Calendar Research LLC

Patent Trials and Appeals Board

Jul 2, 2020

2018007906 (P.T.A.B. Jul. 2, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/254,786 04/16/2014 Michael Hunter Gray 111146-0202 2236
23392 7590 07/02/2020
Foley & Lardner LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
BYRD, UCHE SOWANDE
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
07/02/2020 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL HUNTER GRAY
____________

Appeal 2018-007906
Application 14/254,786
Technology Center 3600
____________

Before PHILIP J. HOFFMANN, BRUCE T. WIEDER, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–8 and 10–17. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing was held on June 25, 2020.
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Our decision references Appellant’s Appeal Brief
(“Appeal Br.,” filed December 12, 2017) and Reply Brief (“Reply Br.,” filed
July 31, 2018), and the Examiner’s Answer (“Ans.,” mailed June 1, 2018)
and Final Office Action (“Final Act.,” mailed July 14, 2017). Appellant
identifies the real party in interest as “Calendar Research LLC” (Appeal Br.
2).
Appeal 2018-007906
Application 14/254,786

2
CLAIMED INVENTION
Appellant’s claims relate generally “to the field of scheduling
systems” and “more specifically to a scheduling system and method
incorporating an appointment negotiation.” Spec. ¶ 2.
Claims 1, 3, and 12 are the independent claims on appeal. Claim 1,
reproduced below, with bracketed matter added, is illustrative of the claimed
subject matter:
1. A method in one or more computer systems, the method
comprising:
[a] forming a group of members;
[b] determining, for each member in the group of
members, a corresponding messaging protocol to be used for
communicating with the member, wherein the corresponding
messaging protocol is at least one of a messaging protocol for
short message service (SMS) text messages or a messaging
protocol for a user application having push notifications;
[c] sending an appointment request message to each
member of the group of members using the corresponding
messaging protocol for the member, the appointment request
message including one or more plans for a meeting, the one or
more plans each comprising time and location information;
[d] receiving responses to the appointment request
message wherein, for each member of the group of members, a
corresponding response to the appointment request message is
received using the corresponding messaging protocol; and
[e] updating the calendar system of each member of the
group of members by adding a calendar event with a time for an
appointment for the meeting that is based on the received
responses.

REJECTIONS
1. Claims 1–8 and 10–17 are rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
Appeal 2018-007906
Application 14/254,786

3
2. Claims 1–6, 10, and 12–15 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Beckhardt et al. (US 6,085,166, iss.
July 4, 2000) and Alharayeri et al. (US 2009/0181653 A1, pub. July 16,
2009) (“Alharayeri”).
3. Claims 7, 8, 11, 16, and 17 are rejected under 35 U.S.C. 103(a)
as being unpatentable over Beckhardt, Alharayeri, and Olliphant
(US 2012/0191501 A1, pub. July 26, 2012).2

ANALYSIS
Patent-Ineligible Subject Matter
A. Section 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 U.S. 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. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part 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

2 The Examiner indicates that claims 7, 8, 16, and 17 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Beckhardt and Olliphant. Final
Act. 19. However, claims 7, 8, 16, and 17, each depends from a claim
rejected under 35 U.S.C. § 103(a) as being unpatentable over Beckhardt and
Alharayeri. See, e.g., Final Act. 6. Accordingly, we understand the asserted
rejection of claims 7, 8, 11, 16, and 17 to also be based on Alharayeri.
Appeal 2018-007906
Application 14/254,786

4
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 waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
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
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 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
Appeal 2018-007906
Application 14/254,786

5
formula to a particular technological environment.” Id. (citation omitted)
(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 (quotation marks 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.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
Appeal 2018-007906
Application 14/254,786

6
Under the 2019 Revised Guidance and the October 2019 Update, 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 One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.

4 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application, i.e., “appl[ies], rel[ies] on, or use[s] 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 - Section
III(A)(2), 84 Fed. Reg. 54–55.
Appeal 2018-007906
Application 14/254,786

7
2019 Revised Guidance, 84 Fed. Reg. at 52–56.

Independent claim 1 and dependent claim 2
Appellant argues claims 1 and 2 as a group. Appeal Br. 11–16; Reply
Br. 3–9. We select independent claim 1 as representative. Claim 2 stands or
falls with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Step One of the Mayo/Alice Framework
With regard to the first step of the Mayo/Alice framework and
Step 2A, Prong One of the 2019 Revised Guidelines, 84 Fed. Reg. at 54, the
Examiner determines that exemplary independent claim 1 broadly recites “a
method for managing of schedules within a calendar.” Final Act. 3. The
Examiner considers this to be an abstract idea, inasmuch as the claims are
similar to “concepts relating to processes of organizing information that can
be performed mentally . . . , such as collecting information, analyzing it, and
displaying certain results of the collection and analysis (Electric Power
Group) and data recognition and storage (Content Extraction).” Id. at 3–4.
In response, Appellant argues that independent claim 1 is not directed
to an abstract idea because “[t]he Office Action . . . overgeneralizes the
claim in a way that was directly warned against by the Federal Circuit when
performing the abstract idea step of the patent eligibility analysis.” Appeal
Br. 11 (emphasis omitted); see also Reply Br. 3–5. According to Appellant,
[w]hen considering claim l as a whole, it is apparent that the claim is about
much more than just ‘managing of schedules within a calendar.’” Appeal
Br. 11; Reply Br. 3–5.
We are not persuaded that the Examiner erred in determining that
independent claim 1 is directed to an abstract idea. The Federal Circuit has
Appeal 2018-007906
Application 14/254,786

8
explained that “the ‘directed to’ inquiry applies a stage-one filter to claims,
considered in light of the specification, based on whether ‘their character as
a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp.
v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks
whether the focus of the claims is on a specific improvement in relevant
technology or on a process that itself qualifies as an “abstract idea” for
which computers are invoked merely as a tool. See id. at 1335–36.
In making this determination we note that the Specification is titled
“APPOINTMENT NEGOTIATION SYSTEMS AND METHODS,” and
states that the disclosure relates generally “to the field of scheduling
systems” and “more specifically to a scheduling system and method
incorporating an appointment negotiation.” Spec. ¶ 2. According to the
Specification, “[m]ost computer-based collaboration tools are project or
team-centric,” such that, in the process of scheduling appointments,
“[d]ifferent users may use different applications to manage interaction with
other users.” Id. ¶ 3. The Specification identifies that, in order to schedule
appointments, “[s]ome people use e-mail, text messages, or video chat to
communicate with other users to reach a consensus on the time and location
that is agreeable to everyone.” Id. The Specification acknowledges that
“[t]here are many applications that promise to connect individuals,” but
instead, these application “keep individuals further apart.” Id. To address
these drawbacks, the present invention “allows two or more users to
negotiate in setting up an appointment, without the users using another
calendar application or email.” Id. ¶ 37.
Appeal 2018-007906
Application 14/254,786

9
Consistent with this disclosure, independent claim 1 recites a method
comprising steps for (1) “forming a group of members” (step [a]); (2)
“determining … a corresponding messaging protocol” and “sending an
appointment request message to each member of the group of members”
(steps [b], [c]); (3) “receiving responses to the appointment request
message” (step [d]); and (4) “updating the calendar system of each member
of the group of members” (step [e]).
Upon reviewing the Specification and independent claim 1, as
summarized above, we agree with the Examiner that independent claim 1
recites broadly a series of steps for the “manag[ement] of schedules within a
calendar” (Final Act. 3), which can be characterized as a certain method of
organizing human activity. Here, independent claim 1 forms a group of
members (step [a]), determines a messaging protocol and sends an
appointment request using the protocol (steps [b], [c]), and then receives
responses and updates the calendar system by adding a calendar event (steps
[d], [e]). In other words, claim 1 broadly recites a method for managing
schedules within a calendar by analyzing information (e.g., forming a group
of members and determining, for each member in the group of members, a
corresponding messaging protocol), sending information (e.g., sending an
appointment request message), receiving information (e.g., receiving
responses), and analyzing information (e.g., updating the calendar system by
adding a calendar event). Cf. Final Act. 3–4.
Thus, it is clear that independent claim 1 recites a form of schedule
management that, under the 2019 Revised Guidance, falls under the category
of “[c]ertain methods of organizing human activity.” and more specifically,
“managing personal behavior or relationships or interactions between people
Appeal 2018-007906
Application 14/254,786

10
(including social activities, teaching, and following rules or instructions).”
2019 Revised Guidance, 84 Fed. Reg. at 52. Accordingly, independent
claim 1 recites an abstract idea. See Electric Power Grp., LLC v. Alstom
S.A., 830 F.3d 1350, 1351–54 (Fed. Cir. 2016) (claim for detecting events by
receiving, detecting, analyzing, displaying, accumulating, and updating data,
and deriving a composite indicator from that data was directed to the
abstract idea of “collecting information, analyzing it, and displaying certain
results of the collection and analysis”).
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, we turn to Step 2A, Prong Two of the 2019 Revised Guidance
and determine whether the claim integrates the recited judicial exception
into a practical application of the judicial exception. Here we look to see if,
for example, any additional elements of the claim (i) reflect an improvement
in the functioning of a computer or to another technological field, (ii)
implement the judicial exception with, or by use of, a particular machine,
(iii) effect a transformation or reduction of a particular article to a different
state or thing, or (iv) use the judicial exception in some other meaningful
way beyond generally linking the use of the judicial exception to a particular
technological environment. See 2019 Revised Guidance, 84 Fed. Reg. at 55;
see also MPEP §§ 2106.05(a)–(c), (e)–(h).
According to the Examiner, the additional elements recited in claim 1
beyond the abstract idea are the steps of “sending an appointment request
message,” “receiving responses to the appointment request message,” and
“updating the calendar system.” However, these additional elements are
described generically in the Specification (see, e.g., Spec. ¶¶ 38–45, 53–64,
91–99). We find no indication in the Specification, nor does Appellant
Appeal 2018-007906
Application 14/254,786

11
direct us to any indication, that the steps recited in claim 1 invoke any
assertedly inventive programming, require any specialized computer
hardware or other inventive computer components, i.e., a particular machine,
or that the claimed invention is implemented using other than generic
computer components to perform generic computer functions. See DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)
(“[A]fter Alice, there can remain no doubt: recitation of generic computer
limitations does not make an otherwise ineligible claim patent-eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record that attributes an
improvement in computer technology and/or functionality to the claimed
invention or that otherwise indicates that the claimed invention integrates the
abstract idea into a “practical application,” as that phrase is used in the
2019 Revised Guidance.
Appellant argues that independent claim 1 “is focused on a specific
improvement in computer capabilities that is not abstract.” Appeal Br. 11,
13–15; Reply Br. 3–5. Appellant attributes this purported technical
improvement to the steps of “determining,” “sending,” and “receiving,”,
which together “allow for users that are using different applications or even
no application and only text messaging to establish an appointment time for
a meeting while using their different messaging protocols.” Appeal Br. 15
(emphases omitted).
Appellant’s argument is not persuasive. Here, the focus of
independent claim 1 is not on any technological advancement, but rather on
the implementation of the abstract idea, “for which computers are invoked
Appeal 2018-007906
Application 14/254,786

12
merely as a tool.” See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336
(Fed. Cir. 2016). In this regard, the Specification discloses: that the
Appointment negotiation system 104 includes a
processing circuit 1002 including a processor 1004 and memory
1006. Processor 1002 may be implemented as a general purpose
processor, an application specific integrated circuit (ASIC), one
or more field programmable gate arrays (FPGAs), a group of
processing components, or other suitable electronic processing
components. Memory 1004 is one or more devices (e.g., RAM
ROM, flash memory, hard disk storage, etc.) for storing data
and/or computer code for completing and/or facilitating the
various user or client processes, layers, and modules described in
the present disclosure.
Spec. ¶ 92. And, Appellant has not persuasively explained how the claimed
steps of “determining,” “sending,” and “receiving,” provide a technological
improvement or overcome a problem specifically arising in the realm of
computer networks. For example, with respect to the step of
“determining . . . a corresponding messaging protocol to be used for
communicating with the member,” the Specification discloses that a server
computer determines a method of communication, i.e., “corresponding
messaging protocol,” based simply on a stored user list. Spec. ¶ 151. More
particularly, the Specification discloses that
[t]he mobile device may communicate with a server computer to
determine which of the phone numbers or e-mails of the invitees
has been previously registered with the client application on the
mobile device. When a user has previously registered the user
receives push notification through the application platform, or
text messages based on the selected settings. Users that have not
previously registered receive message through the SMS, or text
message platform.
Id. Here, independent claim 1, unlike the claims found non-abstract in prior
cases, uses generic computer technology and processes to analyze, send, and
Appeal 2018-007906
Application 14/254,786

13
receive scheduling information, and does not recite an improvement to a
particular computer technology. See 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”).
Appellant contends that the claims on appeal are similar to the claims
“in Enfish, McRO, Finjan, and Core Wireless” because “the claims of the
present application are directed to software-based innovations that make
non-abstract improvements to computer technology.” Reply Br. 4; see also
Appeal Br. 13. We cannot agree.
In Enfish, the Federal Circuit rejected a § 101 challenge at step one of
the Mayo/Alice analysis because the claims focused on “a specific type of
data structure [i.e., a self-referential table for a computer database] designed
to improve the way a computer stores and retrieves data in memory.”
Enfish, 822 F.3d at 1339. The court emphasized that the claims were not
directed to any form of storing tabular data, but were instead directed to a
self-referential table for a computer database. Id. at 1337. And, the court
explained that the table stored information related to each column in rows of
the table, such that new columns could be added by simply creating new
rows. Id. at 1338. Based on the “plain focus of the claims,” the court, thus,
held that the claims were directed to “a specific improvement to the way
computers operate, embodied in the self-referential table,” and, as such,
were more than a mere abstract idea. Id. at 1336.
In McRO, the Federal Circuit premised its determination that the
claims were patent-eligible, not merely on the specificity of the claimed
animation scheme, but rather on the fact that the claims, when considered as
Appeal 2018-007906
Application 14/254,786

14
a whole, were directed to a technological improvement over the existing,
manual 3-D animation techniques and used limited rules in a process
specifically designed to achieve an improved technological result in
conventional industry practice. See McRO, 837 F.3d at 1314–15.
In Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir.
2018), the question was “whether [the claimed] behavior-based virus scan
. . . constitutes an improvement in computer functionality,” and the court
found the claimed behavior-based virus scan constituted an improvement in
computer functionality over “traditional, ‘code-matching’ virus scans.”
Finjan, 879 F.3d at 1304. The court determined that the claimed method
employed a new kind of file that allowed access to be tailored to different
users, and allowed the system to accumulate and use newly available,
behavior-based information regarding potential threats. Id. at 1305. The
court ultimately held the Finjan claims were “directed to a non-abstract
improvement in computer functionality, rather than the abstract idea of
computer security,” and “recite[d] specific steps––generating a security
profile that identifies suspicious code and linking it to a downloadable––that
accomplish the desired result.” Id.
And, in Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d
1356 (Fed. Cir. 2018), the claims were directed to “an improved user
interface for electronic devices, particularly those with small screens.” Core
Wireless, 880 F.3d at 1363. The specification described that “prior art
interfaces had many deficits relating to the efficient functioning of the
computer, requiring a user ‘to scroll around and switch views many times to
find the right data/functionality,’” and disclosed that the claimed invention
improved the “efficiency of using the electronic device by bringing together
Appeal 2018-007906
Application 14/254,786

15
‘a limited list of common functions and commonly accessed stored data,’
which can be accessed directly from the main menu.” Id. The specification
also disclosed that “[t]he speed of a user’s navigation through various views
and windows” was improved because it “saves the user from navigating to
the required application, opening it up, and then navigating within that
application to enable the data of interest to be seen or a function of interest
to be activated” — disclosure that the Federal Circuit concluded “clearly
indicates that the claims are directed to an improvement in the functioning of
computers, particularly those with small screens.” Id.
After considering Appellant’s arguments regarding Enfish, McRO,
Finjan, and Core Wireless, we are not persuaded that a comparable situation
is presented here. There is a fundamental difference between technological
or computer functionality improvements, on the one hand, and uses of
existing computers as tools to perform a particular task, on the other. Here,
the Specification generically describes the technical environment (see, e.g.,
Spec. ¶ 92) and does not disclose any related technical improvements.
Indeed, the Federal Circuit applied this distinction in Enfish because the
claims in Enfish focused on a specific type of data structure, i.e., a self-
referential table for a computer database, designed to improve the way a
computer carries out its basic functions of storing and retrieving data, and
not on asserted advances in uses to which existing computer capabilities
could be put, i.e., merely using the computer as a tool to perform the abstract
idea. Enfish, 822 F.3d 1335–36.
Here, there is no such improvement to technology or a technological
process. The Appellant does not assert an improvement in the technical or
technological aspects operative to analyze information (i.e., determine a
Appeal 2018-007906
Application 14/254,786

16
corresponding messaging protocol), send information (e.g., an appointment
request message), receive information (e.g., responses), and analyze
additional information (i.e., update the calendar system). The Appellant also
does not direct our attention to anything in the Specification to indicate that
the invention provides a technical improvement or that exemplary
independent claim 1 incorporates technical improvements, such as, rules to
automate a subjective task of humans, similar to those in McRO.
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework,
whether claim 1 includes additional elements or a combination of elements
that provides an “inventive concept,” i.e., whether the additional elements
amount to “significantly more” than the judicial exception itself.
2019 Revised Guidance, 84 Fed. Reg. at 56.
Appellant argues that “[t]he elements of the present claims and the
combinations thereof were not widely prevalent or in common use in the
relevant industry, and the Office Action and Examiner’s Answer fail to
provide any facts to indicate that the specific limitations and combinations
thereof were ever in use in the relevant industry,” as required by Berkheimer
v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018). Reply Br. 6. However, “the
relevant inquiry is not whether the claimed invention as a whole is
unconventional or non-routine.” BSG Tech LLC v. BuySeasons, Inc.,
899 F.3d 1281, 1290 (Fed. Cir. 2018). Instead, the question is whether the
claim includes additional elements, i.e., elements other than the abstract idea
itself, that “‘transform the nature of the claim’ into a patent-eligible
Appeal 2018-007906
Application 14/254,786

17
application.” Alice Corp., 573 U.S. at 217 (quoting Mayo, 566 U.S. at 79,
78).
Here, the Examiner determined that “the claim recites the additional
elements of: sending an appointment request message …; receiving
responses to the appointment request message …; and updating the calendar
system … based on the received responses.” Final Act. 4. The Examiner
further determined that
the elements of the server are recited at a high level of generality and
given the broadest reasonable interpretation are simply generic
computers performing generic computer functions of: receiving,
processing, and storing data; transmitting data over a network; and
electronic recordkeeping.
Id. Consequently, the Examiner concludes that
the claims merely amount[] to the application or [sic] instructions
to apply the abstract idea (i.e. manag[ement] of schedules within
a calendar) on a computer, and is considered to amount to
nothing more than requiring a generic computer system (e.g. a
generic processor) to merely carry out the abstract idea itself.
Id. at 5.
We agree with the Examiner that the steps performed by these
components are well-understood, routine, or conventional. As discussed
above, there is nothing in the Specification to indicate that the steps recited
in claim 1 require any specialized hardware or inventive computer
components or that the claimed invention is implemented using anything
other than generic computer components to perform generic computer
functions, e.g., analyzing, sending, and receiving information.
Viewed as a whole, independent claim 1 simply recites a series of
steps instructing how to manage calendar event scheduling. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (“[T]he
Appeal 2018-007906
Application 14/254,786

18
claimed sequence of steps comprises only ‘conventional steps, specified at a
high level of generality,’ which is insufficient to supply an ‘inventive
concept.’”) (Citing Alice, 134 S. Ct. at 2357). Here, independent claim 1
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, as discussed above with respect to prong two of step 2A.
Instead, independent claim 1 amounts to nothing significantly more than an
instruction to apply the abstract idea using generic computing elements,
which under our precedents, is not enough to transform an abstract idea into
a patent-eligible invention. See Alice, 134 S. Ct. at 2360.
Appellant’s other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-
related guidance issued prior to the Ninth Edition, R-08.2017, of the MPEP
(published Jan. 2018) should not be relied upon.”))).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of independent claim 1, and dependent
claim 2, which falls with independent claim 1.

Independent claim 3 and dependent claims 4–8, 10–11
Appellant argues claims 3–8 and 10–11 as a group. Appeal Br. 16–
20; Reply Br. 14. We select independent claim 3 as representative. The
remaining claims stand or fall with claim 3. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 3 recites generally a method comprising “receiving a request
from a user to establish an appointment …,” “determining … a
Appeal 2018-007906
Application 14/254,786

19
corresponding messaging protocol,” “sending … a corresponding
negotiating message using the corresponding messaging protocol,”
“receiving … one or more corresponding responses indicating an approval
of rejection,” and “determining … a time for the appointment for the
meeting.”
Appellant’s arguments for independent claim 3 are based on the same
arguments discussed above with respect to independent claim 1 (see Appeal
Br. 16–20). As such, we are similarly not persuaded by Appellant’s
arguments for the same reasons as to independent claim 1, supra. Therefore,
we sustain the rejection of independent claim 3, and its respective dependent
claims under 35 U.S.C. § 101.

Independent claim 12 and dependent claims 13–17
Appellant argues claims 12–17 as a group. Appeal Br. 20–23; Reply
Br. 16. We select independent claim 12 as representative. The remaining
claims stand or fall with claim 12. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 12 recites generally an apparatus comprising an appointment
negotiation system configured to execute computer code to perform a
process comprising “receiving one or more plans for a meeting,” “receiving,
using a text messaging protocol for short message service (SMS) text
messages, one or more text message responses,” “receiving, from a user
application executed on a remote device using a protocol for the user
application, at least one response from at least one of the at least two
invitees,” “determining … a time for an appointment for the meeting,” and
“sending a message to the organizer and the at least two invitees regarding
the time for the appointment for the meeting.”
Appeal 2018-007906
Application 14/254,786

20
Appellant’s arguments for independent claim 12 are based on the
same arguments discussed above with respect to independent claim 1 (see
Appeal Br. 20–23). As such, we are similarly not persuaded by Appellant’s
arguments for the same reasons as to independent claim 1, supra. Therefore,
we sustain the rejection of independent claim 12, and its respective
dependent claims under 35 U.S.C. § 101.

Obviousness
The Rejection of Claims 1–6, 10, 12–15 under 35 U.S.C. § 103(a)
as unpatentable over Beckhardt and Alharayeri.
Independent Claim 1 and Dependent Claim 2.
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claim 1 under 35 U.S.C. § 103(a) because Alharayeri,
upon which the Examiner relies, fails to disclose or suggest “sending an
appointment request message to each member of the group of members
using the corresponding messaging protocol for the member, the
appointment request message including one or more plans for a meeting, the
one or more plans each comprising time and location information,” as
recited by limitation [c] of independent claim 1. Appeal Br. 23–29; Reply
Br. 9–14.
The Examiner maintains that the rejection is proper, and cites
Alharayeri, as disclosing “sending a message to each member of the group
of members using the corresponding messaging protocol for the member,
including one or more plans for a meeting.” Ans. 12–13 (citing Alharayeri
¶¶ 23, 36); Final Act. 10–11 (citing Alharayeri ¶¶ 23, 36). However, we
agree with Appellant that there is nothing in the cited portions that discloses
or suggests the argued limitation.
Appeal 2018-007906
Application 14/254,786

21
In making this determination, we note that independent claim 1 recites
determining, for each member in the group of members, a
corresponding messaging protocol to be used for communicating
with the member, wherein the corresponding messaging protocol
is at least one of a messaging protocol for short message service
(SMS) text messages or a messaging protocol for a user
application having push notifications;
Appeal Br. 41, Claims App. Independent claim 1 further recites
sending an appointment request message to each member of the
group of members using the corresponding messaging protocol
for the member, the appointment request message including one
or more plans for a meeting, the one or more plans each
comprising time and location information.
Id. Therefore, the claimed step of “sending an appointment request
message” requires a corresponding messaging protocol that “is at least one
of a messaging protocol for short message service (SMS) text messages or a
messaging protocol for a user application having push notifications.”
We further note that the rejection of record does not assert that
Alharayeri discloses “a messaging protocol for a user application having
push notifications” in the context of “sending an appointment request
message.” Final Act. 10. Instead, the rejection of record relies on
Alharayeri as disclosing sending a message using a messaging protocol for
short message service (SMS) text messages. Id.
Alharayeri is directed to “exchanging information using mobile
communication devices and, in particular, exchanging personal information
between one or more mobile communication devices.” Alharayeri ¶ 2. In
one embodiment, Alharayeri “allows individuals to use their mobile phones
to discover others . . . over the [I]nternet by bypassing the inherent
limitations of existing Bluetooth technology.” Id. ¶ 9. For example, a
Appeal 2018-007906
Application 14/254,786

22
requesting user may transmit an invitation to a discovered user in order to
exchange information with the discovered user. Id. ¶¶ 14, 23. However,
Alharayeri discloses that, in order to enable the exchange of personal
information via communications with the service, a user must register with
the service by downloading a client-side application to the user’s mobile
device. Id. ¶¶ 36, 38. As a result, the system of Alharayeri
sends to the mobile device a notification via SMS (Short
Messaging Service). The SMS message, also known as a text
message, alerts the new user to click on an internet link to install
the service provider’s client-side application on his/her mobile
device.
Id. ¶ 36.
We have reviewed the cited portions of Alharayeri and agree with
Appellant that none of the cited portions of Alharayeri, alone or in
combination, discloses or suggests the argued limitation. Appeal Br. 25–28.
Instead, we agree with Appellant that, even if Alharayeri discloses sending a
short message service (SMS) text message, Alharayeri does not “allow for
sending one or more plans for a meeting using a messaging protocol for
short message service (SMS) text messages,” as required by limitation [c] of
independent claim 1. Appeal Br. 25. Although we agree with the Examiner
that Alharayeri discloses sending an SMS text message (Ans. 9), we cannot
agree with the Examiner that Alharayeri discloses a “sending a message to
each member of the group of members using the corresponding messaging
protocol for the member, including one or more plans for a meeting.” Final
Act. 8 (emphasis added). Specifically, Alharayeri discloses that SMS text
messages are only transmitted as a prompt to download and install the
service provider’s client-side application, which is required to enable
communication with the service. Alharayeri ¶¶ 36, 38. The service of
Appeal 2018-007906
Application 14/254,786

23
Alharayeri does not, however, disclose sending one or more plans for a
meeting using an SMS text message. Cf. Final Act. 8–11.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1 under 35 U.S.C. § 103(a). For the same reasons, we
also do not sustain the Examiner’s rejection of dependent claim 2, which is
not argued separately.

Independent Claim 3 and Dependent Claims 4–6 and 10.
We are not persuaded by Appellant’s argument that the Examiner
erred in rejecting independent claim 3 under 35 U.S.C. § 103(a) because the
combination of Beckhardt and Alharayeri fails to disclose the subject matter
of independent claim 3. See Appeal Br. 29–34; Reply Br. 14. Instead, we
agree with, and adopt, the Examiner’s findings and rationales as our own.
see Final Act. 11–16 (citing Beckhardt, col. 2, ll. 22–30, col. 3, ll. 5–15,
col. 5, ll. 32–43, col. 7, ll. 15–20, col. 8, ll. 36–54, col. 9, ll. 14–53, col. 10,
ll. 48–56; Alharayeri ¶¶ 10, 14, 23, 35–36, 51 and cl. 14). We add the
following discussion for emphasis.
Appellant argues that the combination of Beckhardt and Alharayeri
fails to disclose or suggest
determining, for each of the at least two invitees, a corresponding
messaging protocol to be used for communicating with the
invitee, wherein the corresponding messaging protocol is at least
one of a messaging protocol for short message service (SMS) text
messages or a messaging protocol push notifications for a user
application.
Appeal Br. 29. More particularly, Appellant argues that Alharayeri does not
disclose “wherein the corresponding messaging protocol is at least one of a
messaging protocol for short message service (SMS) text messages or a
Appeal 2018-007906
Application 14/254,786

24
messaging protocol push notifications for a user application” because “[t]he
only use of SMS in Alharayeri is to send a web link to the client-side
application that the user clicks on to install the client-side application.” Id.
29–30. We do not find this argument persuasive.
At the outset, we note that the Examiner does not rely on Alharayeri
alone to address the argued limitation, but rather on the combined teachings
of Beckhardt and Alharayeri. Final Act. 11–16. In contrast to Appellant’s
argument, the Examiner relies on Beckhardt to address: (i) “determining, for
each of the at least two invitees, a corresponding messaging protocol to be
used for communicating with the invitee” (see Final Act. 13 (citing
Beckhardt, col. 10, ll. 48–56)); (ii) “sending, to each of the at least two
invitees, a corresponding negotiating message using the corresponding
messaging protocol” (see Final Act. 13 (citing Beckhardt, col. 5, ll. 32–43;
col. 9, ll. 42–53)); and (iii) “the corresponding negotiating message
comprising one or more plans for a meeting, each plan including time
information and location information for the meeting” (see Final Act. 13
(citing Beckhardt, col. 9, ll. 26–35)). The Examiner acknowledges that
“Beckhardt does not [disclose] wherein the corresponding messaging
protocol is at least one of a messaging protocol for short message service
(SMS) text messages or a messaging protocol for a user application having
push notifications.” Final Act. 14.
The Examiner finds, however, that Alharayeri remedies the
aforementioned deficiency of Beckhardt as “Alharayeri teaches wherein the
corresponding messaging protocol is at least one of a messaging protocol for
short message service (SMS) text messages or a messaging protocol for a
Appeal 2018-007906
Application 14/254,786

25
user application having push notifications.” Id. (citing Alharayeri ¶¶ 10, 14,
23, 35–36, 51 and cl. 14).
We are not persuaded of error by Appellant’s argument that
“Alharayeri does not allow for sending an invitation for a meeting through
SMS” (see Appeal Br. 31) because the argument attacks the references
individually rather than as combined by the Examiner in the rejection.
“Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). As discussed above,
the Examiner does not rely on Alharayeri for disclosing “sending, to each of
the at least two invitees, a corresponding negotiating message using the
corresponding messaging protocol.” See Final Act. 13 (citing Beckhardt,
col. 5, ll. 32–43; col. 9, ll. 42–53). Rather, the Examiner relies on
Alharayeri only as disclosing “wherein the corresponding messaging
protocol is at least one of a messaging protocol for short message service
(SMS) text messages or a messaging protocol for a user application having
push notifications” (Id. at 14 (citing Alharayeri ¶¶ 10, 14, 23, 35–36, 51 and
cl. 14)), and, as discussed above, Alharayeri discloses sending an SMS text
message. Appellant has presented no persuasive argument or technical
reasoning to demonstrate that the Examiner’s finding is unreasonable or
unsupported.
We also are not persuaded of error by Appellant’s argument that the
Examiner’s proposed combination of Beckhardt and Alharayeri is improper
because it is based on the impermissible use of hindsight. Appeal Br. 33–34.
In this regard, we note the Examiner provides articulated reasoning with
Appeal 2018-007906
Application 14/254,786

26
some rational underpinning to support the obviousness determination (see
Final Act. 15–16). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
In view of the foregoing, we sustain the Examiner’s rejection of
independent claim 3 under 35 U.S.C. § 103(a). For the same reasons, we
also sustain the Examiner’s rejection of dependent claims 4–6 and 10, which
are not argued separately.

Independent Claim 12 and Dependent Claims 13–15.
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claim 12 under 35 U.S.C. § 103(a) because
Alharayeri, upon which the Examiner relies, fails to disclose or suggest
“receiving, using a text messaging protocol for short message service (SMS)
text messages, one or more text message responses from one or more of the
at least two invitees, the one or more text message responses indicating an
approval or rejection of the one or more plans,” as recited by independent
claim 12. Appeal Br. 34–39; Reply Br. 14–16.
The Examiner maintains that the rejection is proper, and cites
Alharayeri, as disclosing “using a text messaging protocol for short message
service (SMS) text messages, one or more text message[s]; the one or more
text message responses.” Ans. 13–14 (citing Alharayeri ¶¶ 14, 23, 36); Final
Act. 18 (citing Alharayeri ¶¶ 14, 23, 36). However, we agree with Appellant
that there is nothing in the cited portions that discloses or suggests the
argued limitation.
In making this determination, we note that Alharayeri is directed to
“exchanging information using mobile communication devices and, in
Appeal 2018-007906
Application 14/254,786

27
particular, exchanging personal information between one or more mobile
communication devices.” Alharayeri ¶ 2. As summarized above, Alharayeri
discloses that, in order to enable the exchange of personal information via
communications with the service, a user must register with the service by
downloading a client-side application to the user’s mobile device. Id. ¶¶ 36,
38. As a result, the system of Alharayeri
sends to the mobile device a notification via SMS (Short Messaging
Service). The SMS message, also known as a text message, alerts the
new user to click on an internet link to install the service provider’s
client-side application on his/her mobile device.
Id. ¶ 36.
We have reviewed the cited portions of Alharayeri and agree with
Appellant that none of the cited portions of Alharayeri, alone or in
combination, discloses or suggests the argued limitation. Instead, we agree
with Appellant that, even if Alharayeri discloses sending a short message
service (SMS) text message, Alharayeri does not disclose “receiving, using a
text messaging protocol for short message service (SMS) text messages, one
or more text message responses from one or more of the at least two
invitees,” as required by independent claim 12. Appeal Br. 35. Although
we agree with the Examiner that Alharayeri discloses sending an SMS text
message (Ans. 13–14), we cannot agree with the Examiner that Alharayeri
discloses a “receiving . . . one or more text message responses” because
Alharayeri discloses that SMS text messages are only transmitted from the
service provider to the user as a prompt to download and install the service
provider’s client-side application, which is required to enable
communication with the service. Alharayeri ¶¶ 36, 38. The service of
Appeal 2018-007906
Application 14/254,786

28
Alharayeri does not, however, disclose receiving text message responses
using an SMS text message.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 12 under 35 U.S.C. § 103(a). For the same reasons, we
also do not sustain the Examiner’s rejection of dependent claims 13–15,
which are not argued separately.

The Rejection of Claims 7, 8, 11, 16, and 17 under 35 U.S.C. § 103(a) as
unpatentable over Beckhardt, Alharayeri, and Olliphant.
Each of claims 7, 8, and 11 depends, directly or indirectly, from
independent claim 3. Appellant’s argument for the rejections of these claims
are the same as for claim 3. Accordingly, we sustain the Examiner’s
rejection of dependent claims 7, 8, and 11 under 35 U.S.C. § 103(a) for the
same reasons as set forth above with respect to independent claim 3.
Each of claims 16 and 17 depends, directly or indirectly, from
independent claim 12. Accordingly, we do not sustain the Examiner’s
rejection of dependent claims 16 and 17 under 35 U.S.C. § 103(a) for the
same reasons as set forth above with respect to independent claim 12, as the
additional reference, Olliphant, is not cited to remedy the aforementioned
deficiency.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–8, 10–17 101 Eligibility 1–8, 10–17
Appeal 2018-007906
Application 14/254,786

29
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6, 10,
12–15
103 Beckhardt,
Alharayeri
3–6, 10 1, 2,
12–15
7, 8, 11, 16,
17
103 Beckhardt,
Alharayeri,
Olliphant
7, 8, 11 16, 17
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED