Brian James. Messerich et al.

Patent Trials and Appeals Board

Sep 27, 2019

13600895 - (D) (P.T.A.B. Sep. 27, 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.
13/600,895 08/31/2012 Brian James Messerich PT1370US00 2953
132326 7590 09/27/2019
Thompson Hine LLP
10050 Innovation Drive
Suite 400
Dayton, OH 45342-4934
EXAMINER
HAIDER, FAWAAD
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
09/27/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRIAN JAMES MESSERICH and
THOMAS CHRISTOPHER TRKSAK
____________

Appeal 2018-006702
Application 13/600,895
Technology Center 3600
____________

Before MAHSHID D. SAADAT, ERIC S. FRAHM, and
MICHAEL T. CYGAN, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Non-final Rejection of claims 1, 8–10, 12, 13, and 16–18, which constitute
all the claims pending in this application.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellant, the real party in interest is Navitaire LLC. Appeal
Br. 3.
2 Claims 2–7, 11, 14, and 15 have been canceled.
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STATEMENT OF CASE
Introduction
Appellant’s Specification is directed to “implementations of
asynchronous, event-driven systems that broker between multiple
components to provide real-time accounting of revenue that is earned from
travel provided on a travel conveyance.” See Spec. ¶ 22.
Exemplary claim 1 under appeal reads as follows;
1. A method comprising:
monitoring, by a sink in communication with a travel
system including one or more processors, a boarding system,
for occurrence of an event that is triggered by a boarding status
for a vehicle being changed from a scheduled status to a closed
status in the boarding system, wherein the sink listens for the
occurrence of the event;
recognizing, by the sink, the occurrence of the event; and
contemporaneously in response to the event being recognized:
generating, by the sink, a status message including
a manifest indicating each of a plurality of passengers
that were boarded onto the vehicle and a revenue
including one or more of fare, tax, and fees associated
with each of the plurality of passengers indicated to have
been boarded onto the vehicle, and
transmitting, by the sink, the status message to a
computer-implemented accounting service,
wherein, contemporaneously in response to receiving the
status message, the computer-implemented accounting service
is configured to:
access booking data generated by a booking
system for each passenger among the plurality of
passengers when booking passage on the vehicle;
identify earned revenue for the vehicle by
comparing the booking data generated by the booking
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system with the manifest included in the status message
generated by the sink, and
update an earned revenue repository associated
with the vehicle based on the earned revenue.
Rejection on Appeal
Claims 1, 8–10, 12, 13, and 16–18 stand rejected under 35 U.S.C.
§ 101 for being directed to patent-ineligible subject matter. See Non-final
Act. 2–7.

ANALYSIS
“Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n,
601 F.3d 1319, 1331 (Fed. Cir. 2010). We have reviewed the Examiner’s
rejection in light of Appellant’s arguments. Arguments Appellant could
have made but chose not to make are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv). Appellant does not separately argue the claims. See
Appeal Br. 8–15. We select claim 1 as representative. See 37 C.F.R.
§41.37(c)(l)(iv).
The Examiner determines that “the claimed invention is directed to a
judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract
idea) without significantly more” because the claims “are directed to the
abstract idea of realizing revenue in a travel system, a fundamental
economic practice or method of organizing human activities, which is
considered an abstract idea” and “when examined on a limitation-by-
limitation basis and in order combination, do not include inventive concept.”
Non-final Act. 2–3. The Examiner further determines that “the claims are
not directed to ‘an improvement to computer technology,’ such as found by
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the CAFC in Enfish, but to the abstract idea itself.” Non-final Act. 3; see
also Alice Corp. v. CLS Bank lnt’l, 573 U.S. 208, 217 (2014) (describing the
two-step framework “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.”).
After the mailing of the Answer and the filing of the Briefs in this
case, in January 2019, the USPTO published revised guidance on the
application of § 101. See USPTO’s 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under
that guidance (“Step 2A”), the office first looks to whether the claim recites:
(1) Prong One: any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic practice,
or mental processes); and
(2) Prong Two: additional elements that integrate the judicial
exception into a practical application (see MANUAL OF PATENT
EXAMINING PROCEDURE (MPEP) §§ 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08. 2017, Jan. 2018)).
Only if a claim (1) recites a judicial exception, and (2) does not
integrate that exception into a practical application, do we then (pursuant to
the Guidance “Step 2B”) look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional 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.
See Guidance, 84 Fed. Reg. 56.
We are not persuaded the Examiner’s rejection is in error. We adopt
the Examiner’s findings and conclusions as our own, to the extent consistent
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with our analysis herein. We add the following primarily for emphasis and
clarification with respect to the Guidance.
I. Step 2A
Appellant argues “claim 1 requires a sink to ‘monitor[] . . . a boarding
system for occurrence of an event that is triggered by a boarding status for a
vehicle being changed from a scheduled status to a closed status in the
boarding system,” which contemporaneously in response to recognizing that
the event has occurred, “requires the sink to ‘generat[ e] . . . a status message
including a manifest indicating each of a plurality of passengers that were
boarded onto the vehicle and a revenue . . . associated with each of the
plurality of passengers . . . .” Appeal Br. 9–10.
We are not persuaded of Examiner error.
Prong One
Pursuant to the Guidance, we agree with the Examiner that claim 1
recites a method for “realizing revenue in a travel system,” which is
considered a “fundamental economic practice or method of organizing
human activities.” Non-final Act. 3. See Spec. ¶¶ 1–3; see also Guidance,
Section III (A)(l) (Prong One: Evaluate Whether the Claim Recites a Judicial
Exception), 84 Fed. Reg. at 54. Specifically, claim 1 recites steps of
“monitoring, . . . a boarding system, for occurrence of an event,”
“recognizing, . . ., the occurrence of the event,” “generating, . . ., a status
message,” and “transmitting,. . . , the status message to a computer-
implemented accounting service, . . .” See Appeal Br. 17 (Claim App.).
These limitations are classified by the Guidance as steps of “sales activities
or behaviors[,] business relations[,] ... and following rules or instructions,”
which are “fundamental economic principles or practices,” “commercial or
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legal interactions,” and “managing personal behavior or relationships or
interactions between people.” Guidance at 52. Pursuant to the Guidance,
such limitations are the abstract concept of “[c]ertain methods of organizing
human activity.” Id.
Prong Two
Appellant contends that claim 1 requires “a sink monitoring a
boarding system for an occurrence of an event and generating a status
message that includes a manifest,” as related to the operation of a sink.
Appeal Br. 10. Appellant argues the “claims are ‘not simply the generalized
use of a computer as a tool to conduct a known or obvious process,” but “are
focused on a specific technique of improving computer-implemented
accounting systems in the travel industry by enabling real-time accounting
of revenue earned from travel provided on a travel conveyance.” Appeal Br.
10 (citing Trading Technologies Int’l, Inc. v. CGQ, Inc., No. 2016-1616
(Fed. Cir. January 18, 2017), slip op. at p. 8.). Appellant refers to the
Specification to explain how the claimed computer-implemented accounting
system solves the delay issue related to the revenue transitioning to an
“earned status.” Appeal Br. 10–11 (citing Spec. ¶¶ 1–2, 33–34, 36–37).
We are not persuaded the Examiner’s rejection is in error pursuant to
Step 2A, Prong Two of the Guidance. Appellant has not shown the claim
includes additional elements that improve the underlying computer, or other
technology. Although Appellant’s alleged improvement to technology is
“enabling real-time accounting,” the term “real-time” is used by Appellent
merely to describe automatic execution without human input; i.e., by
operation of the computerized system. Spec. ¶ 32. However, “merely
adding computer functionality to increase the speed or efficiency of the
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process does not confer patent eligibility on an otherwise abstract idea.”).
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1370 (Fed. Cir. 2015). (Moreover, Appellant’s purportedly improved
abstract concept, “using event-based triggers instead of temporal-based
triggers” (App. Br. 11), is still an abstract concept under the Guidance. See
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016) (holding that “a claim for a new abstract idea is still an abstract idea.”)
(emphasis omitted). That is, monitoring and recognizing the occurrence an
event and generating a status message, even in real time, are parts of the
recited abstract idea, as discussed above. See Ans. 4–5. As the argued
elements are part of the abstract idea, they are not additional elements that
integrate the identified abstract idea into a practical application. See
Guidance, 84 Fed. Reg. 54-55 (“evaluate integration into a practical
application by: (a) Identifying whether there are any additional elements
recited in the claim beyond the judicial exception(s)”). Accordingly, we
determine the claim does not integrate the judicial exception into a practical
application. See Guidance, 84 Fed. Reg. at 54. We determine the “claim
recites a judicial exception and fails to integrate the exception into a
practical application,” therefore we proceed with “further analysis pursuant
to the second step of the Alice/ Mayo test (USPTO Step 2B).” Guidance, 84
Fed. Reg. at 51.
II. Step 2B
Appellant argues the Examiner errs in determining the claims do not
recite an inventive concept that amounts to significantly more than the
judicial exception itself. Appeal Br. 13–14; Reply Br. 4–5; see also Non-
final Act. 6–7. We disagree. The claimed “sink monitoring a boarding
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system for an occurrence of an event and generating a status message that
includes a manifest” as well as the recited “computer-implemented
accounting system identifying earned revenue for a vehicle by comparing
booking data generated by a booking system with the manifest included in
the status message generated by the sink,” as argued by Appellant, are part
of the recited judicial exception itself, as discussed above. Appeal Br. 13;
see also Guidance at 56 (“[E]valuate the additional elements individually
and in combination” in step 2B.); Guidance fn. 24 (“USPTO guidance uses
the term ‘additional elements’ to refer to claim features, limitations, and/or
steps that are recited in the claim beyond the identified judicial exception.”)
(emphasis omitted).
Regarding the claimed “sink” and “accounting system,” we agree with
the Examiner that the limitation is well-understood, routine, and
conventional. See Final Act. 6–7, Ans. 4; Fig. 5, Spec. ¶¶ 33–34, 43–46;
Alice, 573 U.S. at 226 (“But what petitioner characterizes as specific
hardware . . . is purely functional and generic. Nearly every computer will
include a ‘communications controller’ and ‘data storage unit’ capable of
performing the basic calculation, storage, and transmission functions
required by the method claims.”); 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].”). Similarly, the additional elements recited in
claim 1, such as generating and transmitting a status message as well as
accessing data and identifying and updating an earned revenue “do not effect
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an improvement to another technology or technical field; the claims do not
amount to an improvement to the functioning of a computer system itself;
and the claims do not move beyond a general link of the use of an abstract
idea to a particular technological environment.” See Ans. 4–5.
As such, Appellant’s claims can be distinguished from patent-eligible
claims such as those in Bascom Global Internet Services., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). See Appeal Br. 14–15. In
Bascom, the system claims were directed to a “content filtering system for
filtering content retrieved from an Internet computer network,” which the
court held were directed to an abstract idea. Id. at 1348–49. The court
further held the claims included an inventive concept in the ordered
combination of system components, including a local client computer and a
remote ISP server connected to the client computer and Internet computer
network providing for “the installation of a filtering tool at a specific
location, remote from the end-users, with customizable filtering features
specific to each end user.” Id. at 1350. Appellant has failed to establish that
claim 1 includes a similar or analogous arrangement or “ordered
combination” of components, and, instead, makes only the conclusory
statement that the recited sink, boarding system, and the computer-
implemented accounting system are “non-conventional and non-generic
arrangement of components in a travel system.” Appeal Br. 15; see also
Reply Br. 4.
Other Considerations
We have reviewed all the arguments Appellant has submitted
concerning the patent eligibility of the claims before us that stand rejected
under 35 U.S.C. § 101. Appeal Br. 8–15. We find that our analysis above
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substantially covers the substance of all the arguments which have been
made. But, for purposes of completeness, we will add the following.
To the extent Appellant argues that the Examiner erred in adequately
supporting this determination by not providing evidence, or considering the
claims in their entirety, to justify identifying the specific limitations as
reciting an abstract idea (see Appeal Br. 8), we are unpersuaded. In this
regard, there is no requirement that Examiners must provide evidentiary
support in every case before a conclusion can be made that a claim is
directed to an abstract idea. See, e.g., Manual of Patent Examining
Procedure § 2106.07 (a)(III) (2018) (“The courts consider the determination
of whether a claim is eligible (which involves identifying whether an
exception such as an abstract idea is being claimed) to be a question of law.
Thus, the court does not require ‘evidence’ that a claimed concept is a
judicial exception, and generally decides the legal conclusion of eligibility
without resolving any factual issues.” (Citations omitted.)) Moreover, the
Federal Circuit made clear in Berkheimer that “not every § 101
determination contains genuine disputes over the underlying facts material to
the § 101 inquiry.” Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir.
2018). In fact, the Federal Circuit in Berkheimer did not require evidentiary
support for independent claim 1 because “[t]he limitations [of claim 1]
amount to no more than performing the abstract idea of parsing and
comparing data with conventional computer components.” Id. at 1370.
All that is required of the USPTO to meet its prima facie burden of
production is that the Examiner set forth the statutory basis of the rejection
and the reference or references relied upon in a sufficiently articulated and
informative manner as to meet the notice requirement of 35 U.S.C. § 132.
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As the statute itself instructs, the Examiner must “notify the applicant,”
“stating the reasons for such rejection,” “together with such information and
references as may be useful in judging the propriety of continuing the
prosecution of his application.” 35 U.S.C. § 132; see also In re Jung, 637
F.3d 1356, 1363 (Fed. Cir. 2011) (declining “to impose a heightened burden
on examiners beyond the notice requirement of § 132”). Here, as we found
above, the Examiner has made these findings as required by the statute. See
Non-final Act 2–7. Specifically, in rejecting the pending claims under
§ 101, the Examiner notified Appellant that the claims recite steps that
describe the concepts of realizing revenue in a travel system, a fundamental
economic practice or method of organizing human activity that is a
fundamental economic practice (Non-final Act. 3), and that the claims do not
include additional elements that would amount to significantly more than the
abstract idea. Final Act. 5–6. Thus, we find that a prima facie case was
established by the Examiner.
Conclusion
For at least the above reasons, we agree with the Examiner that claim
1 is “directed to” an abstract idea and does not recite an “inventive concept.”
Accordingly, we sustain the Examiner’s rejection of claim 1 and the
remaining claims which fall therewith, under 35 U.S.C. § 101.

DECISION
We affirm the Examiner’s rejection of claims 1, 8–10, 12, 13, and 16–
18 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).
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In summary:
Claims
Rejected
Basis  Affirmed Reversed
1, 8–10, 12, 13,
and 16–18
§ 101  1, 8–10, 12, 13,
and 16–18

Overall Outcome 1, 8–10, 12, 13,
and 16–18

AFFIRMED