Kevin Andrew. Deibler

Patent Trials and Appeals Board

Sep 30, 2019

14817875 - (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.
14/817,875 08/04/2015 Kevin Andrew DEIBLER 05770001COA 5778
62008 7590 09/30/2019
MAIER & MAIER, PLLC
345 South Patrick Street
ALEXANDRIA, VA 22314
EXAMINER
HATCHER, DEIRDRE D
ART UNIT PAPER NUMBER
3683
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):
patent@maierandmaier.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN ANDREW DEIBLER
____________

Appeal 2017-0100711
Application 14/817,8752
Technology Center 3600
____________

Before BRUCE T. WIEDER, TARA L. HUTCHINGS, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 3–9, 11–13, and 16–22, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our Decision references Appellant’s Appeal Brief (“App. Br.,” filed
Jan 12, 2017) and Reply Brief (“Reply Br.,” filed July 24, 2017), and the
Examiner’s Answer (“Ans.,” mailed May 24, 2017) and Final Office Action
(“Final Act.,” mailed June 29, 2016).
2 Appellant identifies the inventor as the real party in interest. App. Br. 2.
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CLAIMED INVENTION
Claims 1, 12, and 16 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A non-transitory computer-readable medium for
replicating and assessing personnel hierarchy, comprising
instructions stored thereon, that when executed on a processor,
perform the steps of:
[(a)] mapping personnel attribute data to logically coded
nodes within a logically coded unified hierarchy wherein each
node comprises at least one associated variable encapsulating
data relevant to that node;
[(b)] mapping environmental data, including physical
environment data, to the logically coded unified hierarchy;
[(c)] performing a function corresponding to a rule or rule
set corresponding to a business strategy or objective;
[(d)] data mining a node within the logically coded unified
hierarchy to measure performance of the function;
[(e)] aggregating performance data of all nodes relevant to
a rule or rule set;
[(f)] comparing the performance of each node against the
aggregated performance of the remaining relevant nodes and the
node itself; and
[(g)] modifying or reassigning nodes within the hierarchy,
as needed, based on performance.

REJECTIONS
Claims 1, 3–9, 11–13, and 16–22 are rejected under 35 U.S.C. § 101
as directed to a judicial exception without significantly more.
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Claims 1, 3–5, 9, 12, 13, and 16–22 are rejected under 35 U.S.C.
§ 103 as unpatentable over April (US 2011/0015958 A1, pub. Jan. 20, 2011)
and Cases (US 2009/0030927 A1, pub. Jan. 29, 2009).3
Claims 6–8 are rejected under 35 U.S.C. § 103 as unpatentable over
April, Cases, and Brennan (US 2008/0281651 A1, pub. Nov. 13, 2008).
Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable over
April, Cases, Brennan, and McLean (US 8,078,486, iss. Dec. 13, 2011).

ANALYSIS
Patent-Ineligible Subject Matter
Appellant argues the pending claims as a group. App. Br. 6–12. We
select independent claim 1 as representative. The remaining claims stand or
fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Under 35 U.S.C. § 101, 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 § 101
to include an implicit exception: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66 (2012), “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible

3 We treat the Examiner’s identification in the rejection heading of claims
10 and 11 among the claims subject to rejection as inadvertent. See Final
Act. 5.
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applications of those concepts.” Alice Corp., 573 U.S. at 217. The first step
in that analysis is to “determine whether the claims at issue are directed to
one of those patent-ineligible concepts.” Id. (citation omitted). If the claims
are not directed to a patent-ineligible concept, e.g., an abstract idea, the
inquiry ends. Otherwise, the inquiry proceeds to the second step where the
elements of the claims are considered “individually and ‘as an ordered
combination’” to determine whether there are additional elements that
“‘transform the nature of the claim’ into a patent-eligible application.” Id.
(quoting Mayo, 566 U.S. at 79, 78). This is “a search for an ‘inventive
concept’ — i.e., an element or combination of elements that is ‘sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.’” Id. at 217–18 (alteration in original).
The USPTO recently published revised guidance on the application of
§ 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE,
84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).4 That guidance
revised the USPTO’s examination procedure with respect to the first step of
the Mayo/Alice framework such that a claim will generally be considered
directed to an abstract idea if (1) the claim recites subject matter falling
within one of the following groupings of abstract ideas: (a) mathematical
concepts; (b) certain methods of organizing human activity, e.g., a
fundamental economic principle or practice, a commercial or legal
interaction; and (c) mental processes (“Step 2A, Prong One”), and (2) the
claim does not integrate the abstract idea into a practical application, i.e.,

4 The Revised Guidance is effective as of January 7, 2019, and applies to all
applications, and to all patents resulting from applications, filed before, on,
or after January 7, 2019.
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apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception (“Step 2A,
Prong Two”). See Revised Guidance 54–55. The Revised Guidance
references MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”)
§§ 2106.05(a)–(c) and (e)–(h) in describing the considerations that are
indicative that an additional element or combination of elements integrates
the judicial exception, e.g., the abstract idea, into a practical application. Id.
at 55. If the recited judicial exception is integrated into a practical
application, as determined under one or more of these MPEP sections, the
claim is not “directed to” the judicial exception.
Only if the 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 “[a]dds a specific limitation or combination of
limitations” that is not “well-understood, routine, conventional activity in the
field” or simply “appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception” (“Step 2B”). Id. at 56.
Judicial Exception: Step One of the Mayo/Alice Framework; Step 2A,
Prong 1 of the 2019 Revised Guidance
Appellant’s Specification describes that business enterprises use tools
to assess and improve their businesses, such as tools for assessing resource
management and production of various assets. Spec. ¶ 2. However, these
tools “lack[] an ability to map, assess, and optimize the allocation of
personnel within a business enterprise.” Id.
Appellant’s claim 1 recites a computer-readable medium for
replicating and assessing personnel hierarchy that includes the following
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instructions stored thereon: “mapping personnel attribute data to . . . nodes
within a . . . hierarchy wherein each node comprises at least one associated
variable encapsulating data relevant to that node” (step (a)); “mapping
environmental data, including physical environment data, to the
. . . hierarchy” (step (b)); “performing a function corresponding to a rule or
rule set corresponding to a business strategy or objective” (step (c)); “data
mining a node within the . . . hierarchy to measure performance of the
function” (step (d)); “aggregating performance data of all nodes relevant to a
rule or rule set” (step (e)); “comparing the performance of each node against
the aggregated performance of the remaining relevant nodes and the node
itself” (step (f)); and “modifying or reassigning nodes within the hierarchy,
as needed, based on performance” (step (g)).
When given their broadest reasonable interpretation, limitations (a)–
(g) recite a set of steps for modifying or reassigning nodes within a
personnel hierarchy, i.e., managing relationships or interactions between
people, which is a certain method of organizing human activity, and,
therefore, an abstract idea. See 2019 Revised Guidance 52. Accordingly,
we are not persuaded of Examiner error at Step 2A, Prong 1 of the 2019
Revised Guidance.
Practical Application: Step One of the Mayo/Alice Framework; Step 2A,
Prong 2 of the 2019 Revised Guidance
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, we next consider whether the claim recites additional
elements, considered individually and in combination, that integrate the
judicial exception into a practical application. See Revised Guidance 54–55.
Here, the additional elements recited in claim 1, beyond the abstract idea,
include a “non-transitory computer-readable medium” (preamble), a
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“processor” (preamble), “logically coded” nodes (e.g., limitation (a)), and a
“logically coded unified” hierarchy (e.g., limitations (a), (b), and (d)). These
elements are described in the Specification at a high level of generality, i.e.,
as an assembly of generic computer components. See, e.g., Spec. ¶¶ 13, 15,
16. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed.
Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible.”).
Appellant disputes that claim 1 “requires just ‘a generic computer
system (e.g. generic processor)’ due to its cost prohibitive and
technologically inferior implementation.” App. Br. 8. Instead, Appellant
contends that the claim 1 is “better suited for implementation using an
Application-specific integrated circuit such as Google’s Tensor Processing
Unit or another custom circuit, such as one that is capable of quantum
computing.” App. Br. 8 (citing Spec. ¶¶ 13, 18). Appellant’s argument is
unpersuasive.
Here, claim 1 simply recites “a processor” in the preamble of claim 1.
Appellant’s Specification at paragraph 13 describes that the invention
“[could] be performed by specific circuits (e.g.[,] application specific
integrated circuits (ASICs).” However, the Specification further provides
that the invention “may be embodied in a number of different forms, all of
which have been contemplated to be within the scope of the claimed subject
matter.” Spec. ¶ 13. Further, claim 1 recites “mapping” data to logically
coded nodes within a logically coded unified hierarchy and “modifying or
reassigning nodes within the hierarchy, as needed,” but claim 1 does not
recite any particular manner for mapping or modifying. To the contrary, the
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Specification at paragraph 18 identifies a variety of known, but non-limiting,
data processing techniques for mapping and/or modeling (e.g., recursion,
polymorphism, encapsulation, inheritance, string theory, quantum
mechanics, stochastics, dynamic modeling, and time series analysis
including Fourier/wavelet transforms). Appellant fails to persuade us that
claim 1 invokes any specialized computer hardware or special programming
(i.e., a particular machine).
Seeking to analogize claim 1 to the claims in Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327 (Fed. Cir. 2016), Appellant argues that claim 1 recites
a “dynamic, self-learning, and evolving model within a computer system,”
and self-learning models “inherently [rely] upon the self-referential
capabilities that were upheld [in Enfish] as patent eligible.” App. Br. 7.
However, contrary to Appellant’s suggestion, Enfish does not stand for the
proposition that any claim requiring a data structure to have self-referential
capabilities is patent eligible. Instead, the Federal Circuit instructed that
“the first step in the Alice inquiry in this case asks whether the focus of the
claims is on the specific asserted improvement in computer capabilities (i.e.,
the self-referential table for a computer database) or, instead, on a process
that qualifies as an ‘abstract idea for which computers are invoked merely as
a tool.” Id. at 1335–36.
In Enfish, the Federal Circuit described shortcomings with traditional
relational database and object-oriented databases that the claimed data
structure overcame. See id. at 1337 (citation omitted). Specifically, the
court pointed out that the specification described that the existing database
technology required a programmer to preconfigure a structure to which a
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user had to adapt data entry, and the claimed invention eliminated this
requirement by using a self-referential table. Id. (citation omitted).
The court concluded that the focus of the claims was on the asserted
improvement in computer capabilities — namely, the self-referential table.
Id. at 1336. For example, a representative claim recited a data storage and
retrieval system for a computer memory having a means for configuring a
memory according to a logical table that included rows, columns, and a
means for indexing data. Id. at 1336. The means for configuring required a
four-step algorithm, and the third step of that algorithm (i.e., “[f]or each
column, store information about the column in one or more rows”), rendered
the table self-referential. Id. The court noted that the specification
identified additional benefits conferred by the self-referential table (e.g.,
increased flexibility, faster search times, and smaller memory requirements),
which further supported the court’s conclusion that the claims were directed
to an improvement of an existing technology. Id. at 1337 (citation omitted).
Here, in contrast, Appellant does not purport to have invented a
logically coded unified hierarchy or other data structure analogous to
Enfish’s self-referential table. Instead, claim 1 focuses on an improvement
to the abstract idea itself (i.e., method of organizing human activity) that is
achieved by application in a particular technological environment (e.g., a
logically coded unified hierarchy having logically coded nodes).
Appellant asserts that the claimed invention can “analyz[e] dozens,
hundreds, or millions of scenarios simultaneously and in real-time.” App.
Br. 9; see also id (“[T]o reach an end state with a static process, as outlined
by the cited art, is merely a business process; however, the present invention
incorporates multiple instantiations . . . that are simultaneously executing
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pre-defined rules and rule sets . . . to reach a defined end state(s)”). But
relying on a computer to perform routine tasks more quickly or accurately is
insufficient to render a claim patent eligible. OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015).
Appellant argues that claim 1 recites an ordered combination that
results in an improvement in the technical field of self-learning, artificial
intelligence models. App. Br. 9; see also Reply Br. 5–7. However, we are
not persuaded that claim 1 recites an improvement in artificial intelligence
technology, as opposed to an improvement to an abstract idea that is
achieved by applying the abstract idea in a particular technological
environment. Here, claim 1 recites results-based limitations (a) through (g),
without providing sufficient technological details for how to achieve the
desired results. See Intellectual Ventures I LLC v. Capital One Fin. Corp.,
850 F.3d 1332, 1342 (Fed. Cir. 2017) (explaining that “[o]ur law demands
more” than claim language that “provides only a result-oriented solution,
with insufficient detail for how a computer accomplishes it”).
Appellant’s Specification also does not specify a particular manner for
performing the recited steps of “mapping,” “performing a function,” “data
mining,” “aggregating,” “comparing” and “modifying that would indicate
any improvement in the technical field of artificial intelligence technology.
See, e.g., Spec. ¶¶ 3, 16, 19, and 32–38. For example, the Specification at
paragraphs 13 and 18 suggests that any known data processing techniques
may be used in conjunction with any known software and/or hardware to
achieve the recited functionality.
We conclude, for the reasons outlined above, that claim 1 recites a
method of organizing human activity, i.e., an abstract idea. We are not
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persuaded that the additional elements are more than generic computer
components used to implement the abstract idea, and generally link the
abstract idea to a particular technological environment or field of use. For
example, we find no indication that one or more additional elements reflects
an improvement in the functioning of a computer, or an improvement to
other technology or technical field; requires any specialized computer
hardware, i.e., a particular machine; or effects a transformation or reduction
of a particular article to a different state or thing. Therefore, we are not
persuaded that the Examiner erred at Step 2A, Prong 2 in determining that
the additional elements do not integrate the recited abstract idea into a
practical application (Step 2A, Prong Two of the 2019 Revised Guidance).
Inventive Concept: Step Two of the Mayo/Alice Framework (Step 2A,
Prong 1 of the 2019 Revised Guidance)
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
2019 Revised Guidance, the second step of the Mayo/Alice framework —
whether claim 1 recites additional elements that provide an inventive
concept (i.e., whether the additional elements amount to significantly more
than the judicial exception itself).
As set forth above, the only additional elements that are not part of the
abstract idea itself are described as generic computer components (e.g.,
computer-readable medium, processor, logically coded unified hierarchy,
logically coded nodes). Therefore, we are not persuaded that the Examiner
erred in determining that the additional elements recited in claim 1,
considered alone and as an ordered combination, do not amount to
significantly more than the abstract idea.
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Appellant additionally asserts that “Example 3[5] concerning Digital
Image Processing [] can be inherent within the present invention,
specifically highlighted in the claim limitation to include ‘physical
environment data’. In effect, the disclosed invention does include additional
elements that represent an improvement to computer technology.” App.
Br. 10; see also Reply Br. 13 (asserting that the claimed physical
environment covers virtual replication and instantiation, and USPTO
Example 3 held claims directed to digital image processing to be patent
eligible). Yet, we are not persuaded that any elements recited in claim 1,
considered alone or in combination, reflect an improvement in digital image
processing techniques. For example, claim 1 does not recite any particular
manner for “mapping . . . physical environment data” to indicate an
innovation in digital image processing.
We are not persuaded of error in the Examiner’s rejection of claim 1
under 35 U.S.C. § 101. Therefore, we sustain the Examiner’s rejection of
claim 1, and claims 3–9, 11–13, and 16–22, which fall with claim 1.
Obviousness
We are persuaded by Appellant’s argument that the Examiner erred in
rejecting independent claims 1, 12, and 18 under 35 U.S.C. § 103 because
April does not teach or suggest limitation (b), i.e. “mapping environmental
data, including physical environment data, to the logically coded unified
hierarchy,” as recited in claim 1, and similarly recited in claims 12 and 18.

5 Examples: Abstract Ideas (Jan. 27, 2015) (available at
https://www.uspto.gov/sites/default/files/documents/abstract_idea_examples
.pdf).

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App. Br. 16; see also Reply Br. 11–13, 17. The Examiner relies on Figure 9
and paragraphs 52 and 83 of April for the argued limitations. Final Act. 6.
However, we find nothing in the cited portions of April that teaches or
suggests anything about mapping physical environment data, as required by
claim 1, and similarly required by claims 11, 18, and 21. Instead, April
describes that socio-economic variables, such as economic outlook or
forecasts, unemployment rate, talent availability and demand, are among the
parameters defined to govern a simulation. See April ¶¶ 52, 83.
The Examiner takes the position that April’s use of “talent
availability” in the simulation “can be considered a physical environment
data that relates to material things (i.e., available employees).” Ans. 35.
Appellant argues that the Examiner’s interpretation of physical environment
data as incorporating socio-economic variables is beyond the broadest
reasonable interpretation, because the term “physical environment data”
requires data about the physical environment. App. Br. 16–17; see also
Reply Br. 12–13, 17. We agree.
“During examination, ‘claims . . . are to be given their broadest
reasonable interpretation consistent with the specification, and . . . claim
language should be read in light of the specification as it would be
interpreted by one of ordinary skill in the art.”’ In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d
831, 833 (Fed. Cir. 1990)). The term “physical environment” is generally
understood to mean “the part of the human environment that includes pure
physical factors (as soil, climate, water supply).” Merriam-Webster,
https://www.merriam-webster.com/dictionary/physical%20environment (last
visited Sept. 24, 2019)). Consistent with this general understanding,
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Appellant’s Specification describes “physical environment data” as data
concerning the physical environment. For example, paragraph 19 of the
Specification describes that physical environment data could be used to
model a military physical environment, such that “errors of fielding a
particular tank” could be detected at a tactical level. Likewise, at
paragraph 39, the Specification describes physical environment data and
personnel attribute data as distinct types of data that may impact one
another. Here, the Examiner’s interpretation of April’s talent attribute data
as physical environment data goes beyond the broadest reasonable
interpretation. Talent availability, as described by April, at best, relates to
personnel attribute data (claim 1, limitation (a)), not physical environment
data (claim 1, limitation (b)), under a broad, but reasonable interpretation.
For at least this reason, we do not sustain the Examiner’s rejection of
independent claims 1, 12, and 16, and dependent claims 3–5, 9, 13, and 17–
22 under 35 U.S.C. § 103.
The Examiner’s rejections of dependent claims 6–8 and 11 under 35
U.S.C. § 103 does not cure the deficiencies in the rejection of independent
claim 1. See Final Act. 18–21. Therefore, we do not sustain the rejection of
claims 6–8 and 11 for the same reasons provided above with respect to
independent claim 1.
DECISION
The Examiner’s rejection of claims 1, 3–9, 11–13, and 16–22 under
35 U.S.C. § 101 is affirmed.
The Examiner’s rejections of claims 1, 3–9, 11–13, and 16–22 under
35 U.S.C. § 103(a) are reversed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED