Andrew D. Flockhart et al.

Patent Trials and Appeals Board

Aug 28, 2019

12022850 - (D) (P.T.A.B. Aug. 28, 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.
12/022,850 01/30/2008 Andrew D. Flockhart 4366-448-DIV 6377
48500 7590 08/28/2019
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
CHONG CRUZ, NADJA N
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
08/28/2019 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANDREW D. FLOCKHART, GARY EDWARD OLMSTED, and
ROBERT C. STEINER

____________

Appeal 2018-006078
Application 12/022,850
Technology Center 3600
____________

Before ST. JOHN COURTENAY III, JOYCE CRAIG, and
CATHERINE SHAING, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge
ST. JOHN COURTENAY III.

Opinion Dissenting-in-Part by Administrative Patent Judge
CATHERINE SHAING.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 25, 27, 28, 40–42, 44, and 57–69, which are all the claims pending in
this application.1 Claims 1–24, 26, 29–39, 43, and 45–56 are canceled. We
have jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We affirm.

1 The real party in interest is Avaya Technology Corp. App. Br. 2.
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STATEMENT OF THE CASE2
Disclosed embodiments of Appellants’ invention relate to “servicing a
contactor in a contact center and specifically to allocating work items among
contact center resources.” Spec. 1, ll. 10–11.

Illustrative Claim
25. A method comprising:

receiving, by a microprocessor, via one or more networks, a
plurality of work items from one or more telecommunication
devices;

generating, by the microprocessor, at least one work item
grouping table that comprises a plurality of differing work item
attributes describing a plurality of identified pending work
items;

enqueuing, by the microprocessor, in a contact center queue, the
identified plurality of pending work items, and wherein the
plurality of identified pending work items comprise at least
two of a circuit switched voice call, a packet switched voice
call, a video call, a web chat, an instant message, and an email;

determining, by the microprocessor, that the plurality of
identified pending work items are related to each other and
comprise at least a real-time contact and a non-real-time
contact and

wherein a selected work item attribute from the work item
grouping table comprises at least one of a customer identity, an
intent, a media type, a subject, and a transaction identifier that

2 We herein refer to the Final Office Action, mailed Nov. 13, 2017 (“Final
Act.”); Appeal Brief, filed Feb. 9, 2018 (“App. Br.”); Examiner’s Answer,
mailed Apr. 19, 2018 (“Ans.”); and the Reply Brief, filed May 25, 2018
(“Reply Br.”).
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is used to determine that the plurality of identified pending
work items are related to each other; and

routing, by the microprocessor, the plurality of identified
pending work items from the contact center queue to an agent
communication device simultaneously based on the plurality of
identified pending work items being related to each other.

App. Br. 18, Claims Appendix (abstract idea, i.e., the mental processes of
“generating” and “determining” are emphasized).

Rejections
A. Claims 25, 27, 28, 40–42, 44, and 57–69 are rejected on the ground of
nonstatutory obviousness-type double patenting (OTDP) as being
unpatentable over claims 1–37 of U.S. Patent No. US 7,949,121 B1,
iss. May 24, 2011, to Flockhart et al. Final Act. 3.
B. Claims 25, 27, 28, 40–42, 44, and 57–69 are rejected under 35 U.S.C.
§ 101 as being directed to a judicial exception, without significantly
more. Final Act. 4.
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(1)(iv).
We have reviewed Appellants’ arguments in the Briefs, the
Examiner’s rejections, and the Examiner’s responses to Appellants’
arguments. However, Appellants do not proffer sufficient argument or
evidence to persuade us that the Examiner erred, for the reasons discussed
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below. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). In our analysis below, we highlight and address specific
findings and arguments for emphasis.

Rejection A under
Non-Statutory Obviousness Type Double-Patenting

Appellants advance no arguments regarding claims 25, 27, 28, 40–42,
44, and 57–69, as rejected by the Examiner under the non-statutory OTDP
Rejection A. Arguments not made are waived. See 37 C.F.R.
§ 41.37(c)(1)(iv). Accordingly, we pro forma sustain the Examiner’s
Rejection A of claims 25, 27, 28, 40–42, 44, and 57–69 on the ground of
non-statutory OTDP.

Rejection B of Claims 25, 27, 28, 40–42, 44, and 57–69
under 35 U.S.C. § 101

Issue: Under 35 U.S.C. § 101, did the Examiner err by rejecting
claims 25, 27, 28, 40–42, 44, and 57–69, as being directed to a judicial
exception, without significantly more?
Principles of Law — 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.
However, the Supreme ‘Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “‘[L]aws of nature, natural phenomena, and
abstract ideas’ are not patentable.” Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 70 (2012) (quoting Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
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In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–18
(2014) (citing Mayo, 566 U.S. at 75–77). In accordance with that
framework, we first determine what concept the claim is “directed to.” See
Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.” (emphasis omitted)); see also Bilski v. Kappos, 561 U.S.
593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the
basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding of rubber products” (Diehr, 450 U.S. at 193); “tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores”
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. (15 How.) 252, 267–68
(1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane
v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
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products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.

Subject Matter Eligibility — 2019 Revised Guidance
The USPTO recently published revised guidance on the application of
35 U.S.C. § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). This
new guidance is applied in this Opinion. Under the 2019 Revised Guidance,
we first look to whether the claim recites:
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(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, mental processes,
or certain methods of organizing human activity such as a
fundamental economic practice or managing personal behavior
or relationships or interactions between people);3 and
(2) additional elements that integrate the judicial
exception into a practical application (see Manual of Patent
Examining Procedure (“MPEP”) §§ 2106.05(a)–(c), (e)–(h)).4 5
See 2019 Revised Guidance, 84 Fed. Reg. at 51–52, 55.
A claim that integrates a judicial exception into a practical application
applies, relies on, or uses the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception. See 2019
Revised Guidance, 84 Fed. Reg. at 54. When the judicial exception is so
integrated, then the claim is not directed to a judicial exception and is patent
eligible under 35 U.S.C. § 101. Id.
Only if a claim: (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then evaluate
whether the claim provides an inventive concept. See 2019 Revised
Guidance, 84 Fed. Reg. at 56; Alice, 573 U.S. at 217–18.
For example, we look to whether the claim:
(3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional”

3 Referred to as “Step 2A, Prong One” in the Revised Guidance (hereinafter
“Step 2A, prong 1”).
4 Referred to as “Step 2A, Prong Two” in the Revised Guidance (hereinafter
“Step 2A, prong 2”).

5 All references to the MPEP are to the Ninth Edition, Revision 08.2017
(rev. Jan. 2018).
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in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.6
See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Because there is no single definition of an “abstract idea” under Alice
step 1, the PTO has recently synthesized, for purposes of clarity,
predictability, and consistency, key concepts identified by the courts as
abstract ideas to explain that the “abstract idea” exception includes the
following three groupings:
1. Mathematical concepts—mathematical relationships,
mathematical formulas or equations, mathematical
calculations;
2. Mental processes— concepts performed in the human mind
(including an observation, evaluation, judgment, opinion);
and
3. Certain methods of organizing human activity—fundamental
economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions
(including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior
or relationships or interactions between people (including
social activities, teaching, and following rules or
instructions).
See 2019 Revised Guidance, 84 Fed. Reg. at 52.
According to the 2019 Revised Guidance, “[c]laims that do not recite
[subject] matter that falls within these enumerated groupings of abstract
ideas should not be treated as reciting abstract ideas,” except in rare

6 Items (3) and (4) continue to be collectively referred to as “Step 2B” of the
Supreme Court’s two-step framework, described in Mayo and Alice.
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circumstances. Even if the claims recite any one of these three groupings of
abstract ideas, these claims are still not “directed to” a judicial exception
(abstract idea), and thus are patent eligible, if “the claim as a whole
integrates the recited judicial exception into a practical application of that
exception.” See 2019 Revised Guidance, 84 Fed. Reg. at 53.
For example, limitations that are indicative of integration into a
practical application include:
1. Improvements to the functioning of a computer, or to any
other technology or technical field — see MPEP
§ 2106.05(a);
2. Applying the judicial exception with, or by use of, a
particular machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular
article to a different state or thing — see MPEP
§ 2106.05(c); and
4. Applying or using 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
— see MPEP § 2106.05(e).
In contrast, limitations that are not indicative of integration into a
practical application include:
1. Adding the words “apply it” (or an equivalent) with the
judicial exception, or merely include instructions to
implement an abstract idea on a computer, or merely uses
a computer as a tool to perform an abstract idea — see
MPEP § 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use
— see MPEP 2106.05(h).
See 2019 Revised Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
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2019 Revised Guidance, Step 2A, Prong One 7
The Judicial Exception
Under the 2019 Revised Guidance, we begin our analysis by first
considering whether the claims recite any judicial exceptions, including
certain groupings of abstract ideas, in particular: (a) mathematical concepts,
(b) mental steps, and (c) certain methods of organizing human activities.
The Examiner concludes claims 25, 27, 28, 40–42, 44, and 57–69
recite: “an abstract idea of routing/allocating a plurality of identified work
items that are related to each other to an agent.” Final Act. 4.
The Examiner analogizes the claims on appeal to the following case
authorities:
[The] abstract idea is similar concepts of an idea of itself (e.g.,
collecting and comparing known information Classen,
collecting information, analyzing it, and displaying certain
results of the collection and analysis Electric Power Group) and
concept related to certain methods of organizing human activity
(e.g., collecting information, analyzing it, and displaying
certain results of the collection and analysis Electric Power
Group, filtering content Bascom, tailoring content based on
the information of the user Int. Ventures v. Cap One Bank ’382
patent) that have been found by the courts to be abstract ideas
based on the August 2017 Update QRS. The concept described
in claims 25, 57 and 64 is not meaningfully different than an
idea of itself (collecting, analyzing information, displaying the
analysis) and certain methods of organizing human activity
(filtering content) found by the courts to be abstract ideas.

7 Throughout this opinion, we give the claim limitations the broadest
reasonable interpretation consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
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Final Act. 4.8
Turning to the claims, we conclude representative independent claim
25 recites the following identified types or categories of abstract ideas, as
depicted below in TABLE ONE:
TABLE ONE
Independent Claim 25 Revised 2019 Guidance
[a] A method comprising:

A method (process) is a statutory
subject matter class. See 35 U.S.C.
§ 101 (“Whoever invents or
discovers any new and useful
process, machine, manufacture, or
composition of matter, or any new
and useful improvement thereof,
may obtain a patent therefor, subject
to the conditions and requirements of
this title.”).

See also 35 U.S.C. § 100(b)(“The
term “process” means process, art, or
method, and includes a new use of a
known process, machine,
manufacture, composition of matter,
or material.”).

[b] receiving, by a microprocessor,
via one or more networks, a
plurality of work items from one or
more telecommunication devices;
Insignificant extra-solution activity
to the judicial exception — see
MPEP § 2106.05(g); e.g., “mere data

8 See Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067
(Fed. Cir. 2011); Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350,
1353–54 (Fed. Cir. 2016); BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016); and Intellectual Ventures I
LLC v. Capital One Financial Corporation, 850 F.3d 1332 (Fed. Cir. 2017).

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gathering.” See Rev. Guidance. 55
n.31.

[c] generating, by the
microprocessor, at least one
work item grouping table that
comprises a plurality of
differing work item attributes
describing a plurality of
identified pending work
items;

“generating . . . a work item
grouping table” is an abstract idea
that could be performed alternatively
as a mental process. See Rev.
Guidance 52.
[d] enqueuing, by the
microprocessor, in a contact center
queue, the identified plurality of
pending work items,
Adding insignificant extra-solution
activity to the judicial exception —
see MPEP § 2106.05(g); i.e., mere
data gathering for storage in the
contact center queue. See Rev.
Guidance 55 n.31.

[e] and wherein the plurality of
identified pending work items
comprise at least two of a circuit
switched voice call, a packet
switched voice call, a video call, a
web chat, an instant message, and
an email;

Non-Functional Descriptive Material
(NFDM) intended for human
perception (i.e., the work item that
may be a voice or video call, a web
chat, an instant message (IM), or an
email).

“[W]here the claim as a whole is
directed to conveying a message or
meaning to a human reader
independent of the intended
computer system, and/or the
computer-readable medium merely
serves as a support for information
or data, no functional relationship
exists.” MPEP § 2111.05 (III.) (9th
Ed., Rev. 08.2017, Last Revised Jan.
2018).
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[f] determining, by the
microprocessor, that the plurality of
identified pending work items are
related to each other and comprise
at least a real-time contact and a
non-real-time contact
Abstract idea, “determining” can be
performed alternatively as a mental
process. See Rev. Guidance 52.
[g] and wherein a selected work
item attribute from the work item
grouping table comprises at least
one of a customer identity, an
intent, a media type, a subject, and a
transaction identifier that is used to
determine that the plurality of
identified pending work items are
related to each other;

Abstract idea, i.e., “to determine”
can be performed alternatively as a
mental process. See Rev. Guidance
52.
[h] routing, by the microprocessor,
the plurality of identified pending
work items from the contact center
queue to an agent communication
device simultaneously based on the
plurality of identified pending work
items being related to each other.

Insignificant post-solution activity.
Rev. Guidance 55 n.31; see also
MPEP § 2106.05(g).

In particular, we conclude the steps of “generating” and “determining”
could be performed alternatively as mental processes under the Revised
Guidance, as mapped above in Table 1. See 2019 Revised Guidance, 84
Fed. Reg. at 52.
If a method can be performed by human thought alone, or by a human
using pen and paper, it is merely an abstract idea and is not patent eligible
under § 101. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1372–73 (Fed. Cir. 2011); “That purely mental processes can be
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unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.” CyberSource, 654
F.3d at 1375. See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1146–47 (Fed. Cir. 2016).
We note the additional non-abstract limitations of generic computer
components: “a microprocessor,” “one or more networks,” “one or more
telecommunication devices,” and “an agent communication device” (claim
25); “a memory,” “a microprocessor,” “one or more networks,” “one or
more telecommunication devices” and “an agent communication device”
(independent claim 57); “a server,” “one or more networks,” “one or more
telecommunication devices,” and “an agent communication device”
(independent claim 64). See 2019 Revised Guidance, 84 Fed. Reg. at 52.
Moreover, we emphasize the supporting description of generic
computer and network components in the Specification, for example:
It should be noted that the invention does not require any
particular type of information transport medium between
switch or server and first and second telecommunication
devices, i.e., the invention may be implemented with any
desired type of transport medium as well as combinations of
different types of transport medium.
The packet-switched network 162 can be any data and/or
distributed processing network, such as the Internet. The
network 162 typically includes proxies (not shown), registrars
(not shown); and routers (not shown) for managing packet
flows.
Spec. 8, ll. 13–19 (emphasis added).
We note McRO, Inc. v. Bandai Namco Games America Inc. (837 F.3d
1299 (Fed. Cir. 2016)), guides: “[t]he abstract idea exception prevents
patenting a result where ‘it matters not by what process or machinery the
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result is accomplished.’” 837 F.3d at 1312 (quoting O’Reilly v. Morse, 56
U.S. 62, 113 (1854)) (emphasis added).
Remaining independent claims 57 and 64 recite similar language of
commensurate scope that we conclude also falls into the same abstract idea
category mapped above in Table 1 for independent method claim 25.
Because we conclude all claims on appeal recite an abstract idea, as
identified above, under Step 2A, Prong One, we proceed to Step 2A, Prong
Two.
2019 Revised Guidance, Step 2A, Prong Two
Integration of the Judicial Exception into a Practical Application
Pursuant to the 2019 Revised Guidance, we consider whether there
are additional elements set forth in the claims that integrate the judicial
exception into a practical application. See 2019 Revised Guidance, 84 Fed.
Reg. at 54–55. We have identified supra the additional non-abstract
elements recited in independent claim 25, e.g., the generic “microprocessor
and “one or more networks.”
Under MPEP § 2106.05(a) (“Improvements to the Functioning of a
Computer or to Any Other Technology or Technical Field”), Appellants
contend the claims amount to significantly more than an abstract idea. In
particular, Appellants urge: “[T]he Examiner is ignoring that the
determination is being used in a novel way [] of routing electronic
communications on a network, which cannot be implemented abstractly.”
Appeal Br. 14 (emphasis added). Appellants note:
As discussed in the Appeal Brief, the Examiner has withdrawn
the 35 U.S.C. §103 rejections for claims 25, 57, and 64. As
discussed in the Appeal Brief, the prior art does not discuss
simultaneously routing electronic communications from a
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contact queue to an agent terminal in the manner recited in
claims 25, 57, and 64. One of skill in the art would recognize
that the electronic communications typically do not arrive
simultaneously in the contact center queue, but are now routed
simultaneously to the agent communication device. Moreover,
the electronic communications can use different media types.
Existing systems do not support simultaneous routing of
disparate media types. This is a technological improvement
over existing routing systems.
Reply Br. 6 (emphasis added).
However, any analysis based upon obviousness is irrelevant to our
analysis for patent eligibility under 35 U.S.C. § 101. See Return Mail, Inc.
v. U.S. Postal Service, 868 F.3d 1350, 1370 (Fed. Cir. 2017). Although the
second step in the Alice/Mayo test is a search for an “inventive concept,” the
analysis is not directed to novelty or nonobviousness, but rather searches for
elements sufficient to ensure that the claimed invention is directed to more
than a patent ineligible concept, such as an abstract idea. See Alice, 573 U.S.
at 217–18. “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); see also Diamond v.
Diehr, 450 U.S. 175, 188–89 (1981) (“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.”); Affinity Labs of Texas, LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1263 n.3 (Fed. Cir. 2016) (noting that an
eligibility finding does not turn on the novelty of using a user-downloadable
application for the particular purpose recited in the claims). Moreover, an
improved abstract idea is still an abstract idea. See Mayo, 566 U.S. at 90
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(holding that a novel and nonobvious claim directed to a purely abstract idea
is, nonetheless patent-ineligible).
Appellants additionally argue that the “contact
center/methods/systems of claims 25, 57, and 64 are similar to the claims in
Enfish v. Microsoft Corporation (Federal Circuit, 2016).” App. Br. 17.
In support, Appellants urge:
[C]laims 25, 57, and 64 make the network routing system more
efficient by managing how electronic communications are routed
in a contact center. As discussed above, the processes described
in claims 25, 57, and 64 make the network routing system more
efficiently route the work items to the agent communication
device. Like in Enfish, the way the work items are routed makes
the system more efficient. Therefore, for all the above reasons,
claims 25, 57, and 64 are allowable under 35 U.S.C.§101.
Appeal Br. 17.9
We note the Enfish court held the subject claims were “not directed to
an abstract idea within the meaning of Alice.” Enfish, 822 F.3d at 1336.
The court concluded the claims were directed to “a specific improvement to
the way computers operate, embodied in the self-referential table.”
(emphases added). Id.
We emphasize that the self-referential database table considered by
the Enfish court was found to be a specific type of data structure that was
designed to improve the way a computer stores and retrieves data in
memory. Id. at 1339. Because the Enfish court found the claimed self-
referential database table improved the way the computer stored and

9 See Enfish, LLC v. Microsoft Corp., 822 F3d 1337 (Fed. Cir. 2016).

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retrieved data, the court concluded the Enfish claims were not directed to an
abstract idea, and thus ended the analysis at Alice step one. Id. at 1336.
Here, Appellants have not shown that any of the features of the claims
before us on appeal improve the way the recited generic microprocessor and
network store and retrieve data, in a manner analogous to that found by the
court in Enfish. See Appellants’ independent claims 25, 57, and 64.
Although Appellants’ independent claim 64 recites “a database comprising a
grouping table,” there is no mention of a database storage device that
includes a self-referential database table of the type found by the Enfish
court to improve the way a computer stores and retrieves data in memory.
Therefore, we conclude independent representative claim 25 does not
recite: (i) an improvement to the functionality of a computer or other
technology or technical field (see MPEP § 2106.05(a)).
Moreover, because generic computer components such as a
microprocessor and “one or more networks” are recited in method claims 25,
27, 28, 40–42, and 44, we conclude these claims do not define or rely upon a
“particular machine.” See MPEP § 2106.05(b). Further, we conclude
method claims 25, 27, 28, 40–42, and 44 do not transform physical subject
matter to a different state or thing. See MPEP § 2106.05(c).
To the extent that the method claims on appeal may transform data,
see, e.g., Gottschalk, 409 U.S. at 71–72 (holding that a computer based
algorithm that merely transforms data from one form to another is not patent
eligible); see also CyberSource, 654 F.3d at 1375 (“The mere manipulation
or reorganization of data, however, does not satisfy the transformation
prong.”).
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Further regarding the Bilski machine-or-transformation test (“MoT”)
(as applicable to all method claims on appeal), the Supreme Court cautions
that the MoT test merely provides a useful clue:
This Court’s precedents establish that the machine-or-
transformation test is a useful and important clue, an
investigative tool, for determining whether some claimed
inventions are processes under § 101. The machine-or-
transformation test is not the sole test for deciding whether an
invention is a patent-eligible “process.”

Bilski, 561 U.S. at 604 (emphasis added).
Thus, without more, we conclude all method claims 25, 27, 28, 40–42,
and 44 on appeal do not use a “particular machine” to apply the judicial
exception (see MPEP § 2106.05(b)), or perform a transformation of an
article to a different state or thing (see MPEP § 2106.05(c)). We particularly
note there is no “router” positively recited in any claim on appeal. In
method claim 25, all the steps are performed by a generic microprocessor,
including the last “routing” step.
We also conclude representative claim 25 has no other argued
meaningful limitations (see MPEP § 2106.05 (e)), and merely recites
instructions to execute the abstract idea on a microprocessor. See MPEP
§ 2106.05(f)).
The Supreme Court guides: “the prohibition against patenting abstract
ideas ‘cannot be circumvented by attempting to limit the use of the formula
to a particular technological environment’ or [by] adding ‘insignificant post
solution activity.’” Bilski v. Kappos, 561 U.S. 593 (2010), (quoting
Diamond v. Diehr, 450 U.S. 175, 191–92 (1981)).
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As depicted in the right column of Table 1 above, we conclude the
claimed recitations of gathering (“receiving”), storing (“enqueuing”), and
“routing” data (i.e., routing “identified pending work items”) are each types
of extra or post-solution activity that courts have determined to be
insufficient to transform judicially excepted subject matter into a patent-
eligible application. See MPEP § 2106.05(g); 84 Fed. Reg. at 55, 55 n.31.
Appellants also contend there is no preemption:
[L]ike the allowed claims in Bascom, claims 25, 57, and 64 do
not preempt all ways of routing communications on a network.
Anyone of skill in the art would clearly understand that
there are literally hundreds of other ways that electronic
communications may be routed in a network. For example,
electronic communications may not be routed simultaneously,
routed using other attributes associated with the electronic
communications, routed only using attributes associated with a
single electronic communication, and the like. Therefore,
claims 25, 57, and 64 are clearly similar to the allowed claims
in Bascom.
App. Br. 10. 10
Our reviewing court provides applicable guidance: “While
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).
Therefore, we are not persuaded by Appellants’ arguments regarding the
absence of complete preemption. See App. Br. 10. (We address Appellants
specific arguments regarding Bascom infra, under Step 2B).

10 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016).
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We find the claims on appeal are silent regarding specific limitations
directed to an improved microprocessor, memory, network, database, or
Internet. Therefore, we find Appellants’ claimed invention does not provide
a solution “necessarily rooted in computer technology in order to overcome a
problem specifically arising in the realm of computer networks,” as
considered by the court in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1257 (Fed. Cir. 2014) (emphasis added).
Nor do claims 25, 27, 28, 40–42, 44, and 57–69 on appeal present any
other issues as set forth in the 2019 Revised Guidance regarding a
determination of whether the additional generic elements integrate the
judicial exception into a practical application. See Revised Guidance, 84
Fed. Reg. at 55.
Thus, under Step 2A, Prong Two (MPEP §§ 2106.05(a)–(c) and (e)–
(h)), we conclude claims 25, 27, 28, 40–42, 44, and 57–69 do not integrate
the judicial exception into a practical application. Therefore, we proceed
to Step 2B, The Inventive Concept.

The Inventive Concept – Step 2B
Under the 2019 Revised Guidance, only if a claim: (1) recites a
judicial exception, and (2) does not integrate that exception into a practical
application, do we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.

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BASCOM
Regarding step 2B, the inventive concept, Appellants argue:
[L]ike the allowed claims in Bascom, claims 25, 57, and 64 do
not preempt all ways of routing communications on a network.
Anyone of skill in the art would clearly understand that there
are literally hundreds of other ways that electronic
communications may be routed in a network. For example,
electronic communications may not be routed simultaneously,
routed using other attributes associated with the electronic
communications, routed only using attributes associated with a
single electronic communication, and the like. Therefore,
claims 25, 57, and 64 are clearly similar to the allowed claims
in Bascom.
App. Br. 10.
We find Appellants’ analogy to BASCOM is unavailing. Id. The
Federal Circuit held in BASCOM that the claimed Internet content filtering,
which featured an implementation “versatile enough that it could be adapted
to many different users’ preferences while also installed remotely in a single
location,” expressed an inventive concept in “the non-conventional and non-
generic arrangement of known, conventional pieces.” BASCOM, 827 F.3d at
1350.
Here, Appellants have not shown a non-conventional, non-generic
arrangement regarding the generic: “microprocessor,” “one or more
networks,” “one or more telecommunication devices,” and “an agent
communication device” (claim 25); “a memory,” “a microprocessor,” “one
or more networks,” “one or more telecommunication devices,” and “an
agent communication device” (independent claim 57); “a server,” “one or
more networks,” “one or more telecommunication devices,” and “an agent
communication device” (independent claim 64). It is our view that
Appellants’ claims do not involve any improvements to another technology,
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technical field, or improvements to the functioning of the computer or
network, as was seen in Bascom. Instead, we conclude Appellants’ claims
25, 27, 28, 40–42, 44, and 57–69 merely invoke generic computer
components (e.g., a microprocessor and one or more networks) as a tool in
which the instructions executing on the microprocessor apply the judicial
exception.

Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018)
We note Berkheimer was decided by the Federal Circuit on February
8, 2018. On April 19, 2018, the PTO issued the Memorandum titled:
“Changes in Examination Procedure Pertaining to Subject Matter Eligibility,
Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)”
(hereinafter “Berkheimer Memorandum”).11
The Berkheimer Memorandum provided specific requirements for an
Examiner to support with evidence any finding that claim elements (or a
combination of elements) are well-understood, routine, or conventional.
In the Final Action (5–6), the Examiner finds:
The claims does not include additional elements that are
sufficient to amount to significantly more than the judicial
exception because claims 25, 27-28, 40-42, 44 and 57-69
recites a server, that as per Applicant's specification, the server
includes a processor, a generic computer structure that
serves to perform generic computer functions that are well-
understood, routine, and conventional activities previously
known to the pertinent industry as shown in Applicant's
disclosure page 14, lines 24-27: "the server and/or switch can
be a software-controlled system 25 including a processing unit

11 Available at https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF.
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(CPU), microprocessor, or other type of digital data processor
executing software or an Application-Specific Integrated
Circuit (ASIC) as well as various portions or combinations of
such elements .. " And communication devices, page 7, lines
27-30 to page 8 lines 1-2: "The first telecommunication devices
134-1, . . . 134-N are packet-switched and can include, for
example, IP hardphones such as the Avaya Inc.'s, 4600 Series
IP Phones TM, IP softphones such as Avaya Inc.'s, IP
Softphone ™, Personal Digital 30 Assistants or PDAs, Personal
Computers or PCs, laptops, packet-based H.320 video phones
and conferencing units, packet-based voice messaging
and response units, and packet-based traditional computer
telephony adjuncts." And page 8, lines 10-12: "The second
telecommunication devices can include, for example, wired and
wireless telephones, PDAs, H.320 video phones and
conferencing units, voice messaging and response units, and
traditional computer telephony adjuncts." These additional
elements do not add a meaningful limitation to the abstract idea
because they would be routine in any computer implementation.
Final Act. 5–6 (emphasis added).
Appellants disagree:
The well-understood, routine, and conventional functions cited
by the Examiner not similar to the key elements of claims 25,
57, and 64 that provide the novel functionality (routing of
electronic communications in a contact center queue
simultaneously to an agent communication device based on
attributes associated with the electronic communications),
Therefore, under Part 2B, the key element in claims 25, 57, and
64 is not well understood, conventional, or routine and is
therefore allowable according to the criteria defined by the
Examiner.
App. Br. 15–16 (emphasis added).
Appellants again disagree with the Examiner in the Reply Brief,
without specifically traversing the Examiner’s factual findings regarding
Appellants’ Specification, as set forth in the Final Action (5–6):
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Again, the Examiner is ignoring the contact center queue. The
Examiner is also ignoring the Appellant[s’] arguments that the
simultaneous routing from the contact center queue based on
the real-time/non-real-time/work item attributes is not well
understood, routine, and conventional. The prosecution history
supports that this type of routing is new and novel, yet the
Examiner does ignore this argument.
The Examiner then makes the same arguments that the
claims are like the previous court decisions. The Examiner then
makes the same arguments that the claims provide nothing
significantly more and then cites various sections from the
Specification. The Examiner then argues that the "Applicant
presents no evidence (either in the claimed or disclosed subject
matter) showing that the additional elements [operate] in a
manner other that what is routine, well-understood, and
conventional in the art" (see page 10 of the Examiner's
Answer). As discussed above and the Appeal Brief, this is
clearly not correct.
Reply Br. 7–8.
In reviewing the record, we are not persuaded the Examiner erred in
finding that the additional non-abstract claim limitations were well-
understood, routine, or conventional, because the Examiner supports the
factual findings (Final Act. 5–6) in accordance with Berkheimer with one or
more of the following:
1. A citation to an express statement in the specification or to a
statement made by an applicant during prosecution that
demonstrates the well-understood, routine, conventional
nature of the additional element(s). . . .
2. A citation to one or more of the court decisions discussed in
MPEP § 2106.05(d)(II) as noting the well-understood,
routine, conventional nature of the additional element(s).
3. A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional
element(s). . . .
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4. A statement that the examiner is taking official notice of the
well-understood, routine, conventional nature of the
additional element(s). . . .
Berkheimer Memorandum at 3–4 (emphasis added).
Because Appellants fail to traverse the Examiner’s specific factual
findings pertaining to Appellants’ Specification, as set forth in the Final
Action (5–6), on this record, we are not persuaded the Examiner erred.
Further regarding the use of the recited generic “microprocessor” and
“one or more networks” (independent claims 25, 57, and 64), the Supreme
Court has held “the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.” Alice, 573
U.S. at 223. Our reviewing court provides additional guidance: See
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir.
2016) (“[T]he use of generic computer elements like a microprocessor or
user interface do not alone transform an otherwise abstract idea into patent-
eligible subject matter.”); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1363 (Fed. Cir. 2015) (claims reciting, inter alia, sending messages
over a network, gathering statistics, using a computerized system to
automatically determine an estimated outcome, and presenting offers to
potential customers found to merely recite “‘well-understood, routine
conventional activit[ies],’ either by requiring conventional computer
activities or routine data-gathering steps” (alteration in original)).
This reasoning is applicable here. Therefore, on the record before us,
Appellants have not shown that the claims on appeal add a specific
limitation beyond the judicial exception that is not “well-understood,
routine, and conventional” in the field (see MPEP § 2106.05(d)).

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In light of the foregoing, we conclude, under the 2019 Revised
Guidance, that each of Appellants’ claims 25, 27, 28, 40–42, 44, and 57–69,
considered as a whole, is directed to a patent-ineligible abstract idea that is
not integrated into a practical application, and does not include an inventive
concept. Accordingly, for the reasons discussed above, we sustain the
Examiner’s Rejection B under 35 U.S.C. § 101 of claims 25, 27, 28, 40–42,
44, and 57–69.12

DECISION
We affirm the Examiner’s decision rejecting claims 25, 27, 28, 40–42,
44, and 57–69 as being unpatentable over claims 1–37 of U.S. Patent No. US
7,949,121 B1 to Flockhart et al. on the ground of nonstatutory obviousness-
type double patenting.
We affirm the Examiner’s decision rejecting claims 25, 27, 28, 40–42,
44, and 57–69 under 35 U.S.C. § 101.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED

12 To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

Ex parte ANDREW D. FLOCKHART, GARY EDWARD OLMSTED, and
ROBERT C. STEINER

____________

Appeal 2018-006078
Application 12/022,850
Technology Center 3600
____________

Before ST. JOHN COURTENAY III, JOYCE CRAIG, and
CATHERINE SHAING, Administrative Patent Judges.

SHAING, Administrative Patent Judge, dissenting-in-part.

I join my colleagues in the decision affirming the Examiner’s
rejection of claim 25, 27, 28, 40–42, 44, and 57–69 on the ground of non-
statutory obviousness type double patenting.
I respectfully disagree with the majority’s decision affirming the
Examiner’s rejection of claims 25, 27, 28, 40–42, 44, and 57–69 under 35
U.S.C. § 101.
Section 101 of the Patent Act provides “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may
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obtain a patent therefor, subject to the conditions and requirements of this
title.” 35 U.S.C. § 101. However, the Supreme Court has long interpreted
35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural
phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. Pty.
Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (internal quotation marks
and citation omitted).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and, thus, patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
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252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a
patent-eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
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The United States Patent and Trademark Office recently published
revised guidance on the application of § 101. USPTO, 2019 REVISED PATENT
SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Guidance”). Under the Guidance, we first look to whether the claim
recites:
(1) 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) (Step 2A, Prong 1); and
(2) additional elements that integrate the judicial exception into
a practical application (see MANUAL OF PATENT EXAMINING
PROCEDURE (“MPEP”) § 2106.05(a)–(c), (e)–(h)) (9th Ed., Rev.
08.2017, 2018) (Step 2A, Prong 2).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look 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
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception. (Step 2B.)
See Guidance, 84 Fed. Reg. at 54–56.
Turning to Step 2A, Prong 1 of the Guidance, the Examiner concludes
the rejected claims recite “an abstract idea of routing/allocating a plurality of
identified work items that are related to each other to an agent.” Final Act.
4. However, it is unclear why “routing/allocating a plurality of identified
work items that are related to each other to an agent” (Final Act. 4) is an
abstract idea, as the Examiner does not adequately explain why the routing
process qualifies as a mathematical concept, an identified method of
organizing human activity, or mental processes. See Guidance, 84 Fed. Reg.
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at 52; id. at 53 (“Claims that do not recite matter that falls within these
enumerated groupings of abstract ideas should not be treated as reciting
abstract ideas, except” in rare circumstances.).
Although the Examiner has not identified an abstract idea that belongs
to the enumerated groupings of abstract ideas under the Guidance, for the
following reasons, I determine each of the claims recites mental processes—
an abstract idea.
Independent claims 25, 57, and 64 (with emphases) recite:
25. A method comprising:

receiving, by a microprocessor, via one or more networks, a
plurality of work items from one or more telecommunication
devices;

generating, by the microprocessor, at least one work item
grouping table that comprises a plurality of differing work item
attributes describing a plurality of identified pending work
items;

enqueuing, by the microprocessor, in a contact center queue, the
identified plurality of pending work items, and wherein the
plurality of identified pending work items comprise at least
two of a circuit switched voice call, a packet switched voice
call, a video call, a web chat, an instant message, and an email;

determining, by the microprocessor, that the plurality of
identified pending work items are related to each other and
comprise at least a real-time contact and a non-real-time
contact and wherein a selected work item attribute from the
work item grouping table comprises at least one of a customer
identity, an intent, a media type, a subject, and a transaction
identifier that is used to determine that the plurality of
identified pending work items are related to each other; and

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routing, by the microprocessor, the plurality of identified
pending work items from the contact center queue to an agent
communication device simultaneously based on the plurality of
identified pending work items being related to each other.

57. A system comprising:

a memory,

a microprocessor in communication with the memory,
wherein the microprocessor executes instructions to:

receive, via one or more networks, a plurality of work
items from one or more telecommunication devices;

generate at least one work item grouping table that
comprises a plurality of differing work item attributes
describing a plurality of identified pending work items;

enqueue, in a contact center queue the plurality of
identified pending work items, and wherein the plurality of
identified pending work items comprise at least two of a circuit
switched voice call, a packet switched voice call, a video call, a
web chat, an instant message, and an email;

determine that the plurality of identified pending work
items are related to each other and comprise at least a real-
time contact and a non-real-time contact and wherein a
selected work item attribute from the work item grouping table
comprises at least one of a customer identity, an intent, a media
type, a subject, and a transaction identifier that is used to
determine that the plurality of identified pending work items are
related to each other; and

route the plurality of identified pending work items from
the contact center queue to an agent communication device
simultaneously based on the plurality of identified pending
work items being related to each other.

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64. A contact center, comprising:

a server that receives, via one or more networks, a plurality of
work items from one or more telecommunication devices,
wherein the plurality of work items comprise at least two of a
circuit switched voice call, a packet switched voice call, a video
call, a web chat, an instant message, and an email, enqueues the
plurality of work items in a call center queue, determines that
the plurality of work items are related to each other, wherein
the plurality of work items comprise at least a real-time contact
and a non-real-time contact, and routes the plurality of
identified pending work items from the contact center queue to
an agent communication device simultaneously based on the
plurality of identified pending work items being related to each
other; and

a database comprising a grouping table, the grouping table
comprising:

a plurality of differing work item attributes describing
the plurality of work items, wherein a selected work item
attribute from the grouping table comprises at least one of a
customer identity, an intent, a media type, a subject, and a
transaction identifier that is used to determine that the plurality
of identified pending work items are related to each other.

All of the italicized processes or functions can be performed by a
person using a pen and paper. Regarding claim 25, a person can “generat[e].
. . at least one work item grouping table that comprises a plurality of
differing work item attributes describing a plurality of identified pending
work items” by using a pen and paper. Further, a person can “determinin[e]
. . . that the plurality of identified pending work items are related to each
other and comprise at least a real-time contact and a non-real-time contact
and wherein a selected work item attribute from the work item grouping
table comprises at least one of a customer identity, an intent, a media type, a
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subject, and a transaction identifier that is used to determine that the
plurality of identified pending work items are related to each other” in his
mind or by using a pen and paper. Claims 57 and 64 recite similar
limitations that can be performed by a person using a pen and paper. See
Claims 57 and 64.
Because all of the italicized processes or functions can be performed
by a human using a pen and paper, they are like the mental processes in
CyberSource and Synopsys. See CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011) (“All of claim 3’s method
steps can be performed in the human mind, or by a human using a pen and
paper. . . . Such a method that can be performed by human thought alone is
merely an abstract idea and is not patent-eligible under § 101.”); Synopsys,
Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146 (Fed. Cir. 2016) (“[W]e
continue to ‘treat[ ] analyzing information by steps people go through in
their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category.’”) (citation omitted).
Accordingly, I conclude each of independent claims 25, 57, and 64 recites
mental processes, and thus an abstract idea. See Guidance, Step 2A, Prong 1
(Groupings of Abstract Ideas). For similar reasons, I conclude each of the
corresponding dependent claims 27, 28, 40–42, 44, and 58–63, and 65–69
recites mental processes, and thus an abstract idea.
Although each of the rejected claims recites an abstract idea, the
Federal Circuit explains the “directed to” inquiry looks at the claims’
“character as a whole,” and is not simply asking whether the claims involve
a patent-ineligible concept:
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The “directed to” inquiry [ ] cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical
products and actions involves a law of nature and/or natural
phenomenon—after all, they take place in the physical world.
See Mayo, 132 S.Ct. at 1293 (“For all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas.”). Rather, the “directed to”
inquiry applies a stage-one filter to claims, considered in light
of the specification, based on whether “their character as a
whole is directed to excluded subject matter.”
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016); see
also Diehr, 450 U.S. at 188 (“In determining the eligibility of respondents’
claimed process for patent protection under § 101, their claims must be
considered as a whole.”); McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314 (Fed. Cir. 2016) (the question is whether the claims as a
whole “focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery”).
Similarly, according to the Guidance,
It is critical that [the PTAB] consider the claim as a whole
when evaluating whether the judicial exception is meaningfully
limited by integration into a practical application of the
exception. Some elements may be enough on their own to
meaningfully limit an exception, but other times it is the
combination of elements that provide the practical application.
When evaluating whether an element (or combination of
elements) integrates an exception into a practical application,
examiners should give careful consideration to both the element
and how it is used or arranged in the claim as a whole.
Guidance, 84 Fed. Reg. at 55.
Therefore, I proceed to Step 2A, Prong 2 of the Guidance to determine
whether additional elements of the claims integrate the mental processes into
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a practical application. Such additional elements may reflect an
improvement to a technology or technical field. See Guidance, 84 Fed. Reg.
at 55 (citing sources including DDR Holdings, LLC v. Hotels.com, L.P., 773
F.3d 1245 (Fed. Cir. 2014). As to claim 25, I determine additional elements
of the claim integrate the abstract idea into a practical application, as the
following additional elements of the claim reflect technology improvement
of effectively routing related work items that include at least two of a circuit
switched voice call, a packet switched voice call, a video call, a web chat, an
instant message, and an email:
receiving, by a microprocessor, via one or more networks, a
plurality of work items from one or more telecommunication
devices;

enqueuing, by the microprocessor, in a contact center queue, the
identified plurality of pending work items, and wherein the
plurality of identified pending work items comprise at least two
of a circuit switched voice call, a packet switched voice call, a
video call, a web chat, an instant message, and an email;

routing, by the microprocessor, the plurality of identified
pending work items from the contact center queue to an agent
communication device simultaneously based on the plurality of
identified pending work items being related to each other.

See App. Br. 16; DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014).
In DDR Holdings, the Federal Circuit determines the claims are patent
eligible because “the claimed solution is necessarily rooted in computer
technology in order to overcome a problem specifically arising in the realm
of computer networks.” DDR Holdings, 773 F.3d at 1257. Similar to the
claims in DDR, claim 25 is necessarily rooted in the technology of routing
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circuit switched voice calls, packet switched voice calls, video calls, web
chats, instant messages, or emails in order to overcome a problem
specifically arising in the realm of routing related calls, web chats, instant
messages, and emails. See claim 25; DDR Holdings, 773 F.3d at 1257; see
also Spec. 1–3. As a result, similar to the claims in DDR, claim 25 is patent
eligible under Alice. See DDR Holdings, 773 F.3d at 1257.
In particular, claim 25 addresses the problem of routing multiple
related work items (a call, a web chat, an instant messages, or an email) from
a customer. See claim 25; see also Spec. 1–3. The claim provides an
improved method for routing multiple work items (a call, a web chat, an
instant messages, or an email) from a customer to an agent communication
device simultaneously by identifying related work items. See claim 25.
Specifically, the technology improvement is directed to a method of
effectively routing work items that include at least two of a circuit switched
voice call, a packet switched voice call, a video call, a web chat, an instant
message, and an email, including using a microprocessor to perform the
following steps: receiving via one or more networks, work items from a
telecommunication device (or devices); generating a work item grouping
table (or tables) that includes differing work item attributes describing
identified pending work items; enqueuing the identified pending work items
that include at least two of a circuit switched voice call, a packet switched
voice call, a video call, a web chat, an instant message, and an email;
determining that the identified pending work items are related to each other
and include at least a real-time contact and a non-real-time contact; and
routing the plurality of identified pending work items from the queue to an
agent communication device simultaneously based on the identified pending
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work items being related to each other. See DDR Holdings, 773 F.3d at
1259 (“the claims . . . recite a specific way to automate the creation of a
composite web page by an ‘outsource provider’ that incorporates elements
from multiple sources in order to solve a problem faced by websites on the
Internet”).
My determination is supported by the Specification, which describes
the technology improvement of routing multiple work items (a call, a web
chat, an instant messages, or an email) from a customer to an agent
communication device simultaneously by identifying related work items:
Contact centers, such as Automatic Call Distribution or ACD
systems, are employed by many enterprises to service customer
contacts. A typical contact center includes a switch and/or
server to receive and route incoming packet-switched and/or
circuit-switched contacts and one or more resources, such as
human agents and automated resources (e.g., Interactive Voice
Response (IVR) units), to service the incoming contacts.
Contact centers distribute contacts, whether inbound or
outbound, for servicing to any suitable resource according to
predefined criteria. In many existing systems, the criteria for
servicing the contact from the moment that the contact center
becomes aware of the contact until the contact is connected to
an agent are customer specifiable (i.e., programmable by the
operator of the contact center), via a capability called vectoring.
Normally in present-day ACDs when the ACD system's
controller detects that an agent has become available to handle a
contact, the controller identifies all predefined contact-handling
skills of the agent (usually in some order of priority) and
delivers to the agent the highest-priority oldest contact that
matches the agent's highest priority skill. Agents with a higher
skill are normally preferred over agents with lower skill levels
when assigning an agent to a contact. When agents have
multiple skills, the controller is more likely to select a contact
for which the agent has a high skill level over a contact for
which the agent has a lesser skill level. Generally, the only
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condition that results in a contact not being delivered to an
available agent is that there are no contacts waiting to be
handled.

Most present-day contact-distribution algorithms focus on
being "fair" to contactors and to agents. This fairness is
reflected by the standard first-in, first-out contact to most-idle-
agent assignment algorithm. Skills-based routing improves
upon this basic algorithm in that it allows each agent to be
slotted into a number of agent groups based on the agent's skill
types and levels.

An ongoing problem in skills-based routing contact centers is
how to handle multiple contacts from a customer efficiently and
effectively. Today, contact centers allow customers to
communicate with an enterprise at any time and over any
media channel of their choosing and seek to provide a
consistent interface to customers regardless of what enterprise
representative or media channel is involved. For example, a
customer can communicate with the contact center using any
combination of circuitswitched voice calls, Voice over IP or
VoIP, email, Web chat, instant messaging, and the like. As a
result, when a contact is delivered to an agent, contact center
queuing structures can contain additional contacts from that
customer, which are waiting to be serviced and which may or
may not be relevant to the delivered contact. By way of
illustration, a customer might place an order by email, follow
the order up by a second email requesting a change to the
quantity ordered, follow up the second email with a third email
to change the shipping address, and follow up the third email
with a voice call to confirm the status of the changed order.
Notwithstanding such events, resource allocation systems
typically deliver customer contacts to agents one-at-a-time.
Multiple customer contacts can thus be handled inconsistently
or, possibly, even in a conflicting manner by multiple company
representatives. This is not only an inefficient way for the
company to operate but also a frustrating experience for
customers.

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Some systems allow agents to have multiple simultaneous work
assignments and/or provide the ability for an agent to view or
search for such unprocessed contacts. Such systems, however,
neither allow the agent to process simultaneously the additional
pending contacts nor provide for the simultaneous delivery of
the contacts to the same agent as a related grouping of work
items.

The present invention is directed generally to a resource
allocation system and method that allows the agent to process
simultaneously the additional pending contacts and/or provides
for the simultaneous delivery of the contacts to the same agent
as a related grouping of work items.

Spec. 1:14–3:6 (emphases added).
Because the additional elements of claim 25 integrate the mental
processes into a practical application, I determine claim 25 is not directed
to an abstract idea. See Guidance, Step 2A, Prong 2. For similar reasons,
I determine each of claims 27, 28, 40–42, 44, and 57–69 integrates mental
processes into a practical application, and is not directed to an abstract idea.
Therefore, I respectfully disagree with the majority’s decision affirming the
Examiner’s rejection of claims 25, 27, 28, 40–42, 44, and 57–69 under 35
U.S.C. § 101.