Shahriar Khosravani et al.

Patent Trials and Appeals Board

Mar 30, 2020

14809336 - (D) (P.T.A.B. Mar. 30, 2020)

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.
14/809,336 07/27/2015 Shahriar KHOSRAVANI 15-0368-US-NP 3778
116502 7590 03/30/2020
Perman & Green, LLP
99 Hawley Lane
Stratford, CT 06614
EXAMINER
GAN, CHUEN-MEEI
ART UNIT PAPER NUMBER
2129
MAIL DATE DELIVERY MODE
03/30/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SHAHRIAR KHOSRAVANI, OMID B. NAKHJAVANI,
VINCENT BELL, LAINE TENNYSON, and FARHAD DABIRI

Appeal 2019-000645
Application 14/809,336
Technology Center 2100
____________

Before DEBRA K. STEPHENS, JEFFREY S. SMITH, and
KARA L. SZPONDOWSKI, Administrative Patent Judges.

SZPONDOWSKI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
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 The Boeing
Company. Appeal Br. 1.
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STATEMENT OF THE CASE

Appellant’s invention generally relates to designing a joint of an
aircraft in order to optimize the design process with respect to both structural
design requirements and electromagnetic effect requirements. Spec. ¶ 1.
Claim 1, reproduced below, is representative of the claimed subject matter:
1. A method comprising:

receiving a joint parameter for a joint between at least
two composite structural components, a ply stackup for each of
the at least two composite structural components and an
electromagnetic effect parameter in a controller;

iteratively processing with the controller, the joint
parameter and the ply stackup and outputting an optimized joint
structural configuration based on at least a convergence of an
electromagnetic effect resistance of the joint and the at least two
composite structural components, where the optimized joint
structural configuration includes a fastener pattern of the joint
and a ply stackup configuration of the at least two composite
structural components at the joint, the ply stackup configuration
including an optimized stackup thickness based on at least the
fastener pattern; and

changing, with the controller, a value of one or more of
the joint parameters and the ply stackup during the iterative
processing to reach the convergence of the electromagnetic
effect resistance so as to effect generation and output of design
criteria for physical construction of a physical composite
structure so that a physical structural configuration of the joint
between the at least two composite structural components
forming the physical composite structure is based on the
optimized joint structural configuration.

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REJECTIONS

Claims 1–20 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter.

ANALYSIS

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-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See 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
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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 waterproof 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
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. (citation omitted)
(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 (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,
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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.
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).2 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).3
2019 Revised Guidance, 84 Fed. Reg. at 52–55.

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at https://www.uspto.gov/sites/default/files/
documents/peg_oct_2019_update.pdf).
3 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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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, under
Step 2B, 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 Revised Guidance, 84 Fed. Reg. at 52–56.

2019 Revised Guidance, Step 2A, Prong One
The Examiner determines the claims are directed to “simulating
composite structural component[s] by collecting information about the
design parameters and electromagnetic effective resistance, optimizing the
design with respect to a lightning strike of the aircraft by analyzing the
information using mathematic[al] algorithms and display[ing the] result,”
similar to the abstract idea in Elec. Power Grp. v. Alstom S.A., 830 F.3d
1350 (Fed. Cir. 2016). Non-Final Act. 3–4; Ans. 5–10.
Appellant argues the Examiner is oversimplifying the claimed subject
matter. Appeal Br. 8. Appellant argues
the Examiner has ignored the clear benefits of the invention . . .
In particular, the claimed invention recites concrete and
physical steps to facilitate integrated analysis between the
disciplines of electromagnetic effect and structural design to
optimize the design process with respect to both structural
design requirements and electromagnetic effect requirements.
Id. at 9 (citing Spec. ¶ 21).
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Appellant contends the claims are different than those in Electric Power
because “Appellant’s claims recite particular rules that modify the input
joint parameters to optimize the joint and produce a joint structural
configuration that is optimized both structurally and in electromagnetic
effect resistance.” Id.
Appellant’s arguments are not persuasive. Here, apart from the
“controller,” we determine the limitations of claim 1 recite the abstract ideas
of “mental processes” and “mathematical concepts.” See 2019 Revised
Guidance, 84 Fed. Reg. at 52 (describing abstract idea groupings of
mathematical relationships and mental processes, including observation,
evaluation, judgment, opinion).
A claim recites a mental process when it encompasses acts people can
perform using their minds or pen and paper. See, e.g., CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1372-3 (Fed. Cir. 2011) (determining
that a claim whose “steps can be performed in the human mind, or by a
human using a pen and paper” is directed to an unpatentable mental
process). This is true even if the claim recites use of a generic computer
component to perform the process steps. See, e.g., Versata Dev. Grp., Inc. v.
SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have
examined claims that required the use of a computer and still found that the
underlying, patent-ineligible invention could be performed via pen and paper
or in a person’s mind.”); see also 2019 Revised Guidance, 84 Fed. Reg. at
52 n.14 (“If a claim, under its broadest reasonable interpretation, covers
performance in the mind but for the recitation of generic computer
components, then it is still in the mental process category unless the claim
cannot practically be performed in the mind.”).
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The Specification describes that the invention seeks to “facilitate
integrated analysis between multiple design disciplines,” for example,
“combining electromagnetic effect and structural design disciplines to
optimize the design process.” Spec. ¶ 21. The Specification describes
receiving various fixed and variable parameters and performing various
calculations on that data in order to reach convergence of the
electromagnetic effect resistance, and then outputting that design data to a
user interface. E.g., id. ¶¶ 35–37.
Claim 1 recites “receiving a joint parameter for a joint between at
least two composite structural components, a ply stackup for each of the at
least two composite structural components and an electromagnetic effect
parameter,” “iteratively processing . . . the joint parameter and the ply
stackup and outputting an optimized joint structural configuration . . . where
the optimized joint structural configuration includes a fastener pattern of the
joint . . .,” and “changing . . . a value of one or more of the joint parameters
and the ply stackup during the iterative processing to reach the convergence
of the electromagnetic effect resistance so as to effect generation and output
of design criteria for physical construction of a physical composite structure
. . .” Independent claims 9 and 17 recites similar limitations. Appeal Br.
21–24. Given their broadest reasonable interpretation, these limitations
encompass using mathematical computations to analyze information.
Because these limitations encompass using mathematical computations to
analyze information, claim 1 recites mental processes. See, e.g., Elec.
Power Grp., 830 F.3d at 1354 (“In a similar vein, we have treated analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, as essentially mental processes within the
abstract-idea category.”). Similarly, claim 1 also recites mathematical
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concepts. See, e.g., Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada
(U.S.), 687 F.3d 1266, 1280-81 (Fed. Cir. 2012) (determining that, in light of
the written description, the claims at issue involved “mere mathematical
computation” and were directed to an abstract idea); October 2019 Update 3-
4 (explaining that a claim recites a mathematical calculation—and thus a
mathematical concept—“when the broadest reasonable interpretation of the
claim in light of the specification encompasses a mathematical calculation”).
Accordingly, Appellant has not sufficiently argued why the claims do
not recite an abstract idea and we agree with the Examiner’s findings and
conclusions. See Non-Final Act. 3–4; Ans. 5–10. Therefore, we conclude
the claims recite a mental process and/or mathematical concept pursuant to
Step 2A, Prong One of the guidance. See 2019 Revised Guidance, Section
III(A)(1) (Prong One: Evaluate Whether the Claim Recites a Judicial
Exception).
2019 Revised Guidance, Step 2A, Prong Two
In determining whether the claims are “directed to” the identified
abstract idea, we next consider whether the claims recite additional elements
that integrate the judicial exception into a practical application.4 We discern
no additional element (or combination of elements) recited in the claims that
integrates the judicial exception into a practical application. See 2019
Revised Guidance, 84 Fed. Reg. at 54–55.

4 We acknowledge that some of the considerations at Step 2A, Prong Two,
properly may be evaluated under Step 2 of Alice (Step 2B of the 2019
Revised Guidance). For purposes of maintaining consistent treatment within
the Office, we evaluate them under Step 1 of Alice (Step 2A of the 2019
Revised Guidance). See 2019 Revised Guidance, 84 Fed. Reg. at 55 n.25,
27–32.
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The Examiner determines the additional limitations recite the method
being performed by the controller, which is a generic computer component
that performs generic computer functions. Non-Final Act. 5; Ans. 10–24.
Appellant argues “[t]he notion that embodiments of the invention may
run on a general purpose computer does not preclude the claim from being
patent eligible subject matter under § 101.” Appeal Br. 10. According to
Appellant “[t]he present claims are directed to very specific methods and a
computer program product that allow for the interdisciplinary optimization
of physical composite structure with iterative processing.” Id. at 11; see also
id. at 13. Appellant further argues that like the claims in McRO, Inc. v.
Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016) and
Diehr, the “claims clearly solve a problem in conventional industry practice
and improve the existing technological process of the interdisciplinary
design and physical construction of a physical composite structure.” Id. at
17. Appellant argues the claims recite “a specific way/algorithm . . . to solve
the problem of interdisciplinary composite structure joint optimization
where multiple engineering disciplines must be considered.” Id.; see Reply
Br. 3.
Appellant has not persuasively explained how or why the claims
constitute a technological improvement. The Specification supports that any
improvement is to the design process by using an iterative analysis using
mathematical computations to analyze fixed and variable parameters. E.g.,
Spec. ¶ 21 (“aspects of the present disclosure optimize the design process . .
.”); Id. ¶ 25 (“aspects of the present disclosure use these fixed parameters
and design variables in an iterative analysis” and “the iterative analysis
continues until there is a convergence . . .”); see also id. ¶¶ 29–37. This is
consistent with Appellant’s argument that the claims recite “a specific
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way/algorithm . . . to solve the problem of interdisciplinary composite
structure joint optimization where multiple engineering disciplines must be
considered.” Appeal Br. 17 (emphasis added). As discussed above, using
mathematical computations to analyze information falls in the mental
processes and mathematical concepts categories of abstract ideas. See, e.g.,
Elec. Power Grp., 830 F.3d at 1354; Bancorp, 687 F.3d at 1280–81; 2019
October Update 3–4. Even if the disclosed mathematical computations
represent an improvement over prior art computations, claims focused on
using improved mathematical computations to analyze data are still directed
to an abstract idea. See, e.g., SAP Am., Inc. v. InvestPic, LLC, 898 F.3d
1161, 1168 (Fed. Cir. 2018) (determining that claims focused on “improved
mathematical analysis” are directed to an abstract idea); In re Gitlin, 775 F.
App'x 689, 691 (Fed. Cir. 2019) (“[M]erely calling for a mathematical
concept to be performed more efficiently or with a particular input does not
amount to an application of the mathematical concept that is patent-
eligible.”).
We also disagree that the claims are like those in McRO and Diehr.
The claims in McRO were directed to the creation of something physical—
namely, the display of “lip synchronization and facial expressions” of
animated characters on screens for viewing. 837 F.3d at 1313; see also id. at
1315. The claimed improvement was to how the physical display operated
(to produce a sequence of more accurate and realistic animated characters),
unlike (what is present here) a claimed improvement in a mathematical
technique with no improved display mechanism. The claims in McRO thus
were not abstract in the sense that is dispositive here. Likewise, the claims
in Diehr involved the transformation of raw, uncured synthetic rubber into a
different state or thing, unlike the claims here. 450 U.S. at 184; see Ans. 22.
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At best, the claims describe the automation of the mental process
through the use of generic computer functions. The claimed “controller” is
described generically. E.g., Spec. ¶ 22, Fig. 1. But relying on a computer to
perform routine tasks more quickly or more accurately is insufficient to
render a claim patent eligible. See 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); Bancorp, 687 F.3d
at 1278 (a computer “employed only for its most basic function ... does not
impose meaningful limits on the scope of those claims”); cf. DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258–59 (Fed. Cir. 2014) (finding a
computer-implemented method patent eligible where the claims recite a
specific manipulation of a general-purpose computer such that the claims do
not rely on a “computer network operating in its normal, expected manner”).
Accordingly, Appellant does not sufficiently demonstrate that the
claims integrate the judicial exception into a practical application. See 2019
Revised Guidance, Section III(A)(2) (Prong Two: If the Claim Recites a
Judicial Exception, Evaluate Whether the Judicial Exception Is Integrated
Into a Practical Application). We, therefore, agree with the Examiner that
the claims are directed to a judicial exception. See Non-Final Act. 2–8; Ans.
4–24.
2019 Revised Guidance, Step 2B
Turning to step 2 of the Alice/Mayo framework, we look to whether
the claims (a) add a specific limitation or combination of limitations that are
not well-understood, routine, conventional activity in the field, or (b) simply
append well-understood, routine, conventional activities previously known
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to the industry, specified at a high level of generality, to the judicial
exception. 2019 Revised Guidance, 84 Fed. Reg. at 56.
Appellant argues the Examiner has failed to analyze the claims at a
whole. Appeal Br. 10.
Appellant’s arguments are not persuasive. Considered individually or
taken together as an ordered combination, the claim elements fail “to
‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (quoting Mayo, 132 S.Ct. at 1294, 1298). Beyond the
abstract idea, the claims merely recite “well-understood, routine
conventional activit[ies],” either by requiring conventional computer
activities or routine data-gathering steps. Alice, 573 U.S. at 225 (quoting
Mayo, 132 S.Ct. at 1294) (alterations in original). For example, claim 1
recites “receiving a joint parameter . . . a ply stackup . . . and an
electromagnetic effect parameter,” “iteratively processing . . . the [data]
based on [certain conditions],” and “changing . . . a value of one or more of
the joint parameters and the ply stackup during the iterative processing to
reach the convergence of the electromagnetic effect resistance so as to effect
generation and output of design criteria . . .” Claims 9 and 17 recite similar
limitations. These computer functions — collecting, analyzing, and
displaying data — are well-understood, routine, and conventional activities.
See Intellectual Ventures 1 LLC v. Erie Indemnity Co., 850 F.3d 1315, 1329
(Fed. Cir. 2017) (“the remaining limitations recite routine computer
functions, such as the sending and receiving information to execute the
database search”); Electric Power Grp., 830 F.3d at 1355 (“Nothing in the
claims, understood in light of the specification, requires anything other than
off-the-shelf, conventional computer, network, and display technology for
gathering, sending, and presenting the desired information”); buySAFE, Inc.
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v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2015) (“That a computer
receives and sends the information over a network—with no further
specification—is not even arguably inventive”); Alice, 573 U.S. at 224–26
(basic calculating, receiving, storing, sending information over networks
insufficient to add an inventive concept).
When viewed as a whole, nothing in the claims add significantly more
(i.e., an inventive concept) to the abstract idea. The claimed “controller”
amounts to no more than mere instructions to apply the abstract idea using
generic computer components, which is insufficient to provide an inventive
concept. Furthermore, we are unable discern anything in the claims, even
when the recitations are considered in combination, that represents
something more than the performance of routine, conventional functions of a
generic computer. That is, the claims at issue do not require any
nonconventional computer components, or even a “non-conventional and
non-generic arrangement of known, conventional pieces,” but merely call for
performance of the claimed information collecting, processing, and
displaying “on a set of generic computer components.” Bascom Glob.
Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir.
2016).
Appellant’s preemption argument is likewise unpersuasive of
Examiner error. See Appeal Br. 14–15. Although preemption “might tend
to impede innovation more than it would tend to promote it, ‘thereby
thwarting the primary object of the patent laws,’” (Alice, 573 U.S. at 216
(citing Mayo, 566 U.S. at 70–71)), “the absence of complete preemption
does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); see also OIP, 788
F.3d at 1362–63 (Fed. Cir. 2015) (“[T]hat the claims do not preempt all
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price optimization or may be limited to price optimization in the e-
commerce setting do not make them any less abstract.”).
Appellant also argues that it is “worth noting that the claims are not
rejected under 35 U.S.C. §102 or § 103 and therefore contain multiple steps
that are not routine or conventional in the field.” Appeal Br. 17.
This argument is also not persuasive. See Ans. 19–24. Although the
second step in the Alice/Mayo framework is termed a search for an
“inventive concept,” the analysis is not an evaluation of novelty or non-
obviousness, but rather, a search for “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.’” Alice,
573 U.S. at 217. A novel and nonobvious claim directed to a purely abstract
idea is, nonetheless, patent-ineligible. See Mayo, 132 S. Ct. at 1304; see
Flook, 437 U.S. at 588–595.
Accordingly, on this record, we are not persuaded the Examiner erred
in rejecting independent claims 1, 9, and 17, and dependent claims 2–8, 10–
16, and 18–20, for the same reasons.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20

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