Thumbtack, Inc.Download PDFPatent Trials and Appeals BoardDec 21, 20212021001801 (P.T.A.B. Dec. 21, 2021) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/921,543 03/14/2018 Muxing Chen 8682P002F 1059 130093 7590 12/21/2021 Nicholson De Vos Webster & Elliott LLP 99 Almaden Boulevard Suite 575 San Jose, CA 95113 EXAMINER CAI, LANCE Y ART UNIT PAPER NUMBER 3625 NOTIFICATION DATE DELIVERY MODE 12/21/2021 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): eofficeaction@appcoll.com ndwe_docketing@cardinal-ip.com patent@ndwe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MUXING CHEN, JEFFREY LOCK, XIN LIU, BENJAMIN ROBERT ANDERSON, ZHENYU LIU, GUQIAN DU, CHRIS PAK, HARSH PANKAJ PANCHAL, NICK JONES, SHUAI DING, XIAO ZHANG and YEMING FANG ____________ Appeal 2021-001801 Application 15/921,543 Technology Center 3600 ____________ Before ATON W. FETTING, JOSEPH A. FISCHETTI, and KENNETH G. SCHOPFER, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection2 of claims 1-4,6-12, 14-20 and 22-24. We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies, THUMBTACK, INC.” as the real party in interest. 2 All references to the Final Office Action refer to the Final Office Action mailed on March 10, 2020. Appeal 2021-001801 Application 15/921,543 2 SUMMARY OF DECISION We affirm. THE INVENTION Appellant states the invention relates “to matching a request from a user to a set of one or more different users for responding to the request.” Spec. ¶ 2. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A method comprising: receiving, at a server, a request for a service from a first user, wherein the request includes a location where the service is desired and a category of the service; performing a first stage of matching that includes determining a first plurality of second users that match the location and category; performing a first stage of matching that includes performing the following for each of the first plurality of second users that match the location and category: computing a first value that quantifies an attractiveness of the request to that second user, computing a second value that quantifies a likelihood of the user selecting that second user to fulfill the request, and computing third value based at least in part on the computed first value and the computed second value that quantifies a score for choosing that second user for responding to the request; transmitting the request for the service to at least some of a second plurality of second users of the first plurality of second users whose computed third value exceeds a first threshold value, wherein the second plurality of second users is less than the first plurality od second users; and transmitting the request for the service to an allocated number of a third plurality of second users of the first plurality Appeal 2021-001801 Application 15/921,543 3 of second users, wherein each of the third plurality of second users have registered within a predetermined time period regardless of a score for choosing that one of the third plurality of second users. Appeal Br. 25 (Claims App.). THE REJECTION3 Claims 1–4, 6–12, 14–20, and 22–24 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to nonstatutory subject matter. Final Act. 9–12. FINDINGS OF FACT We adopt the Examiner’s findings as set forth on pages 2–12, in the Final Office Action and on pages 4–11 in the Examiner’s Answer, concerning only the 35 U.S.C. § 101 rejection. ANALYSIS 35 U.S.C. § 101 REJECTION We will affirm the rejection of claims 1-4, 6-12, 14-20, 22-24 under 35 U.S.C. § 101. The Appellant argues claims 1-4, 6-12, 14-20, 22-24 as a group. (Appeal Br. 5). We select claim 1 as the representative claim for this group, and so the remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include 3 The Examiner withdrew the rejections claims 4, 6–12, 14–20, and 22–24 under 35 U.S.C. § 103(a). (Ans. 3). Appeal 2021-001801 Application 15/921,543 4 implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court’s two-step framework, described in Mayo and Alice. Alice, 573 U.S. 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 id. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 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 that “a claim drawn to subject matter otherwise Appeal 2021-001801 Application 15/921,543 5 statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (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. 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) Appeal 2021-001801 Application 15/921,543 6 (“Guidance”).4 “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” Id. at 51;5 see also October 2019 Update at 1. Under the 2019 Revised Guidance, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (“Step 2A, Prong 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”).6 Guidance, 84 Fed. Reg. at 52–55. 4 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.pdf). 5 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) § 2106.04 and also supersedes all versions of the USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.” See 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.”). Accordingly, Appellant’s arguments challenging the sufficiency of the Examiner’s rejection will not be addressed to the extent those arguments are based on now superseded USPTO guidance. 6 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. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54– 55. Appeal 2021-001801 Application 15/921,543 7 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. Guidance, 84 Fed. Reg. at 52–56. The U.S. Court of Appeals for the Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the [S]pecification, 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 Enfish, 822 F.3d at 1335–36. In so doing, as indicated above, we apply a “directed to” two prong test: 1) evaluate whether the claim recites a judicial exception, and 2) if the claim recites a judicial exception, evaluate whether the claim “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.” Guidance, 84 Fed. Reg. at 53; see also MPEP §§ 2106.04–2106.05. The Specification states: Appeal 2021-001801 Application 15/921,543 8 [W]ebsites exist that allow potential service buyers to submit a request for a service that includes certain details of the request such as a category and a location, and the online marketplace may transmit the request to one or more service professionals that match the requested category and location, and the service professional may compose and generate a response. These responses are largely manual and can be time intensive. Spec. ¶ 4. The Specification describes extensive mathematical formulas or equations, and mathematical calculations for “weighted distance between the requested location and all location where the service has been responded to previously,” (¶¶ 42, 43), and weighting of engagement data based on time (¶ 44). For example, paragraph 43 describes a weighted distance calculation as: Claim 1 recites in pertinent part: receiving, … a request for a service from a first user, wherein the request includes a location where the service is desired and a category of the service; performing a first stage of matching that includes determining a first plurality of second users that match the location and category; performing a second stage of matching that includes performing the following for each of the first plurality of second users that match the location and category: computing a first value that quantifies an attractiveness of the request to that second user, computing a second value that quantifies a likelihood of the first user selecting that second user to fulfill the request, and computing a third value based at least in part on the computed first value and the computed second value that quantifies a score for choosing that second user for responding to the request; transmitting the request for the service to at least some of Appeal 2021-001801 Application 15/921,543 9 a second plurality of second users of the first plurality of second users whose computed third value exceeds a first threshold value, wherein the second plurality of second users is less than the first plurality of second users; and transmitting the request for the service to an allocated number of a third plurality of second users of the first plurality of second users, wherein each of the third plurality of second users have registered within a predetermined time period regardless of a score for choosing that one of the third plurality of second users. Appeal Br. 25 (Claims App.). The Examiner found claim 1 “cover[s] performance of the limitations in the mind but for the recitation of computer components without further limitation of those components.” Final Act. 10. “The performance of the first and second stage matchings, the computation of the first and second and third values, and the transmission of the requests, constitute elements determined to be abstract, directed to mental processes.” Id. at 6. Accordingly, all this intrinsic evidence shows that claim 1 recites a way of matching a request from a user to a set of one or more different service professionals for responding to the request by computing scores and setting thresholds, which we find is at least a mental process. This is consistent with the Examiner’s determination. Guidance, 84 Fed. Reg. at 52. The verbs listed in italics in the above truncated version of claim 1, are steps which mimic human thought processes of selecting certain information over others, i.e., evaluation, and creating perhaps with paper and pencil, graphic data interpretation perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. Appeal 2021-001801 Application 15/921,543 10 2016). The Federal Circuit has held similar concepts to be abstract. For example, the Federal Circuit has held that abstract ideas include the concepts of collecting data, analyzing the data, and reporting the results of the collection and analysis, including when limited to particular content. See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340–41 (Fed. Cir. 2017) (identifying the abstract idea of organizing, displaying, and manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing information by steps people go through in their minds, or by mathematical algorithms, and presenting the results of collecting and analyzing information, without more, as matters within the realm of abstract ideas). Thus, under the first prong, claim 1 recites the patent ineligible judicial exception of a mental process. Claim 1 is also directed to mathematical formulas or equations, and mathematical calculations. The following steps concern at least mathematical concepts which are highlighted in italics: computing a first value that quantifies an attractiveness of the request to that second user, computing a second value that quantifies a likelihood of the first user selecting that second user to fulfill the request, and computing a third value based at least in part on the computed first value and the computed second value that quantifies a score for choosing that second user for responding to the request; transmitting the request for the service to at least some of a second plurality of second users of the first plurality of second users whose computed third value exceeds a first threshold value, wherein the second plurality of second users is less than the first plurality of second users (emphasis added). Appeal 2021-001801 Application 15/921,543 11 Turning to the second prong of the “directed to” test, claim 1 only generically requires a server. This component is described in the Specification at a high level of generality. See Spec. ¶¶ 27–34, Fig. 1. We fail to see how the generic recitations of this most basic computer component and/or of a system so integrates the judicial exception as to “impose[] a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Guidance, 84 Fed. Reg. at 53. Thus, we find that the claim 1 is directed to the judicial exceptions of a mental process and a mathematical concept. That the claims do not preempt all forms of the abstraction or may be limited to matching services to customers, does not make them any less abstract. See OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015) (“And that 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.”). Turning to the second step of the Alice analysis, because we find that the claims are directed to abstract ideas/judicial exceptions, the claims must include an “inventive concept” in order to be patent-eligible, i.e., there must be an element or combination of elements sufficient to ensure that the claim in practice amounts to significantly more than the abstract idea itself. See Alice, 573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73). Concerning this step, the Examiner found the following: The claim(s) do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to the integration of the abstract idea into a practical application, the additional Appeal 2021-001801 Application 15/921,543 12 element of using a processor/server to perform the steps amount to no more than mere instructions to apply the exception using a generic computer, which cannot provide an inventive concept. Final Act. 11. We agree with the Examiner. “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea . . . on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the function performed by the computer at each step of the process is purely conventional. Using a computer to retrieve, select, and apply decision criteria to data and modify the data as a result amounts to electronic data query and retrieval—one of the most basic functions of a computer. In short, each step does no more than require a generic computer to perform generic computer functions. The claims do not, for example, purport to improve the functioning of the computer itself. The Specification spells out different generic equipment and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of information access under different scenarios. See, e.g., Spec. ¶¶ 27–34, Fig. 1. Thus, the claims at issue amount to nothing significantly more than instructions to apply the abstract idea using some unspecified, generic computer. Under our precedents, that is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26. Considered as an ordered combination, the computer components of Appellant’s claims add nothing that is not already present when the steps are considered separately. The sequence of data reception-analysis (receiving/ Appeal 2021-001801 Application 15/921,543 13 matching/computing (successively)/transmitting) and storing is equally generic and conventional or otherwise held to be abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction); Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that sequence of data retrieval, analysis, modification, generation, display, and transmission was abstract); Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding sequence of processing, routing, controlling, and monitoring was abstract). The ordering of the steps is, therefore, ordinary and conventional. As to the structural claims (17–24), they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] . . . against” interpreting § 101 “in ways that make patent eligibility ‘depend simply on the draftsman’s art.’” Alice, 573 U.S. at 226 (quoting Mayo, 566 U.S. at 72). As a corollary, the claims are not directed to any particular machine. We have reviewed all the arguments Appellant has submitted concerning the patent eligibility of the claims before us that stand rejected under 35 U.S.C. § 101 (Appeal Br.5–17; Reply Br. 2–12). We find that our analysis above substantially covers the substance of all the arguments, which have been made. But, for purposes of completeness, we will address various arguments in order to make individual rebuttals of same. Appellant argues: Appeal 2021-001801 Application 15/921,543 14 [I]t is not clear if the Examiner is asserting that each of the limitations allegedly recite a mental process or whether the Examiner is asserting that the limitations, as a whole, recite a mental process. Regardless, the Examiner fails to make a prima facie case for why these limitations, either taken individually or in the whole, fall under this category. Further, Appellant disagrees with this categorization because none of the cited limitations recite an abstract idea. Appeal Br. 6–7. Although Appellant and the Examiner describe, at different levels of abstraction, to what the claims are directed, it is recognized 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.” See id. at 1241. As we have found above, claim 1 is also directed to a mental process using mathematical formulas or equations, and mathematical calculations. The use of such mathematical concepts in the claim does not preclude the claim from also being directed to a mental process. We thus disagree with Appellant that the Examiner failed to make a prima facie case. To the extent Appellant argues that the Examiner erred in adequately supporting this determination by not providing evidence, we are unpersuaded. In this regard, there is no requirement that the Examiner must provide evidentiary support in every case before a conclusion can be made that a claim is directed to an abstract idea. See, e.g., Manual of Patent Examining Procedure § 2106.07(a)(III) (2018) (“The courts consider the determination of whether a claim is eligible (which involves identifying whether an exception such as an abstract idea is being claimed) to be a question of law. Thus, the court does not require ‘evidence’ that a claimed Appeal 2021-001801 Application 15/921,543 15 concept is a judicial exception, and generally decides the legal conclusion of eligibility without resolving any factual issues.”) (citations omitted). All that is required of the USPTO to meet its prima facie burden of production is that the Examiner set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative manner as to meet the notice requirement of 35 U.S.C. § 132. As the statute itself instructs, the Examiner must “notify the applicant,” “stating the reasons for such rejection,” “together with such information and references as may be useful in judging the propriety of continuing the prosecution of his application.” 35 U.S.C. § 132; see also In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011) (declining “to impose a heightened burden on examiners beyond the notice requirement of § 132”). Here, as we found above, the Examiner has made these findings as required by the statute. See Final Act. 6, 9–12. Appellant argues, “[t]he claims go beyond ‘mental processes,’ because they cannot practically be performed in the mind or “with pencil and paper.” For example, the step of ‘performing a second stage of matching’ includes multiple ‘computing’ steps that cannot practically be performed in a human mind.” The computing of the first value “requires more computation than the simplistic ‘1+ 1=2.’” (Appeal Br. 7). We disagree with Appellant because as early as Parker v. Flook, the Supreme Court held that calculations, while “primarily useful for computerized calculations producing automatic adjustments in alarm settings,” “can [still] be made by pencil and paper calculations.” Parker, 437 U.S. 584, at 586. As such, the Court did not deem the alleged primacy of computer implementation to be persuasive in its 35 U.S.C. § 101 analysis. Appeal 2021-001801 Application 15/921,543 16 Appellant here has not produced evidence showing that the claimed computations cannot be made by human interaction using a pen and paper. Even assuming, arguendo, Appellant could prove that the claimed computations could be performed in the mind or “with pencil and paper,” Appellant here has not provided evidence showing that the claims implement its process using anything other than the ordinary capabilities of a general purpose computer. “[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible. The bare fact that a computer exists in the physical rather than purely conceptual realm is beside the point.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (internal citations and quotation marks omitted). Appellant next argues, “when the examiner has concluded that certain claim elements recite well-understood, routine, conventional activity in the relevant field, the examiner must expressly support such a rejection in writing with one of the four options specified in Section III. A of the Berkheimer Memorandum.” (Appeal Br. 15). The Federal Circuit made clear that “not every § 101 determination contains genuine disputes over the underlying facts material to the § 101 inquiry.” Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). In fact, the Federal Circuit in Berkheimer did not require evidentiary support for independent claim 1 because “[t]he limitations [of claim 1] amount to no more than performing the abstract idea of parsing and comparing data with conventional computer components.” Id. at 1370. Citing to portions claim 1, Appellant argues: Appeal 2021-001801 Application 15/921,543 17 These features add significantly more to the Examiner’s characterization of the claimed subject matter as ‘a mental process’ and go beyond the ‘generic’ and ‘limited’ computer functionality of buySAFE. For example, transmitting a request to a second plurality of second users who have a matching value exceeding a threshold and to a third plurality of second users regardless of any matching value, ‘adds a specific limitation or combination of limitations that are not well understood, routine, conventional activity in the field.’ (Appeal Br. 16). Here, we do not find, and Appellant does not identify, any analogous modification to the routine and conventional functioning of computer network technology. At best, the claim 1 recites generic computer components to perform a mental process. And, Appellant fails show error in the Examiner’s finding that the “ordered combination” of the recited elements does not ‘transform the nature of the claim’ into a patent–eligible application.” Alice, 573 U.S. at 217. On page 11 of the Final action, the Examiner, finds that the ordering of the steps is ordinary and conventional, which we adopt as our own. In turn, Appellant merely repeats the claim limitation of, “transmitting a request to a second plurality of second users who have a matching value exceeding a threshold and to a third plurality of second users regardless of any matching value.” (Appeal Br. 16). We find nothing unconventional in the selective transmission of requests based on given thresholds. Citing similarities between claim 1 and Bascom Global Internet v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), Appellant argues, “it is not conventional to transmit a request for a service to both second users that have scores exceeding a threshold AND an allocated number of second users based on time of registration of the second users with the server prior Appeal 2021-001801 Application 15/921,543 18 to perform the matching.” (Appeal Br. 16–17). But, Appellant’s reliance on BASCOM is misplaced. In BASCOM, the Federal Circuit determined that the claimed installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user provided an inventive concept in that it gave the filtering tool both the benefits of a filter on a local computer and the benefits of a filter on the ISP server. BASCOM, 827 F.3d at 1350. The court, thus, held that the second step of the Mayo/Alice framework was satisfied because the claimed invention “represents a ‘software-based invention[ ] that improve[s] the performance of the computer system itself.’” Id. at 1351 Here, Appellant does not identify, and we do not find, any improvement to computer technology analogous to the ordered combination described in BASCOM or any additional element or elements recited in claim 1 that yield an improvement in the functioning of a computer, or an improvement to another technology or technical field. Again, on page 17 of its Appeal Brief, Appellant merely repeats claim limitations without pointing out the significance of the recited order of steps which would be comparable to the claimed installation of a filtering tool at a specific location in Bascom. We also disagree with Appellant (Appeal Br. 12–13) that under the holding in Enfish our decision would be different. Enfish, 822 F.3d 1327. We are unpersuaded that the claims here are directed to an improvement in computer technology like that of claim 17 in Enfish and therefore are patent eligible. In Enfish, the invention at issue was directed at a new type of logical model for a computer database: a self-referential table that allowed the computer to store many different types of data in a single table and index that data by column and row information. Id. at 1330–32. In finding the Appeal 2021-001801 Application 15/921,543 19 claims “not directed to an abstract idea,” but “to a specific improvement to the way computers operate,” the Federal Circuit noted 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.” Id. at 1336–37. We find nothing in the claims before us arising to this level of technical improvement in the claimed, “a consumer device and a merchant device,” which rises to the level of technical proficiency as found in Enfish. Instead, we find the claims on appeal are focused on “economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 1336. For the reasons identified above, we sustain the Examiner’s § 101 rejection of claims 1-4, 6-12, 14-20 and 22-24. CONCLUSIONS We conclude the Examiner did not err in rejecting claims 1–4, 6–12, 14–20, and 22–24 under 35 U.S.C. § 101. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6– 12, 14– 20, 22–24 101 Eligibility 1–4, 6– 12, 14– 20, 22–24 TIME PERIOD FOR RESPONSE Appeal 2021-001801 Application 15/921,543 20 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 Copy with citationCopy as parenthetical citation