The Software IP Report

Most (Not All) Customer Service Claims are Patent-Ineligible

By Charles Bieneman

Categories: Patent Eligibility, Software Patents, The Software IP Report

Two customer service claims survived a patent-eligibility challenge under 35 USC § 101, and four did not, in 24/7 Customer Inc. v. LivePerson, Inc., Case No.15-cv-02897-JST (N.D. Cal. May 25, 2017). The court thus granted in part and denied in part a motion for judgment on the pleadings under FRCP 12(c).  Claims of U.S. Patent Nos. 6,205,209, 6,798,876, 6,970,553, 7,027,586, 7,215,757, and 7,751,552 were held invalid, but claims of U.S. Patent Nos. 8,737,599, and 9,077,804 survived the Alice/Mayo test and were held valid under Section 101.

The invalid claims were held directed to unpatentable abstract ideas as follows (and in the order in which the court address them:

US 6,798,876 “[T]he claim elements simply recite the abstract idea of routing a call to the best matched customer service agent.”

US 7,027,586

US 7,751,552

Claims were directed to the abstract idea of “modality-based routing.”
US 7,215,757 The claims are “directed to the abstract idea of tailoring a script to a particular customer to make a customer service call more effective.”
US 6,970,553 “These claims are directed to the abstract idea of allowing a party to a phone call to select between voice call and electronic chat.”
US 6,205,209 “These claims are directed to the abstract idea of providing an application to a user based on the type of device they are using so they can collaborate with another user who is using a different device on the same application.”

But claims of the ’599 and ’804 patents survived, although this result might not have been expected from the face of things. The court characterized these patents as “generally relat[ing] to enhance management of customer-agent interactions, ”not the kind of characterization that screams patent-eligibility.  However, according to the court

Although the claims involve the abstract idea of enhancing customer service in an online customer-agent interaction, they are ultimately directed to a specific means or method for achieving that goal: sending a link to a customer who, in turn, uses that link to launch an application, at which point the agent can monitor the customer’s progress in real time while the customer is using the application. Thus, the claims pass muster under step one of the Alice inquiry.

And, the court continued, the claims included an inventive concept that would have transformed any “abstract idea into a patent-eligible application.” The claims recited an ordered combination of elements contemplating “a specific method and apparatus that allows an agent to proactively monitor the customer’s activity as the customer navigates through an application.” This was a technological solution to the problem of an agent’s lack of awareness of steps already taken by a customer when the customer began a conversation with the agent. Further, the courts pointed to other elements in the claims not found in the prior art.


Dare we say it out loud: patent-eligibility analysis can often be subjective and unpredictable. The court here split the baby, and perhaps that is about the only conclusion we can draw. Well, and we can also note that the claims that here survived Alice did so based on a finding that they presented a technological solution, not found in the prior art, to a technological problem.