Mario Vela et al.

Patent Trials and Appeals Board

Aug 19, 2019

13656856 - (D) (P.T.A.B. Aug. 19, 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.
13/656,856 10/22/2012 Mario Vela 275937 7391
23460 7590 08/19/2019
LEYDIG VOIT & MAYER, LTD
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601-6731
EXAMINER
ROBINSON, TERRELL M
ART UNIT PAPER NUMBER
2618
NOTIFICATION DATE DELIVERY MODE
08/19/2019 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):
Chgpatent@leydig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte MARIO VELA, MICHAEL SHANNON IRIZARRY,
and NAROTHUM SAXENA
________________

Appeal 2017-009796
Application 13/656,856
Technology Center 2600
________________

Before JEREMY J. CURCURI, JUSTIN BUSCH, and
PHILLIP A. BENNETT, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge
JEREMY J. CURCURI.

Opinion Dissenting filed by Administrative Patent Judge JUSTIN BUSCH.

CURCURI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–20. Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b). We heard the appeal on May 14, 2019.
Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more. Final Act. 9–12.
We reverse.

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STATEMENT OF THE CASE
Appellants’ invention relates to “maintaining infrastructure
components supporting data communications in mobile wireless networks.”
Spec. ¶ 1. Claim 1 is illustrative and reproduced below:
1. A method for rendering, by a computerized mobile
wireless data network performance parameter forecasting
system, a forecast for a mobile wireless network performance
parameter, the method comprising the steps of:
acquiring, via a communications network infrastructure
for the mobile wireless network, a raw data point set containing
a series of data point values for the mobile wireless network
parameter;
correcting, by the computerized mobile wireless data
network performance parameter forecasting system, the raw
data point set, the correcting comprising a set of sub-steps,
executed by the computerized forecasting system, of:
performing a first linear regression on the raw data
point set to render an initial best fit line,
calculating a current series of data point residuals
based upon:
a current best fit line, the current best fit line
being in a first instance the initial best fit line, and
a current series of data point values, the
current series of data point values being in a first instance the
raw data point set,
decomposing the current series of data point
residuals into a current set of seasonal data point residual
subsets,
performing a boxplot analysis on the current set of
seasonal data point residual subsets to identify individual
anomalous point residuals to render a current set of anomalous
data point residuals,
correcting the current set of anomalous data point
residuals to render a corrected data point residual set, and
applying the corrected data point residual set to the
current best fit line to render a current corrected data point set;
and
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applying the current corrected data point set to a forecast
model to render a forecast for the mobile wireless network
performance parameter.

PRINCIPLES OF LAW
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).

ANALYSIS
We are persuaded by Appellants’ arguments that the Examiner has not
established a prima facie case for patent ineligibility under 35 U.S.C. § 101.
The Examiner determined that:
Claims 1–20 are directed to the abstract idea of correcting a
data point set using mathematical techniques (Step 2A). The
claims do not include additional elements that are sufficient to
amount to significantly more than the judicial exception
because they amount to mere instructions to implement the idea
on a computer (claims 11–20), and (ii) recitation of generic
computer structure that serves to perform generic computer
functions that are well-understood, routine, and conventional
activities previously known to the pertinent industry (claims
11–20, e.g., a set of instructions that can be executed to cause a
machine to perform a set of operations) (Step 2B). It is noted
that dependent claims 2–10 and 12–20 do not claim any
additional elements beyond the abstract idea, indicating the
claimed method is read on by a person performing the same
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steps of a mathematical algorithm, and therefore contain
nothing more, significant or otherwise.
Final Act. 9–10
The Examiner further determined that:
With respect to claim 1, the method steps for creating
the corrected forecast model involving the correction of the raw
data point set merely amount to routine mathematical
operations pertinent to one of ordinary skill, in addition to
reciting the steps of applying this corrected data point set in
which the method leads to no direct result or use of the
corrected data set other than application to the forecast model.
Although the claims disclose the rendering of a forecast this
concept fails to result in some sort of visual output such as
display to some type of interface or display for the user as
rendering could essentially take place in memory or in a file
and does not explicitly indicate displaying a final result based
on some enhancement or modification provided in performing
of the mathematical based process. In addition, the claim also
lacks a further step or resulting process which makes use or
applies the “mobile wireless network performance parameter”
in some useful way. Claim 11 is similarly deficient.
Final Act. 10; see also Ans. 5–22.
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 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 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,
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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 (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
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attempting to limit the use of the formula to a particular technological
environment.” Id. at 191 (citing Benson and Flook); see also, 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 (citation 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. (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 recently published revised guidance on the application of
§ 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019). Under that 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) (9th ed.
2019).
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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 84 Fed. Reg. at 56.

Are the claims patent-eligible?
Step One
Claim 1 is a method claim having several steps, which falls within the
“process” category of 35 U.S.C. § 101. Claim 11 is a computer readable
medium claim, which falls within the “manufacture” category of 35 U.S.C.
§ 101. Although claims 1 and 11 fall within the statutory categories, we
must still determine whether the claim is directed to a judicial exception,
namely an abstract idea. See Alice, 573 U.S. at 217–18. Thus, we must
determine whether the claims recite a judicial exception, and fail to integrate
the exception into a practical application. See 84 Fed. Reg. at 54–55. If
both elements are satisfied, the claim is directed to a judicial exception under
the first step of the Alice/Mayo test. See id.

Step 2A—Prong One
Independent claim 1 is a method claim, which recites, in part, the
following: “[i] acquiring, via a communications network infrastructure for
the mobile wireless network, a raw data point set containing a series of data
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point values for the mobile wireless network parameter.” This step covers
receiving data, and is thus an “observation,” which is an example of
“concepts performed in the human mind.” Memorandum 84 Fed. Reg. at 52.
This recitation is thus the abstract concept of “[m]ental processes.” Id.
Independent claim 1 further recites: “[ii] correcting... the raw data
point set, the correcting comprising a set of sub-steps, executed by the
computerized forecasting system, of”: “[iii] performing a first linear
regression on the raw data point set to render an initial best fit line,” “[iv]
calculating a current series of data point residuals based upon”: “[v] a
current best fit line, the current best fit line being in a first instance the initial
best fit line,” and “[vi] a current series of data point values, the current series
of data point values being in a first instance the raw data point set,” “[vii]
decomposing the current series of data point residuals into a current set of
seasonal data point residual subsets,” and “[viii] performing a boxplot
analysis on the current set of seasonal data point residual subsets to identify
individual anomalous point residuals to render a current set of anomalous
data point residuals.” These steps cover linear regression together with
subsequent additional mathematical calculations, and are thus a combination
of “mathematical relationships, mathematical formulas or equations,
mathematical calculations.” Memorandum 84 Fed. Reg. 52. These
recitations are thus the abstract concept of “[m]athematical concepts.” Id.
Independent claim 11 recites limitations similar to those discussed
with respect to claim 1. Thus, claim 11 also recites an abstract idea.

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Step 2A—Prong Two
Because claims 1 and 11 recite a judicial exception, we next
determine if the claims recite additional elements that integrate the judicial
exception into a practical application.
In the “Background of the Invention” section, Appellants’
Specification discloses “[t]he increased volume of data communications
presents a challenge for service providers who must ensure reliable mobile
wireless service for most, if not all, users.” Spec. ¶ 2. Appellants’
Specification further discloses “[w]hen parts of the mobile wireless network
infrastructure are unable to adequately support subscriber needs at particular
locations in the network, such parts (e.g., cell sites or portions thereof) must
be identified. Thereafter, the cause(s) of the identified performance failure
need to be identified, and solutions are proposed.” Spec. ¶ 3.
In the “Background of the Invention” section, Appellants’
Specification discloses the following needs: “identifying the cause of poor
data transmission service and the remedy for the poor service is not a trivial
endeavor. Several challenges to identifying anomalous data points are
discussed below.” Spec. ¶ 5. Appellants’ Specification discloses “[a] first
challenge, to conducting a meaningful analysis and proposing a beneficial
long term response to identified problems/needs in a mobile wireless data
network, is the massive volume of raw network performance (e.g., KPI) data
acquired by various components of the mobile wireless network.” Spec. ¶ 6.
Appellants’ Specification discloses “[a]nother challenge involves
determining the relevance of individual data points acquired during a period
of interest.” Spec. ¶ 7. Appellants’ Specification discloses “[y]et another
challenge involves identification of performance data trends.” Spec. ¶ 8.
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Appellants’ Specification discloses the following solution:
facilitating and performing operations for computer-automated
identification and remediation of anomalous data points for
acquired performance parameter (e.g., KPI) values for a mobile
wireless data network, the remediated data point sets being used
as input to a forecasting model rendering a forecast for a
performance indicator/parameter relating to the mobile wireless
data network.
Spec. ¶ 9; see also Spec. ¶10 (“The method further includes correcting the
raw data point set.”).
With respect to correcting the raw data point set, claim 1 recites the
following: “[ix] correcting the current set of anomalous data point residuals
to render a corrected data point residual set,” “[x] applying the corrected
data point residual set to the current best fit line to render a current corrected
data point set,” and “[xi] applying the current corrected data point set to a
forecast model to render a forecast for the mobile wireless network
performance parameter.”
We conclude these limitations integrate the recited judicial exception
of a mathematical concept into a practical application. Under the guidance,
a judicial exception may be integrated into a practical application where it
provides “an improvement to . . . any other technology or technical field.”
MPEP § 2106.05(a). Here, these additional limitations provide an
improvement to the technical field of operating mobile networks by allowing
network operators to better forecast potential network problems using
corrected data sets. As explained in the Specification, the “ability to
accurately forecast, with a satisfactory level of precision, data throughput
demand at various physical points within a mobile wireless network at
particular points in time ensures that proper resources are committed by a
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mobile network service provider to meet user needs.” Spec. ¶ 4. By
correcting anomalous data and applying that corrected data to an improved
forecast model, a network operator is better able to optimize resource
utilization within the network.
Put another way, correcting the data and applying the corrected data
to the forecast model is not abstract in the same way as the other claim
recitations. Moreover, these additional limitations also provide a
“technological solution to a technological problem,” MPEP § 2106.05(a)
because they recite a specific solution to the technical problem of anomalous
data points and their deleterious effect on the forecast model and resultant
network resource utilization.
Independent claim 11 recites limitations similar to those discussed
with respect to claim 1. Thus, claim 11 is also not directed to an abstract
idea.
Thus, independent claims 1 and 11 recite additional elements that
integrate the judicial exception into a practical application.
Accordingly, we are persuaded by Appellants’ arguments that:
Contrary to the allegations of the final Office action (at page 4),
the claimed invention does not merely render a
calculated/transformed number (per Parker v. Flook and
Gottschalk v. Benson). Rather, Appellants’ claimed invention
is directed to an improved way of rendering a forecast for a
mobile wireless network performance parameter by carrying
out a database data point value set “cleansing” operation (the
bulk of the recited combination of operations recited in claim 1)
that changes/replaces values assigned to individual data points
(i.e. rendering a “current corrected set of data points”) prior to
performing the “applying” operation for rendering “a forecast
for the mobile wireless network parameter.[”]
App. Br. 9.
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Thus, we do not sustain the rejection of independent claims 1 and 11
under 35 U.S.C. § 101. Claims 2–10 and 12–20 depend from claims 1 and
11, respectively. We, therefore, also do not sustain the rejection of claims 2–
10 and 11–20 under 35 U.S.C. § 101 for the same reasons discussed with
respect to independent claims 1 and 11.

ORDER
The Examiner’s decision rejecting claims 1–20 is reversed.

REVERSED

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte MARIO VELA, MICHAEL SHANNON IRIZARRY,
and NAROTHUM SAXENA
________________

Appeal 2017-009796
Application 13/656,856
Technology Center 2600
________________

Before JEREMY J. CURCURI, JUSTIN BUSCH, and
PHILLIP A. BENNETT, Administrative Patent Judges.

BUSCH, Administrative Patent Judge, dissenting.

I respectfully dissent from the Majority’s decision reversing the
Examiner’s rejection of claims 1–20 under 35 U.S.C. § 101 as being directed
to ineligible subject matter without significantly more.
According to the Field of the Invention section, the disclosed
invention relates “to maintaining infrastructure components supporting data
communications in mobile wireless networks.” Spec. ¶ 1. The Summary of
the Invention section, however, explains that certain embodiments are used
to facilitate and perform “operations for computer-automated identification
and remediation of anomalous data points for acquired performance
parameter (e.g., KPI) values for a mobile wireless data network, the
remediated data point sets being used as input to a forecasting model
rendering a forecast for a performance indicator/parameter relating to the”
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network. Spec. ¶ 9 (emphasis added). More specifically, the claimed
embodiments relate to methods and systems for rendering “a forecast for a
mobile wireless network performance parameter,” including obtaining a raw
data point set and correcting the raw data point set. Spec. ¶ 10; Appeal
Br. 21–25; see also Spec. ¶¶ 11 (describing the various sub-steps involved in
correcting the raw data point set), 38 (explaining that boxplot and linear
regression are “statistical methods”). The systems and methods then apply
the corrected data point set to a forecast model to render a forecast for the
performance parameter. Spec. ¶ 12; see also Spec. ¶ 51 (“It is noted that the
forecasting system described herein can utilize any of a variety of known
commercial forecasting engines to process the corrected data points.”).
The Examiner rejects the claims as being “directed to the abstract idea
of correcting a data point set using mathematical techniques,” without
reciting additional elements sufficient to add significantly more to the
abstract idea because the additional elements amount to instructions to apply
the abstract idea on a computer. Final Act. 9. The Examiner determines the
recited sub-steps for correcting the data set are routine mathematical
operations and, notwithstanding the rendering of a forecast based on the
corrected data, the claims do not recite using the forecast data in a useful
way. Final Act. 10. The Examiner determines the dependent claims merely
recite additional refinements to the abstract idea, which neither change the
character of the independent claims nor add additional elements beyond the
abstract idea. Final Act. 9–12.
Appellants collectively argue the patent eligibility of independent
claims 1 and 11. See, e.g., Appeal Br. 18 (“Independent claim 11 recites the
above-discussed elements of claim 1. Therefore, Appellants request
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withdrawal of the previous rejection of independent claim 11 for at least the
reasons set forth herein above regarding the rejection of independent claim
1.”). Accordingly, I select independent claim 1 as representative of the
claims on appeal. See 37 C.F.R. § 41.37 (c)(iv) (2016). Claim 1 is
reproduced in the Majority’s decision and again below, where I highlight the
elements that recite an abstract idea.
Appellants dispute the Examiner’s conclusion that the claims are
directed to an abstract idea. App. Br. 7–19. In particular, Appellants argue
the claims are eligible because the claim elements, taken as a whole, recite
significantly more than the identified abstract idea of “correcting a data point
set using mathematical techniques” because the claims recite a particular
combination of elements that improves a particularly technology by
overcoming a technological problem in a particular way. Appeal Br. 7, 11.
Appellants argue the detailed set of steps for correcting the raw data recites a
particular way of overcoming the technological problem rather than simply
claiming the desired result of correcting the data. Appeal Br. 7, 11–13.
Appellants argue data network technicians faced the technological
problem of “identifying (either manually OR by computer) and correcting
anomalous/irregular data point values” before rendering a forecast for a
network parameter. Appeal Br. 7–8; see also Appeal Br. 9–10 (“Appellants’
claims recite a particular method that improves upon previous known
technology by solving a technological problem relating to identifying
anomalous data points in a mobile wireless network performance parameter
database”), 11–13. Appellants assert the claims do not simply calculate and
render a number, but instead perform “a database data point value set
‘cleansing’ operation . . . that changes/replaces values assigned to individual
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data points . . . prior to performing the ‘applying’ operation for rendering ‘a
forecast model for the mobile wireless network performance parameter.[’]”
Appeal Br. 9. Appellants argue the claims recite that each of the
mathematical techniques is performed in the context of correcting the raw
data and rendering a forecast based on the corrected data. Appeal Br. 13.
Appellants argue, contrary to the Examiner’s determination that the
claims fail to recite using the network parameter or corrected data in a useful
way, the claims recite outputting a corrected data point set and a forecast for
a network parameter. Appeal Br. 13. Appellants argue the “improved
forecast is valuable to mobile wireless network maintenance and upgrade
planning operations.” Appeal Br. 13.
Appellants do not dispute that their claims are directed to an abstract
idea, contending only that the claims add significantly more to the abstract
idea. However, because our framework for analyzing eligibility under
35 U.S.C. § 101 has changed since Appellants filed their Briefs, I address
each step under our new guidance, as explained herein. As the Majority
notes, the Supreme Court’s two-step framework guides patent eligibility
analysis under 35 U.S.C. § 101. Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 217 (2014). As also set forth by the Majority, the Office recently
published revised guidance for evaluating subject matter eligibility under
35 U.S.C. § 101, specifically with respect to applying the Alice framework.
USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”).
If a claim falls within one of the statutory categories of patent
eligibility (i.e., a process, machine, manufacture, or composition of matter),
we determine whether the claim is directed to one of the judicially
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recognized exceptions (i.e., a law of nature, a natural phenomenon, or an
abstract idea). Alice, 573 U.S. at 217. As part of our inquiry, we “look at
the ‘focus of the claimed advance over the prior art’ to determine if the
claim’s ‘character as a whole’ is directed to excluded subject matter.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed.
Cir. 2016). The Guidance directs us to address this inquiry using two prongs
of analysis: (i) does the claim recite a judicial exception (e.g., an abstract
idea), and (ii) if so, is the judicial exception integrated into a practical
application. 84 Fed. Reg. at 54.
Under the Guidance, if the judicial exception is integrated into a
practical application, the claim is patent eligible under § 101. 84 Fed. Reg.
at 54–55. If the claim is directed to a judicial exception (i.e., the claim both
recites a judicial exception and fails to integrate the exception into a
practical application), we next determine whether the claim provides an
inventive concept, which includes determining whether any element, or
combination of elements, amounts to significantly more than the judicial
exception. Alice, 573 U.S. at 217; 84 Fed. Reg. at 56.
Here, I conclude that the claims recite an abstract idea of a
mathematical concept. Notably, Appellants’ claims are not directed to
maintaining infrastructure components. Rather, Appellants’ claims are
directed to correcting a data set and using the corrected data in a forecast
model.
Although the preamble is not dispositive with respect to
characterizing the subject matter to which claims are directed, the preamble,
which recites “[a] method for rendering . . . a forecast,” supports this
characterization. Appeal Br. 21. This also is consistent with how
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Appellants described the claimed embodiments of the invention. See Spec.
¶¶ 9–12. To correct the data and use the corrected data in a forecast model,
the claims recite acquiring raw data, performing a series of statistical
analyses on the raw data to generate corrected data, and applying the
corrected data to a forecast model. Consistent with the Guidance and case
law, I conclude the statistical analyses recited as sub-steps of the “correcting
. . . the raw data point set” step are mathematical concepts (e.g.,
mathematical relationships or mathematical calculations)—i.e., an abstract
idea. See 84 Fed. Reg. at 52; Digitech Image Techs., LLC v. Elec. for
Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014) (concluding a method
that describes “a process of organizing information through mathematical
correlations and is not tied to a specific structure or machine” is abstract);
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018)
(concluding claims for providing statistical analysis of investment data were
directed to the abstract idea of “selecting certain information, analyzing it
using mathematical techniques, and reporting or displaying the results of the
analysis”); see also In re Grams, 888 F.2d 835, 837 n.1 (Fed. Cir. 1989) (“It
is of no moment that the algorithm is not expressed in terms of a
mathematical formula. Words used in a claim operating on data to solve a
problem can serve the same purpose as a formula.”)
Moreover, our reviewing court has noted that, in certain instances,
there may be an overlap between an abstract idea within the mathematical
concepts category and an abstract idea within the mental processes category.
See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed.
Cir. 2016) (concluding that “analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, as
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essentially mental processes within the abstract-idea category”). Thus, I
further conclude correcting a data set and using the corrected data in a
forecast model also is a mental process (i.e., a concept performed in the
human mind, such as, an observation, evaluation, judgment, and opinion)—
i.e., an abstract idea. See 84 Fed. Reg. at 52; see also Content Extraction &
Transmission v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir.
2014) (concluding the claimed method of processing information from
various sources was directed to the abstract idea of “1) collecting data,
2) recognizing certain data within the collected data set, and 3) storing that
recognized data in a memory”).
If a claim, under its broadest reasonable interpretation, can be
performed practically in the mind, but for the recitation of generic computer
components, then it is still in the mental processes category. See Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016)
(“[W]ith the exception of generic computer-implemented steps, there is
nothing in the claims themselves that foreclose them from being performed
by a human, mentally or with pen and paper.”); see also CyberSource Corp.
v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 1372 (Fed. Cir. 2011)
(holding that the incidental use of “computer” or “computer readable
medium” does not make a claim otherwise directed to process that “can be
performed in the human mind, or by a human using a pen and paper” patent
eligible); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
71 (2012) (explaining mental processes are not patentable); 84 Fed. Reg. at
52–53 nn.14–15. Notably, we analyze the claimed subject matter to
determine whether the recited steps could be performed practically in the
mind. Here, Appellants’ claims recite various mathematical relationships
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and statistical formulas that, as claimed, could be performed mentally. As
explained in OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359,
1363 (Fed. Cir. 2015), “relying on a computer to perform routine tasks more
quickly or more accurately is insufficient to render a claim patent eligible.”
Claim 1 is reproduced below and includes the following claim
limitations that recite correcting a data set and using the corrected data in a
forecast model, emphasized in italics.
1. A method for rendering, by a computerized mobile
wireless data network performance parameter forecasting
system, a forecast for a mobile wireless network performance
parameter, the method comprising the steps of:
acquiring, via a communications network infrastructure
for the mobile wireless network, a raw data point set
containing a series of data point values for the mobile wireless
network parameter;
correcting, by the computerized mobile wireless data
network performance parameter forecasting system, the raw
data point set, the correcting comprising a set of sub-steps,
executed by the computerized forecasting system, of:
performing a first linear regression on the raw data point
set to render an initial best fit line,
calculating a current series of data point residuals based
upon:
a current best fit line, the current best fit line being
in a first instance the initial best fit line, and
a current series of data point values, the current
series of data point values being in a first instance the
raw data point set,
decomposing the current series of data point residuals
into a current set of seasonal data point residual subsets,
performing a boxplot analysis on the current set of
seasonal data point residual subsets to identify individual
anomalous point residuals to render a current set of anomalous
data point residuals,
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correcting the current set of anomalous data point
residuals to render a corrected data point residual set,
applying the corrected data point residual set to the
current best fit line to render a current corrected data point set;
and
applying the current corrected data point set to a
forecast model to render a forecast for the mobile wireless
network performance parameter.
More particularly, correcting a data set and using the corrected data in
a forecast model comprises (i) acquiring the data (e.g., a raw data point set
of values for a network parameter); (ii) correcting the raw data (i.e., the
claimed sub-steps of performing linear regressions, calculating data
residuals, decomposing the residuals, performing a boxplot analysis,
correcting the anomalous residual to render a corrected residual set, and
applying the corrected residuals to a current best fit line to render the
corrected data set); and (iii) applying the corrected data to a forecast model.
See Spec. ¶¶ 70–78 (describing calculating data point residuals using a best
fit line and linear regression, decomposing the residuals, performing boxplot
analyses, correcting the residuals, and applying the corrected residuals to a
current best fit line as mathematical relationships and statistical analysis).
Because the claim recites a judicial exception, I next analyze whether
the claim integrates the judicial exception into a practical application.
84 Fed. Reg. at 54. To determine whether the judicial exception is
integrated into a practical application, we identify whether there are “any
additional elements recited in the claim beyond the judicial exception(s)”
and evaluate those additional elements to determine whether they integrate
the judicial exception into a recognized practical application. 84 Fed. Reg.
at 54–55 (emphasis added); see also Manual of Patent Examining Procedure
(“MPEP”) § 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018).
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Here, I would find the additional limitations do not integrate the
judicial exception into a practical application. Similarly, the additional
limitations recited in the dependent claims fail to integrate the judicial
exception into a practical application. More particularly, the claims do not
recite: (i) an improvement to the functionality of a computer or other
technology or technical field (see MPEP § 2106.05(a)); (ii) use a “particular
machine” to apply or use the judicial exception (see MPEP § 2106.05(b));
(iii) a particular transformation of an article to a different thing or state (see
MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP
§ 2106.05(e)). See also 84 Fed. Reg. at 55.
Both the “computerized mobile wireless data network performance
parameter forecasting system” and the “communications network
infrastructure” are generic computer elements recited at a high level of
generality. The Specification’s Background of the Invention section
identifies challenges to correcting data sets, including the “massive volume
of raw” data and “determining the relevance of individual data points
acquired during a period of interest.” Spec. ¶¶ 6–7. However, “the fact that
the required calculations could be performed more efficiently via a computer
does not materially alter the patent eligibility of the claimed subject matter.”
Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can. (U.S.), 687 F.3d 1266,
1278 (Fed. Cir. 2012); see also OIP Techs., 788 F. 3d at 1363 (explaining
that “relying on a computer to perform routine tasks more quickly or more
accurately is insufficient to render a claim patent eligible” (citing Alice, 573
U.S. at 224 (“use of a computer to create electronic records, track multiple
transactions, and issue simultaneous instructions” is not an inventive
concept)). Similarly, although claims 9 and 19 narrow the component whose
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throughput is being measured from an extremely broad “mobile wireless
data network component” to “a packet data serving node,” the component is
still a generic computer component recited at a high level. Moreover, the
claim recites the component merely as an element about which data is being
gathered and does not recite using that component in any way that would
integrate the abstract idea into a practical application. Accordingly, these
limitations simply recite the use of generic computer components as tools to
implement the abstract idea. 84 See Fed. Reg. at 55; MPEP § 2106.05(f).
To the extent the acquiring data step and applying the corrected data
to a forecast model may not be considered mathematical relationships, these
steps amount to the type of extra-solution activities (i.e., in addition to the
judicial exception) the courts have determined insufficient to transform
judicially excepted subject matter into a patent-eligible application. See
MPEP § 2106.05(g); see also Parker v. Flook, 437 U.S. 584, 590 (1978)
(explaining “[t]he 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”); Elec. Power, 830
F.3d at 1354 (recognizing “that merely presenting the results of abstract
processes of collecting and analyzing information, without more (such as
identifying a particular tool for presentation), is abstract as an ancillary part
of such collection and analysis”). Similarly, the additional limitations
recited in dependent claims 8, 10, 18, and 20 merely identify the type of
network performance parameter being measured, which is either part of the
abstract idea or part of the pre-solution data gather activity.
To the extent Appellants’ arguments that the claims recite
significantly more than the abstract idea should be understood to assert the
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identified elements integrate the abstract idea into a practical application, see
Appeal Br. 7–13, I disagree. More specifically, in my view, Appellants do
not claim an improvement to the functionality of a computer, other
technology, or other technical field (see MPEP § 2106.05(a)).
Initially, I note the statistical analysis steps to which Appellants point
are part of the abstract idea itself. As noted above, each of the statistical
analysis steps are mathematical relationships and/or mental process steps
that make up the abstract idea. Thus, there are no other additional elements
recited in the independent claims to integrate the abstract idea into a
practical application. See 84 Fed. Reg. at 54–55. Furthermore, dependent
claims 2 through 7 and 12 through 17 simply recite additional mathematical
techniques or statistical analysis steps that narrow the abstract idea, but still
are part of the abstract idea of correcting data using mathematical
relationships and applying the corrected data to a forecast model.
Moreover, to the extent Appellants argue the claims provide a solution
to the problem of maintaining and modifying network infrastructure
components or configurations, I disagree. Although it may be possible to
use the forecast to make infrastructure changes, the claims are not directed to
making such changes. Rather, the claims are directed to data analysis.
Appellants’ claimed invention allegedly solves the problem of identifying
and correcting errors in raw data points so that data provided to any
forecasting model is more accurate. Appeal Br. 21–25; see Appeal Br. 7–10.
The most relevant portion of the Guidance instructs us that “improvements
in the functioning of a computer, or an improvement to other technology or
technical field” may be enough to integrate the abstract idea into a practical
application. See 84 Fed. Reg. at 55. In my view, correcting data through
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mathematical relationships is not the type of technological solution, nor does
it address the type of technical problem, the Guidance suggests are sufficient
to integrate an abstract idea into a practical application. Even accepting that
the “improved forecast is valuable,” Appeal Br. 13, this is not enough to
integrate the abstract idea into a practical application. Cf. Univ. of Fla.
Research Found., Inc. v. General Elec. Co., 916 F.3d 1363, 1367 (Fed. Cir.
2019) (noting that although the claimed invention may “‘result in life
altering consequences’ . . . is laudable, [] it does not render [the claims] any
less abstract”).
For at least the foregoing reasons, the claims do not integrate the
judicial exception into a practical application.
Because I would determine the claims are directed to an abstract idea
or combination of abstract ideas, I analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to “significantly more” than
the abstract idea. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 72–
73, 77–79 (2012)). As stated in the Guidance, many of the considerations to
determine whether the claims amount to “significantly more” under step two
of the Alice framework are already considered as part of determining
whether the judicial exception has been integrated into a practical
application. 84 Fed. Reg. at 56. Thus, at this point of the analysis, I
determine if the claims add 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 at
a high level of generality. 84 Fed. Reg. at 56.
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As with the integration into a practical application analysis discussed
above, an inventive concept “cannot be furnished by the unpatentable law of
nature (or natural phenomenon or abstract idea) itself.” Genetic Techs. Ltd.
v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016); see also 84 Fed.
Reg. at 56; Alice, 573 U.S. at 217 (explaining that, after determining a claim
is directed to a judicial exception, “we then ask, ‘[w]hat else is there in the
claims before us?’” (emphasis added, brackets in original)
(quoting Mayo, 566 U.S. at 78)). Instead, an “inventive concept” is
furnished by an element or combination of elements that is recited in the
claim in addition to the judicial exception and sufficient to ensure the claim
as a whole amounts to significantly more than the judicial exception
itself. Alice, 573 U.S. at 218–19 (citing Mayo, 566 U.S. at 72–73); see BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018)
(explaining that the Supreme Court in Alice “only assessed whether the
claim limitations other than the invention’s use of the ineligible concept to
which it was directed were well-understood, routine and conventional,”
(emphasis added)).
Appellants’ claims fail to recite specific additional limitations (or a
combination of limitations) that are not well-understood, routine, and
conventional. The statistical analysis steps are part of the recited abstract
idea. The only additional elements (i.e., the “computerized mobile wireless
data network performance parameter forecasting system,” the
“communications network infrastructure,” the acquiring data step, and the
applying the corrected data to a forecast model) are generic computer
components recited at a high level of generality or basic computer functions,
none of which recite limitations beyond what was well-understood, routine,
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and conventional in the art. See Berkheimer Memo1 § III.A.1; Spec. ¶¶ 39
(describing exemplary conventional communications network
infrastructures) 51 (describing the forecasting system functionally and as
being implemented on generic components and noting “that the forecasting
system described herein can utilize any of a variety of known commercial
forecasting engines to process the corrected data points”); see also Mortgage
Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324–25 (Fed.
Cir. 2016) (generic computer components such as an “interface,” “network,”
and “database” fail to satisfy the inventive concept requirement).
For the reasons discussed above, I am not persuaded the Examiner
erred, and I would sustain the Examiner’s rejection of claims 1–20 under
35 U.S.C. § 101.
Accordingly, I respectfully dissent.

1 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.)” at 3 (Apr. 19, 2018), available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF (explaining that a specification that describes additional
elements “in a manner that indicates that the additional elements are
sufficiently well-known that the specification does not need to describe the
particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can
show that the elements are well understood, routine, and conventional).