Followell, David Allan. et al.

Patent Trials and Appeals Board

Sep 30, 2019

14510305 - (D) (P.T.A.B. Sep. 30, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/510,305 10/09/2014 David Allan Followell 14-1183-US-
NP 800-0057US
6528
107112 7590 09/30/2019
The Small Patent Law Group LLC
225 S. Meramec, Suite 725
St. Louis, MO 63105
EXAMINER
CLEMENTE, ROBERT ARTHUR
ART UNIT PAPER NUMBER
1773
NOTIFICATION DATE DELIVERY MODE
09/30/2019 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):
docket@splglaw.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DAVID ALLAN FOLLOWELL, ERIC LEE NICKS, and
JAVIER CORTEZ
____________________

Appeal 2019-000431
Application 14/510,305
Technology Center 1700
____________________

Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and
N. WHITNEY WILSON, Administrative Patent Judges.

WILSON, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
February 21, 2018 decision rejecting claims 1–11 and 17–20 (“Non-Final
Act.”).2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm-in-part.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies The Boeing Company as the real
party in interest (Appeal Br. 5).
2 Claims 12–16 were withdrawn from consideration (Appeal Br. 5).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to a system including an air treatment
assembly configured to deliver treated air to an enclosed space within a
vehicle, at least one upstream sensor upstream from the air treatment
assembly, and at least one downstream sensor downstream from the air
treatment assembly (Abstract). The upstream sensors and the downstream
sensors are configured to detect at least one attribute of air, such as air
pressure (id.). An air treatment monitoring system is in communication with
the sensors and receives one or more sensor signals from the sensors, and
calculates an attribute differential (such as a pressure differential) based on
the one or more signals (id.). Details of the claimed invention are set forth
in independent claims 1 and 17, which are reproduced below from the
Claims Appendix to the Appeal Brief:
1. A system comprising:
at least one air treatment assembly configured to deliver
treated air to an enclosed space within a vehicle;
at least one upstream sensor upstream from the at least
one air treatment assembly;
at least one downstream sensor downstream from the at
least one air treatment assembly, wherein the at least one
upstream sensor and the at least one downstream sensor are
configured to detect at least one attribute of air; and
an air treatment monitoring system in communication
with the at least one upstream sensor and the at least one
downstream sensor, wherein the air treatment monitoring
system is configured to receive one or more sensor signals from
the at least one upstream sensor and the at least one
downstream sensor, and wherein the air treatment monitoring
system is configured to calculate an attribute differential based
on the one or more sensor signals.
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17. An air treatment monitoring system configured to
monitor an operative state of an air treatment assembly within a
vehicle, the air monitoring system comprising:
a pressure differential calculation unit that is configured
to calculate a pressure differential between a first sensor signal
received from a first sensor that is upstream in relation to the air
treatment assembly and a second sensor signal received from a
second sensor that is downstream in relation to the air treatment
assembly;
a parameter compensation factor determination unit that
is configured to determine one or more parameter compensation
factors related to the vehicle; and
a compensated pressure calculation unit that is
configured to calculate a compensated pressure differential
based on the pressure differential and the one or more
compensation factors.

REJECTION
I. Claims 1–11 and 17–203 are rejected under 35 U.S.C. § 101 on
the grounds that the claimed invention is directed to a judicial exception,
without significantly more.
II. Claims 1–3, 5–9, 11, and 17–19 are rejected under
35 U.S.C. § 103(a) as unpatentable over Verdegan4 in view of Troxell.5

3 The statement of the rejection indicates that claims 1–20 are rejected under
§ 101 (Non-Final Act. 3). However, as indicated above, claims 12–16 have
been withdrawn from consideration and are not currently appealed.
4 Verdegan et al., US 7,922,914 B1, issued April 12, 2011.
5 Troxell, US 2013/0239802 A1, published September 19, 2013.
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III. Claims 4, 10, and 20 are rejected under 35 U.S.C. §103(a) as
unpatentable over Verdegan in view of Troxell, and further in view of
Hamann.6

DISCUSSION
Rejection I - Rejection under §101
Legal background. 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 interpreted § 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, the
Supreme Court’s two-step framework, described in Mayo and Alice guides
our analysis. 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. Kappos, 130 S. Ct. 3218 (2010) (“Claims 1 and 4 in
petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).

6 Hamann et al., US 2014/0283682 A1, published September 25, 2014.
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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, 130 S. Ct. 3218
(2010)); 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
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.”).
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If the claim is “directed to” an abstract idea, the analysis moves 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.
The PTO has published revised guidance on the application of § 101.
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Guidance”). Under the 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); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)).
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
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.
See Guidance 84 Fed. Reg. at 54–56.
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We address claims 1–11 and claims 17–20 separately. We will
address individual claims as necessary.

Claims 1–11
Guidance Step 1
There is no dispute that claims 1–11 fall within a statutory category,
as these claims each recite a system.
Guidance Step 2A, Prong 1
Under Step 2A of the Guidance, we first consider whether the claims
recite a judicial exception. Claim 1 recites one limitation, which involves a
step reciting a mathematical calculation based on data: “wherein the air
treatment monitoring system is configured to calculate an attribute
differential based on the one or more sensor signals.” Because this
limitation recites mathematical manipulation of data, we conclude that claim
1 recites mathematical concepts, which are identified in the Guidance as an
abstract idea.
Guidance Step 2A, Prong 2
Having determined that the claims recite a judicial exception, our
analysis under the Guidance turns to determining whether there are
additional elements that integrate the exception into a practical application.
See MPEP § 2106.05(a)–(c), (e)–(h). The additional elements in claim 1
include: (1) at least one air treatment assembly configured to deliver treated
air to an enclosed space within a vehicle;” (2) “at least one upstream sensor
upstream from the . . . air treatment assembly;” (3) “at least one downstream
sensor downstream from the . . . air treatment assembly;” where (4) [the
upstream and downstream sensors] are configured to detect at least one
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attribute of air; and (5) “an air treatment monitoring system in
communication with [the upstream and downstream sensors], wherein the air
treatment monitoring system is configured to receive one or more sensor
signals from [the upstream and downstream sensors.]”
Claim 1 represents a system containing four separate physical
elements, designed to take measurements of air passing into and out of an air
treatment assembly. One of the physical elements (the air treatment
monitoring system), performs a calculation using data gathered using the
other components of the system. Thus, the judicial exception (the
mathematical manipulation of the gathered data) is integrated into a practical
application, which is a system which measures at least one attribute of air
flowing through an air-treatment assembly which delivers air to an enclosed
space within a vehicle.
The analysis in this situation is similar to the analysis in Diehr, 450
U.S. 175. In that case, the claim at issue related to a process for “molding
raw, uncured synthetic rubber into cured precision products” based on the
mold’s temperature. Id. at 177. The claim recited a number of different,
manipulative steps to which the rubber was subjected, and the process
“lessen[ed] the possibility of ‘overcuring’ or ‘undercuring’” common in the
art. Id. at 187. Likewise, in this case, the claim is directed to a larger
system which uses data gathered by the system to perform a calculation
which can be used to determine the efficiency with which one component of
the system is operating. That is, the additional elements use the judicial
exception in conjunction with a particular machine or device that is integral
to the claims. Guidance 84 Fed. Reg. at 55.
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Accordingly, we conclude that claim 1, and the claims which depend
from it, are not directed to an abstract idea and describe patent eligible
subject matter.
Claims 17–20
Guidance Step 1
There is no dispute that claims 17–20 fall within a statutory category,
as these claims each recite a system.
Guidance Step 2A, Prong 1
Under Step 2A of the Guidance, we first consider whether the claims
recite a judicial exception. Claim 17 recites several limitations which
involve steps reciting mathematical calculations based on data, including:
(1) “calculate a pressure differential; and (2) “calculate a compensated
pressure differential.” Because these limitations recite mathematical
manipulation of data, we may conclude that claim 1 recites mathematical
concepts, which are identified in the Guidance as an abstract idea.
Guidance Step 2A, Prong 2
Having determined that the claims recite a judicial exception, our
analysis under the Guidance turns to determining whether there are
additional elements that integrate the exception into a practical application.
See MPEP § 2106.05(a)–(c), (e)–(h). The additional elements in claim 17
include: (1) “a pressure differential calculation unit;” (2) “an air treatment
assembly;” (3) “a first sensor that is upstream in relation to the air treatment
assembly;” (4) “a second sensor that is downstream in relation to the air
treatment assembly;” and (5) “a parameter compensation factor
determination unit.”
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Claim 17 represents a system containing five separate physical
elements, designed to take measurements of air passing into and out of an air
treatment assembly, determining a parameter compensation factor, and then
calculating a compensated pressure differential for air coming into and going
out of the air treatment assembly. Some of the physical elements (the
pressure differential calculation unit, the parameter compensation factor
determination unit, and the compensated pressure calculation unit), perform
calculations using data gathered using the other components of the system.
Thus, the judicial exception (the mathematical manipulation of the gathered
data) is integrated into a practical application, which is a system which
measures at pressure differentials for air flowing through an air-treatment
assembly within a vehicle.
The analysis in this situation is similar to the analysis in Diehr, 450
U.S. 175. In that case, the claim at issue related to a process for “molding
raw, uncured synthetic rubber into cured precision products” based on the
mold’s temperature. Id. at 177. The claim recited a number of different,
manipulative steps to which the rubber was subjected, and the process
“lessen[ed] the possibility of ‘overcuring’ or ‘undercuring’” common in the
art. Id. at 187. Likewise, in this case, the claim is directed to a larger
system which uses data gathered by the system to perform a calculation
which can be used to determine the efficiency with which one component of
the system is operating. That is, the additional elements use the judicial
exception in conjunction with a particular machine or device that is integral
to the claims. Guidance 84 Fed. Reg. at 55.
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Accordingly, we conclude that claim 17, and the claims which depend
from it, are not directed to an abstract idea and describe patent eligible
subject matter.
Rejections II and III – Obviousness
We address each of the claims specifically argued by Appellant. The
remaining claims stand or fall with claim 1.
Claims 1 and 17. The Examiner finds that Verdegan discloses a
system including a filter “that can be considered an air treatment assembly
capable of delivering treated air to an enclosed space within a vehicle”
(Non-Final Act. 6, citing Verdegan, Fig. 1). The Examiner further finds that
while Verdegan discloses a differential pressure sensor that measures a
pressure differential over the filter, Verdegan does not disclose an upstream
sensor upstream from the filter and a downstream sensor downstream from
the filter (id.). However, the Examiner also finds that Troxell shows that it
was known in the art to use upstream and downstream pressure sensors to
determine a pressure differential, and that it would have been obvious to
substitute the differential pressure sensor of Verdegan with upstream and
downstream pressure sensors as both were known equivalents for measuring
a pressure differential (id.).
Appellant argues that Verdegan is directed to a fuel filtration system
and does not disclose “an air treatment assembly configured to deliver
treated air to an enclosed space within a vehicle” (Appeal Br. 21, citing
Verdegan, 1:22-24). However, as found by the Examiner (Ans. 8),
Verdegan explicitly states that its system may be used “in a wide variety of
applications having a fluid flow path for . . . air” (Verdegan 1:59–61). The
Examiner further states that “Verdegan discloses a filter than can be used
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with air in a vehicle, and thus can be considered at least one air treatment
assembly capable of delivering treated air to an enclosed space within a
vehicle” (Ans. 8). According to the Examiner, the limitation “configured to”
as used in the second paragraph of claim 1, has substantially the same
meaning as “capable of” when used in connection with a physical structure,
such as the claimed air treatment assembly, and Verdegan’s device is
capable of being used in that fashion (id.).
We agree with the Examiner on this issue. The broadest reasonable
interpretation of a structure “configured to” be used in a particular
application, in this specific instance, as suggested by the Examiner, is that
the structure is “capable” of being used for that application. Claim 1 does
not positively recite a vehicle. Thus, if a structure is capable of delivering
treated air to an enclosed space within a vehicle, it can be fairly described as
being configured to do so.
Appellant argues that the Federal Circuit has held the term
“configured to” has a narrower meaning than “capable of” (Appeal Br. 22,
citing In re Gianelli, 739 F.3d 1375 (Fed. Cir. 2014). However, Appellant
overstates the holding in Gianelli. The court in that case specifically stated
that the phrase “adapted to” (or “configured to”) can also mean “‘capable of’
or ‘suitable for,’” although in that particular patent application, it had a
narrower meaning because of the manner in which it was used in the written
description. 739 F.3d at 1379). In this instance, Appellant has not
persuasively explained why the term “configured to” should be narrowly
construed.
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Appellant makes the same arguments in connection with claim 17,
and they are unpersuasive for the same reason.
Accordingly, we affirm the rejection of claims 1 and 17.
Claims 8 and 18. Claim 8 depends from claim 7 – which recites the
air treatment monitoring system of claim 1 which includes, inter alia, a
parameter compensation factor determination unit that is configured to
determine one or more parameter compensation factors related to the vehicle
– and recites that “the parameter compensation factors relate to altitude,
speed, ambient temperature, fan state, fan door position, and position of the
vehicle.” Claim 18 recites similar limitations.
The Examiner finds that the specific parameter compensation factors
recited in claim 8 “do[] not affect the structure of the parameter
compensation factor determination unit or the compensated pressure
calculation unit” and therefore, we presume, are not of patentable
significance (Non-Final Act. 8). While it might be possible to install
software and/or hardware that would permit determination of “parameter
compensation factors relate to altitude, speed, ambient temperature, fan
state, fan door position, and position of the vehicle” as required in claim 8,
the “configured to” language in this instance requires that the prior art
structure be capable of performing the function without further
programming. Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376,
1380 (Fed. Cir. 2011) (discussing Microprocessor Enhancement Corp. v.
Texas Instruments, Inc., 520 F.3d 1367 (Fed. Cir. 2008)). However, the
Examiner has not made any findings that either Verdegan or Troxell teaches
or suggests using each of those compensation factors, which are required by
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each of claims 8 and 18. Accordingly, we reverse the rejection of claims 8
and 18.
Claims 9 and 19. We agree with Appellant that the preponderance of
the evidence of record does not support the Examiner’s findings that
Verdegan suggests a diagnostic unit that sends an alert signal to cause a
visual alert that is shown on a display, which is recited in each of claims 9
and 19. Verdegan is simply silent in this regard. That it might be capable of
sending such an alert is not sufficient to sustain the rejection of those claims.
Claims 10 and 20. These claims recite that the “the air treatment
monitoring system further comprises a prediction unit that is configured to
predict a failure date of the air treatment assembly by detecting a trend in
stored compensated pressure differentials over time.” Appellant argues,
inter alia, that Verdegan does not disclose this feature. However, the
Examiner’s findings in this regard are based on the disclosure of Hamann
(Non-Final Act. 11–12). Appellant does not challenge the findings based on
Hamann and, therefore, fails to show reversible error in them.

CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1–11 and 17–20 § 101

1–11 and 17–
20
1–3, 5–9, 11, and
17–19
§ 103(a)
Verdegan and
Troxell

1–3, 5–7, 11,
and 17
8, 9, 18, and
19
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Claims
Rejected
Basis Affirmed Reversed
4, 10, and 20 § 103(a)
Verdegan, Troxell,
and Hamann

4, 10, and 20
Overall Outcome 1–7, 10, 11,
17, and 20
8, 9, 18, and
19

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART