ShiftPixy, Inc.

Patent Trials and Appeals Board

Jan 14, 2022

2021002340 (P.T.A.B. Jan. 14, 2022)

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. 15/658,336 07/24/2017 Scott William Absher 1720-001.101 (SPIXY-001A) 7291 22145 7590 01/14/2022 Klein, O''Neill & Singh, LLP 30 CORPORATE PARK SUITE 211 IRVINE, CA 92606 EXAMINER PADOT, TIMOTHY ART UNIT PAPER NUMBER 3683 NOTIFICATION DATE DELIVERY MODE 01/14/2022 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): KOS_Docketing@koslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SCOTT WILLIAM ABSHER, JOHN STEPHEN HOLMES, and TIMOTHY JOHN WALES ____________ Appeal 2021-002340 Application 15/658,336 Technology Center 3600 ____________ Before HUBERT C. LORIN, ANTON W. FETTING, and JOSEPH A. FISCHETTI, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL Appeal 2021-002340 Application 15/658,336 2 STATEMENT OF THE CASE1 Scott William Absher, John Stephen Holmes, and Timothy John Wales (Appellant2) seeks review under 35 U.S.C. § 134 of a final rejection of claims 20−43, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). The Appellant invented a shift worker platform for use by a common employer entity (“CEE”). Specification para. 2. An understanding of the invention can be derived from a reading of exemplary claim 28, which is reproduced below (bracketed matter and some paragraphing added). 28. A method comprising: [1] receiving a first set of available work shifts from a first job provider client of a common employer entity; [2] receiving a second set of available work shifts from a second job provider client of a common employer entity, wherein a first shift of the first available work shifts and a second shift of the second set of available work shifts are for a same time period; [3] receiving a first set of available time period data from a first shifter of a plurality of shifters; [4] receiving a second set of available time period data from a second shifter of a plurality of shifters; 1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal Br.,” filed June 23, 2020) and Reply Brief (“Reply Br.,” filed February 16, 2021), and the Examiner’s Answer (“Ans.,” mailed December 22, 2020), and Final Action (“Final Act.,” mailed January 27, 2020). 2 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 ShiftPixy, Inc. (Appeal Br. 2). Appeal 2021-002340 Application 15/658,336 3 [5] establishing one or more matches between the first set of available work shifts, second set of available work shifts, first set of available time period data, and second set of available time period data; [6] generating a first interactive shifter calendar for the first shifter and a second interactive shifter calendar to both have the first shift and the second shift; [7] providing the first interactive shifter calendar to the first shifter and the second interactive shifter calendar to the second shifter. The Examiner relies upon the following prior art: Name Reference Date Adams US 8,140,366 B2 Mar. 20, 2012 Hughes US 2008/0027783 A1 Jan. 31, 2008 Nudd US 2013/0191145 A1 July 25, 2013 Hull US 2014/0358606 A1 Dec. 4, 2014 Claims 20-43 stand rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. Claims 26, 29, 35, 37, 43 stand rejected under 35 U.S.C. § 112(a) as lacking a supporting written description within the original disclosure.3 Claims 20, 21, 24, 25, 27-30, 33, 34, 36-38, 41, and 42 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Nudd and Hughes. Claims 22, 23, 31, 32, 39, and 40 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Nudd, Hughes, and Adams. 3 A similar rejection of claims 23 and 32 (Final Action 3) was withdrawn (Answer 4). Appeal 2021-002340 Application 15/658,336 4 Claims 26, 35, and 43 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Nudd, Hughes, and Hull. ISSUES The issues of eligible subject matter turn primarily on whether the claims recite more than abstract conceptual advice of results desired. The issues of written description matter turn primarily on whether the Specification supports the claims. The issues of obviousness turn primarily on whether the art describes the claim limitations. FACTS PERTINENT TO THE ISSUES Facts Related to Claim Construction 01. The disclosure contains no lexicographic definition of “silo.” Facts Related to Appellant’s Disclosure 02. The workforce of a given job provider client 120, while employed by the CEE 110, may be “siloed” with that particular job provider client 120. That is, the job provider clients 120 of the CEE 110 may be organized into a plurality of silos 150 (150-1, 150-2, ... , 150n), each silo 150 including a single job provider client 120 and the workforce of that job provider client 120. Spec. para. 41 Facts Related to the Prior Art Nudd 03. Nudd is directed to scheduling systems for use in managing work taking place at various remote premises. Nudd para. 45. Appeal 2021-002340 Application 15/658,336 5 04. Nudd describes storing shift records. A shift record may define a workers activity for all or a portion of a day's work. A shift record may also define work provided in a time interval on behalf of a single recipient. The shift record may include a client identifier field identifying the person or entity that is contracting for the provided work. The shift record may additionally include a date field defining a date and/or time interval during which work is to be performed. The shift record may also include a worker identifier field and a recipient identifier field. Nudd para. 63. 05. Nudd describes recipient records for individual recipients. A recipient record may include a recipient identifier (e.g., name or ID number), care needs of the recipient, a task schedule (and/or shift schedule) describing tasks scheduled on behalf of the recipient, a task history and/or shift history recording tasks performed on behalf of the recipient. Nudd para. 69. 06. Nudd describes family members making shift schedule changes through a family portal. Nudd para. 215-220. Hughes 07. Hughes is directed to managing the relationship between the workers and the hiring entities. Hughes para. 3. 08. Hughes describes information about a shift (date, time, place, duration, etc.) being presented to the worker if a worker has been assigned to a shift, when she selects a shift by, for example, clicking on a portion of a calendar grid representing the worker’s weekly or monthly schedule. Hughes para. 73. Appeal 2021-002340 Application 15/658,336 6 09. Hughes describes a hiring entity viewing the status of the shifts they have entered. In one example, the shifts are grouped based on status, e.g., shifts requiring the hiring entity to perform a task such as accept or reject a worker who posted for a shift, and shifts still awaiting responses from workers. Hughes para. 109. 10. ANALYSIS Claims 20−43 rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more STEP 14 Claim 28, as a method claim, nominally recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101. The issue before us is whether it is directed to a judicial exception without significantly more. STEP 2 The Supreme Court: set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, . . . determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us? To answer that question, . . . consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent- eligible application. [The Court] described step two of this analysis as a search for an “‘inventive concept’”-i.e., an 4 For continuity of analysis, we adopt the steps nomenclature from 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Appeal 2021-002340 Application 15/658,336 7 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. v. CLS Bank Int’l, 573 U.S. 208, 217-18 (2014) (citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66 (2012)). To perform this test, we must first determine what the claims are directed to. This begins by determining whether the claims recite one of the judicial exceptions (a law of nature, a natural phenomenon, or an abstract idea). Then, if the claims recite a judicial exception, determining whether the claims at issue are directed to the recited judicial exception, or whether the recited judicial exception is integrated into a practical application of that exception, i.e., that the claims “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.” Revised Guidance, 84 Fed. Reg. at 54. If the claims are directed to a judicial exception, then finally determining whether the claims provide an inventive concept because the additional elements recited in the claims provide significantly more than the recited judicial exception. STEP 2A Prong 1 At a high level, and for our preliminary analysis, we note that method claim 28 recites receiving work shift and time period data, matching data, and generating and providing calendar data. Matching data is analyzing data. Providing data is transmitting data. Thus, claim 28 recites receiving, analyzing, generating, and transmitting data. None of the limitations recites technological implementation details for any of these steps, but instead recite only results desired by any and all possible means. Appeal 2021-002340 Application 15/658,336 8 From this we see that claim 28 does not recite the judicial exceptions of either natural phenomena or laws of nature. Under Supreme Court precedent, claims directed purely to an abstract idea are patent in-eligible. As set forth in the Revised Guidance, which extracts and synthesizes key concepts identified by the courts, abstract ideas include (1) mathematical concepts5, (2) certain methods of organizing human activity6, and (3) mental processes7. Among those certain methods of organizing human activity listed in the Revised Guidance are commercial or legal interactions. Like those concepts, claim 28 recites the concept of managing employees. Specifically, claim 28 recites operations that would ordinarily take place in advising one to create work shift calendars based on employee and time period availability. The advice to create work shift calendars based on employee and time period availability involves creating shift calendars, which is an employee management act, and obtaining work shifts, which is an act ordinarily performed in the stream of commercial employment. For example, claim 28 recites “providing the first interactive shifter calendar,” which is an activity that would take place whenever one is 5 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972); Bilski v. Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). 6 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir. 2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160-61 (Fed. Cir. 2018). 7 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371-72 (Fed. Cir. 2011); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Appeal 2021-002340 Application 15/658,336 9 managing employees. Similarly, claim 1 recites “receiving a first set of available work shifts,” which is also characteristic of managing employees. The Examiner determines the claims to be directed to the recited limitations. Final Act. 5. The preamble to claim 28 does not recite what it is to achieve, but the steps in claim 28 result in managing employees by creating work shift calendars based on employee and time period availability absent any technological mechanism other than a conventional computer for doing so. As to the specific limitations, limitations 1-4 recite receiving data. Limitations 5-7 recite generic and conventional receiving, analyzing, generating, and transmitting of employee shift data, which advise one to apply generic functions to get to these results. The limitations thus recite advice for creating work shift calendars based on employee and time period availability. To advocate creating work shift calendars based on employee and time period availability is conceptual advice for results desired and not technological operations. The Specification at paragraph 2 describes the invention as relating to a shift worker platform for use by a common employer entity (CEE"). Thus, all this intrinsic evidence shows that claim 28 recites managing employees. This is consistent with the Examiner’s determination. This in turn is an example of commercial or legal interactions as a certain method of organizing human activity because managing employees is organizing employee coordination. The concept of managing employees by creating work shift calendars based on employee and time period availability is one idea for such coordination. The steps recited in claim 28 are part of how this might conceptually be premised. Appeal 2021-002340 Application 15/658,336 10 Our reviewing court has found claims to be directed to abstract ideas when they recited similar subject matter. Digitech Image Techs, LLC v. Elecs for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (taking two data sets and combining them into a single data set). Alternately this is an example of concepts performed in the human mind as mental processes because the steps of receiving, analyzing, generating, and transmitting data mimic human thought processes of observation, evaluation, judgment, and opinion, perhaps with paper and pencil, where the data interpretation is perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016). Claim 28, unlike the claims found non-abstract in prior cases, uses generic computer technology to perform data reception, analysis, generation, and transmission and does not recite an improvement to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15 (Fed. Cir. 2016) (finding claims not abstract because they “focused on a specific asserted improvement in computer animation”). As such, claim 28 recites receiving, analyzing, generating, and transmitting data, and not a technological implementation or application of that idea. From this we conclude that at least to this degree, claim 28 recites managing employees by creating work shift calendars based on employee and time period availability, which is a commercial and legal interaction, one of certain methods of organizing human activity identified in the Revised Guidance, and, thus, an abstract idea. Appeal 2021-002340 Application 15/658,336 11 STEP 2A Prong 2 The next issue is whether claim 28 not only recites, but is more precisely directed to this concept itself or whether it is instead directed to some technological implementation or application of, or improvement to, this concept i.e. integrated into a practical application.8 At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. At some level, “all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. “[A]pplication[s]” of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Accordingly, in applying the § 101 exception, we must distinguish between patents that claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those that integrate the building blocks into something more. Alice, 573 U.S. at 217 (citations omitted). Taking the claim elements separately, the operation performed by the computer at each step of the process is expressed purely in terms of results, devoid of implementation details. Steps 1-4 are pure data gathering steps. Limitations describing the nature of the data do not alter this. Step 6 recites basic conventional data operations such as generating, updating, and storing data. Step 7 is insignificant post solution activity, such as storing, transmitting, or displaying the results. Step 5 recites generic computer processing expressed in terms of results desired by any and all possible means and so present no more than conceptual advice. All purported inventive aspects reside in how the data is interpreted and the results desired, 8 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S. 175 (1981). Appeal 2021-002340 Application 15/658,336 12 and not in how the process physically enforces such a data interpretation or in how the processing technologically achieves those results. Viewed as a whole, Appellant’s claim 28 simply recites the concept of managing employees by creating work shift calendars based on employee and time period availability as performed by a generic computer. This is no more than conceptual advice on the parameters for this concept and the generic computer processes necessary to process those parameters, and do not recite any particular implementation. Claim 28 does not, for example, purport to improve the functioning of the computer itself. Nor does it effect an improvement in any other technology or technical field. The 32 pages of specification only spell out different generic equipment9 and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of managing employees by creating work shift calendars based on employee and time period availability under different scenarios. They do not describe any particular improvement in the manner a computer functions. Instead, claim 28 at issue amounts to nothing significantly more than an instruction to apply managing employees by creating work shift calendars based on employee and time period availability using some unspecified, generic computer. Under our precedents, that is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225-26. None of the limitations reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field, 9 The Specification describes computers, tablets, mobile phones. Spec. para. 42. Appeal 2021-002340 Application 15/658,336 13 applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effects a transformation or reduction of a particular article to a different state or thing, or applies or uses the judicial exception in some other meaningful way beyond generally linking 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. We conclude that claim 28 is directed to achieving the result of managing employees by advising one to create work shift calendars based on employee and time period availability, as distinguished from a technological improvement for achieving or applying that result. This amounts to commercial or legal interactions, which fall within certain methods of organizing human activity that constitute abstract ideas. The claim does not integrate the judicial exception into a practical application. STEP 2B The next issue is whether claim 28 provides an inventive concept because the additional elements recited in the claim provide significantly more than the recited judicial exception. The introduction of a computer into the claims does not generally alter the analysis at Mayo step two: the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Stating an abstract idea while adding the words “apply it with a Appeal 2021-002340 Application 15/658,336 14 computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to “implement[t]” an abstract idea “on . . . a computer,” that addition cannot impart patent eligibility. This conclusion accords with the preemption concern that undergirds our § 101 jurisprudence. Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of “additional feature[e]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Alice, 573 U.S. at 223-24 (citations omitted). “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea [] on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the function performed by the computer at each step of the process is purely conventional. Using a computer for receiving, analyzing, generating, and transmitting data amounts to electronic data query and retrieval-one of the most basic functions of a computer. All of these computer functions are generic, routine, conventional computer activities that are performed only for their conventional uses. See Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). See also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any general purpose computer without special programming”). None of these activities is used in some unconventional manner nor does any produce some unexpected result. Appellant does not contend it invented any of these activities. In short, each step does no more than require a generic computer to perform generic computer functions. As to the data operated upon, “even Appeal 2021-002340 Application 15/658,336 15 if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018). Considered as an ordered combination, the computer components of Appellant’s claim 28 add nothing that is not already present when the steps are considered separately. The sequence of data reception-analysis- generation-transmission is equally generic and conventional. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis, modification, generation, display, and transmission), Two-Way Media Ltd. v. Comcast Cable Communications, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling, and monitoring). The ordering of the steps is therefore ordinary and conventional. We conclude that claim 28 does not provide an inventive concept because the additional elements recited in the claim do not provide significantly more than the recited judicial exception. REMAINING CLAIMS Claim 28 is representative. The remaining method claims merely describe process parameters. We conclude that the method claims at issue are directed to a patent-ineligible concept itself, and not to the practical application of that concept. Appeal 2021-002340 Application 15/658,336 16 As to the structural claims, they: are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] ... against” interpreting § 101“in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any particular machine. LEGAL CONCLUSION From these determinations we further determine that the claims do not recite an improvement to the functioning of the computer itself or to any other technology or technical field, a particular machine, a particular transformation, or other meaningful limitations. From this we conclude the claims are directed to the judicial exception of the abstract idea of certain methods of organizing human activity as exemplified by the commercial and legal interaction of managing employees by advising one to create work shift calendars based on employee and time period availability, without significantly more. APPELLANT’S ARGUMENTS As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s determinations and analysis from Final Action 4-8 and Answer 5-7 and reach similar legal conclusions. We now turn to the Reply Brief. We are not persuaded by Appellant's argument that “Specification describes a physical system unit 810 comprising the claimed server 160 having a physical processor and system memory.” Reply Br. 5. Reciting generic computer components cannot confer eligibility. “When claims like the Asserted Claims are directed to an abstract idea and merely require Appeal 2021-002340 Application 15/658,336 17 generic computer implementation, they do not move into section 101 eligibility territory.” Smart Sys. Innovations, LLC v. Chi. Transit Auth., 873 F.3d 1364, 1374 (Fed. Cir. 2017) (citations and internal quotations omitted). We are not persuaded by Appellant's argument that: the claims are directed to more than merely managing behavior between people. . . . [G]enerating different interactive calendars specific to multiple disparate job providers on a server, which is then presented to end-user job provider 1/0 interfaces and shifter 1/0 interfaces is directed to an inventive concept and does not merely recite an abstract idea of managing behavior or relationships or interactions between people. This is a practical application of generating customized interactive calendars for use with different interactive user interfaces of a common shifter matching schema and system. The claimed systems and methods solve the technical problem of coordinating a plurality of shifters and a plurality of job providers using a common shifter matching system by pre-generating customized interactive calendars for different shifter clients and job provider clients. Reply Br. 5-6. Appellant conflates the two prongs of Step 2A. The first prong looks to what the claim is directed to. As we show above, claim 28 is directed to the commercial and legal interaction of managing employees by advising one to create work shift calendars based on employee and time period availability. Appellant’s arguments are more particularly oriented to Prong 2, which then looks at whether the claim achieves what it is directed to by some technological implementation. As we show above, the claim does not. In particular, we disagree with Appellant’s contention that coordinating a plurality of shifters and a plurality of job providers using a common shifter matching system by pre-generating customized interactive calendars for different shifter clients and job provider clients is a technical Appeal 2021-002340 Application 15/658,336 18 problem. Rather it is an administrative problem of coordinating employee management. Again, no technological implementation details are recited. At that level of generality, the claims do no more than describe a desired function or outcome, without providing any limiting detail that confines the claim to a particular solution to an identified problem. The purely functional nature of the claim confirms that it is directed to an abstract idea, not to a concrete embodiment of that idea. Affinity Labs of Texas, LLC v. Amazon.com Inc., 838 F.3d 1266, 1269 (Fed. Cir. 2016). We are not persuaded by Appellant’s argument that the claims contain an inventive concept that is also found in the specific ordered combination of the limitations, similar to the Federal Circuit’s findings in BASCOM (BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)). Reply Br. 5. Initially, we remind Appellant that BASCOM did not find claims eligible on the substance, but rather that the Appellees did not provide sufficient evidence to support a 12(b)(6) motion to dismiss in which facts are presumed in the non-movant’s favor. The key fact in BASCOM was the presence of a structural change in “installation of a filtering tool at a specific location, remote from the end- users, with customizable filtering features specific to each end user. This design gives the filtering tool both the benefits of a filter on a local computer and the benefits of a filter on the ISP server.” BASCOM, 827 F.3d at 1350. The instant claims have no analogous structural benefit. Appellant further argues that the asserted claims are akin to the claims found patent-eligible in DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245 (Fed. Cir. 2014). Reply Br. 6. In DDR Holdings, the Court evaluated the eligibility of claims “address[ing] the problem of Appeal 2021-002340 Application 15/658,336 19 retaining website visitors that, if adhering to the routine, conventional functioning of Internet hyperlink protocol, would be instantly transported away from a host’s website after ‘clicking’ on an advertisement and activating a hyperlink.” Id. at 1257. There, the Court found that the claims were patent eligible because they transformed the manner in which a hyperlink typically functions to resolve a problem that had no “pre-Internet analog.” Id. at 1258. The Court cautioned, however, “that not all claims purporting to address Internet-centric challenges are eligible for patent.” Id. For example, in DDR Holdings the Court distinguished the patent-eligible claims at issue from claims found patent-ineligible in Ultramercial. See id. at 1258-59 (citing Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-16 (Fed. Cir. 2014)). As noted there, the Ultramercial claims were “directed to a specific method of advertising and content distribution that was previously unknown and never employed on the Internet before.” Id. at 1258 (quoting Ultramercial, 772 F.3d at 715-16). Nevertheless, those claims were patent ineligible because they “merely recite[d] the abstract idea of ‘offering media content in exchange for viewing an advertisement,’ along with ‘routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet.’” Id. Appellant’s asserted claims are analogous to claims found ineligible in Ultramercial and distinct from claims found eligible in DDR Holdings. The ineligible claims in Ultramercial recited “providing [a] media product for sale at an Internet website;” “restricting general public access to said media product;” “receiving from the consumer a request to view [a] Appeal 2021-002340 Application 15/658,336 20 sponsor message;” and “if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query.” 772 F.3d at 712. Similarly, Appellant’s asserted claims recite receiving, analyzing, generating, and transmitting data. This is precisely the type of Internet activity found ineligible in Ultramercial. Appellant argues dependent claims 23, 29, 32, 37, and 40 for the first time in the Reply Brief at pages 6 and 7. As these claims were not argued in time for the Examiner to respond in the Answer, these arguments are untimely and therefore waived here. Claims 26, 29, 35, 37, and 43 rejected under 35 U.S.C. § 112(a) as lacking a supporting written description within the original disclosure We are persuaded by Appellant’s arguments that the Specification adequately supports these claims. Reply Br. 2-5. The portions of the Specification Appellant cites provide sufficient support for the claims as drafted. Claims 20, 21, 24, 25, 27-30, 33, 34, 36-38, 41, and 42 rejected under 35 U.S.C. § 103(a) as unpatentable over Nudd and Hughes We are not persuaded by Appellant's argument that “the Nudd prior art reference fails to teach, suggest, or make obvious the step of ‘receiving a first set of available work shifts from a first job provider client of a common employer entity.’” Reply Br. 8. Appellant contends that Nudd does not describe both a job provider client and a common employer entity. The problem for Appellant is this limitation is very broad. Nudd uses an Appeal 2021-002340 Application 15/658,336 21 example of an employer using the services of independent service providers to provide health services to health care recipients. The families of those recipients have a portal which can be used to create and modify shift schedules, and of course the care givers themselves can enter and modify their shift schedule availabilities. Such families provide jobs to the independent care givers, and so fall within the scope of job provider clients. As the families are clients of the employer, they are “of a common employer entity.” The limitation does not characterize or limit the nature of how this “of” occurs. As to separately argued claims 24, 33, and 41, and their dependent claims 25, 26, 34, 35, 42, and 43, we are persuaded by Appellant's argument that Nudd fails to show each silo including a single job provider client and the workforce of that job provider client, as the term “silo” is used in the Specification. FF 02. Claims 22, 23, 31, 32, 39, and 40 rejected under 35 U.S.C. § 103(a) as unpatentable over Nudd, Hughes, and Adams These claims are not separately argued. Claims 26, 35, and 43 rejected under 35 U.S.C. § 103(a) as unpatentable over Nudd, Hughes, and Hull These claims depend from claims 24, 33, and 41, whose arguments we found persuasive above. Appeal 2021-002340 Application 15/658,336 22 CONCLUSIONS OF LAW The rejection of claims 20−43 under 35 U.S.C. § 101 as directed to a judicial exception without significantly more is proper. The rejection of claims 26, 29, 35, 37, and 43 under 35 U.S.C. § 112(a) as lacking a supporting written description within the original disclosure is improper. The rejection of claims 20, 21, 27−30, and 36−38 under 35 U.S.C. § 103(a) as unpatentable over Nudd and Hughes is proper. The rejection of claims 24, 25, 33, 34, 41, and 42 under 35 U.S.C. § 103(a) as unpatentable over Nudd and Hughes is improper. The rejection of claims 22, 23, 31, 32, 39, and 40 under 35 U.S.C. § 103(a) as unpatentable over Nudd, Hughes, and Adams is proper. The rejection of claims 26, 35, and 43 under 35 U.S.C. § 103(a) as unpatentable over Nudd, Hughes, and Hull is improper. Appeal 2021-002340 Application 15/658,336 23 CONCLUSION The rejection of claims 20−43 is affirmed. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 20-43 101 Eligibility 20-43 26, 29, 35, 37, 43 112(a) Written Description 26, 29, 35, 37, 43 20, 21, 24, 25, 27−30, 33, 34, 36−38, 41, 42 103 Nudd, Hughes 20, 21, 27-30, 36-38 24, 25, 33, 34, 41, 42 22, 23, 31, 32, 39, 40 103 Nudd, Hughes, Adams 22, 23, 31, 32, 39, 40 26, 35, 43 103 Nudd, Hughes, Hull 26, 35, 43 Overall Outcome 20-43 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) (2011). AFFIRMED