Ex Parte Meyer et alDownload PDFPatent Trial and Appeal BoardFeb 13, 201914057396 (P.T.A.B. Feb. 13, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/057,396 10/18/2013 94104 7590 02/14/2019 Taylor English Duma LLP 1600 Parkwood Circle, Suite 200 Atlanta, GA 30339 FIRST NAMED INVENTOR Karl Meyer 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 190330-1012 9494 EXAMINER MILLER, ALAN S ART UNIT PAPER NUMBER 3683 MAIL DATE DELIVERY MODE 02/14/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KARL MEYER and JONATHAN TURNER Appeal2017-008543 Application 14/057 ,396 1 Technology Center 3600 Before JOHNNY A. KUMAR, JENNIFER S. BISK, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43, which are all claims pending in the application. Appellants have canceled claims 3, 6, 8, 9, 16, 19, 20, 22, 25, 27, and 30. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is XPO Last Mile, Inc. App. Br. 2. Appeal2017-008543 Application 14/057 ,396 STATEMENT OF THE CASE2 The Invention Appellants' disclosed embodiments and claimed invention "generally relate[] to surveys, and more particularly relate[] to survey automation." Spec. ,r 2. Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on appeal (emphases and formatting added to contested prior-art limitations): 1. A computer-implemented method for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location and determining if at least one follow-up action is warranted based in part on analyzing survey result information, the computer-implemented method comprising the steps of: conducting the automated survey on the customer regarding the quality of the service performed by the servicer for the customer associated with the customer location, the automated survey being configured by a computer utilizing a processing device to automatically prompt the customer for numerical answers to represent survey result information regarding the quality of the service performed by the servicer for the customer associated with the customer location; after conducting the automated survey on the customer regarding the quality of the service performed by the servicer for the customer associated with the customer location, automatically receiving in one data transmission, by the 2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed Sept. 9, 2016); Reply Brief ("Reply Br.," filed Mar. 10, 2017); Examiner's Answer ("Ans.," mailed Jan. 17, 2017); Final Office Action ("Final Act.," mailed Apr. 11, 2016); and the original Specification ("Spec.," filed Oct. 18, 2013). 2 Appeal2017-008543 Application 14/057 ,396 computer, the survey result information regarding the quality of the service performed by the servicer for the customer associated with the customer location; in response to receiving the survey result information regarding the quality of the service performed by the servicer for the customer associated with the customer location, automatically analyzing by the computer the survey result information by performing a numerical analysis of the survey result information regarding the quality of the service performed by the servicer for the customer associated with the customer location, wherein performing the numerical analysis includes calculating a score; determining, by the computer, if at least one subsequent follow-up action is warranted based at least in part on the calculated score being below a threshold; and determining, by the computer, if at least one subsequent follow-up action is warranted based at least in part on at least one numeric answer indicating a lowest level of satisfaction. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Todd US 6,380,928 Bl Apr. 30, 2002 Trauth et al. US 2002/0138338 Al Sept. 26, 2002 ("Trauth") Shoemaker et al. US 2003/0167197 Al Sept. 4, 2003 ("Shoemaker") Stone et al. US 2005/0203809 Al Sept. 15, 2005 ("Stone") Brinkerhoff US 6,963,848 Bl Nov. 8, 2005 Seetharaman et al. US 2010/0080365 Al Apr. 1, 2010 ("Seetharaman") 3 Appeal2017-008543 Application 14/057 ,396 Rejections on Appeal RI. Claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43 stand rejected under 35 U.S.C. § 101 as being directed to patent- ineligible subject matter. Final Act. 10. R2. Claims 1, 2, 4, 5, 7, 10-15, and 32--43 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Brinkerhoff, Shoemaker, Todd, and Stone. Final Act. 13. R3. Claims 17, 18, 21, 23, 24, 26, 28, 29, and 31 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Brinkerhoff, Shoemaker, Todd, Trauth, Seetharaman, and Stone. Final Act. 28. CLAIM GROUPING Based on Appellants' arguments (App. Br. 11-36) and our discretion under 37 C.F.R. § 4I.37(c)(l)(iv), we decide the appeal of patent-ineligible subjectmatterRejectionRl of claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43 on the basis of representative claim 1; we decide the appeal of obviousness Rejection R2 of claims 1, 2, 4, 5, 7, 10-15, and 32--43 on the basis of representative claim 1; and we decide the appeal of obviousness Rejection R3 of claims 17, 18, 21, 23, 24, 26, 28, 29, and 31 on the basis of representative claim 17. 3 3 "Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately." 37 C.F.R. § 4I.37(c)(l)(iv). In addition, when Appellants do not separately argue the patentability of 4 Appeal2017-008543 Application 14/057 ,396 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellants. To the extent Appellants have not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 4I.37(c)(l)(iv). We disagree with Appellants' arguments with respect to claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43 and, unless otherwise noted, we incorporate by reference herein and adopt as our own: ( 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in response to Appellants' arguments. We highlight and address specific findings and arguments regarding claims 1 and 17 for emphasis as follows. 1. § 101 Rejection RI of Claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43 Issue 1 Appellants argue (App. Br. 12-19; Reply Br. 2---6) the Examiner's rejection of claim 1 under 35 U.S.C. § 101 as being directed to patent- ineligible subject matter is in error. These contentions present us with the following issue: In light of recent USP TO Guidance on subject matter patent eligibility, and informed by our governing case law concerning 35 U.S.C. § 101, did the Examiner err in concluding claim 1 is directed to a judicial dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). 5 Appeal2017-008543 Application 14/057 ,396 exception, i.e., an abstract idea, without significantly more, and thus is patent-ineligible under§ 101? PRINCIPLES OF LAW A. 35 U.S.C. § 101 We first note "[w]hether 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). An invention is patent-eligible if it claims a "new and useful process, machine, manufacture, or composition of matter." 35 U.S.C. § 101.4 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. 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 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. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4 4 This threshold analysis of whether a claim is directed to one of the four statutory categories of invention, i.e., a process, machine, manufacture, or composition of matter, is referred to as "Step l" in the patent-eligibility inquiry under § 101. 6 Appeal2017-008543 Application 14/057 ,396 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 (Gottschalkv. Benson, 409 U.S. 63, 69 (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. 252, 267---68 (1854))); 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 "[a] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula." Diehr, 450 U.S. at 176; 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 7 Appeal2017-008543 Application 14/057 ,396 to a known structure or process may well be deserving of patent protection."). If the claim is "directed to" an abstract idea, we tum 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. ( 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 Guidance The PTO recently published revised guidance in the Federal Register concerning the application of§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019) (hereinafter "Guidance") (https://www.govinfo.gov/content/pkg/FR-2019-01-07 /pdf/ 2018-28282.pdf). Under that 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 interactions such as a fundamental economic practice, or mental processes); 5 and 5 Referred to as "Revised Step 2A, Prong l" in the Guidance (hereinafter "Step 2A(i)"). 8 Appeal2017-008543 Application 14/057 ,396 (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.0S(a}- ( c), (e }-(h)). 6 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 are not "well-understood, routine, conventional" in the field (see MPEP § 2106.0S(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. 7 See Guidance. Step 2A(i) ~ Abstract Idea Informed by our judicial precedent, the recent Guidance extracts and synthesizes key concepts identified by the courts as abstract ideas to explain that the abstract idea exception includes the following groupings of subject matter, when recited as such in a claim limitation: (a) Mathematical concepts-mathematical relationships, mathematical formulas or equations, mathematical calculations; (b) 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 6 Referred to as "Revised Step 2A, Prong 2" in the Guidance (hereinafter "Step 2A(ii)"). 7 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. 9 Appeal2017-008543 Application 14/057 ,396 relationships or interactions between people (including social activities, teaching, and following rules or instructions); and ( c) Mental processes----concepts performed in the human mind (including an observation, evaluation, judgment, opinion). Under the Guidance, if the claim does not recite a judicial exception (a law of nature, natural phenomenon, or subject matter within the enumerated groupings of abstract ideas above), then the claim is patent- eligible at Step 2A(i). This determination concludes the eligibility analysis, except in situations identified in the Guidance. 8 However, if the claim recites a judicial exception (i.e., an abstract idea enumerated above, a law of nature, or a natural phenomenon), the claim requires further analysis for a practical application of the judicial exception in Step 2A(ii). Step 2A(ii) ~ Practical Application If a claim recites a judicial exception in Step 2A (i), we determine whether the recited judicial exception is integrated into a practical application of that exception in Step 2A(ii) by: (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception( s ); and (b) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application. 8 In the rare circumstance in which an examiner believes a claim limitation that does not fall within the enumerated groupings of abstract ideas should nonetheless be treated as reciting an abstract idea, the procedure described in of the Guidance for analyzing the claim should be followed. See Guidance, Section III.C. 10 Appeal2017-008543 Application 14/057 ,396 The seven identified "practical application" sections of the MPEP, 9 cited in the Guidance under Step 2A(ii), are: (1) MPEP § 2106.05(a) Improvements to the Functioning of a Computer or To Any Other Technology or Technical Field (2) MPEP § 2106.05(b) Particular Machine (3) MPEP § 2106.05( c) Particular Transformation (4) MPEP § 2106.05(e) Other Meaningful Limitations (5) MPEP § 2106.05(±) Mere Instructions To Apply An Exception ( 6) MPEP § 2106.05(g) Insignificant Extra-Solution Activity (7) MPEP § 2106.05(h) Field of Use and Technological Environment If the recited judicial exception is integrated into a practical application as determined under one or more of the MPEP sections cited above, then the claim is not directed to the judicial exception, and the patent- eligibility inquiry ends. If not, then analysis proceeds to Step 2B. Step 2B ~ "Inventive Concept" or "Significantly More" Under our precedent, it is possible that a claim that does not "integrate" a recited judicial exception under Step 2A(ii) is nonetheless patent eligible. For example, the claim may recite additional elements that render the claim patent eligible even though a judicial exception is recited in a separate claim element. 10 The Federal Circuit has held claims eligible at 9 See MPEP § 2106.05(a}-(c), (e}-(h). Citations to the MPEP herein refer to revision [R-08.2017]. 10 See, e.g., Diehr, 450 U.S. at 187. 11 Appeal2017-008543 Application 14/057 ,396 the second step of the Alice/Mayo test (US PTO Step 2B) because the additional elements recited in the claims provided "significantly more" than the recited judicial exception ( e.g., because the additional elements were unconventional in combination). 11 Therefore, if a claim has been determined to be directed to a judicial exception under Revised Step 2A, we must evaluate the additional elements individually and in combination under Step 2B to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). 12 Under the Guidance, we must consider in Step 2B whether an additional element or combination of elements: (1) "Adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present;" or (2) "simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present." See Guidance, III.B. 13 11 See, e.g., Amdocs (Israel), Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300, 1304 (Fed. Cir. 2016); BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349-52 (Fed. Cir. 2016); DDR Holdings v. Hotels.com, 773 F.3d 1245, 1257-59 (Fed. Cir. 2014). 12 We note the patent eligibility inquiry may contain underlying issues of fact. Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016). In particular, "[t]he question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact." Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). 13 In accordance with existing Step 2B guidance, an Examiner's conclusion that an additional element ( or combination of elements) is well understood, 12 Appeal2017-008543 Application 14/057 ,396 In the Step 2B analysis, an additional element ( or combination of elements) is not well-understood, routine, or conventional unless the examiner finds an evidentiary basis, and expressly supports a rejection in writing 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 ). 4. A statement that the examiner is taking official notice of the well-understood, routine, conventional nature of the additional element( s ). See Berkheimer Memo. The analysis in Step 2B further determines whether an additional element or combination of elements: (a) Adds a specific limitation or combination of limitations that are not well-understood, routine, conventional routine, conventional activity must be supported with a factual determination. For more information concerning evaluation of well- understood, routine, conventional activity, see MPEP § 2106.05( d), as modified by the USPTO Berkheimer Memorandum (USPTO Commissioner for Patents Memorandum dated Apr. 9, 2018, "Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)" (hereinafter "Berkheimer Memo"). 13 Appeal2017-008543 Application 14/057 ,396 activity in the field, which is indicative that an inventive concept may be present; or (b) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present. Guidance, and see Berkheimer Memo. If the Examiner or the Board determines under Step 2B that the element ( or combination of elements) amounts to significantly more than the exception itself, the claim is eligible, thereby concluding the eligibility analysis. However, if a determination is made that the element and combination of elements does not amount to significantly more than the exception itself, the claim is ineligible under Step 2B, and the claim should be rejected for lack of subject matter eligibility. ANALYSIS Step 1 Claim 1, as a method claim, recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101. Therefore, the issue before us is whether it is directed to a judicial exception without significantly more. Step 2A(i): Does the Claim Recite a Judicial Exception? The Examiner determined that claim 1 is directed to "receiving and analyzing numerical survey information regarding customer satisfaction of a service," i.e., "the claim recites comparing information using rules to make a 14 Appeal2017-008543 Application 14/057 ,396 determination [ which is] simply the organization and comparison of data which can be performed mentally and is an idea of itself." Final Act. 10. From this we see that claim 1 does not recite the judicial exceptions of either natural phenomena or laws of nature. We note "an idea of itself' is no longer a category included in the Guidance, and therefore we reevaluate whether an abstract idea is recited by claim 1 based upon the Guidance. We agree with the Examiner that claim 1 merely organizes and compares survey data, which is a mental process that can be performed in the human mind and/or by pen and paper. Id. We find this type of activity, i.e., comparing information using rules to make a determination (i.e., conducting a survey regarding quality of a service performed and determining if follow-up action is warranted) for example, includes longstanding conduct that existed well before the advent of computers and the Internet, and could be carried out by a human with pen and paper. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) ("That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson."). 14 Our reviewing court has previously held other patent claims ineligible for reciting similar abstract concepts. For example, while the Supreme Court has enhanced the § 101 analysis since Cy her Source in cases like Mayo and Alice, the Federal Circuit continues to "treat[] analyzing information by steps people go through in their minds, ... without more, as essentially 14 CyberSource further guides that "a method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under§ 101." CyberSource, 654 F.3d at 1373. 15 Appeal2017-008543 Application 14/057 ,396 mental processes within the abstract-idea category." Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146-47 (Fed. Cir. 2016) (quoting Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)). In addition, our reviewing court has concluded that abstract ideas include the concepts of collecting data, recognizing certain data within the collected data set, and storing the data in memory. Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Additionally, the collection of information and analysis of information (e.g., recognizing certain data within the dataset) are also abstract ideas. Elec. Power, 830 F.3d at 1353-54 (collecting information and "analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, [are] essentially mental processes within the abstract-idea category"). Similarly, "collecting, displaying, and manipulating data" is an abstract idea. Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017). Also, collecting and comparing known information has been determined to be an abstract idea. Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067 (Fed. Cir. 2011) ("Claim 1 of the '283 patent states the idea of collecting and comparing known information"). Also, more recently, our reviewing court has also concluded that acts of parsing, comparing, storing, and editing data are abstract ideas. Berkheimer, 881 F.3d at 1366. 15 Moreover, the Specification provides evidence as to what the claimed invention is directed. In this case, the Specification discloses that the 15 Our reviewing court recognizes that "[a]n abstract idea can generally be described at different levels of abstraction." Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does not, "impact the patentability analysis." Id. at 1241. 16 Appeal2017-008543 Application 14/057 ,396 invention "generally relates to surveys, and more particularly relates to survey automation." Spec. ,r 2. Claim 1 provides additional evidence. Claim 1 recites, in part, "[a] computer-implemented method for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location and determining if at least one follow-up action is warranted based in part on analyzing survey result information." In particular, claim 1 recites: in response to receiving the survey result information regarding the quality of the service performed by the servicer for the customer associated with the customer location, automatically analyzing by the computer the survey result information by performing a numerical analysis of the survey result information regarding the quality of the service performed by the servicer for the customer associated with the customer location, wherein performing the numerical analysis includes calculating a score. Claims App'x 1. We conclude this limitation recites an abstract idea. 16 Appellants rely upon the Federal Circuit's holding in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) to contend alleged improvements in computer operation allow claims to pass the abstract idea test in Alice. In particular, Appellants argue: Applicant's claims here, just like the claims in Enfish, are "directed to a specific improvement to the way computers operate" ... examples of which are "automatically receiving in one data transmission, by the computer, the survey result information," "automatically analyzing ... " the information, 16 The Specification at paragraph 2 describes the invention as relating "to surveys, and more particularly relates to survey automation." Spec. ,r 2. Thus, this intrinsic evidence shows that claim 1 is directed to collecting and analyzing (survey) data. This is consistent with the Examiner's determination. 17 Appeal2017-008543 Application 14/057 ,396 "determining, by the computer, if at least one subsequent follow-up action is warranted based at least in part on the calculated score being below a threshold," and "determining, by the computer, if at least one subsequent follow-up action is warranted based at least in part on at least one numeric answer indicating a lowest level of satisfaction," recited features common to all remaining independent claims. The one data transmission and computer analysis performed thereafter presented in the independent claims, alone, and in the combinations as claimed, provide specific improvements in the way the computer system operates with increased bandwidth, improved efficiency in processing power, and more efficient use of communication technology. The survey conducting module and the survey result analyzing module, for example, provide a coordinated effort that triggers surveys at appropriate times, analyzes the survey result information, determines if a follow-up action is warranted, and sends the appropriate information to the servicer (e.g. field engineer) and client, and in tum saves performance bandwidth throughout the survey follow-up system. See Specification at ,r,r [0063]-[0068], [0072]. Further, efficient use of bandwidth and processing power used by the survey follow-up module is accomplished by sending, in one data transmission, an e-mail to "transmit the survey result information and recorded voice messages and/ or links to the information and voice messages ... to both the client and the field manager." Id. Therefore, the survey result analysis system provides a more efficient use of communication technology used within the survey follow-up system. Such improvements in computer functioning allow claims to pass Part 1 of the Alice test. App. Br. 14--15. 17 17 Appellants further contend "claims 29-31 are directed towards statutory subject matter because they include means-plus-function limitations ... [that] are 'not capable of being performed by just any generic computer that performs generic computer functions' .... Rather, the means-plus-function limitations encompass the processing steps 'that amount to a specific algorithm that transforms an otherwise general purpose computer into a 18 Appeal2017-008543 Application 14/057 ,396 In Enfzsh, our reviewing court held claims directed to a self-referential logical model for a computer database patent-eligible under step one of Alice. Enfzsh, 822 F.3d at 1330. The disclosed technique enabled faster searching and more effective storage of data than previous methods. Id. at 1333. The court found the claims directed to "a specific improvement to the way computers operate, embodied in the self-referential table" (id. at 1336), and explained that the claims are "not simply directed to any form of storing tabular data, but instead are specifically directed to a self- referential table for a computer database" that functions differently than conventional databases. Id. at 1337. We find Appellants' reliance upon Enfzsh is misplaced, for similar reasons cited by the Examiner, with which we agree. Specifically, in addressing Appellant's arguments, it is noted that the term and concept of "single data transmission" does not appear in Appellant's above cited paragraphs of Appellant's specification, nor anywhere else, either implicitly nor explicitly. Further, the above cited paragraphs of Appellant's specification make no mention or reference to "bandwidth", or the improvement of or efficient use of bandwidth or processing power. Ans. 4. In the Reply Brief, Appellants state they "respectfully disagree[] and in the next subsection of this Response, Applicant articulates below why these claimed elements are inherently found in the specification .... special purpose computer programmed to perform the recited function."' App. Br. 15 ( citation and emphasis omitted). We are not persuaded by Appellants' argument at least because none of claims 29-31 on appeal (as found in the Claims Appendix in the "RESPONSE TO NOTIFICATION OF NON-COMPLIANT APPEAL BRIEF" filed October, 17, 2016) recite means plus function limitations under 35 U.S.C. § 112, sixth paragraph. 19 Appeal2017-008543 Application 14/057 ,396 Appellant submits that 'one data transmission' would be understood by one of ordinary skill in the art as being inherent in the original description." Reply Br. 5 (citing MPEP § 2163(I)(B), ,I 2 and Spec. ,r,r 71-72. We disagree because there is no evidence of record to substantiate such a finding that "one data transmission" is inherently disclosed in Appellants' Specification. 18 Thus, under Step 2A (i), we conclude claim 1 recites the abstract idea of conducting a survey, i.e., organizing and comparing survey data, and using rules to make a determination. 18 In the event of further prosecution, we leave it to the Examiner to determine whether the claims on appeal have adequate written description support under 35 U.S.C. § 112, first paragraph, with respect to the recitation of "one data transmission," a limitation added during prosecution. Written description is a question of fact, judged from the perspective of one of ordinary skill in the art as of the relevant filing date. See Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563---64 (Fed. Cir. 1991). However, "actual 'possession' or reduction to practice outside of the specification is not enough. Rather ... it is the specification itself that must demonstrate possession." Ariad Pharmaceuticals, Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010); see also PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1306--07 (Fed. Cir. 2008) (explaining that§ 112, ,r 1 "requires that the written description actually or inherently disclose the claim element"). "[I]t is not a question of whether one skilled in the art might be able to construct the patentee's device from the teachings of the disclosure. Rather, it is a question whether the application necessarily discloses that particular device .... A description which renders obvious the invention for which an earlier filing date is sought is not sufficient." Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997) (quoting Jepson v. Coleman, 314 F.2d 533,536 (CCPA 1963)). Although the Board is authorized to reject claims under 37 C.F.R. § 4I.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02. 20 Appeal2017-008543 Application 14/057 ,396 Step 2A(ii): Judicial Exception Integrated into a Practical Application? If the claims are directed to a patent-ineligible concept, as we conclude above, we proceed to the "practical application" Step 2A(ii) in which we determine whether the recited judicial exception is integrated into a practical application of that exception by: (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (b) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application. In addition to the abstract "analyzing ... the survey results" limitation identified in Step 2A(i), supra, claim 1 recites (1) "conducting the ... survey," (2) "receiving ... the survey result information," (3) "determining ... if at least one subsequent follow-up action is warranted based at least in part on the calculated score being below a threshold," and ( 4) "determining ... if at least one subsequent follow-up action is warranted based at least in part on at least one numeric answer indicating a lowest level of satisfaction." As to the specific limitations, we find limitations (1) and (2) recite insignificant data gathering. See MPEP § 2106.05(g). Data gathering, as performed by the steps or function in Appellants' claims, is a classic example of insignificant extra-solution activity. See, e.g., In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en bane), aff'd sub nom, Bilski v. Kappas, 561 U.S. 593 (2010). 21 Appeal2017-008543 Application 14/057 ,396 We also find limitations (3) and (4) recite insignificant post solution activity. 19 The Supreme Court guides that the "prohibition against patenting abstract ideas 'cannot be circumvented' [by] adding 'insignificant postsolution activity."' Bilski, 561 U.S. at 610-11 (quoting Diehr, 450 U.S. at 191-92). On this record, we are of the view that Appellants' claims do not operate the recited generic computer components in an unconventional manner to achieve an improvement in computer functionality. See MPEP § 2106.05(a). Accordingly, we conclude the recited judicial exception is not integrated into a practical application as determined under one or more of the MPEP sections cited above, such that the claim is directed to the judicial exception. Step 2B - "Inventive Concept" or "Significantly More" If the claims are directed to a patent-ineligible concept, as we conclude above, we proceed to the "inventive concept" step. For Step 2B we must "look with more specificity at what the claim elements add, in order to determine 'whether they identify an "inventive concept" in the application of the ineligible subject matter' to which the claim is directed." Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016) (quoting Elec. Power Grp., 830 F.3d at 1353). In applying step two of the Alice analysis, our reviewing court guides we must "determine whether the claims do significantly more than simply describe [the] abstract method" and thus transform the abstract idea into 19 We also note the "determining" steps can be carried out by a human in the mind or by use of pen and paper. See CyberSource, 654 F.3d at 1375. 22 Appeal2017-008543 Application 14/057 ,396 patentable subject matter. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014). We look to see whether there are any "additional features" in the claims that constitute an "inventive concept," thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 573 U.S. at 221. Those "additional features" must be more than "well-understood, routine, conventional activity." Mayo, 566 U.S. at 79. Limitations referenced in Alice that are not enough to qualify as "significantly more" when recited in a claim with an abstract idea include, as non-limiting or non-exclusive examples: adding the words "apply it" ( or an equivalent) with an abstract idea20 ; mere instructions to implement an abstract idea on a computer21 ; or requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry. 22 Evaluating representative claim 1 under step 2 of the Alice analysis, we agree with the Examiner that it lacks an inventive concept that transforms the abstract idea of collecting and analyzing survey data into a patent-eligible application of that abstract idea. See Final Act. 12. 23 20 Alice, 573 U.S. at 221-23. 21 Alice, 573 U.S. at 221, e.g., simply implementing a mathematical principle on a physical machine, namely a computer (citing Mayo, 566 U.S. at 84--85). 22 Alice, 573 U.S. at 225, e.g., using a computer to obtain data, adjust account balances, and issue automated instructions. 23 The Examiner concludes: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements or combination of 23 Appeal2017-008543 Application 14/057 ,396 Further, The Examiner reiterates, and we agree, These elements amount to no more than mere instructions to implement the idea on a computer, and the recitation of generic computer structure that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the industry ... . Appellant's specification at FIG. 5 and [0048]-[0055] provides descriptions of generic computer structures [ e.g. laptop or desktop computer systems]. Ans. 5. We note the patent eligibility inquiry may contain underlying issues of fact. Mortg. Grader, 811 F.3d at 1325. In particular, "[t]he question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact." Berkheimer, 881 F.3d at 1368. elements in the claims other than the abstract idea per se [ e.g. the automated survey being configured by a computer utilizing a processing device to automatically prompt the customer for numerical answers, a memory, automatically receiving in one data transmission, and automatically analyzing] amount to no more than mere instructions to implement the idea on a computer, or by recitation of generic computer structure that serves to perform generic computer functions that are well- understood, routine, and conventional activities previously known to the industry [ e.g. performing repetitive calculations; receiving, processing, and storing data; electronically scanning or extracting data from a physical document; electronic recordkeeping; automating mental tasks; and receiving or transmitting data over a network, e.g., using the Internet to gather data]. Final Act. 12. 24 Appeal2017-008543 Application 14/057 ,396 As evidence of the conventional nature of the claimed network components and processes, we note the Examiner's citation (Ans. 5) to Appellants' Specification in paragraphs 48 through 55. For example: The processing device 48 may be one or more general- purpose or specific-purpose processors or microcontrollers for controlling the operations and functions of the automated survey system 36. In some implementations, the processing device 48 may include a plurality of processors, computers, servers, or other processing elements for performing different functions within the automated survey system 36. Spec. ,r 50. We agree with the Examiner that the claim limitations may be broadly but reasonably construed as reciting conventional computer components and techniques, particularly in light of Appellants' Specification, as quoted above. 24 With respect to the Step 2B analysis, we agree with the Examiner because, as in Alice, the recitation of either a "computer-implemented method for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location and determining if at least one follow-up action is warranted based in part on 24 During prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using "the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant's specification." In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). 25 Appeal2017-008543 Application 14/057 ,396 analyzing survey result information" using a "a computer utilizing a processing device" ( claim 1 ); a "survey result analysis system for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location and determining if at least one follow-up action is warranted based in part on analyzing survey result information," having "a processing device," "a memory device," a "survey program including a survey conducting module" and "an automated survey result analyzing module" ( claim 1 O); a "computer-implemented method for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location" that utilizes "a computer utilizing a processing device" ( claim 17); a "survey result analysis system for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location" having "a processing device," "a memory device," a "survey program including a survey conducting module" and "an automated survey result analyzing module" ( claim 23); a "survey result analysis system for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location" that includes various means for: conducting the survey, receiving the survey result information, analyzing the survey result, and determining "if at least one subsequent follow-up action is warranted" ( claim 32); and a "method" that uses a computer to carry out the steps of "triggering ... an automated survey," "receiving ... the survey result information," "analyzing ... the survey result information," and "determining ... if at least one subsequent follow- up action is warranted" ( claim 39) is simply not enough to transform the 26 Appeal2017-008543 Application 14/057 ,396 patent-ineligible abstract idea here into a patent-eligible invention. See Alice, 573 U.S. at 221 ("[C]laims, which merely require generic computer implementation, fail to transform [an] abstract idea into a patent-eligible invention."). Appellants cite to BASCOM in support of their contention that the claims on appeal set forth an inventive concept. Specifically, The present claims include an "inventive concept" when compared to BASCOM, in which the Federal Circuit found that claims directed to a specific implementation of filtering content on the Internet did include an inventive concept where the claims set forth a "non-conventional and non-generic arrangement of known, conventional pieces." [] The Federal Circuit further found that the claimed invention in BASCOM did not "preempt all ways of filtering content on the Internet; rather, they recite a specific, discrete implementation of the abstract idea of filtering content." [ ] Similarly, Applicant's claims do not preempt all ways of "comparing information using rules to make a determination"; instead ... they provide specific and discrete implementation of such concepts. Further, as established in ... the subsequent section with regard to the 35 U.S.C. § 103 rejections, the claims recite patentable subject matter over the cited references. Thus, all of the present claims are "non-conventional" and "non-generic" over the cited references. App. Br. 16-17 (citations omitted). In BASCOM, the claims were directed to the inventive concept of providing customizable Internet-content filtering which, under the Alice analysis, was found to transform the abstract idea of filtering content into a patent-eligible invention. Although the underlying idea of filtering Internet content was deemed to be abstract, under the Alice analysis, the claims carved out a specific location for the filtering system, namely a remote 27 Appeal2017-008543 Application 14/057 ,396 Internet service provider (ISP) server, and required the filtering system to give users the ability to customize filtering for their individual network accounts. BASCOM, 827 F.3d at 1349. In response to Appellants' reliance upon BASCOM, supra, we note there is no evidence of record to substantiate the assertion that the claims recite non-conventional and non-generic arrangement of known, conventional elements, as in BASCOM. Moreover, we find no analogy between Appellants' claimed automated survey and the Internet content filtering claims in BASCOM. Regarding Appellants' preemption argument, "[ w ]hile preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility .... Where a patent's claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362---63 (Fed. Cir. 2015) ("[T]hat the claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract"). Accordingly, based upon the findings above, on this record, we are not persuaded of error in the Examiner's conclusion that the appealed claims are directed to patent-ineligible subject matter. Therefore, we sustain the Examiner's § 101 rejection of independent claim 1, and grouped claims 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43, not argued separately, and which fall therewith. See Claim Grouping, supra. 28 Appeal2017-008543 Application 14/057 ,396 2. § 103 Rejection R2 of Claims 1, 2, 4, 5, 7, 10-15, and 32--43 Issue 2 Appellants argue (App. Br. 19-24; Reply Br. 6-7) the Examiner's rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the combination of Brinkerhoff, Shoemaker, Todd, and Stone is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a "computer-implemented method for conducting an automated survey regarding quality of a service performed by a servicer for a customer associated with a customer location and determining if at least one follow-up action is warranted based in part on analyzing survey result information" that includes, inter alia, the limitations of (1) "automatically receiving in one data transmission ... the survey result information," (2) "determining ... if at least one subsequent follow-up action is warranted based at least in part on the calculated score being below a threshold," and (3) "determining ... if at least one subsequent follow-up action is warranted based at least in part on at least one numeric answer indicating a lowest level of satisfaction," as recited in claim 1? ANALYSIS Limitation (1)- "one data transmission" Initially, the Examiner cites Brinkerhoff Figure 6, elements 614 and 616, as teaching or suggesting the contested "automatically receiving [the survey result information] in one data transmission." Final Act. 14. 29 Appeal2017-008543 Application 14/057 ,396 Appellants contend Brinkerhoff fails to teach or suggest this limitation, in particular, the aspect of "one data transmission." App. Br. 21. 25 In the Answer, the Examiner elaborates on Brinkerhoff' s teaching or suggestion of this limitation by citing "a review provided via e-mail" as disclosed by Brinkerhoff at column 7, lines 56 through 68. Ans. 14. Appellant[] has not shown how receiving a customer review via e-mail is not a "single transmission", as there is no disclosure in Brinkerhoff that the emails, which are sent from a singular customer (as required by the claim), and performed in multiple transmissions. Further, since Appellant's specification states that "Responses may be received via telephone, in a return e- mail or chat session" (see Appellant's specification, paragraph [0081 ]), Brinkerhoff reads on the claimed invention. Id. We agree with the Examiner's findings, and note Appellants do not rebut these findings in the Reply Brief. Arguments not made are waived. See 37 C.F.R. § 4I.37(c)(l)(iv). Limitation (2)- "determining . .. based . .. on the calculated score being below a threshold" The Examiner initially points to Shoemaker paragraphs 33 through 35 as teaching or suggesting this limitation, but also supplements the combined teachings and suggestions of Brinkerhoff and Shoemaker. Final Act. 16-17. The Examiner turns to Todd ( col. 14, 1. 66 - col. 17, 1. 28) for more specificity. Final Act. 17. In particular, the Examiner cites Todd's claim 1: wherein said control program executing on said microprocessor includes a pre-determined set of criteria which triggers a transfer of at least one pre-determined data message from said 25 See n.18, supra, regarding the potential lack of explicit or implicit written description support under 35 U.S.C. § 112, first paragraph, for the claimed "one data transmission." 30 Appeal2017-008543 Application 14/057 ,396 survey device to at least one remote unit upon the happening of the triggering event via said communications link, and said predetermined set of criteria comprises a preprogrammed condition or set of conditions to be satisfied by a survey respondent and a preprogrammed threshold cumulative survey score or sub-set of scores to be achieved by a survey respondent. Todd col. 16, 11. 55---64 ( emphasis added). In the Appeal Brief, Appellants allege Shoemaker is deficient with respect to teaching or suggesting this limitation, even though the Examiner clearly cites to Todd, as indicated above. "Shoemaker fails to disclose 'the numerical analysis includes calculating a score,' and determining 'if at least one subsequent follow-up action is warranted based at least in part on the calculated score being below a threshold."' App. Br. 22. Appellants' argument is not persuasive of Examiner error because it is not responsive to the rejection as articulated by the Examiner. See, e.g., Ans. 16. Non-obviousness cannot be established by attacking references individually where, as here, the ground of unpatentability is based upon the teachings of a combination of references. In re Keller, 642 F.2d 413,426 (CCPA 1981). Limitation (3) - "determining ... based . .. on at least one numeric answer indicating a lowest level of satisfaction" The Examiner cites Todd's disclosure of ranking questions on a scale of 1 to 10, and then signaling a pager or computer if a response meets a preprogrammed threshold of any satisfaction/dissatisfaction with the service provided as teaching or suggesting this limitation. Final Act. 1 7 ( citing Todd col. 14, 11. 55-58 and 1. 66- col. 17, 1. 28). 31 Appeal2017-008543 Application 14/057 ,396 In response, Appellants allege: However, Todd does not specifically disclose, teach, or suggest one specific numeric answer indicating a lowest level of satisfaction. Further, nothing in the cited portions of Todd describes or suggests a calculated score, only that the survey answers meet "preprogrammed thresholds," therefore, Todd does not disclose, teach, or suggest determining if a follow-up action is warranted based on both "the calculated score being below a threshold," and "one numeric answer indicating a lowest level of satisfaction," as encompassed by claim 1. App. Br. 23. We disagree with Appellants' contentions. We disagree because Todd discloses, In accordance with the instant invention, the survey device automatically monitors survey data responses and transmits data in real time or near real time to a remote unit, such as, for example, a pager, a computer, or other remote unit, in response to predetermined criteria or sets of criteria triggered by a set of particular survey responses. Todd col. 4, 11. 56-61. Also, In another embodiment, the criteria for triggering transmission of a message via a transceiver to a remote unit is a survey respondent's fulfillment of a preprogrammed survey condition or set of conditions. In a further embodiment, the criteria for triggering transmission of a message via a transceiver to a remote unit is a survey respondent's achievement of a threshold cumulative survey score or sub-set of scores. Todd col. 4, 1. 66-col. 5, 1. 6. We find the preprogrammed survey condition or set of conditions or sub-set of scores could easily be related to the customer "indicating a lowest level of satisfaction," and we find such interpretation or reliance is not beyond the abilities of a person of ordinary skill in the art. 32 Appeal2017-008543 Application 14/057 ,396 Appellants have not demonstrated that the Examiner's proffered combination of references would have been "uniquely challenging or difficult for one of ordinary skill in the art." See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Nor have Appellants provided objective evidence of secondary considerations which our reviewing court guides "operates as a beneficial check on hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and Powder Sys., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the cited prior art combination to teach or suggest the disputed limitations of claim 1, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of independent claim 1, and grouped claims 2, 4, 5, 7, 10-15, and 32--43 which fall therewith. See Claim Grouping, supra. 3. § 103 Rejection R3 of Claims 1 7, 18, 21, 23, 24, 26, 28, 29, and 31 Issue 3 Appellants argue (App. Br. 29-34; Reply Br. 7-8) the Examiner's rejection of claim 17 under 35 U.S.C. § 103(a) as being obvious over the combination of Brinkerhoff, Shoemaker, Todd, Trauth, Seetharaman, and Stone is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a "computer-implemented method for conducting an automated survey regarding quality of a service performed by a servicer for a customer 33 Appeal2017-008543 Application 14/057 ,396 associated with a customer location," that includes, inter alia, the limitations of responsive to determining that a voice message was received in response to the conducting of the automated ... triggering an exception ... and enabling the person to perform at least one of entering a transcript of the voice message, entering a summary of the voice message, appending notes to the survey result information, selecting at least one predefined classification of customer issues, and selecting at least one subsequent follow-up action, ( emphasis added) as recited in claim 1 7?25 ANALYSIS Limitation: "triggering an exception" The Examiner cites Trauth's "Alert Routine" as teaching or suggesting this limitation. Final Act. 33-34 ( citing Trauth Abstract, ,r,r 25- 27, 31, and 34--35). Upon initiation, the Alert Routine prompts the customer to explain why he or she was dissatisfied or to explain the complaint or concern 400. The Alert Routine then records the customer's response 402, assigns a response ID to the voice file, and stores the voice file in the customer database 200 within the SQL server 104. It is preferred that this recording ultimately be stored in a digital format. The recording can initially be made in a digital format and stored on a magnetic or optical disk. Alternatively, this recording can initially be made in an analog format and then subsequently converted into a digital format. When the customer has completed recording their response, the Alert Routine asks whether or not the customer would like to be contacted regarding their 25 We note Appellants make additional arguments identical to those presented above in Issue 2 with respect to the § 103 Rejection R2 of claim 1. For the same reasons, we are not persuaded the Examiner erred. 34 Appeal2017-008543 Application 14/057 ,396 dissatisfaction, complaint or concern 404. If the customer responds "no" 406, then an electronic notification of the customer's response (i.e. an "alert" message) is sent to the designated representative of the company that is the subject of the survey 408. Control is then returned to the IVR system in order to ask any remaining survey questions 410. If the customer indicates that he or she would like to be contacted regarding the response, the Alert Routine prompts the customer for his or her name and telephone number 412 which is recorded and stored in the database 200 along with the customer's response). Final Act. 34. We agree with the Examiner's findings that the claimed "triggering an exception" reads on Trauth's Alert Routine as described above. Under the broadest reasonable interpretation standard of claim construction, 26 we agree with the Examiner because Appellants do not provide an explicit definition of "exception" that would preclude the Examiner's interpretation. For example: In many cases, the results of a survey do not require follow-up with the customer and these survey cases can be closed. However, in some cases, the customer may enter certain responses or leave a voice message that prompts the automated survey system to begin a follow-up process to resolve any issues that the customer may have. When the answers are analyzed, either automatically or manually, the issues may be identified. When these exceptions are identified, a follow-up process is opened to ensure that the issues are treated sensitively. The follow-up may include inquiries to gather additional information from the customer, if needed. 26 See n.24, supra. 35 Appeal2017-008543 Application 14/057 ,396 Spec. ,r 83. 27 Thus, we are not persuaded by Appellants' arguments the Examiner erred with respect to this claim limitation. Limitation: "enabling the person to perform . .. " Appellants assert: Trauth discloses that an audio file ( or voice mail) may be attached to an electronic notification message that is sent out to one or more company employees when a complaint is received. Trauth describes that a "complaint" is indicated when either "a customer indicates a satisfaction level below the threshold level ... or when the customer indicates he or she has an additional complaint or concern." (Emphasis added) .... As such, it is clear that Trauth wholly fails to disclose the system determining that a voice message was "received" before determining that an "exception" exists because Trauth triggers the "exception" at the time the "customer indicates he or she has an additional complaint or concern." App. Br. 32 (citing Trauth ,r,r 32-34) (internal citations omitted). In response, the Examiner first notes Appellants' arguments are narrower than the claim recitation because the claim broadly recites triggering an exception and initiating further analysis responsive to determining that a voice message was received after completion of the survey. Ans. 19. Further, [I]n the claim, the exception is triggered solely based on the determination that a voice message is received; the claim recites that the voice message is the trigger of exception and the only result is presenting the voice message to a person to listen and "enabling" the person to perform actions. If the computer or system does something in response to the voice message and that something results in presenting the voice message to a 27 We note paragraph 83 is the only portion of the Specification that even mentions an "exception." 36 Appeal2017-008543 Application 14/057 ,396 Id. person to listen, it [discloses] the claim (Examiner notes that Appellant's specification merely recites that [0083] ... the customer may enter certain responses or leave a voice message that prompts the automated survey system to begin a follow-up process). "Therefore since Trauth discloses that during or after a survey, if the customer leaves a message regarding the survey, it sends an alert and the employee is presented for a voice message for listening, Trauth [discloses] the broadly recited limitation." Ans. 20. We agree with the Examiner's claim construction and related factual findings concerning this limitation. Therefore, based upon the findings above, on this record, we are not persuaded of error in the Examiner's reliance on the cited prior art combination to teach or suggest the disputed limitations of claim 1 7, nor do we find error in the Examiner's resulting legal conclusion of obviousness. Therefore, we sustain the Examiner's obviousness rejection of independent claim 17, and grouped claims 18, 21, 23, 24, 26, 28, 29, and 31 which fall therewith. See Claim Grouping, supra. REPLY BRIEF To the extent Appellants may advance new arguments in the Reply Brief (Reply Br. 2-9) not in response to a shift in the Examiner's position in the Answer, we note arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner's Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellants have not shown. 37 Appeal2017-008543 Application 14/057 ,396 CONCLUSIONS (1) The Examiner did not err with respect to patent-ineligible subjectmatterRejectionRl of claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43 under 35 U.S.C. § 101, and we sustain the rejection. (2) The Examiner did not err with respect to obviousness Rejections R2 and R3 of claims 1, 2, 4, 5, 7, 10-15, 17, 18, 21, 23, 24, 26, 28, 29, and 31--43 under 35 U.S.C. § 103(a) over the cited prior art combinations of record, and we sustain the rejections. DECISION We affirm the Examiner's decision rejecting claims 1, 2, 4, 5, 7, 10- 15, 17, 18,21,23,24,26,28,29,and31--43. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37 C.F.R. § 4I.50(f). AFFIRMED 38 Copy with citationCopy as parenthetical citation