John Michael. Burke

Patent Trials and Appeals Board

Jul 25, 2019

13342439 - (D) (P.T.A.B. Jul. 25, 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.
13/342,439 01/03/2012 John Michael Burke QC103219 4447
12371 7590 07/25/2019
Muncy, Geissler, Olds & Lowe, P.C./QUALCOMM
4000 Legato Road, Suite 310
Fairfax, VA 22033
EXAMINER
HAGOS, EYOB
ART UNIT PAPER NUMBER
2863
NOTIFICATION DATE DELIVERY MODE
07/25/2019 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):
meo.docket@mg-ip.com
meo@mg-ip.com
ocpat_uspto@qualcomm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN MICHAEL BURKE
____________________

Appeal 2018-007310
Application 13/342,439
Technology Center 2800
____________________

Before CHRISTOPHER C. KENNEDY, BRIAN D. RANGE, and
DEBRA L. DENNETT, Administrative Patent Judges.

RANGE, Administrative Patent Judge.

DECISION ON APPEAL
SUMMARY
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, 4–14, 16–26, 28–32 and 34–37. We have
jurisdiction. 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellant, the real party in interest is QUALCOMM
Incorporated. Appeal Br. 3.
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STATEMENT OF THE CASE2
Appellant describes the invention as relating to detecting airliner
motion events such as takeoff or landing. Spec. ¶ 2. In particular, the
Specification identifies a desire for a mechanism to automatically disable
mobile telephone features upon takeoff and enable features upon landing.
Id. ¶¶ 3–4. Claims 1 and 13, reproduced below with emphases added to
certain key recitations, is illustrative of the claimed subject matter:
1. A method of identifying an airliner motion
event at a mobile device, comprising:
determining scalar acceleration signals from calibrated
triaxial accelerometer data obtained from one or more
accelerometers;
filtering the scalar acceleration signals to reduce high
frequency noise;
processing the filtered scalar acceleration signals to
generate an acceleration spread waveform, wherein processing
the filtered scalar acceleration signals to generate the
acceleration spread waveform comprises:
identifying an observation window;
determining the minimum value of the filtered scalar
acceleration signals within the observation window and the
maximum value of the filtered scalar acceleration signals within
the observation window; and
calculating a positive acceleration spread waveform
value if the minimum value occurs before the maximum
value within the observation window, and a negative
acceleration spread waveform value if the maximum value
occurs before the minimum value within the observation
window;

2 In this Decision, we refer to the Final Office Action dated March, 24, 2017
(“Final Act.”), the Appeal Brief filed December 11, 2017 (“Appeal Br.”), the
Examiner’s Answer dated May 11, 2018 (“Ans.”), and the Reply Brief filed
July 10, 2018 (“Reply Br.”).
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comparing the acceleration spread waveform to one or
more predetermined patterns characteristic of the airliner
motion event; and
identifying the airliner motion event based on whether
the comparing results in [sic, is] a substantial match.
13. An apparatus for identifying an airliner motion event at
a mobile device, comprising:
one or more accelerometers configured to output
calibrated triaxial accelerometer data;
an acceleration feature extractor configured to determine
scalar acceleration signals from the calibrated triaxial
accelerometer data, to filter the scalar acceleration signals to
reduce high frequency noise, and to process the filtered scalar
acceleration signals to generate an acceleration spread
waveform, wherein to process the filtered scalar acceleration
signals to generate the acceleration spread waveform, the
acceleration feature extractor is further configured to:
identify an observation window;
determine the minimum value of the filtered scalar
acceleration signals within the observation window and the
maximum value of the filtered scalar acceleration signals within
the observation window; and
calculate a positive acceleration spread waveform
value if the minimum value occurs before the maximum
value within the observation window, and a negative
acceleration spread waveform value if the maximum value
occurs before the minimum value within the observation
window; and
a motion event identification processor configured to
compare the acceleration spread waveform to one or more
predetermined patterns characteristic of the airliner motion
event, and to identify the airliner motion event based on
whether the comparing results in a substantial match.
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Appeal Br. 15, 17 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Chotoku et al.
(“Chotoku”)
Dutta et al.
(“Dutta”)
Lestere et al.
(“Lestere”)
Ketabdar
(“Ketabdar”)
Nance
US 2006/0178108 A1

US 2009/0259424 A1

US 2011/0046825 A1

US 2011/0047112 A1

US 8,180,504 B1
Aug. 10, 2006

Oct. 15, 2009

Feb. 24, 2011

Feb. 24, 2011

May 15, 2012
REJECTIONS
On appeal, the Examiner maintains (Ans. 2) the following rejections:
Rejection 1. Claims 1, 2, 4–14, 16–26, 28–32, and 34–37 under
35 U.S.C. § 101 as directed to an abstract idea without significantly more.
Final Act. 2.
Rejection 2. Claims 1, 2, 4–6, 8, 10, 11, 13, 14, 16–18, 20, 22, 23, 25,
26, 28–32, and 34–37 are rejected under 35 U.S.C. § 103 as unpatentable
over Ketabdar in view of Lastere. Id. at 4.
Rejection 3. Claims 7 and 19 are rejected under 35 U.S.C. § 103 as
unpatentable over Ketabdar in view of Lastere in further view of Chotoku.
Id. at 9.
Rejection 4. Claims 9 and 21 are rejected under 35 U.S.C. § 103 as
unpatentable over Ketabdar in view of Lastere in further view of Nance. Id.
at 10.
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Rejection 5. Claims 12 and 24 are rejected under 35 U.S.C. § 103 as
unpatentable over Ketabdar in view of Lastere in further view of Dutta. Id.
at 12
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t
has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented in this Appeal and each of Appellant’s arguments, we are not
persuaded that Appellant identifies reversible error except where we
otherwise state below. Thus, where we affirm the Examiner’s rejections, we
do so for the reasons expressed in the Final Office Action and the Answer.
We add the following primarily for emphasis.
Rejection 1. The Examiner rejects claims 1, 2, 4–14, 16–26, 28–32,
and 34–37 under 35 U.S.C. § 101 as directed to an abstract idea without
significantly more. Final Act. 2. Appellant does not separately argue any
claims aside from claim 1. We therefore limit our discussion to claim 1. All
remaining claims stand or fall with that claim. 37 C.F.R. § 41.37(c)(1)(iv)
(2013).
I. Principles of Law
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted 35 U.S.C. § 101 to include
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exceptions: "[l]aws of nature, natural phenomena, and abstract ideas" are not
patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Id. at 217-18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See 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. Kappas, 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 (Gottschalkv. Benson, 409 U.S. 63, 67–68 (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 183 n.7 (quoting Corning v. Burden, 56
U.S. (15 How.) 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
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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 tum to the second step
of the Alice and Mayo framework, where “we must examine the elements of
the claim to determine whether it contains an ‘inventive concept’ sufficient
to 'transform' the claimed abstract idea into a patent eligible application."
Alice, 573 U.S. at 221. “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.
See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
50 (USPTO Jan. 7, 2019) (“Guidance”). According to the Guidance, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
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ideas (i.e., mathematical concepts, certain methods of organizing
human activities 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) (9th ed.
Rev. 08.2017, Jan. 2018)).
If a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, the Guidance looks 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 56; see also, e.g., Ex parte Kimizuka, Appeal
2018-001081 (July 1, 2019) (informative).
II. The Examiner’s Rejection
The Examiner determines that claim 1 is directed to a judicial
exception: an abstract idea. Final Act. 2–3. In particular, the Examiner
determines that the claimed invention is directed to mathematical algorithms
and is similar to concepts our reviewing court has identified as abstract
ideas. Final Act. 3 (citing, for example, Digitech Image Techs., LLC v.
Electronics for Imaging, Inc., 758 F.3d 1344 (Fed. Cir 2015)). The
Examiner also determines that the claim does not include any additional
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elements that amount to significantly more than the abstract idea itself.
Final Act. 3.
III. Does the claim recite a judicial exception?
Consistent with the Guidance, we first consider whether the claim
recites a judicial exception. Guidance, 84 Fed. Reg. at 51. The Guidance
synthesizes the key concepts identified by the courts as abstract ideas into
three primary subject-matter groupings: mathematical concepts, certain
methods of organizing human activities (e.g., a fundamental economic
practice), and mental processes. Id. at 52. For the reasons discussed below,
claim 1 recites mathematical concepts that fall in the Guidance’s
mathematical concepts grouping, the Guidance’s mental processes grouping,
or both.
In particular, claim 1 recites “determining scaler acceleration signals
from . . . data obtained from one or more accelerometers” and then recites a
series of mathematical operations and/or mental processes to perform on the
data. For example, “filtering the scaler acceleration signals to reduce high
frequency noise” is a mathematic operation involving transforming a noisy
signal to a smoother signal that can more easily be analyzed. Processing
“the filtered scaler acceleration signals” involves using the recited
mathematical steps to “generate an acceleration spread waveform.” See,
e.g., Spec. Fig. 5, ¶ 36 (providing a high level explanation of how such a
waveform is generated). The steps of “comparing the acceleration spread
waveform to one or more predetermined patterns . . .” and “identifying the
airliner motion event based on whether the comparing results in [sic] a
substantial match” require a mathematical comparison or a comparison that
could be performed mentally (i.e., an observation, evaluation, or judgment).
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See Spec. ¶ 49 (explaining that, for example, a “landing ground run event”
may be defined by positive and negative acceleration spreads having certain
characteristics and adjacent in time).
Because, as explained above, claim 1 recites a series of mathematical
operations and/or mental processes, the claim recites a concept that falls
within the Guidance’s mathematical operations and/or mental processes
groupings. Guidance, 84 Fed. Reg. at 52 nn. 12, 14, and 15.
IV. Is the claim “directed to” the recited judicial exception?
Because claim 1 recites an abstract idea, we now determine, consistent
with the Guidance, whether the recited judicial exception is integrated into a
practical application. Guidance, 84 Fed. Reg. at 51. According to the
Guidance, when a claim recites a judicial exception and fails to integrate the
exception into a practical application, the claim is “directed to” the judicial
exception. Id.
The claim may integrate the judicial exception when, for example, it
reflects an improvement to technology or a technical field. Id. at 55. Here,
Appellant argues that claim 1 improves computer functionality by allowing
detection of airliner takeoff or landing events and thus allowing prevention
of telephony interference with aircraft equipment during flight. Appeal Br.
8–10. Appellant’s argument is not commensurate with the scope of claim 1.
Claim 1 merely collects information and performs calculations or mental
processes with the calculations. The claim does not provide a recitation that
improves any device.
Claim 1 is distinguishable from the technology-based integrations
addressed in decisions cited by Appellant. See Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016) (holding that patent-eligible
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claim was directed to self-referential table to improve computer databases),
cited in Appeal Br. 9; McRO, Inc. v. Bandai Namco Games Am., 837 F.3d
1299 (Fed. Cir. 2016) (explaining that patent-eligible claim focused on
specific asserted improvement in computer animation), cited in Appeal Br.
9; Reply Br. 2–3. Claim 1, instead, is more akin to claims our reviewing
court has held are not patent-eligible. See, e.g., Digitech Image Techs., LLC,
758 F.3d at 1350 (holding that claims to a “process of organizing
information through mathematical correlations” are directed to an abstract
idea even though the patentee argued that use of calculated profile would be
useful for capturing, transforming, or rendering a digital image); SAP
America, Inc. v. Investpic, LLC, 898 F.3d 1161, 1167 (holding claims patent
eligible and distinguishing McRO where claims were directed to “a
mathematical technique with no improved display mechanism”); see also
ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 773 (Fed. Cir. 2019)
(holding that claims were patent ineligible where claims were “directed to
the abstract idea of communicating over a network for device interaction”).
Claim 1 also recites “determining scalar acceleration signals from
calibrated triaxial accelerometer data obtained from one or more
accelerometers.” Appellant does not dispute that this is routine data
collection, and the Specification lacks technical detail as to how calibrated
triaxial accelerometer data is obtained from one or more accelerometers.
See, e.g., Spec. ¶¶ 9, 10, 24, 26, 27, 47, and 57. Mere data gathering or use
of a physical data gathering device does not necessarily render an otherwise
patent-ineligible claim eligible. See, e.g., Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1348
(Fed. Cir. 2014) (holding that use of generic computer and scanner did not
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make claim patent eligible); CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1375 (Fed. Cir. 2011) (explaining that obtaining transaction
data for later verification was insufficient to render the claim eligible in that
case).
We further note that the Guidance identifies various indicia of
integration, and claim 1 does not include these indicia. 84 Fed. Reg. at 55.
For example, “[t]ransformation and reduction of an article ‘to a different
state or thing’ is the clue to patentability of a process claim that does not
include particular machines.” Bilski, 561 U.S. at 604 (emphasis added),
quoted in MPEP § 2106.05(c). Yet “not all transformations . . . infuse an
otherwise ineligible claim with an ‘inventive concept.’” DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014). Claim 1
does not transform any physical object or substance. The claim is thus
distinguishable from claims that courts have determined were patent eligible
because of transformation. See, e.g., Diehr, 450 U.S. at 184 (holding that
claims directed to process that transforms rubber were patent eligible).
On this record, claim 1 is directed to the identified abstract idea. See
Final Act. 2–3.
V. Does the claim provide an inventive concept?
According to the Guidance, to determine whether a claim provides an
inventive concept, additional elements (i.e., claim recitations beyond the
identified patent ineligible subject matter) are considered both individually
and in combination with the claim as a whole to determine whether the
elements (1) add a specific limitation beyond the judicial exception that is
not “well-understood, routine, conventional” in the field or (2) simply
append well-understood, routine, conventional activities previously known
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to the industry, specified at a high level of generality, to the judicial
exception. Guidance, 84 Fed. Reg. at 56. Also, we reevaluate our
conclusions about the additional elements discussed in the previous step. Id.
Here, Appellant argues that claim 1 provides an ordered combination
of elements that provides a technical solution to the problem of accurately
detecting an airliner motion event. Appeal Br. 10–11. The solution steps
identified by Appellant are “the basic gathering of accelerometer data” and a
particular manner of “processing the raw data.” Id.; see also Reply Br. 2–3.
The data processing, however, is math and/or mental processes that do not
extend beyond the judicial exception explained above. The gathering of
accelerometer data is claimed (and explained in the Specification) at a high
level of generality, and Appellant does not dispute that claim 1’s gathering
of accelerometer data is a well-understood, routine, and conventional
activity. Appeal Br. 10 (referring to this gathering as “basic”); see also Ans.
8 (finding claim 1’s gathering data from accelerometers is “activity
previously known in the industry”). On this record, the limitations—
considered individually and in combination—do not provide an inventive
concept. Final Act. 2–3; Ans. 3–9.
V. Other Arguments
Appellant emphasizes that claim 1 is not recited at a high level
generality. Reply Br. 2–3. Specificity, however, does not by itself render
the recited subject matter not-abstract. While broad preemption of practical
uses of a patent-eligible concept “may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate patent eligibility.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed.
Cir. 2015).
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VI. Conclusion
For the reasons above, we sustain the Examiner’s rejection of
representative claim 1 under 35 U.S.C. § 101. We also sustain the
Examiner’s rejection under 35 U.S.C. § 101 of claims 2, 4–14, 16–26, 28–
32, and 34–37 because those claims are argued together with claim 1. See
supra 5.

Rejections 2–5. The Examiner rejects claims 1, 2, 4–6, 8, 10, 11, 13,
14, 16–18, 20, 22, 23, 25, 26, 28–32, and 34–37 under 35 U.S.C. § 103 as
unpatentable over Ketabdar in view of Lastere. Final Act. 4. The Examiner
applies additional references with regard to claims 7, 9, 12, 19, and 24. Id.
Appellant argues all claims as a group. Appeal Br. 11. We address
independent claims 1 and 13 below. All claims depending from claim 1 rise
or fall with claim 1, and all remaining claims rise or fall with claim 13.
37 C.F.R. § 41.37(c)(1)(iv) (2013).
Because the recitations of claim 13 more align with Appellant’s
argument, we first address claim 13. Claim 13 recites, among other things,
“[a]n apparatus” comprising an “acceleration feature extractor . . .
configured to . . . calculate . . . a negative acceleration spread waveform
value if the maximum value occurs before the minimum value within the
observation window. . . .” Appeal Br. 17. Claim 13, thus, claims an
apparatus that must, at a minimum, be capable of calculating “a negative
acceleration spread waveform if the maximum value occurs before the
minimum value within the observation window.”
The Examiner finds that Ketabar may not explicitly disclose
calculating a negative acceleration spread waveform. Final Act. 6. The
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Examiner finds, however, that Lastere teaches calculating a negative
acceleration spread waveform value. Id. at 7 (providing citations to
Lastere). Appellant argues that Lastere does not teach calculation of a
negative acceleration spread waveform and argues that Lastere instead
teaches a positive calculation. Appeal Br. 11–14.
We begin our analysis of Appellant’s argument with the claim
construction of the recited “negative acceleration spread waveform value.”
The Specification states that the acceleration spread “corresponds to the
difference between the maximum and the minimum scaler acceleration
values in the observation window.” Spec. ¶ 27. The Specification also
states that acceleration spread events “may be ‘positive’ or ‘negative’
depending on the sign of the acceleration spread during the event.” Id.
¶ 29 (emphasis added). The Specification further explains that acceleration
is negative where the observation window minimum does not occur before
the maximum. Id. The Specification also provides examples where a
negative event amplitude range is calculated. Id. ¶ 36. In view of the
Specification and the plain language of claim 13, we interpret a “negative
acceleration spread waveform value” as having, as the term suggests, a
negative value (i.e., a value less than zero).
In light of our construction above, we agree with Appellant that the
Examiner has not adequately explained how Lastere teaches calculation of a
negative acceleration spread wave form value. The Examiner cites
paragraphs 97–100, 114, and Figure 8 of Lastere to support the finding that
Lastere teaches such a value. Final Act. 6–7; Ans. 10–11. Figure 8,
however, indicates only positive values. The equations at paragraphs 100
and 114 indicate that a value is subtracted from nz0max; based on these
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calculations, it appears that the calculated delta nz0 will always be positive.
Appeal Br. 12–14. The Examiner does not persuasively address this point.
Ans. 10–11.
As an alternative, the Examiner also finds that it is well known to
calculate negative wave form values as recited. Appeal Br. 11. The
Examiner cites Figure 6 of King et al., U.S. Patent Pub. No. 2009/0315502
A1, Dec. 24, 2009 (“King”) as evidence that calculating a negative
acceleration spread waveform value is well known. The Examiner,
however, has not adequately explained how King shows this point or why it
would have been obvious to employ the teachings of King with the other
cited references. We, therefore, agree with Appellant that the Examiner has
not adequately explained that such a calculation is well known in the context
of Appellant’s claims. Appeal Br. 13–14.
For the above reasons, we do not sustain the Examiner’s obviousness
rejection of claim 13. Because independent claims 25, 31, and 37 are of
similar scope in relevant part and because the Examiner’s treatment of those
claims does not cure the error explained above, we also do not sustain the
Examiner’s rejection of claims 25, 31, and 37. Because the Examiner’s
treatment of claims depending from claims 13, 25, 31, and 37 does not cure
the error above, we also do not sustain the Examiner’s rejection of those
claims.
Claim 1, however, has a different scope. Claim 1 recites “[a]
method . . . comprising . . . processing” where the processing comprises
“calculating . . . a negative acceleration spread waveform value if the
maximum value occurs before the minimum value within the observation
window.” Appeal Br. 15. The method only requires calculating a negative
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acceleration spread waveform value if the condition precedent of “if the
maximum value occurs before the minimum value within the observation
window” is met. Cf. In re. Schulhauser, Appeal 2013-007847, 2016 WL
6277792 (PTAB April 28, 2016) (precedential) (holding that, given claim
language at issue requiring condition precedent, certain recitations need not
be performed if condition precedent is not met).
Appellant’s only argument against the Examiner’s obviousness
rejection on appeal is that Lastere does not teach calculating a negative
acceleration spread waveform value. Appeal Br. 11–14. Appellant’s
argument does not distinguish the teachings of Lastere from claim 1 where
maximum value does not occur before a minimum value. In other words,
claim 1 could be practiced where the maximum value never occurs before
the minimum value, and Appellant’s argument does not identify error in the
Examiner’s obviousness position under that condition. We therefore sustain
the Examiner’s rejections of claims 1, 2, and 4–12 under 35 U.S.C. § 103.
DECISION
For the above reasons, we affirm the Examiner’s rejection of claims 1,
2, 4–14, 16–26, 28–32, and 34–37 under 35 U.S.C. § 101 as directed to an
abstract idea without significantly more. We affirm the Examiner’s
rejections of claims 1, 2, and 4–12 under 35 U.S.C. § 103. We reverse the
Examiner’s rejections of claims 13, 14, 16–26, 28–32 and 34–37 under
35 U.S.C. § 103.
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