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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`LIVEPERSON, INC.
`Petitioner
`v.
`24/7 CUSTOMER, INC.
`Patent Owner
`__________
`
`Case IPR2017-00612
`Patent 7,751,552
`__________
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`Panel: To Be Determined
`__________
`
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`JOINT AMENDED MANDATORY NOTICES 37 C.F.R. § 42.8
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`Pursuant to 37 C.F.R. § 42.8(a)(3) and (b)(2), Patent Owner and Petitioner
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`jointly provide the following update regarding related matters to this IPR:
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`Related Matters: Patent Owner [24]7 and its subsidiary 24/7 Customer
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`International Holdings sued Petitioner LivePerson, Inc. in 24/7 Customer, Inc. and
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`24/7 Customer International Holdings, Ltd. v. LivePerson, Inc., 3:15-CV-05585-
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`JST (N.D. Cal.) (the “05585 Litigation”), in which plaintiffs asserted the ’552
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`Patent. On May 26, 2017, the Court held claims 1, 6, 7, 9, 10, 15, 18, and 19 of the
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`’552 Patent invalid under 35 U.S.C. § 101. A copy of the Court’s decision is
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`1
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`submitted herewith as Appendix A. The litigation remains ongoing, and Patent
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`Owner retains the right to appeal the Court’s decision following entry of final
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`judgment. It is Petitioner’s position that this order does not impact in any fashion
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`whether an inter partes review proceeding should be instituted.
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`Respectfully submitted,
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`/Mark E. Miller/
`Mark E. Miller (Reg. No. 31,401)
`O’Melveny & Myers LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, California 94111-3823
`Telephone: (415) 984-8700
`Facsimile: (415) 984-8701
`markmiller@omm.com
`Counsel for Patent Owner
`
`/Kristen Reichenbach/
`Kristen Reichenbach
`(Reg. No. 61,162)
`Kirkland & Ellis LLP
`555 California Street
`San Francisco, California 94104
`Telephone: (415) 439-1915
`Facsimile: (415) 439-1500
`kristen.reichenbach@kirkland.com
`Counsel for Petitioner
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`Date: June 16, 2017
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`Date: June 16, 2017
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`APPENDIX A
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`APPENDIX A
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`Case 3:15-cv-02897-JST Document 144 Filed 05/25/17 Page 1 of 29
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`24/7 CUSTOMER, INC., ET AL.,
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`Plaintiffs,
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`v.
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`LIVEPERSON, INC.,
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`Defendant.
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`Case No.15-cv-02897-JST
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`
`ORDER REGARDING MOTION FOR
`JUDGMENT ON THE PLEADINGS
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`Re: ECF No. 126
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`Before the Court is Defendant LivePerson, Inc.’s (“LivePerson”) motion for judgment on
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`the pleadings under Rule 12(c). The Court will grant the motion in part and deny it in part.
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`I.
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`BACKGROUND
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`On March 6, 2014, LivePerson filed suit against 24/7 Customer, Inc. (“24/7”) in the
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`Southern District of New York, asserting claims of trade secret misappropriation, unfair
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`competition, and copyright infringement, among others. LivePerson, Inc. v. 24/7 Customer, Inc.,
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`No. 14-cv-01559-RWS (S.D.N.Y). 24/7 subsequently filed two lawsuits for patent infringement
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`in this Court. See Case No. 15-cv-02897, ECF No. 1; Case No. 15-cv-05585, ECF No. 1. The
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`Court consolidated the two cases in this district for pre-trial purposes. ECF No. 57. The case that
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`originated in the Southern District of New York has since been transferred to this Court and
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`deemed related to the two other actions. ECF Nos. 130, 133. The Court held Markman
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`proceedings and issued its claim construction order on December 7, 2016. ECF No. 109.
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`Pursuant to that order, one patent was invalidated for indefiniteness, leaving ten remaining patents.
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`Id. at 4˗6.
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`LivePerson moves for judgment on the pleadings for the Second Amended Complaint in
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`Case No. 15-cv-02897 and the First Amended Complaint in Case No. 15-cv-05585 on the ground
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`that the patents asserted by Plaintiffs are invalid because they claim ineligible subject matter. ECF
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`Case 3:15-cv-02897-JST Document 144 Filed 05/25/17 Page 2 of 29
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`No. 126 at 7.
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`II.
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`LEGAL STANDARD
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`“After the pleadings are closed—but early enough not to delay trial—a party may move for
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`judgment on the pleadings.” Fed. R. Civ. P. 12(c). The analysis for Rule 12(c) motions for
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`judgment on the pleadings is “substantially identical to [the] analysis under Rule 12(b)(6)....”
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`Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quotations omitted). To evaluate a
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`Rule 12(b)(6) motion to dismiss, the court accepts the material facts alleged in the complaint,
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`together with reasonable inferences to be drawn from those facts, as true. Navarro v. Block, 250
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`F.3d 729, 732 (9th Cir. 2001). A plaintiff must allege facts that are enough to raise her right to
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`relief “above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A
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`“judgment on the pleadings is properly granted when, taking all the allegations in the non-moving
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`party’s pleadings as true, the moving party is entitled to judgment as a matter of law.” Fajardo v.
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`Cty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999). “Finally, although Rule 12(c) does not
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`mention leave to amend, courts have discretion both to grant a Rule 12(c) motion with leave to
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`amend, and to simply grant dismissal of the action instead of entry of judgment.” Lonberg v. City
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`of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004) (citations omitted).
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`III. DISCUSSION
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`A. Patent-Eligible Subject Matter under Section 101
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`“Section 101 of the Patent Act defines the subject matter eligible for patent protection. It
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`provides: ‘Whoever invents or discovers any new and useful process, machine, manufacture, or
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`composition of matter, or any new and useful improvement thereof, may obtain a patent therefor,
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`subject to the conditions and requirements of this title.’” Alice Corp. Pty. V. CLS Bank Int’l, 134
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`S. Ct. 2347, 2354 (2014) (quoting 35 U.S.C. § 101).
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`Implied in this provision is the well-established principle that “abstract ideas are not
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`patentable.” Id. (quoting Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct.
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`2107, 2116 (2013)). The rationale behind the exclusion of abstract ideas from patentable subject
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`matter is “one of pre-emption.” Id. Because “abstract ideas are the basic tools of scientific and
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`technological work,” “monopolization of those tools through the grant of a patent might tend to
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`Case 3:15-cv-02897-JST Document 144 Filed 05/25/17 Page 3 of 29
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`impede innovation more than it would tend to promote it, thereby thwarting the primary object of
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`the patent laws.” Id. (internal brackets and quotation marks omitted).
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`However, “an invention is not rendered ineligible for patent simply because it involves an
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`abstract concept.” Id. After all, “[a]t some level, ‘all inventions . . . embody, use, reflect, rest
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`upon, or apply laws of nature, natural phenomena, or abstract ideas.’” Id. (quoting Mayo
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`Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012)). Therefore, courts must
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`distinguish between patents that claim abstract ideas, on the one hand, and patents “that claim
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`patent-eligible applications of those concepts,” on the other hand. Id. at 2355.
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`To do so, courts engage in a two-step analysis. First, the court must determine whether the
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`claims at issue are “directed to an abstract idea.” Id. at 2356˗57. If so, the court must “consider
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`the elements of each claim both individually and as an ordered combination” to determine
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`“whether it contains an inventive concept sufficient to transform the claimed abstract idea into a
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`patent-eligible application.” Id. at 2355, 2357 (internal quotation marks omitted) (quoting Mayo,
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`566 U.S. at 72˗73, 78˗79). In doing so, the court is essentially asking “whether the claims [] do
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`more than simply instruct the practitioner to implement the abstract idea . . . ” Id. at 2359. When
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`engaging in this invalidity analysis, courts consider the claims in light of the specification.
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`Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1299 (Fed. Cir. 2016) (citing cases).
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`A district court may find a patent invalid under Section 101 at the pleading stage.
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`See buySAFE, Inc. v. Google Inc., No 2013–1575, 2014 WL 4337771 (Fed. Cir. Sept. 3, 2014);
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`Open Text S.A. v. Alfresco Software Ltd, No. 13-CV-04843-JD, 2014 WL 4684429, at *3 (N.D.
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`Cal. Sept. 19, 2014) (citing cases).
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`B. ‘876 Patent
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`The ‘876 patent generally relates to a method for routing a call to a customer service
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`representative at a call center based on information about the caller and the available
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`representatives. ECF No. 126˗3, Ex. 2. Claim 1 is representative and provides:
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`A method for routing an incoming call to a customer service
`representative comprising the steps of:
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`identifying the caller of the incoming call;
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`Case 3:15-cv-02897-JST Document 144 Filed 05/25/17 Page 4 of 29
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`retrieving a profile on the caller;
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`comparing the caller profile with stored customer service
`representative profiles to determine which customer
`service representatives are more qualified to handle the
`incoming call;
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`ranking the customer service representatives that can best
`meet the caller’s needs;
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`routing the incoming call to a selected highest ranked
`customer service representative; and
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`automatically updating, at the completion of the call, the
`caller profile and
`the selected customer service
`representative profile with information regarding the
`success of the call.
`ECF No. 126˗3, Ex. 2 at 8.1
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`Dependent claims 2 and 7 recite the additional step of “routing the incoming call to the
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`next highest ranked customer service representative if the previously selected customer service
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`representative is unavailable.” Id.
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`Dependent claims 5 and 10 recite the additional step of “conducting a post-call survey,
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`during the updating step, of at least one of said caller and said customer service representative in
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`order to determine the success of the call.” Id.
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`The ‘876 patent is directed to the abstract idea of routing a call to a customer service agent
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`based on information about the caller. As a general matter, courts have invalidated claims that are
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`“fundamentally directed to the abstract idea of connecting customers to call centers.” Pragmatus
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`Telecom, LLC v. Genesys Telecommunications Labs., Inc., 114 F. Supp. 3d 192, 200 (D. Del.
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`2015) (“At its essence, the claim is directed to the abstract idea of communication between a
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`customer and a business using a call center, automated and obfuscated along the way using certain
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`1 Claim 6 is identical in all respects except for one: It recites the additional step of “prompting the
`caller with a list of questions.” See id. Therefore, the Court analyzes Claims 1 and 6
`simultaneously. See Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass'n,
`776 F.3d 1343, 1348 (Fed. Cir. 2014) (explaining that a district court does not need to address
`each claim if a single claim is “representative” and “all the claims are substantially similar and
`linked to the same abstract idea”)(internal quotations omitted). Although 24/7 argues that
`“LivePerson’s analysis of ‘representative’ claims is inappropriate,” 24/7 implicitly acknowledges
`that Claims 1 and 6 are substantially similar by collectively referring to those claims throughout
`their opposition. ECF No. 134 at 10˗14 (“Claims 1 and 6 are directed to (1) call routing based on
`caller and CSR profile information, and (2) the use of automatically updated profile information to
`evaluate and improve call routing.”).
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`computer, telephonic and network services.”). Although the ‘876 patent arguably differs in that it
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`contemplates a method for routing a call to the customer service representative that is most likely
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`to meet the particular caller’s needs, that method is itself directed to an abstract idea: tailoring
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`information to improve customer experience. See Intellectual Ventures I LLC v. Capital One
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`Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir. 2015) (holding that claim “relate[d] to customizing
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`information based on [] information known about the user” was directed to an abstract idea
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`because “information tailoring is ‘a fundamental . . . practice long prevalent in our system’”)
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`(quoting Alice, 134 S. Ct. at 2356); Open Text S.A. v. Alfresco Software Ltd, No. 13-CV-04843-
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`JD, 2014 WL 4684429, at *4 (N.D. Cal. Sept. 19, 2014) (holding that claims were directed to
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`abstract idea where they “describe[d] the most basic and widely-understood principle of
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`marketing: identify potential or current customers and engage with them to improve their customer
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`experience”).
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`Notably, another court in this district recently held that a similar patent—which claimed a
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`method for monitoring and adjusting routing options for sending a delivery receipt message—was
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`“directed to selecting the best message routing option based on separately-transmitted feedback.”
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`Twilio, Inc. v. Telesign Corp., No. 16˗CV˗06925-LHK, 2017 WL 1374759, at *2, *15 (N.D. Cal.
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`Apr. 17, 2017). The court concluded that, because “[s]electing the best option based on
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`separately-received feedback is a fundamental activity that has long been performed by humans,”
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`the patent was directed to an abstract idea. Id. at *15. The same is true here.
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`24/7 contends that “the claims of the ‘876 patent are directed to improving call routing by
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`[1] comparing customer and CSR profiles and [2] automatically updating the profiles based on the
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`success of the call to improve further customer routing.” ECF No. 134 at 11˗12. Accordingly,
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`24/7 argues that the claims are directed to a technological advancement to an existing
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`technological process. Id.
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`As a preliminary matter, arguments regarding improvements go to whether the claims
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`contain an inventive concept, and are therefore better suited to the second step of the Alice
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`inquiry. See Pragmatus, 114 F. Supp. 3d at 200 (citing Ultramercial, Inc. v. Hulu, LLC, 772 F.3d
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`709, 715 (Fed. Cir. 2014)).
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`Case 3:15-cv-02897-JST Document 144 Filed 05/25/17 Page 6 of 29
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`In any event, these arguments fail because the claims are not “directed to a specific
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`improvement” or “to a specific implementation of a solution to a problem.” Enfish, LLC v.
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`Microsoft Corp., 822 F.3d 1327, 1338, 1339 (Fed. Cir. 2016) (emphases added). As the Federal
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`Circuit recently explained, the relevant inquiry is “whether the claims in the patent focus on a
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`specific means or method, or are instead directed to a result or effect that itself is the abstract idea
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`and merely invokes generic process and machinery.” Clarilogic, Inc. v. FormFree Holdings Corp.,
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`No. 2016-1781, 2017 WL 992528, at *2 (Fed. Cir. Mar. 15, 2017) (emphases added).
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`The claims of the ‘876 patent are directed to the latter and propose only a general, abstract
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`solution to problems in the prior art. According to the specification, the prior art allowed
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`customers to decide where to route their call, which “is often not adequate in identifying the
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`customer’s need and matching that need with the customer service representative most likely to
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`satisfy that need.” ECF No. 126˗3 at 6, 1:44˗46. To be sure, the claims of the ‘876 patent propose
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`a general solution to this problem: route the customer’s call for them by comparing the customer’s
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`needs to the representative’s skills to ensure a better match. But, as explained above, this general
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`solution amounts to nothing more than an abstract idea related to basic customer service. See
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`Twilio, 2017 WL 1374759 at *19 (invalidating message routing patent that “specifie[d] at a high
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`level of generality to carry out the abstract idea of selecting the best message routing option based
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`on separately-transmitted feedback”). And “there is a critical difference between patenting a
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`particular concrete solution to a problem and attempting to patent the abstract idea of a solution to
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`the problem in general.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1356 (Fed. Cir.
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`2016) (internal quotation marks omitted). Here, the claims do not provide for any specific
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`implementation of this abstract idea—e.g., they do not specify the structure or content of the
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`profiles, the technology that should be used to perform the comparison, or even how the profile
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`information should be analyzed to achieve the proposed solution. Clarilogic, 2017 WL 992528 at
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`*2 (“[A] method for collection, analysis, and generation of information reports, where the claims
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`are not limited to how the collected information is analyzed or reformed, is the height of
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`abstraction.”). Rather, they simply recite a generalized solution in broad, functional language—
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`namely, “retrieving,” “comparing,” and “ranking” information about the customer and
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`representative. See Electric Power, 830 F.3d at 1353˗54 (“collecting,” “gathering,” “analyzing,”
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`and “presenting” information are “within the realm of abstract ideas”); Content Extraction, 776
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`F.3d at 1347 (affirming that “the claims of the asserted patents are drawn to the abstract idea of 1)
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`collecting data, 2) recognizing certain data within the collected set, and 3) storing that recognized
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`data in memory”). In other words, the claims “recite the what of the invention, but none of
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`the how that is necessary to turn the abstract idea into a patent-eligible application.” TDE
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`Petroleum Data Sols., Inc., v. AKM Enter., Inc., 657 F. App’x 991, 993 (Fed. Cir. 2016), cert.
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`denied, No. 16-890, 2017 WL 176474 (U.S. Mar. 6, 2017) (emphases in original). The Court
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`therefore proceeds to step two.
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`None of the claim elements, when viewed individually or as an ordered combination,
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`provide any inventive concept. The steps of Claim 1 recite six functions: identifying the caller,
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`retrieving a profile on the caller, comparing the caller profile with stored customer service
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`representative profiles, ranking customer service representatives, routing the call, and
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`automatically updating the profiles at the end of the call. ECF No. 126˗3 at 8. The first five steps
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`represent “well-understood, routine, conventional activity” that was performed in the prior art.
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`Ultramercial, 772 F.3d at 715. Indeed, the specification admits that call centers retrieved
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`information about customer preferences and routed calls to customer service representatives
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`accordingly in the prior art. Id. at 1:16˗1:60. The final step—updating customer profiles—refers
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`to basic data storage. Concept Extraction, 776 F.3d at 1347 (“The concept of data collection,
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`recognition, and storage is undisputedly well-known.”); Twilio, 2017 WL 1374759 at *19
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`(“transmitting,” “receiving,” “updating,” and “selecting” were all “routine, generic computer
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`functions”). Dependent claims 5 and 10, which refer to “conducting a post-call survey, during the
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`updating step,” also fail to supply an inventive concept. ECF No. 126˗3 at 8. See Open Text,
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`2014 WL 4684429 at *4 (“asking a customer about his or her experience” is an abstract idea).
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`Even when viewed collectively, the claim elements simply recite the abstract idea of routing a call
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`to the best matched customer service agent, and therefore fail to supply an inventive concept.
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`Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016)
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`(“An inventive concept that transforms the abstract idea into a patent-eligible invention must be
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`significantly more than the abstract idea itself . . .”).
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`Therefore, the Court grants the motion for judgment on the pleadings as to the invalidity of
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`the ‘876 patent.
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`C. ‘586 and ‘552 Patents
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`The ‘586 and ‘552 patents generally relate to a method for routing a call to a customer
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`service representative at a call center based on the caller’s “modality”—i.e., the “communication
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`mode used by the customer to communicate.” ECF No. 126˗6 at 10, 11; ECF No. 126˗9 at 2, 12.
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`Independent claim 1 of the ‘586 patent is representative and provides:
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`A method for intelligently routing customer communications to an
`agent, comprising:
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`receiving a customer’s request to initiate communications;
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`identifying a modality of the requested communications;
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`obtaining a profile of the customer;
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`selecting one of a plurality of agent models for each of a
`plurality of agents to determine a best match, and
`establishing a communications connection between the
`customer and the best matched agent.
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`ECF No. 126˗6 at 16.2
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`Independent claim 8 of the ‘586 patent provides:
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`An apparatus for intelligently routing customer communications to
`an agent in a telecommunications environment, comprising:
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`at least one processor that receives a customer’s request to
`initiate communications, identifies a modality of the
`requested communications, obtains a profile of
`the
`customer, selects one of a plurality of agent models for
`each of a plurality of agents, based upon the identified
`modality, compares the profile with the selected model for
`each of the plurality of agents to determine a best match,
`and establishes a communications connection between the
`customer and the best matched agent.
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`ECF No. 126˗6 at 16.3
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`2 Independent claim 1 of the ‘552 patent is substantially similar and both parties discuss these two
`patents simultaneously. See ECF No. 126˗9 at 17; ECF No. 126 at 16˗19; ECF No. 134 at 14˗17.
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`Independent claim 15 of the ‘586 patent provides:
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`that stores a program for
`A computer readable medium
`intelligently routing customer communications
`to an agent,
`comprising:
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`a request receiving code segment that receives a customer’s
`request to initiate communications;
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`a modality identifying code segment that identifies a modality
`of the requested communications;
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`a profile obtaining code segment that obtains a profile of the
`customer;
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`an agent model selecting code segment that selects one of a
`plurality of agent models for each of a plurality of agents,
`based upon the identified modality;
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`a comparison code segment that compares the profile with the
`selected model for each of the plurality of agents to
`determine a best match, and establishing a communications
`connection between the customer and the best matched
`agent.
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`ECF No. 126˗6 at 17.4
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`Each of the three independent claims in the ‘586 patent and the ‘552 patent are directed to
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`an abstract idea: routing a call to “the best matched agent” who can communicate with the
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`customer using the customer’s preferred mode of communication. Again, connecting a customer
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`to a representative who can “engage with them to improve their customer experience” falls within
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`the realm of abstract ideas. Open Text, 2014 WL 4684429 at *4; Pragmatus, 114 F. Supp. 3d at
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`200; Intellectual Ventures, 792 F.3d at 1369.
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`The Twilio court held that a similar patent was directed to the abstract idea of “enabling
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`multi-modal communication by looking up and selecting one or more external communication
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`provider(s) associated with a communication destination.” Twilio, 2017 WL 1374759 at *21˗22.
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`The court concluded that this was “fundamental human activity,” citing the following example for
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`support:
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`[W]hen a user creates an account with a business . . ., he will often
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`3 Independent claim 9 of the ‘552 patent is substantially similar. See ECF No. 126˗9 at 17.
`4 Independent claim 15 of the ‘552 patent is substantially similar. See ECF No. 126˗9 at 17.
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`indicate the ways in which the business is allowed to contact him
`(e.g., text, email, phone calls, physical mailings, etc.). Then, when
`the business wishes to contact the user about a new promotion or
`service, it will look up which forms of communication to which the
`user has agreed, and choose to send the promotional information in
`one or several of those ways.
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`Id. That is precisely the sort of basic human activity that the ‘586 and ‘552 patents are directed to.
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`24/7 responds by pointing to three purported improvements over the prior art: “(1) a
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`plurality of agent models for each of a plurality of agents; (2) the selection of an agent model for
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`each agent based on a modality of the communication; and then (3) a comparison of a customer
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`profile with the selected model for each of the plurality of agents.” ECF No. 134 at 14 (emphasis
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`in original). Based on these improvements, 24/7 argues that “the claims of the ‘586 and ‘552
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`Patents are directed to a specific arrangement of steps that identify how to route a customer call
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`more effectively . . .” Id. (emphasis in original). The argument is not persuasive.
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`The independent claims are “directed to a result or effect”—namely, modality-based
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`routing—but they lack any “specific means or method” for how to achieve that goal. Clarilogic,
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`2017 WL 992528 at *2. The specifications of the ‘586 patent and the ‘552 patent describe the
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`problem in the prior art as follows:
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`A multi-modal service center, that can receive and process requests
`from clients or customers using multiple communications
`modalities, needs to recognize the differences in an agent’s
`capability to receive and process requests for different modalities.
`Accordingly, there is a need for a multi-modal service center to
`incorporate into the modeling the differences in the modalities with
`which the service center can be contacted. Furthermore, there is a
`need to incorporate into the modeling the difference in the
`modalities with which a single agent can be contacted.
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`ECF No. 126˗6 at 10, 1:55-65; ECF No. 126˗9 at 11, 1:58˗67. But, rather than “patenting a
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`particular concrete solution to [this] problem,” the claims “attempt[] to patent the abstract idea of a
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`solution to the problem in general.” Electric Power, 830 F.3d at 1356. The independent claims
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`broadly speak to identifying the customer’s mode of communication, obtaining unspecified
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`information about the customer, and routing the customer to “the best matched agent.” However,
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`any potential solution to the problem identified in the prior art—i.e., the need to consider mode of
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`communication when routing a customer communication to an agent—would involve identifying
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`the caller’s mode of communication and routing the call to an agent who uses the same form of
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`communication as the customer. Critically, the claims do not explain how to “identify[] a
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`modality of the requested communications” or how to “determine a best match.” ECF No. 126˗6
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`at 16. Again, the claims “recite the what of the invention, but none of the how that is necessary to
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`turn the abstract idea into a patent-eligible application.” TDE Petroleum Data, 657 F. App’x at
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`993 (emphases in original).
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`Turning to step 2 of the Alice inquiry, the Court concludes that independent claim 1 of the
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`‘586 patent and independent claim 1 of the ‘552 patent lack any inventive concept that would
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`transform the abstract idea into a patent-eligible application. Most of the individual elements—
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`receiving a customer communication, obtaining a customer profile, comparing the customer
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`profile to agent profiles, and connecting the customer to the “best matched agent”—describe
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`“well-understood, routine, conventional activity” that was performed in the prior art.
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`Ultramercial, 772 F.3d at 715. Indeed, both the ‘586 and ‘552 patents admit that multi-modal call
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`centers, agent models, customer models, and the comparison of agent models and customer
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`models “to determine a best-matched agent” were all known in the prior art. See ECF No. 126˗9
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`at 11, 1:30-62, 9:5-15; ECF No. 126˗6 at 10, 1:26-65, 9:28˗32. The patents further acknowledge
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`that “[a] conventional service center may process telephone requests by routing the client or
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`customer to a best-matched agent” and that “models have conventionally been used to route calls
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`for clients or customers using conventional telephones to contact an agent using a conventional
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`telephone or telephone headset at the service center.” Id. Given the existence of both multi-modal
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`call centers and agent models in the prior art, the claims’ description of multiple agent models for
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`each agent does not supply an inventive concept, either. The only remaining element is the
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`identification of the customer’s mode of communication but, as explained above, that step is
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`described in generic terms that merely recite the abstract idea itself without any specific method of
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`implementation. Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349
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`(Fed. Cir. 2016) (“An inventive concept that transforms the abstract idea into a patent-eligible
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`invention must be significantly more than the abstract idea itself . . .”).
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`Lacking an inventive concept in each of the three alleged improvements, 24/7 next argues
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`that “[t]he inventive concept is the ordered combination of the claim elements that allow for
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`greater customization.” ECF No. 134 at 15˗16. To support this argument, 24/7 relies on the
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`Federal Circuit’s decision in Bascom. See id.
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`Even when viewed collectively, however, the claim steps “simply instruct the practitioner
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`to implement the abstract idea”—i.e., modality-based routing—“with routine conventional
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`activity.” Ultramercial, 772 F.3d at 715. As discussed at length above, the