation (id. at 7). This is not a technical problem; instead, it is a
business concern related, as Appellant describes, to ensuring against a
reduction in the efficiency of the stand allocation plan and avoiding the
wasted time and potential for conflicts associated with conventional systems
using fixed buffer times (Appeal Br. 12–13).
In McRO, as described above, the Federal Circuit concluded that the
claim, when considered as a whole, is directed to a “technological
improvement over the existing, manual 3-D animation techniques” and “uses
the limited rules in a process specifically designed to achieve an improved
technological result in conventional industry practice.” McRO, 837 F.3d
at 1316. Specifically, the Federal Circuit found that the claimed rules allow
computers to produce accurate and realistic lip synchronization and facial
expressions in animated characters that previously could only be produced
by human animators; and the rules are limiting because they define morph
weight sets as a function of phoneme sub-sequences. Id. at 1313.
Appellant has not identified any comparable improvement here that is
attributable to the claimed invention. Although generating pairwise
individual buffer times and using the buffer times in combination with time
intervals to identify pairs of aircraft that can be assigned to a single stand
may improve a business process, i.e., managing the allocation of airport
gates, it does not achieve an improved technological result. This is
particularly so where, as here, we find no indication in the Specification that
the operations recited in claim 36 require any specialized computer hardware
or other inventive computer components, invoke any assertedly inventive
programming, or that the claimed invention is implemented using other than
generic computer components to perform generic computer functions.
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We also do not agree with Appellant that the pending claims are
similar to the claim in Amdocs (Israel) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288 (Fed. Cir. 2016) (Reply Br. 4). There, the Federal Circuit
held the claim was patent eligible because the claim entails an
unconventional technological solution (enhancing data in a distributed
fashion) to a technological problem (massive record flows which previously
required massive databases). Although the solution requires generic
components, the court determined that “the claim’s enhancing limitation
necessarily requires that these generic components operate in an
unconventional manner to achieve an improvement in computer
functionality” and that the “enhancing limitation depends not only upon the
invention’s distributed architecture, but also depends upon the network
devices and gatherers –– even though these may be generic –– working
together in a distributed manner.” Amdocs, 841 F.3d at 1300–01.
Appellant ostensibly maintains that claim 36 provides a technological
solution to a technological problem (Reply Br. 4). But, Appellant does not
identify any “distributed architecture” comparable to that in Amdocs or
otherwise establish that the generic components recited in the claim operate
in an unconventional manner. Nor, as described above, does claim 36
achieve a technological result comparable to that in McRO.
There also is no parallel between the present claims and those at issue
in Diamond v. Diehr, 450 U.S. 175 (1981) (Reply Br. 6–7). The claims in
Diehr were directed to a process for curing synthetic rubber, and recited a
series of steps (e.g., loading a molding press with raw, uncured rubber,
closing the press, constantly determining the temperature inside the press,
constantly recalculating the cure time, and automatically opening the press at
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the proper time) that together provided a significant and novel practical
application of the well-known Arrhenius equation and transformed uncured
synthetic rubber into a new state or thing. See Diehr, 450 U.S. at 184–87.
Unlike the process claimed in Diehr, which was directed to a specific
industrial process, i.e., “a physical and chemical process for molding
precision synthetic rubber products,” id. at 184, claim 36 here merely recites
a computer-implemented system and method for assigning aircraft to
particular airport gates. As described above, this is not a technical problem
but rather a resource allocation problem, falling squarely within the realm of
business management.
Finally, to the extent Appellant maintains that claim 36 is patent
eligible because there is no risk of preemption (Reply Br. 3), we note that
preemption is not the sole test of patent-ineligibility. Although “preemption
may signal patent ineligible subject matter, the absence of complete
preemption does not demonstrate patent eligibility.” Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
We conclude that claim 36 recites a commercial interaction, i.e., an
abstract idea, and that the “at least one processor” recited in the claim is no
more than a generic computer component used as a tool to perform the
abstract idea of generating a stand allocation plan. As such, it does not
integrate the recited abstract idea into a practical application. See Alice
Corp., 573 U.S. at 223–24 (“[W]holly generic computer implementation is
not generally the sort of ‘additional featur[e]’ that provides any ‘practical
assurance that the process is more than a drafting effort designed to
monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77)).
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Accordingly, we agree with the Examiner that claim 36 is directed to an
abstract idea.
Step Two of the Mayo/Alice Framework (2019 Revised Guidance, Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 36 is directed to an abstract idea, we next consider under Step 2B of
the 2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 36 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether the additional elements
amount to “significantly more” than the judicial exception itself.
2019 Revised Guidance, 84 Fed. Reg. at 56.
Appellant argues that claim 36 recites additional elements that set
forth the “innovative concept of using ‘variable buffer times that better
match the typical behaviors of [airplanes] with regard to their expected
deviations from their schedule’” (Appeal Br. 17), and that these additional
elements amount to significantly more than an abstract idea because “they
constitute improvements to another technology and specific limitations that
are not well-understood, routine and conventional in the field” (id. at 17).
The difficulty with that argument is that the limitations Appellant identifies
(i.e., limitations (c1) through (c4) recited in claim 36 (see id. at 17–18)) are
part of the abstract idea itself; they are not additional elements to be
considered when determining whether claim 36 includes additional elements
or a combination of elements that is sufficient to amount to significantly
more than the judicial exception.
It could not be clearer from Alice, that under step two of the
Mayo/Alice framework, the elements of each claim are considered both
individually and “as an ordered combination” to determine whether the
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additional elements, i.e., the elements other than the abstract idea itself,
“transform the nature of the claim” into a patent-eligible application.
Alice Corp., 573 U.S. at 217 (internal quotations and citation omitted);
see Mayo, 566 U.S. at 72–73 (requiring that “a process that focuses upon the
use of a natural law also contain other elements or a combination of
elements, sometimes referred to as an ‘inventive concept,’ sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the natural law itself” (emphasis added) (internal citation omitted). In
other words, the inventive concept under step two of the Mayo/Alice test
cannot be the abstract idea itself:
It is clear from Mayo that the “inventive concept” cannot be the
abstract idea itself, and Berkheimer . . . leave[s] untouched the
numerous cases from this court which have held claims ineligible
because the only alleged “inventive concept” is the abstract idea.
Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring in the denial of rehearing en banc); see also BSG Tech LLC v.
BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear
since Alice that a claimed invention’s use of the ineligible concept to which
it is directed cannot supply the inventive concept that renders the invention
‘significantly more’ than that ineligible concept.”) (internal citation
omitted).
The Examiner determined here, and we agree, that the only claim
element beyond the abstract idea is the claimed “at least one processor,” i.e.,
a generic computer component used to perform generic computer functions
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(Final Act. 10) — a determination amply supported by, and fully consistent
with the Specification (see, e.g., Spec. ¶ 64).4
Appellant cannot reasonably contend, nor does Appellant, that there is
a genuine issue of material fact regarding whether the operation of this
component is well-understood, routine, or conventional, where, as here,
there is nothing in the Specification to indicate that the operations recited in
claim 36 require any specialized hardware or inventive computer
components or that the claimed invention is implemented using other than
generic computer components to perform generic computer functions, e.g.,
receiving and processing information. Indeed, the Federal Circuit, in
accordance with Alice, has “repeatedly recognized the absence of a genuine
dispute as to eligibility” where claims have been defended as involving an
inventive concept based “merely on the idea of using existing computers or
the Internet to carry out conventional processes, with no alteration of
computer functionality.” Berkheimer, 890 F.3d at 1373 (Moore, J.,
concurring) (internal citations omitted); see also BSG Tech, 899 F.3d at 1291
(“BSG Tech does not argue that other, non-abstract features of the claimed
inventions, alone or in combination, are not well-understood, routine and

4 The Office’s April 19, 2018 Memorandum to the Examining Corps from
Deputy Commissioner for Patent Examination Policy, Robert W. Bahr,
entitled, “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.),” available at https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.pdf, expressly directs that an examiner may
support the position that an additional element (or combination of elements)
is not well-understood, routine or conventional with “[a] citation to an
express statement in the specification . . . that demonstrates the well-
understood, routine, conventional nature of the additional element(s)” (id.
at 3).
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conventional database structures and activities. Accordingly, the district
court did not err in determining that the asserted claims lack an inventive
concept.”).
Appellant also misapprehends the controlling precedent to the extent
Appellant maintains that the claims are patent eligible, i.e., that the claims
include additional elements that amount to “significantly more” than an
abstract idea, because the claims has been indicated as allowable over the art
of record (Appeal Br. 18–19). Neither a finding of novelty nor a non-
obviousness determination automatically leads to the conclusion that the
claimed subject matter is patent eligible. Although the second step in the
Mayo/Alice framework is termed a search for an “inventive concept,” the
analysis is not an evaluation of novelty or non-obviousness, but rather, a
search for “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 Corp., 573 U.S. at 217–18
(citation omitted). “Groundbreaking, innovative, or even brilliant discovery
does not by itself satisfy the § 101 inquiry.” Ass’n for Molecular Pathology
v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013). A novel and non-
obvious claim directed to a purely abstract idea is, nonetheless, patent
ineligible. See Mayo, 566 U.S. at 90; see also Diehr, 450 U.S. at 188–89
(“The ‘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.”).
We are not persuaded, on the present record, that the Examiner erred
in rejecting claim 36 under 35 U.S.C. § 101. Therefore, we sustain the
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Examiner’s rejection of claim 36, and claims 37–44, which fall with
claim 36.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
36–44 101 Eligibility 36–44

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