Kevin Detrick

Patent Trials and Appeals Board

Dec 23, 2019

14267465 - (D) (P.T.A.B. Dec. 23, 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.
14/267,465 05/01/2014 Kevin Detrick 145769.00201 9187
78442 7590 12/23/2019
GENERAL (Berwyn/Philadelphia)
Pepper Hamilton LLP
400 Berwyn Park
899 Cassatt Road
Berwyn, PA 19312-1183
EXAMINER
FRUNZI, VICTORIA E.
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
12/23/2019 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):
bwdocket@pepperlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN DETRICK
Appeal 2018-002334
Application 14/267,465
Technology Center 3600
Before BRADLEY W. BAUMEISTER, SHARON FENICK, and
RUSSELL E. CASS, Administrative Patent Judges.
FENICK, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–29. See Appeal Br. 7.2 We have
jurisdiction under 35 U.S.C. § 6(b)(1). We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Innovative Control
Systems, Inc. Appeal Brief (“Appeal Br.,” filed June 12, 2017) 3.
2 This Decision refers to Appellant’s Appeal Brief and Reply Brief (“Reply
Br.,” filed December 28, 2017), the Examiner’s Final Office Action (“Final
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CLAIMED SUBJECT MATTER
The claims are directed providing car wash services where pricing is
determined based in part on factors assessed in relation to, for example, a
current wait time based on a queue length for a specific service or the
availability of crews to perform services. Spec. ¶ 16. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method of operating a flex service car wash comprising:
a) providing a first computer terminal at which a vehicle
customer can purchase a car wash and at least one additional
service, such as a hand finishing service, to be provided after
receiving the car wash;
b) determining a projected length of a queue for the at least one
additional service at the time a customer purchases a car wash;
c) calculating a price for the at least one additional service based
on the projected length of the queue and making the at least one
additional service available for purchase at the price on the first
computer terminal;
d) providing a purchased car wash including providing the at
least one additional service if selected by the customer for the
price based on the projected length of the queue,
wherein the projected length of the queue is for a time following
the provision of the purchased carwash.
Appeal Br. 17 (Claims Appendix).

Act.,” mailed October 13, 2016 ) and Answer (“Ans.,” mailed November 2,
2017), and the original Specification (“Spec.,” filed May 1, 2014).
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REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Elliott US 6,366,220 B1 Apr. 2, 2002
Ringdahl et al. (“Ringdahl”) US 2006/0144430 A1 July 6, 2006
Ferrara et al. (“Ferrara”) US 7,778,937 B2 Aug. 17, 2010
Dube et al. (“Dube”) US 8,284,924 B2 Oct. 9, 2012

REJECTIONS
Claims 1–29 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more. Final Act. 2–5.
Claims 1–11, 17–28 and 29 are rejected under 35 U.S.C. § 103 as
being unpatentable over Ringdahl, Dube, and Ferrara. Final Act. 6–22.
Claims 12–16 and 27–29 are rejected under 35 U.S.C. § 103 as being
unpatentable over Ringdahl, Dube, Ferrara, and Elliott. Final Act. 23–28.

PRINCIPLES OF LAW RELATING TO
PATENT ELIGIBILITY UNDER 35 U.S.C. § 101
I. SECTION 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.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 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, we
are guided by the Court’s two-step framework, described in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
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(2012), and Alice. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–
77). 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, 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 (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 (1853))); 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
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 Court
also indicated that a claim “seeking patent protection for that formula in the
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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 turn 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 (internal 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.
II. USPTO SECTION 101 GUIDANCE
In January of 2019, the United States Patent and Trademark Office
(“USPTO”) published revised guidance on the application of § 101, which
was updated in October 2019. USPTO, 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Guidance”);
October 2019 Update: Subject Matter Eligibility, 84 Fed. Reg. 55942
(available at the USPTO’s website) (“October 2019 PEG Update”). Under
the 2019 Guidance, we first look to whether the claim recites the following:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
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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)).
2019 Guidance, 84 Fed. Reg. at 52–55.
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.
2019 Guidance, 84 Fed. Reg. at 56.
ANALYSIS
I. THE 101 REJECTION
A. The Examiner’s Rejection and Appellant’s Contentions
In the Final Office Action, the Examiner rejects claims 1–29 under
35 U.S.C. § 101 as directed to non-statutory subject matter. Final Act. 2–5.
The Examiner determines that claim 1 recites an abstract idea in the form of
the steps of “determining a projected length of a queue for the at least one
additional service at the time a customer purchases a car wash,” “calculating
a price for the at least one additional service based on the projected length of
the queue and making the at least one additional service available for
purchase,” and pricing a service “based on the projected length of the
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queue,” and additionally finds an abstract idea in the claim limitation that
“the projected length of the queue is for a time following the provision of the
purchased carwash.” Id. at 3–4; Ans. 3–4.
The Examiner determines, inter alia, that these steps are similar to
organizing, storing, and transmitting information, or comparing new and
stored information and using rules to identify options. Final Act. 3–4 (citing
Cyberfone Systems, LLC v. CNN Interactive Group, Inc., 558 Fed. Appx.
988 (Fed. Cir. 2014) and SmartGene, Inc. v Advanced Biological Labs., 555
Fed. Appx. 950 (Fed. Cir. 2014)). The Examiner additionally finds that the
method of claim 1 comprises “routine data gathering” to determine the price
of a service. Id. at 5 (citing Elec. Power Group v. Alstom S.A., 830 F.3d
1350 (Fed. Cir. 2016)).
The Examiner determines that the additional limitations of the “first
computer terminal,” in claim 1, and the “computer terminal,” in claim 2,
(which depends from claim 1 and adds the limitation that the terminal be
automated), do not improve another technology or technical field, improve
the functioning of a computer itself, add a specific limitation other than what
is well-understood, routine, and conventional, or add meaningful limitations
that amount to more than generally linking the use of the exception to a
particular technological environment. Id. at 4–5.
Appellant argues that the claims are patentable because they “provide
a particular method for pricing, selling, and providing services over the
course of the implementation claimed.” Appeal Br. 8. Appellant argues that
“the method of claim 1 provides concrete steps for separately
(1) determining a projected length of a queue for a time period following the
provision of a carwash, (2) calculating a price based on a projected length of
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a queue at that future time, (3) presenting the service for sale to a consumer
for that calculated price, and then (4) providing the purchased car wash and
additional service to the consumer.” Id.; Reply Br. 2.
Appellant further argues that the determination of a projected queue
length is not an abstract idea, as it is based on an actual queue and a variety
of supplemental factors, and specific data must be collected and transformed
to arrive at the projection and for pricing the service according to that
projection. Id. at 8–9. Appellant argues that because services are actually
made available for purchase and provided, the claim considered as a whole
is not abstract and the added limitations do significantly more than linking
the use of the exception to a particular technological environment. Id. at 9–
10.
Appellant argues that the Examiner does not properly address
claim 18 or the claims that depend from claim 18. Id. at 8, 10. Appellant
argues that claim 18’s additional computer-terminal and service-station
limitations further support its arguments regarding the claimed system and
method. Id. at 10.
B. Analysis under Step 2A, Prong 1, of the 2019 Guidance
Under Step 2A, Prong 1, of the 2019 Guidance, we first must
determine whether the claim recites any judicial exception to patent
eligibility. The 2019 Guidance identifies three judicially excepted
groupings: (1) mathematical concepts, (2) certain methods of organizing
human activity such as fundamental economic practices and managing
interactions between people, and (3) mental processes. 2019 Guidance,
84 Fed. Reg. at 52–53.
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Based on existing Supreme Court and Federal Circuit precedent, the
2019 Guidance has identified “certain methods of organizing human
activity” that may constitute an abstract idea including, inter alia,
“managing personal behavior or relationships or interactions between people
(including social activities, teaching, and following rules or instructions).”
See 2019 Guidance, 84 Fed. Reg. at 52. The 2019 Guidance also identifies
“mental processes” as including “concepts performed in the human mind
(including an observation, evaluation, judgment, opinion).” Id. (footnote
omitted). The “mental processes” judicial exception also includes concepts
that can be performed by a human with a pen and paper as well as those that
can be performed entirely in the mind. See October 2019 PEG Update at 9
(“a claim that encompasses a human performing the step(s) mentally with
the aid of a pen and paper recites a mental process”).
Claim 1, as drafted, recites steps for calculating a price for a service
that can be performed between humans or in the human mind without the
use of computers or other technological elements. These steps will be
discussed in more detail below.
Claim 1, limitation (b), recites the step of “determining a projected
length of a queue for the at least one additional service at the time a
customer purchases a car wash” and the “wherein” clause of claim 1 further
specifies that “the projected length of the queue is for a time following the
provision of the purchased carwash.” This step can be performed in a
number of ways by a person, such as by having a person see how many
customers are in line or waiting for services to be provided at the time a
customer’s service (such as a carwash) is likely to be completed, or
evaluating current factors such as supply availability or worker availability
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to estimate a queue length for an additional service at a future time. Such an
evaluation may be based wholly or partly on historical data or experience.
This step, therefore, can be carried out as a mental process.
Claim 1, limitation (c) recites, in part, the step of “calculating a price
for the at least one additional service based on the projected length of the
queue and making the at least one additional service available for purchase
at the price.” A human can mentally provide a price for an additional
service depending on the wait time for that service. This step, as well, can
be carried out as a mental process.
Appellant argues that the claims do not recite a judicial exception that
is analogous to those identified by the courts. Appeal Br. 9. As discussed
above, however, the claim recites judicial exceptions in the form of mental
steps and interactions between people, which the 2019 Guidance has
identified as categories of abstract ideas based on Supreme Court and
Federal Circuit precedent. See 2019 Guidance, 84 Fed. Reg. 52 nn.13–14
(citing cases involving mental steps and certain methods of organizing
human activity including interactions between people).
For these reasons, we determine that claim 1 recites recognized
judicial exceptions to patent eligibility. See 2019 Guidance, 84 Fed. Reg.
at 52–53.
Appellant argues that claims 18–29 were not addressed by the
Examiner. Appeal Br. 8, 10; Reply Br. 3. However, the Examiner
specifically directs the rejection to “claims 1–29” and discusses the “claims”
(plural) in the rejection. Final Act. 2–5, 29–31. Furthermore, claim 18
contains limitations substantially similar to those specifically addressed with
respect to claim 1. Id. We, therefore, understand the Examiner to have
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addressed the patentability of claims 1–29 in the rejection. Because
independent claims 1 and 18 include similar limitations, we, therefore, agree
that claim 18, and the claims dependent from claims 1 and 18, also recite
judicial exceptions to patent eligibility.
C. Analysis under Step 2A, Prong 2, of the 2019 Guidance
Having determined that the claims recite a judicial exception, we next
consider whether the claims recite “additional elements that integrate the
[judicial] exception into a practical application.” See 2019 Guidance,
84 Fed. Reg. at 54; MPEP §§ 2106.05(a)–(c), (e)–(h). In this regard, the
Supreme Court has held that one “cannot transform a patent-ineligible
abstract idea into a patent-eligible invention” by “the mere recitation of a
generic computer” or by “limiting the use of [the] abstract idea ‘to a
particular technological environment.’” Alice, 573 U.S. at 223.
In addition to the steps discussed above that can be performed by a
human in the mind or through interactions between people, claim 1 also
recites “providing a first computer terminal at which a vehicle customer can
purchase a car wash and at least one additional service, such as a hand
finishing service, to be provided after receiving the car wash,” making the at
least one additional service available for purchase at the price “on the first
computer terminal,” and “providing a purchased car wash including
providing the at least one additional service if selected by the customer for
the price based on the projected length of the queue.”
The “computer terminal” limitation describes a generic computer
component that amounts to mere instructions to implement the abstract idea
on a computer, and therefore is not sufficient to make the claim patent
eligible under Step 2B. See Alice, 573 U.S. at 226 (determining that the
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claim limitations “data processing system,” “communications controller,”
and “data storage unit” were generic computer components that amounted to
mere instructions to implement the abstract idea on a computer); October
2019 PEG Update at 11–12 (recitation of generic computer limitations for
implementing the abstract idea “would not be sufficient to demonstrate
integration of a judicial exception into a practical application”).
The provision of a purchased car wash including the at least one
additional service, as recited in claim 1’s limitation (d), constitutes
insignificant extra-solution activity and only generally links the use of a
judicial exception to a particular technological environment/field of use.
“The notion that post-solution activity, no matter how conventional or
obvious in itself, can transform an unpatentable principle into a patentable
process exalts form over substance. A competent draftsman could attach
some form of post-solution activity to almost any mathematical formula.”
Flook, 437 U.S. at 590; see also In re Brown, 645 Fed. App’x 1014, 1016-
1017 (Fed. Cir. 2016). As in Flook, so as not to “exalt[] form over
substance,” we determine that the limitations on the use of the abstract idea
to a specific field use (providing car wash services) cannot make the claim
patent-eligible. Flook, 437 U.S. at 590. While Appellant argues that claim 1
provides “concrete steps for separately” performing the method steps,
including the step of “providing the purchased car wash and additional
service to the consumer,” this argument is not commensurate with the claim
language, in which no additional concrete steps relating to the provision of
the car wash services are recited.
Consequently, the additional limitations in the claims beyond the
judicial exception do not serve to integrate the judicial exception into a
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practical application within the meaning of step 2A, Prong 2, of the
2019 Guidance.
D. Analysis under Step 2B
Under Step 2B, we determine whether claim 1 includes additional
elements individually or in combination that provide an inventive concept
and, therefore, amount to significantly more than the exception itself. See
2019 Guidance, 84 Fed. Reg. at 56; Alice, 573 U.S. at 221. We agree with
the Examiner that claim 1 does not include additional elements that provide
any such “inventive concept,” and that the additional elements are “well-
understood, routine, [or] conventional” in the field. See MPEP
§ 2106.05(d).
As discussed above with respect to Step 2A, Prong 2, the additional
elements in claim 1 beyond the judicial exception are “providing a first
computer terminal at which a vehicle customer can purchase a car wash and
at least one additional service, such as a hand finishing service, to be
provided after receiving the car wash,” making the at least one additional
service available for purchase at the price “on the first computer terminal,”
and “providing a purchased car wash including providing the at least one
additional service if selected by the customer for the price based on the
projected length of the queue.” As discussed above, these are simple generic
computer elements or insignificant post-solution activity. As such, we agree
with the Examiner that they are well-understood, routine, and conventional
and are therefore insufficient to provide an “inventive concept” that amounts
to significantly more than the abstract idea itself, and additionally determine
that considering the elements of the claim as a whole, there is no inventive
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concept which amounts to significantly more than the exception itself. See
Final Act. 5–6.
Consequently, we agree with the Examiner that claim 1 is directed to
patent-ineligible subject matter. The same is true of independent claim 18,
which includes similar limitations as claim 1. We, therefore, sustain the
rejection of independent claims 1 and 18, as well as the rejection of
dependent claims 2–17 and 19–29, which are not argued separately.

II. THE 103 REJECTION
The Examiner finds that the second part of limitation (c) of claim 1,
“making the at least one additional service available for purchase at the price
on the first computer terminal,” is taught in Ringdahl’s description of a
messaging component in a car wash, which, in the time in which paid-for car
wash services are “close to being finished” provides messages about an
“add-on service” or “additional services” that are available to purchase.
Ringdahl ¶ 39; Final Act. 7 (citing Ringdahl ¶ 39). The Examiner finds that
the first part of this claim limitation, including the antecedent basis for “the
price” in the second part, “calculating a price for the at least one additional
service based on the projected length of the queue,” is taught by the
combination of Dube and Ferrara. Final Act. 8–9.
Dube teaches queue monitoring, which allows a periodic award to a
user waiting in a queue, and Ferrara teaches estimating a wait time for
individuals seeking services at an establishment. Id. (citing Dube 3:45–58;
Ferrara 4:15–20). The Examiner reasons that one of ordinary skill would
have modified Dube with Ringdahl to “increase customer’s satisfaction for a
service by rewarding a customer for waiting.” Id. at 8. The Examiner
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further finds that one of ordinary skill would have further modified the
combination of Ringdahl and Dube “in order to manage wait time in service
transactions.” Id. at 9.
However, we agree with Appellant that “Ringdahl has no relevant
“length of time” to modify . . . and has no reason to record such a length of
time, because Ringdahl’s vending car wash control system functions as a
“vending machine.” Appeal Br. 13; see Ringdahl ¶¶ 2 (“[o]ne widespread
example of an automatic vending system is a car wash”), 3 (“[t]he car wash
includes means to accept payment from a user of the car wash, in exchange
for a certain amount of time that the car wash functions are dispensed, in one
example”), 15, 33 (“payment may be made . . . prior to beginning the timer
for car wash services to be dispensed [or the car wash] may also accept
additional payments while the services are in progress and the timer is
running down, to add additional service time”).
While the Examiner points to the option to purchase of an additional
service when the initial service period is over, as Appellant notes, the
additional service is available after the first car wash period. Therefore the
teachings of Dube and Ferrara with respect to estimating a projected length
of a queue and providing a reward or discount based on that projected length
do not appear to be applicable to such additional purchases. The additional
services all appear in the cited embodiment of Ringdahl to be related to
products or services for a car that already is in a car wash bay (200 in
Ringdahl) and the Examiner does not determine how the additional service
would be one which would require a user to wait in a queue.
Additionally, if a calculation of a price for the at least one additional
service was made based on the length of a queue, it is not clear why, in the
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combination of Ringdahl, Dube, and Ferrara, it would be based on a
projected length of the queue for the at least one additional service at the
time the customer purchases a car wash, as per the claim limitation, rather
than a projected or actual length of the queue for additional service(s) at the
time the customer potentially purchases the additional service(s).
Accordingly, the Examiner has not established that the combination of
Ringdahl, Dube, and Ferrara would have taught or suggested, at the time of
the invention, “calculating a price for the at least one additional service
based on the projected length of the queue and making the at least one
additional service available for purchase at the price on the first computer
terminal” where the projected length of the queue is determined “for the at
least one additional service at the time a customer purchases a car wash.”
We, therefore, reverse the Examiner’s rejection of claim 1 under Section
103. We also reverse the Section 103 rejection of independent claim 18,
which includes similar limitations, and of dependent claims 2–11, 17, 19–26,
and 29, rejected on the same basis.
With respect to the remaining rejections of dependent claims 12–16,
27, and 28, the Examiner does not rely on Elliot to cure the deficiency of the
obviousness rejection explained above with respect to claim 1. Accordingly,
we likewise reverse the Section 103 rejections of these dependent claims.
CONCLUSION
We affirm the Examiner’s rejections of claims 1–29 under 35 U.S.C.
§ 101 as directed to non-statutory subject matter, and reverse the Examiner’s
rejections of claims 1–29 as unpatentable under 35 U.S.C. § 103.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–29 101 Eligibility 1–29
1–11, 17–
26, 29
103 Ringdahl, Dube,
Ferrara
1–11, 17–
26, 29
12–16, 27,
28
103 Ringdahl, Dube,
Ferrara, Elliot
12–16, 27,
28
Overall
Outcome:
1–29

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED